Betty Louise McCale, Appellant, v. Jeffrey Milton Davison, Appellee. (2026)

MEMORANDUM OPINION

The district court showed extreme patience with trial counsel by setting numerous discovery deadlines leading up to trial, yet counsel repeatedly failed to meet these deadlines. The district court had no confidence that further continuances or even a dismissal followed by refiling would compel counsel to prosecute its case without prejudicing the defense. For these reasons, we find the court acted within its discretion when it dismissed the case with prejudice.

Factual and Procedural History

On April 20, 2021, Betty Louise McCale was injured in an automobile accident when Jeffrey Milton Davison struck her 2005 Chevrolet with his 2016 Chevy truck while it was towing a 25-foot trailer. McCale suffered significant injuries as a result of the accident, including injuries to her torso, shoulder, neck, and back.

On April 17, 2023, just days before the statute of limitations ran, McCale filed a personal injury suit against Davison, alleging that he was negligent and seeking to recover damages for the injuries she sustained in the accident. In the petition, McCale claimed that she was still undergoing medical care and treatment, and the extent of her injuries was unknown.

After an order was granted extending the time to plead, Davison filed a timely answer on May 18, 2023, the same day that defense counsel entered his appearance. Davison denied negligent operation of the vehicle and asserted comparative fault as an affirmative defense.

On June 1, 2023, Davison served a request for initial written discovery and a request for a statement of monetary damages. On June 15, 2023, McCale responded to the request for monetary damages, totaling $24,302.27 for medical care and treatment and $500,000 in compensation for pain and suffering. In turn, McCale emailed copies of the interrogatories and admissions on June 29, 2023. McCale also emailed a request for production of documents to defense counsel pursuant to K.S.A. 60-234.

On July 6, 2023, the parties filed an agreed order extending time for response to discovery, which extended McCale's time to respond from July 1, 2023, to July 31, 2023. On August 23, 2023, Davison filed a notice of service of answers to interrogatories, request for production, and requests for admission.

On September 11, 2023, the district court issued an order to show cause why a case management order was not filed, and a hearing was set for October 19, 2023. On October 5, 2023, Davison filed a motion to compel discovery. In the motion, Davison noted that the parties agreed to extend the deadline for McCale's responses to discovery to July 31, 2023, but McCale did not meet that deadline. In the order, Davison noted that defense counsel asked McCale's counsel when McCale's response could be expected on August 9, August 23, and September 13, 2023, but McCale's counsel had not responded to those attempts to communicate regarding discovery. Davison requested that the district court either order McCale to respond or, alternatively, dismiss the action.

At the hearing held on October 19, 2023, the parties agreed to a new case management order. On November 8, 2023, Davison filed a notice of intent to file an agreed case management order with the following established deadlines:

• McCale was ordered to answer discovery by November 30, 2023;

• motions, joinder of parties, or amendments to the pleadings were to be filed by December 1, 2023;

• depositions of both parties were to be taken by February 1, 2024;

• McCale's additional written discovery was to be completed by February 1, 2024;

• Davison's additional written discovery was to be completed by March 1, 2024;

• McCale's identification of expert witnesses and their reports was to be completed by March 1, 2024;

• motions for summary judgment were to be filed by April 1, 2024;

• Davison's identification of expert witnesses and their reports was to be completed by April 12, 2024; and

• witness and exhibit lists were to be exchanged by May 1, 2024.

In addition, the pretrial conference was set for July 12, 2024, with trial tentatively scheduled for August 14, 2024.

On December 28, 2023, Davison filed a second motion to compel discovery because McCale had missed the November 30, 2023, deadline to answer Davison's initial discovery requests. The motion restated the content of the first motion and included the terms of the agreed-to case management order. Davison also informed the court that there were delays in journalizing the October 19, 2023, hearing due to McCale's failure to respond. Davison asked the court to order McCale to respond or, in the alternative, dismiss the action. The motion to compel was set for hearing on February 7, 2024.

At the February 7, 2024 hearing, McCale's counsel admitted that he had fallen behind on the case, but he claimed he would “hopefully” be “back on track here and ․ get it taken care of.” When asked for clarification, he informed the court that he and McCale had previously drafted answers to the interrogatories, and he was currently working on the documents for the request for production. The district court noted that despite being given several extensions, McCale continued to miss deadlines. Davison's counsel stated that he was sympathetic to McCale's need for more time to comply with the deadlines and noted that he did not want “anything further than” cooperation on discovery from McCale.

In response, McCale's counsel stated that he could have discovery responses to Davison within 14 days. The district court considered dismissing the case because there had been no progress even after Davison's first motion to compel even though discovery involved only “typical interrogatories and requests for production” that is “nothing more than you and your client filling out paperwork.” McCale's counsel admitted that he had “no excuse other than [being] involved with ․ an attorney friend [who] suffered a stroke and I'm trying to wrap up his law practice ․” The district court decided it would not dismiss the case at this point but warned that it would “probably go ahead and dismiss the case” if discovery had not been complied with by February 22, 2024.

At the status conference on February 22, 2024, the district court asked the parties if there were still outstanding issues with discovery. McCale's counsel stated that he had “everything finished” and that McCale would sign the documents the following day and send it to Davison's counsel via FedEx. At the time of the hearing, Davison's counsel had not received any discovery from McCale's counsel.

Davison's counsel then suggested moving the pretrial and trial dates. The district court stated that it would continue the trial once, but that it did not like to do so more than once. McCale's counsel responded that McCale was going to get into an orthopedist to determine if she needed shoulder surgery, but the orthopedist he wanted to use had passed away in January 2024. McCale had identified a new clinic to use. The district court acknowledged that the medical determinations were key to the case, and “if [McCale's] getting further treatment that may complicate things.” Defense counsel then indicated that they anticipated mediation in the case.

The district court rescheduled the pretrial conference to December 11, 2024, and trial was scheduled for January 29, 2025. The district court asked for a new case management order reflecting the changes, including a status conference for review on July 15, 2024.

A new revised case management order was entered on February 22, 2024, which established new dates for discovery, pretrial, and trial matters. The deadlines set forth in the second case management order are as follows:

• McCale was ordered to answer Davison's initial written discovery by February 23, 2024;

• depositions of both parties were to be taken by September 1, 2024;

• McCale's additional written discovery was to be completed by July 1, 2024;

• Davison's additional written discovery was to be completed by August 1, 2024;

• McCale's identification of expert witnesses and their reports was to be completed by September 1, 2024;

• motions for summary judgment were to be filed by April 1, 2024;

• Davison's identification of expert witnesses and their reports was to be completed by October 1, 2024; and

• witness and exhibit lists were to be exchanged by November 1, 2024.

In addition, the pretrial conference was set for December 11, 2024, with trial tentatively scheduled for January 29, 2025.

