DocketNumber： No. COA11-721
Judges： Beasley, Ervin, Thigpen
Filed Date： 2/7/2012
Status： Precedential
Modified Date： 11/11/2024
On 4 September 2009, Marsha Lynn Williams (Defendant) was charged with operating a motor vehicle while subject to an impairing substance, and operating a vehicle with an open container of alcoholic beverages after drinking. Surety executed a $1,500.00 appearance bond on behalf of Defendant. On 10 March 2010, Defendant failed to appear, Defendant’s bond was forfeited, and a warrant was issued for her arrest. On 22 March 2010, a bond forfeiture notice was issued. The forfeiture became a final judgment on 19 August 2010.
Surety paid the total forfeiture before the close of business on 19 August 2010, but continued to search for Defendant. Surety located and surrendered Defendant to the Sheriff of Craven County on 19 August 2010 at 9:40 p.m. On 20 August 2010, Surety filed a Motion to Set Aside Forfeiture and Petition for Remission. In an order filed 14 February 2011, the trial court ordered partial remission of the bond pursuant to N.C. Gen. Stat. §15A-544.8(b)(2). On 25 February 2011, Surety filed timely notice of appeal.
Surety argues that the trial court erred when it denied its motion to set aside the bond forfeiture order. We disagree.
“ ‘Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court. In conducting this review, we are guided by the following principles of statutory construction.’ ” State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517 (2009) (quoting In Re Proposed Assessments v. Jefferson-Pilot, 161 N.C. App. 558, 559-60, 589 S.E.2d 179, 180-81 (2003)). “Where the language of a statute is clear and unambiguous there is no room for judicial construction and the courts must give it its plain and definite meaning, and the courts are without power to interpolate, or superimpose, provisions and limitations not contained therein.” Id. (internal quotation marks and citations omitted).
“The exclusive avenue for relief from forfeiture of an appearance bond (where the forfeiture has not yet become a final judgment) is provided in G.S. § 15A-544.5.” State v. Robertson, 166 N.C. App. 669, 670-71, 603 S.E.2d 400, 401 (2004). Pursuant to N.C. Gen. Stat. § 15A-544.5 (b)(3) (2011), a forfeiture may be set aside when “[t]he defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced by the sheriff’s receipt[.]” If a
There is no dispute about the facts of this case. Surety surrendered Defendant on 19 August 2010 to the Craven County Sheriff at 9:40 p.m. and because the court was closed, Surety filed the Motion to Set Aside forfeiture on 20 August 2010 which was outside the 150 days required under N.C. Gen. Stat. § 15A-544.5 (d). Surety argues that the 150 day period should not expire when the courthouse closes, but should be extended until 11:59 p.m.
When calculating a period of time prescribed or allowed by statute “[t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions[.]” N.C. Gen. Stat. § 1A-1, Rule 6(a) (2011). Rule 6 shows that only weekends and legal holidays are recognized as days which the statutory time limit can be automatically extended. The legislature was aware of times that the court would be closed on regular weekdays, but made no provision for how to treat weekdays after business hours. Contrary to Surety’s assertion, we must assume that deadlines for filing documents with the court are subject to the hours when the court is open for business. Because the statute is clear and unambiguous, we are without authority to interpret N.C. Gen. Stat. § 15A-544.5 (d) to extend the time limits proscribed therein in the manner contended for by Surety. Therefore, Surety’s argument is without merit.
Next, Surety asserts that the trial court abused its discretion in failing to fully remit the forfeited amount pursuant to N.C. Gen. Stat. § 15A-544.8(b)(2) (2011).
Surety argues that because the trial court found extraordinary circumstances warranting partial remission, remission should be in full unless the trial court makes specific findings supporting partial remission. Surety cites no authority in support of this proposition. “Without [appellant] presenting a legal basis for awarding such relief, we cannot reverse the trial court. As our Supreme Court has stressed, ‘[i]t is not the role of the appellate courts ... to create an appeal for an appellant.’ ” Citizens Addressing Reassignment & Educ., Inc. v. Wake Cty. Bd. of Educ., 182 N.C. App. 241, 247, 641 S.E.2d 824, 828
Finally, Craven County Board of Education (the Board) argues that the trial court abused its discretion by granting a partial remission where the trial court’s only basis for finding extraordinary circumstances was the fact that Surety surrendered Defendant to the Craven County Sheriff. Although the Board has submitted an issue for review, this issue is not properly before us.
