1

No. 126,127

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

REGINA M. ROGERS, as Administratrix of the ESTATE OF CRAIG ROGERS, SR.,

Appellant,

v.

WELLS FARGO BANK, N.A.,

Appellee.

SYLLABUS BY THE COURT

1.

Kansas district courts are courts of general jurisdiction. This means, among other 

things, that Kansas courts presume that they may hear whatever claims a plaintiff 

pursues. A lawsuit filed in Kansas may proceed as long as the facts included in the 

petition and the reasonable inferences that can be drawn from those facts state any claim 

upon which relief can be granted.

2.

To initiate a lawsuit in Kansas, a petition need only include a short and plain 

statement that gives the defendant fair notice of the plaintiff's claim and the ground upon 

which it rests. Courts commonly refer to this practice as notice pleading.

3.

K.S.A. 60-212(b)(6) allows a petition to be dismissed if it fails to state a claim 

upon which relief may be granted. Dismissal under K.S.A. 60-212(b)(6) is the exception, 

not the rule. Kansas courts do not use the plausibility standard for pleadings employed by 

federal courts under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
2

4.

When a defendant moves for dismissal under K.S.A. 60-212(b)(6), the district 

court must resolve every factual dispute in the plaintiff's favor. The court must assume all 

the factual allegations in the petition—along with any reasonable inferences from those 

allegations—are true. The court then determines whether the plaintiff has stated a claim 

based on the plaintiff's theory or any other possible theory.

5.

A district court faced with a motion to dismiss under K.S.A. 60-212(b)(6) 

ordinarily may only consider the plaintiff's petition and any documents attached to it. A 

rare exception arises when a plaintiff asserts a claim based on a written instrument; courts 

may consider an undisputedly authentic copy of that written instrument attached to a

motion to dismiss without converting the motion to a request for summary judgment. But 

courts will not resolve factual questions surrounding those instruments as part of a K.S.A. 

60-212(b) motion. Nor will courts consider documents attached to a motion to dismiss 

that are not central to the plaintiff's claim or when there is a reasonable question about 

their applicability or authenticity.

6.

Courts presume that lawsuits filed in Kansas are governed by Kansas law. The 

party seeking the application of a different state's law bears the burden of persuading the 

courts that the other law should apply.

Appeal from Butler District Court; CHAD M. CRUM, judge. Oral argument held October 17, 2023. 

Opinion filed June 7, 2024. Reversed and remanded with directions.

Kenneth H. Jack, of Davis & Jack, L.L.C., of Wichita, for appellant.

Michael Rudd, of Fox Rothschild, LLP, of Kansas City, Missouri, for appellee.
3

Before WARNER, P.J., ATCHESON, J., and MARY E. CHRISTOPHER, S.J.

WARNER, J.: Kansas law favors resolving claims on their merits. In general, this 

means that a plaintiff may seek redress in Kansas courts if they file a petition that 

includes a short and plain statement that provides notice of the plaintiff's claim and a 

description of the relief sought. But not all petitions present questions that require 

discovery or trial. Motions to dismiss under K.S.A. 60-212 allow courts to resolve claims 

early, before a defendant files an answer. In particular, K.S.A. 60-212(b)(6) allows a 

defendant to ask the court to dismiss a petition that raises no legally supportable claims. 

As the circumstances of this case illustrate, relief under K.S.A. 60-212(b)(6) is the 

exception, not the rule. When Craig Rogers, an Andover resident, died, he had about 

$38,000 in his checking and savings accounts at Wells Fargo Bank. Shortly after his 

death, a Wells Fargo branch in California dispersed Rogers' money to a person named 

Bryan Greenelsh. Rogers' estate sued Wells Fargo for wrongfully dispersing those funds 

and requested Wells Fargo to reimburse the money. Wells Fargo moved to dismiss under 

K.S.A. 60-212(b)(6), asserting facts that were not included in the Estate's petition, and 

presented three documents relevant to the Estate's claim. The district court granted Wells 

Fargo's motion and dismissed the case. 

The Estate now appeals. It argues the court should not have considered matters 

outside its petition when evaluating a motion to dismiss under K.S.A. 60-212(b)(6). 

Rather, it should have allowed the Estate an opportunity to conduct discovery on Wells 

Fargo's assertions and to meaningfully respond to the bank's factual allegations. The 

Estate also argues that the district court erred when it determined that its claim was barred 

as a matter of law. After carefully reviewing the parties' arguments and the Estate's 

petition, we agree the district court erred. We thus reverse the district court's dismissal 

and remand the case for further proceedings.
4

FACTUAL AND PROCEDURAL BACKGROUND

Rogers died in January 2022 and had been living in Andover for some time. 

Rogers' estate was probated in Butler County District Court, but that probate case is not 

part of this appeal. 

In June 2022, Rogers' daughter—acting as the administrator of her father's

estate—filed a lawsuit against Wells Fargo. The petition indicated that Rogers had 

previously held savings and checking accounts at the bank. According to the petition, 

someone named Bryan Greenelsh arrived at a Wells Fargo branch in March 2022, seeking 

to withdraw $38,260.28 from Rogers' accounts, and Wells Fargo wrongfully dispersed 

those funds to Greenelsh. The petition alleged that the Estate had subpoenaed Wells 

Fargo in the probate case, requesting documentation relating to those payments, but Wells 

Fargo had not complied with its request. The Estate sought repayment of the wrongfully 

distributed funds and other relief.

Wells Fargo moved to dismiss the Estate's petition under K.S.A. 60-212(b)(6). The 

bank's motion included several factual statements not contained in the petition:

• Rogers opened checking and savings accounts at Wells Fargo while he was living 

in Utah in 2008.

• In March 2022, Greenelsh presented a Utah Affidavit of Collection of Estate 

Assets to a Wells Fargo branch in California. This affidavit said that Greenelsh 

was entitled to the funds in Rogers' accounts and that no estate had been opened in 

any state. (These statements in Greenelsh's affidavit were false.)

