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State v. Nelson

Intermediate Court of Appeals of Hawaii

September 29, 2016

STATE OF HAWAI I, Plaintiff-Appellee,
v.
SEMISI NELSON, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
KAREN TERUYA, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
CONRADO CABIGON, JR., Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
STEVEN D. FERRARIS, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
DAVID K. BERRY, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
JUSTIN NAKAMURA, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
CEDRO MUNA, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant. STATE OF HAWAI'I, Plaintiff-Appellee,
v.
JOHN PAUL LUNA, Defendant-Appellee, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Real Party in Interest/Appellant.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT CR. Nos. 05-1-2446, 02-1-1718, 08-1-1192, 11-1-0306, 10-1-1289, 09-1-1364, 09-1-0616, 10-1-0621)

          Matson Kelley and Michael C. Carroll, Sarah M. Love, (Bays Lung Rose & Holma of counsel) for Real Party in Interest-Appellant.

          Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

          FUJISE, PRESIDING JUDGE, REIFURTH, and GINOZA, JJ.

          OPINION

          GINOZA, J.

         In the eight criminal cases that are part of this appeal, a bail bond was executed by a bail agent, the defendant failed to appear in court as required under the bond, and a bail forfeiture judgment was issued pursuant to Hawaii Revised Statutes (HRS) § 804-51 (2014). The primary question in the appeal is whether the notice to the "surety" about the bail forfeiture judgment, which is required under HRS § 804-51, was satisfied by notice to the bail agent who signed the bail bond, or whether the insurance company that conferred power-of-attorney on the bail agent to execute the bail bond was the "surety" who should have received the notice.

         Real Party in Interest/Appellant International Fidelity Insurance Company (International Fidelity) filed motions to set aside the bail forfeiture judgments in the eight criminal cases. In each case, either Ida Peppers (Peppers) or Linda Del Rio (Del Rio) of Freedom Bail Bonds (FBB), or Charles Fisher (Fisher) of AAA Local Bail Bonds (AAA), executed the bail bond as the "undersigned surety." For each of the bail bonds, International Fidelity had issued a power-of-attorney to either Peppers, Del Rio, or Fisher.[1] International Fidelity contends that it is the surety on the bail bonds, and thus the notice given to the bail agent in each case regarding the bail forfeiture judgment did not satisfy the notice requirements under HRS § 804-51.

         The Circuit Court for the First Circuit (circuit court) held a consolidated hearing on International Fidelity's motions.[2]On October 31, 2012, the circuit court denied the motions by way of its "Findings of Fact, Conclusions of Law, and Order Denying International Fidelity Insurance Company's Consolidated Motions to Set Aside Judgment Entered Against International Fidelity Insurance Company" (Order Denying Motions to Set Aside Forfeiture Judgment).

         On appeal, International Fidelity contends that the circuit court erred by:

(1) concluding that HRS § 804-51 did not require Plaintiff-Appellee State of Hawai'i (State) to give International Fidelity direct notice of the bail forfeiture judgments;
(2) concluding that International Fidelity received the notice required under HRS § 804-51;
(3) concluding that there was no violation of International Fidelity's due process rights, and further, violating International Fidelity's due process rights by upholding the forfeitures;
(4) declining to vacate the bail forfeiture judgments pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b) or HRS § 804-51;
(5) failing to find good cause to vacate the bail forfeiture judgments; and
(6) failing to enter a proper judgment.

         For the reasons discussed below, we affirm. On the primary question presented, we hold in these cases that the bail agent was the "surety" and therefore, under HRS § 804-51, notice of the bail forfeiture judgment to the bail agent was proper. We also do not find merit in the other points of error raised by International Fidelity.

         I. Background

         The eight separate criminal cases were consolidated for purposes of this appeal. In each case, International Fidelity conferred power-of-attorney on either Peppers, Del Rio, or Fisher, to execute bail bonds. In each case, the circuit court declared the bail forfeited and entered a bail forfeiture judgment. Notice of each bail forfeiture judgment was given to the respective bail agent, either Peppers, Del Rio, or Fisher, through their bail bond company. In six of the cases, the bail bond company filed a motion to set aside the forfeiture judgment and all of these motions were denied. In all eight cases, even when the bail bond company had already filed a motion that had been denied, International Fidelity filed a motion to set aside the bail forfeiture judgment. International Fidelity's motions were filed long after the bail agent in each case had received notice of the forfeiture judgment. International Fidelity's motions were also filed more than thirty days after it had received a letter in each case from the State of Hawai'i Judiciary regarding the respective bail forfeiture judgment.

         After the consolidated hearing on International Fidelity's motions, the circuit court entered detailed findings of fact (FOF) for each case. None of the circuit court's findings are challenged on appeal, and thus we are bound by the findings. Bremer v. Weeks, 104 Hawai'i 43, 63, 85 P.3d 150, 170 (2004)("[F]indings of fact that are not challenged on appeal are binding on the appellate court.")(citations and ellipses omitted).

