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### STATE OF MICHIGAN

COURT OF APPEALS

In re FORFEITURE OF BAIL BOND (PEOPLE V COVINGTON)

THE PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 28, 2015

v No. 320108 Isabella Circuit Court BLINDA ANN COVINGTON, LC No. 2010-000916-FH

Defendant, and

LEO’S BAIL BONDS AGENCY COMPANY,

Surety-Appellant.

Before: B ORRELLO , P.J., and R ONAYNE K RAUSE and R IORDAN , JJ.

P ER C URIAM

. Appellant, Leo’s Bail Bonds Agency Company, appeals as of righ t the trial court order denying its motion to set aside a judgment of forfeiture and di scharge it from its bond undertaking. We affirm the trial court’s denial of the motion to set aside the bond forfeiture pursuant to MCL 765.28 and MCL 765.26(2), but remand for the tr ial court to consider if equitable relief is warranted pursuant to MCL 600.4835.

I. FACTUAL BACKGROUND

Appellant is a bail bonds agency. It provided a surety bond on behalf of defendant, Blinda Covington, who was charged with uttering and publishing, MCL 750.249, and false pretenses, MCL 750.218(4)(a).

Despite her conviction, Covington did not appear for her senten cing hearing. Consequently, the court issued a warrant for her arrest, and or dered appellant to pay the bond amount. The court eventually ent ered a judgment against appell ant for $12,500. Defendant was-2- apprehended, although the parties dispute the precise role appe llant played in her apprehension. Subsequently, appellant moved the court to set aside the bond f orfeiture. The trial court denied appellant’s motion to set aside the judgment of forfeiture and discharge the bond. Appellant now appeals.

II. MCL 765.26 & MCL 765.28

A. STANDARD OF REVIEW

We review a trial court’s decisi on regarding setting aside a fo rfeiture bond for an abuse of discretion. In re Forfeiture of Surety Bond , 208 Mich App 369, 375; 529 NW2d 312 (1995). “An abuse of discretion occurs when the trial court's decision is outside the range of reasonable and principled outcomes.” Smith v Khouri , 481 Mich 519, 526; 751 NW2d 472 (2008). We review de novo questions of statutory interpretation. Koontz v Ameritech Servs, Inc , 466 Mich 304, 309; 645 NW2d 34 (2002).

B. ANALYSIS

The “primary goal” of statutory interpretation “is to discern the intent of the Legislature by first examining the plain language of the statute.” Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011). A statutory provision must be read in the context of the entire act, and “every word or phrase of a statu te should be accorded its plain and ordinary meaning.” Krohn v Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011). When the language is c lear and unambiguous, “no further judi cial constructi on is required or permitted, and the statute must be enforced as written.” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002) (quotation marks and citation omitted).

This case involves a defendant who failed to appear at her sent encing hearing and the court’s resulting bench warrant and order forfeiting the bond. In such a situation, MCL 765.28 applies, which provides:

(1) If default is made in any recognizance in a court of recor d, the default shall be entered on the record by the clerk of the court. After the default is entered, the court shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear. The notice shall be se rved upon each surety in person or left at the surety's last known business address. Each surety shall be given an opportunity to appear before the court on a day certai n and show cause why judgment should not be entered against the surety for the f ull amount of the bail or surety bond. If good cause is not shown for the defenda nt's failure to appear, the court shall enter j udgment against the surety on th e recognizance for an amount determined appropriate by the court but not more than the full amount of the bail, or if a surety bond has been posted the full amoun t of the surety bond. If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall continue to be liable to the court for the diff erence, unless otherwise ordered by the court. Execution shall be awarded and executed upon the judgment in the manner provi ded for in personal actions.-3- (2) Except as provided in subsection (3), the court shall set aside the forfeiture and discharge the bail or surety bond within 1 year from the date of forfeiture judgment if the defendant has been apprehended, the ends of justice have not been thwarted, and the county has been repaid its cost s for apprehending the person. If the bond or bail is discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the sur ety.

