Full Opinion

No. 129,724 IN THE COURT OF APPEALS OF THE STATE OF KANSAS OTTAWA UNIFIED SCHOOL DISTRICT 290, Appellee, v. DLR GROUP, INC., et al., Appellants. SYLLABUS BY THE COURT 1. This court has a duty to question jurisdiction on its own initiative. If the record discloses a lack of jurisdiction, the appeal must be dismissed. 2. Whether jurisdiction exists is a question of law, and our scope of review is unlimited. 3. Appellate jurisdiction may be invoked as a matter of right from a final decision in any action. A final decision is one where the court finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court. 4. The grant of a motion for voluntary dismissal without prejudice is not a final order and thus not an appealable final order. 1 Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Oral argument held August 18, 2026. Opinion filed November 6, 2026. Appeal dismissed. Melissa Hoag Sherman, of Spencer Fane LLP, of Overland Park, for appellant Olsson Associates, Inc., Kenton E. Snow and Philip D. Albrecht, of Woodworth Snow, LLC, of Overland Park, for appellant DLR Group, Inc., and Chris Turney, of Turney LG, of Kansas City, Missouri, for appellant Loyd Builders, Inc. Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and Heather F. Shore, of Baker Sterchi Cowden & Rice, of Kansas City, Missouri, for appellee. Before WARNER, C.J., BOLTON FLEMING, J., and TERESA L. WATSON, District Judge, assigned. WATSON, J.: Plaintiff Ottawa Unified School District 290 (School District) contracted separately with DLR Group, Olsson Associates, and Loyd Builders (Defendants) to complete construction projects approved as part of a bond issue in the district (2015 Bond Projects). These projects included additions to the local high school and the construction of a new elementary school as well as renovations to other buildings. Each of the contracts, in some form, required the parties to mediate contract disputes prior to filing litigation. The School District later reported certain defects in the completed projects. Over the course of a few years, the parties worked to determine what repairs were needed and how best to do them. The parties discussed mediation, but it never occurred. The School District filed suit against the Defendants. The Defendants filed answers and motions for summary judgment, arguing that the School District breached its contracts with the Defendants by failing to mediate its claims prior to filing suit. The School District asked the district court to stay the litigation so that the parties could engage in mediation, or in the alternative, allow the School 2 District to dismiss the case without prejudice. The district court denied the School District's requests and granted the Defendants' motions for summary judgment. Before these orders were journalized and filed by the court, the School District renewed its motion to dismiss without prejudice. The district court reconsidered its earlier order, this time granting the motion on the condition that the School District pay the Defendants' attorney fees and costs associated with pursuit of the summary judgment motions. The Defendants appeal the district court's grant of the School District's motion for voluntary dismissal without prejudice under K.S.A. 60-241(a)(2). Because we lack jurisdiction over this voluntary dismissal without prejudice, the appeal is dismissed. FACTS AND PROCEDURAL BACKGROUND In February 2015, the School District and DLR Group entered the DLR Contract for the 2015 Bond Projects. Pertinent to this appeal, the DLR Contract provides that mediation of disputes under the contract is a condition precedent to filing litigation. In August 2015, the School District and Olsson Associates entered the Olsson Letter Agreement for geotechnical services related to the 2015 Bond Projects. The Olsson Letter Agreement provides that disputes under the contract shall be submitted to mediation. If mediation is unsuccessful, all disputes shall be resolved either by litigation or binding arbitration, at the sole discretion and choice of Olsson. In September 2015, the School District and Loyd Builders entered the Loyd Contract, naming Loyd the construction manager for the 2015 Bond Projects. The Loyd Contract provides generally that the parties should first attempt to resolve disputes on an informal basis as described in the contract. If that is not successful, the parties must 3 attempt to mediate the dispute. Mediation of disputes under the contract is a condition precedent to filing litigation. DLR issued a "Certificate of Substantial Completion" for the 2015 Bond Projects on November 1, 2019. In January 2020, the School District notified the Defendants of cracking in walls and floor slabs. This began a multi-year series of events where the School District would notice additional cracking and settling in certain parts of the project, and the School District would report it to the Defendants. The Defendants at first believed the cracks were cosmetic, then decided the cracks should be monitored, then believed the cracks should be investigated and tested, including a boring and analysis of the subgrade beneath certain buildings. In early 2024, the parties worked to develop a plan to repair the defects and began negotiating terms of a tolling agreement whereby the School District would delay filing legal proceedings against the Defendants and the Defendants would agree to waive any statute of limitations or similar defenses to any later claims. During this time, the parties also discussed using an independent firm