State v. Cash ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-460
Filed: 17 March 2020
Granville County, No. 18 CRS 050849
STATE OF NORTH CAROLINA,
v.
DERRICK CASH, Defendant,
and
1ST ATLANTIC SURETY COMPANY, Surety.
Appeal by Surety from order entered 11 March 2019 by Judge James Hardin
in Granville County Superior Court. Heard in the Court of Appeals 13 November
2019.
Hill Law, PLLC, by M. Brad Hill, and Ragsdale Liggett PLLC, by Mary M.
Webb and Amie C. Sivon, for Surety-Appellant.
Tharrington Smith, L.L.P., by Stephen G. Rawson and Colin Shive, for Appellee
Granville County Board of Education.
COLLINS, Judge.
1st Atlantic Surety Company (“Surety”) appeals from the trial court’s order
(1) denying its motion to set aside a bond forfeiture and (2) granting the Granville
County Board of Education’s (the “Board”) motion for sanctions. Surety contends that
the trial court erred by (1) concluding that an unauthorized party had signed the
STATE V. CASH
Opinion of the Court
motion to set aside the bond forfeiture and (2) granting the Board’s motion for
sanctions based upon that ruling. Because we conclude that signing and filing a
motion to set aside a bond forfeiture pursuant to N.C. Gen. Stat. § 15A-544.5
constitutes the practice of law within the meaning of N.C. Gen. Stat. § 84-5, we affirm
the trial court’s denial of Surety’s motion to set aside the bond forfeiture. However,
we reverse the trial court’s order imposing a sanction against Surety.
I. Background
Defendant Derrick Cash was arrested and charged with conspiracy to sell or
deliver cocaine in early 2018. On 4 June 2018, Defendant was released from custody
after Surety—through bail agent Mary E. Faines—posted a bond securing
Defendant’s release, pending disposition of his criminal charges in Granville County
Superior Court.
On 29 August 2018, Defendant failed to appear in court as scheduled, and the
trial court issued an order for Defendant’s arrest for his failure to appear. On 31
August 2018, the trial court issued a bond forfeiture notice and the clerk of superior
court mailed it to Surety.
On 28 January 2019, Surety moved to set aside the bond forfeiture (the
“Motion”) pursuant to N.C. Gen. Stat. § 15A-544.5(b)(4), which states that a forfeiture
“shall be set aside” if “[t]he defendant has been served with an Order for Arrest for
the Failure to Appear on the criminal charge in the case in question as evidenced by
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Opinion of the Court
a copy of an official court record, including an electronic record.” N.C. Gen. Stat. §
15A-544.5(b)(4) (2019). The Motion appended a certificate signed by an Oxford Police
Department officer indicating that he served Defendant with the arrest order on 12
September 2018. The Motion was signed on Surety’s behalf by Derrick Harrington
as a “corporate officer” of Surety.
The Board1 filed an objection to the Motion on 7 February 2019. In its
objection, the Board asked the trial court to deny the Motion “because the [Motion]
was not signed as required by N.C. Gen. Stat. § 15A-544.5.” The Board also asked
the trial court to impose sanctions upon Surety for this purported deficiency.
On 11 March 2018, the trial court entered an order denying the Motion. The
trial court concluded that N.C. Gen. Stat. § 15A-544.5(d)(1) establishes which parties
can sign an order to set aside a bond forfeiture, and that because Harrington was
neither a bail agent nor a licensed attorney, he was not authorized to sign the Motion
on Surety’s behalf. The trial court accordingly denied the Motion and sanctioned
Surety in the amount of $1000.
Surety timely appealed.
1 The Board, as beneficiary of the forfeiture pursuant to Article XI, section 7, of the North
Carolina Constitution, has statutory authority pursuant to N.C. Gen. Stat. § 544.5(d)(3) to appear
before the court to contest motions to set aside bond forfeitures.
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Opinion of the Court
II. Discussion
On appeal from an order denying a motion to set aside a bond forfeiture, “the
standard of review for this Court is whether there was competent evidence to support
the trial court’s findings of fact and whether its conclusions of law were proper in
light of such facts.” State v. Dunn, 200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009).
“Questions of law, including matters of statutory construction, are reviewed de novo.”
State v. Knight, 255 N.C. App. 802, 804, 805 S.E.2d 751, 753 (2017).
A. Denial of bond forfeiture motion
The facts are not in dispute. Rather, the parties’ arguments concern whether,
as a matter of law, it was proper for Harrington, as a corporate officer of Surety, to
sign and file the Motion on Surety’s behalf. The Board argues that making a motion
to set aside a bond forfeiture constitutes the practice of law within the meaning of
N.C. Gen. Stat. § 84-5 and thus Harrington, who was not a licensed attorney, was
prohibited from signing and filing the Motion on Surety’s behalf. Surety, on the other
hand, argues that making a motion to set aside a bond forfeiture is not the practice
of law, and that Harrington was therefore authorized as a corporate officer to sign
and file the Motion on Surety’s behalf.
Article 26 of the North Carolina Criminal Procedure Act contains the statutory
framework governing bail bonds in our State. N.C. Gen. Stat. § 15A-544.5, the
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Opinion of the Court
relevant statute governing how and when bond forfeitures can be set aside, reads as
follows:
(1) At any time before the expiration of 150 days after the
date on which notice was given under [N.C. Gen. Stat.
