State v. Bankers ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
BANKER’S INSURANCE COMPANY and AZTECA BAIL BONDS,
Appellants.
No. 1 CA-CV 16-0041
FILED 12-8-2016
Appeal from the Superior Court in Yavapai County
No. V1300CR820030173
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By William A. Kunisch
Counsel for Appellee
Clifford M. Sherr Attorney at Law, Phoenix
By Clifford M. Sherr
Counsel for Appellants
STATE v. BANKERS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Maurice Portley1 joined.
W I N T H R O P, Judge:
¶1 Banker’s Insurance Company and Azteca Bail Bonds
(“Appellants”) appeal the superior court’s judgment forfeiting a $25,000
appearance bond. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 2003, Theresa Flores (“Defendant”) pled guilty to two
counts of burglary and was placed on probation. After she absconded, the
Yavapai County Adult Probation Department filed a petition to revoke her
probation, and the superior court issued a warrant for her arrest.
¶3 More than ten years later, Defendant was arrested in Missouri
on the warrant. Appellants, through their agent, Fitzgerald All-State Bail
Bonds, LLC (“Fitzgerald”), posted a $25,000 appearance bond on
Defendant’s behalf, and she was released.2
¶4 Thereafter, the Circuit Court of St. Louis, Missouri, issued a
warrant for Defendant’s arrest on a separate criminal charge and set a
$3,500 appearance bond. Defendant was again arrested and booked into
the Yavapai County jail. The superior court confirmed the $3,500 bond set
by the Missouri court, and Fitzgerald again posted bond, securing
Defendant’s release for a second time.
¶5 Defendant failed to appear for a probation violation
disposition hearing in June 2015, and the court scheduled a bond forfeiture
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
2 Bankers Insurance Company is a nationwide surety company.
Azteca Bail Bonds was the transfer agent in this case, and Fitzgerald was
the posting agent.
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STATE v. BANKERS et al.
Decision of the Court
hearing. Neither Appellants nor their agent, Fitzgerald, appeared at the
hearing, and the court entered judgment forfeiting the $25,000 bond.
¶6 Pursuant to Rule 59(a)(8), Ariz. R. Civ. P.,3 Appellants filed a
motion for new trial, which the superior court denied. This timely appeal
followed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1), (5)(a) (2016).4
ANALYSIS
¶7 We review for an abuse of discretion the superior court’s
order forfeiting the bond. See State v. Affordable Bail Bonds, 198 Ariz. 34, 36,
¶ 9, 6 P.3d 339, 341 (App. 2000).5 We view the evidence in the light most
favorable to affirming the judgment. State v. Veatch, 132 Ariz. 394, 396, 646
P.2d 279, 281 (1982). We may affirm the bond forfeiture order if it is correct,
even on grounds different from those cited by the superior court. Ness v.
W. Sec. Life Ins. Co., 174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992).
¶8 Appellants argue that Defendant should have been held non-
bondable after her arrest on the Missouri charge and that the superior court
abused its discretion when it denied Appellants’ motion for new trial.6
Appellants also argue that “[p]rejudice to the Appellants as appeared in
this case is a recognized defense to forfeiture and was another basis for
exoneration ignored by the trial judge.” The State argues that Appellants
have waived these arguments “by failing to appear and present them at the
3 Rule 59(a)(8) provides that the superior court may grant a new trial
if “the verdict, decision, findings of fact, or judgment is not justified by the
evidence or is contrary to law.” Rule 59 has been amended, and effective
January 1, 2017, a similar provision may be found in Rule 59(a)(1)(H).
4 We cite the current version of all applicable statutes unless revisions
material to this decision have occurred since the relevant date(s).
5 We likewise review for an abuse of discretion the denial of a motion
for new trial. Jaynes v. McConnell, 238 Ariz. 211, 215-16, ¶ 13, 358 P.3d 632,
636-37 (App. 2015) (citation omitted).
