Volume 290 — Kansas Reports

<center> SYLLABUS BY THE COURT</center>1. CIVIL PROCEDURE — <italic>Motion to Dismiss for Failure to State Claim for</italic> <italic>Relief</italic> — <italic>When Considered as Motion for Summary Judgment.</italic> Under K.S.A. <cross_reference>60-212</cross_reference>(b), a motion to dismiss for failure to state a claim is treated like a motion for summary judgment if matters outside the pleadings are considered by the court. 2. SUMMARY JUDGMENT — <italic>Noncompliance with Supreme Court Rule on Summary</italic> <italic>Judgment Procedure</italic> — <italic>When Considered Harmless Error.</italic> Failure to comply with Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225) may constitute harmless error if subsequent filings of findings of fact allow for proper presentation of the uncontroverted facts establishing summary judgment is proper. 3. JUDGMENTS — <italic>Res Judicata</italic> — <italic>Collateral Estoppel</italic> — <italic>Application of</italic> <italic>Doctrines of Issue and Claim Preclusion</italic> — <italic>Appellate Review.</italic> Whether the doctrines of issue preclusion or claim preclusion apply in a certain situation is a question of law. An appellate court may analyze the question using de novo review. 4. SAME — <italic>Appeal</italic> — <italic>Effect of Appeal on Finality of Judgment for Claim</italic> <italic>Preclusion Purposes.</italic> A pending appeal does not suspend the finality of a judgment for claim preclusion purposes. 5. COURTS — <italic>Federal Court Decision</italic> — <italic>State Courts Bound by Federal</italic> <italic>Decision on Issues of Federal Law.</italic> State courts are bound to apply federal law in determining the preclusive effects of a federal court decision on issues of federal law. 6. SAME — <italic>Federal Courts</italic> — <italic>Adherence to Res Judicata and Collateral</italic> <italic>Estoppel</italic> — <italic>Claim Preclusion and Issue Preclusion Discussed.</italic> Federal courts traditionally adhere to the related doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Under claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were or could have been raised in that action. Under issue preclusion, once a court has decided an issue of fact or law necessary<page_number>Page 93</page_number> to its judgment, that decision may preclude relitigation of the same issue in a suit on a different cause of action involving a part)' to the first case. 7. JUDGMENTS — <italic>Res judicata</italic> — <italic>Claim Preclusion in State Court Action That</italic> <italic>Arose from Same Claim Determined by Federal Court.</italic> A federal court's refusal to consider a plaintiffs state law theories does not prevent claim preclusion from applying to theories subsequently filed in a state lawsuit if those theories arose out of the same claim or factual transaction determined by the federal court. 8. APPELLATE PROCEDURE — <italic>Court of Last Resort Follows Own Precedent.</italic> A court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent. 9. NEGLIGENCE — <italic>Causation</italic> — <italic>Burden of Proof.</italic> To satisfy the burden of proof for causation in a negligence claim, the plaintiff must produce evidence affording a reasonable basis to conclude it is more likely than not the defendant was a cause in fact of the result.

<center> ORIGINAL PROCEEDING IN DISCIPLINE</center>ATTORNEY AND CLIENT — <italic>Disciplinary Proceeding</italic> — <italic>One-year Suspension.</italic>