• This affidavit caused the Wells Fargo branch in California to disperse the 

requested approximately $38,000 to Greenelsh.
5

Wells Fargo attached two documents to its motion—the Utah Affidavit Greenelsh had 

presented to the California branch and an account application Rogers filled out in 2008.

Citing Kansas choice-of-law principles, Wells Fargo argued that Utah law should 

govern this case, as the account agreement was filled out in Utah and the original bank 

account was opened there. The bank claimed that it would not be liable to the Estate

under Utah law, as Utah imposed no obligation on persons receiving affidavits such as the 

one Greenelsh provided to ascertain the truth of that information. Instead, Wells Fargo 

asserted, the Estate's only remedy was to pursue a claim against Greenelsh for wrongfully 

claiming and accepting the funds. 

The Estate responded that the allegations in Wells Fargo's motion to dismiss were 

improper because they included allegations and documents that were not part of the 

petition. The Estate argued that Wells Fargo's motion should be treated as a motion for 

summary judgment, and the Estate should be given an opportunity to conduct discovery 

regarding the allegations and documents there, along with any other matters material to 

the case. Alternatively, the Estate argued that if the district court declined to treat the 

motion as one for summary judgment, it should be permitted to amend its petition to 

include other allegations and clarify its claims. 

Wells Fargo filed a reply, attaching an account agreement covering all Wells Fargo 

consumer accounts that had been updated in October 2021. The account agreement, 

which was roughly 40 pages long, contained a choice-of-law provision in a section titled, 

"Laws governing your account." This provision stated: "This Agreement, your accounts, 

services and any related disputes are governed by United States law and (when not 

superseded by United States law) the laws of the state where you opened your account

(without regard to conflict of laws principles)." Wells Fargo asserted that under this 

provision, Utah law must govern Wells Fargo's handling of Rogers' accounts, including 
6

its payment of the account funds to Greenelsh by way of the Utah Affidavit. Wells Fargo 

argued that it would be futile to allow the Estate to amend its petition because the court 

would be faced with these same arguments and defenses regardless of the claims raised.

After a hearing, the district court granted Wells Fargo's motion and dismissed the 

case. The court first concluded that it need not treat the bank's request as one for 

summary judgment. The court found that it could consider the documents attached to 

Wells Fargo's motion and reply—the 2008 account application, the 2021 account 

agreement, and Greenelsh's affidavit—in deciding Wells Fargo's motion to dismiss, as 

those documents were "simply the contractual documents" and thus "not matters outside

of the pleadings." Thus, the court concluded that Wells Fargo's motion was not required 

to comply with the procedural safeguards applicable to the summary-judgment stage.

After reviewing these documents, the district court ruled that Utah law applied. It 

then found, based largely on Wells Fargo's allegations, that Utah law released Wells 

Fargo from all liability for dispersing funds to Greenelsh. Based on this finding, the court

concluded the Estate's petition did not state a claim for relief. The court also denied the 

Estate's motion to amend its petition, agreeing with Wells Fargo that any amendment 

would be futile. The court thus dismissed the Estate's petition. 

The Estate moved to set aside the judgment, disputing the district court's dismissal 

and the procedure leading up to that ruling. The court again denied the Estate's motion. It 

found that even if the Estate had not received some of the documents attached to Wells 

Fargo's filings until after the bank filed its reply (in the case of the account agreement), 

the Estate had that agreement at the time of the hearing on the motion to dismiss and for 

purposes of the postjudgment filings. And the court reiterated its ruling that Utah law 

governed this case and, in the court's assessment, immunized Wells Fargo from any 

liability for its payments to Greenelsh. The Estate appeals.
7

DISCUSSION

Kansas district courts are courts of general jurisdiction. This means that a person 

filing a lawsuit in Kansas does not need to affirmatively demonstrate that they may 

pursue their claims in our courts for a case to proceed. Instead, the Kansas Rules of Civil 

Procedure merely require a petition to include "[a] short and plain statement of the claim 

showing [the plaintiff] is entitled to relief" and "a demand for judgment." K.S.A. 2023

Supp. 60-208(a)(1); John Doe v. M.J., 315 Kan. 310, 317, 508 P.3d 368 (2022). In other 

words, to initiate a lawsuit in Kansas, a petition need only include "'a short and plain 

statement of a claim that will give the defendant fair notice of what the plaintiff's claim is 

and the ground upon which it rests.'" 315 Kan. at 317. Courts commonly refer to this 

practice as notice pleading. See 315 Kan. at 317-18.

K.S.A. 2023 Supp. 60-212(b)(6) allows a petition to be dismissed if it "fail[s] to 

state a claim upon which relief can be granted." Under this provision, a district court may 

dismiss a petition at the outset of litigation—before any responsive pleading is filed and 

before any discovery takes place—when the petition raises no legally cognizable claims. 

Kansas appellate courts have repeatedly cautioned, however, that dismissal under this 

provision "is the exception, not the rule." Minjarez-Almeida v. Kansas Bd. of Regents, 63 

Kan. App. 2d 225, 232, 527 P.3d 931 (2023). 

When a defendant requests dismissal under K.S.A. 60-212(b)(6), the district court 

"'must resolve every factual dispute in the plaintiff's favor.'" Kudlacik v. Johnny's 

Shawnee, Inc., 309 Kan. 788, 790, 440 P.3d 576 (2019). In doing so, the court must 

assume all the factual allegations in the petition—along with any reasonable inferences 

from those allegations—are true. The court then determines whether the plaintiff has 

stated a claim "based on [the] plaintiff's theory or any other possible theory." Cohen v. 

Battaglia, 296 Kan. 542, 546, 293 P.3d 752 (2013). Dismissal is only appropriate when 
8

the well-pleaded facts and inferences therefrom fail to support "'any claim upon which 

relief can be granted.'" Kudlacik, 309 Kan. at 790.

Because the appropriateness of dismissal under K.S.A. 60-212(b)(6) is a legal 

question based solely on the petition, appellate courts give no deference to the district 

court's assessment of a defendant's dismissal motion. Instead, we apply these same 

standards on appeal—resolving factual disputes in the plaintiff's favor and affirming 

dismissal only when the facts in the petition do not support any claims for relief. See 

Jayhawk Racing Properties v. City of Topeka, 313 Kan. 149, 154, 484 P.3d 250 (2021). 