         The circuit court's FOFs are as follows:

1. In each of the cases outlined below, the bail bond filed on behalf of the defendant contained the following language:
KNOW ALL MEN BY THESE PRESENT: THAT THE UNDERSIGNED SURETY, OR SURETIES, AS SURETY, HEREBY UNDERTAKE THAT THE SAID DEFENDANT WILL APPEAR AND ANSWER ALL CHARGES MENTIONED IN WHATEVER COURT IT MAY BE PROSECUTED WITHIN THE STATE OF HAWAII, AND WILL AT ALL TIMES BE AMENABLE TO THE ORDERS AND PROCESS OF THE COURT, AND, IF CONVICTED, WILL APPEAR FOR JUDGMENT, AND RENDER SELF IN EXECUTION THEREOF, OR FAILING TO PERFORM EITHER OF THESE CONDITIONS WILL PAY TO THE STATE OF HAWAII, AS PROVIDED IN SECTION 804-51 HAWAII REVISED STATUTES THE SUM OF ...
(emphasis added). Included thereafter was the sum of money the surety or sureties would pay to the State of Hawaii if the defendant "failed to perform either of these conditions." The bonds were signed by either Ida Peppers ("Peppers") or Linda Del Rio ("Del Rio") of Freedom Bail Bonds ("FBB") or Charles Fisher ("Fisher") of AAA Local Bail Bonds ("AAA") .
2. Attached to the bail bond in each of the cases outlined below was a power-of-attorney that read as follows: [3]
KNOW ALL MEN BY THESE PRESENTS, that International Fidelity Insurance Company, a corporation duly organized and existing under the laws of the State of New Jersey, has constituted and appointed, and does hereby constitute and appoint, its true and lawful Attorney- in-Fact, with full power and authority to sign the company's name and affix its corporate seal to, and deliver on its behalf as surety, any and all obligations as herein provided, and the execution of such obligations in pursuance of these presents shall be as binding upon the company as fully and to all intents and purposes as if done by the regularly elected officers of said company at its home office in their own proper person; and the said company hereby ratifies and confirms all and whatsoever its said Attorney-in-Fact may lawfully do and perform in the premises by virtue of these presents. . . . Authority of such Attorney-in-Fact is limited to the execution of appearance bonds and cannot be construed to guarantee defendant's future lawful conduct, adherence to travel limitation, fines, restitution, payments or penalties, or any other condition imposed by a court not specifically related to court appearances. A separate Power of Attorney must be attached to each bond executed.
3. As noted below, it was Peppers of FBB in Cr. Nos. 02-1-1718, 05-1-2446, 08-1-1192, 09-1-0616, 09-1-1364, and 11-1-0306, Del Rio of FBB in Cr. No. 10-1-1289, and Fisher of AAA in Cr. No. 10-1-0621, who executed the bail bonds as "the undersigned surety or sureties" and the authorized attorney-in-fact for [International Fidelity].
4. In Cr. No. 02-1-1718, a bail bond in the amount of $5000 was posted on behalf of Defendant Karen Teruya on March 24, 2009 ("Teruya Bond"). The Teruya Bond was executed by Peppers as the "undersigned surety, or sureties" on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
a. A Judgment and Order of Forfeiture of Bail Bond was filed on July 13, 2009 after Teruya failed to appear at a hearing before Judge Steven Aim.
b. On July 13, 2009, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804-51 by certified mail, return receipt requested, to Peppers of FBB as surety on the Teruya Bond.
c. On August 5, 2009, and again on October 20, 2009, FBB filed a Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond and Extend Time to Locate and Surrender the Defendant.
d. On October 21, 2009, after a sixty-day continuance, the court orally denied FBB's motions and a written order to the same effect was filed on October 26, 2009.
e. On November 25, 2009, a letter was sent to [International Fidelity] by the Judiciary of the State of Hawaii ("Judiciary"), by certified mail, return receipt requested, notifying [International Fidelity] that judgment had been entered pursuant to HRS § 804-51 on July 13, 2009, and demanding payment. The return receipt was signed by the recipient at [International Fidelity], but not dated.
f. On or about June 1, 2012, 920 days after the November 25, 2009 letter, the court received [International Fidelity's] Motion to Set Aside Judgment Entered Against [International Fidelity] (which motion was filed on June 14, 2012 . . .).
5. In Cr. No. 05-1-2446, a bail bond in the amount of $15, 000 was posted on behalf of Defendant Semisi Nelson on October 28, 2005 ("Nelson Bond"). The Nelson Bond was executed by Peppers as the "undersigned surety, or sureties" on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
a. A Judgment and Order of Forfeiture of Bail Bond was filed on December 20, 2005 after Nelson failed to appear at a hearing on December 12, 2005.
b. On December 20, 2005, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804-51 to Peppers of FBB as surety on the Nelson Bond.
c. On January 26, 2006, FBB, as "Surety and Real Party in Interest, " filed a Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond.
d. On February 7, 2006, FBB's motion to set aside the bond forfeiture was granted and the bond was reinstated. The Order Granting Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond and Oral Motion to Recall Bench Warrant and Reinstate Bail Bond was filed on February 13, 2006.
e. A second Judgment and Order of Forfeiture of Bail Bond was filed on January 23, 2009 after Nelson failed to appear at a hearing before Judge Richard Perkins on January 21, 2009.
