Fields v. McGovern

1

NOT DESIGNATED FOR PUBLICATION

No. 119,219

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SAMUEL W. FIELDS,
Appellant,

v.

KEN MCGOVERN and DEBORAH PORTER,
Appellees.


MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed November 30,
2018. Affirmed.

Samuel W. Fields, pro so appellant.

Daniel S. Bell, of Andersen & Associates, of Overland Park, for appellees.

Before GARDNER, P.J., ATCHESON and POWELL, JJ.

PER CURIAM: Samuel W. Fields, a bail bondsman, appeals pro se the dismissal of
his lawsuit against Douglas County Sheriff Ken McGovern and Deputy Deborah Parker
for failing to state a legal claim for relief. Fields' suit claimed the defendants had
wrongfully used incorrect identifying information for a defendant in preparing a bail
bond facesheet. For reasons we more fully explain below, we see no error in the district
court's dismissal of Fields' lawsuit and affirm.

2

FACTUAL AND PROCEDURAL BACKGROUND

Because Fields represents himself in this litigation, the underlying facts of the case
are difficult to glean from the record on appeal. It is undisputed, however, that Fields is a
bondsman with Applejacks Bail Bonds and is approved by the Douglas County District
Court to act as a bond surety within the State of Kansas. It is also undisputed that Fields
entered a surety agreement with Larry Raymond Brown II on December 3, 2015, for
posting a bond for a court appearance in Atchison County. Many of the remaining facts
pertinent to Fields' suit are murky.

On November 19, 2015, the Atchison County District Court issued a bench
warrant for the arrest of Larry Raymond Brown III on charges of distribution of cocaine,
failing to affix tax stamps, and use of a telecommunications device in the sale of a
controlled substance. The warrant described Brown as a black male, 5'5" tall, and 155
pounds with a birth year of 1985. At some point, the Atchison County arrest warrant was
entered into the National Crime Information Center (NCIC) database, listing Larry
Raymond Brown II with various aliases, including Larry Raymond Brown III.

On December 3, 2015, an individual named Larry Raymond Brown II was issued
a citation by the City of Lawrence for battery and possession of marijuana. The Lawrence
municipal citation listed Brown's year of birth as 1985, registered address, and driver's
license number and described Brown as a black male, 5'5" tall, weighing 160 pounds. He
was subsequently arrested on the outstanding Atchison County arrest warrant. The
booking information listed only Larry Raymond Brown but also identified Brown by his
address and date of birth. Fields signed an Atchison County appearance bond as surety
for Larry Raymond Brown II and listed the same address for Brown as listed in the
citation and the booking information. Fields stood as surety in the amount of $15,000 for
Brown's court appearance in Atchison County on December 11, 2015.

3

The record is not clear about whether Brown appeared for the December 11
hearing in Atchison County. He did appear for his arraignment in Douglas County on
December 22, 2015. But, Brown failed to appear for subsequent hearings in both Douglas
and Atchison Counties. The Douglas County District Court issued a bench warrant
against Brown for failing to appear on January 19, 2016. The Atchison County District
Court forfeited Brown's bond for his failure to appear on January 20, 2016, and issued a
warrant for Brown's arrest. The order provided an opportunity for Fields to avoid
payment of the $15,000 bond if he provided the district court with a reason to set aside
the order before March 18, 2016.

On March 10, 2016, Fields filed a pro se brief, arguing that he should be relieved
of his obligations as surety because discrepancies in the names assigned to Brown in the
various court documents prevented Fields from securing Brown's capture in Kansas or
another state. Fields acknowledged that Brown signed the bond agreement as Larry
Raymond Brown II. Fields failed to attend the scheduled hearing on March 28, 2016. The
Atchison County District Court rejected Fields' argument and ordered Fields to pay
$15,000 to the court.

On January 18, 2017, Fields filed a petition in the Douglas County District Court,
initiating this current lawsuit. He claimed McGovern and Porter were negligent in
preparing a bail bond facesheet with incorrect identifying information for Brown. Fields
also claimed that protections from liability for McGovern and Porter violated federal
antitrust law. Additionally, Fields claimed that McGovern and Porter had damaged his
professional reputation by preventing him from capturing Brown out of state and claimed
the bond contract should be declared void as unenforceable. Fields sought damages in the
amount of $15,000, legal expenses in the amount of $3,000, and exemplary or punitive
damages in the amount of $75,000.

