STATE оf Oklahoma, Plaintiff/Appellee, v. Pablo TORRES, Defendant, and Ranger Insurance Company, Intervenor/Appellant
No. 96,996
Supreme Court of Oklahoma
Feb. 24, 2004
2004 OK 12
OPALA, V.C.J.
IV
SUMMARY
¶ 18 This case was incorrectly decided by summary process. That process was inappropriately applied. Full-scale inquiry into MAA‘s status vis-a-vis the County is required to determine whether MAA may be held liable in bad-faith tort. No court can decide, on this record, whether MAA served as a non-employee agent for the County or as an insurer-hired independent contractor performing well-defined core functions of an insurer. Because the conduct of the contracting parties (MAA and the County), one toward the other, has not been inquired into, no conclusion may be drawn at this stage as to the Administrator‘s liability.
¶ 19 If MAA was a non-employee agent, it may be liable in tort to the same extent as its principal (the County). If MAA was in fact an insurer-hired independent contractor performing a well-defined core function of the insurer (County), MAA may also be declared liable qua insurer.
¶ 20 There is no extant state jurisprudence supporting the notion foisted here today that for imposition of bad-faith liability, if the insurer‘s claims management function is handled by a third party, the third party must also stand vis-a-vis the insured in an insurer/insured relationship. Extant precedent requires no more than that an insurer/insured relation subsist solely between the plaintiff and the policy-issuing entity for the covered claim. If the court intends to now abandon or abrogate its Christian progeny, its opinion should clearly and explicitly state so. If that is not its intention, it ought not leave the bad-faith tort in a hopelessly chaotic aftermath. An explanation is due on how an insured may proceed when the bad-faith refusal to settle is occasioned directly by the insurer‘s (non-employee) human or corporate agency or by its independent hiree assigned the task of management, adjustment and settlement of losses.
¶ 21 I would reverse the trial court‘s summary exoneration of MAA and remand the cause for further proceedings to be conducted in a manner fully consistent with a piercing analytical inquiry urged by this dissent for post-remand proceedings.
Creating a single exemption from the respondeat superior liability class would similarly fall under the axe of a special-law condemnation. Our own jurisprudеnce, no less than the Legislature‘s enactments, must faithfully conform to the state fundamental law‘s interdiction of disuniform laws on prohibited subjects. Johnson v. Tony‘s Town Mister Quik, 1996 OK 138, ¶ 5, n. 10, 915 P.2d 355, 357-58; Haynes v. Tulsa Public Schools Transit, 1994 OK 86, ¶ 15, 879 P.2d 128, 131 (Opala, J., concurring); Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶ 2, 846 P.2d 1088, 1095-96 (Opala, J., concurring).
Fred Morgan, Assistant District Attorney for Tulsa County, Tulsa, OK, for Plaintiff/Appellee, the State of Oklahoma.2
OPALA, V.C.J.
¶ 1 The dispositive issues tendered on certiorari are: (1) Is appellant entitled to corrective relief from a bond forfeiture on grounds arising out of postjudgment events? and (2) Is there competent evidence in the appellate record to demonstrate that the trial court abused its discretion when it denied relief from the bond forfeiture? We answer both questions in the negative.
I
ANATOMY OF LITIGATION
¶ 2 On 11 September 2000, Pablo Torres (defendant) was charged in the District Court, Tulsa County, with the crime of rape by instrumentation. Thomas Bouldin, a licensed bondsman (bondsman), and Ranger Insurance Company (appellant), a corporate surety, executed a $50,000.00 bail bond to secure defendant‘s appearance. Defendant failed to appear for trial on 7 March 2001 and the trial court entered an order and judgment of bond forfeiture. The statutory notice of forfeiture was mailed within the time prescribed by statute.3 The bond forfeiture obligation came due on 21 June 2001.4
¶ 3 Without having paid the forfeiture judgment and while defendant remained at large, bondsman moved on 27 August 2001 to set the forfeiture aside,5 arguing that a lack of diligence on the part of the Tulsa County District Attorney‘s office had prevented him from returning defendant to custody.6
¶ 4 A hearing on the motion to set aside the bond forfeiture was held on 14 September 2001. The motion was denied and the trial court ordered that the penalty on the bond be paid by the close of that day‘s business.
