The People of the State of Colorado v. Thomas Fallis

¶ 1 Surety, Alfred Perna, appeals from the district court’s order

granting in part the motion of defendant, Thomas Fallis, for return

of the bond premium. We vacate because we conclude that section

16-4-110, C.R.S. 2017, does not grant authority to the court to

refund a bond premium under the circumstances of this case.

I. Background

¶ 2 Defendant was charged and arrested for allegedly murdering

his wife. The district court set a $500,000 bond. Defendant posted

bond through Mr. Perna by paying a $25,000 premium. Thereafter,

he fully cooperated with all court orders and appeared at all

hearings. Fourteen months later, just before defendant’s trial was

to begin, Mr. Perna moved to surrender defendant back into the

custody of the court. The court granted the motion. Defendant

spent several days in jail while his family secured a second bond

and paid another $25,000 premium to a different surety to secure

defendant’s release. Defendant was ultimately acquitted.

¶ 3 Defendant moved for return of the premium he had paid to Mr.

Perna. The court partially granted the motion. The court

concluded that Mr. Perna would be unjustly enriched if he were

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allowed to keep the entire premium. The court also found, however,

that Mr. Perna had provided a service and was entitled to retain a

portion of the premium in exchange for the benefit conferred

(fourteen months of freedom). The court found that the risk taken

by Mr. Perna in securing this bond was similar to a high risk

investment contemplated by section 5-12-103(1), C.R.S. 2017, and

applied the maximum forty-five percent usury rate found therein.

Accordingly, it ordered Mr. Perna to return $11,031.25 to

defendant.

II. Unjust Enrichment

¶ 4 Mr. Perna contends that the district court erred by ordering

that he refund a portion of the bond premium to defendant. We

agree.

¶ 5 “The determination of the amount of premium refund due to

the defendant is a matter within the trial court’s discretion and the

court may not be reversed absent an abuse of that discretion.”

People v. Anderson, 789 P.2d 1115, 1117 (Colo. App. 1990). A court

abuses its discretion where its decision is manifestly arbitrary,

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unreasonable, or unfair, or is based on a misapplication or

misunderstanding of the law. People v. McFee, 2016 COA 97, ¶ 17.

¶ 6 In this instance, resolution of Mr. Perna’s contention requires

us to interpret section 16-4-110. Thus, our review is de novo. See

People In Interest of J.G., 2016 CO 39, ¶ 13. Our primary goal in

interpreting statutes is to ascertain and give effect to the

legislature’s intent. Id. We do this by first looking to the plain

language of the statute, giving words their ordinary meanings. Id.

If the terms are clear, we apply the statute as written. Id.

¶ 7 In ordering Mr. Perna to refund a portion of defendant’s

premium, the district court relied primarily on section 16-4-

110(1)(d) and People v. Carrethers, 867 P.2d 189 (Colo. App. 1993).

The relevant portion of section 16-4-110(1)(d) provides that “[i]f a

compensated surety is exonerated by surrendering a defendant

prior to the initial appearance date fixed in the bond, the court,

after a hearing, may require the surety to refund part or all of the

bond premium paid by the defendant if necessary to prevent unjust

enrichment.” This is a different version of the statute from the one

that was interpreted by the division in Carrethers.

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¶ 8 The statute as it existed when Carrethers was decided was

identical except for one important change: it did not contain the

term “initial.” Thus, it provided that if a surety was exonerated by

surrendering a defendant “prior to the appearance date fixed in the

bond,” the court could order the surety to return all or part of the

premium to prevent unjust enrichment. § 16-4-108(1)(c), C.R.S.

1993. The Carrethers division concluded that because another

statute, section 16-4-106, C.R.S. 1993, provided that “a pretrial bail

bond ‘shall continue in effect’ at least until the point of conviction,”

and because it is generally accepted that use of the singular in a

statute includes the plural, “[section] 16-4-108(1)(c) is not limited to

defendant’s initial appearance date but also includes such other

dates to which defendant’s case was continued up to the date of

conviction.” Carrethers, 867 P.2d at 190. Accordingly, the division

concluded that the district court had the authority to order return

of the premium even though the surety surrendered the defendant

after his initial appearance. Id.

¶ 9 In 2013, the legislature repealed and reenacted the entire part

of title 16, article 4 containing the relevant statutes. In doing so, it

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added the term “initial” before the phrase “appearance date fixed in

the bond.” Ch. 202, sec. 2, § 16-4-110(1)(d), 2013 Colo. Sess. Laws

832. We presume this was an intentional amendment, made with

full awareness and understanding of pre-existing law. See People v.

Sandoval, 2016 COA 57, ¶ 36 (“The General Assembly is presumed

cognizant of relevant judicial precedent when it enacts legislation in

a particular area. And, when a statute is amended, the judicial

construction previously placed upon that statute is deemed

approved by the General Assembly to the extent the provision

remains unchanged.” (quoting U.S. Fid. & Guar., Inc. v. Kourlis, 868

P.2d 1158, 1162-63 (Colo. App. 1994))); see also Colo. Ethics Watch

v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20. Thus, we interpret

the statute to mean what it says; namely, that under section 16-4-

110(1)(d), a court may order return of the premium to prevent

unjust enrichment only if the surrender occurred prior to the

defendant’s initial appearance.

¶ 10 Here, Mr. Perna surrendered defendant to the court fourteen

months after the court process began. This was well after

defendant’s initial appearance. Accordingly, we conclude that the

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court was without the authority to order Mr. Perna to refund all or

part of defendant’s premium. Though we recognize that such a

provision may result in harsh consequences, as it does here, we are

bound by the statute and the legislature’s clear intent.

¶ 11 To the extent defendant argues on appeal that, regardless of

the statute, Mr. Perna breached their contract and so we should

apply basic rules of contract construction, we note that this issue

was not argued before the district court. Thus, we will not address

it. See People v. Salazar, 964 P.2d 502, 507 (Colo. 1998) (“It is

axiomatic that issues not raised in or decided by a lower court will

not be addressed for the first time on appeal.”); see also Melat,

Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,

¶ 18. We express no opinion as to whether defendant may pursue a

separate civil action for relief. See Vaughn v. Dist. Court, 192 Colo.

348, 350, 559 P.2d 222, 223 (1977).

¶ 12 Therefore, we vacate the district court’s order refunding a

portion of the bond premium to defendant. Based on our resolution

of this issue, we need not address Mr. Perna’s remaining

contentions.