People v. Fallis ( 2017 )

COLORADO COURT OF APPEALS 2017COA131
Court of Appeals No. 16CA1474
Weld County District Court No. 14CR2065
Honorable Thomas J. Quammen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Thomas Fallis,
Defendant-Appellee,
and
Alfred Perna,
Surety-Appellant.
ORDER VACATED
Division V
Opinion by JUDGE ASHBY
Román and Navarro, JJ., concur
Announced October 19, 2017
Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Zonies Law LLC, Sean Connelly, Denver, Colorado; Eytan Nielsen LLC, Iris
Eytan, Dru Nielsen, Tiffany Drahota, Denver, Colorado, for Defendant-Appellee
The Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for Surety-
Appellant
¶1 Surety, Alfred Perna, appeals from the district court’s order
granting in part the motion of defendant, Thomas Fallis, for return
of the bond premium. We vacate because we conclude that section
16-4-110, C.R.S. 2017, does not grant authority to the court to
refund a bond premium under the circumstances of this case.
I. Background
¶2 Defendant was charged and arrested for allegedly murdering
his wife. The district court set a $500,000 bond. Defendant posted
bond through Mr. Perna by paying a $25,000 premium. Thereafter,
he fully cooperated with all court orders and appeared at all
hearings. Fourteen months later, just before defendant’s trial was
to begin, Mr. Perna moved to surrender defendant back into the
custody of the court. The court granted the motion. Defendant
spent several days in jail while his family secured a second bond
and paid another $25,000 premium to a different surety to secure
defendant’s release. Defendant was ultimately acquitted.
¶3 Defendant moved for return of the premium he had paid to Mr.
Perna. The court partially granted the motion. The court
concluded that Mr. Perna would be unjustly enriched if he were
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allowed to keep the entire premium. The court also found, however,
that Mr. Perna had provided a service and was entitled to retain a
portion of the premium in exchange for the benefit conferred
(fourteen months of freedom). The court found that the risk taken
by Mr. Perna in securing this bond was similar to a high risk
investment contemplated by section 5-12-103(1), C.R.S. 2017, and
applied the maximum forty-five percent usury rate found therein.
Accordingly, it ordered Mr. Perna to return $11,031.25 to
defendant.
II. Unjust Enrichment
¶4 Mr. Perna contends that the district court erred by ordering
that he refund a portion of the bond premium to defendant. We
agree.
¶5 “The determination of the amount of premium refund due to
the defendant is a matter within the trial court’s discretion and the
court may not be reversed absent an abuse of that discretion.”
People v. Anderson, 789 P.2d 1115, 1117 (Colo. App. 1990). A court
abuses its discretion where its decision is manifestly arbitrary,
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unreasonable, or unfair, or is based on a misapplication or
misunderstanding of the law. People v. McFee, 2016 COA 97, ¶ 17.
¶6 In this instance, resolution of Mr. Perna’s contention requires
us to interpret section 16-4-110. Thus, our review is de novo. See
People In Interest of J.G., 2016 CO 39, ¶ 13. Our primary goal in
interpreting statutes is to ascertain and give effect to the
legislature’s intent. Id. We do this by first looking to the plain
language of the statute, giving words their ordinary meanings. Id.If the terms are clear, we apply the statute as written. Id.¶7 In ordering Mr. Perna to refund a portion of defendant’s
premium, the district court relied primarily on section 16-4-
110(1)(d) and People v. Carrethers, 867 P.2d 189 (Colo. App. 1993).
The relevant portion of section 16-4-110(1)(d) provides that “[i]f a
compensated surety is exonerated by surrendering a defendant
prior to the initial appearance date fixed in the bond, the court,
after a hearing, may require the surety to refund part or all of the
bond premium paid by the defendant if necessary to prevent unjust
enrichment.” This is a different version of the statute from the one
that was interpreted by the division in Carrethers.
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¶8 The statute as it existed when Carrethers was decided was
identical except for one important change: it did not contain the
term “initial.” Thus, it provided that if a surety was exonerated by
surrendering a defendant “prior to the appearance date fixed in the
bond,” the court could order the surety to return all or part of the
premium to prevent unjust enrichment. § 16-4-108(1)(c), C.R.S.
1993. The Carrethers division concluded that because another
statute, section 16-4-106, C.R.S. 1993, provided that “a pretrial bail
bond ‘shall continue in effect’ at least until the point of conviction,”
and because it is generally accepted that use of the singular in a
statute includes the plural, “[section] 16-4-108(1)(c) is not limited to
defendant’s initial appearance date but also includes such other
dates to which defendant’s case was continued up to the date of
conviction.” Carrethers, 867 P.2d at 190. Accordingly, the division
concluded that the district court had the authority to order return
of the premium even though the surety surrendered the defendant
after his initial appearance. Id.¶9 In 2013, the legislature repealed and reenacted the entire part
of title 16, article 4 containing the relevant statutes. In doing so, it
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added the term “initial” before the phrase “appearance date fixed in
the bond.” Ch. 202, sec. 2, § 16-4-110(1)(d), 2013 Colo. Sess. Laws
832. We presume this was an intentional amendment, made with
full awareness and understanding of pre-existing law. See People v.
Sandoval, 2016 COA 57, ¶ 36 (“The General Assembly is presumed
cognizant of relevant judicial precedent when it enacts legislation in
a particular area. And, when a statute is amended, the judicial
construction previously placed upon that statute is deemed
approved by the General Assembly to the extent the provision
remains unchanged.” (quoting U.S. Fid. & Guar., Inc. v. Kourlis, 868
P.2d 1158, 1162-63 (Colo. App. 1994))); see also Colo. Ethics Watch
v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20. Thus, we interpret
the statute to mean what it says; namely, that under section 16-4-
110(1)(d), a court may order return of the premium to prevent
unjust enrichment only if the surrender occurred prior to the
defendant’s initial appearance.
¶ 10 Here, Mr. Perna surrendered defendant to the court fourteen
months after the court process began. This was well after
defendant’s initial appearance. Accordingly, we conclude that the
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court was without the authority to order Mr. Perna to refund all or
part of defendant’s premium. Though we recognize that such a
provision may result in harsh consequences, as it does here, we are
bound by the statute and the legislature’s clear intent.
¶ 11 To the extent defendant argues on appeal that, regardless of
the statute, Mr. Perna breached their contract and so we should
apply basic rules of contract construction, we note that this issue
was not argued before the district court. Thus, we will not address
it. See People v. Salazar, 964 P.2d 502, 507 (Colo. 1998) (“It is
axiomatic that issues not raised in or decided by a lower court will
not be addressed for the first time on appeal.”); see also Melat,
Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,
¶ 18. We express no opinion as to whether defendant may pursue a
separate civil action for relief. See Vaughn v. Dist. Court, 192 Colo.
348, 350, 559 P.2d 222, 223 (1977).
III. Conclusion
¶ 12 Therefore, we vacate the district court’s order refunding a
portion of the bond premium to defendant. Based on our resolution
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of this issue, we need not address Mr. Perna’s remaining
contentions.
JUDGE ROMÁN and JUDGE NAVARRO concur.
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