[00:00:00] Speaker 01:
I think we'll start with Harris versus CityCycle, 23-3116.

[00:00:05] Speaker 01:
Mr. Markway?

[00:00:07] Speaker 04:
May I please report?

[00:00:09] Speaker 04:
I'm Taylor Markway here on behalf of Appellate CityCycle cells.

[00:00:14] Speaker 04:
This appeal raises the issue of whether a plaintiff can voluntarily abandon certain claims in state court, both at trial and on appeal, but then nevertheless resurrect those same abandoned claims simply by refiling them in federal court.

[00:00:28] Speaker 04:
And that is exactly what the district court allowed plaintiff Jeremy Harris to do here with respect to his claims brought under the Kansas Consumer Protection Act, or KCPA.

[00:00:39] Speaker 04:
The district court erred in doing so under both the law of the case doctrine and claim preclusion.

[00:00:45] Speaker 02:
Did your client stipulate dismissal without prejudice?

[00:00:49] Speaker 04:
Of the action in general, yes.

[00:00:52] Speaker 02:
And is that what led the district court to do what the district court did?

[00:00:57] Speaker 04:
I don't believe the discord relied on that stipulation.

[00:01:01] Speaker 04:
Now the stipulation just said, this action is dismissed without prejudice, each party to bear their own cost.

[00:01:08] Speaker 04:
The COVID-19 tolling orders won't apply.

[00:01:11] Speaker 04:
That's all it said.

[00:01:12] Speaker 04:
It said nothing about the KCPA claims or refiling them or anything like that.

[00:01:19] Speaker 04:
And so there is no dispute that Harris abandoned his KCPA claims.

[00:01:25] Speaker 04:
in the Kansas State Court, both at trial and on appeal.

[00:01:27] Speaker 04:
He did not submit them to the jury at trial.

[00:01:31] Speaker 04:
He did not raise them on his subsequent appeal.

[00:01:34] Speaker 04:
Both Harris and the district court agree on this point.

[00:01:38] Speaker 04:
So then the question of whether the law of the case doctrine applies to Barr Harris' KCPA claims depends on the answer to two questions.

[00:01:50] Speaker 04:
One, did his abandonment become part of the law of the case in the Kansas State Court?

[00:01:54] Speaker 04:
And two, if so, did the law of the case in the Kansas State Court carry over to Harris's subsequent federal court action?

[00:02:04] Speaker 04:
So again, the first question, did Harris's abandonment become part of the law of the case in Kansas?

[00:02:10] Speaker 04:
And indeed it did, because in Kansas, the abandonment of a claim, quote, constitutes a final judgment in the opposing party's favor, end quote.

[00:02:21] Speaker 04:
And that's what the Kansas Court of Appeals

[00:02:23] Speaker 04:
In the Garcia Paz case, which cites a couple cases, the Supreme Court cases, Bratton and Warren, that also hold that abandonment operates as a termination of the claim in favor of the party's opponent.

[00:02:38] Speaker 04:
Would you give the site for that?

[00:02:39] Speaker 04:
Garcia Paz is 2001 WL37132216.

[00:02:42] Speaker 04:
And it's a 2001 case in the Kansas Court of Appeals.

[00:02:53] Speaker 04:
It's Garcia Paz versus Galvin.

[00:02:58] Speaker 00:
So is your argument that functionally in Kansas, if I'm in a state court case and as the case goes along, I abandon some theories for lack of a better term?

[00:03:14] Speaker 00:
that there's like this self-executing judgment, even though there's not a final judgment ever entered in the case?

[00:03:20] Speaker 04:
Yes, that's correct.

[00:03:21] Speaker 04:
That's what Kansas law provides.

[00:03:22] Speaker 04:
There does not need to be an explicit judgment saying this is abandoned, it's other way.

[00:03:29] Speaker 04:
As a matter of operational law, there is a final judgment in the opponent's favor of never abandoning the claim.

[00:03:37] Speaker 01:
Since you just gave a Westlaw site, is that precedential in Kansas?

[00:03:42] Speaker 04:
So it's not the Garcia Paz case, since it's unpublished, it's not considered precedent, it's considered persuasive.

[00:03:52] Speaker 04:
But under this court's opinion in Fransom v. Conoco Inc., decisions of a state's intermediate appellate courts are some evidence of how the state Supreme Court would decide the issue, and we can consider them as such, even if they are not by precedent under state law.

[00:04:09] Speaker 04:
So this court can still consider Garcia Paz

[00:04:12] Speaker 04:
even though it was unpublished.

[00:04:13] Speaker 01:
Did it cite prior?

