
    STATE OF NORTH CAROLINA v. MARSHA LYNN WILLIAMS [International Fidelity Ins. Co., Beasley Bail Bonding Company, Inc.]
    No. COA11-721
    (Filed 7 February 2012)
    1. Sureties — bond forfeiture — motion to set aside — untimely filed
    The trial court did not err in a bond forfeiture case when it denied the bond surety’s motion to set aside a bond forfeiture order. As deadlines for filing documents with the court are subject to the hours when the court is open for business, surety filed the motion to set aside forfeiture outside the 150 days required under N.C.G.S. § 15A-544.5 (d).
    2. Sureties — bond forfeiture — partially remitted — abuse of discretion — no legal authority cited
    The trial court did not abuse its discretion in a bond forfeiture case by failing to fully remit the forfeited amount to the bond surety pursuant to N.C.G.S. § 15A-544.8(b)(2). Surety cited no authority for its argument that because the trial court found extraordinary circumstances warranting partial remission, remission should be in full unless the trial court makes specific findings supporting partial remission.
    3. Appeal and Error — preservation of issues — argument not alternate basis to support order — failure to cross-appeal
    Appellee failed to preserve for appeal its argument in a bond forfeiture case that the trial court abused its discretion by granting a partial remission. Appellee’s argument did not provide an alternate basis for supporting the trial court's order and appellee did not raise the issue on cross-appeal.
    Appeal by Surety from order entered 14 February 2011 by Judge Cheryl Spencer in Craven County District Court. Heard in the Court of Appeals 1 December 2011.
    
      White & Allen, P.A., by Brian J. Gatchel, for Appellee Craven County Board of Education.
    
    
      Greene & Wilson, P.A., by Kelly L: Greene and Thomas Reston Wilson for Appellant Surety.
    
   BEASLEY, Judge.

International Fidelity Ins., Co., Beasley Bail Bonding Company, Inc. (Surety) appeals the trial court’s final judgment granting it partial relief. For the following reasons, we affirm.

On 4 September 2009, Marsha Lynn Williams (Defendant) was charged with operating a motor vehicle while subject to an impairing substance, and operating a vehicle with an open container of alcoholic beverages after drinking. Surety executed a $1,500.00 appearance bond on behalf of Defendant. On 10 March 2010, Defendant failed to appear, Defendant’s bond was forfeited, and a warrant was issued for her arrest. On 22 March 2010, a bond forfeiture notice was issued. The forfeiture became a final judgment on 19 August 2010.

Surety paid the total forfeiture before the close of business on 19 August 2010, but continued to search for Defendant. Surety located and surrendered Defendant to the Sheriff of Craven County on 19 August 2010 at 9:40 p.m. On 20 August 2010, Surety filed a Motion to Set Aside Forfeiture and Petition for Remission. In an order filed 14 February 2011, the trial court ordered partial remission of the bond pursuant to N.C. Gen. Stat. §15A-544.8(b)(2). On 25 February 2011, Surety filed timely notice of appeal.

Surety argues that the trial court erred when it denied its motion to set aside the bond forfeiture order. We disagree.

“ ‘Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court. In conducting this review, we are guided by the following principles of statutory construction.’ ” State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517 (2009) (quoting In Re Proposed Assessments v. Jefferson-Pilot, 161 N.C. App. 558, 559-60, 589 S.E.2d 179, 180-81 (2003)). “Where the language of a statute is clear and unambiguous there is no room for judicial construction and the courts must give it its plain and definite meaning, and the courts are without power to interpolate, or superimpose, provisions and limitations not contained therein.” Id. (internal quotation marks and citations omitted).

“The exclusive avenue for relief from forfeiture of an appearance bond (where the forfeiture has not yet become a final judgment) is provided in G.S. § 15A-544.5.” State v. Robertson, 166 N.C. App. 669, 670-71, 603 S.E.2d 400, 401 (2004). Pursuant to N.C. Gen. Stat. § 15A-544.5 (b)(3) (2011), a forfeiture may be set aside when “[t]he defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced by the sheriff’s receipt[.]” If a reason to set aside forfeiture exists, then the party seeking to set aside the forfeiture must “[a]t any time before the expiration of 150 days after the date on which notice was given . . . make a written motion that the forfeiture be set aside[.]” N.C. Gen. Stat. § 15A-544.5 (d)(1) (2011).

There is no dispute about the facts of this case. Surety surrendered Defendant on 19 August 2010 to the Craven County Sheriff at 9:40 p.m. and because the court was closed, Surety filed the Motion to Set Aside forfeiture on 20 August 2010 which was outside the 150 days required under N.C. Gen. Stat. § 15A-544.5 (d). Surety argues that the 150 day period should not expire when the courthouse closes, but should be extended until 11:59 p.m.