The North Carolina Rules of Appellate Procedure provides that an appellee “[w]ithout taking an appeal, . . . appellee may present issues on appeal based on any action or omission of the trial court that deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.” N.C.R. App. 28(c). Here, the Board did not give notice of appeal and did not raise an alternative basis in law. In CDC Pineville, LLC v. UDRT of N.C., LLC, 174 N.C. App. 644, 657, 622 S.E.2d 512, 521 (2005), this Court held that
Plaintiff’s cross-assignment of error regarding the damages award is not an alternative basis, but rather constitutes an attack on the judgment itself. Plaintiff’s arguments concerning the damages award attempt to show how the trial court erred in its findings of fact and conclusions of law, and do not provide an “alternate basis” for supporting the court’s award of damages. The correct method for plaintiff to have raised this question on appeal was to have raised the issue on cross-appeal.
Similarly, the Board attacks the trial court’s grant of partial remission by arguing that the trial court’s findings of fact did not support its conclusion of law. This is not an alternative basis. Therefore, we are without authority to consider the Board’s argument because it failed to properly preserve the issue for appellate review.
Affirmed.
(Filed 7 February 2012)
ALLRAN v. WELLS FARGO No. 11-967 Lincoln (11CVS208) Affirmed
BAKER v. BAKER No. 11-1010 Guilford (11CVD5329) Affirmed
BEATTY v. JONES No. 11-414 Wake (08CVS21917) Affirmed
BOWERS v. TEMPLE No. 11-566 Carteret (10CVS943) Affirmed
BRAMBLETT v. BRAMBLETT No. 11-970 Forsyth (09CVD8611) Affirmed
CAGLE v. MARRIOTT No. 11-816 Ind. Comm. (W07827) Affirmed
CALLANAN v. WALSH No. 11-911 Transylvania ( 01CVD129) Affirmed
CAPTRAN NEVADA CORP. v. THE KIRKLIN LAW FIRM No. 11-474 Moore (10CVS650) Affirmed
CARAVANTES v. DOWLESS No. 11-577 Bladen (09CVD229) Vacated and Remanded
DAVIS v. GROFF No. 11-948 Durham (10CVS3420) Affirmed
DAVIS v. GROFF No. 11-1024 Durham (10CVS3420) Dismissed
DELLINGER v. BARNES No. 11-792 McDowell (08CVS1006) Dismissed
FORMYDUVAL v. YEDDO No. 11-584 Brunswick (09CVS2763) Affirmed
GASPER v. THE BD. OF TRUSTEES OF HALIFAX CMTY. COLL. No. 11-675 Wake (08CVS15288) Affirmed
IN RE A.S.Y. No. 11-952 Orange (08JT101) Affirmed
IN RE K.D.C.T.J. & K.M.W.J. No. 11-1200 A ffirmed Greene (09JT46-47) Affirmed
IN RE R.K No. 11-900 Buncombe (09JB95) Dismissed
IN RE S.C.U. No. 11-550 Buncombe (09JB338) Affirmed
IN RE S.P. No. 11-1052 Nash (11JA9) Affirmed
IN RE T.J. No. 11-1071 Wayne (09JT110) Reversed
IN RE V.M.F. No. 11-1166 Transylvania (09JA16) Affirmed in part reversed and part
IN RE W.L.M. No. 11-723 Mecklenburg (07JB281) Affirmed in Part; Vacated and Remanded in Part
IN RE Z.D.N.T. No. 11-1146 Craven (10JA14) Affirmed
JACKSON v. ES&J ENTERPRISES, INC. No. 11-225 Columbus (09CVS1005) Affirmed
LANE v. LANE No. 11-608 Bertie (06CVD179) Affirmed in Part; Reversed and Part
