Harris v. City Cycle Sales

112 F.4th 1272

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 20, 2024
• Docket: 23-3116
• Status: Published

Opinion

Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 20, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

JEREMY LEON HARRIS,

Plaintiff - Appellee,

v. No. 23-3116

CITY CYCLE SALES, INC.,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:21-CV-02264-EFM) _________________________________

Sarah Lynn Baltzell, Zach Chaffee-McClure, and Taylor B. Markway, Shook, Hardy & Bacon LLP, Kansas City, Missouri, and Cynthia J. Sheppeard, Goodell, Stratton, Edmonds & Palmer, LLP, Topeka, Kansas, for Defendant-Appellant.

Jeffrey D. Rowe of Dickerson Oxton, LLC, Kansas City, Missouri, and Daniel A. Kopp, Rouse Frets White Goss Gentile Rhodes, P.C., for Plaintiff-Appellee. _________________________________

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges. _________________________________

HARTZ, Circuit Judge. _________________________________

This appeal raises interesting questions regarding the law-of-the-case doctrine.

Jeremy Harris originally filed suit against City Cycle Sales, Inc. (CCS) in Kansas

state court on claims related to its failure to repair the Anti-Lock Brake System (ABS) Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 2

on his motorcycle, which he was riding when he was seriously injured after the ABS

malfunctioned. The complaint alleged negligence and a violation of the Kansas

Consumer Protection Act (KCPA), K.S.A. §§ 50-623 et. seq. But Harris abandoned

the KCPA claim before the case was submitted to the jury, and the trial court’s

judgment, which adjudicated all his claims in a final decision, disposed of the KCPA

claim with prejudice. Harris never invoked that statute on his successful appeal of an

adverse judgment on the negligence claim, so the KCPA portion of the trial-court

judgment was preserved. On remand to the state trial court after appeal, Harris and

CCS stipulated to dismissal of the case without prejudice. Harris then sued CCS in

federal district court, presenting claims of negligence and violation of the KCPA. He

was awarded judgment on both causes of action.

We reverse the judgment on the KCPA claim. Harris was barred from raising

the statutory claim in federal court after his abandonment of the claim in the state

trial and appellate courts. Abandonment in the trial court resulted in that court’s final

decision against him on the claim; and his failure to challenge that decision on appeal

barred him, under Kansas law-of-the-case doctrine, from trying to renew the claim

after remand by the state appellate court. The without-prejudice dismissal of his

state-law claims in state court could not resurrect the KCPA claim. And the federal

district court was required to give full faith and credit to the Kansas proceedings,

including the effect of those proceedings on his KCPA claim under Kansas law-of-

the-case doctrine, when Harris refiled his claims in federal court.

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We also consider CCS’s challenge to the federal-court judgment against it on

the negligence claim. It contends that Harris failed to present sufficient evidence that

his injuries were caused by the negligence of CCS. We reject the contention and

affirm the negligence judgment.

I. BACKGROUND

A. Factual Background

We summarize the evidence in the light most favorable to the verdict. See

Rock v. McCoy, 763 F.2d 394, 396 (10th Cir. 1985). On February 17, 2014, Harris

purchased a new 2014 Harley-Davidson VRSCDX “V-Rod” motorcycle. The

motorcycle was equipped with an ABS, included as standard equipment on 2014

Harley-Davidson V-Rod motorcycles. An inexperienced motorcyclist, Harris

practiced driving the vehicle in a parking lot near his home, as he did not yet feel

comfortable driving on a public road. During this first practice session Harris noticed

that although the brakes worked when applied, the ABS light was constantly blinking

and continued doing so for the rest of the session. Harris thought he had read in the

V-Rod manual that a blinking light indicated that the ABS was not working, but after

the ABS activated during the session, he assumed that he had misread the manual and

he did not reread it.

Soon thereafter, Harris drove the motorcycle to Texas to register it, a 1,000-

mile round trip. The ABS light blinked constantly as Harris drove to Texas and

during most of the return trip. But during the last 125 miles of the return trip, the

ABS light’s behavior changed: “It would sometimes blink; it would sometimes come

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on solid; and then sometimes it would be off. And this tempo seemed to happen

based on road conditions or basically, like, if you hit a bump or something, it would

change between those three modes of operation.” Aplt. App., Vol. VII at 42. He

concluded that the ABS was malfunctioning.

