State v. Slider ( 2010 )

[Cite as State v. Slider, 2010-Ohio-5952.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 09CA41
:
vs. : Released: November 22, 2010
:
PATRICK SLIDER, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellee, :
:
and :
:
A-1 BAIL BONDS, INC., et al. , :
:
Appellants. :
_____________________________________________________________
APPEARANCES:
John M. Halliday, Bertram & Halliday, LLC, Marietta, Ohio, and Gary A.
Rosenhoffer, Gary A. Rosenhoffer, LLC, Batavia, Ohio, for Appellants, A-1
Bail Bonds, Inc. and American Contractors Indemnity Company.
James E. Schneider, Washington County Prosecutor, and Alison L.
Cauthorn, Washington County Assistant Prosecutor, Marietta, Ohio, for
Appellee, State of Ohio.1
_____________________________________________________________
McFarland, P.J.:
{¶1} This is an appeal from an order of the Washington County Court
of Common Pleas, issued after conducting a hearing pursuant to remand
from this Court. Originally, the trial court ordered forfeiture of a bail bond
1
Defendant-Appellee, Patrick Slider, has not filed a brief or otherwise participated in the appeal of this
matter.
Washington App. No. 09CA41 2
and entered judgment against “Richard Mayle of A-1 Bail Bonds” in the
amount of $60,000.00. On remand, the trial court determined, based in part
on the agreement of the parties, that the original judgment was in fact taken
against Appellants, rather than Richard Mayle, personally. On appeal,
Appellants now contend that 1) upon remand, the trial court lacked subject
matter jurisdiction to render judgment against them, as sureties; 2) the trial
court prejudicially erred in granting a judgment against A-1 Bail Bonds, Inc;
3) the trial court committed prejudicial error in determining that the issue of
remission is res judicata; and 4) the trial court committed prejudicial error by
failing to remit all or part of the forfeited bond.
{¶2} Because we conclude that the trial court possessed subject matter
jurisdiction to clarify its own order pursuant to our directions on remand, we
overrule Appellants’ first assignment of error. Because Richard Mayle
signed the Recognizance of Accused as an attorney in fact of A-1 Bail
Bonds, Inc., which is a named agent of American Contractors Indemnity
Co., also known as Safety National Casualty Co., expressly agreeing to be
joint and severally responsible in the event of default, we cannot conclude
that the trial court prejudicially erred in granting judgment against A-1 Bail
Bonds, Inc. As such Appellants’ second assignment of error is overruled.
Washington App. No. 09CA41 3
{¶3} Further, because we find that Appellants’ did not request
remission prior to the first appeal of this matter and that their subsequent
request for remission went beyond the scope of remand, we cannot conclude
that the trial court committed prejudicial error in determining that the issue
of remission was res judicata. Thus, Appellants’ third assignment of error is
overruled. Finally, in light of our disposition of Appellants’ third
assignment of error, we will not address Appellants’ fourth assignment of
error and it is therefore overruled. Accordingly, the decision and judgment
of the trial court is affirmed.
FACTS
{¶4} As we noted in our prior consideration of this matter, on
December 10, 2007, a multi-count felony indictment was filed against
Patrick Slider. State v. Slider, et al., 184 Ohio App. 3d 68, 2009-Ohio-4179,
919 N.E.2d 775 (hereinafter “Slider I”). On January 14, 2008, a $60,000.00
bond was posted on Slider’s behalf by “Richard Mayle2 with American
Contractors Indemnity Co.” When Slider failed to appear for his scheduled
trial on August 11, 2008, the trial court revoked his bond and issued a
warrant for his arrest. The trial court further ordered the bond forfeited and
set a forfeiture hearing for September 3, 2008.
2
The record reflects that Appellant, Richard Mayle, is affiliated with A-1 Bail Bonds, Inc, which is an
agent of American Contractors Indemnity Company, also known as Safety National Casualty Co.
