State v. Spitsyn

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State v. Spitsyn (2001-143); 174 Vt. 545; 811 A.2d 201

[Filed 03-Oct-2002]

ENTRY ORDER

SUPREME COURT DOCKET NO. 2001-143

OCTOBER TERM, 2001

State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 2, Rutland Circuit
Dmitri Spitsyn }
(Marble Valley Bail Bonds, }
Appellant) } DOCKET NO. 1128-8-00 Rdcr

Trial Judge: Theresa S. DiMauro

In the above-entitled cause, the Clerk will enter:

Surety Marble Valley Bail Bond, Ltd. appeals from an order of the
Rutland District Court forfeiting bail following defendant's nonappearance
for a status conference preceding his sentencing hearing. We affirm.

The relevant facts are taken from the docketing statement and are not
in dispute. On August 17, 2000, Dmitri Spitsyn was arraigned in Rutland
District Court on one count of negligent operation of a vehicle, in
violation of 23 V.S.A. § 1091(b). The court imposed conditions of release,
and surety posted $3,000 bail. On October 31, 2000, the parties informed
the court that defendant intended to enter into a plea agreement with the
State and the court set the plea hearing for November 8, 2000.

At the plea hearing, defendant pled guilty pursuant to a plea
agreement to negligent operation of a vehicle, in violation of 23 V.S.A. §
1091(a), and the trial court entered judgment. A sentencing hearing was
set for February 14, 2001 and, at a status conference on that day,
defendant failed to appear and the State filed a motion for forfeiture of
bail. On February 16, a warrant was issued for defendant's arrest. On
February 27, the trial court heard the State's motion for forfeiture of
bail and ordered that bail be forfeited.

On appeal surety argues that: (1) the language of the bond obligates
it to secure defendant's appearance only "pending trial;" and (2) its
obligation was discharged because the trial court entered judgment without
notice to the surety and without reviewing defendant's conditions of
release, as required by V.R.Cr.P. 46(c).

Surety's first argument is that the plain language of the bail
agreement obligated surety to secure defendant's appearance only "pending
trial" and therefore, at the time judgment was entered,

surety's obligation was discharged. (FN1) A bail agreement is no
different from any surety agreement, State v. Chatfield, __ Vt. ___, ___,
787 A.2d 1247, 1249 (2001), and as a contract between the State, a
defendant, and the surety it is governed by the same rules of construction
and legal consequences of any surety contract. United States v. Martinez,
151 F.3d 68, 73 (2d Cir. 1998) ("a bail bond is interpreted within the
general framework of suretyship and contract law") (internal quotations
omitted).

The bail agreement signed by defendant and surety reads in pertinent
part:

I/ we the undersigned do hereby voluntarily agree to act as surety
for the above named defendant, in order to secure his/her release
pending trial. I/we understand that the purpose of this
appearance bond is to insure the attendance of the defendant at
all court ordered proceedings, and that, as surety it is my/our
responsibility to know when and where the defendant is to appear.

In addition, we agree to the following:

1. If the defendant fails to appear at a scheduled court
proceeding I/we will be liable to the State of Vermont . . . .

I/we understand that if the defendant obeys all the conditions of
his/her release and appears before the Court when ordered to do
so, then this appearance bond will be void and any deposit
returned. I also understand that any deposit will not be returned
until this case is closed and the defendant surrenders
himself/herself to serve any sentence that may be imposed or until
further order of the Court.

Surety argues that the plain language of the bail agreement requires
the surety to guarantee defendant's attendance only until the adjudication
of guilt, or when defendant enters a plea, and does not extend until
defendant is sentenced.