The Estate argues the district court erred in two broad ways when it granted Wells 

Fargo's motion to dismiss. 

• The Estate asserts that the procedure leading to that dismissal was improper, as the 

motion alleged—and depended on—facts beyond the petition, including the 

documents Wells Fargo attached to its motion and reply. The Estate asserts that 

under Kansas law, the district court should have subjected that motion to the rigors 

of the summary-judgment procedure. The Estate claims that it never had the 

opportunity to conduct discovery in this case, and the only documents before the 

court were the limited documents that Wells Fargo provided.

• The Estate also asserts that dismissal of the claims in its petition was improper, as 

questions remain as to whether Utah law should govern the outcome in this case. 

And even if Utah law does apply, the Estate questions whether the Utah statute 

cited by Wells Fargo—a statute whose scope has not been meaningfully 

interpreted by Utah courts—compels the outcome the district court followed here. 

Wells Fargo responds that the allegations contained in the Estate's petition were 

minimal, and the Estate should not be permitted to avoid dismissal by excluding facts that 
9

would resolve the case in the bank's favor. Wells Fargo also asserts that the district court 

did not err in consulting and relying on the documents it attached to its various filings; it 

argues that the Estate did not meaningfully dispute the authenticity of those documents, 

and those documents, read together, showed the Estate could not prevail on its claim.

For the reasons we explain here, we agree with the Estate's procedural argument 

and thus need not reach its substantive challenge to the district court's ruling. 

1. Kansas courts continue to use a notice-pleading standard—not the federal 

plausibility standard—to evaluate the legal sufficiency of plaintiffs' petitions.

Before analyzing the parties' respective arguments about the district court's 

dismissal of the Estate's complaints, we must address a preliminary question about the 

continued viability of the standard Kansas courts use to evaluate motions to dismiss 

under K.S.A. 60-212(b)(6). 

In its briefing, Wells Fargo acknowledges that Kansas courts use a notice-pleading 

standard for evaluating the sufficiency of a petition. But it cites a handful of federal 

decisions that have affirmed the dismissal of federal lawsuits under an approach like the 

one the district court used here—reviewing account agreements and applications and 

concluding the respective plaintiffs had not demonstrated they were entitled to relief. 

Wells Fargo urges us to follow these rulings, which are based on the standard federal 

courts now use for analyzing motions to dismiss under Federal Rule of Civil Procedure 

12(b)(6). Wells Fargo reiterated this request during oral argument, noting that the Kansas 

notice-pleading standard is overly onerous on defendants, as it allows a plaintiff to file a 

barebones placeholder petition without providing information about the ultimate claims 

the plaintiff plans to pursue. 
10

Kansas courts were faced with a similar argument in Williams v. C-U-Out Bail 

Bonds, 310 Kan. 775, 784, 450 P.3d 330 (2019)—that Kansas courts should "adopt and 

apply a federal standard for review of motions to dismiss that is more difficult for 

plaintiffs to meet than the traditional Kansas standard." The Kansas Court of Appeals 

rejected that request, concluding it was bound by longstanding Kansas Supreme Court 

precedent holding that Kansas courts only require notice pleading. See Williams v. C-UOut Bail Bonds, 54 Kan. App. 600, 605, 402 P.2d 558 (2017), rev'd on other grounds by 

310 Kan. 775. On review, the Kansas Supreme Court similarly declined the invitation to 

adopt the federal standard. Williams, 310 Kan. at 785.

Our discussion could end here. Like the panel in Williams, we are duty-bound to 

follow Kansas Supreme Court precedent unless the court has signaled an intention to 

depart from its previous caselaw. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 

(2017). But we also note that the history of our notice-pleading standard demonstrates 

why a distinction exists between dismissals under Kansas and federal law and explains

the wisdom of maintaining a more permissive standard under state law.

In the late 1800s, Kansas courts, like our federal counterparts, followed a rigorous

pleading standard known as code (or form) pleading. Auld and Auld v. Butcher and 

Butcher, 2 Kan. 135, 141, 143, 1863 WL 319 (1863); Zane v. Zane, 5 Kan. 134, 137-38, 

1869 WL 414 (1869). Code pleading relied heavily on the allegations and claims in the 

plaintiff's petition throughout the proceedings, using it to govern the entire course of the 

lawsuit. Auld and Auld, 2 Kan. at 141, 143. Petitions were limited to one "distinct and 

definite theory" of relief, and plaintiffs could not pursue recovery under "a theory 

essentially different from the one [the petition] alleged." Grentner v. Fehrenschield, 64 

Kan. 764, 766, 769, 68 P. 619 (1902). Petitions under the code-pleading standard were 

required to contain "every fact that [was] essential" to the claim that the plaintiff had preselected. Auld and Auld, 2 Kan. at 141.
11

Courts enforced this code-pleading standard strictly, finding a failure to state all 

essential facts of a cause of action as "'an incurable defect.'" 2 Kan. at 142. A defendant 

could "take advantage of this defect" at any time and have the case dismissed, even after 

a verdict for the plaintiff had been rendered—known as an arrest of judgment. 2 Kan. at 

140. Even the most meticulous plaintiffs struggled to comply with code pleading's 

burdensome requirements, driving courts themselves to admit that the code resulted in an 

"obnoxious practice." 2 Kan. at 141.

In the early 1900s, Kansas courts shifted to a new pleading system that was rooted 

in providing a defendant notice of a plaintiff's claims and allowing investigation during 

the lawsuit to fill in details. Brooks v. Weik, 114 Kan. 402, 407-09, 219 P. 528 (1923). The 

Brooks court explained that under this new standard, it was "enough fairly to inform the 

defendant what the suit is about, and even if inconsistencies appear, they are not fatal if, 

on any theory, the plaintiff states a cause of action." 114 Kan. at 408; see also Railway

Co. v. Murphy, 75 Kan. 707, 710, 90 P. 290 (1907); Grenola State Bank v. Lynam, 123 

Kan. 275, 276-77, 255 P. 44 (1927); Parkhurst v. Investors Syndicate, 138 Kan. 7, 10-11, 

23 P.2d 589 (1933) (all applying a similar standard). Courts also began allowing plaintiffs 

to amend their petitions more liberally. Snehoda v. National Bank, 115 Kan. 836, 839-40, 

224 P. 914 (1924). And courts no longer required plaintiffs to plead a single, pre-selected 

cause of action. See Pratt v. Barnard, 159 Kan. 255, 257-58, 154 P.2d 133 (1944). 