Concerned about the ABS, Harris took the motorcycle to CCS’s service

department on April 14 for scheduled 1,000-mile maintenance and service. He

reported to Dean Mizes, a CCS service manager and technician, the strange behavior

of the ABS light during his driving in the parking lot and on his round trip to Texas.

He was not asked any follow-up questions.

The next day, CCS called Harris and told him, “Your bike is finished. We’ve

done your thousand-mile service, and it’s ready to be picked up.” Id. at 45. When

Harris arrived at the business, a technician explained the services rendered without

commenting on the ABS issues and gave him the motorcycle’s keys. Harris then

inquired about the ABS issues and was told, “We checked it, we couldn’t find any

diagnostic trouble codes. We don’t know why the light’s coming on and off, but

there’s nothing wrong with the system. It’s safe to ride.” Id. at 47. The repair order

handed Harris did say “ABS light was on,” id. at 50, but did not indicate that CCS

had performed a road test or otherwise assessed how the motorcycle actually

performed.

Mizes testified at trial about how he checked out the ABS on Harris’s

motorcycle: First, he checked for diagnostic trouble codes and found none. Then he

test rode the vehicle, but he saw no ABS light, and the ABS system worked.

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Although the 2014 V-Rod Electrical Diagnostic Manual directs the technician to then

check for intermittent problems by performing a “wiggle” test, Mizes testified that he

did not open a manual while working on the motorcycle and did not perform that test,

nor did he contact Harley-Davidson technical support for assistance. After CCS’s

servicing, the ABS light continued to flash sporadically.

On May 20 Harris was driving the motorcycle between 20 and 25 miles per

hour on his military base (he was a sergeant first-class) while wearing protective

safety gear. As he neared an intersection, the stoplight turned yellow, and he began

applying the brakes. The motorcycle started slowing down, but then the ABS light

turned on, this time fully solid and not flashing. When he heard a tire screech, he

released the front brake and kept the back brake on, but the motorcycle came down,

pinned his left leg to the ground, and skidded along the pavement. As a result of the

accident, Harris suffered severe injuries to his left knee, ankle, and foot and was

medically discharged from the Army.

After the accident Harris took his motorcycle to Historic Harley-Davidson for

repairs. Zachary Reeves, an employee at Historic, testified about the services

rendered: He assessed the damage to the motorcycle, taking note of all damaged

parts. After the damages were repaired, a test rider rode the motorcycle and noted

that the ABS warning light came on, as Harris had said it would. Reeves then found

some diagnostic trouble codes, and, after consulting the electrical diagnostic manual

for the V-Rod and conferring with Harley-Davidson technical support, determined

that a new ABS module was required to solve the problem and ordered one. After

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installing the new ABS module, Reeves test rode the motorcycle and checked for and

found more diagnostic trouble codes. Despite replacement of the ABS module, the

ABS light was still on. Technical support recommended he check for a damaged wire

in the wiring harness, where Reeves found a pinched wire. After the wiring harness

was replaced, no problems were detected in a later test ride or in a check for

diagnostic trouble codes. Only after the pinched wire was repaired did the ABS light

go off. Once Historic repaired the wire, there were no further issues with the ABS or

ABS light, and the motorcycle functioned properly. Reeves testified that intermittent

electrical problems are the most concerning type of safety issue that repair shops deal

with.

Wayne McCracken, an accident reconstructionist testifying at trial as an expert

witness for Harris, said that ABS on motorcycles is a very important safety feature

intended to prevent wheel lockup, keep the motorcycle upright, and prevent crashes.

After investigating the physical evidence—which included tire marks, damage to the

vehicle, and skid marks and gouge marks on the roadway—he concluded that the

motorcycle’s rear wheel locked up, causing Harris to lose control and crash.

McCracken further testified that the rear wheel locked up because a pinched wire

caused the ABS to malfunction. Also, based on a review of Harris’s testimony and

the repair orders from CCS and Historic, McCracken concluded that the same

intermittent electrical problem with the ABS existed from the time Harris purchased

the motorcycle until the crash. He said that the pinched wire caused both intermittent

problems with the ABS light and the crash.

