Four Seasons Properties v. Somrak

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NOT DESIGNATED FOR PUBLICATION

No. 114,339

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

FOUR SEASONS PROPERTIES, L.C.,
Appellee,

v.

MARY SOMRAK,
Defendant,
MARY JENNELL TEBBETTS,
Appellant,
and FOUR SEASONS MH COMMUNITY, LLC,
Appellee.


MEMORANDUM OPINION

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed June 17, 2016.
Affirmed.

Phillip L. Turner, of Turner & Turner, of Topeka, for appellant.

P. Bernard Irvine, of Morrison, Frost, Olsen, Irvine & Schartz, LLP, of Manhattan, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: Due to a clear oversight, the district court failed to include a cross-
claim in a pretrial order. After all other parties settled and a motion to dismiss with
prejudice was filed as to all claimants, the nonsettling cross-claimant realized the error.
The cross-claimant filed a motion to correct the error in the pretrial order. However,
rather than correct the pretrial order, the district court dismissed the cross-claim without
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prejudice. One of the parties subject to the cross-claim appeals arguing that the district
court was required to dismiss the claim with prejudice. Because we find that the district
court did not abuse its discretion in dismissing the cross-claim without prejudice, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

At first blush, this case appears to involve several parties tangled in a complicated
procedural knot. Luckily, the facts immediately relevant to this appeal are much simpler
than meets the eye.

Mary Tebbetts and Mary Somrak purchased nine mobile homes from Four
Seasons Properties, L.C. (Four Seasons) on an installment sale contract. The contract
required that Tebbetts and Somrak maintain the mobile homes and pay all the lot rental
fees. But nearly 3 years later, Four Seasons filed suit against Tebbetts, Somrak, and
several others, alleging—among other things—that Tebbetts and Somrak failed to pay the
lot rental fees as agreed.

One of the defendants in the suit was Four Seasons MH Community, LLC (MHC),
which owned and operated the mobile home lots. In its answer, MHC asserted a cross-
claim against Somrak and Tebbetts for the unpaid rent and late fees. This claim alone
gives rise to the present appeal.

Somrak and Tebbetts defended themselves vigorously against the suit, moving for
dismissal and raising a number of counter- and cross-claims against Four Seasons and
MHC. Eventually, the district court granted summary judgment in favor of Four Seasons
on its initial claims.

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At a pretrial conference, the parties discussed all the remaining claims, including
MHC's cross-claim. There, Tebbetts' attorney acknowledged the "issue of the . . . requests
for rent, judgment for rent." Later in the hearing, when the district court omitted MHC's
cross-claim from the list of outstanding claims, MHC's counsel noted: "[T]here's rent
claims that we would have against Mary Tebbetts." Again, Tebbetts' attorney
acknowledged existence of this cross-claim. But for whatever reason, the final pretrial
order again omitted MHC's cross-claim, instead including only Tebbetts' claims against
Four Seasons and MHC. Apparently unaware of this error, MHC moved to try its cross-
claim against both Tebbetts and Somrak, who at the time was the subject of a bankruptcy
stay.

Before the district court decided this issue, however, Tebbetts moved to dismiss all
claims with prejudice. Apparently noticing the oversight in the pretrial order for the first
time, MHC responded by moving to correct the pretrial order. Rather than rule directly on
that issue, however, the district court granted Tebbetts' motion. Specifically, the district
court's order provided:

"1. MHC's rent claim against Mary Somrak and Tebbetts is not identified as an
issue for trial in the Pretrial Order.

"2. After hearing Tebbetts counsel's argument that the claims for rents by MHC,
against Tebbetts should be dismissed with prejudice because of the pretrial order . . . the
Court finds the argument without merit; refuses to dismiss such claims with prejudice and
further finds that MHC may pursue its claim for rents against Tebbetts in a separate
action.

. . . .

"4. The Tebbetts' claims should be dismissed with prejudice."

