State v. Ramirez

858 S.E.2d 143 (Table)

STATE of North Carolina v. Jesus Tapia RAMIREZ, Defendant; and Zachary T. Riley, Bail Agent ; and Bankers Insurance Company, Surety; and Moore County Board of Education, Judgment Creditor.

No. COA20-504

Court of Appeals of North Carolina.

Filed June 1, 2021

Brian Elston Law, by Brian D. Elston, and Van Camp, Meacham & Newman, PLLC, by Richard Lee Yelverton, for Surety-Appellant.

Tharrington Smith, LLC, by Stephen G. Rawson and Rod Malone, for Judgment Creditor-Appellee.

INMAN, Judge.

¶ 1 Surety-Appellant Bankers Insurance Company ("Surety") appeals from orders denying its voluntary dismissal and motions to set aside bond forfeitures. On appeal, Surety argues that its voluntary dismissal and payment of the bonds automatically served to extinguish its actions to set aside the forfeitures notwithstanding a pending motion for sanctions under N.C. Gen. Stat. § 15A-544.5(d)(8) filed by Judgment Creditor Moore County Board of Education (the "Board"). Specifically, Surety contends that, because sanctions under the statute are wholly dependent on a denial of a motion to set aside, the Board's motion for sanctions does not constitute affirmative relief barring Surety's unilateral voluntary dismissal. After careful review, and in light of binding precedent, we agree with Surety and reverse the order of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The evidence presented to the trial court and the record tend to show the following:

¶ 3 Defendant Jesus Tapia Ramirez ("Ramirez") was arrested in March 2019 for forcible sex offense. The trial court set bond in the amount of $50,000 and Surety filed an appearance bond for that amount to secure Ramirez's release pretrial. Ramirez was then indicted on a separate charge of indecent liberties with a child and assessed a second secured bond in the amount of $35,000. Surety posted bond for that amount and Ramirez was released pending a hearing on 28 May 2019.

¶ 4 Ramirez failed to appear for his hearing, so the trial court issued an order for his arrest. On 19 June 2019, the trial court issued bond forfeiture notices to Surety to recover the total bond amount of $85,000.

¶ 5 In an effort to find Ramirez, Surety's bail agent, Zachary T. Riley ("Riley") spoke to Ramirez's wife, relatives, and former employers about his possible whereabouts. With the help of a detective in Southern Pines, North Carolina, Riley was able to recover cell data from Ramirez's phone, including data showing Ramirez had last placed a call to a phone number in Mexico. Riley then hired a private investigator in Houston, Texas, to determine whether Ramirez had fled to Mexico.

¶ 6 The investigator eventually met with an individual in Mexico City who provided him with a purported death certificate for Ramirez in exchange for $9,000. The investigator also met with a man who purported to be the doctor named on the death certificate and confirmed Ramirez's death. The investigator then sent Riley several documents allegedly issued by the Mexican government showing Ramirez had died in June of 2019, including: (1) the purported "Mexican United States Civil Registry Death Certificate;" (2) a purported birth certificate from the state of Veracruz for Ramirez corroborating the biographical information on the purported death certificate; and (3) licensing information for the doctor named on the purported death certificate. The investigator also sent Riley a photograph purporting to show Ramirez's gravesite.

¶ 7 Riley provided the documents he received from the investigator to an attorney familiar with Mexican vital records to confirm their legitimacy. Satisfied with the vital documents’ veracity, Riley filed them with motions to set aside the bond forfeitures on behalf of Surety on the ground that Ramirez was deceased.

¶ 8 The Board's attorney responded to Surety's motions by checking the legitimacy of the purported vital records with the Consulate General of Mexico in Raleigh. The Consul General replied to the Board's inquiry with a letter stating that "the death record was not found in the name of [Ramirez], and as for the [death certificate] itself it is a non-valid document." The Board subsequently filed objections to Surety's motions to set aside on 26 November 2019 and filed the Consul General's letter with the trial court.

¶ 9 When Riley received the Board's objections, he again sought to verify whether Ramirez was deceased. Riley's counsel also hired an attorney in Mexico to review the documents and try to locate the originals. That attorney informed Riley's counsel that the "documents seem to [b]e regular" on initial review and that a paralegal would confirm their authenticity by obtaining official copies. After the paralegal unsuccessfully searched several government records offices for Ramirez's death certificate, the attorney in Mexico informed Riley's counsel that the vital documents did not appear to be valid, but that there was still "a small possibility" that the search of Mexico's National Civil Records could reveal a document that was missed in previous searches.