[00:04:15] Speaker 04:
Yes, it cited Kansas Supreme Court opinions, Bratton and Martin, which we also cite in our brief.

[00:04:23] Speaker 04:
And those are present.

[00:04:25] Speaker 02:
Is it in the same context where there's a second lawsuit?

[00:04:29] Speaker 04:
Garcia-Paz?

[00:04:30] Speaker 04:
Yes.

[00:04:31] Speaker 04:
In the first lawsuit, the party abandoned their claim voluntarily, just like here.

[00:04:39] Speaker 04:
And then they tried to bring it in a second lawsuit.

[00:04:43] Speaker 04:
And the trial court said, no, you can't do that.

[00:04:45] Speaker 02:
The term is withdrawn claim.

[00:04:47] Speaker 02:
Was it actively withdrawn?

[00:04:51] Speaker 02:
The party stood up and said, we're not pursuing that one anymore.

[00:04:54] Speaker 04:
I think they told the trial court, we are dropping this claim.

[00:04:58] Speaker ?:
Yes.

[00:04:59] Speaker 02:
So small difference.

[00:05:02] Speaker 04:
Small difference, but that's not what the opinion hinged on.

[00:05:05] Speaker 04:
Yes.

[00:05:08] Speaker 04:
And so, because Harris abandoned his KCPA claims in state court, that meant there was a final judgment, and Citi site was favored on those KCPA claims.

[00:05:18] Speaker 04:
And that final judge of abandonment was never challenged on appeal.

[00:05:23] Speaker 04:
It certainly was never reversed on appeal.

[00:05:25] Speaker 04:
And so, it became the law of the case.

[00:05:29] Speaker 04:
And so, the second question is whether the law of the case of the Kansas State Court action, including Harris's abandonment,

[00:05:37] Speaker 04:
carried over to his subsequent federal court action.

[00:05:40] Speaker 04:
In pursuant to this court's decision in Gage v. General Motors, it certainly did.

[00:05:45] Speaker 04:
In Gage, this court held that the law of the case of a state court action that's dismissed without prejudice applies equally to a subsequent federal court action involving the same parties and claims, which is the exact situation we have here.

[00:06:01] Speaker 04:
And Tellingly cares in his brief design and address Gage, let alone try to explain how it would not apply here.

[00:06:08] Speaker 04:
And so this court should answer both questions and the infirmament.

[00:06:12] Speaker 04:
Yes, Harris's abandonment became the law of the case in the Kansas State Court action.

[00:06:17] Speaker 04:
And yes, that law of the case of the Kansas State Court action carried over to Harris's federal district court action.

[00:06:24] Speaker 04:
And thus Harris's KCPA terms, which were abandoned in the state court, remain abandoned in federal court and are thus barred by the law of the case doctrine.

[00:06:34] Speaker 04:
And for this reason alone,

[00:06:35] Speaker 04:
City Cycle is entitled to judgment as a matter of law on Harris's KCPA crimes.

[00:06:45] Speaker 04:
As an alternative to the law of the case doctrine, Harris's abandoned KCPA claims are also barred by claim preclusion.

[00:06:52] Speaker 02:
But before we lead that, that one, there's a small difference too, right, with Gage, which is that the court actually dismissed that claim for failure to state a claim.

[00:07:04] Speaker 04:
Yes.

[00:07:06] Speaker 02:
That's not a small difference.

[00:07:07] Speaker 02:
That's a big one.

[00:07:08] Speaker 04:
But Gage answers the question of whether law of the case carries over.

[00:07:13] Speaker 02:
To a dismissed claim as opposed to one that just went into the ether.

[00:07:19] Speaker 04:
Well, that goes back to the first question as to whether abandonment becomes part of the law of the case in the first place.

[00:07:28] Speaker 04:
And on that question, if the case

[00:07:33] Speaker 04:
in the opposing party's favor.

[00:07:35] Speaker 04:
Gage answers the second question, does the law of the case from the state court action carry over to the federal court action?

[00:07:46] Speaker 04:
So on claim preclusion, there are four elements required to apply claim preclusion, but only the last element, the existence of a final judgment on the merits, is in dispute here.

[00:07:59] Speaker 04:
But again, as discussed with the law of the case doctrine,

[00:08:02] Speaker 04:
Kansas law treats abandonment of the claim as a final judgment in the opposing party's favor.

[00:08:09] Speaker 04:
And so, by virtue of Harris' abandonment of his KCPA claims, City Cycle did have an implicit final judgment in its favor on those abandoned claims.

