FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 359-770,
DIVISION "E" Honorable Jacques A. Sanborn, Judge.
C. Jarrell LAW OFFICES OF DAVID C. JARRELL, APLC, Perry
Michael Nicosia, District Attorney 34TH JDC, ST. BERNARD
PARISH, COUNSEL FOR STATE OF LOUISIANA/APPELLANT
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina
Jenkins, Judge Dale N. Atkins.
N. Atkins Judge.
State of Louisiana ("State") appeals two judgments
issued by the trial court on April 25, 2011, and January 28,
2013, respectively. In the April 25, 2011 Judgment, the trial
court granted the motion to set aside a $40, 000 bond
forfeiture on a bond which had previously been forfeited to
the State on October 20, 2010, when the defendant, Teddy
Magee ("Defendant") failed to show for his initial
appearance. In the January 28, 2013 Judgment, the trial court
set aside a bond forfeiture in the amount of $40, 000 for a
bond also forfeited to the State as a result of
Defendant's non-appearance at a scheduled trial
proceeding on April 3, 2012. For the following reasons, we
reverse both judgments of the trial court setting aside the
bond forfeitures and remand.
and Procedural History
12, 2010, a bill of information was filed in the 34th
Judicial District Court, Parish of St. Bernard, charging
Defendant with possession of a controlled dangerous substance
with intent to distribute, namely crack cocaine, in violation
of La. R.S. 40:967. Defendant was subsequently arrested, on
or about July 14, 2010, for felony possession of crack
cocaine with intent to distribute and driving without a
driver's license, a misdemeanor violation of La. R.S.
32:52. Bond was set at $40, 000 and an initial appearance was
set for October 20, 2010. On October 20, 2010, Defendant
failed to show for his initial appearance, bench warrants
were issued for his arrest and his bond of $40, 000 was
forfeited to the State by a Judgment signed on October 27,
2010. On November 5, 2010, a notice of bond forfeiture was
mailed to the surety, Bankers Insurance Company
("Bankers"). On November 12, 2010, Defendant
appeared in open court with counsel, was arraigned and pled
not guilty. A motion hearing date of January 24, 2011,
was set and trial was set for March 1-3, 2011. On March 9,
2011, Bankers filed a motion to set aside bond forfeiture
based upon Defendant being incarcerated in Orleans Parish
within 180 days of the mailing of the notice of bond
forfeiture. A "Letter of Verification of
Incarceration," dated December 15, 2010, was submitted
by Bankers with the motion to set aside bond forfeiture to
show that Defendant was incarcerated in Orleans Parish Prison
from December 7, 2010, "thru Present." However,
there is no record evidence to show that the State was served
with the motion to set aside bond forfeiture and its
supporting documentation. An Order to Show Cause why the
motion to set aside bond forfeiture should not be granted was
issued by the trial court on March 17, 2011. The record shows
that the Order on the Rule to Show Cause was sent to a post
office box rather than personally served on the district
attorney or served via certified mail in compliance with
La.C.C.P. art. 1313(C). On April 25, 2011, counsel for
Bankers appeared before the court and represented that he was
seeking a motion to set aside the bond forfeiture as
Defendant had been incarcerated within one hundred and eighty
days of his failed court appearance. Counsel for the State
asked if opposing counsel had any documentation regarding the
"holdings in Orleans" and counsel for Bankers
indicated he had a "Letter of Verification of
Defendant's Incarceration in Orleans Parish."
Counsel for the State, appearing not to have a copy of the
motion, stated, "Has it been attached?" Upon
Banker's counsel's response in the affirmative, the
court stated, "Granted."
to the hearing, Bankers was served with notice of the signing
of the April 25, 2011 judgment setting aside the bond
forfeiture but the State was never served with notice of the
numerous trial continuances, Defendant failed to appear for
trial on April 3, 2012. Bench warrants were once again issued
for his arrest and his bond of $40, 000 was forfeited, per
the trial court's written judgment dated April 12, 2012.
