            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS



In re FORFEITURE OF BAIL BOND.


 PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                     February 11, 2020
                Plaintiff-Appellee,

 v                                                                   No. 346748
                                                                     Clinton Circuit Court
 DEVAUGHN JORDAN PRUITT,                                             LC No. 2016-009647-FH

                Defendant,

 and

 LEO’S BAIL BONDS AGENCY COMPANY,
 INC., as Agent in Fact of ROCHE SURETY AND
 CASUALTY COMPANY,

                Appellant.


Before: BOONSTRA, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

       Appellant, Leo’s Bail Bonds, as agent in fact of Roche Surety and Casualty Company,
appeals as of right the circuit court’s order enforcing an earlier judgment on a bond in the amount
of $10,000 against Leo’s Bail Bonds. We reverse and remand for further proceedings.

                          I. FACTS AND PROCEDURAL HISTORY

        DeVaughn Jordan Pruitt was charged with one count of possession of counterfeit notes
with intent to utter, MCL 750.252. Pruitt posted a $10,000 bond, which was executed by Leo’s
Bail Bonds. Pruitt failed to appear for hearings held on September 6, 2016, and September 7,
2016. In orders dated September 19, 2016, and entered on September 21, 2016, the circuit court
issued a bench warrant for Pruitt’s arrest, revoked Pruitt’s bond, and ordered the bond forfeited.


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These orders were mailed to Leo’s Bail Bonds the day they were entered and received soon
thereafter. The circuit court held a show-cause hearing on October 17, 2016. Leo’s Bail Bonds
was aware of this hearing but did not appear. On October 17, 2016, the circuit court entered a
judgment in the amount of $10,000 on the bond. This judgment went unpaid for about two years.
Pruitt was apprehended in 2018, at which point the prosecutor apparently realized that the 2016
judgment was never paid. On October 2, 2018, the prosecutor filed a motion seeking to enforce
the 2016 judgment. The motion asked that Leo’s Bail Bonds be ordered to pay the judgment or
that the court hold Leo’s Bail Bonds in contempt for failing to pay the earlier judgment.

         Leo’s Bail Bonds answered the motion by contending that pursuant to MCL 765.28(1), the
circuit court was required to provide it with notice that Pruitt failed to appear within seven days of
his nonappearance. Leo’s Bail Bonds explained that notice was not provided by the trial court
until the court entered and mailed its September 19, 2016 orders on September 21, 2016. That was
approximately two weeks after Pruitt’s nonappearance on September 6 and 7, and thus, the circuit
court failed to comply with MCL 765.28(1). Leo’s Bail Bonds argued that this failure rendered
the judgment unenforceable. Leo’s Bail Bonds also argued that the circuit court had no authority
to hold a bond surety in contempt. The circuit court disagreed; it ordered that Leo’s Bail Bonds
pay the judgment within three days or face the possibility of contempt proceedings. This appeal
followed.

                                          II. DISCUSSION

                                        A. JURISDICTION

        As a preliminary matter, we must first address this Court’s jurisdiction over the claim of
appeal filed in this matter. This Court has jurisdiction over a claim of appeal filed from a “final
judgment or final order of the circuit court . . . as defined in MCR 7.202(6) . . . .” MCR
7.203(A)(1). According to Leo’s Bail Bonds, this Court’s jurisdiction over this claim of appeal
stems from MCR 7.202(6)(a)(i), which defines as a final order “the first judgment or order that
disposes of all the claims and adjudicates the rights and liabilities of all the parties, including such
an order entered after reversal of an earlier final judgment or order[.]” (emphasis added). The
October 17, 2016 judgment on the bond meets this definition; it was the first judgment adjudicating
the liability of Leo’s Bail Bonds with respect to the bond. But Leo’s Bail Bonds did not appeal
that order. Rather, the order purportedly appealed from is one deciding a postjudgment motion to
enforce the October 17, 2016 judgment. If anything, it is the second order disposing of all the
claims and adjudicating the rights of all the parties, and is not appealable as of right. See Allied
Electric Supply Co v Tenaglia, 461 Mich 285; 602 NW2d 572 (1999) (explaining that a default
judgment is the final judgment appealable as of right, and that a later order denying a motion to
set aside that default judgment is not a final judgment appealable as of right).