The Kansas Rules of Civil Procedure, which were patterned after the Federal 

Rules of Civil Procedure and became effective in 1964, codified this new approach. Both 

K.S.A. 1963 Supp. 60-212 and Federal Rule of Civil Procedure 12 adopted the principle 

that a "'complaint should not be dismissed merely because [a] plaintiff's allegations do 

not support the legal theory he intends to proceed on, since the court is under a duty to 

examine the complaint to determine if the allegations provide for relief on any possible 

theory.'" Monroe v. Darr, 214 Kan. 426, 430, 520 P.2d 1197 (1974).
12

For years, both Kansas and federal courts continued to use this notice-pleading 

standard. But a little over 15 years ago, federal courts began to move toward a more 

demanding pleading requirement. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 

1937, 173 L. Ed. 2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 

S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Under the Twombly-Iqbal standard now used in 

federal courts, a plaintiff's initial pleading must include a short, plain statement of the 

claim and "contain sufficient factual matter, accepted as true, to 'state a claim to relief that 

is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "A 

claim has facial plausibility when the plaintiff pleads factual content that allows the court 

to draw the reasonable inference that the defendant is liable for the misconduct alleged." 

Iqbal, 556 U.S. at 678. The plausibility standard "asks for more than a sheer possibility 

that a defendant has acted unlawfully." 556 U.S. at 678. Our Kansas Supreme Court has 

recognized that the federal plausibility standard is "more difficult for plaintiffs to meet 

than the traditional Kansas standard." Williams, 310 Kan. at 784.

This more stringent pleading standard is rooted, in part, in the recognition that 

federal courts are courts of limited jurisdiction. See Galvin v. Del Toro, 586 F. Supp. 3d 1, 

8 (D.D.C. 2022); Morgan v. Cochise County Board of Supervisors, 487 F. Supp. 3d 789 

(D. Ariz. 2020); Garcia v. Jones, No. 6:22-cv-00118-AA, 2022 WL 2754853, at *3 (D. 

Or. 2022) (unpublished opinion). Federal courts "possess only that power authorized by 

[the United States] Constitution and [federal] statute." Kokkonen v. Guardian Life Ins. 

Co. of America, 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). This 

means, as a practical matter, that federal courts presume that a plaintiff's claim "lies 

outside this limited jurisdiction," and the plaintiff bears the burden of proving otherwise. 

511 U.S. at 377. In other words, a plaintiff in a federal case must plead their way into 

federal court, demonstrating the case presents a plausible claim that a federal court may 

consider. 
13

Kansas courts do not have these same limitations or their corresponding pleading 

requirements. State courts, as courts of general jurisdiction, have nearly "unlimited 

jurisdiction" over most claims. See Turner v. Bank of North America, 4 U.S. 8, 10, 1 L. 

Ed. 718 (1799); see also Chalmers v. Burrough, 314 Kan. 1, Syl. ¶ 2, 494 P.3d 128 (2021) 

(Kansas district courts are courts of "general jurisdiction unless otherwise provided by 

law."). Unlike their federal counterparts, Kansas district courts presume that a claim "is 

within [their] jurisdiction unless the contrary appears." Turner, 4 U.S. at 10. That is, we 

presume Kansas courts may hear whatever claims a plaintiff pursues. And instead of 

requiring a plaintiff to demonstrate that a claim belongs in a Kansas court, a lawsuit filed 

in Kansas may proceed as long as the facts included in the petition and the reasonable 

inferences that can be drawn from those facts "state any claim upon which relief can be 

granted." Williams, 310 Kan. 775, Syl. ¶ 2. 

Thus, as the Kansas Supreme Court reiterated in Williams, Kansas courts have 

"'sound reasons for exercising judicial skepticism towards dismissal of a petition for 

failure to state a claim prior to the completion of discovery.'" 310 Kan. at 785. Our 

Supreme Court has not indicated a willingness to depart from this century-old standard. 

And the history and breadth of Kansas courts' jurisdiction demonstrate the wisdom of 

continuing to evaluate petitions under a notice-pleading approach. We decline Wells 

Fargo's invitation to adopt the federal courts' plausibility analysis for motions to dismiss.

2. The district court erred when it dismissed the lawsuit based on allegations and 

documents outside the Estate's petition.

As we have indicated, K.S.A. 2023 Supp. 60-208(a) requires a petition to include a 

"short and plain statement" showing the plaintiff is entitled to relief and a description of 

the relief sought. The petition merely commences the lawsuit—it "is not intended to 

govern the entire course of the case." Berry v. National Medical Services, Inc., 292 Kan. 

917, 918, 257 P.3d 287 (2011). The "theory on which the modern lawsuit is tried is 
14

shaped by the facts [that] are unveiled through the discovery process." Noel v. Pizza Hut, 

Inc., 15 Kan. App. 2d 225, 233, 805 P.2d 1244 (1991). And the "legal issues and theories 

on which the case will be decided" are "ultimate[ly]" defined by the final pretrial order. 

Unruh v. Purina Mills, 289 Kan. 1185, 1191, 221 P.3d 1130 (2009).

The Estate's petition alleged that Rogers had a checking account and a savings 

account with Wells Fargo and that Wells Fargo "wrongfully" distributed over $38,000 out 

of those accounts to Greenelsh. The Estate argued that Wells Fargo should be required to 

return those funds, plus interest and the costs of the lawsuit.