Notice of the bond forfeiture was mailed to all parties on or
about April 24, 2012. On October 23, 2012, Bankers filed a
motion to set aside the April 12, 2012 judgment of bond
forfeiture and a petition for nullity of judgment alleging
that Defendant was incarcerated at Allen Correctional Center
as of March 9, 2012, "until the present," which was
at least until October 19, 2012, the date stated on the
"Letter of Incarceration." Again, Bankers failed to
request and properly serve the State with the motion to set
aside bond forfeiture. On January 28, 2013, the trial court
held a hearing on Bankers' motion to set aside the
judgment of bond forfeiture. When counsel for Bankers made
his appearance relative to Bankers' motion to set aside
bond forfeiture on behalf of Defendant and in another case,
counsel for the State replied, "I don't see either
one . . . I don't see a motion." The court indicated
it was on the docket for a motion to set aside bond
forfeiture and a brief, untranscribed bench conference was
held. Back on the record, Bankers' counsel stated that
Defendant was incarcerated in the Allen Correctional Center
and the State "submitted the matter on the record".
The trial court granted Bankers' motion to set aside the
judgment of bond forfeiture, issuing a written judgment on
that same date. Again, notice of the signing of the January
28, 2013 judgment was sent to Bankers but there is no
evidence in the record to establish that notice of the
January 28, 2013 judgment was sent to the State.
August 9, 2017, and October 12, 2017, respectively, the State
filed a motion for new trial and a motion to vacate the
judgment which set aside the judgment of forfeiture. In the
motion for new trial, the State argued that the State had not
been properly served with notice of the April 25, 2011
hearing date on the motion to set aside forfeiture and had
not been mailed the April 25, 2011 judgment setting aside the
bond forfeiture, thus the motion for new trial was urged to
be considered as timely filed. Moreover, the State argued
that, although paying the costs of extradition would have
been "implicit" in Defendant's motion to set
aside forfeiture, Bankers had, in fact, failed to pay the
requisite costs of extradition as required by La. C.Cr. P.
art. 345(D) and was therefore not entitled to Article 345(D)
relief. The State contended that it was not until
December 23, 2016, that the State learned the requisite costs
of transportation as required by Article 345(D) had not been
tendered. Also, the State urged that the trial court's
judgment of April 25, 2011, was null and void because Bankers
had failed to properly serve the notice of the motion and of
the hearing date as required for a contradictory motion.
to an extract of the court's minutes, on November 3,
2017, the State's motion for new trial and motion to
vacate judgment setting aside the bond forfeiture was denied
by the trial court. No written judgment denying the motion
for new trial and the motion to vacate was contained in the
record, thus the State was ordered to and did supplement the
record with written judgments in order to cure a problem of
prematurity. Appellant's brief was timely filed on May 4,
2018; Bankers filed no brief in opposition.
the State challenges the validity of two separate judgments
setting aside two bond forfeitures, the validity of each
judgment raises a question of law. As such, an appellate
court reviews this matter de novo to determine whether the
trial court's decision is legally correct. State v.
Jones, 2015-1232, p. 3 (La.App. 4 Cir. 8/17/16), 200
So.3d 950, 952, writ denied, 2016-1651 (La.
6/29/17), 222 So.3d 48 (citing French Quarter Realty v.
Gambel, 05-0933, p. 3 (La.App. 4 Cir. 12/28/05), 921
So.2d 1025, 1027).
and Timeliness of Motion for New Trial:
no opposition was filed to this appeal raising any procedural
defects in its filing, we address two procedural concerns.
First, the record in this case did not contain a written
judgment entered by the trial court denying the State's
motion for new trial and motion to vacate. Rather, the only
evidence that the motions were ruled upon lies in the extract
of the court's minutes dated November 3, 2017. For this
reason, the State was ordered to supplement the record with
written judgments relative to the motion for new trial and
motion to vacate.
State v. Dennis, this Court stated, "Bond
forfeiture proceedings are unique because they are
'intrinsically civil matters,' and their outcomes are
based upon provisions found within the Code of Civil
Procedure and related jurisprudence." 2014-1258, p. 2
(La.App. 4 Cir. 4/29/15), 165 So.3d 1124, 1126 (citing
State v. Allen, 2011-2843, p. 2 (La. 4/13/12), 84
So.3d 1288, 1288); State v. Nellon, 2012-1429, p. 5
(La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118; City of
New Orleans v. Young, 2007-0925, pp. 1-2 (La.App. 4 Cir.
9/12/07), 967 So.2d 539, 540). Perfecting an appeal of a
judgment in a civil matter requires three procedural
elements: (1) a motion or petition for appeal, (2) an order
of appeal, and (3) notice of appeal. Bremermann v.