[00:08:21] Speaker 04:
And so the last element of claim, preclusion, is satisfied here.

[00:08:30] Speaker 01:
You're saying that you need a final judgment for preclusion to apply.

[00:08:36] Speaker 01:
Right.

[00:08:37] Speaker 01:
And you're saying there can be a final judgment on part of the case, even though not on the rest of the case?

[00:08:43] Speaker 01:
Well, Kansas law says that.

[00:08:44] Speaker 04:
It says that abandonment, quote, constitutes a final judgment in the opponent party's favor.

[00:08:51] Speaker 04:
So I mean, Kansas law really answers this question whether or not there is a final judgment.

[00:08:57] Speaker 04:
based on his abandonment.

[00:08:59] Speaker 04:
And it says there is.

[00:09:03] Speaker 00:
And so for that additional reason... So you used the term an implicit final judgment.

[00:09:10] Speaker 00:
Do you have a case that's ever given a preclusive effect to an implicit final judgment?

[00:09:19] Speaker 04:
Yes, that'd be the Garcia Paz case I've been discussing.

[00:09:23] Speaker 00:
How about other than that?

[00:09:29] Speaker 04:
In Martin and Bratton, I don't believe there was an explicit, and those are the Kansas Supreme Court cases that are cited by Carson and Pez and in our briefs, I don't believe there was an explicit judgment of abandonment.

[00:09:44] Speaker 04:
The review in court just said you abandon these claims.

[00:09:47] Speaker 04:
That counts that operates as termination in the opposing party's favor on these claims.

[00:09:56] Speaker 00:
Okay.

[00:09:56] Speaker 00:
And that's in the context of a case where the ultimate disposition was there was a dismissal without prejudice, presumably allowing the person to proceed again on any non-abandoned claims?

[00:10:12] Speaker 00:
No.

[00:10:13] Speaker 04:
So again, that would be more like the Garcia Pass case.

[00:10:15] Speaker 04:
Okay.

[00:10:15] Speaker 04:
But it's, again, this is a question because this little Garcia Pass is the most on-point authority we have.

[00:10:21] Speaker 04:
And according to this own course precedent, it can be considered.

[00:10:25] Speaker 04:
even though it's unpublished.

[00:10:28] Speaker 01:
So if you prevail on your KCPA claim, what is left on your appeal?

[00:10:35] Speaker 04:
Then the final point is causation.

[00:10:39] Speaker 01:
And that's your only challenge to the other claims, is what you're saying.

[00:10:44] Speaker 04:
To the negligence claim, yes.

[00:10:45] Speaker 04:
So there's only KCPA negligence.

[00:10:47] Speaker 04:
Causation goes to both.

[00:10:50] Speaker 04:
For causation,

[00:10:52] Speaker 04:
Paris had the burden of proving the pinched wire that reportedly caused the motorcycle accident issue existed at a tiny city cycle service of the motorcycle.

[00:11:02] Speaker 01:
Don't you think that's a reasonable inference the jury can make?

[00:11:05] Speaker 01:
If you're not challenging the finding that the pinched wire caused the accident?

[00:11:13] Speaker 01:
Right.

[00:11:14] Speaker 01:
You may disagree with that, but that finding is supported.

[00:11:18] Speaker 01:
And there was...

[00:11:22] Speaker 01:
And the pinch wire was not itself caused by the accident.

[00:11:26] Speaker 01:
So presumably it predated the accident.

[00:11:29] Speaker 01:
There's no reason to think it occurred between the time.

[00:11:34] Speaker 01:
There's no event that can show why that would have occurred between the time the motorcycle was looked at by your client.

[00:11:42] Speaker 01:
And in fact, there was some evidence that there was a problem with this system when it went to your client.

[00:11:48] Speaker 01:
Why is that not a reasonable inference?

[00:11:50] Speaker 04:
So under Kansas law, this is all circumstantial evidence, right?

[00:11:54] Speaker 04:
Under Kansas law, circumstantial evidence can suffice if there's either an expert opinion supporting it, or the circumstantial evidence tends to negate other reasonable causes, which in this case would be, tends to negate as a matter of probability that the pinch wire did not occur in the 35 days between city cycle service and the accident.

[00:12:16] Speaker 04:
Well, the expert opinion part, there was no expert opinion.

[00:12:32] Speaker 04:
No records and no evidence allowing McCracken to make his conclusion based on the circumstantial evidence that existed.

[00:12:39] Speaker 01:
But then he said, but you can put on this evidence and so on and so forth, which amounted to essentially the same, although I'm not sure if maybe you can answer that.

