IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CAROL N. ARNOLD, MAURICE W. BOURQUIN,
DAWN R. LANSING, and DOUGLAS A. LANSING,
PAT HEWITT and MID-CENTURY INSURANCE COMPANY,
SYLLABUS BY THE COURT
1. Whether jurisdiction exists is a question of law over which an appellate court's scope of
review is unlimited.
2. The right to appeal is entirely statutory and is not contained in the United States or Kansas
Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to
entertain an appeal only if the appeal is taken in the manner prescribed by statute.
3. An order is considered final when all the issues in the case have been determined. A final
decision generally disposes of the entire merits of the case and leaves no further questions
or the possibility of future directions or actions by the court.
4. There is a strong policy against piecemeal appeals in Kansas.
5. Under the facts presented, an appellate court is without jurisdiction to consider an appeal
pursuant to K.S.A. 60-2102(a)(4).
Appeal from Miami District Court; STEPHEN D. HILL, judge. Opinion filed March 5,
Richard T. Merker and James L. Mowbray, of Wallace, Saunders,
Austin, Brown & Enochs, Chartered, of
Overland Park, for appellants.
Matthew S. Jensen, Steven B. Moore, and Kurt L.
Rasmussen, of Rasmussen, Willis, Dickey & Moore,
L.L.C., of Kansas City, Missouri, for appellees.
Before RULON, C.J., ELLIOTT and MALONE, JJ.
MALONE, J.: This is a claim against an insurance company and its agent for denial of
insurance coverage following a fatal car accident. The plaintiffs have appealed the dismissal of
some of their claims in district court. We find that this court is without jurisdiction and dismiss
We will review only the procedural history of the case. On April 4, 1996, Dawn Lansing
was driving a 1985 Jetta when she ran a stop sign and crashed into a vehicle driven by Wilma
Bourquin. Bourquin was killed in the accident. Douglas Lansing, Dawn's husband, notified his
insurance agent, Pat Hewitt, of the accident, under a belief that the Jetta was covered by an
insurance policy issued by Mid-Century Insurance Company (Mid-Century). Hewitt informed
Lansing there was no coverage.
The Lansings sued Hewitt and Mid-Century, claiming breach of contract, fraudulent
misrepresentation, and negligent failure to procure insurance. Bourquin's heirs were joined as
plaintiffs. The district court granted the defendants' motion for summary judgment on the breach
of contract claim and the fraudulent misrepresentation claim. The claim of negligent failure to
procure insurance survived, but the district court limited the damages to the amount of the policy,
which was $50,000.
The plaintiffs made no attempt to seek the entry of a final judgment on any of the claims
which the district court dismissed pursuant to K.S.A. 2003 Supp. 60-254(b). However, the
plaintiffs filed a motion pursuant to K.S.A. 60-2102(b) for an interlocutory appeal. The district
court denied the motion, stating that "the court sees no controlling questions of law in the orders
that the court has previously entered."
After the district court denied the motion for an interlocutory appeal, the plaintiffs filed a
motion to dismiss without prejudice the remaining negligence claim pursuant to K.S.A. 2003
Supp. 60-241(a)(2). The district court granted the motion to dismiss, over the defendants'
objection. The district court noted that the plaintiffs were anxious to prosecute an appeal, and the
district court wished to avoid a piecemeal trial of the various claims.
The plaintiffs filed their notice of appeal. Thereafter, the plaintiffs refiled in district court
their claim of negligent failure to procure insurance which had been previously dismissed without
prejudice. The defendants filed a motion with this court to dismiss the plaintiffs' appeal for lack of
jurisdiction. At the time of oral argument before this court, the plaintiffs' negligence claim was
pending in district court.
Whether jurisdiction exists is a question of law over which an appellate court's scope of
review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002). "The
appeal is entirely statutory and is not contained in the United States or Kansas Constitutions.
Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only
if the appeal is taken in the manner prescribed by statute. [Citation omitted.]" Butler
R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003).
According to the docketing statement, K.S.A. 60-2102(a)(4) is alleged to provide the
jurisdictional basis for this appeal. K.S.A. 60-2102(a) provides that appellate jurisdiction may be
invoked as a matter of right from "(4) A final decision in any action, except in an action where a
direct appeal to the supreme court is required by law." An order is considered final when all the
issues in the case have been determined. See Connell v. State Highway Commission,
371, 374, 388 P.2d 637 (1964). A final decision generally disposes of the entire merits of the case
and leaves no further questions or the possibility of future directions or actions by the court.
American Trust Administrators, Inc. v. Sebelius, 267 Kan. 480, Syl. ¶ 1, 981
P.2d 248 (1999).
The plaintiffs argue that the voluntary dismissal of their remaining negligence claim ended
the proceedings in district court. According to the plaintiffs, this resulted in a "final judgment" of
the district court's prior rulings which could then be appealed to the Court of Appeals. Since the
dismissal of the negligence claim was without prejudice, the plaintiffs assert it could be refiled in
district court without affecting jurisdiction over the appeal.
