NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BANKER’S INSURANCE COMPANY and AZTECA BAIL BONDS, 

Appellants.

No. 1 CA-CV 16-0041

Appeal from the Superior Court in Yavapai County

No. V1300CR820030173

The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By William A. Kunisch

Counsel for Appellee

Clifford M. Sherr Attorney at Law, Phoenix

By Clifford M. Sherr

Counsel for Appellants
STATE v. BANKERS et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Maurice Portley1 joined.

W I N T H R O P, Judge:

¶1 Banker’s Insurance Company and Azteca Bail Bonds 

(“Appellants”) appeal the superior court’s judgment forfeiting a $25,000 

appearance bond. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2003, Theresa Flores (“Defendant”) pled guilty to two 

counts of burglary and was placed on probation. After she absconded, the 

Yavapai County Adult Probation Department filed a petition to revoke her 

probation, and the superior court issued a warrant for her arrest.

¶3 More than ten years later, Defendant was arrested in Missouri 

on the warrant. Appellants, through their agent, Fitzgerald All-State Bail 

Bonds, LLC (“Fitzgerald”), posted a $25,000 appearance bond on 

Defendant’s behalf, and she was released.

2

¶4 Thereafter, the Circuit Court of St. Louis, Missouri, issued a 

warrant for Defendant’s arrest on a separate criminal charge and set a 

$3,500 appearance bond. Defendant was again arrested and booked into

the Yavapai County jail. The superior court confirmed the $3,500 bond set 

by the Missouri court, and Fitzgerald again posted bond, securing 

Defendant’s release for a second time.

¶5 Defendant failed to appear for a probation violation 

disposition hearing in June 2015, and the court scheduled a bond forfeiture 

 

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.

2 Bankers Insurance Company is a nationwide surety company. 

Azteca Bail Bonds was the transfer agent in this case, and Fitzgerald was 

the posting agent.
STATE v. BANKERS et al.

Decision of the Court

3

hearing. Neither Appellants nor their agent, Fitzgerald, appeared at the 

hearing, and the court entered judgment forfeiting the $25,000 bond.

¶6 Pursuant to Rule 59(a)(8), Ariz. R. Civ. P.,3 Appellants filed a 

motion for new trial, which the superior court denied. This timely appeal 

followed. We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(1), (5)(a) (2016).

4

ANALYSIS

¶7 We review for an abuse of discretion the superior court’s 

order forfeiting the bond. See State v. Affordable Bail Bonds, 198 Ariz. 34, 36, 

¶ 9, 6 P.3d 339, 341 (App. 2000).

5

 We view the evidence in the light most 

favorable to affirming the judgment. State v. Veatch, 132 Ariz. 394, 396, 646 

P.2d 279, 281 (1982). We may affirm the bond forfeiture order if it is correct, 

even on grounds different from those cited by the superior court. Ness v. 

W. Sec. Life Ins. Co., 174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992).

¶8 Appellants argue that Defendant should have been held nonbondable after her arrest on the Missouri charge and that the superior court 

abused its discretion when it denied Appellants’ motion for new trial.

6 

Appellants also argue that “[p]rejudice to the Appellants as appeared in 

this case is a recognized defense to forfeiture and was another basis for 

exoneration ignored by the trial judge.” The State argues that Appellants 

have waived these arguments “by failing to appear and present them at the 

 

3 Rule 59(a)(8) provides that the superior court may grant a new trial 

if “the verdict, decision, findings of fact, or judgment is not justified by the 

evidence or is contrary to law.” Rule 59 has been amended, and effective 

January 1, 2017, a similar provision may be found in Rule 59(a)(1)(H).

4 We cite the current version of all applicable statutes unless revisions 

material to this decision have occurred since the relevant date(s).

5 We likewise review for an abuse of discretion the denial of a motion 

for new trial. Jaynes v. McConnell, 238 Ariz. 211, 215-16, ¶ 13, 358 P.3d 632, 

636-37 (App. 2015) (citation omitted).

