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COA: surety agency's lack of timely action justifies fines

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The Indiana Court of Appeals has affirmed a trial court’s determination that a surety agency failed to comply with Indiana Code and is therefore liable for a deceased man’s bond.

On April 25, 2007, the state charged Manual Gaeta with eight counts of dealing in methamphetamine and one count of conspiracy to commit dealing in methamphetamine, each as a Class A felony, and set his bond at $500,000 surety. Two days later, the trial court reduced the bond to $250,000 surety. On May 7, 2007, Roche Surety & Casualty filed a surety bond in that amount guaranteeing Gaeta’s future appearances in court, and Gaeta was released on bond.
 
In February 2008, the trial court received information that Gaeta had fled to Mexico and issued an order for him to appear on Feb. 15. He failed to appear, and on Feb. 25, the court issued a warrant for his arrest and ordered Roche Surety to produce Gaeta, pursuant to Indiana Code section 27-10-2-12(a).

In Mauel Gaeta; Roche Surety & Casualty v. State of Indiana, No. 79A02-1011-CR-1196, Roche Surety appeals the trial court’s determination that it failed to comply with subsection (b) of Indiana Code section 27-10-2-12, claiming the court had misinterpreted the code.
 
Roche Surety claims the trial court’s decision, which cited Johnson v. State, 567 N.E.2d 146 (Ind. Ct. App. 1991), was incorrect because Johnson was decided before the statute was amended to its current version. The previous version of the code did not contain the language “within … 365 days.” Roche argued that amended code language in subsection (b) means it had 365 days to prove that the defendant’s appearance was prevented before incurring any penalty. The COA disagreed with Roche Surety’s claim.

The appeals court wrote that in Johnson, it held that compliance with subsection (b) applies to when the defendant is produced, or when proof of his inability to appear is made. It does not apply to the timing of the event that prevented his appearance. Therefore, in Gaeta, the appeals court held that the trial court had correctly interpreted the date that the bondsmen proved the client’s inability to appear, and accordingly correctly assessed the late-surrender fee.

Per Indiana code, the appeals court wrote, Roche Surety had a 120-day grace period to either produce the defendant or explain why he had not appeared in court. That grace period expired on June 24, 2008.

On Feb. 23, 2009, 364 days after notice was given, Roche Surety filed its motion of compliance, which stated that Gaeta was terminally ill and located in Mexico and that he was unable to travel. Attached to this motion were medical records dated Jan. 25, 2009, detailing Gaeta’s illness. Also attached was an affidavit from the recovery agent, stating she was retained by Roche Surety on July 16, 2008, and that, although she searched for Gaeta in numerous places in Mexico, she had only found him on Dec. 29, 2008. The appeals court wrote that hiring the recovery agent is the first evidence that Roche Surety had attempted to find Gaeta and that no information existed to show that it  had attempted to ask Gaeta’s family – who lived in Indiana – about his whereabouts.

Medical records that show Gaeta was admitted to a hospital in Mexico in April 2008 do not prove that his failure to appear in February 2008 was prevented by illness.
 
The appeals court therefore concluded that Roche Surety did not comply with Indiana Code section 27-10-2-12(b) within 365 days as required by subsection (d).
 
On cross-appeal, the state asserted that, because Roche Surety failed to comply with subsection (b)(2) within 365 days, Roche Surety is liable for the 80 percent late-surrender fee and forfeiture of 20 percent of the face value of the bond, pursuant to subsection (d). The appeals court agreed and remanded to the trial court with instructions to enter judgment consistent with its opinion.

Gaeta died in August 2009.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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