[00:12:48] Speaker 01:
The other evidence that the judge, the other questions the judge allowed to be asked of the expert were not asked of the expert or were they?

[00:12:56] Speaker 01:
We don't have a full record on that.

[00:12:59] Speaker 01:
There's no author of proof if that's why you're asking.

[00:13:01] Speaker 01:
No, no.

[00:13:02] Speaker 01:
The judge said you can't ask this question.

[00:13:04] Speaker 01:
That would be speculative for him to answer that.

[00:13:07] Speaker 01:
But you can ask these questions.

[00:13:09] Speaker 01:
Were those questions asked at trial?

[00:13:11] Speaker 04:
The questions were, I believe, did the pinch wire cause the... And that was not allowed.

[00:13:19] Speaker 01:
That was allowed.

[00:13:20] Speaker 01:
It just went through a litany of things you could ask that would, I think, naturally result in the conclusion that it was...

[00:13:31] Speaker 01:
the pinched wire existed at the time the vehicle was serviced.

[00:13:37] Speaker 04:
So the only thing that he was not allowed to ask or the expert was not allowed to answer was whether the pinched wire existed at the time of the service and whether the pinched wire caused the ABS light issues that predate city cycle service.

[00:13:56] Speaker 04:
He wasn't allowed to apply on that either.

[00:13:59] Speaker 01:
Okay, but he did say you can ask certain questions and I couldn't tell, maybe it's there and I missed it, whether those other questions were asked.

[00:14:08] Speaker 01:
So I'm not going to let, that's too speculative to ask these questions.

[00:14:11] Speaker 01:
Well, I'm opposing counsel.

[00:14:14] Speaker 04:
Okay, that I'll reserve the remainder of my time if there's no other questions.

[00:14:18] Speaker 01:
Okay, thank you.

[00:14:20] Speaker 03:
Good morning and may it please the court.

[00:14:22] Speaker 03:
My name is Dan Cobb and I represent the plaintiff and appellate, Mr. Jeremy Harris.

[00:14:27] Speaker 03:
Mr. Harris respects

[00:14:31] Speaker 03:
of Judgement in full amount of the jury's verdict, the denial of City Cycle's renewed motion for judgment as a matter of law.

[00:14:39] Speaker 03:
And this court should affirm Chief Judge Melgram for two reasons.

[00:14:43] Speaker 03:
First, Chief Judge Melgram correctly ruled that Mr. Harris was allowed to pursue all theories of liability arising from City Cycle's service, the representations regarding that service, and Mr. Harris' subsequent accident.

[00:14:58] Speaker 03:
And second, Chief Judge Melgram correctly ruled

[00:15:01] Speaker 03:
that there was substantial evidence supporting the jury's verdict and Mr. Harris's favor.

[00:15:07] Speaker 03:
This case is about City Cycle telling Mr. Harris that his motorcycle was safe to ride despite the service technician's knowledge and belief that the undiagnosed ABS issue that Mr. Harris specifically asked for service on and for City Cycle to look into rendered the motorcycle in dangerous condition, especially dangerous for Mr. Harris.

[00:15:29] Speaker 01:
Let me ask about the law of the case this year.

[00:15:32] Speaker 01:
Did the judge say, the law of the case applies here, but under such and such exception to the law of the case, I'm going to allow the KCPA claim?

[00:15:47] Speaker 01:
No, Your Honor.

[00:15:48] Speaker 01:
He just said law of the case doesn't apply.

[00:15:50] Speaker 01:
Yes, Your Honor.

[00:15:51] Speaker 01:
OK, but that's contrary to pretty settled law in Kansas and in the federal courts, is it not?

[00:15:59] Speaker 03:
plaintiff disagrees, Your Honor, for a couple of reasons.

[00:16:02] Speaker 03:
First, as Judge Meldrum pointed out, this is a new case.

[00:16:06] Speaker 03:
The law of the case's doctrine generally applies only to the same case.

[00:16:10] Speaker 03:
And the parties, as Judge Phillips pointed out, agreed to jointly dismiss the state court case.

[00:16:17] Speaker 03:
And then that implicated the savings statute.

[00:16:19] Speaker 01:
But at that stage, when it was dismissed, the case had already gone up on appeal.

[00:16:26] Speaker 01:
At that point, before it was appealed, the plaintiff had abandoned the KCPA claim and did not appeal the dropping of that claim.

[00:16:40] Speaker 01:
And under Kansas law,

[00:16:42] Speaker 01:
says the law of the case, perhaps also a conclusion, bars that claim from being raised again in a Kansas court.

[00:16:51] Speaker 01:
Do you disagree with that law?

