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NOT DESIGNATED FOR PUBLICATION

No. 122,653

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a CHRISTIANA TRUST,

Not in its Individual Capacity but Solely as Trustee for Brougham Fund 1 Trust,

Appellant,

v.

JOSEPH CAMPBELL and LAURA J. CAMPBELL,

Appellees.

MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed June 11, 2021.

Reversed and remanded with directions.

Kersten L. Holzhueter, of Spencer Fane LLP, of Kansas City, Missouri, for appellant. 

Mark E. McFarland, of Hinkle Law Firm LLC, of Lenexa, for appellees.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: The Johnson County District Court granted summary judgment in 

this mortgage foreclosure action for Defendants Joseph and Laura Campbell because two 

earlier foreclosure actions against them had been dismissed without prejudice by court 

orders entered on plaintiffs' motions. In doing so, the district court misapplied the statute 

governing successive dismissals of civil actions. We, therefore, reverse the summary 

judgment and remand to the district court with directions to reinstate this foreclosure 

action. We do so because K.S.A. 60-241(a) plainly requires that result notwithstanding 
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the questionable practices of the lawyers representing the mortgage holders in the earlier 

actions and the district court's failure to carefully police those practices.

FACTUAL AND PROCEDURAL HISTORY

On appeal, the parties agree the district court accurately set out the relevant facts 

in its memorandum decision and order granting summary judgment. We do not look 

behind that agreement and sketch an abbreviated account of the litigation history 

pertinent to the statutory issue before us. 

In 2002, the Campbells initially mortgaged the real property that has since been 

subject to the foreclosure proceedings. We infer the property to be a developed residential 

lot. We skip ahead about a decade:

⦁ BMO Harris Bank, as the mortgage holder, filed a foreclosure action against the 

Campbells in 2013 in the district court. Lawyers with South & Associates represented the 

bank. The bank filed a motion for summary judgment that was fully briefed by both 

sides. With a ruling on summary judgment pending, the bank filed a motion in April 2014 

requesting an order dismissing the action without prejudice. Under Supreme Court Rule 

133(b) (2021 Kan. S. Ct. R. 214), a party filing a motion in a civil action must allow the 

opposing party seven days after service of the motion to file a response unless the district 

court directs otherwise. The rule has been in effect in its present form since July 2012 

and, therefore, governed the dismissal motion the bank submitted to the district court.

The lawyers for the bank served the motion on the lawyers representing the 

Campbells but obtained a signed dismissal order from a district court judge four days 

after filing the motion and without setting the matter for hearing. The order expressly 

stated the dismissal was without prejudice. 
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⦁ Later in 2014, PrimeStar Trust acquired the mortgage and corresponding note. 

PrimeStar, represented by South & Associates, filed a new foreclosure action in February 

2015. The Campbells filed an answer, although how that case progressed isn't entirely 

clear from the record in front of us. In any event, Primestar filed a motion to dismiss 

without prejudice in August 2016 and obtained a signed order of dismissal from a district 

court judge the next day without a hearing. In its memorandum decision in this case, the 

district court characterized the August 2016 order as "seemingly without prejudice," a 

reference we take to mean the order did not explicitly state one way or the other. That 

order is not included in the record on appeal, so we rely on what's in the memorandum 

decision, as the parties have agreed.

The agreed-upon facts do not indicate the lawyers for the Campbells objected to 

the order of dismissal or sought to set it aside under K.S.A. 60-259 or K.S.A. 60-260. 

We, therefore, assume no such objections or efforts were made. 

⦁ Wilmington Savings Fund Society, FSB d/b/a Christiana Trust, not in its 

individual capacity but solely as Trustee for Brougham Fund 1 Trust, the plaintiff in this 

case, acquired the mortgage and note. Wilmington Savings, represented by lawyers from 

Martin Leigh, P.C., filed this foreclosure action against the Campbells in December 2017. 