Wells Fargo asserts that the nature of the Estate's claim (or claims) was unclear 

from these allegations. We note, however, that Wells Fargo did not ask the district court 

to order the Estate to amend its petition to include a more definite statement of its claim. 

See K.S.A. 2023 Supp. 60-212(e). Instead, Wells Fargo asked the district court to dismiss 

the petition entirely, asserting it failed to state any claim for relief. 

Although Wells Fargo fashioned its motion as requesting dismissal under K.S.A. 

60-212(b)(6), it did not really assert—beyond recitation of the statutory standard—that 

the Estate failed to state a claim in its petition. Rather, the motion asserted that the Estate

should not prevail in its lawsuit against Wells Fargo. Wells Fargo essentially sought 

judgment as a matter of law based on its defense that Utah law should govern the Estate's 

claim and its belief that Utah law immunized the bank's actions. To support these 

defenses, Wells Fargo asserted several matters outside the petition—that Rogers 

originally opened his Wells Fargo accounts in Utah, that these accounts were governed by 

Utah law, that Greenelsh provided a Utah Affidavit to a bank branch in California, and 

that Utah law required the bank to pay Greenelsh without taking any further 

precautionary measure and immunized it from suit.
15

In granting Wells Fargo's motion, the district court inverted the standards 

governing K.S.A. 60-212(b)(6) motions. Instead of presuming the facts in the petition 

were true and evaluating the petition to see whether it stated any claim for relief, the 

court presumed that the facts in Wells Fargo's motion were correct. Rather than allowing 

the Estate an opportunity to conduct discovery based on these allegations and controvert 

any of those facts through the summary-judgment procedure, the court's journal entry 

dismissing the case stated the court had "made findings of fact" based on the record 

before it. This procedure is fundamentally at odds with longstanding Kansas caselaw and 

requires reversal. See Kudlacik, 309 Kan. at 790; Cohen, 296 Kan. at 546.

On appeal, Wells Fargo acknowledges that Kansas courts ordinarily may not 

venture outside the petition when evaluating a motion to dismiss. But it points out that 

Kansas caselaw allows district courts to consider some documents that are not attached to 

the petition but are "central to the plaintiff's claim" without converting a motion to 

dismiss to a motion for summary judgment. Crosby v. ESIS Insurance, No. 121,626, 2020 

WL 6372266, at *2 (Kan. App. 2020) (unpublished opinion), rev. denied 314 Kan. 854 

(2021). The Estate argues that the district court could rely on this exception to consider 

the three documents that Wells Fargo attached to its motion and reply to support its 

defenses.

It is well settled that a district court faced with a motion to dismiss may only 

consider the plaintiff's petition and any documents attached to it. See Minjarez-Almeida, 

63 Kan. App. 2d at 242. As Wells Fargo notes, however, we have recently recognized a 

rare exception to this rule that applies in some cases founded on written instruments. See 

63 Kan. App. 2d at 242; Crosby, 2020 WL 6372266, at *2-3. In these cases, when the 

plaintiff's claim hinges on the language of a written instrument not attached to the 

petition, Kansas courts may consider an undisputedly authentic copy of that written 

instrument attached to a motion to dismiss without converting that request to one for 

summary judgment. 
16

This limited exception is an extension of a special pleading rule reserved for 

written instruments. K.S.A. 2023 Supp. 60-209(h) allows a plaintiff asserting a claim that 

arises from a written instrument—like a claim for breach of a written contract—to 

describe the contents of that document in their petition or to attach the document to the 

pleading. We found in Crosby that a plaintiff "should not be permitted to circumvent 

dismissal" by thwarting this rule—that is, "by failing to attach or accurately describe a 

written contract on which a lawsuit is based when no one disputes a contract's 

authenticity." 2020 WL 6372266, at *3.

The circumstances in Crosby illustrate when this narrow exception applies. 

Tywana Crosby's petition alleged that she and ESIS Insurance had a written contract to 

rent a car and that ESIS had breached that contract, causing Crosby damages. Crosby did 

not provide any more information about the alleged contract and did not attach it to her 

petition. ESIS moved to dismiss the lawsuit under K.S.A. 60-212(b)(6) and attached a 

copy of a written contract between Crosby and a car rental company—not ESIS. ESIS 

alleged that Crosby did not have a contract with it and had sued the wrong party. In 

response, Crosby did not dispute the authenticity of the contract or ESIS's assertion that 

her contract was with a different company. Under those limited facts, we found that 

Crosby should have attached the contract to her petition, and the failure to do so did not 

prevent the court from considering that contract when assessing whether Crosby's petition 

stated a claim against ESIS. 2020 WL 6372266, at *3.

We also applied this rule in Minjarez-Almeida, but with a different outcome. 

There, students claimed that Kansas State University had breached its contract with them 

in various ways during the COVID-19 pandemic. The university claimed that it had no 

contract with the students to provide the services they claimed were lacking. At the same 

time, it attached to its motion to dismiss an undisputedly authentic—but ambiguous—

written agreement saying the university would provide "educational services" in 
17

exchange for tuition and fees. 63 Kan. App. 2d at 243. We found the district court should 

have considered this written agreement when it ruled on the university's motion to 

dismiss. But because factual questions remained as to what the written agreement meant 

by "educational services," dismissal was improper. 63 Kan. App. 2d at 244.

More recently, we declined to apply this exception in Employers Mut. Cas. Co. v. 

Jayhawk Fire Sprinkler Co., No. 124,001, 2024 WL 136654 (Kan. App. 2024)

(unpublished opinion). In that case, the petition alleged that Jayhawk had negligently 

installed a fire protection system in 2013 for a company the plaintiff insured, causing that 

company—and eventually the plaintiff—damages. Jayhawk moved to dismiss the petition 

under K.S.A. 60-212(b)(6), claiming that the plaintiff's insured had waived the right to 

collect for damages in a contract. Jayhawk then attached a copy of a 2017 work invoice 

for the inspection of the insured's system that contained a waiver of liability. Jayhawk 

asserted that this same waiver language appeared in all invoices for any work Jayhawk 

performed for the company. The district court concluded it could consider this invoice, 

along with Jayhawk's allegation that the same language appeared in all other contracts, 

and dismissed the lawsuit.