When calculating a period of time prescribed or allowed by statute “[t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions[.]” N.C. Gen. Stat. § 1A-1, Rule 6(a) (2011). Rule 6 shows that only weekends and legal holidays are recognized as days which the statutory time limit can be automatically extended. The legislature was aware of times that the court would be closed on regular weekdays, but made no provision for how to treat weekdays after business hours. Contrary to Surety’s assertion, we must assume that deadlines for filing documents with the court are subject to the hours when the court is open for business. Because the statute is clear and unambiguous, we are without authority to interpret N.C. Gen. Stat. § 15A-544.5 (d) to extend the time limits proscribed therein in the manner contended for by Surety. Therefore, Surety’s argument is without merit.

Next, Surety asserts that the trial court abused its discretion in failing to fully remit the forfeited amount pursuant to N.C. Gen. Stat. § 15A-544.8(b)(2) (2011).

Surety argues that because the trial court found extraordinary circumstances warranting partial remission, remission should be in full unless the trial court makes specific findings supporting partial remission. Surety cites no authority in support of this proposition. “Without [appellant] presenting a legal basis for awarding such relief, we cannot reverse the trial court. As our Supreme Court has stressed, ‘[i]t is not the role of the appellate courts ... to create an appeal for an appellant.’ ” Citizens Addressing Reassignment & Educ., Inc. v. Wake Cty. Bd. of Educ., 182 N.C. App. 241, 247, 641 S.E.2d 824, 828 (2007) (quoting Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005)).

Finally, Craven County Board of Education (the Board) argues that the trial court abused its discretion by granting a partial remission where the trial court’s only basis for finding extraordinary circumstances was the fact that Surety surrendered Defendant to the Craven County Sheriff. Although the Board has submitted an issue for review, this issue is not properly before us.

The North Carolina Rules of Appellate Procedure provides that an appellee “[w]ithout taking an appeal, . . . appellee may present issues on appeal based on any action or omission of the trial court that deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.” N.C.R. App. 28(c). Here, the Board did not give notice of appeal and did not raise an alternative basis in law. In CDC Pineville, LLC v. UDRT of N.C., LLC, 174 N.C. App. 644, 657, 622 S.E.2d 512, 521 (2005), this Court held that

Plaintiff’s cross-assignment of error regarding the damages award is not an alternative basis, but rather constitutes an attack on the judgment itself. Plaintiff’s arguments concerning the damages award attempt to show how the trial court erred in its findings of fact and conclusions of law, and do not provide an “alternate basis” for supporting the court’s award of damages. The correct method for plaintiff to have raised this question on appeal was to have raised the issue on cross-appeal.

Similarly, the Board attacks the trial court’s grant of partial remission by arguing that the trial court’s findings of fact did not support its conclusion of law. This is not an alternative basis. Therefore, we are without authority to consider the Board’s argument because it failed to properly preserve the issue for appellate review.

Affirmed.

Judges ERVIN and THIGPEN concur.

CASES REPORTED WITHOUT PUBLISHED OPINIONS

(Filed 7 February 2012)

ALLRAN v. WELLS FARGO No. 11-967 Lincoln (11CVS208) Affirmed

BAKER v. BAKER No. 11-1010 Guilford (11CVD5329) Affirmed

BEATTY v. JONES No. 11-414 Wake (08CVS21917) Affirmed

BOWERS v. TEMPLE No. 11-566 Carteret (10CVS943) Affirmed

BRAMBLETT v. BRAMBLETT No. 11-970 Forsyth (09CVD8611) Affirmed

CAGLE v. MARRIOTT No. 11-816 Ind. Comm. (W07827) Affirmed

CALLANAN v. WALSH No. 11-911 Transylvania ( 01CVD129) Affirmed

CAPTRAN NEVADA CORP. v. THE KIRKLIN LAW FIRM No. 11-474 Moore (10CVS650) Affirmed

CARAVANTES v. DOWLESS No. 11-577 Bladen (09CVD229) Vacated and Remanded

DAVIS v. GROFF No. 11-948 Durham (10CVS3420) Affirmed

DAVIS v. GROFF No. 11-1024 Durham (10CVS3420) Dismissed

DELLINGER v. BARNES No. 11-792 McDowell (08CVS1006) Dismissed

FORMYDUVAL v. YEDDO No. 11-584 Brunswick (09CVS2763) Affirmed

GASPER v. THE BD. OF TRUSTEES OF HALIFAX CMTY. COLL. No. 11-675 Wake (08CVS15288) Affirmed

IN RE A.S.Y. No. 11-952 Orange (08JT101) Affirmed

IN RE K.D.C.T.J. & K.M.W.J. No. 11-1200 A ffirmed Greene (09JT46-47) Affirmed

IN RE K.K. No. 11-1180 Forsyth (09JT166) Affirmed

IN RE R.K No. 11-900 Buncombe (09JB95) Dismissed

IN RE S.C.U. No. 11-550 Buncombe (09JB338) Affirmed

IN RE S.P. No. 11-1052 Nash (11JA9) Affirmed

IN RE T.J. No. 11-1071 Wayne (09JT110) Reversed

IN RE V.M.F. No. 11-1166 Transylvania (09JA16) Affirmed in part reversed and part

IN RE W.L.M. No. 11-723 Mecklenburg (07JB281) Affirmed in Part; Vacated and Remanded in Part

