In Re: Cumberland Bail Bonding ( 2019 )

03/07/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 14, 2018 Session
IN RE: CUMBERLAND BAIL BONDING
Appeal from the Circuit Court for Van Buren County
No. 88CC1-2008-CV-1383 Larry B. Stanley, Jr., Judge
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No. M2017-02172-CCA-R3-CD
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The Appellant, Cumberland Bail Bonding, argues that the trial court erred in suspending
its bonding privileges due to a violation of Rule 26.05(B) of the Local Rules of the
Thirty-First Judicial District, a rule requiring a bonding agent to be present for a
defendant’s court appearance. After review, we reverse the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.
William A. Lockhart, Manchester, Tennessee, for the appellant, Cumberland Bail
Bonding (Ooltewah).
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Lisa Zavogiannis, District Attorney General.
OPINION
FACTS
Two defendants, Forest Mathias and Danny Ray Smith, failed to appear for a court
appearance on September 25, 2017. The Appellant, their surety, also failed to appear at
the hearing. The Van Buren County Circuit Court suspended the Appellant’s bonding
privileges because the Appellant “failed to have an agent in court on that date and also
failed to have either defendant in court” in violation of Rule 26.05(B) of the Local Rules
of the Thirty-First Judicial District. The court put the Appellant on notice that its
bonding privileges were suspended “until a hearing in front of this Court.” The record
indicates that the Appellant filed a motion to have its bonding privileges reinstated, but
the motion was not included in the record. However, the trial court’s order denying the
motion reflects that the motion was heard on October 11, 2017. The court denied the
motion for reinstatement “based upon the original order entered by the Court on
September 26, 2017, the motion to be reinstated, argument of counsel,” and the
Appellant’s violation of Local Rule 26.05(B).
ANALYSIS
The Appellant does not deny that it failed to comply with the local rule. Instead, it
asserts that Local Rule 26.05(B) is “arbitrary and capricious and also in conflict with
statutory law and therefore is unenforceable.” Specifically, the Appellant contends that
the rule serves no legitimate purpose because there are procedures already in place to
address situations where a defendant fails to appear, and Tennessee statutory law does not
require bonding agents to be present for a defendant’s court appearance. We review the
trial court’s suspension of a bonding company de novo. Tenn. Code Ann. § 40-11-
125(d).
Tennessee Code Annotated section 40-11-125(a) provides that a professional
bondsmen’s approval to write bonds may be withheld, withdrawn, or suspended if, after
investigation, it appears that the bondsman:
(1) Has been guilty of violating any of the laws of this state relating to bail
bonds;
(2) Has a final judgment of forfeiture entered against the bondsman which
remains unsatisfied;
(3) Is guilty of professional misconduct as described in § 40-11-126; or
(4) If applying for approval as a professional bondsman, has been convicted
in any state of the United States of two (2) or more misdemeanors which
are equivalent to Tennessee Class A or Class B misdemeanors; provided,
however, that the misdemeanor convictions shall have occurred within five
(5) years of the date the application for approval is filed.
Tenn. Code Ann. § 40-11-125(a).
If a bondsman’s ability to write bonds is withheld, withdrawn, or suspended due to
a violation of Tennessee Code Annotated section 40-11-125(a), then the trial court must
provide the bondsman written notice and a hearing in accordance with Tennessee Code
Annotated section 40-11-125(b), which states:
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(b) Any court withholding, withdrawing or suspending a bondsman or other
surety under this section shall notify the bondsman in writing of the action
taken, accompanied by a copy of the charges resulting in the court’s action.
If, within twenty (20) days after notice, the bail bondsman or surety files a
written answer denying the charges or setting forth extenuating
circumstances, the court shall call a hearing within a reasonable time for the
purpose of taking testimony and evidence on any issues of fact made by the
charges and answer. The court shall give notice to the bail bondsman, or to
the insurer represented by the bondsman, of the time and place of the
hearing. The parties shall have the right to produce witnesses, and to
appear personally with or without representation by counsel. If, upon a
hearing, the court determines that the bail bondsman is guilty as alleged in
the charges, the court shall thereupon withhold, withdraw or suspend the
bondsman from the approved list, or suspend the bondsman for a definite
period of time to be fixed in the order of suspension.
Tenn. Code Ann. § 40-11-125(b).
“[A] trial court has the inherent power to administer its affairs, including the right
to impose reasonable regulations regarding the making of bonds.” Hull v. State, 543
S.W.2d 611, 612 (Tenn. Crim. App. 1976) (citing Taylor v. Waddey, 334 S.W.2d 733(Tenn. 1960)); see In re Hitt, 910 S.W.2d 900, 904 (Tenn. Crim. App. 1995). “‘A trial
court has full authority to determine who should be allowed to make bonds in its court.’”
In re A Way Out Bonding, No. M2012-00423-CCA-R3-CO, 2013 WL 2325276, at *2
(Tenn. Crim. App. May 28, 2013) (quoting In Re: Tyrone A. Byrd v. State, No. W2009-
01257-CCA-R3-CD, 2010 WL 161500, at *1 (Tenn. Crim. App. Jan. 15, 2010)). “A trial
court is given wide discretion in its regulation of bail bondsmen, and its actions will not
be overturned absent a showing that they were arbitrary, capricious, or illegal.” Memphis
Bonding Company, Inc. v. Criminal Court of Tennessee 30th District, et al., 490 S.W.3d
458, 463 (Tenn. Crim. App. 2015) (citations omitted). Local rules are authorized under
Tennessee Supreme Court Rule 18, and the Legislature’s enactment of statutes addressing
bonding does not remove the trial court’s inherent powers of regulation. In re Hitt, 910
S.W.2d at 904; see also In re International Fidelity Insurance Company, 989 S.W.2d 726,
728 (Tenn. Crim. App. 1998). However, local rules may not be inconsistent with
statutory law or rules promulgated by a higher court. See Tenn. Code Ann. § 16-3-407;
Tenn. R. Sup. Ct. 18.
Local Rule 26.05(B) proscribes that “[a] bonding company shall notify the
defendant/principal of each court appearance. An agent of the bonding company shall be
present for the defendant’s court appearance.”
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We note that the local rule at issue is a two-part rule. We conclude that the first
part of the rule is sound and does not conflict in any way with statutory law. However, it
is our view that the second part of the local rule at issue is arbitrary, capricious, and
illegal. Because the first part of the rule requires that the bonding company give notice to
the defendant of an upcoming court appearance, the second part of the rule appears to be
redundant and places an additional burden on the bonding company as the bonding
company would have presumably notified the defendant of his or her court appearance,
and it is not apparent why the bonding company’s presence should also be required. We,
therefore, reverse the trial court’s suspension of the Appellant bonding company for
violation of Local Rule 26.05(B).
CONCLUSION
Based on the foregoing authorities and reasoning, we reverse the judgment of the
trial court.
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ALAN E. GLENN, JUDGE
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