                           STATE OF MICHIGAN

                           COURT OF APPEALS


In re FORFEITURE OF BAIL BOND (PEOPLE V
COVINGTON)


THE PEOPLE OF THE STATE OF MICHIGAN,                             UNPUBLISHED
                                                                 April 28, 2015
              Plaintiff-Appellee,

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: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.

PER CURIAM.

       Appellant, Leo’s Bail Bonds Agency Company, appeals as of right the trial court order
denying its motion to set aside a judgment of forfeiture and discharge 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 trial 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 sentencing hearing.
Consequently, the court issued a warrant for her arrest, and ordered appellant to pay the bond
amount. The court eventually entered a judgment against appellant for $12,500. Defendant was

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apprehended, although the parties dispute the precise role appellant played in her apprehension.
Subsequently, appellant moved the court to set aside the bond forfeiture. 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 decision regarding setting aside a forfeiture 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 statute 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 clear
and unambiguous, “no further judicial construction 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 sentencing 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 record, 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 served 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 certain and show cause
       why judgment should not be entered against the surety for the full amount of the
       bail or surety bond. If good cause is not shown for the defendant's failure to
       appear, the court shall enter judgment against the surety on the 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 amount 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 difference, unless
       otherwise ordered by the court. Execution shall be awarded and executed upon the
       judgment in the manner provided for in personal actions.



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               (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 costs 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 surety.

              (3) Subsection (2) does not apply if the defendant was apprehended more
       than 56 days after the bail or bond was ordered forfeited and judgment 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 applies to this case, where
a default has occurred and more than 56 days passed before defendant 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, appellant would not be entitled to setting 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 attempt 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 trial 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 responsibility, he or she may, with or without 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 entitled 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. Upon 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 conditions of his or her recognizance.

              (3) Whenever the prosecuting attorney of a county is satisfied that a
       person who has been recognized to appear for trial has absconded, or is about to
       abscond, and that his or her sureties or either of them have become 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 with 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 peace 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 to be recommitted to


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       the county jail until such time as he or she gives additional and satisfactory
       sureties, or is otherwise discharged.

        Appellant contends that because it surrendered Covington on or around November 13,
2013, it should be released from all conditions of its recognizance. Appellant highlights the
language in subsection (2) that states, “Upon 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 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 defendant 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 involve appellant deciding it no longer wanted to be responsible for
defendant. Rather, the events that precipitated the bond forfeiture are that defendant failed to
show up at sentencing, thereby causing the court to issue a warrant 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 reading of the statute violates the long-
standing principle that “in the interpretation of statutes, effect must be given, if possible, to every
word, sentence and section and, to that end, the entire act must 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 forfeiture simply because
defendant was apprehended at any point in time, then the language in MCL 765.28(3)—
specifically limiting the surety to 56 days in which to secure defendant’s apprehension—
becomes nugatory. As the Michigan 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 trial court properly
found that appellant was not entitled 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 period of one year.” Id. at 342. The
defendant failed to appear, but the surety argued it was no longer liable because the one year had
expired. Id. at 342-343. This Court found that the surety was liable because “any bail bond
provision which calls for the surety’s discharge absent delivery 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.


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        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 bond 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 imposed by any court
       upon a conviction for any criminal offense, nor any fine imposed by any court for
       an actual contempt of such court, or for disobedience of its orders or process.[2]

“Under the statute, a forfeited recognizance bond may be remitted 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 the motion hearing and argued that
paying the bond only to then bring an independent action for remitter would be a waste of
resources. The trial court did not rely on MCL 600.4835 or purport to analyze the statute and
equitable factors.

        In a similar bond forfeiture case, the appellant ostensibly failed 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 precluded 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 forfeiture 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 warranted 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 consider 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 forfeited 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).


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        The trial court in the instant case considered and correctly rejected the applicability of
MCL 765.26 and MCL 765.28. However, in accordance with the Supreme Court’s ruling in
Bray, we vacate the circuit court’s order denying appellant’s motion to set aside the judgment of
forfeiture and remand the case to the trial court for consideration of the motion under MCL
600.4835. We do not retain jurisdiction.

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




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