IN RE Z.D.N.T. No. 11-1146 Craven (10JA14) Affirmed

JACKSON v. ES&J ENTERPRISES, INC. No. 11-225 Columbus (09CVS1005) Affirmed

LANE v. LANE No. 11-608 Bertie (06CVD179) Affirmed in Part; Reversed and Part

LINGERFELT v. ADVANCE TRANSE, INC No. 11-983 Ind. Comm. (120154) (PH2200) Affirmed

MAINLINE SUPPLY CO. v. HILLCREST CONSTR., INC. No. 11-734 Union (09CVS493) Affirmed

McCracken &AMICK, INC. v. PERDUE No. 11-199 Wake (10CVS3520) Affirmed

PANOS v. TIMCO ENGINE CTR., INC. No. 11-803 Guilford (06CVS5771) Affirmed

REMI v. TYRONE No. 11-877 Mecklenburg (10CVD22726) Affirmed in Part and Reversed in Part

SCOTCHIE v. SCOTCHIE ENTERS., INC. No. 11-828 Ind. Comm. (889041) Affirmed

SEC. CREDIT CORP. v. MID/EAST ACCEPTANCE CORE No. 11-775 Johnston (10CVS8936) Affirmed

SIMPSON v. ROBERTSON, No. 11-858 Mecklenburg (10CVS13429) Affirmed

SPANISH MOSS, LLC v. WACHOVIA No. 11-510 Mecklenburg (10CVS7952) Reversed and Remanded

STATE v. BELL No. 11-1006 Wayne (10CRS52610) ( OCRS6001) Appeal dismissed; Petition for Writ of Certiorari denied

STATE v. BOYD No. 11-562 Halifax (07CRS53267) Dismissed

STATE v. BROWN No. 11-528 Moore (09CRS52522) Affirmed

STATE v. COX No. 11-742 Sampson (10CRS51955) No Error

STATE v. DAVIS No. 11-960 Gaston (08CRS14067-70) (08CRS61770-72) Affirmed

STATE v. DAVIS No. 11-694 Guilford (09CRS79347) (09CRS80159-60) (09CRS80162) (09CRS80164) (09CRS80165-66) No Error

STATE v. FEW No. 11-902 Transylvania (08CRS52222) (08CRS52224) (09CRS168) No Error

STATE v. FULLWOOD No. 11-1054 Buncombe (09CRS56018-20) (09CRS56022) No Error

STATE v. GAMBLE No. 11-842 Edgecombe (10CRS50734-35) No Prejudicial Error

STATE v. GRIER No. 11-1015 Cleveland (09CRS54858) No Prejudicial Error

STATE v. HAQQ No. 11-993 Burke (10CRS51132) No Error

STATE v. HARRIS No. 11-987 Harnett (09CRS51973) (10CRS525) Affirmed

STATE v. HUDSON No. 11-444 Mecklenburg (09CRS201239) (09CRS35624) No Error

STATE v. HUNTER No. 11-478 Durham (10CRS51613) Affirmed

STATE v. JOHNSON No. 11-898 Mecklenburg (10CRS204377-78) (10CRS20518) No Error

STATE v. KAHLEY No. 11-394 Craven (05CRS53027) No Error

STATE v. KELLY No. 11-887 Buncombe (10CRS700243) Vacated in Part and Remanded for Resentencing.

STATE v. MILLER No. 11-1161 Buncombe (08CRS55739) Affirmed

STATE v. MILLS No. 11-442 Mecklenburg (09CRS218250) (09CRS218252) No Error

STATE v. NEEDHAM No. 11-892 Lincoln (09CRS52250) (09CRS52252-54) No error in part; vacate in part

STATE v. NETTLES No. 11-638 New Hanover (10CRS10172) (10CRS57913) (10CRS58745) No Error

STATE v. OAKS No. 11-463 Mecklenburg (08CRS255465-67) (08CRS255469-70) No Error

STATE v. ORE No. 11-1033 Pitt (10CRS5340) (10CRS54713) (10CRS54893) No prejudicial error.

STATE v. PARKER No. 11-939 Duplin (10CRS51330) Reversed and Remanded

STATE v. ROGERS No. 11-907 Lenoir (09CRS52095) (11CRS204) Affirmed

STATE v. SPEARMAN No. 11-991 New Hanover (10CRS57271) Affirmed

STATE v. SPRUILL No. 11-430 Martin (99CRS2182) No prejudicial error

STATE v. STEWART No. 11-985 Union (07CRS53732) (08CRS6448) No Error

STATE v. SWARTZ No. 11-872 Surry (07CRS53598-99) (07CRS53600-601) No Error

STATE v. SWINSON No. 11-557 Pitt (10CRS53476-77) No Error

STATE v. TYSON No. 11-855 Beaufort (09CRS754-755) No prejudicial error

STATE v. WEBSTER No. 11-862 Onslow (10CRS51270) (10CRS51543) No Error

THORNTON v. STUCKEY No. 11-508 Johnston (09CVS1636) No Error

TOWN OF LELAND v. HWW, LLC No. 11-210 Brunswick (07CVS2440) Affirmed  