¶ 10 The Board filed a motion for sanctions on 17 January 2020 pursuant to N.C. Gen. Stat. § 15A-544.5(d)(8) for Surety's filing of fraudulent documents. The following month, Surety paid $85,000 to the Moore County Clerk of Court in satisfaction of the forfeiture notices. The Board thereafter amended its motion for sanctions to include a request for sanctions under N.C. Gen. Stat. § 15A-544.5(b)(5) for failure to attach necessary documentation to the motions to set aside. On 13 February 2020, Riley filed a notice of voluntary dismissal of the motions to set aside pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure.

¶ 11 The parties appeared at a hearing on all pending motions on 17 February 2019. At the outset of the hearing, Riley and Surety argued that their voluntary dismissal of their motions to set aside and payment of the bond forfeiture amounts extinguished the action, including the Board's pending motion for sanctions. The Board argued that its motion for sanctions was "a claim for affirmative relief, and [Riley and the Surety] should not be able to dispose of [the Board's] motion for sanctions by filing a voluntary dismissal." The Board also made clear that it was pursuing only statutory sanctions and was "not seeking ... sanctions under Rule 11 [of the North Carolina Rules of Civil Procedure]."

¶ 12 Following arguments of counsel, the trial court determined that the voluntary dismissal was ineffective and proceeded to consider the motions to set aside the bond forfeitures. After hearing the evidence summarized above, the trial court denied the motions. The trial court continued the hearing on the Board's motion for sanctions "to give the parties the opportunity to further investigate and present to the Court, if they so choose, additional evidence." The trial court thereafter entered written orders decreeing the notice of voluntary dismissal ineffective and denying the motions to set aside. Surety appeals.

II. ANALYSIS

¶ 13 Surety argues that its notice of voluntary dismissal under Rule 41(a)(1) and its payment of the bonds automatically extinguished its motions to set aside and the trial court therefore lacked jurisdiction to hear any subsequent motions in the action. The Board asserts the trial court correctly deemed the notice of dismissal ineffective because the statutory sanctions sought by the Board fall within the affirmative relief exception to Rule 41(a)(1). The Board also asserts—for the first time—that the bad faith exception to Rule 41(a)(1) should apply.

¶ 14 Following recent precedent from this Court, we agree with Surety that the statutory sanctions sought by the Board are not independent affirmative relief. We decline to consider the Board's argument concerning the bad faith exception to Rule 41(a)(1) because that argument was not presented to the trial court and neither the trial court's factual findings nor the record conclusively establish that the Surety acted in bad faith. As a result, we hold the trial court lacked jurisdiction to hear any further motions in this action after Surety filed its notice of voluntary dismissal. The trial court's order deeming the notice of voluntary dismissal ineffective is reversed, and the trial court's subsequent orders are vacated for want of jurisdiction.

1. Standard of Review

¶ 15 We review questions of subject matter jurisdiction de novo. McKoy v. McKoy , 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). Issues of statutory interpretation, including those concerning the applicability of Rule 41(a)(1), also present questions of law subject to de novo review. Cole v. N.C. Dep't of Pub. Safety , 253 N.C. App. 270, 274, 800 S.E.2d 708, 711-12 (2017).

2. Affirmative Relief Exception to Rule 41(a)(1)

¶ 16 Rule 41(a)(1) provides, in pertinent part, that "an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case." N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2019). A voluntary dismissal under the Rule is ordinarily "effective upon being filed .... Once a dismissal is requested under (a)(1) no court action is required." Moore v. Pate , 112 N.C. App. 833, 836, 437 S.E.2d 1, 2 (1993). And "[i]t is well settled that a Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except as provided by Rule 41(d), which authorizes the court to enter specific orders apportioning and taxing costs." Brisson v. Kathy A. Santoriello, M.D., P.A. , 351 N.C. 589, 593, 528 S.E.2d 568, 570 (2000) (cleaned up) (quoting Walker Frames v. Shively , 123 N.C. App. 643, 646, 473 S.E.2d 776, 778 (1996) ). In short, "[a]fter a plaintiff takes a Rule 41(a) dismissal, ... the court has no role to play." Id. (cleaned up) (quoting Universidad Central Del Caribe, Inc., v. Liaison Comm. On Med. Educ. , 760 F.2d 14, 18 n.4...