6 Although Appellants’ notice of appeal references only the judgment
of forfeiture, this court may also review the superior court’s order denying
Appellants’ motion for new trial. See A.R.S. § 12-2102(B) (2016).
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STATE v. BANKERS et al.
Decision of the Court
bond forfeiture hearing,” and instead, raising them for the first time in their
motion for new trial.
¶9 “An issue raised for the first time after trial is deemed to have
been waived.” Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6, 981 P.2d 1087, 1089
(App. 1999) (citation omitted). This court has not hesitated to apply this
rule of law. See, e.g., Flanders v. Maricopa Cty., 203 Ariz. 368, 378, ¶ 65, 54
P.3d 837, 847 (App. 2002) (holding that an issue raised for the first time in a
motion for judgment as a matter of law following the verdict is waived);
Conant v. Whitney, 190 Ariz. 290, 293, 947 P.2d 864, 867 (App. 1997) (holding
that a plaintiff waived his claim of manifest injustice by raising it for the
first time in a motion for new trial); Ruck Corp. v. Woudenberg, 125 Ariz. 519,
522, 611 P.2d 106, 109 (App. 1980) (declining to consider the merits of
defendants’ objection to an attorneys’ fees award because the objection was
raised for the first time in a motion for new trial).
¶10 We apply this rule here. After Defendant failed to appear at
her disposition hearing, the superior court scheduled a bond forfeiture
hearing. Although notified of the hearing, Appellants and their agent failed
to appear. The record reflects no explanation for Appellants’ absence at the
hearing. In their motion for new trial, Appellants argued for the first time
that Defendant should have been held non-bondable on the Missouri
charges and asserted a “prejudice defense.” Appellants’ arguments came
too late.
¶11 Arizona Rule of Criminal Procedure 7.6(c) requires the
superior court to give the surety notice of a forfeiture hearing and provide
the surety with an opportunity to show cause why the bond should not be
forfeited. See Ariz. R. Crim. P. 7.6(c)(1). If no explanation or excuse for the
defendant’s violation is provided at the hearing, “the court may enter an
appropriate order of judgment forfeiting all or part of the amount of the
bond.” Ariz. R. Crim. P. 7.6(c)(2). Here, Appellants did not appear at the
forfeiture hearing and, therefore, failed to provide an explanation or excuse
for Defendant’s violation. Accordingly, the court had the authority to
forfeit the bond.
¶12 As prior decisions have explained, “a surety assumes the risk
of a defendant’s failure to appear.” In re Bond Forfeiture in Pima Cty. Cause
No. CR-20031154, 208 Ariz. 368, 369, ¶ 4, 93 P.3d 1084, 1085 (App. 2004)
(citations omitted); accord United Bonding Ins. Co. v. City Court, 6 Ariz. App.
462, 464, 433 P.2d 642, 644 (1967). To alleviate that risk, the surety must
exercise care in ascertaining the defendant’s circumstances and community
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STATE v. BANKERS et al.
Decision of the Court
ties before executing an appearance bond. Bond Forfeiture in Pima Cty. Cause
No. CR-20031154, 208 Ariz. at 369, ¶ 4, 93 P.3d at 1085.
¶13 In this case, Appellants posted two appearance bonds for
Defendant. At the time they posted the first bond, Appellants were aware
that a warrant for Defendant’s arrest had been issued more than ten years
earlier. Notwithstanding this information about Defendant, Appellants
chose to post a second bond after her arrest on the Missouri warrant.
Appellants thus assumed the risk that Defendant would fail to appear.
CONCLUSION
¶14 Appellants waived their challenges to the bond forfeiture by
raising them for the first time in their motion for new trial, and the superior
court did not abuse its discretion in denying their motion. On this basis, we
affirm the superior court’s order forfeiting the $25,000 appearance bond.
AMY M. WOOD • Clerk of the Court
FILED: AA
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