Washington App. No. 09CA41 4
{¶5} Notice of the forfeiture hearing was mailed to all parties,
including Richard Mayle and all sureties at their respective addresses by
both regular and certified mail on August 12, 2008. Appellants counsel,
John Halliday, appeared at the forfeiture hearing, along with Charles Miller,
principal of A-1 Bail Bonds, on September 3, 2008; however, they failed to
produce Slider for the hearing. Although Appellants requested that the trial
court grant additional time to locate Slider, the trial court denied Appellants’
request and granted judgment against Slider, as well as “the holder of the
bond, Richard Mayle of A-1 Bail Bonds” in the amount of the bond,
$60,000.00, and filed a judgment entry the same day.
{¶6} Slider was subsequently arrested near Taylor, Michigan, on
September 7, 2008, and was returned to Washington County on September
8, 2008. On September 9, 2008, Appellants, through their counsel, John
Halliday, filed a Motion of Sureties to be Released3, simply requesting
release from further obligation as “Patrick R. Slider is now incarcerated in a
detention facility or jail near Taylor, Michigan.” The State opposed the
motion and a hearing was held on September 18, 2008. Charles Miller, on
behalf of A-1 Bail Bonds, Inc., again attended the hearing with counsel.
3
Contrary to our initial recitation of the facts in our prior consideration of this matter in Slider I, the
Motion of Sureties to be Released was filed by attorney Halliday, as “Attorney for Sureties,” listed as
“American Contractors Indemnity Company, A-1 Bail Bonds, Inc., and/or Charles J. Miller Bonding, Co.,”
rather than by Richard Mayle, individually. Thus, Appellants herein clearly perceived that judgment had
been taken against them, as they moved for release.
Washington App. No. 09CA41 5
After determining that R.C. 2937.40 did not authorize Appellants’ release
based upon the facts before it, as requested by A-1 Bail Bonds, the trial court
denied Appellants’ motion. At that point, “Richard Mayle of A-1 Bail
Bonds”, through attorney John Halliday, filed a notice of appeal from the
trial court’s decision.
{¶7} In Slider I at ¶14, we affirmed the decision of the trial court, but
determined that an ambiguity existed “with respect to the capacity in which
Appellant [then Richard Mayle] signed the Recognizance of Accused and
whether or not he intended to be personally responsible for the debt.” As
such, the matter was remanded for the limited purpose of having the trial
court make “further findings of fact as to the intent of the parties.” As a
result, the trial court held a remand hearing on September 15, 2009.
Appellants herein were represented by John Halliday, the same attorney that
represented them prior to the first appeal, and who represented Mayle during
the first appeal of this matter.
{¶8} At the hearing, all parties agreed that Mayle did not intend to be
personally responsible for the bond. Further, the parties agreed that the
judgment proceedings need not start over, but rather that the purpose of
remand was simply to correct a semantics problem in the first judgment
entry. Additionally, Appellants agreed, through counsel, that the original
Washington App. No. 09CA41 6
judgment should have been worded against A-1 Bail Bonds and/or American
Contractors Indemnity Company.
{¶9} Based upon the stipulations by the parties at the hearing, the trial
court issued a decision and entry on September 30, 2009, noting that
judgment had previously been entered against the bonding companies but
that the order had been remanded on the limited issue of whether Richard
Mayle was personally liable on the bond. The court made reference in its
decision to the fact that the attorneys for both sides stipulated that Mayle
should not be held personally responsible but that judgment should enter
against A-1 Bail Bonds and American Contractors Indemnity Company.
The court went on to address Appellants post-remand motion for remission,
despite its conclusion that the motion was barred by the doctrine of res
judicata. The trial court ultimately denied the motion for remission.
{¶10} Appellants, A-1 Bail Bonds, Inc. and American Contractors
Indemnity Company now appeal, assigning the following errors for our
review.
ASSIGNMENTS OF ERROR
“I. UPON REMAND, THE TRIAL COURT LACKED SUBJECT
MATTER JURISDICTION TO RENDER JUDGMENT AGAINST
THESE APPELLANTS/SURETIES.
II. THE TRIAL COURT PREJUDICIALLY ERRED IN GRANTING A
JUDGMENT AGAINST A-1 BAIL BONDS, INC.