Wilmington Savings and the Campbells filed cross-motions for summary judgment. As 

we have indicated, the district court entered summary judgment for the Campbells on the 

grounds that the voluntary dismissal of the 2014 action necessarily was on the merits 

under K.S.A. 60-241(a), thereby precluding this foreclosure action. Wilmington Savings 

has duly appealed.

LEGAL ANALYSIS

The standards governing summary judgment motions in the district court and on 

appeal are settled and often repeated. We do not belabor them here, since the parties do 
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not suggest there are any disputed issues of material facts bearing on the district court's 

ruling. Essentially, the courts must give the nonmoving party the benefit of any disputed 

facts and any reasonable inferences drawn from the facts. If the moving party is entitled 

to judgment as a matter of law on that review of the record, then summary judgment 

properly may be entered. See Estate of Randolph v. City of Wichita, 57 Kan. App. 2d 686, 

689-90, 459 P.3d 802, rev. denied 312 Kan. 891 (2020). The issue here turns on the 

application of K.S.A. 60-241(a) to the undisputed facts and, thus, presents a question of 

law.

In pertinent part, K.S.A. 2020 Supp. 60-241 provides: 

"(a) Voluntary dismissal. (1) By the plaintiff. (A) Without a court order. Subject 

to subsection (e) of K.S.A. 60-223, K.S.A. 60-223a and K.S.A. 60-223b, and 

amendments thereto, and any applicable state statute, the plaintiff may dismiss an action 

without a court order by filing:

(i) A notice of dismissal before the opposing party serves either an answer or a 

motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared. When the 

dismissal is by stipulation, the clerk of the court must enter an order of dismissal as a 

matter of course.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is 

without prejudice. But if the plaintiff previously dismissed any federal- or state-court 

action based on or including the same claim, a notice of dismissal operates as an 

adjudication on the merits.

(2) By court order; effect. Except as provided in paragraph (1), an action may be 

dismissed at the plaintiff's request only by court order, on terms that the court considers 

proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's 

motion to dismiss, the action may be dismissed over the defendant's objection only if the 

counterclaim can remain pending for independent adjudication. Unless the order states 

otherwise, a dismissal under this paragraph is without prejudice." 
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On appeal, Wilmington Savings submits the district court erred in concluding the 

dismissal order ending the second foreclosure action effectively operated as a notice of 

dismissal and, therefore, amounted to an adjudication on the merits. We agree with 

Wilmington Savings, given the plain language of K.S.A. 60-241(a).

By its terms, K.S.A. 2020 Supp. 60-241(a) regulates the voluntary dismissal of 

civil actions and draws a clear difference in procedure and effect between dismissals by 

court order, on the one hand, and dismissals by either notice of the plaintiff or stipulation 

of the parties, on the other hand. As provided in K.S.A. 2020 Supp. 60-241(a)(1)(B), if a 

plaintiff has once dismissed an action, a dismissal by notice of a second action based on 

or including the same claim amounts to an adjudication on the merits. As such, the 

second dismissal effectively creates a res judicata bar to a third action. See Jian Yang Lin 

v. Shanghai City Corp., 950 F.3d 46, 50 (2d Cir. 2020) (construing comparable provision 

of Fed. R. Civ. P. 41[a]); 9 Wright & Miller, Federal Practice and Procedure: Civil 4th § 

2368 (2021). This is commonly known as "the two-dismissal rule." See Sumner v. Law 

Offices of Jerry Berg, P.A., 20 Kan. App. 2d 572, Syl. ¶ 2, 890 P.2d 742 (1995).

The rule aims to prevent John Doe from litigiously harassing Richard Roe by 

serially filing and then dismissing by notice what functionally amounts to the same 

action. 9 Wright & Miller, Federal Practice and Procedure: Civil 4th § 2368. A dismissal 

by notice after an initial dismissal on any procedural basis interposes a legal bar to a third 

filing. And it applies to actions filed in different jurisdictions. But the rule comes into 

play only if the second dismissal is by notice. Sumner, 20 Kan. App. 2d at 573-74; 9 

Wright & Miller, Federal Practice and Procedure: Civil 4th § 2368. Although the 

pertinent language of K.S.A. 60-241(a) has been amended in the 25 years since Sumner, 

those changes have been editorial rather than substantive. So Sumner continues to 

correctly state the rule and how it operates. 
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Here, both dismissals preceding this action were by district court order. Those 

dismissals, therefore, did not trigger the two-dismissal rule in K.S.A. 2020 Supp. 60-

241(a)(1)(B). And the district court erred in dismissing this action in reliance on the rule.

In this respect, K.S.A. 60-241(a) is plain and unambiguous. District courts and 

appellate courts alike are obligated to review and apply statutes as they are written. In 

construing a comprehensive statute, such as this one governing dismissal of civil actions, 

an appellate court must, as a first priority, strive to honor the legislative intent and 

purpose. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). The court 

should look initially to the words of the statutes to discern legislative intent. Bussman v. 

Safeco Ins. Co. of America, 298 Kan. 700, 725-26, 317 P.3d 70 (2014). If those words are 

clear, they control. Judicial review should not, then, add something to the statutory 

language or take away something already there. Casco v. Armour Swift-Eckrich, 283 Kan. 

508, Syl. ¶ 6, 154 P.3d 494 (2007).

Here, the district court disregarded those principles to hold the court-ordered 

dismissal of the second foreclosure action ought to be treated as a dismissal by notice 

when it plainly was not. The district court noted that the lawyers for the plaintiff 

mortgage holder in the second action violated Rule 133 by obtaining a judge's signature 

on the dismissal order before the seven-day period for the Campbells to respond to the 

motion had expired. That's true. But neither K.S.A. 60-241(a) nor Rule 133 contains an 

exception expanding the two-dismissal rule in that circumstance. 

As we have indicated, the Campbells could have challenged the adequacy of the 

dismissal order in the second action. They did not. As a result, they forbore the 

opportunity to ask that the district court impose conditions on granting the dismissal 

without prejudice in that action. See K.S.A. 60-241(a)(2) (district court may order 

dismissal on plaintiff's motion "on terms [it] considers proper"). Trial courts may require 

the plaintiff to pay all or some portion of the defendant's litigation expenses, often 
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including attorney fees, as a condition for entering a dismissal order or as a condition 

precedent to filing another substantially similar action. See 9 Wright & Miller, Federal 

Practice and Procedure: Civil 4th § 2366 (2021) (considering Fed. R. Civ. P. 41). The 

district court's prerogative to impose conditions on a plaintiff in an order of dismissal 

affords the defendant a measure of protection against the oppressive filing of repetitive 

actions. That judicial authority shares a common objective with the two-dismissal rule, 

but it applies to court-ordered dismissals rather than to dismissals by notice. 

As we have also indicated, the lawyers for the mortgage holder in the second 

foreclosure action were, at best, neglectful and, at worst, indifferent to their duties under 

Rule 133 and the Campbells' right to fair notice and an opportunity to be heard on the 

motion to dismiss. The district court judge who signed the order in the second case 

apparently failed to take adequate steps to see that Rule 133 had been honored. But those 

deficiencies in the second foreclosure action do not create a license for the district court 

in this case to retool K.S.A. 60-241(a) to give the Campbells the benefit of the twodismissal rule. 

The district court's judicial magic in this case rested on two impermissible 

deviations from K.S.A. 60-241(a). First, as the district court acknowledged, it treated the 

dismissal order in the second action as the legal equivalent of a notice of dismissal. In 

addition, however, the plaintiff in the second action could not have dismissed by notice 

because the Campbells had already filed an answer in that case. And K.S.A. 60-

241(a)(1)(A)(i) expressly precludes a plaintiff from dismissing by notice after the 

defendant has answered or moved for summary judgment. So that's another 

unacknowledged problem with the district court's reasoning in granting the Campbells' 

motion for summary judgment. In short, courts can neither simply ignore statutory 

language nor recast the facts as something they are not to carry out what they perceive to 

be the spirit of the law rather than its letter. The district court did just that here, and its 

summary judgment for the Campbells must be set aside.
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In the interest of completeness, we consider and discount Gioia v. Blue Cross 

Hospital Service, 641 F.2d 540 (8th Cir. 1981), on which both the district court and the 

Campbells heavily rely. We recognize that our courts frequently draw on federal case 

authority to construe civil procedure statutes that have direct counterparts in the Federal 

Rules of Civil Procedure. See Rebarchek v. Farmers Co-op Elevator, 272 Kan. 546, 552, 

35 P.3d 892 (2001); Sumner, 20 Kan. App. 2d at 574; In re Marriage of Bos, No. 

109,850, 2014 WL 1796155, at *4 (Kan. App. 2014) (unpublished opinion). Regardless, 

however, Gioia is readily distinguishable. 

The case before the Eighth Circuit Court of Appeals in Gioia was the third action 

between the parties. The first had been filed and dismissed in Missouri state court; the 

second had been filed and dismissed in federal district court. The third was filed in the 

same federal district court. The district court dismissed the third action based on the twodismissal rule, and the appellate court affirmed. In the second action, Gioia filed what he 

captioned as a "Memorandum for Clerk" that purported to dismiss the suit without 

prejudice on the plaintiff's insistence. The filing did not conform to any recognized 

motion or notice contemplated in the federal procedural rules, although the requested 

result would have been something akin to a dismissal by notice. The district court judge 

in the second action signed a handwritten margin note on the filing stating, "So ordered." 

No separate order of dismissal was entered. 

In the third action, the district court construed the dismissal in the second action to 

be by notice rather than by court order, effectively disregarding the margin note. The 

appellate court affirmed, while acknowledging what it characterized as "multiple 

procedural errors" over the course of the litigation. 641 F.2d at 541. The district court, 

apparently with the acquiescence of the parties, identified the controlling issue before it 

to be simply whether the manner of dismissal in the second action was by notice or by 

order. As the appellate court pointed out, neither the district court nor the parties 
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considered the possibility that a dismissal by notice would have been ineffective in the 

second action. 641 F.2d at 543 & n.6. That's a significant difference from the record here.

As we have explained, a notice of dismissal could not have been effective in the 

second foreclosure action here specifically because the Campbells had filed an answer. 

So the dismissal of that action must have been by court order, obviating application of the 

two-dismissal rule. In this case, the district court could not remake (or more accurately 

ignore) that fact to reach an outcome it considered intrinsically fairer than the one 

required under the plain meaning of K.S.A. 60-241(a).

On appeal, Wilmington Savings asserted an alternative argument for reversing the 

district court: The restrictions on successive actions in K.S.A. 60-241(a) should not 

apply because a different plaintiff brought each of the three mortgage foreclosure actions 

against the Campbells. Because we have otherwise granted Wilmington Savings the relief 

it seeks, we decline to consider this argument.

MOTION FOR ATTORNEY FEES

Wilmington Savings has timely filed a motion and supporting materials to recover 

its attorney fees on appeal from the Campbells. Under Supreme Court Rule 7.07(b) (2021

Kan. S. Ct. R. 51), we may award attorney fees on appeal if the district court had the 

authority to award fees. Wilmington Savings cites provisions in the mortgage and the 

related note that permit the recovery of attorney fees from the Campbells in an action 

against them to remedy a breach. We read those provisions as requiring Wilmington 

Savings to obtain a judgment materially remedying the claimed breach as a necessary 

condition for recovering its attorney fees. In other words, Wilmington Savings must be a 

prevailing party in this action.
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In this appeal, Wilmington Savings has succeeded in reversing the summary 

judgment against it. The result, however, merely returns this case to the district court for 

further proceedings presumably leading to a judgment on the merits. An award of 

attorney fees to Wilmington Savings would be premature until it obtains a merits 

judgment in its favor. We, therefore, deny the motion for attorney fees on appeal.

Reversed and remanded to the district court with directions to reinstate this action 

and for further proceedings consistent with this opinion. .