4

McGovern and Porter filed an answer, arguing Fields' petition should be dismissed
on the following grounds: (1) Fields failed to state a valid claim; (2) the district court
lacked subject matter jurisdiction and proper venue; (3) Fields could not pursue a claim
for punitive or exemplary damages; (4) Fields' own negligence excused any negligence
on the part of the defendants; and (5) Fields lacked privity of contract with them, thus
they lacked any duty to Fields. Fields filed a pro se pleading in response, generally
rehashing the arguments of his petition.

Subsequently, Fields filed a motion for summary judgment, and the defendants
moved to dismiss for failure to state a claim. On January 2, 2018, the district court
entered a journal entry dismissing the petition for failing to state a cause of action upon
which relief might be granted.

Fields timely appeals.

DID THE DISTRICT COURT ERR IN DISMISSING THE PETITION
FOR FAILURE TO STATE A CLAIM?

When we review the dismissal of a petition for failing to state a claim, we consider
the well-pleaded facts in a light most favorable to the plaintiff, which requires us to
assume the truth of those facts as well as any reasonable inference that may be drawn
from them. If the facts as pled state any claim upon which relief might be granted, then
dismissal was improper. See Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752
(2013). We do not resolve any factual disputes when deciding a motion to dismiss for
failure to state a claim, and dismissal is appropriate only when the allegations in the
petition clearly demonstrate that the plaintiff lacks a legal claim for relief. Steckline
Communications, Inc. v. Journal Broadcast Group of KS, Inc., 305 Kan. 761, Syl. ¶ 2,
388 P.3d 84 (2017).

5

While Fields' factual allegations have remained relatively consistent, his legal
theories for relief provide us with a moving target. Essentially, Fields contends that
McGovern and Porter committed a fraud or misrepresentation on Fields by characterizing
Brown as "Larry Raymond Brown II" when the arrest warrant from Atchison County
designated "Larry Raymond Brown III." Before the district court Fields' legal theories
rested upon K.S.A. 2017 Supp. 60-209; K.S.A. 2017 Supp. 22-2802; the Racketeer
Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1961 et seq. (2012); and
the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq. (2012). On appeal, Fields' theory shifts
to Kansas Supreme Court Rule 114 (2018 Kan. S. Ct. R. 186). Because Fields has not
argued these other legal theories on appeal, we consider them abandoned. See State v.
Reu-El, 306 Kan. 460, 471, 394 P.3d 884 (2017) (issues raised in district court but not
advanced on appeal are considered abandoned).

This failure notwithstanding, given the wide parameters of appellate review
following dismissal of a petition for failure to state a claim, all of Fields' various theories,
plus any applicable theories not articulated by him, will be considered to determine
whether any claim based on the alleged facts would support a judgment in favor of
Fields. Unfortunately for Fields, none of the authorities cited by him impose a duty on a
county sheriff in favor of a surety to ensure that a criminal appearance bond correctly
names the individual subject to the appearance bond.

K.S.A. 2017 Supp. 60-209 provides rules for pleading particular matters including
fraud and libel or slander. See K.S.A. 2017 Supp. 60-209(b), (j). The statute does not
create a duty or a cause of action. K.S.A. 2017 Supp. 22-2802 directs the payment of
bonds by individuals or sureties into the court. It does not address the authority or
responsibility of the sheriff with respect to the bond and does not impose liability on the
sheriff towards a surety. Similarly, Supreme Court Rule 114(a) permits authorized surety
companies to post bonds set by the sheriff or the court clerk. The record establishes that
the Atchison County District Court set the bond amount. Supreme Court Rule 114 is
6

therefore inapplicable. But, even if Supreme Court Rule 114(a) applied to the bond
guaranteed by Fields in this case, the rule does not impose any duty or responsibility on
the sheriff.