Washington App. No. 09CA41 7
III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
DETERMINING THAT THE ISSUE OF REMISSION WAS RES
JUDICATA.
IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
FAILING TO REMIT ALL OR PART OF THE FORFEITED
BOND.”
ASSIGNMENT OF ERROR I
{¶11} In their first assignment of error, Appellants contend that the
trial court lacked subject matter jurisdiction upon remand to render judgment
against them. In making this argument, Appellants argue that the trial court
“was without subject matter jurisdiction when it granted judgment against
[them] on September 30, 2009[,]” during the remand hearing. For the
following reasons, we disagree.
{¶12} As set forth above, in our initial consideration of this matter, we
concluded that “an ambiguity exist[ed] with respect to the capacity in which
Appellant [then Richard Mayle] signed the Recognizance of Accused and
whether or not he intended to be personally responsible for the debt.” Slider
I at ¶14. Thus, we reverse[d] the decision of the trial court and remand[ed]
th[e] matter for further findings of fact as to the intent of the parties.” Id. It
was pursuant to this directive that the trial court held a hearing on remand.
{¶13} Appellants’ counsel, John Halliday, was present at the remand
hearing held on September 15, 2009. At the hearing, the following exchange
Washington App. No. 09CA41 8
took place regarding the intent of the parties with respect to responsibility on
the bond:
Mr. Halliday: First of all, Judge, the issue, the first issue before this
Court is, upon remand, is whether or not Richard Mayle
personally is liable on the judgment. I don’t believe he
is. I believe it should be A – A-1 Bail Bonds, and/or
American Contractors Indemnity on the judgment. It’s
my understanding the State has no objection to that.
The Court: Is that true?
Ms. Vessels: Your Honor, I don’t believe that Mr. Mayle personally is
even – I believe he’s judgment-proof, essentially, so it’s
really – we’re – that’s true, we don’t have –
Thus, the parties stipulated upon remand that Richard Mayle did not intend
to be personally responsible when he signed the bond and that the judgment
was intended to be taken against A-1 Bails Bonds and/or American
Contractors Indemnity.
{¶14} Further, the remand hearing transcript contains the following
with respect to the procedural issues in amending the original judgment
entry to reflect the intent of the parties:
The Court: So you could – believe now, we have to start the
procedures over again against your client?
***
The Court: Is it too late to take judgment against A-1?
Ms. Vessels: I don’t believe so, because –
Washington App. No. 09CA41 9
Mr. Halliday: I thought that’s what we were doing here, was just
revising the judgment entry to –
Ms. Vessels: Yes.
Mr. Halliday: -- to correctly reflect the proper parties.
The Court: So you would not object to just revising it and putting the
judgment against A-1?
Mr. Halliday: Well, because the Court specifically found that the bond
was forfeited, okay?
The Court: Um-hum.
Mr. Halliday: And that’s when we were here before. Right? Is that –
The Court: Um-hum.
Mr. Halliday: I mean, does everybody agree – do you agree with me
there, that the Court found –
Ms. Vessels: Yes. Yes, it was forfeited.
Mr. Halliday: -- that the bond was forfeited, and therefore it entered the
judgment amount against what was supposed to be the
bonding company, was my understanding, so that way
back when the Court did that, the – judgment should have
read, “Judgment is hereby rendered in favor of the State
of Ohio against the Defendant and A-1Bail Bonds and
American Contractors Indemnity in the amount of X.”
And I think that was the – one of the narrow issue,
with which we’ve been remanded here was, was Mr.
Slider4 personally on there? Because I believe the Court
found all of the other prerequisites, and that’s why I don’t
think we have to go back and redo this whole thing. The
Court already found that the – bond is forfeited and
4
We assume that Mr. Halliday meant to state Mr. Mayle at this juncture of the hearing, as Mr. Slider’s
name was clearly included in the judgment entry.
Washington App. No. 09CA41 10
ordered judgment, and I believe that all parties were
here; it was just the semantics of the judgment, the – the
Court of Appeals found remandable.