LINGERFELT v. ADVANCE TRANSE, INC No. 11-983 Ind. Comm. (120154) (PH2200) Affirmed
MAINLINE SUPPLY CO. v. HILLCREST CONSTR., INC. No. 11-734 Union (09CVS493) Affirmed
McCracken &AMICK, INC. v. PERDUE No. 11-199 Wake (10CVS3520) Affirmed
PANOS v. TIMCO ENGINE CTR., INC. No. 11-803 Guilford (06CVS5771) Affirmed
REMI v. TYRONE No. 11-877 Mecklenburg (10CVD22726) Affirmed in Part and Reversed in Part
SCOTCHIE v. SCOTCHIE ENTERS., INC. No. 11-828 Ind. Comm. (889041) Affirmed
SIMPSON v. ROBERTSON, No. 11-858 Mecklenburg (10CVS13429) Affirmed
SPANISH MOSS, LLC v. WACHOVIA No. 11-510 Mecklenburg (10CVS7952) Reversed and Remanded
STATE v. BELL No. 11-1006 Wayne (10CRS52610) ( OCRS6001) Appeal dismissed; Petition for Writ of Certiorari denied
STATE v. BOYD No. 11-562 Halifax (07CRS53267) Dismissed
STATE v. BROWN No. 11-528 Moore (09CRS52522) Affirmed
STATE v. COX No. 11-742 Sampson (10CRS51955) No Error
STATE v. DAVIS No. 11-960 Gaston (08CRS14067-70) (08CRS61770-72) Affirmed
STATE v. DAVIS No. 11-694 Guilford (09CRS79347) (09CRS80159-60) (09CRS80162) (09CRS80164) (09CRS80165-66) No Error
STATE v. FEW No. 11-902 Transylvania (08CRS52222) (08CRS52224) (09CRS168) No Error
STATE v. FULLWOOD No. 11-1054 Buncombe (09CRS56018-20) (09CRS56022) No Error
STATE v. GAMBLE No. 11-842 Edgecombe (10CRS50734-35) No Prejudicial Error
STATE v. GRIER No. 11-1015 Cleveland (09CRS54858) No Prejudicial Error
STATE v. HAQQ No. 11-993 Burke (10CRS51132) No Error
STATE v. HARRIS No. 11-987 Harnett (09CRS51973) (10CRS525) Affirmed
STATE v. HUNTER No. 11-478 Durham (10CRS51613) Affirmed
STATE v. JOHNSON No. 11-898 Mecklenburg (10CRS204377-78) (10CRS20518) No Error
STATE v. KAHLEY No. 11-394 Craven (05CRS53027) No Error
STATE v. KELLY No. 11-887 Buncombe (10CRS700243) Vacated in Part and Remanded for Resentencing.
STATE v. MILLER No. 11-1161 Buncombe (08CRS55739) Affirmed
STATE v. MILLS No. 11-442 Mecklenburg (09CRS218250) (09CRS218252) No Error
STATE v. NEEDHAM No. 11-892 Lincoln (09CRS52250) (09CRS52252-54) No error in part; vacate in part
STATE v. NETTLES No. 11-638 New Hanover (10CRS10172) (10CRS57913) (10CRS58745) No Error
STATE v. OAKS No. 11-463 Mecklenburg (08CRS255465-67) (08CRS255469-70) No Error
STATE v. ORE No. 11-1033 Pitt (10CRS5340) (10CRS54713) (10CRS54893) No prejudicial error.
STATE v. PARKER No. 11-939 Duplin (10CRS51330) Reversed and Remanded
STATE v. ROGERS No. 11-907 Lenoir (09CRS52095) (11CRS204) Affirmed
STATE v. SPEARMAN No. 11-991 New Hanover (10CRS57271) Affirmed
STATE v. SPRUILL No. 11-430 Martin (99CRS2182) No prejudicial error
STATE v. SWARTZ No. 11-872 Surry (07CRS53598-99) (07CRS53600-601) No Error
STATE v. SWINSON No. 11-557 Pitt (10CRS53476-77) No Error
STATE v. TYSON No. 11-855 Beaufort (09CRS754-755) No prejudicial error
STATE v. WEBSTER No. 11-862 Onslow (10CRS51270) (10CRS51543) No Error
THORNTON v. STUCKEY No. 11-508 Johnston (09CVS1636) No Error
TOWN OF LELAND v. HWW, LLC No. 11-210 Brunswick (07CVS2440) Affirmed