¶ 5 Appellant appealed, arguing that in refusing to vаcate the bond forfeiture the trial judge abused the discretion granted him by the provisions of
II
APPELLANT‘S QUEST FOR CORRECTIVE RELIEF PURSUANT TO THE PROVISIONS OF 59 O.S.2001 § 1327(C) IS NOT SUPPORTED BY THE RECORD SUBMITTED FOR APPELLATE REVIEW
¶ 6 The provisions of
¶ 7 Appellant‘s invocation of the provisions of
¶ 8 The trial court never had an opportunity to consider in this case whether appellant is entitled to relief under
¶ 9 The remedy to be pursued under these circumstances was for appellant to seek in the trial court postjudgment relief affordable by multiple statutory proceedings.17 Had appellant chosen the correct course, we in all likelihood would have agreed to a stay of appellate proceedings pending the trial court‘s ruling.18 If appellant had met with an adverse ruling from the trial court, it could have appealed from that ruling and moved here to consolidate the two related appeals.19 Instead, appellant chose for the corrective relief it seeks here a fatally flawed procedural course.20
III
STANDARD OF REVIEW
¶ 10 The sole contention tendered by appellant which is reviewable on certiorari is whether the trial court abused its discretion in denying bondsman‘s motion to set aside the bond forfeiture. The decision whether to vacate a bond forfeiture is reviewable by the standard of reasonable discretion. It will not be disturbed absent an abuse of discretion.21 We have characterized the abuse-of-discretion standard by a variety of similar expressions. We have said that discretion is abused when a trial court makes a clearly erronеous conclusion and judgment contrary to reason and evidence,22 when it exercises its discretion to an end or purpose not justified by, and clearly contrary to, rea-
IV
APPELLANT FAILED TO INTRODUCE COMPETENT EVIDENCE AT THE TIME OF NISI PRIUS HEARING THAT IT WAS ENTITLED TO HAVE THE BOND FORFEITURE SET ASIDE; THERE IS HENCE NOTHING IN THE APPELLATE RECORD FROM WHICH THIS COURT CAN DETERMINE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT THE RELIEF IT SOUGHT
¶ 11 The provisions of
¶ 12 At the hearing on bondsman‘s motion, appellant‘s counsel provided for the nisi prius court a running narration of the facts supportive of the relief requested, but offered neither sworn testimony nor other evidence having probative value. Counsel‘s in-court description of the efforts made by bondsman to gain custody of defendant and of the conduct of the district attorney‘s office that allegedly hindered those efforts cannot serve as a substitute for legal proof.
¶ 13 Appellant designated for inclusion in the appellate record certain documents from the court file in defendant‘s criminal case. Again, none of these documents was introduced into evidence.27 No request was made by appellant for the trial court to take judicial notice of any of these documents and the trial judge did not indicate that he was taking judicial notice of any of them.28 As for this court, we cannot notice material which, though arguably available for notice by the trial court and designated for incorporation into the record on appeal, did not function below as proof of critical allegations. Moreover, to the extent that the court file‘s contents contain statements which pertain to matters in dispute, or which constitute hearsay, or which would otherwise be inadmissible in evidence, they would not have been proper subjects for judicial notice had appellant requested that the trial court take that action.29
¶ 15 Even if we were to treat the documents included in the appellate record as effective evidence, we could not hold that the trial court abused its discretion in concluding that appellant failed to meet the requisite burden of proof. The official documents in the appellate record include the document charging defendant with a crime, defendant‘s appearance bond, the order and judgment of bond forfeiture, the bondsman‘s guarantee to pay reasonable transportation costs,33 a bench warrant for defendant‘s arrest, and a copy of the notice to the Oklahoma Insurance Commissioner of the bondsman‘s non-payment of bond forfeiture. None of these documents addresses the reasons appellant could not timely return defendant to custody nor do they deal with the actions of the district attorney‘s office in response to the bondsman‘s request for assistance with the federal warrant.