On March 6, 2024, Davison filed a motion to dismiss for discovery violations pursuant to K.S.A. 60-237(b)(2)(A)(v), repeating what was stated in the first two motions to compel discovery. In the motion, Davison's counsel explained that McCale had still not provided any answers to discovery—as counsel had promised at the last hearing—even after Davison's counsel had attempted to contact McCale's counsel several times by phone and letter. On February 29, 2024, Davison's counsel had written to McCale's counsel informing him that Davison would file a motion to dismiss if the discovery responses were not forthcoming. Davison's counsel also provided McCale's counsel with the revised agreed case management order but never received a response or approval of the order. Ultimately, Davison requested that the district court dismiss the matter or grant any other relief the court felt was justified pursuant to statute.

On April 11, 2024, a status conference was held at which the district court considered the motion to dismiss. Davison's counsel stated that McCale's counsel had emailed him the day before the hearing and given his approval of the February 22, 2024, journal entry. Davison's counsel restated the communication problems with McCale's counsel and stated that he wanted to schedule depositions on a set date as his client had continually asked him why there had been no progress on the case for almost a year. Davison's counsel stated that if those problems were resolved, he was willing to set aside the motion to dismiss. The parties then agreed to a deposition on May 23-24, 2024. McCale's counsel stated that McCale was out of the state, and they were still attempting to get an independent medical examiner or medical exam at the Dickson-Diveley Clinic “as soon as” McCale returned during the first week of May.

The district court expressed concern with the timeline of the case as set forth in the case management order, especially considering the “continued problems” with discovery. The district court warned that it would “consider granting that motion to dismiss and be done with [the] case” if there was no progress going forward.

On May 9, 2024, Davison filed a motion to take the deposition of McCale on May 24, 2024. There is no notice to take the deposition of Davison in the record, but depositions of both parties occurred on May 24, 2024.

At the July 2024 hearing, the parties reported that they had taken depositions. The parties further stated they would attempt mediation upon receipt of the medical report. McCale's counsel stated that McCale had seen an orthopedic doctor who had suggested physical therapy, which McCale had participated in for the month of June, and that McCale still needed to go back to the doctor to get an opinion on whether she needed surgery. Both parties agreed there was no reason to adjust the discovery deadlines or the trial date.

McCale's counsel failed to file a preliminary witness and exhibit list as required by the case management order. Davison filed his witness and exhibit disclosures on October 31, 2024.

On November 18, 2024, Davison filed a second motion to dismiss pursuant to K.S.A. 60-241(b). In the motion, Davison noted an ongoing lack of communication from McCale's counsel. Davison's counsel included a brief history of the case and its discovery delays, restated the language in the previous motions, and discussed the law under the statute. The motion was set for a hearing on December 11, 2024.

On December 10, 2024, McCale filed a motion for continuance for the trial date of January 29, 2025. The motion to continue explained that the continuance was necessary because McCale needed an MRI of her left shoulder and that the surgeon could not evaluate her condition until February 2025. Also on December 10, 2024, McCale filed a reply to the motion to dismiss and a motion for voluntary dismissal of the action pursuant to K.S.A. 60-241(a)(2). In the reply to the motion to dismiss, McCale's counsel accepted responsibility for the delays in the case but noted they were “unintentional.” McCale's counsel also noted that some of the delay was caused after their medical expert had passed away, and they needed to retain a new expert.

At the December 11, 2024, hearing, the district court reminded counsel that the hearing was meant to be a pretrial conference and that there had been ongoing discovery issues. The district court noted that McCale may have needed additional medical treatment, that McCale missed several deadlines including the identification of experts and reports, and that the trial was still set for January 29, 2025. McCale had never filed for an extension, and the deadline for motions had already passed.

Davison's counsel informed the court that he had received McCale's “answers to written interrogatories at some point” after the court order and several missed deadlines, but the only other discovery that had been completed were the depositions of the parties.

McCale's counsel indicated that he had produced the written medical records in response to the written discovery request, but he explained that the expert he had retained had passed away. McCale indicated that he was not informed of the death and found out only after attempting to call the expert, finding their phone was turned off, and going to the expert's physical office location where he learned of the death. McCale noted that his new expert could not see McCale until February 2025. McCale's counsel believed that continuing the trial to accommodate the need for additional medical treatment had been contemplated at a prior hearing. McCale's counsel claimed that once additional treatment was completed, it was likely the case could be resolved with mediation.

Davison's counsel claimed that he had attempted to set up mediation with McCale's counsel, but he never heard back from him. Davison's counsel objected to the request for a voluntary dismissal without prejudice.

After considering the arguments of the parties, the district court granted Davison's motion to dismiss with prejudice, noting that it did not have any confidence that if the case was continued that things were going to change. The court pointed out that deadlines for witness and exhibit lists had passed and that counsel should have taken remedial action prior to the day before the pretrial conference. Although jury questionnaires had not yet been sent out, the district court reasoned there was a lack of prosecution in the case. The court ruled:

“The Court at this time is going to grant the defendant's motion to dismiss with prejudice.

“You know this case it hasn't been pending an extremely long time but as I've indicated, and as the record reflects there's been difficulty getting discovery done, complied with throughout the pendency of this particular action.

“And I recognize that this case was scheduled for a pretrial today and the motion to dismiss or motion for continuance was filed by the plaintiff was filed yesterday.

“The—and yet the deadlines in the agreed case management order required that witness and exhibit lists were due November 1st. Identification of expert witnesses and so forth were to be identified by September the 1st.

“I mean I—in the Court's opinion if there was going to be a motion for continuance or a motion to dismiss without prejudice because of the failure to be able to have those expert witnesses available, that should have been done by September 1st ․ or at least by November the 1st instead of waiting until the day before the pretrial conference in this case.

“The reason I set pretrial conferences is because of the fact for a trial January 29th my clerk next week would have been sending out juror questionnaires for that jury trial. That's how long it takes to turnaround in order to get jurors here for trial.

“But anyway, it just appears to the Court that there's been a lack of prosecution in this particular case, the failure to cooperate with the discovery deadlines that's been set by the Court on more than one occasion and a lack of communication between counsel as far as trying to resolve these issues with discovery, treatment, records and so forth.

“So the Court's going to grant the defendant's motion to dismiss at this time.”

In dismissing the case, the court also denied McCale's motions for a continuance and for a voluntary dismissal without prejudice.

After the district court dismissed the case with prejudice from the bench, McCale's counsel filed a motion to reconsider the dismissal with prejudice on December 17, 2024. McCale's counsel again requested that the action be permitted to be dismissed without prejudice. A few days later, on December 24, 2024, McCale's counsel filed a designation of experts, which named Dr. Daniel Zimmerman as the plaintiff's expert. McCale's counsel explained that Dr. Zimmerman could see McCale sooner than the physician set to examine her in February 2025. McCale asked the district court to vacate its involuntary dismissal and instead grant a voluntary dismissal on just terms, such as imposing sanctions and attorney fees.

On January 2, 2025, Davison responded to each of McCale's filings. In response to the objection to filing the order of dismissal, Davison explained that he filed the request for dismissal because of previous difficulties obtaining McCale's counsel's approval of previous orders. In addition, Davison asserted that McCale's motion to reconsider should have been filed after the order of dismissal was filed and approved. In Davison's response to McCale's motion for reconsideration of the dismissal with prejudice, Davison's counsel argued that the filing of the motion to reconsider was improper under K.S.A. 60-259 because it was prematurely filed and because such motions are not for the purpose of having a “second bite of the apple” and should not be used “in an attempt to rectify Plaintiff's counsel's non-compliance with all the Court's discovery deadline orders and other errors ․”

A written journal entry memorializing the district court's decision to grant the motion to dismiss with prejudice was filed on January 7, 2025.