In construing the surety agreement, the Court must give effect to each
material term so, where possible, the contract reads as a harmonious whole.
In re Grievance of Hood, 156 Vt. 412, 416, 592 A.2d 907, 909 (1981). There
are three separate provisions in this surety agreement that describe the
extent of surety's obligation to secure defendant's appearance. The first,
contained in the preliminary clause of the agreement, defines surety as the
party securing defendant's release "pending trial." This is followed with
a term stating, "[i]n addition, we agree to the following . . . if the
defendant fails to appear at a scheduled court proceeding I/we will be
liable to the State of Vermont," and a closing paragraph which reads, "I
also understand that any deposit will not be returned until this case is
closed and the defendant surrenders himself/herself to serve any sentence
that may be imposed or until further order of the court." These
provisions, read together as a harmonious whole, Hood, 156 Vt. at 416, 592 A.2d at 909, communicate that surety is responsible for ensuring that
defendant will appear at each court appearance, until defendant surrenders
himself at the time of sentencing, or until the court orders otherwise.

Surety maintains that if the Court does not find that the bail
agreement clearly releases surety's obligation at the adjudication of
guilt, that at the very least, the Court should find it to be ambiguous and
resolve that ambiguity against the drafter - the State. Surety is correct
to point out that where a contract is ambiguous, it will be construed
against the party who drafted it. State v. Murray, 159 Vt. 198, 205, 617 A.2d 135, 139 (1992).

A contract's construction is a matter of law where the contract is
unambiguous, and whether it is ambiguous is also a question of law.
Morriseau v. Fayette, 164 Vt. 358, 366, 670 A.2d 820, 826 (1995). We have
previously observed that "there are no easy guidelines for determining when
a clause or phrase of a contract is ambiguous." Webb v. U.S. Fid. & Guar.
Co., 158 Vt. 137, 139, 605 A.2d 1344, 1346 (1992). Where the writing, in
and of itself, supports a different reading than that given in light of the
circumstances, and both readings are reasonable, the contract is ambiguous.
Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988).
While surety argues that the preliminary clause contradicts the later
provisions regarding the limits of surety's liability, it is axiomatic that
the general, preliminary clause of a contract does not ordinarily control
the later, more specific provisions of the contract. Fairchild Square Co.
v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 439, 658 A.2d 31, 35
(1995). The general introductory clause is followed by additional terms
which make the surety liable to the State in the amount of the bond "if the
defendant fails to appear at a scheduled court proceeding." The contract
provides that the surety's liability of defendant's failure to appear at a
scheduled court proceeding is "in addition" (emphasis added) to whatever
obligations arise from the statement in the preliminary clause. See
Jackson v. Rogers, 120 Vt. 138, 140, 134 A.2d 620, 622 (1957) ("where both
the general and the specific provisions may be given reasonable effect,
both are to be retained").

Moreover, it is appropriate, when inquiring into the existence of
ambiguity, for a court to consider the circumstances surrounding the making
of the agreement. Isbrandtsen, 150 Vt. at 579, 556 A.2d at 84. Although
the surety undertakes only those duties described within the surety portion
of the appearance bond, other language of the one page appearance bond is
appropriately considered when inquiring into the existence of ambiguity.
There can be no doubt that the appearance bond is

intended to ensure that a defendant and surety understand the obligation to
"appear at all court proceedings scheduled in the case." The appearance
bond contains no less than five specific references to a defendant's
obligation to appear, none of which are limited by "pending trial"
language. See District Court of Vermont Appearance Bond, Dist. Ct. Form
No. 345 ("I agree to appear at all court proceedings scheduled in this case
for which I or my attorney receive notice. I understand that if I fail to
appear or violate any other conditions of my release the court may issue a
warrant for my arrest. I also understand that failure to appear at a
scheduled court proceeding or as otherwise required by the conditions of my
release can result in imprisonment . . . . I understand and agree that if I
do not appear at a scheduled court proceeding for which I or my attorney
have received notice, I must pay to the State of Vermont the sum of
$[3,000], which is the amount of the bond. . . . I understand that if I
obey all the conditions of my release and appear before this court, when I
am ordered to do so, then this appearance bond will be void . . . .").
Under these circumstances, we cannot accept surety's assertion that the
language of the bond making surety liable for defendant's failure to appear
at a scheduled court proceeding may be reasonably read as not making surety
liable when defendant fails to appear.