¶ 16 In addition to the official documents, the court file also contains copies of two letters. One letter, dated 30 April 2001, purports to be from the aunt of defendant‘s wife and is addressed to the bondsman. In it the aunt states that she has spoken by telephone to the defendant in Mexico. At best, this letter might be regarded as showing that sometime after the date the letter was written, the bondsman received information (of unknown reliability) that defendant was residing in a certain Mexican city. It does not provide evidence relating to the bondsman‘s efforts to return the defendant to custody nor of the district attorney‘s lack of cooperation in facilitating those efforts.
¶ 17 The other letter purports to be from the bondsman to the Tulsa County District Attorney. It is dated 24 April 2001. In it the author asks the state prosecutor to request a federal warrant for defendant‘s arrest. This letter is the only documentation in the appellate record of the bondsman‘s efforts to garner the assistance of the district attorney‘s office. Even if this letter had been properly offered and admitted into evidence, it would not have been sufficient to persuade us that the trial court erred in its assessment of the proof.
V
THE COURT‘S RESPONSE TO THE DISSENT‘S CRITIQUE
¶ 19 The dissent would have us hold today that the discretion given a trial court to vacate a forfeiture order is abused and good cause for vacation is shown within the meaning of
¶ 20 The bondsman‘s role in the appearance bond process is to provide security for the appearance of the defendant as ordered by the court.35 When a defendant fails to appear as ordered, the Oklahoma statutes authorize thе court to declare a forfeiture of the appearance bond.36 The bondsman is then given a ninety-day grace period in which he or she can return the defendant to custody and obtain vacation of the forfeiture as a matter of course.37 After the ninety-day grace period has expired, the trial court retains discretion to vacate the bond forfeiture under the provisions of
¶ 21 The court‘s first opportunity to construe the parameters of the discretion conferred upon the trial court by the 1995 amendment to
(a) whether the defendant has been returned to custody and, if so, whethеr the bondsman‘s efforts assisted in the defendant‘s return;
(b) the nature and extent of the bondsman‘s efforts to locate and return the defendant to custody;
(c) the length of the delay caused by the defendant‘s non-appearance;
(d) the cost and inconvenience to the government in regaining custody of the defendant;
(e) the stage of the proceedings at the time of defendant‘s non-appearance; and
(f) the public interest and necessity of effectuating defendant‘s appearance.
We said in Vaughn that this list is illustrative and not exhaustive, that no single factor alone is determinative, and that the relative importance of each factor is for the trial judge to determine inasmuch as it may vary from case to case.42 In applying these factors, it must always be borne in mind that the burden of showing facts warranting relief from forfeiture is on the party seeking such relief.43
¶ 22 In Vaughn, the evidence established that the bondsman had hired bounty hunters who conducted searches in three states and that the bondsman had expended approximately $50,000.00 trying to locate the defendant. The bondsman argued that this evidence established that he had exercised due diligence and that a showing of due diligence was sufficient to satisfy the good cause requirement of
¶ 23 The dissenting members of the court would have us reverse the trial court‘s order based on what they consider sufficient credible evidence of one of the factors prescribed by Vaughn—that the bondsman exhausted all legal steps to locate and return the defendant to custody. We said in Vaughn that no single factor alone should be determinative. That principle clearly guided our decision in Vaughn, in which we held that efforts alone, even when substantial and costly, are not sufficient to justify reversal of the trial court‘s decision. The dissenters disapprove of the nature and scope of the proof we prescribed in Vaughn as necessary to establish good cause under the provisions of
¶ 24 Piecing together the documents in the court file46 and the statements, admissions, and comments given evidentiary status by
¶ 25 Appellant alleges that the bondsman pursued his request for assistance on more than one occasion, but there is no record support for this contention. The district attorney‘s office did not admit to any specific conversations with the bоndsman, but conceded only that it received a request for assistance. Appellant alleged that he contacted American and Mexican officials in his effort to determine the proper way to proceed in Mexico to apprehend defendant. Again, no record support for this allegation exists. Every allegation made by appellant in the motion to set aside the forfeiture or in oral argument cannot be taken as true in the absence of some form of proof simply because the allegation was not specifically contested by the district attorney‘s office.