On January 9, 2025, McCale also filed her witness and exhibit list more than two months after it was due.

On January 22, 2025, the district court held a hearing on the motion to reconsider. McCale's counsel asked the court to vacate the dismissal with prejudice and grant the voluntary dismissal with reasonable conditions. He claimed that his motions were filed at a reasonable time because it was still seven weeks prior to the trial date. McCale's counsel claimed he did not believe Davison would suffer legal prejudice if the action were voluntarily dismissed, so the request for a voluntary dismissal should have been granted instead of the involuntary dismissal. Finally, McCale's counsel stated that reasonable terms for voluntary dismissal would be appropriate, such as payment of Davison's attorney fees.

During the hearing, Davison's counsel responded that McCale should recover from her counsel's malpractice insurance rather than allowing a dismissal of the case without prejudice. Davison noted there had been effort extended in the original action—stating that he had “bent over backwards” to move this case along—and that a second action would be a burden. Citing Cheek v. Hird, 9 Kan. App. 2d 248, 675 P.2d 935 (1984), Davison's counsel argued it would be “nonsensical” to dismiss voluntarily if the court were to apply the same discovery deadlines in the second case after a voluntary dismissal because the deadlines had already been missed. Specifically, he noted that he had made many phone calls and sent emails to McCale's counsel and never received a response. In addition, he filed motions to dismiss but relented to continue the case when it appeared that McCale's counsel would comply. Ultimately, he argued it would be unfair to Davison to proceed ahead under the conditions set forth by McCale.

In denying the motion, the district court asserted it had “no other option” than to dismiss the case with prejudice. The court recounted the missed deadlines and stated that in the nearly two years since the case was filed, “there's been no progress.” The district court noted:

• McCale's “failure to provide discovery” and lack of “compliance with the Court's orders.”

• McCale did not retain an expert until after the dismissal of the action; after dismissal, McCale was suddenly able to find an expert to see her immediately;

• little to no activity by McCale to get the case to trial or to resolution; and

• McCale's failure to comply with multiple case management agreements.

The district court recognized that involuntary dismissal is “the most severe thing a court can do,” but it was within its discretion to do so. The district court felt it had “no other option” given everything that had happened in this case. The court stated it had no confidence that McCale and her counsel would change if the involuntary dismissal were vacated in favor of voluntary dismissal without prejudice. The court denied the motion to reconsider, ruling:

“There's just been a failure in this case to prosecute this petition and that's why the Court sets up its local rules. That's why the Court requires the parties to submit case management orders. That's why there's deadlines for getting things done.

“That was never done in this case by the plaintiff. And by not prosecuting the petition, the Court's not left with any other options other than dismissal at this point.

“So the Court's not going to reverse its previous ruling.”

Following the denial of the motion to reconsider, McCale filed a timely notice of appeal. She retained new counsel for the appeal.

Analysis

The district court did not err in dismissing the personal injury action.

McCale asserts that the district court abused its discretion by dismissing the action with prejudice under K.S.A. 60-241(b). McCale claims the dismissal was done to penalize McCale's counsel and thus barred her ability to recover for the injuries she suffered. McCale asserts the district court committed errors of law and fact when issuing its order to penalize her counsel.

A district court's decision to dismiss a case for failure to prosecute is reviewed for an abuse of discretion. See Blue v. Board of Shawnee County Comm'rs, 62 Kan. App. 2d 495, 499, 517 P.3d 1280 (2022); Canaan v. Bartee, 272 Kan. 720, 726, 35 P.3d 841 (2001). Discovery sanctions and denial of motions for continuances are also reviewed for an abuse of discretion. In re J.A.H., 285 Kan. 375, 385, 172 P.3d 1 (2007); Canaan, 272 Kan. at 726.

“ ‘Orders of dismissal for want of prosecution rest in the judicial discretion of the district courts in order that they may control their dockets, eliminate procrastination and delay, and expedite the orderly flow of business ․ Such orders will not be reversed on appeal in the absence of a clear showing of abuse of judicial discretion.’ ” Coutts v. Crider, 219 Kan. 692, 695, 549 P.2d 1019 (1976).

A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. League of Women Voters v. Schwab, 318 Kan. 777, 788, 549 P.3d 363 (2024). And the party asserting the district court abused its discretion—in this case McCale—bears the burden of showing such abuse of discretion. In re A.S., 319 Kan. 396, 400, 555 P.3d 732 (2024); Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).

A. The district court did not act unreasonably in denying McCale's request for a continuance.

First, McCale argues that the district court acted unreasonably when it dismissed the action under K.S.A. 60-241(b) rather than granting a continuance. The decision to deny a motion for a continuance is reviewed for an abuse of discretion. K.S.A. 60-240(c)(3) (the decision to grant or deny a continuance “is discretionary in all cases”); see In re J.A.H., 285 Kan. at 385; Miller v. Glacier Development Co., 284 Kan. 476, 494, 161 P.3d 730 (2007).

Under K.S.A. 60-240(b), “for good cause, the court may continue an action at any stage of the proceedings on just terms.” When ruling on a motion for a continuance, the district court “ ‘must consider all circumstances, particularly such matters as the applicant's good faith, his showing of diligence, and the timetable of the lawsuit.’ [Citation omitted.]” In re J.A.H., 285 Kan. at 385. When seeking a continuance, “it is incumbent upon the applicant to affirmatively show due diligence with respect to all grounds upon which the continuance is sought.” Cheek, 9 Kan. App. 2d at 250.

The district court has broad discretion in ruling on a motion to grant a continuance. In Woodmont Company v. West Ridge Pizza Pub, LLC, No. 122,827, 2021 WL 3239518, at *5 (Kan. App. 2021), a panel of this court found it was not an abuse of discretion to deny a continuance when the case had been filed for more than 20 months, the original pretrial conference had been rescheduled four times, discovery was delayed by the plaintiff's inability to produce a corporate representative, and there had been two notices of dismissal for failure to prosecute. The panel found that the party seeking the continuance could not show that the district court's decision to deny its request was unreasonable. 2021 WL 3239518, at *5.

The record showed that McCale's counsel also showed a lack of diligence and a lack of good faith in prosecuting the case. The parties agreed to extend the original discovery deadline from July 1, 2023, to July 31, 2023. However, McCale's counsel missed this deadline, resulting in a motion to compel. A new discovery deadline was set for November 30, 2023, resulting in another motion to compel. On February 7, 2024, McCale's counsel stated he could get the discovery responses to Davison's counsel in 14 days, but he did not do so. McCale's counsel assured Davison's counsel that he would FedEx discovery responses to defense counsel on February 23, 2024, but he failed to do so.