        Pursuant to MCR 7.204(A)(1)(b), Leo’s Bail Bonds could have filed a claim of appeal from
the October 17, 2016 judgment if it had filed the claim within 21 days after entry of “an order
deciding a motion . . . for other relief from” the October 17, 2016 judgment. But the order appealed
in this case does not seek relief from the 2016 judgment; rather, the order appealed in this case
was a motion to enforce the 2016 judgment. Further, MCR 7.204(A)(1)(b) applies only if the
motion for relief from a judgment or order was brought within 21 days of the judgment or order
being challenged, “or within further time the trial court has allowed for good cause during that 21-

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day period[.]” Even construing the prosecutor’s motion as one seeking “relief from” the
underlying judgment, it was clearly not brought within 21 days of entry of the judgment, and as
such, would not allow this Court to reach back to the 2016 judgment. Leo’s Bail Bonds thus had
no right to claim an appeal in this matter, and as such, this Court lacks jurisdiction over the claim
of appeal that was filed. However, as this Court has done in the past, see, e.g., Waatti & Sons
Electric Co v Dehko, 230 Mich App 582, 585; 584 NW2d 372 (1998), we exercise our discretion
to rectify this defect by treating the claim of appeal as an application for leave to appeal and
granting it.

                                B. NOTICE UNDER MCL 765.28

       The first question posed on appeal is whether the circuit court could enforce its 2016
judgment even though it did not comply with the notice requirement of MCL 765.28. We agree
with Leo’s Bail Bonds, and hold that the circuit court had no authority to compel payment in this
case. “Questions of statutory interpretation are questions of law that are reviewed de novo.” In re
Bail Bond Forfeiture (People v Stanford), 318 Mich App 330, 334; 898 NW2d 226 (2016).

       We begin with the language of MCL 765.28 applicable in 2016, when Pruitt absconded,
his bond was forfeited, and a judgment was entered on the bond. At that time MCL 765.28
provided in relevant part:

       (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. [MCL 765.28, as enacted by 2004 PA 332
       (emphasis added).]

        In In re Forfeiture of Bail Bond (In re Gaston), 496 Mich 320; 852 NW2d 747 (2014), our
Supreme Court concluded that the term “shall” established a mandatory directive that trial courts
provide the notice required by the statute. Id. at 325-335. The Court further concluded that the
remedy for a court’s failure to provide the required notice was that the court could not “require the
surety to pay the surety bond . . . .” Id. at 336.

       At the time Pruitt failed to appear, the version of MCL 765.28(1) in effect was that enacted
by 2004 PA 332—the same statutory language which was at issue in Gaston. Thus, it cannot be
disputed that if the circuit court failed to provide Leo’s Bail Bonds notice of Pruitt’s default within

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seven days as was required by MCL 765.28(1), the circuit court was without authority to compel
Leo’s Bail Bonds to pay the bond. Gaston, 496 Mich at 325-336. The default that led to forfeiture
of Pruitt’s bond occurred on September 7, 2016. There is no evidence that the circuit court notified
anyone of the default within the following seven days. Rather, the record shows that the circuit
court first provided notice of the default when it mailed three orders to Leo’s Bail Bonds in an
envelope bearing a postmark of September 21, 2016. Simply put, the circuit court’s notice was
not timely, and thus under Gaston the circuit court was without authority to require payment on
the bond.

        However, the procedure of the present matter is somewhat different from that in Gaston.
In Gaston, the defendant failed to appear at a February 7, 2008 conference. Gaston, 496 Mich at
324. But it was not until three years later, on February 8, 2011, that the trial court notified the
surety that it was to appear at a show-cause hearing to demonstrate why a judgment on the bond
should not enter. Id. In response to this notice, the surety filed a motion to set aside the bond
forfeiture based on a lack of timely notice of the default under MCL 765.28(1). The trial court
denied the motion and entered a judgment. Gaston, 496 Mich at 324. Thus, in Gaston, the surety
contested payment before the judgment on the bond was entered, and appealed directly from the
circuit court’s judgment on the bond.

        In the present case, it is undisputed that Leo’s Bail Bonds had notice from the circuit court
of Pruitt’s default soon after September 21, 2016, when the circuit court’s orders were mailed to
Leo’s Bail Bonds. Further, Leo’s Bail Bonds was on notice of the show-cause hearing set for
October 17, 2016. But it nevertheless failed to appear at the hearing and a judgment entered. Some
two years later, Leo’s Bail Bonds has now essentially sought to have that judgment set aside. Thus,
unlike Gaston, where the surety raised the lack of notice in an attempt to prevent entry of a
judgment on the bond, here Leo’s Bail Bonds attempts to have the judgment declared a nullity two
years after it was entered.