This court reversed the district court's dismissal. We noted that the plaintiff 

asserted that Jayhawk's negligence damaged the plaintiff's insured in 2013—not 2017—

and we disagreed with the district court's finding that it could consider the 2017 invoice 

because it was "'referenced'" in the petition. 2024 WL 136654, at *3. Rather, "the mere 

reference to a document in a petition does not make the document '"central to the 

plaintiff's claim"' or proper for submission by a defendant and consideration by the court 

in a motion to dismiss." 2024 WL 136654, at *3. And Jayhawk's assertion that the waiver 

appeared on all invoices for any work it performed for the insured was an allegation 

outside the petition. 2024 WL 136654, at *3. Because this allegation and the 2017 invoice 

were matters outside the petition, we found the district court erred by dismissing the case 

under K.S.A. 60-212(b)(6). 2024 WL 136654, at *4.
18

These decisions demonstrate that when a plaintiff asserts a claim based on a 

written instrument, courts will consider an undisputedly authentic copy of that written 

instrument attached to a motion to dismiss without converting the motion to a request for 

summary judgment. But courts will not resolve factual questions surrounding those 

instruments as part of a K.S.A. 60-212(b) motion. Nor will courts consider documents 

attached to a motion to dismiss that are not central to the plaintiff's claim or when there is 

a reasonable question about their applicability or authenticity. To date, we have only used 

this rule to affirm the district court's dismissal of Crosby's breach-of-contract claim.

The district court's actions here were similar to those requiring reversal in 

Employers Mut. Cas. Co. The court concluded that it could consider the three documents 

Wells Fargo attached to its motion to dismiss and reply in support of that motion—the 

2008 account application, the 2021 account agreement, and Greenelsh's Utah Affidavit—

because those documents helped resolve the Estate's claim, not because the claim arose 

out of those documents. In other words, the documents provided evidence relevant to the 

Estate's claim; they were not foundational written instruments giving rise to the Estate's 

claim. 

As in Employers Mut. Cas. Co., the district court found it could consider 

Greenelsh's affidavit because it was "reference[d]" in the Estate's petition. The court then 

found that Rogers' bank accounts were opened in Utah in 2008, even though the checking 

account number on that application differed from the account number listed in the 

Estate's petition; the court resolved this discrepancy by accepting Wells Fargo's assertion 

that the account number had changed over time. And the court found it could consider the 

account agreement attached to Wells Fargo's reply in support of its motion to dismiss 

because the Estate had time to consider its contents and address it at the oral argument on 

Wells Fargo's motion.
19

Thus, instead of basing its ruling on the petition and resolving factual disputes in 

the Estate's favor, the district erred by accepting Wells Fargo's factual allegations—which 

were not included in the petition—as true. The court erred by considering documents that 

may have been relevant from an evidentiary standpoint but were not central to the 

Estate's claim in the manner discussed in Crosby. The court then exacerbated these 

procedural errors by refusing to allow the Estate more time to evaluate the evidentiary 

merit of these assertions and treat Wells Fargo's request as a motion for summary

judgment. See K.S.A. 2023 Supp. 60-212(d). As in Employers Mut. Cas. Co., these 

actions require us to reverse the district court's dismissal of the Estate's petition.

3. The district court erred when it dismissed the Estate's petition for failure to state a 

claim.

The Estate also challenges the district court's legal conclusion that the documents 

attached to Wells Fargo's filings, as well as the bank's factual assertions, demonstrate that 

the Estate cannot succeed on its claim. In particular, it asserts the district court erred 

when it found that the Estate's claim against Wells Fargo was governed by Utah law and 

that Utah law provided a complete defense for the bank's distribution of the funds to 

Greenelsh.

Because we have concluded that the district court erred in considering these 

documents, and by refusing to permit the Estate to conduct discovery so it could assess 

the accuracy of Wells Fargo's assertions, it would be premature to address those 

documents and assertions without first allowing the Estate the opportunity to provide 

further context. We pause, however, to comment on the path the district court employed 

in concluding that Utah law governed—and foreclosed—the Estate's claim and to provide 

some instruction on the contours of that question for the court to consider on remand.
20

Courts presume that lawsuits filed in Kansas are governed by Kansas law. See 

Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 144, 38 P.3d 757 (2002); 

see also AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 731, 71 P.3d 1097 (2003) 

(district court's decision to apply Kansas law in the absence of a conflict of laws was 

sound). The party seeking the application of a different state's law bears the burden of 

persuading the courts that the other law should apply. Layne Christensen Co., 30 Kan. 

App. 2d at 143-44.

With few exceptions, Kansas courts follow the principles articulated in the 

Restatement (First) of Conflict of Laws (1934) to determine which state's substantive law 

should govern. Brenner v. Oppenheimer & Co., 273 Kan. 525, 538, 44 P.3d 364 (2002). 

But see In re K.M.H., 285 Kan. 53, 60-62, 169 P.3d 1025 (2007) (using a multifactor 

interest-analysis similar to the Restatement [Second] of Conflict of Laws §§ 6, 287[1] & 

comment d [1969], for a conflict arising in a parentage case). In general, we defer to the 

parties' contractual selection as to which law should apply, so long as that selection bears 

some connection to the transaction and the law chosen does not violate Kansas public 

policy. Brenner, 273 Kan. 525, Syl. ¶ 5. Courts are not compelled to give effect to a 

choice-of-law clause if the law the parties have chosen "contravenes the settled public 

policy" of this state. 273 Kan. 525, Syl. ¶ 6.

On remand, the district court should remain mindful that Kansas courts begin with 

the presumption that Kansas law governs the Estate's claim. Wells Fargo must show that 

the law of a different state—such as Utah—applies. This requires a showing that there is 

a meaningful conflict between Kansas and Utah law and that the facts support a 

conclusion that Utah law should govern (including, but not limited to, a determination 

that the Estate's claim fell within the scope of any choice-of-law clause). See AT&SF Ry.

