On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-28181-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Lihotz and Ashrafi.
Plaintiff, Shaun Gourdine, appeals from a Special Civil Part order that dismissed with prejudice five complaints he initiated against defendants Blaze Bail Bonds (BBB) and David Sanchez, an employee of BBB.*fn1 The trial court consolidated the complaints, which alleged a breach of the terms of the parties' contract regarding BBB's posting of bail bonds to secure Gourdine's release pending disposition of criminal charges. Trial on the consolidated matters was held on May 12, 2008.*fn2
Following the close of evidence, defendants moved for judgment, which was granted by Judge Mary K. Costello. On appeal, plaintiff maintains the court's determination was against the weight of the evidence presented. We have considered the argument in light of the record and applicable legal standards, and we affirm.
On November 29, 2006, Gourdine was arrested on weapons and other charges, which later were presented in Hudson County Indictment No. 07-02-00235. Two subsequent Hudson County indictments, Nos. 03-07-01187 and 04-05-00835, were issued for additional offenses.*fn3 On December 1, 2006, bail was set and Gourdine engaged BBB, which, as corporate surety, posted three bail bonds. Gourdine provided $11,000 cash, and his family arranged to finance the balance of the sums needed to secure the bail bonds posted by BBB. Gourdine executed an agreement with BBB entitled "Conditions of Release."
Gourdine failed to appear on February 22, 2007, for a pre-arraignment conference on Indictment No. 07-02-00235. It is unclear whether the court heard the matter on that date. Gourdine testified he received a postcard from BBB advising him of the date of the pre-arraignment conference. The notice was sent to his Newark residence and delivered "two weeks" after the court date. Gourdine admitted he did not review the notice and, therefore, took no action after its receipt, because he "just pa[id] attention to the court notices" handed to him after court appearances.
Gourdine also failed to appear for arraignment on March 12, 2007. The case docket verified Gourdine's counsel appeared and requested an adjournment to the following day in order to secure his client's appearance. When Gourdine failed to appear on March 13, 2007, a warrant for arrest was issued. The State moved for forfeiture of the $100,000 bail.
Gourdine surrendered to the Newark Police Department on April 17, 2007, and was placed in custody at the Essex County Jail. Gourdine's bail on the three indictments was increased to $500,000. Thereafter, the court denied Gourdine's motion to reduce the bail. Gourdine was not transferred from Essex County to the Hudson County Jail until April 27, 2007. When Gourdine failed to appear for the April 23, 2007 trial on Indictment No. 04-05-00835 and the arraignment scheduled for Indictment No. 03-07-01187, because he was in custody, the State moved for forfeiture of the bail posted. BBB negotiated a settlement with the State with respect to the forfeiture applications for the bail posted on the three indictments. The State agreed to forfeit a total of $7,500.
The December 21, 2006 bail recognizance forms issued by the Hudson County Superior Court contain Gourdine's current Newark address. However, the court's notices scheduling the pre-arraignment conference and arraignment were sent to his former address in Jersey City. Gourdine stated that, notwithstanding the fact he had provided his current Newark address to BBB, he did not receive a proper notice of the March 12, 2007 arraignment.
Judge Costello reviewed the parties' contract and determined the agreement placed the burden for notification of court dates upon Gourdine, not BBB. Under the terms of the agreement, BBB did not assume the duty or obligation to advise Gourdine and assure his presence during scheduled court proceedings. Concluding Gourdine should have acted once he received the postcard from BBB, Judge Costello stated:
You know, the duty to investigate this would have been on you at that point to call either your attorney or [BBB] and say, first of all, what's wrong with your office procedures that you're sending this thing out late and you're dating it one day to notify me of something a day before and you don't mail it until 3/2. Number one, what's that all about? Number two, getting into the content, what court appearance? That would have alerted you that perhaps you missed something or that something was adjourned, and then you could have re-righted the ship here as early as the first week in March so that when the 12th and the 13th rolled around, none of this would have happened.
I know you're unhappy and I know it doesn't sound fair to you, but I'm granting the motion and I'm dismissing all the complaints because it was your failure to be vigilant about your own court dates. I know the notice didn't come, but this did, P-5 did, and when you admit to me that you disregarded it and never saw it until a year later, that's the fatal error in your presentation. Because had you looked at it and taken due notice of it, then it was a trigger for you to call your attorney or call [BBB], the very best thing you could have done would be to call the [c]court and say, what court date, and then none of this would have happened. So the obligation legally is not on [BBB] to ensure that you got proper notices. I believe that you didn't get ...