¶ 26 The efforts made by the bondsman in this case with respect to which we can view at least some supporting documentation or with respect to which we have some admission from the district attorney‘s office do not compare to the nature and extent of the efforts the bondsman made in Vaughn, which we did not believe justified reversal of the trial court‘s decision in that case. Moreover, a recapitulation of the other factors enunciated in Vaughn fails to provide any alternative basis for holding that appellant met its burden of proof.47
¶ 27 In conjunction with their rejection of Vaughn‘s multi-factor analysis, the dissenters justify their departure from thаt decision by pointing to the trial court‘s suggestion at the motion hearing that illegal measures to secure defendant‘s custody might have proved more fruitful than the legal route pursued by the bondsman. We detect here a concern that the judge may not have carefully and dispassionately examined the evidence. We have examined the trial court‘s order and see no indication that he failed to consider that which appellant presented (regardless of its status as admissible forensic evidence) or that his decision rested on a conviction that only an illegal act would have been acceptable evidence of good cause.48 In fact the trial court‘s order reflects factual findings very similar to those facts gleaned by the dissenters from their various sources, but the trial court‘s conclusion, unlike that of the dissent, is consistent with the controlling decision of this court in Vaughn. Nothing in the dissent‘s critique demonstrates that the trial court‘s decision was contrary to the dictates of reason and evidence.
¶ 28 We turn now briefly to the dissent‘s recitation of what “can be gleaned from statements and admission of counsel, the hearing transcript, comments of the trial judge and from the written order.” The dissent lists four “facts” that it says fall into this category based on which it wоuld hold
¶ 29 As a preliminary matter, we cannot agree with the dissent that our jurisprudence sanctions the substitution of statements of counsel without qualification, a hearing transcript, comments of the trial judge, and the written order for actual forensic evidence. We agree that stipulations of fact and admissions may serve as evidentiary substitutes that dispense with the need for proof of the conceded facts,50 but reiterate that unsworn statements, whether made by a forensic advocate or by the trial judge, do not constitute evidence.51 Additionally, the dissent‘s contention that the failure to contest a material fact may operate to cure an otherwise deficient record has no application in the context of a motion to vacate a bond forfeiture.52
After receiving information from the bondsman that the defendant had fled to Mexico the Tulsa County District Attorney requested that the United States Attorney file a federal charge of Uniform Flight to Avoid Prosecution which was filed.
The assistant district attorney had not previously made this admission during oral argument nor did his appellate brief repeat it, but we agree that, having made it in his response to the Petition in Error, he is bound by it. Yet it admits nothing more than that the district attorney‘s office received information from the bondsman and, after receiving the information, acted on it. It neither states nor fairly implies that the district attorney’ office was dilatory or in any way impeded the bondsman‘s efforts to return the defendant to custody. In order to determine that we would have to know much more than is contained in this meager admission. For example, we would have to know when the bondsman provided the information to the district attorney‘s office and when in relation to receiving the information the district attorney‘s office aсted on it. From this admission we do not even know whether the district attorney‘s office received the bondsman‘s request in time to act on it before the ninety-day grace period expired, or whether the district attorney‘s office received more than a single request for assistance from the bondsman, or whether any of the Vaughn factors were met by the bondsman.
