### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 25, 2001 Sess

ion STATE OF TENNESSEE, Respondent/Appellee v. EDWARD ALAN SCARBROUGH, ALIAS, Defe ndant; INTERNATIONAL FIDELITY INSURANCE COMPANY, Petitioner/Appellant Appeal from the Criminal Court for Knox County Nos. 66772, 68668, and 68669 Mary Beth Leibowitz, Judge

October 17, 2001 No. E2001-00304-CCA-R3-CD

The defendant, Edward Alan Scarbrough, failed to appear for a scheduled cour

t date on September 21, 1999. Conditional forfeiture was taken on bail bonds in the total amount of $125,000.00. The surety for these bail bon

ds was Intern

atio nal Fidelity Insurance Company , which was obligated through its agent, Gary’s Bail Bonds, Inc. D

efendant was not

returned to custo

dy until afte

r the time periodfor final forf

eitur e had expired. I

nternational Fid

elity In surance Company

filed a timely petition to be granted full exoneration. The trial court, after a hearing, granted partial exoneration andordered International Fidelity I nsurance Company to pay $55,000.00. We affirm the judgment of the trial court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

. T HO MAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Jeff Whitt, Knoxville, Tennessee, for the Defendant, Edward Alan Scarbrough; Linda J. Hamilton Mowles and John Ki ng, Knox ville, Tennessee , for the petitione

r/appellant, I

nternational Fid

elity Insurance Company. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney , Assistant Attor ney Genera l; Randall E. Nic hols, District Attorney General; and William Crabtree, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The appellant, I

nternational Fid

elit y Insurance Company (“International Fi delity”) wa s surety on three bail bonds for the defendant, Edward Alan Scarbrough, in the total amount of $125,000.00.-2-

The bonds were made on

May 26, 1999. Internationa l Fidelity’s

agent, Gary

Slusher, doing bus

iness as Gary’s Bail Bonds, Inc., wrote

the surety a

ppearance bond

s for Defendant

. Defendant fai

led to appear for a scheduled court date on September 21, 1999 and absconded. Conditional forfeiture of the bonds was taken onthis date and scire facias was issued. The parties do not dispute that Gary Slusher, the bail bondsmen, received notice of the conditional forfeiture and scire facias

. According to the testimony of Jerry Watson, a vice-president of I nternational Fidelity, Gary Slusher was terminated as an agent of Internati

onal Fidelity

sometime in

“March or April” of 2000. Pursuant to Tennessee Code Annotated section 40-11-139, the180-day time period which must p

ass before final forfeiture could be taken expiredin March 2000. Gary’s Bail Bonds, I nc. requested a 90-day extension of time

in which to return Defendant prior to the taking of a final forfeiture. The trial court granted it a 30-day extension. In an or der entered April 19, 2000, the trial court denied a subsequent request for extension of time to produce Defendant without

final forfeiture being taken. Jerry Watson testified tha

t his company did

not receive notic

e of the forfeitu

re until approximate

ly April28, 2000, at which time it prom ptly bega n efforts to reg

ain custody o

f Defendant.Defendant was turned over

to the Knox County authorities on May 22, 2000. International Fidelity timely filed a petition for full exoneration from the final forfeiture. Following an evidentiary hearing, the tr

ial court g

ra nted partial exoneration in the amount of $70,000.00 andordered International Fidelity to pay $55,000.00. Internationa l Fidelity a

ppeals this decision of the tr

ial c ourt. Th e sole issue for r eview is whether

the trial court ab

used its dis cret ion by no t gra nti ng fu ll e xon erat ion to In ter nat ion al Fi del ity. The substance of app

licable law which addresses this issue was succinctly stated by a panel of this Court in State v. Shredeh , 909 S.W.2d 833 (Tenn. Crim. App. 1995), which held as follows: The forfeiture of bail is go verned by statu te. Tenn. C ode Ann. §§ 40-11-201 through -215. When the defendant fails to appear as required, the issuance of scire facias r e quires sureties to give