[00:16:54] Speaker 01:
Yes, I disagree.

[00:16:55] Speaker 01:
The cases say contrary.

[00:16:57] Speaker 01:
What authority do you have for that?

[00:17:00] Speaker 03:
First and foremost is that there was a full reversal and remand.

[00:17:04] Speaker 03:
And for example, all the cases, including Garcia Pass, deal with an actual decision on something

[00:17:11] Speaker 03:
That wasn't overruled.

[00:17:15] Speaker 01:
Go ahead, but that's contrary to... He's got a voluminous bench memo over here.

[00:17:25] Speaker 01:
State v. Crenshaw, if an issue could have been raised in a prior appeal but was not raised in that appeal, an appellate court should not consider the issue on a second appeal after remand, even if the issue was not explicitly or implicitly decided on the first appeal.

[00:17:39] Speaker 03:
Your Honor, that issue again, this was a whether or not a theory of liability asserted in a second successive new claim and the withdrawal and the mandating rule.

[00:17:53] Speaker 01:
Could have been raised, my first question is, could have been raised in Kansas court after remand and the case law in Kansas suggests no.

[00:18:02] Speaker 01:
Then we decide, well, what about starting a new suit in federal court?

[00:18:08] Speaker 01:
And that's the second issue.

[00:18:09] Speaker 01:
But I want to see if you disagree on the first issue, that if you had pursued this litigation in Kansas, you could not have reinstituted the KCPA claim unless you established some exception to law of the case.

[00:18:30] Speaker 03:
Yes, I understand.

[00:18:31] Speaker 01:
I apologize, Your Honor.

[00:18:32] Speaker 01:
Do you disagree with that?

[00:18:34] Speaker 03:
Yes, in this specific circumstance, because there was an unqualified reversal of remand vacating the trial.

[00:18:40] Speaker 03:
So the strategies were vacated.

[00:18:42] Speaker 03:
So what claims?

[00:18:44] Speaker 01:
So the appellate court reverses on the claims that are raised.

[00:18:53] Speaker 01:
If that happened in this case, and we didn't know a claim had been dropped, and we say we reverse and remand for further proceedings, we're not implicitly saying, and everything we didn't consider, you can re-raise again.

[00:19:06] Speaker 01:
We would never allow that.

[00:19:08] Speaker 01:
And that's contrary to the law I can find regarding the federal court.

[00:19:13] Speaker 01:
Maybe you have some contrary cases.

[00:19:15] Speaker 03:
That's why I'm asking this.

[00:19:20] Speaker 03:
about how a reversal and remand places the parties in the positions they were prior to trial, insofar as relieved is concerned.

[00:19:30] Speaker 03:
And in this case, the last operative pleading in the state court case was Mr. Harris's first amendment petition, which included both negligence and KCPA claims.

[00:19:40] Speaker 03:
There was no pretrial order issued.

[00:19:42] Speaker 03:
So therefore, it's plaintiff's position that if this case was retrialed, because a retrial is not a replay,

[00:19:49] Speaker 03:
that he would have been able to continue to pursue the KCPA claims because the last offer to pleading in state court provided for that.

[00:19:56] Speaker 01:
Do you have any Kansas authority?

[00:19:58] Speaker 01:
Because I'm pretty sure it's Kansas law that will control on this issue.

[00:20:04] Speaker 01:
We would have to apply Kansas law regarding the effect of its judgments when the case is filed in federal court under diversity jurisdiction.

[00:20:13] Speaker 01:
So do you have any Kansas cases

[00:20:17] Speaker 01:
supporting your view of what happens after we reverse it.

[00:20:21] Speaker 03:
Yes, Your Honor.

[00:20:23] Speaker 03:
Plaintiffs would suggest that state vicious collier is applicable.

[00:20:28] Speaker 00:
Will you spell that for me?

[00:20:30] Speaker 03:
I apologize if I mispronounce it.

[00:20:34] Speaker 03:
It's C-O-L-L-I-E-R.

[00:20:38] Speaker 03:
Okay.

[00:20:39] Speaker 03:
And that case discusses a number of doctrines that are applicable here, which is the mandate rule.

[00:20:45] Speaker 03:
and how the trial court is free to decide all the issues that are not foreclosed by the mandate.

[00:20:53] Speaker 03:
And when you have a general mandate under Kansas law, the parties reverse back again to the last hour of pleading and the trial court, so the state court in this case would have been able to consider again the KCPA claims if

[00:21:09] Speaker 03:
at issue again in the State Court.

[00:21:11] Speaker 03:
Thanks.

