State v. Isaacs, 261 N.C.App. 696, 821 S.E.2d 300 (Oct. 2, 2018)

The trial court did not err by allowing the Surety’s motion to set aside a bond forfeiture. The motion to set aside asserted as a reason that the defendant had been served with an order for arrest for the failure to appear on the criminal charge as evidenced by a copy of an official court record. The court first concluded that in the bond forfeiture proceeding, the trial court did not err by taking judicial notice of the file as evidence that the defendant was served with the order of arrest. A trial court may take judicial notice of earlier proceedings in the same case, including matters in the file not offered into evidence. Here, the trial court took judicial notice of a fact beyond a reasonable controversy. It is undisputed that the defendant was served with the order for arrest before the 150-day deadline for filing a notice to set aside a forfeiture expired and the trial court attached the order for arrest as an exhibit to the court’s order.

     The court went on to reject the Board’s argument that the trial court committed reversible error by granting the Surety’s motion to amend the motion to set aside the bond forfeiture and attach a copy of the order for arrest after expiration of the 150-day deadline for filing the notice. The Surety’s original motion contained a copy of the initial warrant for arrest in the case, not the order for arrest issued after the failure to appear. A bond forfeiture proceeding, while ancillary to the underlying criminal proceeding, is a civil matter to which the Rules of Civil Procedure apply. Under those rules, leave to amend a pleading shall be freely given except when the objecting party can show material prejudice. In this case no undue prejudice was shown; in so holding the court noted that the Surety offered to pay the Board’s attorney’s fees incurred in connection with the hearing.