reasons why

a forfeiture of

bail should not beco

me final. Tenn. Code Ann. § 40-11- 202. Tria l courts have the d

iscretion to relie

ve bail bondsmen or other sureties from the liability of a ba il and are author

ized to hold hearings to determine whether the forfeiture should be excused, lessened, or absolutely

remitted. Tenn. Code Ann. § 40-11 -204. The discretion has been described as broad and comprehensive, empower ing trial courts to make determinations “in accordance with [its] conception of justice and right.” Black v. State , 154 Tenn. 88, 92, 290 S.W. 20, 21 (1927). Shredeh , 909 S.W.2d at 835. It is undisputed that, at some point after May 22, 1999, when Slusher wrote the bonds binding International Fidelity as surety , Slusher began writing bonds for a competing compan y . International

Fidelity terminated its relationship with Slusher in March or April of 2000. International

Fidelity, in e ssence, argue s that once i t had actual knowledge of the forfeiture, it took-3-

extremely prompt action to return Defen dant to the custody of the Knox County

authorities. International

Fidelity ar

gues that deny

ing it full exonera

tion in this case would defeat

the purposes andpolicies of giving sureties a financial interest in returning custody of those for whom bond has been made. It is true, as noted by I nternational Fidelity, that the trial court

stated in its findings that International

Fidelity was“expeditious” and a “model of prompt action for purpose of returning the defendant to the court.” The trial court a lso found that I

nternational Fid

elity had failed to exer

cise supervisory

authority over its bond documents, and its agent, Gary Slusher, in the Scarbrough bon ds. This finding by the

trial court was clearly supported by the evidence presented at

the hearing. For ins tan ce, M r. W ats on, the vic e-pr esi den t of Inte rnat ion al Fi del ity, gave the fol low ing t est imo ny: Q: Now, Mr. Watson, of course, International Fidelity writes in, ah, each local area through agents, ah, authorized to, ah, ah, if you will, execute the bonding obligations on be

half of Inter

national Fidelity

, ah, correct? A: Yes. We engage with , ah, with various r

etail sellers of b

ail bond s, l ocal ly, across the cou ntr y, and we appoint those indi viduals , men and women, ah, as our attorneys, in fact , ah, and then we file with the county clerks with each of those jurisdictions a qualifying power of attorney , which autho rize s that particular retail seller

of bails to execute his bonds on our behalf, and when he executes that bond properly, attaching to it an execution power of attorney, it’s just as efficacious as though the president of the company signs the bond, and that’s, and that’s the way the business operates

. * * * Q. Well, what supervis ory authori

ty did y ou all exert over y

our agents? A. Well, we don’t exert su perviso ry authority. They’re, they are, independent contra ctors. They’re local retail bail bond writers, and General a s bet wee n themand us, we have a contract with them, and the reality between them and us is, that these are their bonds that they are writing on our financial c redits, andwe serve more in the capacity as a reinsurer with them. As between us and your state. We’re definitely on the bond. Q. How about between, how do you determine in fact they made a bond? A. We, we don’t know when they make a bond. Q. So, you –-4-

A. The only wa

y – excuse

me – the only way we would know when the y make a bond is when they

adhere to our und

erwriting instr

uctions to them, and they contact us prior to writing a bond above their underwriting limitation. Otherwise, they select their customer. They ta ke the collater a l. They underwrite

the bond. And they make the decision on whether or not to get the defe nda nt o ut o f cus tod y. (Emphasis added.) In its order, the trial court found that International Fidelity was entitled to some exoneration for the efforts that it had made in the return of Defe ndant, but that full exoneration was not appropriate

because of I

nternational Fidelit

y’s failure

to properly

supervise its ag

ent or maintain control over its bond documents. After a careful review of the record, we conclude that the tr ial court did not abuse its disc

retion in declining to grant full exoneration to the Appellant, International Fid eli ty. CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL, JUDGE