(3) Subsection (2) does not apply if the defendant was apprehe nded more than 56 days after the bail or bond was ordered forfeited and j udgment entered and the surety did not fully pay the forfeiture judgment within that 56-day period. [MCL 765.28.]

As discernible from the language of MCL 765.28, it expressly ap plies to this case, where a default has occurred and more than 56 days passed before defe ndant was apprehended and the surety did not fully pay the bond within that period. MCL 765. 28(2) and (3). According to the plain statutory language, appell ant would not be entitled to se tting aside the bond forfeiture because it did not apprehend defendant within 56 days or fully pay the bond within that period. MCL 765.28(2) and (3). On appeal, appellant does not even atte mpt to argue that it is entitled to relief pursuant to MCL 765.28(2).

Instead, appellant relies on MCL 765.26 to conclude that the tr ial court erred in failing to set aside the bond forfeiture . That section provides:

(1) In all criminal cases where a person has entered into any recognizance for the personal appearance of another and such bail and surety afterwards desires to be relieved from responsibil ity, he or she may, with or with out assistance, arrest or detain the accused and deliver him or her to any jail or to the sheriff of any county. In making the arrest or detainment, he or she is en titled to the assistance of any peace officer.

(2) The sheriff or keeper of any jail is authorized to receive the principal and detain him or her in jail until he or she is discharged. Up on delivery of his or her principal at the jail by the surety or his or her agent or any officer, the surety shall be released from the condi tions of his or her recognizanc e.
(3) Whenever the prosecuting attorney of a county is satisfied that a person who has been recognized to appear for trial has absconde d, or is about to abscond, and that his or her sureties or either of them have be come worthless, or are about to dispose or have disposed of their property for the purpose of evading the payment or the obligation of such bond or recognizance or w ith intent to defraud their creditors, and that prosecuting attorney makes a satisfactory showing to this effect to the court having jurisdiction of that person, the court or judge shall promptly grant a mittimus to the sheriff or any pea ce officer of that county, commanding him or her forthwith to arrest the person so recognized and bring him or her before the officer issuing the mittimus and on the return of that mittimus may, after a hearing on the merits, order him or her t o be recommitted to-4- the county jail until such time as he or she gives additional a nd satisfactory sureties, or is otherw ise discharged.

Appellant contends that because it surrendered Covington on or around November 13, 2013, it should be released from all conditions of its recogniz ance. Appellant highlights the language in subsection (2) that s tates, “Upon delivery of his o r her principal at the jail by the surety or his or her agent or any officer, the surety shall be released from the conditions of his or her recognizance.” MCL 765.26(2).

However, MCL 765.26 applies to situations when a surety wishes to be relieved of responsibility for defendant, and it can arrest and deliver def endant in order to be released from its obligations. In re Forfeiture of Bail Bond , 496 Mich 320, 331; 852 NW2d 747 (2014). The facts of this case do not involv e appellant deciding it no long er wanted to be responsible for defendant. Rather, the events that precipitated the bond forfe iture are that defendant failed to show up at sentencing, thereby causing the court to issue a war rant for her arrest and an order forfeiting bond.

In essence, appellant attempts to evade the 56-day deadline to apprehend defendant in MCL 765.28, by reading the language of MCL 765.26 to allow the surety to arrest and deliver defendant even when a default is in place. This proposed readi ng of the statute violates the longstanding principle that “in the interpretation of statutes, eff ect must be given, if possible, to every word, sentence and section and, to that end, the entire act mus t be read to be an harmonious and consistent enactment as a whole.” Drouillard v Stroh Brewery Co , 449 Mich 293, 303; 536 NW2d 530 (1995). If appellant was able to set aside the bond f orfeiture simply because defendant was apprehended at any point in time, then the langua ge in MCL 765.28(3)— specifically limiting the surety to 56 days in which to secure defendant’s apprehension— becomes nugatory. As the Michig an Supreme Court has repeatedly cautioned, we must avoid interpretation of statutes that renders any part surplusage or nugatory. Klapp v United Ins Group Agency, Inc , 468 Mich 459, 468; 663 NW2d 447 (2003). Accordingly, the tri al court properly found that appellant was not entitl ed to relief pursuant to MCL 765.26 or MCL 765.28. 1