[00:21:12] Speaker 01:
So then... Did Safety Collier by any chance involve the claim that had been abandoned on the first appeal and then they tried to raise it on the second appeal afterwards?

[00:21:22] Speaker 03:
No, Your Honor.

[00:21:24] Speaker 03:
plaintiff suggests that he hasn't been able to find any Kansas specific law on this issue, on these unique circumstances.

[00:21:32] Speaker 03:
The only case within this district that plaintiff has been able to find on this issue is the Hagee case, in which there was a similar circumstance where there was a state court case.

[00:21:44] Speaker 03:
It was tried, certain theories of liability were withdrawn and not submitted to the jury.

[00:21:51] Speaker 03:
That trial was vacated or ruled on appeal.

[00:21:55] Speaker 03:
And then the party was jointly dismissed.

[00:21:58] Speaker 03:
And under the Oklahoma Saving Statute, the plaintiff, in that case, refiled in the federal court.

[00:22:03] Speaker 03:
Then a similar motion to dismiss was filed, where the defendant argued that the theories of liability that were not subject to the jury

[00:22:13] Speaker 03:
were precluded.

[00:22:14] Speaker 03:
He couldn't assert those or pursue those in the new federal court case.

[00:22:19] Speaker 01:
I want to keep it within one state to start with, and then we can decide how that affects the federal case.

[00:22:26] Speaker 01:
But are you familiar with State v. Perry, a 2017 Kansas Supreme Court case?

[00:22:31] Speaker 01:
Here's a quote from that.

[00:22:34] Speaker 01:
Our case law notes, law of the case, applies not only to matters actually decided in the prior proceedings, but also to matters for which the party failed to seek review in a prior proceeding.

[00:22:47] Speaker 01:
That sure seems to say that in this case, the KCPA claim would be barred by law of the case after the appeal.

[00:23:03] Speaker 03:
I would point the court to the state versus Collier opinion for two reasons.

[00:23:06] Speaker 03:
First, state versus Collier says that the law of the case is only sparingly applied in Kansas.

[00:23:12] Speaker 03:
And second, it's discretionary and that the trial court is allowed

[00:23:17] Speaker 03:
deviate from the law of the case.

[00:23:18] Speaker 03:
So even if we are... For reasons.

[00:23:21] Speaker 01:
For reasons.

[00:23:21] Speaker 01:
For reasons, correct.

[00:23:22] Speaker 01:
Yeah.

[00:23:24] Speaker 01:
And that's why I asked at the outset whether the judge here said that he recognized his law of the case, but he thought under an exception he would allow the claim to be brought.

[00:23:35] Speaker 01:
And apparently the judge just rejected the application of law of the case.

[00:23:39] Speaker 03:
That's my understanding of Chief Judge Melgram's opinion, Your Honor, is that he rejected it for multiple grounds.

[00:23:45] Speaker 03:
And one of one, which was discussing the discretionary nature of the law in the case under Kansas law, cited the Collier opinion, and that he had the discretion to deviate that for a number of reasons.

[00:24:00] Speaker 00:
Help me out with a little bit of history on your case.

[00:24:03] Speaker 00:
So go back to when you

[00:24:07] Speaker 00:
First filed all your claims and at that point you have a KCPA claim pled.

[00:24:14] Speaker 00:
How did you abandon it?

[00:24:16] Speaker 00:
How did it come that you didn't proceed on that claim?

[00:24:20] Speaker 03:
So candidly, your honor, in 2018, I was still in law school and actually, because I'm a Callister, I was...

[00:24:29] Speaker 03:
So I'm not in the best position to say exactly why, but it is my understanding there was a number of different issues based on how the trial went, how the evidence came in, which ultimately led to trial counsel not submitting those issues.

[00:24:46] Speaker 00:
Okay, so after the evidence went on, trial counsel chose to not ask for an instruction on the KCPA issues.

[00:24:57] Speaker 03:
That's my understanding.

[00:24:58] Speaker 03:
Okay.

[00:25:00] Speaker 00:
All right.

[00:25:03] Speaker 00:
I was just trying to figure out what happened.

[00:25:07] Speaker 00:
Okay.

[00:25:08] Speaker 03:
All right.

[00:25:08] Speaker 03:
And to that point, again, a retrial is not a replay.

[00:25:13] Speaker 03:
Neither party had to go and do the exact same thing.

[00:25:16] Speaker 03:
Like in a football game, you get a penalty and it's first down again, you don't have to run the exact same play.

[00:25:22] Speaker 03:
And we didn't have to do that.

[00:25:24] Speaker 03:
The parties didn't have to present the same evidence.