called Terracon to complete a more detailed site investigation, including boring and analysis of the subgrade, regarding the defects. On June 3, 2024, Loyd, through counsel, sent a letter to the School District that said, in relevant part, that it could not meaningfully engage in mediation until more was known about the defects, and Loyd would not contribute to the costs for the Terracon investigation and report. Olsson said it would not pay for any of Terracon's services if all parties would not agree to share the costs. By August 2024, no tolling agreement was in place. On August 29, 2024, the School District filed a petition against DLR, Loyd, and Olsson, asserting breach of 4 contract, negligence, and breach of good faith and fair dealing against all Defendants and breach of express warranty claims against DLR and Loyd. The School District engaged Terracon to complete an investigation and report on the defects. DLR suggested a mediator in October 2024, and the School District agreed to the mediator. On November 5, 2024, the School District asked the other Defendants if they would engage in mediation with the mediator suggested by DLR. Olsson suggested another mediator. Mediation never occurred. The Defendants each moved for summary judgment based on the School District's failure to engage in or issue a written demand for mediation prior to filing litigation. On November 22, 2024—after DLR and Loyd filed their summary judgment motions but before Olsson filed its motion—the School District moved to stay the case pending mediation. At the hearing on the summary judgment motions and the School District's motion to stay, the district court noted that mediation was a condition precedent to filing suit under the contracts, but no mediation had occurred. The School District pointed out that the parties had discussed mediation, but the parties could not agree on a mediator, what information was needed before engaging in mediation, or how best to get the information. Feeling the pressure of the statute of limitations, the School District said it was forced to file suit. The School District urged the district court to simply stay the litigation so that the parties could proceed with mediation. The district court took a recess during the hearing before ruling from the bench. When the proceedings continued, the School District said if the court planned to grant the Defendants' motions, the School District would move to dismiss the case without prejudice so it could formally demand mediation and refile the case. The district court denied the School District's motion to dismiss without prejudice. 5 Instead, the district court granted the Defendants' motions for summary judgment. The district court found that the DLR and Loyd Contracts clearly required mediation as a condition precedent to filing litigation. The district court said that the Olsson Letter Agreement did not contain the same language but still required mediation before pursuing other remedies, including litigation. Before the filing of journal entries reflecting the district court's oral rulings at the hearing, the School District renewed its motion for voluntary dismissal without prejudice under K.S.A. 60-241(a)(2). The School District argued its request would not prejudice the Defendants and would correct what the School District viewed as a procedural issue. In their joint opposition to the School District's renewed motion, the Defendants argued that the law does not favor allowing a party to dismiss its claims to avoid an adverse ruling. The Defendants asserted prejudice in that they had incurred attorney fees in responding to the lawsuit and would be stripped of a bargained-for term in their contracts with the School District. The district court held a hearing on the renewed motion. The district court expressed concern about the timing of the School District's original motion to dismiss but said it was willing to consider the renewed motion because the summary judgment decisions had not yet been journalized. The district court granted the School District's renewed motion for voluntary dismissal without prejudice, on the condition that the School District pay the Defendants' attorney fees and costs associated with pursuing the summary judgment motions. The district court declined to certify the matter for interlocutory appeal under K.S.A. 60-2102(c). The Defendants appealed. 6 ANALYSIS The sole issue raised by the Defendants' appeal is whether the district court abused its discretion by granting the School District's request for voluntary dismissal without prejudice. However, there is a jurisdictional issue that must be addressed first, and we conclude that it requires dismissal of the appeal. Jurisdiction Prior to briefing in this matter, this court ordered the parties to show cause whether it had jurisdiction to consider the appeal. See Bain v. Artzer, 271 Kan. 578, Syl. ¶ 2, 25 P.3d 136 (2001) ("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."). After receiving the parties' responses, this court retained the appeal on the basis that, under certain circumstances, an appellate court may review a voluntary dismissal without prejudice if there is a question about whether the case should have been dismissed with prejudice. See Hughs v. Valley State Bank, 26 Kan. App. 2d 631, Syl. ¶ 1, 994 P.2d 1079 (1999). Having retained the appeal, and now with the benefit of full briefing and argument from the parties, we revisit the question of our jurisdiction. This court has a duty to question jurisdiction on its own initiative. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). If the record discloses a lack of jurisdiction, the appeal must be dismissed. Plains Petroleum Co. v. First Nat'l Bank of Lamar, 274 Kan. 74, Syl. ¶ 3, 49 P.3d 432 (2002). Whether jurisdiction exists is a question of law, and this court's scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). 7 K.S.A. 60-2102(a)(4) provides that appellate jurisdiction may be invoked as a matter of right from a final decision in any action. K.S.A. 60-254(a) defines judgment as "the final determination of the parties' rights in an action." A final decision is one where the court "finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court." Plains Petroleum Co., 274 Kan. 74, Syl. ¶ 4. Bain establishes the starting point for our analysis—the grant of a motion for voluntary dismissal without prejudice is not a final order and thus not appealable. Bain, 271 Kan. 578, Syl. ¶ 2. Bain is routinely cited for this proposition without question. See, e.g., Huffman v. Buessing, No. 127,446, 2025 WL 3250820, at *6 (Kan. App. 2025) (unpublished opinion) ("the line of cases holding that appellate jurisdiction cannot lie from appeals from orders of dismissal without prejudice remains sound "). Defendants here relied on Hughs to clear a path to appellate jurisdiction. Hughs predates Bain. Since Bain, Hughs has not been widely cited as authority for the appealability of a voluntary dismissal without prejudice, likely because it is based narrowly upon unique circumstances presented by its facts. We conclude that Hughs does not apply to give rise to appellate jurisdiction under the facts of this case. Hughs filed a retaliation action against the defendant under the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. Hughs, 26 Kan. App. 2d at 633. Before bringing a KAAD claim, a plaintiff must exhaust administrative remedies by filing a complaint with the Kansas Human Rights Commission (KHRC) within six months of the discriminatory act. See K.S.A. 44-1005(i). Once a plaintiff receives a right- to-sue letter from the KHRC, a plaintiff has 45 days to file a civil action in district court. See K.S.A. 44-1021(a). Such claims are time-barred if they do not comply with the statutory time restrictions. Carter v. Spirit Aerosystems, Inc., No. 16-1350-EFM-GEB, 2017 WL 4865690, at *5 (D. Kan. 2017) (unpublished opinion). 8 While Hughs had filed a complaint with the EEOC, the federal counterpart to the KHRC, she did not file a complaint with the KHRC. The defendants moved for summary judgment on the basis that Hughs had not filed a claim with the KHRC and had not exhausted her administrative remedies under the KAAD, and it was too late to do so. Hughs argued that the filing of her EEOC claim sufficed as a filing with the KHRC. Hughs asked that her retaliation suit be dismissed without prejudice so she could exhaust her remedies before the KHRC. The district court accepted Hughs' argument and dismissed her case without prejudice so she could exhaust administrative remedies. Hughs, 26 Kan. App. 2d at 633. The defendants appealed, arguing that the district court erred in dismissing the suit without prejudice because Hughs had not filed a claim with KHRC in the first place, the EEOC charge was not sufficient, and exhaustion of remedies was impossible due to the time bar. The defendants asserted that for these reasons neither the district court nor the KHRC had jurisdiction over Hughs' claim, and any dismissal of the case necessarily should have been with prejudice. 26 Kan. App. 2d at 635. This court agreed, concluding that filing a claim with the EEOC was not sufficient to initiate a claim under the KAAD. Further, since Hughs failed to file a complaint with the KHRC in the first place, the agency had no jurisdiction over her claim, she could not exhaust her remedies under the KAAD, and it was too late to do so. 26 Kan. App. 2d at 641-42. The Hughs court concluded that, given the unique circumstances, it had jurisdiction to consider the defendants' appeal of the district court's dismissal without prejudice. The Hughs court found reason to consider the appeal because Hughs' claim should have been dismissed with prejudice as a matter of law, since the KHRC had no jurisdiction over the claim, and any attempt to exhaust her remedies with the agency (as allowed by the district court's order) would be time barred. The Hughs court reversed the 9 district court's order and remanded the case with instructions to enter judgment for the defendants. 26 Kan. App. 2d at 635, 643. The situation here is different. The School District presented its concerns about the finished construction project and engaged in various informal discussions with the Defendants, including general discussions of mediation. The School District filed suit to preserve the statute of limitations. The Defendants filed answers and motions for summary judgment based on the School District's failure to mediate prior to filing suit. Ultimately, the district court granted the School District's renewed motion to dismiss without prejudice so that the School District could pursue mediation. Unlike Hughs, there is no argument here that the School District's claims would be time barred or otherwise futile if refiled. The parties indicated at oral argument that the case has, in fact, been refiled. There is no unique circumstance here upon which we could or should depart from the cardinal rule in Bain—that we do not have jurisdiction over an appeal from a voluntary dismissal without prejudice. Appeal dismissed. 10