¶ 31 We turn now to discuss just a couple of the specific “facts” gleaned by the dissent and explain why we must remain unpersuaded that the trial court abused its discretion in refusing to vacate the forfeiture order. The dissent states that the bondsman got notice of defendant‘s whereabouts from his children‘s great aunt.53 Indeed, the court file contains a letter dated 30 April 2001 from someone identifying herself as the defendant‘s wife‘s aunt, the children‘s great aunt. We have no idea if the letter was actually sent on that day or whether it was sent a week later or even a month later. The letter displays what appears to be a fax notation at the top dated 30 April, but there is nothing in the record explaining the significance of that notation. The letter is physically attached to another letter bearing the date 24 April with no explanation of how a letter dated 30 April came to be attached to a letter bearing a date a week earlier. There is also no evidence to indicate when the letter was received by the bondsman. Perhaps he received it on 30 April in fax form, perhaps not. Perhaps he received it in early May, perhaps not. This is important because the bondsman cannot have told the district attorney where the defendant was until the bondsman acquired that information himself.
¶ 32 The dissent finds that it was only after the bondsman learned of defendant‘s whereabouts from the great aunt‘s 30 April letter that he requested assistance from the district attorney‘s office. Yet the letter requesting assistance is dated prior to the letter from the children‘s great-aunt providing information on defendant‘s location. The facts as set out by the dissent simply do not hold together. Perhaps the bondsman sub-
¶ 33 Let us look at another problem with the dissent‘s proposed finding that the bondsman got notice of defendant‘s whereabouts from the children‘s great aunt. If that is true, then he determined defendant‘s location on or after 30 April 2001. Yet in the motion to set aside the bond forfeiture and again in appellant‘s brief on appeal, counsel states that the bondsman located the defendant within one week of his failure to appear. By our reckoning, that would be approximately 14 March 2001, six weeks before the great-aunt‘s letter was written. Adding still more confusion, appellant‘s counsel stated at the hearing that the bondsman learned of defendant‘s whereabouts from the great-aunt‘s letter of 30 April—as the dissent agrees. We could speculate that what really happened is that the bondsman learned that defendant was in Mexico within a week of his non-appearance, but that he only learned his precise location from the 30 April letter. If that is the case, then we would point out the obvious—that Mexico is a big country, and we do not know whether it would have been reasonable or even possible for the district attorney to request a federal warrant based on the bondsman‘s belief that the defendant was in Mexico without knowing where in Mexico he was.
¶ 34 These and other problems might have been resolved in appellant‘s favor had appellant simply offered evidence to prove its allegations. As we said earlier in this opinion, appellant presented a facially plausible argument for the forfeiture‘s vacation. We simply cannot agree with the dissent that sufficient facts can be gleaned from admissions and offhand comments to justify dispensing with formal proof and to conclude that the trial court‘s order resulted from abused discretion.
VI
SUMMARY
¶ 35 Appellant sought review of the trial court‘s denial of bondsman‘s motion to set aside a bond forfeiture. It raised an issue of public law which cannot be addressed because of a fatal procedural infirmity in its presentation before this court. Review also was sought of the trial court‘s exercise of discretion in refusing to vacate the bond forfeiture. From the record submitted for our review, we are unable to say that the trial court abused its discretion or that its order, which was not overcome by competent proof of any error in the proceeding, is not entitled to a presumption of correctness.
¶ 36 THE COURT OF CIVIL APPEALS’ OPINION IS VACATED; THE TRIAL COURT‘S ORDER IS AFFIRMED.
¶ 37 OPALA, V.C.J., LAVENDER, HARGRAVE, BOUDREAU and EDMONDSON, JJ., concur;
¶ 38 WATT, C.J., KAUGER and WINCHESTER, JJ., dissent;
¶ 39 HODGES, J., disqualified.
KAUGER, J., with whom WATT, C.J. joins, dissenting.
¶ 1 I agree with the majority that we may not, at this stage of the appellate proceedings, take notice of and make a determination of fact on whether the defendant, Pablo Torres (Torres), has been returned to custody and whether, consequently, Thomas Bouldin (bondsman) or the intervenor/appellant, Ranger Insurance Company (surety), may be entitled to have the bond forfeiture set aside on that basis.1 Nevertheless, because the
I.