At this point in the action, original deadlines for written discovery and depositions had also passed, but a new case management order moved those deadlines. Of the new deadlines, McCale's counsel missed the deadline for answering initial discovery, identifying experts, providing witness and exhibit lists, and filing motions. McCale's counsel failed to file anything between February 22, 2024, and December 11, 2024, when the case was dismissed.

Here, McCale argues that the district court abused its discretion in denying the continuance because McCale was actively seeking medical treatment and evaluation, and her request was made at only the second trial setting. At the February 22, 2024, hearing, McCale advised there was continuing medical treatment related to her shoulder injury. She advised that the expert that she previously worked with passed away in January 2024, and she anticipated finding another expert with the Dickson-Diveley Clinic. The district court scheduled a July 2024 status hearing due to McCale's need for ongoing medical treatment. McCale claims this is evidence that she made the request for a continuance in good faith.

At the April 11, 2024, status hearing, Davison acknowledge that McCale was going to be undergoing an additional medical examination with the Dickson-Diveley Clinic. After McCale's counsel indicated they were trying to schedule the evaluation for the end of May 2024, Davison withdrew the motion to dismiss. The district court advised there was a possibility of additional delays but advised the parties to get their discovery completed.

In denying her request for a continuance in December 2024, the district court acknowledged that McCale may need additional medical treatment. Although McCale retained counsel in March 2023, knowing an expert was needed, she did not retain one until December 2024, which was after the deadline to identify expert witnesses. Even once the expert was retained, the identified expert could not examine McCale until February 2025, which was after the set trial date.

McCale's counsel stated the reason for the delay was the death of the original expert he retained in January 2024; however, counsel was aware of the expert's death as early as February 2024, leaving over nine months for him to retain a different expert. McCale's counsel showed little progress in prosecution until he suddenly found a new expert just a week after the case was dismissed. So, the record confirms that McCale's counsel knew a medical expert would be necessary in a personal injury case, but he delayed discovery and failed to retain an expert that could examine McCale until after the case was dismissed. McCale's counsel showed a lack of diligence and good faith in prosecution.

Significantly, the record shows that McCale's counsel failed to adequately communicate with Davison's counsel or the district court. Defense counsel indicated that he attempted to contact McCale's counsel by phone or email on several occasions about delays in discovery, case management orders, notices of intent to file, and mediation, but he never heard back from him. McCale's counsel did not dispute those allegations, but he explained he was busy with other obligations. Before dismissal, McCale met very few of the district court's deadlines and failed to communicate with the court about the delays. The record confirms a lack of diligence in communicating with opposing counsel and the district court.

The record also shows that McCale's counsel should not have been taken by surprise by the district court's denial of the continuance. The district court began mentioning a dismissal to counsel as early as February 7, 2024. The court informed McCale's counsel that dismissal would be a possible consequence if counsel did not move discovery along by February 22, 2024. Additionally, when discovery had not advanced by February 22, the district court clearly stated that it would continue the case once but did not wish to continue it again. This was nearly 10 months before McCale's motion for continuance was filed. The district court clearly warned McCale's counsel that lack of significant progress in the prosecution of the case would result in dismissal.

Considering McCale's counsel's past behavior, the district court claimed it had no confidence that granting another continuance would change anything. The district court noted that McCale's request for another continuance was filed just a day before the pretrial conference and hearing on Davison's motion to dismiss and only a month and a half before the scheduled trial date. The district court stated that a motion for continuance should have been filed months prior to the pretrial conference when other deadlines had not been met.

Under these circumstances, we find the district court did not abuse its discretion. The court considered the facts regarding the lack of prosecution—including the timetable of the lawsuit, failure to secure an expert witness, the lack of diligence, the lack of communication, and the lack of good faith in meeting deadlines—and it denied McCale's last minute request for a continuance. The district court warned counsel as early as February 2024 that it was considering dismissal as a consequence of failing to meet the court's deadlines. McCale has failed to show that the district court's ruling was based on an error of fact or law or that the ruling was unreasonable.

B. The district court did not abuse its discretion in denying McCale's request for a voluntary dismissal.

McCale also argues that the district court abused its discretion in denying her request for a voluntary dismissal without prejudice.

Under K.S.A. 60-241(a)(2), which governs voluntary dismissal, a plaintiff may voluntarily dismiss an action without prejudice with leave of the district court. It states that “[a]n action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” K.S.A. 60-241(a)(2). Our Supreme Court has stated that granting a voluntary dismissal is subject to the district court's discretion, but requests for voluntary dismissal should “ordinarily be granted” unless the defendant will suffer some plain legal prejudice. Patterson v. Brouhard, 246 Kan. 700, 705, 792 P.2d 983 (1990). Before granting a motion to dismiss under K.S.A. 60-242(a)(2), the court is to balance the interests of both the plaintiff and the defendant to obtain a fair and equitable result. Estate of Nilges v. Shawnee Gun Shop, Inc., 44 Kan. App. 2d 905, 909, 242 P.3d 1211 (2010) (citing Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 327-28, 469 P.2d 272 [1970]).

Some factors the district court should consider before denying a motion for voluntary dismissal include inconvenience, the defendant's effort and expense of preparation for trial, and excessive delay and lack of diligence of the plaintiff in prosecuting the action. Patterson, 246 Kan. at 706; Cheek, 9 Kan. App. 2d at 252 (citing Pace v. Southern Express Co., 409 F.2d 331, 334 [7th Cir. 1969]). A showing of plain legal prejudice does not include the mere prospect of a second lawsuit, the fact that the plaintiff will obtain a tactical advantage in litigation, or that the defendant loses some advantage. Patterson, 246 Kan. at 706-07.

In Cheek, like the facts of this case, the process of discovery proceeded very slowly over about 18 months, and the defendant filed two motions to compel the plaintiff to comply with discovery requests. 9 Kan. App. 2d at 248-49, 252. At the hearing on the second motion, the plaintiff sought leave of the district court to endorse a previously unnamed expert to support the plaintiff's claim of emotional damage. Since the trial was scheduled for less than a month after the hearing, the defendants opposed the late endorsement, noting they would not have time to depose the expert, hire their own expert, and have them deposed by the plaintiff. The district court agreed with the defendants and denied the late endorsement. 9 Kan. App. 2d at 249.

In response, the plaintiff moved for voluntary dismissal; the district court responded with two options: either go to trial on the scheduled date without the expert; or dismiss the case without prejudice on the condition that the discovery conducted in the first case would constitute the “entire discovery in any case refiled and that no additional witnesses could be endorsed.” 9 Kan. App. 2d at 249. The plaintiff chose to voluntarily dismiss the case even though it claimed the action of the district court was tantamount to a denial of a voluntary dismissal due to the restrictions on discovery. The district court recognized its ruling was harsh, but it noted that a different ruling would have resulted in legal prejudice to the defendant. 9 Kan. App. 2d at 249-50, 252. In ruling, the court reasoned that the case had been pending for a year and a half; the plaintiff did not have an expert even within a few weeks of trial; the defendants had invested a great deal of time, money, and energy in the lawsuit; and the lawsuit had progressed “to the very edge of trial when dismissal was sought.” 9 Kan. App. 2d at 252.