Co., 275 Kan. at 762 (concluding that no choice-of-law issue arose when Kansas and 

Illinois law were not in conflict). This burden normally cautions against dismissal under 

K.S.A. 60-212(b)(6), as it often requires a defendant seeking the application of a different 
21

law to assert and sufficiently prove additional facts outside of the petition, as Wells 

Fargo's motion attempted to do in this case.

If the district court concludes that Utah law applies to the Estate's claim, it must 

then ascertain how the issues in the case would be resolved under Utah law. In its motion, 

the bank cited the Utah statute concerning small estate affidavits, Utah Code Ann. § 75-3-

1202, and the district court applied this statute in isolation to dismiss the case. A complete 

choice-of-law analysis is not so reductive.

Rather, if Utah law applies, the district court must determine how a Utah court 

would treat the Estate's claim. Parties cannot expand a state statute's express geographical 

reach by merely including a choice-of-law clause in a contract. See, e.g., Cotter v. Lyft, 

Inc., 60 F. Supp. 3d 1059, 1064-65 (N.D. Cal. 2014) (concluding a choice-of-law clause 

in a contract does not support the extraterritorial expansion of a state statute when the 

geographical limitations in the statute exclude one of the parties). Consistent with this 

principle, several questions must be answered before the Utah limitations on liability can 

come into play. 

The statute cited by Wells Fargo is part of the Utah Probate Code, which only 

applies to nonresident decedents if they have property located in Utah. See Utah Code 

Ann. § 75-1-301(2). Thus, Utah Code Ann. § 75-3-1202 would only apply if the funds in 

the Estate's bank accounts were deemed—under Utah law—to be located within Utah. 

The district court made no finding to this effect when it dismissed the Estate's claim, nor 

has either party cited to a Utah statute or judicial decision supporting such a conclusion. 

The sole Utah decision cited by Wells Fargo on this point held that intangible property 

can be treated as though it is located in Utah when, regardless of the domicile of the 

owner, a probate action is properly commenced in that state. See In re Thourot's Estate, 

52 Utah 106, 172 P. 697, 699 (1918). But the Utah Supreme Court observed in that case 

that this principle was an exception to the more general rule in that state that "all 
22

intangible property is presumed to have its situs at the domicile of its owner." 172 P. at 

699. Rogers was residing in Kansas at the time of his death. His estate was probated in 

Kansas.

The district court may perhaps conclude, following discovery, that the facts 

alleged in Wells Fargo's motion are accurate and govern the outcome of this case. The 

court may eventually conclude that the Estate cannot prevail on its claims. But as our 

discussion here demonstrates, several factual and legal questions must be resolved before 

any such conclusion would be appropriate. And most important, these questions cannot 

be determined at this stage, based on the Estate's petition.

The district court erred when it dismissed the Estate's petition for failure to state a 

claim on which relief can be granted under K.S.A. 60-212(b)(6). We reverse that 

judgment and remand the case for further proceedings.

Reversed and remanded with directions.

* * *

ATCHESON, J., concurring: Although I agree that the Butler County District Court 

precipitately dismissed this action the Estate of Craig W. Rogers brought against Wells 

Fargo Bank to recover about $38,000 the bank delivered to an apparently roguish 

interloper, I would jump through one more hoop than the majority does in reversing and 

remanding. The Bank has asserted—with little in the way of supporting authority—that it 

is effectively immunized under Utah law for the payout. Neither in the district court nor 

here has the Bank marshalled a persuasive legal argument for relief, especially given the 

exceptionally abbreviated factual record. So I would send the case back for further 

proceedings to more fully develop both the relevant facts and the governing legal 

principles.
23

When Rogers, a resident of Andover, died, he had a checking account and a 

savings account with the Bank. In its two-page petition, Rogers' Estate alleged the Bank 

wrongfully gave the money in those accounts to Bryan T. Greenelsh in response to 

"written claims" he presented; the Estate, therefore, sought damages from the Bank 

equivalent to the account balances, interest, and other relief. Greenelsh appears as a 

spectral presence in the abbreviated record in this case—having neither an identifiable 

association with Rogers nor a claim to the money in the accounts beyond the audacious 

demand for payment itself. Maybe some of that will become clearer (and less remarkable) 

on remand. 

In response to the petition, the Bank filed a motion to dismiss for failure to state a 

claim under K.S.A. 60-212(b)(6). In briefing the motion to the district court, the Bank 

submitted three documents: (1) a form showing Rogers opened the accounts in Utah; (2) 

a bank agreement saying the law of the state in which an account was opened governs 

any legal disputes; and (3) an affidavit from Greenelsh representing that he is a successor 

to or acting on behalf of Rogers and requesting that the Bank pay him the account 

balances in accordance with Utah Code Ann. § 75-3-1201, governing the collection of 

certain personal property upon the owner's death. Relying on a companion Utah statute, 

the Bank argued it had been "discharged and released" from any liability to Rogers' 

Estate by paying in accordance with the affidavit, so the Estate's remedy lay in an action 

against Greenelsh. Utah Code Ann. § 75-3-1202. The district court agreed and dismissed 

the Estate's action against the Bank.

The Estate has appealed, and in response, the Bank makes essentially the same 

argument to us.

The majority ably describes both the especially stringent standard for granting a 

motion to dismiss and the Kansas appellate courts' continued adherence to traditional 

notice pleading despite the federal courts' ongoing drift toward requiring more detailed
24

factual allegations in an opening pleading. Concomitantly, as the majority explains, a 

district court considering a motion to dismiss under K.S.A. 60-212(b)(6) typically should 

look only at the well-pleaded allegations of the petition. And as a general rule, the district 

court converts a motion to dismiss to one for summary judgment if it considers 

documents or other evidence outside the petition. The district court must then give the 

parties an opportunity to submit additional evidentiary materials and legal arguments 

before ruling. K.S.A. 2023 Supp. 60-212(d). 

But there is an exception to those principles. The district court may consider a 

document that has not been submitted with the petition if it is integral to the plaintiff's 

core claims and its authenticity is otherwise undisputed. Minjarez-Almeida v. Kansas Bd. 

of Regents, 63 Kan. App. 2d 225, 242, 527 P.3d 931 (2023); Employers Mut. Cas. Co. v. 