[00:25:26] Speaker 03:
And that's not what happened.

[00:25:27] Speaker 00:
Right.

[00:25:28] Speaker 00:
But what I'm concerned about is that Judge Hartz was asking you questions earlier about, well, you know, this case went up on appeal.

[00:25:36] Speaker 00:
And if you didn't bring it up on appeal and it's remanded, you don't get a second bite at the apple when it goes back down to Kansas State Court.

[00:25:45] Speaker 00:
And this, your position seems to me like it could result

[00:25:52] Speaker 00:
in sort of abusive tactics.

[00:25:54] Speaker 00:
I get through to the jury.

[00:25:56] Speaker 00:
I have a number of claims.

[00:25:58] Speaker 00:
I make a strategic decision not to go forward on the KCPA claim.

[00:26:02] Speaker 00:
And then there's an appeal.

[00:26:06] Speaker 00:
Well, my KCPA was never, of course, I'm not going to appeal that because I didn't go forward on it.

[00:26:15] Speaker 00:
And then, but you can later come back under your position and say, well,

[00:26:20] Speaker 00:
Look, the case got reversed and everything else is back on the table, even though I made a conscious decision not to put this one at issue and let, I mean, who knows?

[00:26:31] Speaker 00:
I mean, what, what the appellate court would have done if you would have asked for an instruction lost and then gone up on appeal.

[00:26:38] Speaker 03:
Correct.

[00:26:39] Speaker 03:
And I think this is a unique situation.

[00:26:41] Speaker 03:
And again, I think that may implicate the savings statute.

[00:26:44] Speaker 03:
And why that's important here is that this is a saved action.

[00:26:49] Speaker 03:
the state court case city cycle agreed to jointly dismiss without prejudice the state court case and under binding Kansas law under the Seaborn case, the saving statute is liberally construed to allow a party

[00:27:03] Speaker 03:
assert theories of liability, all theories of liability that arise out of the common transactional approach of the facts and circumstances.

[00:27:13] Speaker 02:
So is it your position that City Cycle could have protected itself by saying to the court, looks like they've abandoned that claim, would you please dismiss it?

[00:27:23] Speaker 02:
And that's the only way it could protect itself?

[00:27:26] Speaker 03:
Not necessarily, Your Honor.

[00:27:28] Speaker 03:
And further, I

[00:27:30] Speaker 03:
plaintiff would suggest that again, the overruling and vacating of the entire trial court proceedings would wipe away any type of decision there.

[00:27:42] Speaker 02:
Would that have done it?

[00:27:43] Speaker 02:
If the district court had said, I noticed that you haven't brought anything to me about your KCPA.

[00:27:49] Speaker 02:
I guess that's out the door.

[00:27:50] Speaker 02:
I'm going to dismiss it unless I hear an objection.

[00:27:53] Speaker 02:
No objection dismissed.

[00:27:55] Speaker 02:
Are we still here?

[00:27:57] Speaker 03:
Yes, Your Honor, because that wouldn't constitute a final decision on the merits.

[00:28:02] Speaker 03:
And I think that one of the things it's telling about City Cycle's arguments is it talks about a final decision in the Kansas law.

[00:28:09] Speaker 00:
Well, it was because you had to have a final judgment to get an appeal, didn't you?

[00:28:13] Speaker 03:
Yes, Your Honor.

[00:28:13] Speaker 00:
And so the district court in Judge Phillips' hypothetical says, oh, we're going to dismiss that one and you don't appeal the Kansas

[00:28:22] Speaker 00:
Court of Appeals rules on your case, reverses and remands, but your issue was final and fully decided because you chose not to appeal the KCPA.

[00:28:32] Speaker 03:
Your Honor, I think that the hypothetical is materially distinguishable because that wasn't raised and it wasn't addressed by that court.

[00:28:40] Speaker 03:
Here again, we have no decision and no court in the state court case considered the merits of Harris's KCPA claims.

[00:28:48] Speaker 03:
In that circumstance, there may be different

[00:28:51] Speaker 03:
We may have appealed differently in the state court case.

[00:28:54] Speaker 03:
Again, I'm not in the best position to hold time to that.

[00:28:59] Speaker 03:
And I see that my time is running short, and I'd like to briefly address the causation issue.

[00:29:07] Speaker 03:
And I'd like to address that CitiCycle, they cite to rely on the Mays case in Kansas law to say that a plaintiff is required to

[00:29:19] Speaker 03:
evidence that negates all other possible causes.