In this motion for voluntary dismissal, McCale pointed to the need for ongoing treatment to determine damages and further noted there was no counterclaim asserted by Davison. On appeal, McCale claims that the district court committed an error of law when it failed to consider whether the defendant would suffer plain legal prejudice if the motion to voluntarily dismiss the action was granted.

Here, as set forth in the previous issue, the district court recounted the numerous discovery deadlines the plaintiff missed and the fact that the plaintiff never identified any experts pursuant to the deadlines that had already passed. At the time of McCale's request for a voluntary dismissal without prejudice, the trial date was just several weeks away. Similar to Cheek, the case had been pending for about a year and a half, and the plaintiff had failed to retain an expert until about a month before trial and after all the deadlines had passed. Based on these facts, the district court denied McCale's request for a voluntary dismissal without prejudice and instead dismissed the case with prejudice.

As in Cheek, the defendant in this case suffered prejudice through the delay as he extended effort and expense in defending the action with little to no cooperation or response from McCale's counsel. Although the district court in this case did not specifically state that McCale's actions prejudiced the defendant, it considered McCale's counsel's lack of diligence and communication in ruling that the motion should be dismissed, noting that it did not believe that anything would change.

McCale claims that the district court deviated from the general rule and denied the motion for a voluntary dismissal without an explicit finding of whether Davison suffered a plain legal prejudice. See Patterson, 246 Kan. at 706-07. But the prejudice in this case—as identified by the district court in its discussion—was the “difficulty” getting McCale's counsel to complete discovery and comply with deadlines throughout the pendency of the case and the consequences that resulted from his lack of cooperation.

In addition, the district court identified McCale's counsel's lack of prosecution and lack of communication. This is similar to the circumstances of Cheek, where the district court considered the “excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action” as sufficient prejudice. 9 Kan. App. 2d at 252. Thus, although the district court in this case did not clearly note that these factors caused prejudice to the defendant, the prejudice was identified in the factors considered by the district court in its decision to deny McCale's request for a voluntary dismissal without prejudice. In addition, the prejudice went beyond merely the inconvenience of a second lawsuit or a tactical advantage to McCale.

The district court clearly considered and weighed the equities of the case when it discussed the medical needs of McCale, the history of discovery and multiple missed deadlines, the fact that no expert witness had been identified by McCale, the lack of diligence of McCale's counsel, the proximity of the motion to trial, and that motions for continuance or voluntary dismissal should have come before the day preceding the pretrial conference. The record shows that the district court considered the delay and fairness to the parties as it was considering the prejudice to the parties. In addition, the district court warned McCale's counsel more than once that dismissal was a possibility if he continued to fail to comply with the deadlines. The record supports the district court's finding that Davison would suffer prejudice if the district court allowed McCale to voluntarily dismiss the case without prejudice.

We find that the district court did not abuse its discretion in denying McCale's request for a voluntary dismissal without prejudice. McCale argues the district court committed an error of fact and law in failing to explicitly find plain legal prejudice, but we find the record shows the district court considered the equities of the case and weighed the unfairness of dismissal to McCale against prejudice to the defendant. It noted McCale's counsel's history of failing to comply with the deadlines set by the court and noted that it did not believe that pattern would change in the future. On the other hand, Davison's counsel consistently reached out to McCale's counsel in an attempt to communicate and resolve the discovery issues; in doing so, Davison's counsel extended effort and resources in defending an action that McCale was consistently failing to prosecute. Considering the extent of the lack of prosecution and lack of diligence displayed by McCale's counsel in this case, the district court did not abuse its discretion in denying McCale's request for a voluntary dismissal without prejudice.

C. The district court did not abuse its discretion by committing errors of fact and law when granting the motion for involuntary dismissal.

Next, McCale argues that the district court abused its discretion by committing errors of fact and law when granting the motion for involuntary dismissal with prejudice.

The district court dismissed McCale's case with prejudice from the bench on December 11, 2024, with a written journal entry filed on January 7, 2025. A dismissal of a lawsuit “with prejudice” is a final judgment on the merits. Honeycutt v. City of Wichita, 251 Kan. 451, 458, 836 P.2d 1128 (1992); Boydston v. Kansas Board of Regents, 242 Kan. 94, 101, 744 P.2d 806 (1987) (a dismissal with prejudice is a final action).

Under K.S.A. 60-241(b), a district court may dismiss an action with prejudice for failure to prosecute. Such a dismissal, “[u]nless the dismissal order states otherwise, ․ operates as an adjudication on the merits.” K.S.A. 60-241(b)(1). The decision to dismiss a case with prejudice is within the discretion of the district court and allows the court to “control their dockets, eliminate procrastination and delay, and expedite the orderly flow of business ․” Namelo v. Broyles, 33 Kan. App. 2d 349, 353, 103 P.3d 486 (2004) (quoting Frost v. Hardin, 218 Kan. 260, 263, 543 P.2d 941 [1975]). A district court's decision to dismiss a case with prejudice will be reversed only upon a showing of an abuse of discretion. Namelo, 33 Kan. App. 2d at 353.

In Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002), the federal district court granted summary judgment when the party failed to respond to a motion for summary judgment during the statutorily prescribed time period. The Tenth Circuit identified three factors that a court should consider before dismissing a case for a violation of procedural rules: ”(1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant.” 312 F.3d at 1195.

Using these factors, we first examine prejudice. The primary responsibility for prosecuting a case lies with the plaintiff; if a case has not been diligently prosecuted, prejudice is generally presumed. Namelo, 33 Kan. App. 2d at 356-57 (finding that the lack of discovery completed as demonstrating actual prejudice) (citing Coutts, 219 Kan. at 699-700).

As previously discussed, the record shows that Davison's counsel consistently reached out to McCale's counsel in an attempt to communicate and work out a schedule for discovery deadlines, but his attempts to communicate went unanswered. During this time, Davison's counsel stated his client was inquiring about the delay and wondering when the case would be resolved. At the December 11, 2024 hearing, the district court considered the prejudicial factors, noting the time the case had been pending and the little progress that McCale's counsel had made in meeting the discovery deadlines. The only discovery completed by McCale was the initial written discovery response and depositions of the parties. The district court expressed concern that McCale had failed to designate an expert in a personal injury action where an expert witness was a necessity. The record showed apparent prejudice to Davison and his counsel as they consistently worked to resolve the case and proceed with mediation. But McCale's counsel failed to meet initial deadlines and further prosecute the action.

The record shows that the district court also considered interference with the judicial process. In Namelo, a panel of this court recognized that it was an interference with the judicial process to require the court to address a motion to compel discovery, four motions to dismiss, and hold several status conferences. 33 Kan. App. 2d at 357. See Zordel v. Osawatomie State Hosp., No. 116,130, 2017 WL 3321807, at *5 (Kan. App. 2017) (unpublished opinion) (finding interference with judicial process when the court had to be “closely involved” in discovery to keep it moving, including three case management conferences, ignored deadlines, three scheduling conferences, and a motion to dismiss resulting in two hearings).