        This Court has addressed a somewhat similar fact pattern—also involving a bond provided
by Leo’s Bail Bonds—in Stanford. In Stanford, Leo’s Bail Bonds, as agent for Roche, provided a
bond to Antoine Stanford in the amount of $10,000. Stanford, 318 Mich App at 332. Stanford
failed to appear at a pretrial hearing and thus defaulted on the bond on January 14, 2015. Id. “On
January 20, 2015, the circuit court issued an order revoking [Stanford]’s release and forfeiting the
bond. The court served notice to appellant via first-class mail.” Id. at 332-333. A certificate of
mailing indicated that the notice was served on January 21, 2015, the seventh day after Stanford’s
default. Id. at 333. But the notice was postmarked January 22, 2015, the eighth day after the
default. Id. Further, the notice was not received in the mail until January 23, 2015. Id.

        Just as in the present matter, Leo’s Bail Bonds failed to appear at a show-cause hearing
held on February 20, 2015. Stanford, 318 Mich App at 333. The circuit court entered a judgment
on the bond for $10,000 on February 24, 2015. Id. The court later notified Leo’s Bail Bonds that
a 20% late fee had been added. Id. Only after receiving that notice did Leo’s Bail Bonds move
“to vacate the judgment of bond forfeiture, arguing that notice was not provided within seven days
of [Stanford]’s default as required by MCL 765.28(1) and therefore was untimely.” Stanford, 318
Mich App at 333. The motion was denied; the circuit court reasoned that the notice was served on
January 21, 2015, and that pursuant to MCR 3.604(I)(2), the date of mailing was the date of service.
Stanford, 318 Mich App at 333-334. The circuit court further held that MCR 3.604(I)(2) and MCL

                                                -4-
765.28(1) were in conflict regarding “ ‘the procedural requirements for service’ and that the court
rule was controlling over the statute.” Stanford, 318 Mich App at 334.

        This Court reversed. This Court first explained that the court rule and statute were not in
conflict. Stanford, 318 Mich App at 335. This was because MCL 765.28(1) set forth the procedure
for providing notice to a surety of a default, while MCR 3.604(I)(2) mandated the procedure for
providing notice of the hearing on a motion for judgment. Id. This Court also explained that if
there was any conflict, it would be resolved by MCR 3.604(A), which provides that MCR 3.604
applies unless a rule or statute clearly states that a different procedure should be followed. Id.
This Court then explained that the circuit court had failed to provide notice of the defendant’s
default within seven days; rather, notice was “not even mail[ed]” by the circuit court until the
eighth day after the default. Id. at 335-336. This Court relied on Gaston to conclude that the
remedy for violation of the notice statute was that the circuit court could not require the surety to
pay the bond. Id. at 336-337. Thus, the upshot of Stanford is that even if the surety waits until
after the judgment is entered to raise a challenge to the receipt of notice under MCL 765.28(1), the
remedy is the same as in Gaston: the court cannot compel payment on the bond.

       The circuit court’s failure to timely notify Leo’s Bail Bonds of Pruitt’s default means that
the court could not demand payment on the bond. Gaston, 496 Mich at 336; Stanford, 318 Mich
App at 336-337. Despite the fact that Leo’s Bail Bonds waited for two years after the judgment
on the bond was entered to challenge the judgment, we are bound by Stanford to hold that the
judgment cannot be enforced. As this Court stated in Stanford, “the court failed to give the surety
immediate notice within seven days; therefore, the court cannot require the surety to pay the surety
bond.” Stanford, 318 Mich App at 337.

                                          C. CONTEMPT

         Leo’s Bail Bonds asks this Court to hold that the circuit court lacks the authority to hold it
in contempt. Given our conclusion that the judgment on the bond cannot be enforced, we need not
reach this issue. The only reason Leo’s Bail Bonds might face contempt proceedings would be if
it failed to pay an enforceable judgment. As the judgment cannot be enforced, the circuit court
has no basis for holding Leo’s Bail Bonds in contempt.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                               /s/ Mark T. Boonstra
                                                               /s/ Jonathan Tukel
                                                               /s/ Anica Letica




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