¶ 2 SUFFICIENT FACTS MAY BE GLEANED FROM THE STATEMENTS AND ADMISSION OF COUNSEL, THE HEARING TRANSCRIPT, COMMENTS OF THE TRIAL JUDGE AND FROM THE WRITTEN ORDER REFUSING TO SET ASIDE THE FORFEITURE TO SUPPORT A FINDING OF GOOD CAUSE FOR FAILURE TO RETURN THE DEFENDANT TO CUSTODY PURSUANT TO 59 O.S. SUPP.2002 § 1332(C)(5).
¶ 3 Title
¶ 4 Admissions of one‘s attorney in the line of duty are generally binding.3 Schedule A of the response to the petition in error, filed on November 26, 2001, submitted by the Tulsa County Assistant District Attorney provides in pertinent part:
“... After receiving information from the bondsman that the defendant had fled to Mexico the Tulsa County District Attorney requested that the United States Attorney file a federal charge of Uniform Flight to Avoid Prosecution which was filed. A decision to make such a request is discretionary with the District Attorney and the filing of such a charge is discretionary with the United States Attorney....”
By making this statement in a pleading filed before this Court, the Assistant District Attorney essentially admits the bondsman requested his office to contact the United States Attorney for assistance in returning Torres to Oklahoma through the filing of a federal charge of Uniform Flight to Avoid Prosecution.
¶ 5 When parties are regularly before a trial court and their respective attorneys make formal arguments, those arguments may be sufficient to sustain or reverse a judgment even without the introduction of evidence to support agreements and admissions.4 Additionally, the failure to contest
¶ 6 The Assistant District Attorney did not contest the fact that the bondsman asked for assistance from his office in requesting issuance of the federal warrant. Rather, in argument at the hearing to set aside the bond forfeiture on September 14, 2001, the Assistant District Attorney referred to the federal warrant and to the fact that it may not have been issued in a timely manner.7
¶ 7 When the trial court clearly takes cognizance of an item, although not officially entered into the appellate record, this Court will do likewise.8 The bondsman‘s assertion—that notice of Torres’ exact whereabouts came from a letter dated April 30, 2001, and written by Torres’ children‘s great aunt—is supported by a letter which the trial court acknowledged.9
¶ 8 Facts not disputed by the record must be regarded as supporting the trial court‘s judgment.10 However, where not impeached or contradicted, recitals of the trial court‘s judgment are presumed to be true and correct and act as prima facie proof of the facts stated therein.11 The order, filed by the trial court on October 15, 2001, provides in pertinent part:
“... 4. Mr. Bouldin believes the defendant has fled to Mexico where he is a citizen. Mr. Torres is not а citizen of the United States.
5. Mr. Bouldin requested that the Tulsa County District Attorney apply to the United States Attorney for a federal charge of Uniform Flight to Avoid Prosecution against Mr. Torres.
6. In August 2001, the Tulsa County District Attorney requested the Uniform Flight charge which was approved by the United States Attorney....”
Although there is nothing in the statements of the District Attorney or in documents recognized by the trial court demonstrating the exact date upon which the bondsman requested that the District Attorney seek a federal warrant to ensure Torres’ return to custody, there is nothing in the transcript of the hearing which contradicts the bondsman‘s claim that the original request was made shortly after the great aunt advised him of Torres’ whereabouts in late April. Nevertheless, it is clear from the trial court‘s recitation of the facts that the Tulsa County District Attorney‘s office did not make the request until some four months later.
¶ 9 The following can be gleaned from statements and admission of counsel, the hearing transcript, comments of the trial judge and from the written order: 1) Torres was a Mexican national who fled the United States; 2) the bondsman got notice of Torres’ whereabouts from his childrens’ great aunt; 3) once he had notice, in April, the bondsman requested that the District Attorney‘s Office assist in obtaining a federal warrant for Torres’ return to the United States; and 4) the
II.
