COLORADO COURT OF APPEALS                                      2017COA131


Court of Appeals No. 16CA1474
Weld County District Court No. 14CR2065
Honorable Thomas J. Quammen, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas Fallis,

Defendant-Appellee,

and

Alfred Perna,

Surety-Appellant.


                               ORDER VACATED

                                 Division V
                         Opinion by JUDGE ASHBY
                       Román and Navarro, JJ., concur

                         Announced October 19, 2017


Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Zonies Law LLC, Sean Connelly, Denver, Colorado; Eytan Nielsen LLC, Iris
Eytan, Dru Nielsen, Tiffany Drahota, Denver, Colorado, for Defendant-Appellee

The Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for Surety-
Appellant
¶1    Surety, Alfred Perna, appeals from the district court’s order

 granting in part the motion of defendant, Thomas Fallis, for return

 of the bond premium. We vacate because we conclude that section

 16-4-110, C.R.S. 2017, does not grant authority to the court to

 refund a bond premium under the circumstances of this case.

                            I. Background

¶2    Defendant was charged and arrested for allegedly murdering

 his wife. The district court set a $500,000 bond. Defendant posted

 bond through Mr. Perna by paying a $25,000 premium. Thereafter,

 he fully cooperated with all court orders and appeared at all

 hearings. Fourteen months later, just before defendant’s trial was

 to begin, Mr. Perna moved to surrender defendant back into the

 custody of the court. The court granted the motion. Defendant

 spent several days in jail while his family secured a second bond

 and paid another $25,000 premium to a different surety to secure

 defendant’s release. Defendant was ultimately acquitted.

¶3    Defendant moved for return of the premium he had paid to Mr.

 Perna. The court partially granted the motion. The court

 concluded that Mr. Perna would be unjustly enriched if he were


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 allowed to keep the entire premium. The court also found, however,

 that Mr. Perna had provided a service and was entitled to retain a

 portion of the premium in exchange for the benefit conferred

 (fourteen months of freedom). The court found that the risk taken

 by Mr. Perna in securing this bond was similar to a high risk

 investment contemplated by section 5-12-103(1), C.R.S. 2017, and

 applied the maximum forty-five percent usury rate found therein.

 Accordingly, it ordered Mr. Perna to return $11,031.25 to

 defendant.

                        II. Unjust Enrichment

¶4    Mr. Perna contends that the district court erred by ordering

 that he refund a portion of the bond premium to defendant. We

 agree.

¶5    “The determination of the amount of premium refund due to

 the defendant is a matter within the trial court’s discretion and the

 court may not be reversed absent an abuse of that discretion.”

 People v. Anderson, 789 P.2d 1115, 1117 (Colo. App. 1990). A court

 abuses its discretion where its decision is manifestly arbitrary,




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 unreasonable, or unfair, or is based on a misapplication or

 misunderstanding of the law. People v. McFee, 2016 COA 97, ¶ 17.

¶6    In this instance, resolution of Mr. Perna’s contention requires

 us to interpret section 16-4-110. Thus, our review is de novo. See

 People In Interest of J.G., 2016 CO 39, ¶ 13. Our primary goal in

 interpreting statutes is to ascertain and give effect to the

 legislature’s intent. Id. We do this by first looking to the plain

 language of the statute, giving words their ordinary meanings. Id.

 If the terms are clear, we apply the statute as written. Id.

¶7    In ordering Mr. Perna to refund a portion of defendant’s

 premium, the district court relied primarily on section 16-4-

 110(1)(d) and People v. Carrethers, 867 P.2d 189 (Colo. App. 1993).

 The relevant portion of section 16-4-110(1)(d) provides that “[i]f a

 compensated surety is exonerated by surrendering a defendant

 prior to the initial appearance date fixed in the bond, the court,

 after a hearing, may require the surety to refund part or all of the

 bond premium paid by the defendant if necessary to prevent unjust

 enrichment.” This is a different version of the statute from the one

 that was interpreted by the division in Carrethers.


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¶8    The statute as it existed when Carrethers was decided was

 identical except for one important change: it did not contain the

 term “initial.” Thus, it provided that if a surety was exonerated by

 surrendering a defendant “prior to the appearance date fixed in the

 bond,” the court could order the surety to return all or part of the

 premium to prevent unjust enrichment. § 16-4-108(1)(c), C.R.S.

 1993. The Carrethers division concluded that because another

 statute, section 16-4-106, C.R.S. 1993, provided that “a pretrial bail

 bond ‘shall continue in effect’ at least until the point of conviction,”

 and because it is generally accepted that use of the singular in a

 statute includes the plural, “[section] 16-4-108(1)(c) is not limited to

 defendant’s initial appearance date but also includes such other

 dates to which defendant’s case was continued up to the date of

 conviction.” Carrethers, 867 P.2d at 190. Accordingly, the division

 concluded that the district court had the authority to order return

 of the premium even though the surety surrendered the defendant

 after his initial appearance. Id.

¶9    In 2013, the legislature repealed and reenacted the entire part

 of title 16, article 4 containing the relevant statutes. In doing so, it


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  added the term “initial” before the phrase “appearance date fixed in

  the bond.” Ch. 202, sec. 2, § 16-4-110(1)(d), 2013 Colo. Sess. Laws

  832. We presume this was an intentional amendment, made with

  full awareness and understanding of pre-existing law. See People v.

  Sandoval, 2016 COA 57, ¶ 36 (“The General Assembly is presumed

  cognizant of relevant judicial precedent when it enacts legislation in

  a particular area. And, when a statute is amended, the judicial

  construction previously placed upon that statute is deemed

  approved by the General Assembly to the extent the provision

  remains unchanged.” (quoting U.S. Fid. & Guar., Inc. v. Kourlis, 868

  P.2d 1158, 1162-63 (Colo. App. 1994))); see also Colo. Ethics Watch

  v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20. Thus, we interpret

  the statute to mean what it says; namely, that under section 16-4-

  110(1)(d), a court may order return of the premium to prevent

  unjust enrichment only if the surrender occurred prior to the

  defendant’s initial appearance.

¶ 10   Here, Mr. Perna surrendered defendant to the court fourteen

  months after the court process began. This was well after

  defendant’s initial appearance. Accordingly, we conclude that the


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  court was without the authority to order Mr. Perna to refund all or

  part of defendant’s premium. Though we recognize that such a

  provision may result in harsh consequences, as it does here, we are

  bound by the statute and the legislature’s clear intent.

¶ 11   To the extent defendant argues on appeal that, regardless of

  the statute, Mr. Perna breached their contract and so we should

  apply basic rules of contract construction, we note that this issue

  was not argued before the district court. Thus, we will not address

  it. See People v. Salazar, 964 P.2d 502, 507 (Colo. 1998) (“It is

  axiomatic that issues not raised in or decided by a lower court will

  not be addressed for the first time on appeal.”); see also Melat,

  Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,

  ¶ 18. We express no opinion as to whether defendant may pursue a

  separate civil action for relief. See Vaughn v. Dist. Court, 192 Colo.

  348, 350, 559 P.2d 222, 223 (1977).

                             III. Conclusion

¶ 12   Therefore, we vacate the district court’s order refunding a

  portion of the bond premium to defendant. Based on our resolution




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of this issue, we need not address Mr. Perna’s remaining

contentions.

     JUDGE ROMÁN and JUDGE NAVARRO concur.




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