Here, there is a similar pattern of interference with the judicial process. The district court filed a show cause order on September 11, 2023; held a hearing on a motion to compel discovery in October 2023; held a hearing on a second motion to compel on February 7, 2024; held a status conference on February 22, 2024; held a hearing on a motion to dismiss on April 11, 2024; and held a status conference on July 15, 2024. Despite all these hearings, McCale's counsel still failed to make progress on the case. At the December 2024 hearing, the district court expressed disdain with McCale's counsel's failure to comply with deadlines, the court's orders, and its local rules.

As in Zordel, there is significant evidence of the culpability of the litigant. Looking again to Zordel, a panel of this court found “ample evidence” for a reasonable person to find that failure to prosecute warranted dismissal when counsel repeatedly “blew past deadlines, ignored requests ․ for information, and failed to seek out information himself.” 2017 WL 3321807, at *5. As in the present case, the plaintiff in Zordel missed many deadlines and only made the witness disclosure after the defendant filed a motion to dismiss for failure to prosecute. 2017 WL 3321807, at *5. Counsel explained that he was dealing with the death of his father, but the court found that excuse insufficient to explain why the case was not moving forward. 2017 WL 3321807, at *6. See Fischer v. Roberge, 34 Kan. App. 2d 312, 314-16, 120 P.3d 796 (2005) (trial court did not abuse its discretion when it placed the action on the dismissal list and plaintiffs still failed to comply with the local rules).

Similarly, in this case, McCale's counsel explained that he was dealing with other issues such as helping wind down another lawyer's practice. He apologized for not communicating and missing deadlines, and he took some responsibility for his failure to do so. But this behavior did not change over the course of the case. The delay in this case was not merely attributable to the need for ongoing medical treatment. Many of the missed discovery deadlines demonstrated the culpability of the litigant.

In reviewing the record, it is evident that the district court considered the degree of actual prejudice to the opposing party, the amount of interference with the judicial process, and the culpability of the litigant in reaching its decision to dismiss the case with prejudice. The district court clearly expressed that it did not believe that McCale's counsel would change his behavior, and it had no choice but to dismiss the action. Although it is unfortunate that counsel's failure to prosecute created a barrier to McCale's ability to recover for her injuries, we find no evidence that the district court abused its discretion in dismissing the action.

McCale has not identified any errors of law or fact. The record supports the district court's findings, and we find it was within the district court's discretion to dismiss the case under K.S.A. 60-241(b). As such, we cannot conclude that no reasonable person would have reached the same decision as the district court in this case, and we decline to replace our judgment with that of the district court under these circumstances. As such, we affirm the dismissal of the action with prejudice.

D. The district court did not dismiss the action under K.S.A. 60-237 as a discovery sanction.

Finally, McCale argues that the district court abused its discretion in dismissing the action as a discovery sanction. In response, Davison argues that the district court did not show that the district court dismissed the case as a discovery sanction under K.S.A. 60-237.

Under K.S.A. 60-237(b)(2)(A)(v), the district court may issue “just orders”—including dismissing the action in whole or in part—when a party fails to obey an order to provide or permit discovery. Our Supreme Court has stated that a discovery sanction is severe and should be used only when lesser sanctions have proven insufficient. Canaan, 272 Kan. at 727. The record clearly shows that the action was dismissed under K.S.A. 60-241(b) for failure to prosecute, not as a discovery sanction under K.S.A. 60-237(b)(2)(A)(v). The statutes are separate and allow for dismissal under different circumstances. McCale did not raise any issue regarding K.S.A. 60-237(b)(2)(A)(v) below, so we decline to address this argument on appeal.

The district court did not err in denying the motion to reconsider.

Finally, McCale argues that the district court abused its discretion in denying her motion to reconsider its decision to dismiss the case with prejudice.

This court reviews the district court's decision on a motion to reconsider—which is generally treated as a motion to alter or amend a judgment—for an abuse of discretion. Exploration Place, Inc. v. Midwest Drywall Co., Inc., 277 Kan. 898, 900, 89 P.3d 536 (2004); Ross-Williams ex rel. Sprint Nextel Corporation v. Bennett, 55 Kan. App. 2d 524, 564, 419 P.3d 608 (2018). The purpose of a motion to alter or amend a judgment under K.S.A. 60-259(f) is to allow a district court to correct prior errors. In re Estate of Lentz, 312 Kan. 490, 499, 476 P.3d 1151 (2020); Akesogenx Corp. v. Zavala, 55 Kan. App. 2d 22, 37-38, 407 P.3d 246 (2017).

As relevant to the discussion above, McCale argued in her motion to reconsider that in order to deny her motion to voluntarily dismiss the action, the nonmoving party must suffer some “plain legal prejudice” and that this prejudice must be more than mere prospect of a second action. McCale further argued that the district court “should weigh all the equities in the case and consider the rights of the parties and how they will be affected.” As previously discussed, the district court made factual findings supported by the record that we have found to satisfy the requirement of prejudice in this case.

As previously discussed, McCale's counsel failed to comply with discovery deadlines, failed to communicate with Davison's counsel or with the court, and Davison suffered when his efforts to resolve the case did not move forward. The district court discussed these circumstances when it denied McCale's request for a voluntary dismissal without prejudice. In addition, there was evidence that the district court properly weighed the equities in the case by looking at McCale's ongoing medical needs, the history of the case, and the fact that McCale had failed to timely identify an expert. McCale provides nothing more in support of her motion for reconsideration.

In denying the motion for reconsideration, the district court specifically found prejudice, stating:

“[The defendant] suffer[s] prejudice from the standpoint that the case has been pending for two years. No activity going on with it as far as trying to get the case to trial or some type of resolution. And the work that's been done by the defendant's counsel and presumably the defendant in defense of the lawsuit, that can't just be ignored.”

So, if the finding of prejudice was lacking in the original motion to dismiss, the district court clarified its findings and found that Davison suffered prejudice when it considered and denied the motion to reconsider.

McCale also points to the district court's statement that it had no other options when denying the motion for voluntary dismissal and suggests that the district court did not understand its authority. But the record shows that this single statement was taken out of context. The district court clearly understood that it had other options; yet, under the circumstances, it found that the case should be dismissed with prejudice. The district court did not abuse its discretion in believing that dismissal with prejudice was truly the only option available.

Finally, McCale argues that the district court improperly considered the “length of time” the case was pending when denying the voluntary dismissal. The district court stated that it had been pending for two years with little to no activity. The district court was not merely relying on the length of time, but it pointed out that the history of the case showed very little progress of prosecution during that time. As in Cheek, the court considered the length of time in conjunction with the lack of progress on discovery. See 9 Kan. App. 2d at 252.

The record shows that the district court considered the prejudice to Davison and weighed the equity of the parties in making its decision. The district court specifically found prejudice to Davison in ruling on the motion to reconsider. McCale fails to show that the district court made an error of fact or law or acted unreasonably in reaching its decision. Accordingly, we find that McCale has failed to carry her burden to show that the district court abused its discretion in denying the motion to reconsider.

Affirmed.