6 Although Appellants’ notice of appeal references only the judgment 

of forfeiture, this court may also review the superior court’s order denying 

Appellants’ motion for new trial. See A.R.S. § 12-2102(B) (2016).
STATE v. BANKERS et al.

Decision of the Court

4

bond forfeiture hearing,” and instead, raising them for the first time in their 

motion for new trial.

¶9 “An issue raised for the first time after trial is deemed to have 

been waived.” Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6, 981 P.2d 1087, 1089 

(App. 1999) (citation omitted). This court has not hesitated to apply this 

rule of law. See, e.g., Flanders v. Maricopa Cty., 203 Ariz. 368, 378, ¶ 65, 54 

P.3d 837, 847 (App. 2002) (holding that an issue raised for the first time in a 

motion for judgment as a matter of law following the verdict is waived);

Conant v. Whitney, 190 Ariz. 290, 293, 947 P.2d 864, 867 (App. 1997) (holding 

that a plaintiff waived his claim of manifest injustice by raising it for the 

first time in a motion for new trial); Ruck Corp. v. Woudenberg, 125 Ariz. 519, 

522, 611 P.2d 106, 109 (App. 1980) (declining to consider the merits of 

defendants’ objection to an attorneys’ fees award because the objection was 

raised for the first time in a motion for new trial).

¶10 We apply this rule here. After Defendant failed to appear at 

her disposition hearing, the superior court scheduled a bond forfeiture 

hearing. Although notified of the hearing, Appellants and their agent failed 

to appear. The record reflects no explanation for Appellants’ absence at the 

hearing. In their motion for new trial, Appellants argued for the first time

that Defendant should have been held non-bondable on the Missouri 

charges and asserted a “prejudice defense.” Appellants’ arguments came 

too late.

¶11 Arizona Rule of Criminal Procedure 7.6(c) requires the 

superior court to give the surety notice of a forfeiture hearing and provide 

the surety with an opportunity to show cause why the bond should not be 

forfeited. See Ariz. R. Crim. P. 7.6(c)(1). If no explanation or excuse for the 

defendant’s violation is provided at the hearing, “the court may enter an 

appropriate order of judgment forfeiting all or part of the amount of the 

bond.” Ariz. R. Crim. P. 7.6(c)(2). Here, Appellants did not appear at the 

forfeiture hearing and, therefore, failed to provide an explanation or excuse 

for Defendant’s violation. Accordingly, the court had the authority to 

forfeit the bond.

¶12 As prior decisions have explained, “a surety assumes the risk 

of a defendant’s failure to appear.” In re Bond Forfeiture in Pima Cty. Cause 

No. CR-20031154, 208 Ariz. 368, 369, ¶ 4, 93 P.3d 1084, 1085 (App. 2004)

(citations omitted); accord United Bonding Ins. Co. v. City Court, 6 Ariz. App. 

462, 464, 433 P.2d 642, 644 (1967). To alleviate that risk, the surety must

exercise care in ascertaining the defendant’s circumstances and community 
STATE v. BANKERS et al.

Decision of the Court

5

ties before executing an appearance bond. Bond Forfeiture in Pima Cty. Cause 

No. CR-20031154, 208 Ariz. at 369, ¶ 4, 93 P.3d at 1085.

¶13 In this case, Appellants posted two appearance bonds for 

Defendant. At the time they posted the first bond, Appellants were aware 

that a warrant for Defendant’s arrest had been issued more than ten years 

earlier. Notwithstanding this information about Defendant, Appellants 

chose to post a second bond after her arrest on the Missouri warrant. 

Appellants thus assumed the risk that Defendant would fail to appear.

CONCLUSION

¶14 Appellants waived their challenges to the bond forfeiture by 

raising them for the first time in their motion for new trial, and the superior 

court did not abuse its discretion in denying their motion. On this basis, we 

affirm the superior court’s order forfeiting the $25,000 appearance bond.