Next, surety asserts that the court's acceptance of defendant's plea
releases the surety of obligation, because the surety did not have notice
of the plea hearing, and the court accepted defendant's plea without
reviewing defendant's conditions of release as required by V.R.Cr.P. 46(c).

While we agree with surety that the limits of surety's obligation are
as set forth in the bail bond, and that changes to the bond without notice
to the surety releases their obligation, Stern v. Sawyer, 78 Vt. 5, 11, 61 A. 36, 39 (1905), "[n]othing in the appearance bond obligates the court to
inform surety of defendant's required appearances or of any change in his
release conditions." Chatfield, ___ Vt. At ___, 787 A.2d at 1250 (2001).
Rather, "the responsibility to learn of defendant's required appearances
lies squarely with the surety." State v. Marsh, ___ Vt. ___, 789 A.2d 939,
942 (2001). The bond obligated surety to "'know when and where the
defendant is to appear' [and] also makes clear that if surety 'should ever
become concerned about the above responsibilities, the defendant may be
surrendered to the Court and bail returned according to Title 13 V.S.A. §
7526.'" Chatfield, ___ Vt. At ___, 787 A.2d at 1249 (internal citations
omitted).

Surety's argument that the court increased the risk to surety, and
released surety's obligation under the bond, by failing to make specific
findings in its order to continue defendant's conditions of release pending
sentencing is without merit. Rule 46(c) establishes the court's procedure
for reviewing conditions of release following the adjudication of guilt.
It reads in pertinent part:

(c) Release Pending Sentence and Notice of appeal or Pending
Appeal. Upon an adjudication of guilt, the trial judge shall
review the terms and conditions of release and may terminate them
or may continue or alter them pending sentence of pending notice
of appeal . . . . In making such review, the judge shall consider
the factors set forth is 13 V.S.A. § 7554(b), as well as the
defendant's conduct during the trial and the fact of

conviction. Any denial of or a change in the terms of release
shall be reviewable in a manner provided in 13 V.S.A. § 7554 for
pretrial release.

V.R.Cr.P. 46(c). While this rule requires the court to make certain
determinations in its review of conditions, it does not require the court
to make specific findings on the record. But cf. 13 V.S.A. § 7554(d)(2)
(where a person applies for review of their conditions of release, and the
court maintains the conditions, it must make findings on the record, either
written or oral, that there is a reasonable basis for the conditions).
Here, the court set the sentencing hearing, and found that the "same
conditions that were imposed are in effect until then." The court's
determination was sufficient.

Affirmed.

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Dissenting

DOOLEY, J., dissenting. The majority makes good policy sense and
reaches the better result. For those reasons, I would join it if I thought
our precedents allowed me to do so. Unfortunately, I conclude that the
settled law requires us to release the surety in this case.

The majority's construction of the agreement simply reads out of it
the opening and most importance sentence of the surety's agreement,
rendering meaningless the statement that the security agrees to secure
defendant's appearance "pending trial." At a minimum, this language makes
the agreement ambiguous, and this ambiguity should be construed against the
party that drafted it - in this case, the State. I therefore dissent.

As the majority states, when construing the agreement, this Court must
give effect to each material term so, where possible, the contract reads as
an integrated whole. In re Hood, 156 Vt. 412, 416, 592 A.2d 907, 909
(1991); Jackson v. Rogers, 120 Vt. 138, 140,134 A.2d 620, 622 (1957). This
maxim, however, does not give us free reign to ignore material terms when
such terms cannot be harmonized with the rest of the contract. Jackson,
120 Vt. at 141,134 A.2d at 622 ("No provision is to be wholly disregarded
because inconsistent with other provisions unless no other reasonable
construction is possible."). Indeed, we must assume that language in an
agreement was included by the parties for a reason. Blodgett Supply Co.,
Inc. v. P.F. Jurgs & Co., 159 Vt. 222, 232, 617 A.2d 123, 128 (1992).
Here, we must assume that the State as drafter intentionally included the
"pending trial" limitation in the primary statement of surety's obligation.