§] 15A-544.4, any of the following parties on a bail bond
may make a written motion that the forfeiture be set
aside:
(a) The defendant.
(b) Any surety.
(c) A professional bondsman or a runner acting on
behalf of a professional bondsman.
(d) A bail agent acting on behalf of an insurance
company.
(2) The motion shall be filed in the office of the clerk of
superior court of the county in which the forfeiture was
entered.
N.C. Gen. Stat. § 15A-544.5(d) (2019). “Surety” is defined in Article 26’s “Definitions”
section as including an “insurance company, when a bail bond is executed by a bail
agent on behalf of an insurance company.” N.C. Gen. Stat. § 15A-531(8)(a) (2019).
While N.C. Gen. Stat. § 15A-544.5(d)(1) expressly authorizes a surety to make a
motion to set aside a bond forfeiture, it does not expressly indicate whether such
motion may or must be made by an attorney, see Lexis-Nexis, Div. of Reed Elsevier,
Inc. v. Travishan Corp., 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002) (adopting
the general rule that “in North Carolina a corporation must be represented by a duly
admitted and licensed attorney-at-law and cannot proceed pro se”), or made by a
corporate officer, see State v. Pledger, 257 N.C. 634, 637, 127 S.E.2d 337, 339 (1962)
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Opinion of the Court
(“A corporation can act only through its officers, agents and employees.”). We must
thus determine whether signing and filing such motion constitutes the practice of law
within the meaning of N.C. Gen. Stat. § 84-5.
Chapter 84 of our General Statutes governs attorneys-at-law. N.C. Gen. Stat.
§ 84-5 specifically concerns the “practice of law by corporation[s]” and states, in
relevant part, “It shall be unlawful for any corporation to practice law or appear as
an attorney for any person in any court in this State . . . and no corporation shall . . .
draw agreements, or other legal documents . . . .” N.C. Gen. Stat. § 84-5 (2019). “The
phrase ‘practice law’ as used in . . . Chapter [84] is defined to be performing any legal
service for any other person, firm or corporation, . . . . specifically including . . . the
preparation and filing of petitions for use in any court . . . .” N.C. Gen. Stat. § 84-2.1
(2019).
As “a written motion that a forfeiture be set aside” to be “filed in the office of
the clerk of superior court” is, by its plain language, a “legal document” and a “petition
for use in” court, signing and filing a motion to set aside a bond forfeiture under N.C.
Gen. Stat. § 15A-544.5(d) is the practice of law within the meaning of N.C. Gen. Stat.
§ 84-5. As a corporation is prohibited from practicing law, and because “a corporation
must be represented by a duly admitted and licensed attorney-at-law and cannot
proceed pro se[,]” Lexis-Nexis, 155 N.C. App. at 209, 573 S.E.2d at 549, Harrington
was not authorized to sign and file the Motion on Surety’s behalf.
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Opinion of the Court
Surety argues that State ex rel. Guilford Cty. Bd. of Educ. v. Herbin, 215 N.C.
App. 348, 716 S.E.2d 35 (2011), controls the present case. We disagree. In Herbin,
this Court held that “filing a motion to set aside a bond forfeiture is not considered
an appearance before a judicial body in the manner contemplated by [N.C. Gen. Stat.]
§ 84-4 and, therefore, does not constitute the practice of law.” Id. at 355, 716 S.E.2d
at 39. Herbin concerned whether an individual bail agent was prohibited by N.C.
Gen. Stat. § 84-4, which governs the unauthorized practice of law by individuals, from
filing a motion to set aside a bond forfeiture. Herbin does not apply here where Surety
is a corporation that violated N.C. Gen. Stat. § 84-5, which governs the unauthorized
practice of law by corporations.
Because we conclude that Harrington’s filing and signing the Motion on
Surety’s behalf amounted to the unauthorized practice of law within the meaning of
N.C. Gen. Stat. § 84-5, and thus Harrington was not authorized to sign and file the
Motion, we affirm the trial court’s order denying Surety’s Motion.
B. Sanctions
Surety next argues that the trial court erred by imposing a sanction for failing
to sign the Motion. We agree.
N.C. Gen. Stat. § 15A-544.5(d)(8) provides:
If at the hearing the court determines that the motion to
set aside was not signed . . ., the court may order monetary
sanctions against the surety filing the motion, unless the
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Opinion of the Court
court also finds that the failure to sign the motion or attach
the required documentation was unintentional.
N.C. Gen. Stat. § 15A-544.5(d)(8) (2019) (emphasis added).
There is no dispute that Surety’s Motion was signed. The sole issue on appeal
is the legal significance and validity of the Motion’s signatory. The trial court made
no findings to support its conclusion that a sanction be imposed, or its necessarily-
implied conclusion that an unauthorized signature is the equivalent of no signature.
We thus conclude that the trial court committed an error of law in making this
equivalency and by ordering Surety to pay a sanction, and reverse that portion of the
trial court’s order.
III. Conclusion
Because we conclude that Surety engaged in the unauthorized practice of law
within the meaning of N.C. Gen. Stat. § 84-5 by allowing Harrington, its corporate
officer, to sign and file the Motion, we conclude that the trial court did not err by
denying the Motion. However, because we conclude that the trial court erred in
allowing the Board’s motion for sanctions and imposing a sanction against Surety, we
reverse that portion of the order.
AFFIRMED IN PART. REVERSED IN PART AND REMANDED.
Judges TYSON and YOUNG concur.
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