Respectfully, I dissent. Traditionally, a district court will grant a plaintiff's voluntary motion to dismiss without prejudice unless the defendant can show “some plain legal prejudice.” Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 326, 469 P.2d 272 (1970). There were no legal grounds on which Jeffrey Milton Davison could claim a legal prejudice. Despite this, at the motion for reconsideration hearing, the district court found there was legal prejudice and reaffirmed its denial of Betty Louise McCale's motion for voluntary dismissal. Additionally, even though this was not an extreme case warranting dismissal with prejudice and Davison was unable to show prejudice if the court denied his motion, the district court dismissed the case with prejudice. Thus, I would find the two dismissal rulings were an abuse of discretion.

McCale's Motion for Voluntary Dismissal Should Have Been Granted

“A motion for voluntary dismissal by order of the court is ․ relief to be awarded consistent with justice and equity, and the ruling on the motion is to be in accordance with what is the fairest result and causes the least hardship to the other parties.” Patterson v. Brouhard, 246 Kan. 700, Syl. ¶ 1, 792 P.2d 983 (1990). In considering a party's motion for voluntary dismissal under K.S.A. 60-241(a)(2), courts “should follow the traditional principle that dismissal be allowed unless the defendant will suffer some plain legal prejudice.” Gideon, 205 Kan. at 326. “Under this view, dismissal is more of a right of the plaintiff, subject to the impositions of reasonable conditions.” Estate of Nilges v. Shawnee Gun Shop, Inc., 44 Kan. App. 2d 905, 908, 242 P.3d 1211 (2010).

This case highlights the importance of weighing all the equities of the case before exercising judicial discretion and ruling on voluntary and involuntary dismissal motions. The court erred by finding Davison suffered a legal prejudice, not considering K.S.A. 60-241(a)(2) and respectively placing conditions on McCale's dismissal motion as the statute provides, and not balancing the equities of all the parties in the case.

Davison was unable to show that he would have suffered legal prejudice if the voluntary dismissal motion was granted.

At the December 2024 hearing, Davison did not ask the district court to make a finding that he would suffer a legal prejudice if McCale's voluntary dismissal motion was granted. To correct this, at the hearing on McCale's motion for reconsideration, McCale asked the district court to “follow the traditional thinking and find whether or not [Davison] has suffered a claimed legal prejudice.” In response, the district court ruled that Davison would suffer prejudice:

“Well, they suffer prejudice from the standpoint that the case has been pending for two years. No activity going on with it as far as trying to get the case to trial or some type of resolution. And the work that's been done by the defendant's counsel and presumably the defendant in defense of the lawsuit, that can't just be ignored.”

Responding, McCale argued against this finding: “No, but I think the imposition of reasonable terms for a dismissal without prejudice would be appropriate and payment of [opposing counsel's] attorney fees related to that.” The district court did not appear to consider McCale's suggested sanction but, instead, was skeptical that the case would progress forward.

In a roundabout manner, courts have defined what is plain legal prejudice. That is, courts have discussed and focused on what is not a legal prejudice. For example, the Gideon court stated that the “mere prospect of a second lawsuit” does not subject a defendant to legal prejudice. 205 Kan. at 326. Nor is legal prejudice “the loss of a defense of a period of limitation.” 205 Kan. at 327. Further, the Gideon court noted, “authorities are agreed that the gain of a tactical advantage of whatever nature is not legal prejudice [nor does] ‘inconvenience or anticipated prejudice to defendant’ ” qualify as legal prejudice. 205 Kan. at 327. The Gideon court recognized that, while defendants may think that “they have been subjected to some prejudice or at least feel and anticipate some prejudice, ․ the defendants must be shown to be subjected to legal prejudice by the allowance of the plaintiffs’ motion.” 205 Kan. at 327.

Davison was unable to show that he was subjected to legal prejudice by the court granting McCale's voluntary motion. Rather, the court found Davison would suffer legal prejudice because the case was not moving towards a trial or “some type of resolution” and Davison had worked in defense of the lawsuit. However, a party's work on a case before it is dismissed is not a legal prejudice, particularly as McCale advised the court that it could impose payment of Davison's attorney fees by McCale as a sanction. See K.S.A. 60-241(a)(2); Peterson v. Garney Const. Co, 2 Kan. App. 2d 587, Syl. ¶ 3, 584 P.2d 1269 (1978). Additionally, the court acknowledged that the case “hasn't been pending an extremely long time” and noted the case had been pending 18 months. Overall, the court ruling seems to focus on the inconvenience to Davison—which is not a legal prejudice. See Gideon, 205 Kan. at 327. Without a proper finding of legal prejudice, the district court's ruling is unsupported.

The district court should have considered K.S.A. 60-241(a)(2) and placed conditions on McCale's motion for voluntary dismissal before denying the motion.

In reaching its decision, the district court found the primary difficulty was McCale's counsel's failure to follow the court's case management orders, including the incomplete discovery. Before issuing its ruling, the district court stated that it felt that it had no choice but to deny McCale's voluntary dismissal motion because “it was apparent to the Court and supported by review of the record that there was no other option. There was no other way to proceed.” (Emphasis added.)

Yet there are less severe resolutions before denying a voluntary dismissal altogether. With the enactment of K.S.A. 60-241, the Legislature provided a mechanism for courts to impose reasonable conditions when granting a party's dismissal. K.S.A. 60-241(a)(2) states, in relevant part, that “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” (Emphasis added.) See Estate of Nilges, 44 Kan. App. 2d 905, Syl. ¶ 2.

Cheek v. Hird, 9 Kan. App. 2d 248, 675 P.2d 935 (1984), is instructive on this issue. There, the district court denied Cheek's motion for continuance to enable an expert's endorsement and granted Cheek's voluntary dismissal motion with imposed conditions. Specifically, the court's conditions were “that the discovery conducted in the first case would constitute the entire discovery in any case refiled and that no additional witnesses could be endorsed.” 9 Kan. App. 2d at 249. On appeal, Cheek challenged the court's imposed conditions when granting the voluntary dismissal motion. The Cheek panel upheld the court's ruling, explaining how the district court may impose terms and conditions on a plaintiff's dismissal to prevent a defendant from being unfairly affected by the dismissal. 9 Kan. App. 2d at 251.

As shown in Cheek, the district court should have considered placing reasonable conditions such as the suggested attorney fees sanction. That is, in accordance with K.S.A. 60-241(a)(2), McCale's counsel suggested that the court impose “reasonable terms for a dismissal without prejudice” and order payment of Davison's attorney fees. As noted in Peterson, 2 Kan. App. 2d 587, Syl. ¶ 3, the language of K.S.A. 60-241(a)(2) “is specific in granting the trial court authority to set all such terms and conditions, including attorney fees, so long as the judge does not abuse his discretion and the terms and conditions are just and reasonable.” By this sanction, Davison would be compensated for his attorney fees by McCale, and the second case could proceed forward. With this suggested sanction, justice is rightly balanced with the court's authority to manage its docket. However, the district court did not consider this proposed sanction or any other terms or conditions before denying McCale's voluntary dismissal.

Further, no balancing of equities was done in the case. When considering a party's voluntary motion to dismiss, “[i]t is incumbent upon courts to consider the rights of the parties and how they will be affected, and what benefits or injuries may result to the respective sides in the controversy if a dismissal is granted.” Gideon, 205 Kan. at 327-28. In view of this obligation, it remains unclear how the district court here reached its decision that ultimately prevented McCale from possibly recovering from her injuries.