Jayhawk Fire Sprinkler Co., No. 124,001, 2024 WL 136654, at *3 (Kan. App. 2024) 

(unpublished opinion). For example, if the plaintiff alleges a breach of contract, they 

must either set forth with particularity the relevant terms of the contract in the petition or 

append a copy of the written agreement. See K.S.A. 2023 Supp. 60-209(h). If the plaintiff 

fails to do so, the defendant may submit the contract with a motion to dismiss. The 

contours of the exception aren't especially well defined, and how the exception applies to 

documents less central than a contract in a breach-of-contract action often devolves into a 

case specific determination unsuited to some overarching rule.

For purposes of this appeal, the document showing Rogers opened the accounts in 

Utah and the bank agreement setting out the terms and conditions that apply to checking 

and savings accounts are integral to the contractual relationship between the two. The 

banking relationship defines the foundation for the Estate's claim. Assuming authenticity, 

the district court, then, properly considered those documents in ruling on the motion to 

dismiss without converting it to one for summary judgment. 
25

The Greenelsh affidavit is a closer question. But the petition specifically identifies 

"written claims" from Greenelsh as the device prompting the Bank's allegedly wrongful 

disbursement of the account balances. The specificity of the allegation makes the 

affidavit, as the instrument containing the claims, central to the Estate's action. And, in 

turn, the district court properly could review the affidavit in deciding the motion to 

dismiss. So I part ways with the majority on that narrow point.

Consistent with notice pleading, the Estate could have alleged simply that the 

Bank wrongfully disbursed the money to a third party. If the petition had stated no more, 

I would be inclined to agree the affidavit would not be so obviously integral to the core 

allegations of the petition that the Bank could have submitted it in support of a motion to 

dismiss. In that circumstance, the Bank arguably could have sought a more definite 

statement under K.S.A. 60-212(e) or, more likely, could have filed an answer and 

promptly sought summary judgment with minimal discovery. By pleading more than 

what was strictly necessary, the Estate opened a procedural door for the Bank. See 

Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994) (Under traditional notice pleading, 

"if a plaintiff does plead particulars, and they show that he has no claim, then he is out of 

luck—he has pleaded himself out of court.").

But the Bank stepped through the door to offer a legal argument in the district 

court and again on appeal built on presumptuousness rather than proof. And that isn't 

good enough to prevail on a motion to dismiss. Rogers appears to have opened the 

accounts in Utah. The savings account, which had just over $34,000 in it, continued 

unchanged through the payout to Greenelsh. But the checking account had a different 

identification number than the checking account Rogers first opened. I put this 

unexplained discrepancy in account numbers aside for now; it would simply be another 

consideration favoring reversing and remanding. Under the terms and conditions for the 

accounts, the law of the state where an account was opened governs. The Bank says Utah 
26

law applies, and that appears to be correct for the savings account and maybe for the 

checking account.

But the Bank's argument falters on its premise that Utah Code Ann. § 75-3-1201 

authorized the disbursement of the money in the accounts to Greenelsh when he 

presented the affidavit for collection of estate assets. The statute covers "tangible personal 

property or an instrument evidencing a debt, obligation, stock, or chose in action 

belonging to the decedent" in an estate with a value "not exceed[ing] $100,000." Utah 

Code Ann. § 75-3-1201(1). And, as we have outlined, a party relinquishing possession of 

covered personal property to someone presenting an affidavit conforming to Utah Code 

Ann. § 75-3-1201 is relieved of any further obligation to a personal representative of the 

decedent, such as the administrator of the estate. Utah Code Ann. § 75-3-1202. The Bank 

has asserted the shield in Utah Code Ann. § 75-3-1202 as a legal bar to the Estate's 

action. 

But traditional bank accounts may be considered intangible rather than tangible 

personal property, and they do not obviously seem to be instruments otherwise identified 

in Utah Code Ann. § 75-3-1201(1). See Nemariam v. Federal Democratic Republic of 

Ethiopia, 400 F. Supp. 2d 76, 83-84 (D.D.C. 2005) (collecting cases finding bank 

accounts to be intangible property); Simowitz & Silberman, Nonparty Jurisdiction, 55 

Vand. J. Transnat'l L. 433, 451 n.83 (2022) ("Bank accounts are classic intangible 

assets."); 84 C.J.S., Taxation § 422 (characterizing bank accounts as "property of an 

intangible nature"); 30 Am. Jur. 2d, Executions § 471 (characterizing bank accounts as 

intangible personal property of debtor for collection purposes); 76 Am. Jur. 2d, Trusts 

§ 176 (bank accounts considered intangible personal property subject to constructive 

trusts). The Bank has presented no persuasive argument to the contrary based on Utah 

authority or more general legal principles.
27

Rather, the Bank has pointed us to In re Thourot's Estate, 52 Utah 106, 172 P. 697 

(1918), a case that largely undermines its position. The narrow question in that case 

turned on whether an account in a Salt Lake City bank was subject to personal property 

tax there, although the deceased depositor lived in Nevada. The court seemed to 

recognize the bank account to be intangible personal property that typically would be 

treated as "hav[ing] its situs at the domicile of the owner." 172 P. at 699. 

That rule cuts against the Bank here. In Thourot's Estate, the court held that 

because an estate had been opened for the deceased depositor in Utah with a Utah 

resident serving as executor, the account then became taxable Utah property. The holding 

on those particular facts in no way suggests Rogers' accounts should be considered 

tangible personal property or should otherwise come within the scope of Utah Code Ann. 

§ 75-3-1201. And, in turn, Thourot's Estate doesn't support the Bank's argument for 

protection under Utah Code Ann. § 75-3-1202.

In sum, the Bank has failed to offer a sufficient legal basis for granting its motion 

to dismiss the Estate's action. The district court erred in doing so. I would reverse and 

remand for further proceedings with the understanding that on a more fully developed 

factual record and a retooled legal argument from the Bank, the district court would be 

free to reconsider whether those Utah statutes apply.