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The district court further ordered: "The claims stated in the Pretrial Order . . . are
dismissed with prejudice. . . . MHC may bring a separate action on the claims for rent
against any proper party deemed appropriate."

Tebbetts timely appealed.

ANALYSIS

On appeal, Tebbetts argues that the district court needed to dismiss MHC's cross-
claim with prejudice. Preliminarily, the district court's order in this case leaves the status
of MHC's claim somewhat unresolved. Clearly, the district court dismissed Tebbetts'
claims with prejudice, but MHC's claim is simply left to be brought in a separate action.
This language implicitly dismisses the whole case, MHC's outstanding claim included.

Tebbetts acknowledges that a dismissal of MHC's claim without prejudice
occurred, as her whole argument revolves around why a dismissal with prejudice is
warranted. Tebbetts' contention is this: by failing to include MHC's cross-claim in the
pretrial order, the district court permanently eliminated it. By authorizing MHC to pursue
the unpaid rent issue in a separate action, the district court improperly resurrected the
eliminated claim, and the only way to correct this error is to order a dismissal with
prejudice.

As Tebbetts observes, the unpaid rent claim was omitted from the pretrial order. A
pretrial order essentially memorializes the actions taken at the pretrial conference, where
the parties whittle down outstanding issues to be resolved. See K.S.A. 2015 Supp. 60-
216(c), (d). "[T]he purpose of a pretrial conference is to eliminate the element of surprise
from trials and to simplify the issues and procedure by effecting full disclosure to all
parties of the anticipated evidence and the contested issues." Bussman v. Safeco Ins. Co.
of America, 298 Kan. 700, Syl. ¶ 2, 317 P.3d 70 (2014). Therefore, the pretrial order
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"should supersede pleadings and control the future course of the action." Hibbert v.
Ransdell, 29 Kan. App. 2d 328, 335, 26 P.3d 721, rev. denied 272 Kan. 1417 (2001). For
that reason, district courts will "not entertain an issue or claim that is omitted from the
pretrial order." Bussman, 298 Kan. 700, Syl. ¶ 2. However, the order can be modified to
prevent manifest injustice. K.S.A. 2015 Supp. 60-216(d); 298 Kan. 700, Syl. ¶ 2.

Tebbetts alleges that although the pretrial order in this case could be modified, the
district court failed to find the sort of manifest injustice that would justify including the
omitted claim. But Tebbetts fails to recognize that the omission at issue here is clearly an
oversight. After all, MHC raised the issue of unpaid rent in its first pleading, and the
parties repeatedly referenced the claim during the pretrial conference. In fact, Tebbetts'
own counsel twice acknowledged the outstanding unpaid rent claim. Moreover, MHC
included the claim in its pretrial questionnaire. Given that all parties knew about this
claim and MHC moved to amend the pretrial order after discovering the omission, it is
clear that the district court could have found manifest injustice and corrected the error,
especially as modification of the order is within the district court's sound discretion. See
Black v. Don Schmid Motor, Inc., 232 Kan. 458, 468, 657 P.2d 517 (1983). In other
words, Tebbetts' argument that the error in the pretrial order permanently eliminated the
claim and removed any chance of MHC modifying the order is unpersuasive.

As for Tebbetts' insistence that the unpaid rent claim needed to be dismissed with
prejudice, our Kansas Supreme Court has previously held: "The sanction of dismissal
with prejudice is the most severe sanction a court can apply and its use must be tempered
by the careful exercise of judicial discretion . . . ." Bell v. Kansas City, Kansas Housing
Authority, 268 Kan. 208, 221, 992 P.2d 1233 (1999). Aside from her allegations that the
pretrial order could not be modified, Tebbetts provides no justification for applying this
severe sanction. And given that judicial discretion is only abused if the action is
(1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an
error of fact, it cannot fairly be said that the district court overstepped its bounds. See
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Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106 (2013). Neither Tebbetts nor the record reveals any reason to dismiss MHC's claim
with prejudice. Accordingly, we affirm the district court's decision to dismiss the claim
without prejudice.

Affirmed.