Circuit Court LC No. 14-020293-FH
Before: Ronayne Krause, P.J., and O'Connell and Gleicher,
the agent for the surety on a bail bond provided for
defendant in a criminal matter, appeals as of right the
circuit court's decision denying its motion to vacate
forfeiture of bond. The court concluded that appellant had
received timely notice of defendant's default, and also
concluded that a late penalty assessed against appellant for
failure to timely pay the judgment was proper. We conclude
that the notice was not timely, so we reverse and remand for
Antoine Stanford was charged with uttering and publishing,
MCL 750.249, and operating with a suspended license, MCL
257.904. Appellant, as agent for Roche Surety and Casualty
Company, Inc. ("Roche"), became defendant's
surety on a bail bond for this matter in the amount of $10,
000. On or about January 14, 2015, defendant defaulted on his
bond obligation when he failed to appear at a pretrial
hearing. On January 20, 2015, the circuit court issued an
order revoking defendant's release and forfeiting the
bond. It served notice to appellant via first-class mail. The
certificate of mailing attached to the order stated that it
was served on appellant on January 21, 2015, seven days after
defendant's default, as required by MCL
765.28(1). However, appellant asserted that the
notice was postmarked January 22, 2015, which was
eight days after defendant's default, in
violation of the statute. Moreover, appellant asserted that
it was without "actual notice" of defendant's
default and entry of the order until it received the notice
in the mail on January 23, 2015.
failed to appear at a show cause hearing held on February 20,
2015. On February 24, 2015, the circuit court entered
judgment against appellant for $10, 000, the full amount of
bail. Appellant was later notified that a 20 percent late fee
had been added to its obligation as a result of its failure
to timely pay the judgment, raising appellant's
obligation to $12, 000.
filed a motion to vacate the judgment of bond forfeiture,
arguing that notice was not provided within seven days of
defendant's default as required by MCL 765.28(1), so it
was untimely. The court denied the motion on the grounds that
notice was timely pursuant to MCR 3.604(I)(2), and that the
date of service of notice was January 21, 2015, as stated on
the judgment's certificate of mailing, rather than
January 22, 2015, the date that the notice was postmarked.
The court also concluded that there was a conflict between
MCR 3.604(I)(2) and MCL 765.28(1) as to "the procedural
requirements for service, " and that the court rule was
controlling over the statute. The court's decision was
based in part on a memorandum from the State Court
Administrator's Office (SCAO), in which the SCAO
concluded that the court rule controlled because the subject
of the conflict was procedural in nature, citing Donkers
v Kovach, 277 Mich.App. 366, 373; 745 N.W.2d 154 (2007).
The court also concluded that the 20 percent late fee on the
judgment was proper under MCL 600.4803(1) because the penalty
was "separate" from the judgment, so the judgment
was not for more than the "full amount of the surety
bond" in violation MCL 765.28(1).
STANDARD OF REVIEW
of statutory interpretation are questions of law that are
reviewed de novo. In re McEvoy, 267 Mich.App. 55,
59; 704 N.W.2d 78 (2005). Questions relating to the proper
interpretation of court rules are also questions of law that
are reviewed de novo. Marketos v American Employers
Insurance Co, 465 Mich. 407, 412; 633 N.W.2d 371 (2001).
In interpreting a statute, we apply the rule of ordinary
usage and common sense. People v Kelly, 186
Mich.App. 524, 528; 465 N.W.2d 569 (1990).
STATUTE AND COURT RULE DO NOT CONFLICT
765.28(1) and MCR 3.604(I)(2) do not conflict. MCL 765.28(1)
is the procedure for providing a surety notice of a default.
MCR 3.604(I)(2), on the other hand, is the procedure to
provide notice of a hearing on a motion for judgment. These
are two separate and distinct events. A default must be
entered prior to a hearing to enter judgment on the default.
In any event, the court rule itself would resolve any
conflict, if such a conflict otherwise exists. MCR 3.604(A)
states that the "rule applies to bonds given under the
Michigan Court Rules and the Revised Judicature Act,
unless a rule or statute clearly indicates
that a different procedure is to be followed" (emphases
added). Therefore, even if MCL 765.28(1) set forth a
procedure that affected the same event or subject addressed
by the court rule, by the court rule's own terms the
statute would still control.
NOTICE OF DEFAULT WAS INEFFECTIVE
was not timely under MCL 765.28(1) or MCR
3.604(I)(2). Under MCL 765.28(1), a surety must
receive immediate notice, "not to exceed seven days
after the date of the failure to appear." However, the
trial court did not even mail the notice until the eighth
day. Under MCL 765.28(1), notice "shall be served upon
each surety in person or left at the surety's last known
business address." The word "shall" generally
denotes a mandatory duty. State Highway Comm v
Vanderkloot, 392 Mich. 159, 180; 220 N.W.2d 416 (1974).
Therefore, mailing the notice did not effectuate timely or
proper service under ...