¶ 10 INDICATIONS TO A BONDSMAN THAT THE ONLY WAY TO DEMONSTRATE GOOD CAUSE UNDER 59 O.S. SUPP.2002 § 1332(C)(5) SUFFICIENT TO SET ASIDE A BOND FORFEITURE IS TO RESORT TO ILLEGAL ACTS IS AN ABUSE OF DISCRETION.
¶ 11 In bail forfeiture proceedings, we overturn a trial court‘s ruling only when an abuse of discretion has occurred resulting in a decision against reason and evidence.13 The majority makes much of the fact that the bondsman in State v. Vaughn, 2000 OK 63, ¶ 25, 11 P.3d 211, presented better evidence of his efforts at producing the defendant than did the bondsman here and that those efforts were found insufficient to demonstrate a showing of good cause to vacate the bond forfeiture. I agree with that assessment. What the majority does not reveal is that I, and three of my colleagues, were dissenters to Vaughn. Therefore, four members of the Court would have found the evidence sufficient for a demonstration of good cause. I would overrule Vaughn. Nevertheless, there is one proposition for which Vaughn stands with which I agree—the deferential abuse of discretion standard does not relieve this Court‘s duty to review the discretion exercised.14
¶ 12 Here, the facts demonstrate that the bondsman did everything within his power to have Torres returned to the United States through legal channels. Nevertheless, it appears from statements of the trial court that the only way the bondsman could have satisfactorily demonstrated good cause for not having returned Torres would have been to have used illegal means in an attempt to effectuate the return.
¶ 13 When counsel attempted to explain that the bondsman felt he had to use legal means for the return, the trial court inquired as to why he felt so limited.15 When an explanation was offered indicating that the only legal way to return Torres was through the issuance of a warrant, the trial court suggested he could have chosen to bribe officials of the Mexican government.16 Even if made facetiously, the statement implied that only an illegal act would have been acceptable evidence of good cause for the reinstatement of the forfeited bond.
¶ 14 Where a bondsman demonstrates that all legal steps have been taken to return a defendant for appearance before the trial court, good cause within the meaning of
CONCLUSION
¶ 15 There is little doubt that the attorneys here could have made review of the instant cause a less weighty undertaking by better perfecting the evidentiary record. It is also understood that our trial courts are burdened with a heavy workload and that the failure of a defendant to appear as scheduled makes those duties more challenging. Nevertheless, there is sufficient evidence in the statements and admission of counsel, the hearing transcript, the comments of the trial judge and from the written order to allow review of the good cause issue. Furthermore, we may not avoid our responsibility to review discretionary acts and to disavow judicial comments leading individuals to conclude that the only way to obtain relief is by resorting to illegal means. Therefore, with the record available and the evidence of discretionary abuse, I would reverse and remand with instructions to set the bond forfeiture aside.
STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. John W. WATSON, Respondent.
No. SCBD 4860.
Supreme Court of Oklahoma.
Feb. 24, 2004.
¶ 0 Order Approving Resignation from Oklahoma Bar Association Pending Disciplinary Proceedings.
¶ 1 Before this Court is an affidavit filed by John W. Watson in the above-styled bar disciplinary action, pursuant to Rule 8.1, Rules Governing Disciplinary Proceedings,
¶ 2 UPON CONSIDERATION OF THE MATTER WE FIND:
- Respondent John W. Watson executed his resignation pending disciplinary proceedings on December 12, 2003.
- Respondent‘s resignation was freely and voluntarily tendered; he was not acting under coercion or duress and he was fully aware of the consequences of submitting his resignation.
- Respondent was aware that the following grievances were lodged with the Office of the General Counsel of the Oklahoma Bar Association and are presently being investigated:
- (a) DC-03-227—A grievance from his client, David Dodge, in which he was retained to represent his client in a post decree child support matter and