Bremermann, 2005-0547, p. 2 (La.App. 4 Cir. 1/11/06),
923 So.2d 187, 188 (citations omitted). Jurisdiction of the
appellate court attaches upon the granting of the order of
appeal. La. C.C.P. art. 2088; Dennis, 2014-1258, p.
3, 165 So.3d at 1126; Brennan's, Inc. v.
Colbert, 13-0943, p. 4 (La.App. 4 Cir. 9/25/13), 125
So.3d 537, 539. However, an order of appeal is premature if
granted before the court disposes of all timely filed motions
for new trial or judgment notwithstanding the verdict. The
order becomes effective upon the denial of such motions. La.
C.C. P. art. 2087 D; Merritt v. Dixon, 97-0781, p, 2
(La.App. 4 Cir. 5/28/97), 695 So.2d 1095, 1096 (citing
Sledge v. Continental Cas. Co., 26, 472 (La.App. 2
Cir. 1/25/95), 654 So.2d 358 (holding that appeal taken while
a timely motion for a new trial is pending is premature and
subject to dismissal because the motion suspends the
operation of the final judgment being appealed). Where the
trial court does not rule on the motion for new trial, the
trial court is never divested of original jurisdiction, and
the appellate court lacks jurisdiction to hear the appeal.
Id. (citing Bowers v. Viator, 597 So.2d
1250, 1252 (La.App. 3 Cir.1992)).
a defect of prematurity can be cured. Sullivan v.
Franicevich, 2004-0321, p. 2 (La.App. 4 Cir. 3/9/05),
899 So.2d 602, 604 (holding that trial court's denial of
a motion for new trial during the pendency of an appeal cures
the defect of prematurity). The Louisiana Supreme Court has
held that once a previously existing defect has been cured,
there is no useful purpose in dismissing an otherwise valid
appeal. Overmier v. Traylor, 475 So.2d 1094, 1094-95
(La. 1985). As the State has supplemented the record with
written judgments disposing of the motion for new trial and
motion to vacate, we find the issue of prematurity of the
appeal to be moot.
the judgments setting aside the two bond forfeitures
currently under attack were issued on April 25, 2011, and
January 28, 2013. The State did not file a motion for new
trial in the lower court until August 9, 2017. Pursuant to
La. C.C.P. art. 1974, the delay for applying for a new trial
shall be seven days, exclusive of legal holidays. The delay
for applying for a new trial commences to run on the day
after the clerk has mailed, or the sheriff has served, the
notice of judgment as required by Article 1913. See La.
C.C.P. art. 1974. Notice of the signing of a final judgment
is required in all contested cases, and shall be mailed by
the clerk of court to the counsel of record for each party,
and to each party not represented by counsel. La. C.C.P. art.
1913. As outlined previously, neither the April 25, 2011
judgment nor the January 28, 2013 judgment were mailed to the
State. "In the absence of the clerk's certificate
showing the date of the mailing of the judgment and to whom
it was mailed, doubt should be resolved in favor of the right
to appeal." Garco, Inc. v. Rob's Cleaning and
Powerwash, Inc., 2008-1249, p. 3 (La.App. 4 Cir.
4/22/09), 12 So.3d 386, 388 (citing Moon v. Moon,
244 So.2d 301, 302 (La.App. 1 Cir.1970)). Since notice of
each judgment as required by La. C.C.P. art.1913 was never
effectuated, the State's motion for new trial was timely
and the present appeal is properly before us.
Court acknowledges that another case on similar facts was
recently decided by this Court. In State v. Financial
Casualty and Surety, Inc., 2017-1014, 2018-0242, p.1
(La.App. 4 Cir. 11/7/18), -- So.3d --, 2018 WL 5830381, at *
1, the State filed a petition to annul two judgments,
pursuant to La. C.C.P. arts. 2002 and 2004, in which the
trial court had granted motions to set aside bond forfeiture.
The State alleged that the bond forfeitures had been set
aside improperly through fraud or ill practices on the part
of the surety. The trial court, in its judgment, found no
evidence in the record to support the State's claims and
further found that the State had "acquiesced" in
the judgment when it made no objection to the motion and when
it "participated" in the hearing on the motion to
set aside bond forfeiture. The trial court thus granted the
surety's exception of no cause of action. This Court
affirmed the trial court's judgments, specifically
finding that the ...