By definition, RICO also does not apply to the sheriff's conduct. "Racketeering
activity" is defined as "any act or threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled
substance or listed chemical" or as "any act which is indictable" under a list of specific
crimes. See 18 U.S.C. § 1961(1). Because the sheriff's or deputy's conduct cannot be
classified as a crime, particularly a crime listed by RICO, this Act does not apply here.

For similar reasons, the Sherman Anti-Trust Act, 15 U.S.C. § 1, also does not
impose liability upon the sheriff or deputy. This Act prohibits contracts, conspiracies, or
agreements to restrain trade or commerce among states or with foreign nations. Nothing
about the sheriff's alleged intentional or negligent misstatement in naming Brown
restrains trade or commerce with other states. Furthermore, to the extent the bonding
authorization in Douglas County constitutes a restraint on trade, it is the Douglas County
District Court, not the sheriff, which imposes that restraint. Any incidental restraint on
trade imposed by state government in regulating industry in the interest of public health
and welfare is immune from the Sherman Anti-Trust Act under the Parker doctrine. See
generally North Carolina State Bd. of Dental Examiners v. FTC, 574 U.S. ___, 135 S. Ct.
1101, 1110, 191 L. Ed. 2d 35 (2015); Parker v. Brown, 317 U.S. 341, 350-51, 63 S. Ct.
307, 87 L. Ed. 315 (1943).

Fields has cited no caselaw in which a court has imposed liability upon a sheriff
for negligently or intentionally providing the wrong name for a bail bond agreement, and
independent research has discovered none. In order to establish a claim for fraud or
misrepresentation (intentional or negligent), Fields would be required to demonstrate,
among other things, that the information provided by the sheriff was false. See
7

Stechschulte v. Jennings, 297 Kan. 2, 19, 298 P.3d 1083 (2013) (elements of fraud);
Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 937, 305 P.3d 622 (2013) (elements of
negligent misrepresentation). According to the record, the individual arrested by Douglas
County law enforcement officers on the Atchison County arrest warrant went by several
variations of the same name: Larry Raymond Brown, Larry Raymond Brown II, and
Larry Raymond Brown III. The record does not indicate which one of these names is
Brown's legal name. The booking form listed the arrested person as "Larry Raymond
Brown." The Lawrence police citation issued to Brown at the time of his offense was
presumably based on Brown's driver's license information and listed "Larry Raymond
Brown II" as the name of the offender. Fields admitted that on December 3, 2015, the
NCIC listed an active warrant out of Atchison County for Larry Raymond Brown II. The
facts, even when viewed in a light most favorable to Fields, do not establish that the
sheriff provided him with false information regarding Brown's name. It establishes only
that the name provided in the bond does not match the name provided in the arrest
warrant. Fields provides no authority requiring the sheriff to conduct an independent
inquiry into an offender's name before booking him or her into jail or issuing a bond.

If the NCIC entry did not match the name of the person against whom the arrest
warrant was issued, the error rests with the party entering the information into the NCIC
system, which was presumably Atchison County, not Douglas County. Fields' factual
assertions in his petition contend as much: "Samuel Fields, alleges misuse of NCIC, and
misuse of Kansas Hot Files, by the Atchison County Sheriff's Office, which caused
Lawrence Police Department and the Douglas County Sheriff's Office, to error and arrest
and book Larry Raymond Brown 2nd, rather than Larry Raymond Brown 3rd."
(Emphasis added.) Our Supreme Court has held that "'one who negligently creates a
dangerous condition cannot escape liability for the natural and probable consequences
thereof, although the innocent act of a third person may have contributed to the final
result.'" Steele v. Rapp, 183 Kan. 371, 377, 327 P.2d 1053 (1958) (quoting Rowell v. City
of Wichita, 162 Kan. 294, 303, 176 P.2d 590 [1947]). Therefore, even if Larry Raymond
8

Brown II was not the offender's true identity, Fields cannot demonstrate that McGovern
intended to mislead Fields or that McGovern was negligent in relying on the entry in the
NCIC system to issue the bond in the name of Larry Raymond Brown II.

The district court properly dismissed the petition for failing to state a claim upon
which relief might be granted.

Affirmed.