III. MCL 600.4835

A. STANDARD OF REVIEW

1 Although appellant relies on Matter of Int’l Fidelity Ins Co , 88 Mich App 341; 276 NW2d 607 (1979), that case is inapposite. The defendant and the surety in that case entered into a contract that the “bond was to remain in full force and effect for a per iod of one year.” Id. at 342. The defendant failed to appear, but the surety argued it was no lon ger liable because the one year had expired. Id. at 342-343. This Court found that the surety was liable becau se “any bail bond provision which calls for the sur ety’s discharge absent deliver y of the principal to be null and void.” Id. at 343-344. It did not address the issue in this case, and is not binding on us. MCR 7.215(J)(1). Nor does People v Havey , 382 Mich 58; 167 NW2d 308 (1969), pertain to the issue before us.-5- Appellant also asserts that it is entitled to relief pursuant to MCL 600.4835. We review a trial court’s decision regarding setting aside a forfeiture bon d for an abuse of discretion. In re Forfeiture of Surety Bond , 208 Mich App at 375. We review unpreserved issues for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

B. ANALYSIS

MCL 600.4835 provides:

The circuit court for the county in which such court was held, or in which such recognizance was taken, may, upon good cause shown, remit any penalty, or any part thereof, upon such terms as appear just and equitable to the court. But this section does not authorize such court to remit any fine im posed by any court upon a conviction for any criminal offense, nor any fine impose d by any court for an actual contempt of such court , or for disobedience of its or ders or process.[ 2 ]

“Under the statute, a forfeite d recognizance bond may be remitt ed as it appears just and equitable and it is a matter that is within the discretion of the court.” People v Munley , 175 Mich App 399, 403; 438 NW2d 292 (1989) (quotation marks omitted).

In its written motion, appellant did not raise MCL 600.4835 as a basis for relief. Nevertheless, appellant referenced equitable remitter during th e motion hearing and argued that paying the bond only to then bring an independent action for re mitter would be a waste of resources. The trial court did not rely on MCL 600.4835 or pur port to analyze the statute and equitable factors.

In a similar bond forfeiture case, the appellant ostensibly fai led to assert entitlement to relief under MCL 765.28 or MCL 600.4835 adequately. People v Bray , 481 Mich 888; 749 NW2d 741 (2008). 3 Although this Court held that the appellant was therefore pre cluded from seeking relief, the Michigan Supreme Court vacated that opinion and remanded the case for the trial court to consider the motion to set aside the bond forfei ture pursuant to MCL 765.28(2) and MCL 600.4835 . Id.

In accordance with the Supreme Court’s order in Bray , we remand for the trial court to consider whether setting aside the bond forfeiture was warrante d pursuant to MCL 600.4835. We agree with appellee that the trial court is not obligated to grant relief under MCL 600.4835. Munley , 175 Mich App at 403. However, the court must at least consid er and weigh relevant equitable considerations under MCL 600.4835. Bray , 481 Mich at 888.

IV. CONCLUSION

2 “For purposes of this statute, the term ‘penalty’ includes fo rfeited recognizances.” People v Evans , 434 Mich 314, 332; 454 NW2d 105 (1990).

3 See also this Court’s opinion, People v Bray , unpublished opinion per curiam of the Court of Appeals, issued November 29, 2007 (Docket No. 271042).-6- The trial court in the instant case considered and correctly r ejected the applicability of MCL 765.26 and MCL 765.28. However, in accordance with the Sup reme Court’s ruling in Bray , we vacate the circuit court’s order denying appellant’s motio n to set aside the judgment of forfeiture and remand the case to the trial court for considera tion of the motion under MCL 600.4835. We do not retain jurisdiction.

/s/ Stephen L. Borrello /s/ Amy Ronayne Krause /s/ Michael J. Riordan