f. On or about January 26, 2009, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804-51 by certified mail, return receipt requested, to Peppers of FBB as surety on the Nelson Bond.
g. On February 5, 2009, FBB, as "Surety, " filed a Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond.
h. On April 30, 2009, after two thirty-day continuances, the court orally denied FBB's motion and a written order to the same effect was filed on May 5, 2009.
i. On September 8, 2009, the Judiciary sent a letter to [International Fidelity], by certified mail, return receipt requested, notifying [International Fidelity] that judgment had been entered pursuant to HRS § 804-51 on January 23, 2009, and demanding payment. The return receipt was signed by the recipient at [International Fidelity], but not dated.
j. On or about June 1, 2012, 998 days after the September 8, 2009 letter, the court received [International Fidelity's] Motion to Set Aside Judgment Entered Against [International Fidelity] (which motion was filed on June 14, 2012 . . .).
6. In Cr. No. 08-1-1192, a bail bond in the amount of $75, 000 was posted on behalf of Defendant Conrado Cabigon Jr. on August 25, 2008 ([sic]("Cabigon Bond"). The Cabigon Bond was executed by Peppers as the "undersigned surety, or sureties" on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
a. A Judgment and Order of Forfeiture of Bail Bond was filed on August 16, 2010, after Cabigon failed to appear at a hearing before Judge Dexter Del Rosario on August 11, 2010.
b. On August 17, 2010, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804-51 by certified mail, return receipt requested, to Peppers of FBB as surety on the Cabiqon Bond.
c. On September 15, 2010, FBB filed a Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond and Extend Time to Locate and Surrender Defendant.
d. On September 22, 2010, the court orally denied FBB's motion, however, no written order was ever filed.
e. On November 9, 2010, the Judiciary sent a letter to [International Fidelity] by certified mail, return receipt requested, notifying [International Fidelity] that Judgment had been entered pursuant to HRS § 804-51 on August 16, 2010, and demanding payment. [International Fidelity] received the letter on November 16, 2010.
f. On or about June 1, 2012, 564 days after the November 9, 2010 letter was received by [International Fidelity], the court received [International Fidelity's] Motion to Set Aside Judgment Entered Against [International Fidelity] (which motion was filed on June 14, 2012 . . .).
7. In Cr. No. 09-1-0616, a bail bond in the amount of $20, 000 was posted on behalf of Defendant Cedric Muno [sic] [4] on March 27, 2009 ("Muno [sic] Bond"). The Muno [sic] bond was executed by Peppers as the "undersigned surety, or sureties" on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
a. A Judgment and Order of Forfeiture of Bail Bond was filed on February 1, 2010, after Muno [sic] failed to appear at a hearing before Judge Steven Aim on January 11, 2010.
b. On February 1, 2010, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804-51 by certified mail, return receipt requested, to Peppers of FBB as surety on the Muno [sic] Bond[.]
c. On March 1, 2010, FBB filed a Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond and Extend Time to Locate and Surrender the Defendant.
d. On June 1, 2010, after two thirty-day continuances, the court orally denied FBB's motion.
e. On August 31, 2010, the Judiciary sent a letter to [International Fidelity] by certified mail, return receipt requested, notifying [International Fidelity] that judgment had been entered pursuant to HRS § 804-51 on February 1, 2010, and demanding payment. The return receipt was signed by the recipient at [International Fidelity], but not dated.
f. On or about June 1, 2012, 641 days after the August 31, 2010 letter, the court received [International Fidelity's] Motion to Set Aside Judgment Entered Against [International Fidelity] with respect to the Muno [sic] Bond (which motion was filed on June 14, 2012 . . .).
g. Also in Cr. No. 09-1-0616, a bail bond in the amount of $11, 000 was posted on behalf of Defendant Antonias Toloai on March 28, 2009 ("Toloai Bond"). The Toloai Bond was executed by Peppers as the "undersigned surety, or sureties" on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
h. A Judgment and Order of Forfeiture of Bail Bond was filed on August 12, 2009, after Toloai failed to appear at a hearing before Judge Steven Aim on July 24, 2009.
i. On or about August 12, 2009, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804-51 by certified mail, return receipt requested, to Peppers of FBB as surety on the Toloai Bond.
j. On August 31, 2009, FBB filed a Motion to Set Aside Judgment and Order of Forfeiture of Bail Bond and Discharge Bonds.
k. On September 21, 2009, the court orally granted FBB's motion and both FBB and [International Fidelity] were discharged as surety on the Toloai Bond. No written order was filed.
8. In Cr. No. 09-1-1364, a bail bond in the amount of $1000 was posted on behalf of Defendant Justin Nakamura on September 11, 2009 ("Nakamura Bond"). The Nakamura Bond was executed by Peppers as the "undersigned surety, or sureties" on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
a. A Judgment and Order of Forfeiture of Bail Bond was filed on November 19, 2009, after Nakamura failed to appear at a hearing before Judge Karen Ahn on November 16, 2009.
b. On November 19, 2009, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS ยง 804-51 by certified mail, return receipt requested, to ...

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