[00:29:23] Speaker 03:
And plaintiffs suggest that that's inapposite and applicable here because the specific issue in the Mays case was a strict products liability case where a plaintiff asserted a nonspecific defect where there was this pipe that exploded and no one could say, well, this is what was wrong with the pipe.

[00:29:41] Speaker 03:
Here, we had an expert who testified specifically that the pinched wire caused the ABS issues.

[00:29:48] Speaker 03:
And then, as Judge Hart pointed out, Plank's position is that, in Kraken's opinion, that specifically that pinched wire was present during the service event was excluded.

[00:30:02] Speaker 03:
circumstantial evidence.

[00:30:05] Speaker 03:
Most importantly, City Cycle's documentation, their repair orders saying that the ABS light was on during the service event, and also Dean Meis's testimony that he knew that the undiagnosed ABS issue was a dangerous condition.

[00:30:21] Speaker 02:
Do you have a site for Wheeler?

[00:30:22] Speaker 02:
I don't see that cited in the brief.

[00:30:30] Speaker 03:
And it is 935

[00:30:32] Speaker 03:
Federal Reporter, second edition at 1096.

[00:30:36] Speaker 03:
Thank you.

[00:30:37] Speaker 01:
Thank you, Your Honors.

[00:30:41] Speaker 01:
Well, I had a question that I asked the opposing counsel.

[00:30:44] Speaker 01:
When the judge wouldn't allow your expert to testify that the defect was present when their client serviced the motorcycle,

[00:30:59] Speaker 01:
The judge said, but you can't ask these questions.

[00:31:03] Speaker 01:
Were those questions asked?

[00:31:05] Speaker 03:
I believe so, Your Honor, insofar as was the pinched wire what caused the accident, which is yes, and then could the accident have caused the pinched wire?

[00:31:17] Speaker 01:
Yeah, that's clear.

[00:31:19] Speaker 01:
But he was suggesting some other questions, and I'm not sure we have the entire transcript of the expert's testimony in the record.

[00:31:27] Speaker 01:
Do we have all the transcripts?

[00:31:29] Speaker 01:
I believe so.

[00:31:31] Speaker 03:
I printed it out.

[00:31:32] Speaker 03:
I can look into it if you want me to.

[00:31:36] Speaker 03:
But we believe that all of those questions were answered that Judge Melgram specifically allowed us to.

[00:31:42] Speaker 03:
And further, Judge Melgram allowed juror questions.

[00:31:46] Speaker 03:
And one of the jurors even asked if the pinch war could have occurred during manufacture.

[00:31:53] Speaker 03:
Plaintiff's expert, McCracken, testified that it likely could have resulted from the manufacturer, which would be further circumstantial evidence.

[00:32:03] Speaker 03:
Thank you.

[00:32:03] Speaker 03:
Thank you, Your Honor.

[00:32:07] Speaker 04:
So to be clear, Harris's position is that he should be better off because he stayed silent on his case, EKA claims on appeal, and had he raised them on appeal.

[00:32:18] Speaker 04:
Because had he raised them on appeal, there is no question that the Kansas Court of Appeals

[00:32:23] Speaker 04:
would have said, no, we're not reversing and remanding on claims you abandoned, because Kansas Appellate Courts simply do not entertain abandoned claims on appeal.

[00:32:32] Speaker 04:
So it would have said, yes, we're reversing and remanding on your negligence claim due to their default obstruction, but your abandoned KCPA claims are going to remain just that, abandoned and not remanded.

[00:32:45] Speaker 04:
And so Harris could not be put in a better position just because he chose to stay silent on raising those claims on appeal.

[00:32:52] Speaker 04:
There are no further questions.

[00:32:53] Speaker 04:
That's all I have.

[00:32:54] Speaker 04:
Thank you.

[00:32:54] Speaker 04:
Thanks.

[00:32:56] Speaker 02:
What was the 25% about?

[00:32:58] Speaker 04:
Oh, OK.

[00:32:59] Speaker 04:
So on the 25%, the jury apportioned 25% fault to Harris on his negligence claim.

[00:33:06] Speaker 04:
It did not apportion any fault because it wasn't allowed to apportion fault on the KCPA claims.

[00:33:10] Speaker 02:
But what was the argument?

[00:33:11] Speaker 02:
Why 25%?

[00:33:12] Speaker 04:
As to his fault, I believe it had to do with Harris not seeking a second opinion or taking the motorcycle back to city cycle.

[00:33:21] Speaker 01:
OK, thanks.

[00:33:22] Speaker 01:
Thank you.

[00:33:24] Speaker 01:
Council, case is submitted.

[00:33:26] Speaker 01:
Council are excused.