***
Ms. Vessels: So, I – I don’t – I think that that – the Court is expecting
us to perhaps just file an amended judgment entry,
perhaps determining whether or not it’s Richard Mayle
specifically or A-1 Bail Bonds and Contractors
Indemnity, because that’s where the money is, and that’s
who actually posted the cash or surety.
The Court: Okay. That’ll be the order. It seems the parties are
agreeing on that. So that’ll be the order of the Court.
***
The Court: Okay. So, we’re agreed now, that the – the entry is
modified, that just to be clear on the record, to change it
to A-1 and that American Indemnity. And you’ll do that,
Attorney Vessels?” (Emphasis added).
{¶15} In light of the foregoing, it is clear that Appellants understood,
both at the time of the time of original order, and on remand, that the
original judgment was intended to be against them, as sureties, not against
Richard Mayle, individually. The fact that they filed a motion for release
prior to the first appeal of this matter further supports this rationale.
Additionally, as set forth above, Appellants clearly represented to the trial
court their understanding that the purpose of the remand hearing was simply
to correct the language or “semantics” of the original order, and that there
was no need to start the judgment proceedings over again. As such,
Washington App. No. 09CA41 11
Appellants cannot now complain that the trial court lacked subject matter
jurisdiction to enter judgment against them on remand. As stated, judgment
was not entered against them for the first time on remand, the original
judgment order was simply clarified to reflect that the judgment was against
A-1 Bail Bonds, rather than Mayle individually.5 Accordingly, we conclude
that Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶16} In their second assignment of error, Appellants contend that the
trial court erred in granting a judgment against A-1 Bail Bonds, Inc.
Appellants base this contention on “basic principles of suretyship and
guaranty” without any other argument or citation to authority, and simply
claim that “[j]oint and several liability is improper.” However, in our view,
Appellants’ assertions regarding the liability of a surety and principal are
misplaced in light of the fact that the Recognizance of Accused, which
appears on the record, provided that Patrick Slider and “Richard Mayle with
American Contractors Indemnity Co. * * * jointly and severally
acknowledged themselves to owe the State of Ohio the sum of $60,000.00”
in the event of default. See Peebles Elderly Housing Ltd. Partnership v.
5
However, we take this opportunity to address the fact that a new certificate of judgment was filed post-
remand, indicating that judgment was taken on September 29, 2009, against A-1 Bail Bonds, Inc. and
American Contractors Indemnity Company, also known as Safety National Casualty Corporation. Instead
of obtaining a new certificate of judgment, the original certificate of judgment should have been amended
to reflect the clarification by the trial court on remand.
Washington App. No. 09CA41 12
Titan Indem. Co. (Sept. 15, 1997), Adams App. No. 96CA631, 1997 WL
578735.
{¶17} Attached to the Recognizance of Accused is a power of
attorney document which appoints A-1 Bail Bonds, Inc. a named agent of
American Contractors Indemnity, Co. This power of attorney form was also
signed by Mayle, as attorney in fact. Thus, Mayle, as an attorney in fact of
A-1 Bail Bonds, Inc., which is a named agent of American Contractors
Indemnity Co., also known as Safety National Casualty Co., signed the
bond, thereby binding the sureties on the bond when Slider failed to appear
and the trial court ordered the bond forfeited. Slider I at ¶13; citing, State v.
Sexton (1999), 132 Ohio App. 3d 791, 726 N.E.2d 554; State v. Scherer
(1995), 108 Ohio App. 3d 586, 671 N.E.2d 545; R.C. 1337.092.
