State v. T.G-B. ( 2020 )

[Cite as State v. T.G-B., 2020-Ohio-4343.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 19CA011556
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
T.G-B. ELYRIA MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Defendant CASE No. 2019CRB01315
and
AAA SLY BAIL BONDS
Appellant
DECISION AND JOURNAL ENTRY
Dated: September 8, 2020
CARR, Judge.
{¶1} Appellant AAA Sly Bail Bonds appeals from the judgment of the Elyria Municipal
Court. This Court reverses the judgment and remands the matter for further proceedings.
I.
{¶2} In May 2019, Defendant T.G.-B. was charged with disorderly conduct intoxicated
and underage possession or consumption of liquor. Bond was set at $1,230.00. AAA Sly Bail
Bonds (“the Surety”) and T.G.-B. signed a recognizance and the Surety posted $1.230.00. On
May 22, 2019, T.G.-B. failed to appear for an arraignment hearing and a bench warrant was
ordered. On June 10, 2019, an entry was journalized stating that the surety bond was forfeited.
The trial court ordered the clerk to notify the bondsperson. The record contains a letter of the clerk
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of court dated June 13, 2019, which states that the surety bond of T.G.-B. has been forfeited, and
that, “[p]er Ohio Revised Code 2937.36, you are required to appear before the Judge to show cause
on or before 7/13/2019 why a judgment should not be entered against you for the penalty stated in
the recognizance in the amount of $1,230.00.”
{¶3} The record contains a second letter from the clerk of court to the Surety dated July
15, 2019. That letter provides “[b]y your failure to appear for this show cause hearing, bond is
considered forfeited. Please pay forfeited bond amount of $1,230.00 by 8/5/2019. If you fail to
pay this amount by the above date, your bonding company and insurance company will no longer
be able to post bond within our court[’s] jurisdiction.” The record contains a similar letter dated
August 5, 2019. That letter informs the Surety that, “[i]n our letter dated 7/15/2019, we advised
you the bail bond on the above case was forfeited and payment of $1,230.00 was to be made by
8/5/19. Since you chose to ignore our letter, you leave us no choice. We will no longer accept
any bond posted by AAA Sly Bail Bonds or Lexington National Insurance Corporation. If your
check is received in the very near future, we will reconsider our position on this matter.”
{¶4} On August 7, 2019, the trial court issued a judgment entry providing in part that,
“Surety has failed to make payment as ordered. Accordingly, Surety, AAA Sly Bail Bonds and its
insurance company, Lexington National Insurance Company, are hereby suspended form posting
bonds within the Court’s jurisdiction.”
{¶5} The Surety appealed. The Surety raises a single assignment of error for our review.
T.G.-B. has not appealed or filed a brief in this appeal.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN ITS JUDGMENT ENTRY
DATED AUGUST 7, 2019 BECAUSE IT FAILED TO FOLLOW THE
REQUIRED PROCEDURES FOR ENTERING JUDGMENT AGAINST A
SURETY ON A FORFEITED BOND AS SET FORTH IN R.C. 2937.36(C).
{¶6} The Surety argues in its sole assignment of error that the trial court failed to comply
with R.C. 2937.36(C) in entering judgment. We agree, albeit for slightly different reasons than
that advanced by the Surety.
{¶7} Generally, a trial court’s actions with respect to the forfeiture of a surety bond are
reviewed for an abuse of discretion. State v. Wade, 9th Dist. Lorain No. 17CA011081, 2018-Ohio-
2443, ¶ 9. However, “[t]his Court reviews a trial court’s interpretation and application of a statute
on a de novo basis because it presents [this Court] with a question of law.” (Internal quotations
and citations omitted.) Id.
{¶8} R.C. 2937.35 states, “[u]pon the failure of the accused or witness to appear in
accordance with its terms the bail may in open court be adjudged forfeit, in whole or in part by the
court or magistrate before whom he is to appear. But such court or magistrate may, in its
discretion, continue the cause to a later date certain, giving notice of such date to him and the bail
depositor or sureties, and adjudge the bail forfeit upon failure to appear at such later date.” R.C.
2937.36(C) provides:
Upon declaration of forfeiture, the magistrate or clerk of the court adjudging
forfeiture shall proceed as follows: * * *
As to recognizances the magistrate or clerk shall notify the accused and each surety
within fifteen days after the declaration of the forfeiture by ordinary mail at the
address shown by them in their affidavits of qualification or on the record of the
case, of the default of the accused and the adjudication of forfeiture and require
each of them to show cause on or before a date certain to be stated in the notice,
and which shall be not less than forty-five nor more than sixty days from the date
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of mailing notice, why judgment should not be entered against each of them for the
penalty stated in the recognizance. If good cause by production of the body of the
accused or otherwise is not shown, the court or magistrate shall thereupon enter
judgment against the sureties or either of them, so notified, in such amount, not
exceeding the penalty of the bond, as has been set in the adjudication of forfeiture,
and shall award execution therefor as in civil cases. The proceeds of sale shall be
received by the clerk or magistrate and distributed as on forfeiture of cash bail.
(Emphasis added.)
{¶9} Here, the trial court concluded that the Surety failed to make payment as ordered,
and, because of that, the trial court entered a judgment suspending the Surety from posting bonds
in the trial court’s jurisdiction. While the record contains a letter from the clerk instructing the
Surety to pay the forfeited bond amount of $1,230.00, the record does not contain a judgment of
the trial court ordering the Surety to do the same. R.C. 2937.36(C) expressly provides that, “[i]f
good cause by production of the body of the accused or otherwise is not shown, the court or
magistrate shall thereupon enter judgment against the sureties or either of them, so notified, in
such amount, not exceeding the penalty of the bond, as has been set in the adjudication of
forfeiture, and shall award execution therefor as in civil cases.” The clerk of court does not have
the authority to enter judgments. See Dept. of Liquor Control v. Calvert, 195 Ohio App. 3d 627,
2011-Ohio-4735, ¶ 33 (6th Dist.). Nonetheless, the trial court treated the letter from the clerk of
court as though it was the judgment required by R.C. 2937.36(C). Therefore, the trial court failed
to comply with R.C. 2937.36(C). The trial court never issued a judgment entry ordering the Surety
to pay the amount of the bond; yet the trial court penalized the Surety for failing to pay that amount.
It is axiomatic that a court cannot penalize a party for failing to comply with a judgment that the
court never issued.
{¶10} The Surety’s assignment of error is sustained to the extent discussed above. Upon
remand, the trial court must comply with the applicable dictates of R.C. 2937.36(C).
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III.
{¶11} The Surety’s assignment of error is sustained to the extent discussed above. The
judgment of the Elyria Municipal Court is reversed, and this matter is remanded for proceedings
consistent with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
CALLAHAN, P. J.
SCHAFER, J.
CONCUR.
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APPEARANCES:
DOUGLAS C. BOND and D. COLEMAN BOND, Attorneys at Law, for Appellant.
BRANDON G. OLIVER, Prosecuting Attorney, for Appellee.