The plaintiffs cite Smith v. Welch, 265 Kan. 868, 967 P.2d 727 (1998),
wherein the district
court had granted the defendant's motion for summary judgment on several of the claims asserted
against him. The plaintiff then voluntarily dismissed the two remaining claims in order to pursue
an appeal. The Supreme Court reached the merits of the plaintiff's appeal without specifically
addressing the jurisdictional issue presented. See 265 Kan. at 869-70, 883. This pattern is
repeated in other Kansas appellate court cases where a similar procedural history resulted in the
court hearing the merits of the case without specifically ruling that a "final decision" had been
reached. See Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986),
482 U.S. 906 (1987); Rieke v. Kansas Dept. of Revenue, 28 Kan. App. 2d 476, 18
(2001); Turner and Boisseau, Chtd. v. Lowrance, 18 Kan. App. 2d 332, 852 P.2d
In the cases cited favorably by the plaintiffs, there is no indication in the opinions that the
plaintiffs refiled the dismissed claim in district court while their appeal was pending. Here, the
plaintiffs admit that they have refiled the remaining negligence claim in district court.
In Bain v. Artzer, 271 Kan. 578, Syl. ¶ 2, 25 P.3d 136 (2001), the court
held: "A trial
court's order granting a motion for voluntary dismissal without prejudice is not a final order and,
as such, an appellate court is without jurisdiction to consider an appeal of that order." See
Brower v. Bartal, 268 Kan. 43, 46, 990 P.2d 1235 (1999); Hodge v.
Hodge, 190 Kan. 492, 492-93, 376 P.2d 822 (1962); Scott v. Craft, 145 Kan.
172, 173, 64 P.2d 10 (1937). The plaintiffs
correctly point out that the above-mentioned cases involved appeals from the orders of dismissal.
Since the plaintiffs are not appealing the district court's decision to grant the dismissal without
prejudice, the above cases are not on point.
In State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983), the court was
a jurisdictional challenge by the defendant. The defendant alleged that the State had erroneously
appealed the dismissal of several counts of a multiple-count complaint while other counts
remained pending before the district court. The court noted that there were two prior opinions
where the court had allowed the State to appeal partial dismissals, but in both cases the court did
not specifically address the jurisdictional issue. The court noted that in neither of the previous
cases "was the jurisdiction on appeal raised or considered by the court and we do not consider the
decisions in those cases to be binding precedent for the issue which is now squarely before the
court." 234 Kan. at 281. The court held there was no statutory authority for the State to appeal
from the dismissal of some of the counts of a multiple-count complaint. 234 Kan. at 282. The
court noted: "The district court and the appellate courts cannot both have jurisdiction of a
pending case at the same time." 234 Kan. at 282.
In AMCO Ins. Co. v. Beck, 258 Kan. 726, 907 P.2d 137 (1995),
a declaratory judgment
action involving an insurance coverage issue, the district court entered a judgment against the
plaintiff on only one of three claims. The plaintiff appealed this determination. The court, on its
own motion, questioned its jurisdiction, noting that the case "'appears to be an attempted
interlocutory appeal which is not in compliance with the requirements of K.S.A. 60-254(b).'" 258
Kan. at 727. The plaintiff was unable to convince the court that there was jurisdiction, and the
appeal was dismissed. 258 Kan. at 730. The court noted: "There is a strong policy against
piecemeal appeals in Kansas." 258 Kan. at 728.
The Tenth Circuit Court of Appeals addressed this issue in Cook v. Rocky Mountain
Note Co., 974 F.2d 147 (10th Cir. 1992). In Cook, one of three claims for
relief was dismissed
with prejudice. The plaintiff dismissed without prejudice her two remaining claims and brought an
appeal on the claim which had been dismissed with prejudice. The Cook court held
plaintiff cannot be allowed to undermine the requirements of [Fed. R. Civ. Proc.] 54(b) by seeking
voluntary dismissal of her remaining claims and then appealing the claim that was dismissed with
prejudice." 974 F.2d at 148. The Cook court directly addressed the definition of a
and held: "[W]hen a plaintiff requests voluntary dismissal of her remaining claims without
prejudice in order to appeal from an order that dismisses another claim with prejudice, we
conclude that the order is not 'final' for purposes of [28 U.S.C.] § 1291." 974 F.2d at 148;
Ryan v. Occidental Petroleum Corp., 577 F.2d 298 (5th Cir. 1978).
Here, the district court dismissed some of the plaintiffs' claims but allowed one claim to
proceed to trial. The plaintiffs did not request findings for the entry of a final judgment pursuant
to K.S.A. 2003 Supp. 60-254(b). However, they filed a motion for an interlocutory appeal
pursuant to K.S.A. 60-2102(b), which was denied by the district court. The plaintiffs then
requested dismissal of their remaining claim without prejudice to pursue an appeal. They
compounded the potential jurisdictional problem by refiling their negligence claim in district court
with the appeal pending.
To allow the plaintiffs to proceed in this fashion would render meaningless the statutory
provisions invoking the jurisdiction of this court. Since a "final decision" must dispose of the
entire merits of the case, it is impossible to conclude that a final decision has been rendered in
district court to allow this appeal. Part of this case is pending in district court, while the
remaining claims are before this court. Although the district court sought to avoid a "piecemeal
trial," the plaintiffs have created the potential for a "piecemeal appeal." Under the facts presented,
we conclude that this court is without jurisdiction to consider the appeal pursuant to K.S.A.