For example, as a result of the rulings, McCale was unable to resolve her case through mediation and recover from her injuries. Previously, the parties had told the district court that they intended to resolve the case through mediation. After recognizing the court's skepticism that mediation would occur, McCale's attorney explained that the voluntary dismissal motion would move the case forward. He advised: “Judge, that was the reason that I filed the motion for voluntary dismissal is to take it off your docket so that we wouldn't have those issues and we can get the medical treatment concluded and resolve the case with mediation.”

Since the December 2024 hearing, McCale had been seen by a medical expert, Dr. Daniel Zimmerman, who had already submitted a report for the parties. Additionally, as McCale's counsel explained to the court, McCale was concluding her medical treatment. Thus, the case was moving forward with a possible settlement. As such, I disagree that “the record shows the district court considered the equities of the case and weighed the unfairness of dismissal to McCale against prejudice to the defendant.” Slip op. at 22. McCale was denied her day in court.

Overall, I would find the district court abused its discretion by not granting McCale's motion for voluntary dismissal because Davison would not have suffered plain legal prejudice if the voluntary dismissal motion was granted. I would find that the court's ruling regarding Davison's legal prejudice—that he would suffer if the motion was granted—was not legally accurate and thus was an abuse of discretion. Nor did the court consider placing conditions on McCale's dismissal motion as K.S.A. 60-241 provides, and, finally, the court did not balance the equities of all the parties in the case before issuing a ruling that was fair and equitable to both the plaintiff, McCale, and the defendant, Davison. See Gideon, 205 Kan. at 327-28.

Because I would have found the motion for voluntary dismissal should have been granted due to the lack of legal prejudice finding, I would have reversed and remanded and would not address the remaining issue relating to the court's granting of Davison's motion for involuntary dismissal with prejudice because it would be moot. However, as this is a dissent opinion, I will also address the district court's error in granting Davison's motion for involuntary dismissal with prejudice.

This was not an extreme case that warranted dismissal with prejudice.

Kansas law favors courts deciding cases on their merits, rather than dismissing a case with prejudice. The decision to dismiss a case with prejudice is extreme as it “bars the right to bring or maintain an action on the same claim or cause of action.” Pulley v. Chicago, R.I. & P. Ry. Co., 122 Kan. 269, 270, 251 P. 1100 (1927); see Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“[D]ismissal ․ ‘is a severe sanction reserved for the extreme case.’ ”).

For several reasons, this case was not extreme. First, this case was rather short in length before the court dismissed the case with prejudice. As the parties note, this case has been pending for 18 months before McCale moved to voluntarily dismiss the case. As noted by McCale in briefing, other cases have been dismissed when they have been pending for a longer period.

Additionally, unlike other cases which have been dismissed for lack of prosecution, McCale took action to move this case forward. McCale had been able to secure an expert witness, Dr. Zimmerman, to examine McCale and prepare the examination findings in an expert report. Also, as noted above, McCale's counsel advised the district court that McCale was completing her medical treatment. This case thus was progressing forward.

McCale's attorney had strongly suggested that the district court provide sanctions in the form of attorney fees when granting the voluntary dismissal motion. Likewise, the court should have considered a lesser sanction before dismissing the case with prejudice. As another panel of our court noted, “Kansas courts have occasionally held a district court to have abused its discretion in dismissing a suit when a lesser sanction would have served to correct the recalcitrant conduct of a party.” Namelo v. Broyles, 33 Kan. App. 2d 349, 356, 103 P.3d 486 (2004). Notably, those dismissed cases related to discovery violations. See, e.g., Shay v. Kansas Dept. of Transportation, 265 Kan. 191, 196, 959 P.2d 849 (1998); Vickers v. City of Kansas City, 216 Kan. 84, 95, 531 P.2d 113 (1975). However, this case closely aligns with those types of cases due to the district court's complaints and lack of discovery in this case.

Counsel for McCale had recognized the consequences of his actions—or lack of action—and candidly took steps to make any necessary corrections. Given the manner of candor which counsel spoke of past actions and future endeavors in this case, arguably, one would not find this to be an extreme case worthy of dismissal with prejudice.

Any access to justice for McCale was cut off with the district court's dismissal rulings. As we have consistently noted:

“[A] court must balance its authority over case management with the larger concerns of justice, including the strong presumption in favor of deciding cases on the merits. This means that the court should consider whether dismissing the case with prejudice serves the interests of justice and whether there are alternative solutions that would allow the case to be decided on its merits.” A.K. by and Through N.K. v. Heit, No. 126,730, 2025 WL 1602925, at *7 (Kan. App. 2025) (unpublished opinion).

Here, counsel for McCale suggested an alternative solution: voluntary dismissal, with sanctions of attorney fees, that would have allowed McCale's case to be decided on its merits.

As noted in the majority opinion, a three-part test to determine the propriety of a district court's dismissal of a case for failure to prosecute was set forth in Reed, 312 F.3d at 1195. Slip op. at 23. Other panels of our court have adopted the Reed test. See, e.g., Fischer v. Roberge, 34 Kan. App. 2d 312, 315, 120 P.3d 796 (2005); Namelo, 33 Kan. App. 2d at 356; A.K. by and Through N.K., 2025 WL 1602925, at * 7. “That test requires the court to consider: ’ ”(1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant.” ’ ” A.K. by and Through N.K., 2025 WL 1602925, at * 7. Unfortunately, in our review of whether the district court abused its discretion when granting Davison's involuntary dismissal motion, we do not have the district court's application of these three factors.

Regarding the first factor, “a key factor for a court to consider in dismissing a case with prejudice is what harm will come to the defendant if it is not dismissed with prejudice.” A.K. by and Through N.K., 2025 WL 1602925, at * 7. As thoroughly addressed above, Davison was unable to show he would be harmed if the case was not dismissed.

Second, the amount of interference with the judicial process was lessened by McCale's actions. For instance, McCale had moved to dismiss the case several weeks before the trial, reminding the court that this was done to prevent court expenses relating to impaneling a jury. Moreover, McCale had advised the court of its intention to remove the case from the court's docket and proceed through mediation, thereby lessening any interference with the judicial process.

Finally, the third factor—the culpability of the litigant—also favors McCale. Certainly, the district court had expressed its frustration with McCale's counsel for failing to follow the court's case management orders. Nevertheless, courts have expressed “an extreme reluctance to uphold the dismissal of a case merely to discipline a party's attorney” because the sanction “ ‘deprives a plaintiff of his day in court ․’ ” Mulbah v. Detroit Board of Education, 261 F.3d 586, 590 (6th Cir. 2001). McCale should not have been penalized and deprived of her day in court due to the court's frustration with her counsel. Accordingly, these factors do not support the court's decision to dismiss with prejudice.

To conclude, the district court should have considered one or more sanctions other than dismissal with prejudice as this was not an extreme case. I would find the district court erred in dismissing McCale's case with prejudice for failing to prosecute.

Per Curiam: