Williams v. C-U-Out Bail Bonds, LLC

• Citation: 402 P.3d 558
• Decision Date: 18 August 2017
• Docket Number: No. 116,883.,116,883.
• Parties: Joeann WILLIAMS, Eric Williams, Hazel S. Noble, W.J.W., and L.L.W., Appellants, v. C–U–OUT BAIL BONDS, LLC, Defendant, and CIty of Overland Park, Kansas, ex rel. Overland Park Police Dept., Appellee.
• Court: Court of Appeals of Kansas

402 P.3d 558

Joeann WILLIAMS, Eric Williams, Hazel S. Noble, W.J.W., and L.L.W., Appellants,

v. C–U–OUT BAIL BONDS, LLC, Defendant,andCIty of Overland Park, Kansas, ex rel. Overland Park Police Dept., Appellee.

No. 116,883.

Court of Appeals of Kansas.

Opinion filed August 18, 2017

Curtis N. Holmes, of Holmes Law Office, LLC, of Olathe, for appellant.

Michael K. Seck, of Fisher, Patterson, Sayler & Smith, LLP, of Overland Park, for appellee.

Before Green, P.J., Powell and Gardner, JJ.

Gardner, J.:

When armed persons tried to ram their way into her home at 11 p.m., Joeann Williams called the police. Police arrived, spoke to the bail bondsmen trying to forcibly enter Joeann's home, then left. The bail bondsmen entered the home but did not find who they were looking for. Joeann and other residents of the home later brought suit against the City for negligent failure to protect them. The district court granted the City's motion to dismiss, finding that the police officers had no duty to protect the Plaintiffs specifically, as opposed to their duty to the public at large, and that the police were entitled to immunity under the discretionary function exception to the Kansas Tort Claims Act. For the reasons stated below, we find no error in those rulings.

FACTUAL AND PROCEDURAL BACKGROUND

We first summarize the relevant factual allegations in Plaintiffs' amended petition. Joeann Williams, Eric Williams, Hazel Noble, W.J.W., and L.L.W. (Plaintiffs) lived together in a single family residence located in Overland Park, Kansas. At approximately 11 p.m., on August 6, 2014, several armed representatives of C–U–Out Bail Bonds LLC arrived at their house to search for Rickesha Wright, the daughter-in-law of Eric and Joeann. Wright was a criminal defendant who had been released on bond and had absconded from the law. As a result, her surety bond which had been paid by C–U–Out was in jeopardy of being revoked.

When the C–U–Out representatives arrived at the Williams' house, Joeann answered the door, told the C–U–Out representatives that Wright was not present, and refused to allow the C–U–Out representatives into the house. The C–U–Out representatives then tried to gain entry by forcing the door open with a steel battering ram. Joeann returned to the door and told the C–U–Out representatives that Wright was not present, that they were frightening everyone inside, and that she intended to call the police. A C–U–Out representative then put his foot in the door and told her that she could be charged with aiding and abetting a felon if she did not allow a search of the house. Joeann then called the Overland Park Police Department for help while she held the door against the C–U–Out representative's foot.

Overland Park police officers arrived a few minutes later and spoke with a C–U–Out representative while two other C–U–Out representatives continued their attempts to forcibly enter the house. Eventually, they were successful. Throughout the incident, the police officers remained outside their patrol unit just beyond the curtilage of the home and observed the forcible entry without taking any action. After the representatives of C–U–Out forced their way into the home, Joeann called out to the police officers for assistance. In response, the officers told Joeann that this was outside of their jurisdiction and they could do nothing about it. They then left the scene.

The C–U–Out representatives searched the house but did not find Wright. They left the house but threatened to return and conduct another search for Wright.

The Plaintiffs filed a civil action against C–U–Out and the City of Overland Park (City) ex rel . the Overland Park Police Department. They alleged that C–U–Out was liable for trespass, invasion of privacy, and outrage and that the City was liable under the doctrine of respondeat superior for negligent failure to protect. The City responded by filing a motion to dismiss. The district court granted that motion because the Plaintiffs had failed to give notice of their tort action to the City as required. See K.S.A. 2016 Supp. 12-105b(d).

Plaintiffs later filed an amended petition which included the factual assertions stated above. Their claim against the City for negligent failure to protect stated in part:

"Plaintiffs further allege that once the officers were notified of the call, affirmatively responded to the call, presented themselves at the scene, and were made aware of the circumstances as previously described herein, they had an affirmative duty to remain at the scene in order to protect Plaintiffs until the dangers associated with the confrontation between Plaintiffs and armed representatives of Defendant, C–U–Out who were then attempting forcibly to enter Plaintiffs' private residence had passed."

Other paragraphs alleged that officers violated their affirmative duty to protect Plaintiffs when they left the home after having been called to and having appeared at the scene "with full knowledge that armed ... representatives of a bonding company had expressed their intention to forcibly enter[ ] the private residence without the permission of the occupants and without legal authority." Plaintiffs further alleged that Wright was not in the home at the time of the above-described incident and that C–U–Out representatives had no personal knowledge or evidence suggesting that she was.

The City filed a second motion to dismiss. The district court granted this motion, finding Plaintiffs had failed to state a claim upon which relief could be granted. The district court held that the police officers owed no duty to Plaintiffs and that the City was immune from liability under the discretionary function exception to the Kansas Tort Claims Act (KTCA). Accordingly, it dismissed the claims against the City. Plaintiffs timely appealed.

WE ADHERE TO OUR TRADITIONAL STANDARD FOR MOTIONS TO DISMISS .

A district court's decision to grant a motion to dismiss presents a question of law subject to our unlimited review. Cohen v. Battaglia , 296 Kan. 542, 545, 293 P.3d 752 (2013). When reviewing a district court's decision to grant a motion to dismiss for failure to state a claim, we must accept the facts alleged by the plaintiff as true, "along with any inferences that can reasonably be drawn therefrom." 296 Kan. at 546, 293 P.3d 752. Under this standard, if the facts and inferences state a claim on any possible theory, "the district court must be reversed." 296 Kan. at 546, 293 P.3d 752 (citing Zimmerman v. Board of Wabaunsee County Comm'rs , 293 Kan. 332, 356, 264 P.3d 989 [2011] ).

The City invites us to apply a narrower standard adopted by the United States Supreme Court in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Under that federal standard, a complaint should be dismissed if it lacks a "set of facts consistent with the allegations in the complaint." 550 U.S. at 563, 127 S.Ct. 1955. The pleading must " ‘contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.’ " 550 U.S. at 555, 127 S.Ct. 1955. Federal courts must now decide whether a "claim has facial plausibility." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Facial plausibility is shown "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 556 U.S. at 678, 129 S.Ct. 1937.

Despite the logical appeal of the federal plausibility standard and despite the similarity of our rule ( K.S.A. 2016 Supp. 60-208 [a] ) to the federal rule ( Federal Rule of Civil Procedure 8 [a][2] ), the Kansas Supreme Court has not adopted the federal standard as its recent case demonstrates:

"When a defendant uses K.S.A. 2015 Supp. 60-212(b)(6) to challenge the legal sufficiency of a claim, the court must decide the issue based only on the well-pled facts and allegations, which are generally drawn from the petition. Courts must resolve every factual dispute in the plaintiff's favor when determining whether the petition states any valid claim for relief. Dismissal is proper only when the allegations in the petition clearly demonstrate that the plaintiff does not have a claim. Halley v. Barnabe , 271 Kan. 652, 656, 24 P.3d 140 (2001) (citing Ripley v. Tolbert , 260 Kan. 491, 493, 921 P.2d 1210 [1996], and Bruggeman v. Schimke , 239 Kan. 245, 247–48, 718 P.2d 635 [1986] ). Likewise, appellate courts reviewing a district court's decision to grant a motion to dismiss will assume as true the well-pled facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, dismissal is improper. Cohen v. Battaglia , 296 Kan. 542, 545–46, 293 P.3d 752 (2013)." Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc. , 305 Kan. 761, 767–68, 388 P.3d 84 (2017).

We are duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. Majors v. Hillebrand , 51 Kan.App.2d 625, 629–30, 349 P.3d 1283 (2015), rev. denied 303 Kan. 1078, ––– P.3d –––– (2016). Finding no indication of departure, we apply our traditional standard stated above.

WE DO NOT TREAT LEGAL CONCLUSIONS AS BEING TRUE .

Although our standard for considering a motion to dismiss requires us to accept the well-pleaded factual allegations contained in a petition as true, nothing requires us to treat the legal conclusions contained within the petition as also being true. Duckworth v. City of Kansas City , 243 Kan. 386, 391, 758 P.2d 201 (1988). The amended petition's allegation that C–U–Out representatives intended to enter the house without legal authority is one such legal conclusion, the truth of which the City has not admitted. The amended petition's allegation that the police officers who responded to the call left with full knowledge that the bail bondsmen were attempting ...