Although the majority finds them so, neither of the later statements
in the agreement upon which the majority relies are directly inconsistent
with the "pending trial" language. The statement that the surety provides
security for defendant's attendance "at all court ordered proceedings" can
be reconciled by construing it to cover pretrial and trial proceedings.
The statement that any deposit will not be returned until the case is
closed and defendant surrenders himself for sentencing would be relevant if
this were a dispute over a deposit, which it is not.

Even if we find the obligations are in conflict, and cannot be
reconciled, we must find that the agreement is ambiguous. See Isbrandtsen
v. N. Branch Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988) ("Ambiguity
will be found where the writing in and of itself supports a different
interpretation than that which appears when it is read in light of the
surrounding circumstances, and both interpretations are reasonable."). We
must therefore follow another rule of contract construction: an ambiguous
provision is a contract should construed against the party that drafted it.
See Trs. of Net Realty v. AVCO Fin. Servs., 147 Vt. 472, 475-76, 520 A.2d 981, 983 (1986). Here, the surety signed a standard-form security
agreement, used in all courts as a matter of course and drafted by the
court administrator's office, an agent of the State. As a result, we must
construe the agreement against the State.

This Court has previously held that an ambiguity in a standard form
drafted by the State should be construed against the State. State v.
Murray, 159 Vt. 198, 205, 617 A.2d 135, 139 (1992). Murray is directly on
point and controls here. It involved a deferred-sentence agreement
contained on a standard State-drafted form that specified that the
defendant was obligated to abide by the terms of the agreement for a
limited period of time (three years). The State argued that other general
language in the agreement gave the State the power to extend the duration
of the probation. We rejected this argument and resolved the ambiguity
against the State, stating, "We cannot conclude that the general reference
to a further order of the court authorized the court to extend the duration
of the defendant's probation despite the very specific durational limit in
the agreement . . ." Id. The surety agreement in the present case
similarly contains specific durational language - "pending trial" - laying
out surety's obligation, followed by more general language - "at a
scheduled court proceeding." As in Murray, we must resolve the ambiguity
by having the specific control over the general.

This case should teach us to be more careful and precise in drafting
judicial forms. We do not do justice, however, by placing the obligation
created by a judicial branch error on a surety who never fairly agreed to
that obligation.

I am authorized to state that Justice Skoglund joins in this dissent.

BY THE COURT:

Dissenting:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
________________________________
Marilyn S. Skoglund,
Associate Justice _______________________________________
Denise R. Johnson, Associate Justice

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Footnotes

FN1. Surety also cites Accredited Surety Casualty Co. v. Putnam County, 561 So. 2d 1243, 1244 (Fla. Dist. Ct. App. 1990), for the proposition that
surety agreements expire at the time of adjudication of guilt, and do not
extend to sentencing. As surety later notes, a surety is bound by the
language of the bond and statutes governing bail agreements, People v.
Hampton, 662 P.2d 498, 500 (Colo. 1983), both of which vary in different
jurisdictions. Compare Accredited Surety Casualty Co., 561 So. 2d at 1244
(surety is obligated only until the adjudication of guilt and not until
sentencing where a Florida statute, Fl. Stat. 903.31, states that
adjudication of guilt or innocence satisfies the obligation under the
bond), with United States v. Miller, 539 F.2d 445, 449 (5th Cir. 1976)
(there is no per se rule in federal jurisdictions that surety's obligation
ends at the sentencing hearing), and United States v. Martinez, 151 F.3d 68, 73 (2d Cir. 1998) (interpreting limit of surety's obligation under the
bond by the terms of the bond).

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