{¶18} We note that Appellants allege in their brief that “the Clerk of
Courts released the Sureties from Slider’s $60,000.00 bond effective April
23, 2009,” and attach a copy of a document purporting to be that release to
their brief on appeal. We presume Appellants mention this because
generally, when a principal is discharged so is the surety. See Dressler
Properties, Inc. v. Ohio Heart Care, Inc. Stark App. No. 2004CA00231,
2005 -Ohio- 1069 (The general rule is that whatever discharges the principal
discharges the surety. If the principal debtor has been released by the
Washington App. No. 09CA41 13
creditor, the guarantor or the surety also will be released.”). However, other
than appearing as an attachment to Appellants’ brief, it does not appear that
the document was ever filed or made part of the record and, therefore, it is
not properly before us for review. Accordingly, Appellants’ second
assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶19} In their third assignment of error, Appellant’s contend that the
trial court committed prejudicial error in determining that the issue of
remission is res judicata. As set forth above, this matter was remanded for
the limited purpose of determining the intent of the parties with regard to
financial responsibility on the forfeited bond. Appellants’ argument hinges
on their assertion that there was no binding or enforceable judgment against
them until the September 30, 2009, decision and entry issued after the
remand hearing. However, we rejected this assertion in our analysis of
Appellant’s first assignment of error. Instead, based upon our above
reasoning, the hearing on remand simply served to clarify who in fact the
original judgment was taken against: 1) Richard Mayle, individually; 2)
Richard Mayle and the sureties; or 3) the sureties, with Richard Mayle
serving merely as an agent or attorney in fact.
Washington App. No. 09CA41 14
{¶20} The purpose of remand was not to completely start the
judgment proceedings over again, but merely to clarify the original intent of
the parties. Thus, we again reject any argument that there was no judgment
against Appellants until September 30, 2009. This reasoning is further
supported by the fact that Appellants continued to appear, through counsel,
along with their representative Charles Miller after the original judgment
was taken, and sought release from the bond.
{¶21} In our view, this issue is a “scope of remand” question,
although it has been reasoned that “[i]ssues regarding the scope of the
remand, however, are best considered using res judicata principles.” State v.
Taylor, Cuyahoga App. No. 79475, 2002-Ohio-1554; relying on, State v.
Gillard (1997), 78 Ohio St. 3d 548, 1997-Ohio-183, 679 N.E.2d 276. “The
doctrine of res judicata requires a plaintiff to present every ground for relief
in the first action, or be forever barred from asserting it.” Montello v.
Ackerman, Lake App. No. 2010-L-007, 2010-Ohio- 3459, citing, National
Amusements, Inc. v. Springdale (1990), 53 Ohio St. 3d 60, 62, 558 N.E.2d
1178.
{¶22} As discussed at length in our prior opinion regarding this
matter, Appellants herein moved for release of the bond prior to the first
appeal, rather than remission. Because there was a valid judgment against
Washington App. No. 09CA41 15
the sureties at the time of the first appeal, and because Appellants could
have, and perhaps should have moved for remission when they moved for
release below, but failed to do so, they were barred from raising the issue on
remand. See, State v. Gillard, supra, (overruling propositions of law without
consideration that were not raised on appeal and were beyond the scope of
remand, based on the doctrine of res judicata.). As such, we cannot
determine that the trial court committed prejudicial error in determining that
the issue of remission was res judicata. Accordingly, Appellants’ third
assignment of error is overruled.
ASSIGNMENT OF ERROR IV
{¶23} In light of our disposition of Appellants’ third assignment of
error which concluded that the trial court did not commit prejudicial error in
determining the issue of remission was res judicata, we will not consider
Appellants’ fourth and final assignment of error, which contends that the
trial court committed prejudicial error in failing to remit all or a portion of
the bond. Gillard, supra. As such, Appellant’s fourth assignment of error is
overruled. Accordingly, the decision and judgment of trial court is affirmed.
JUDGMENT AFFIRMED.
Washington App. No. 09CA41 16
Kline, J., concurring.
{¶24} I concur in judgment and opinion as to the first, second, and
fourth assignments of error. I concur in judgment only as to the third
assignment of error because I believe that the appropriate doctrine is law of
the case rather than res judicata.
Washington App. No. 09CA41 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I,
II, & IV, and Concurs in Judgment Only as to Assignment of Error III.
Kline, J.: Concurs in Judgment and Opinion as to Assignments of Error I, II,
& IV, and Concurs in Judgment Only as to Assignment of Error III with
Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.