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B. Procedural History

Harris filed suit against CCS on May 19, 2016, in Kansas state district court,

bringing claims for negligence and violations of the KCPA arising from CCS’s

service of his motorcycle as well as representations to him regarding that service. The

KCPA claims were pleaded in both Harris’s initial and amended complaints, and

were included in his submission to the trial court in preparation for the pretrial

conference. But the KCPA claims were not mentioned in Harris’s proposed jury

instructions, the jury instructions given by the court, or the verdict forms. According

to Harris’s brief on appeal, he “ultimately made a strategic decision not to submit his

KCPA claims to the state court jury following the close of all evidence.” Aplee. Br.

at 11–12. The jury returned a verdict for CCS. Harris did not request that the

dismissal of the abandoned KCPA claims be without prejudice, and the state trial

court entered judgment against him on all claims. Harris filed a motion for new

trial—again not mentioning the KCPA claims—which the state trial court denied. He

appealed the judgment and the rulings against him. His docketing statement did not

mention the KCPA claims and stated that the judgment was a “final disposition as to

all claims by all parties.” Aplt. App., Vol. I at 185. Harris did not brief the KCPA

claims to the appellate court. In January 2020 the Kansas Court of Appeals reversed

the judgment and remanded with directions for a new trial because of an incorrect

instruction on comparative fault. See Harris v. City Cycle Sales, Inc., 455 P.3d 825,

at *10 (Kan. Ct. App. 2020) (unpublished). The court’s mandate, as would be

expected, did not mention the KCPA claims. On remand from the appellate court the

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parties filed a Joint Stipulation of Dismissal Without Prejudice of the district-court

case, which also did not reference Harris’s KCPA claims.

In June 2021, Harris again brought suit against CCS, this time invoking

diversity jurisdiction and filing in the United States District Court for the District of

Kansas, asserting both negligence and KCPA claims. Among the defenses raised in

CCS’s answer were law of the case, res judicata, collateral estoppel, and waiver. It

filed a motion to dismiss Harris’s KCPA claims for failure to state a claim under Fed.

R. Civ. P. 12(b)(6), arguing, among other things, that Harris had abandoned and

waived his KCPA claims and that they were barred by claim and issue preclusion.

Harris responded by arguing that because no merits decision had been made on the

KCPA claims, there was no holding with preclusive effect, that the KCPA claims

were not barred by the law-of-the-case doctrine (including Kansas law regarding

compliance within an appellate-court mandate), and that his “ultimate decision not to

submit a KCPA liability theory to the jury in the first trial does not constitute

abandonment for this action as this action stands prior to Harris’s strategic decision.”

Aplt. App., Vol. I at 228.

The district court denied CCS’s motion. It said that although Harris had

abandoned the KCPA claims in the state trial court and had failed to preserve the

issue in the state appellate court, this was not determinative of whether his KCPA

claims must be dismissed because the law-of-the-case doctrine and the mandate rule

governed. The court ruled that “Plaintiff’s abandonment of his KCPA claims, which

were never considered or ruled on by the district court or the jury, could not have

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become the ‘law of the case’ in a manner that would compel this Court to find them

precluded in this action,” Harris v. City Cycle Sales, Inc., No. 2:21-2264-EFM, 2022

WL 1102648, at *5 (D. Kan. Apr. 13, 2022), and that even if it had become law of

the case, the court was free to depart from it. Moreover, it said, because this was a

successive suit in a different tribunal, and not the same case, the law-of-the-case

doctrine did not apply anyway.

Turning to CCS’s preclusion argument, the court reasoned that there was no

final judgment on the merits of the KCPA claims, and that even if there were, it had

no preclusive effect after the reversal and remand from the Kansas Court of Appeals.

The court denied CCS’s motion to dismiss.

At trial the jury returned a verdict in favor of Harris. The jury calculated his

damages as $4,481,200. On the negligence claim it found CCS 75% at fault and

Harris 25% at fault, which would ordinarily result in a judgment of $3,360,900. On

the KCPA claims the jury found liability under two of Harris’s four theories,

resulting in a judgment of $4,481,200, the parties apparently agreeing that there is no

reduction for comparative fault under the statute. After the district court entered

judgment, CCS filed a motion for judgment as a matter of law or a new trial, which

was denied.

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II. DISCUSSION

A. KCPA Claims/Law of the Case

CCS contends that the district court erred by not dismissing Harris’s KCPA

claims under the law-of-the-case doctrine.1 “We review de novo whether the law of

the case doctrine applies.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc.,

861 F.3d 1081, 1100 (10th Cir. 2017).

The law-of-the-case doctrine is one of several doctrines (which may overlap

and have somewhat different scopes in different jurisdictions) that limit a litigant to

one bite at the apple. The underlying principle is that once an issue has been resolved

in a judicial proceeding, it ordinarily should not be reexamined by the court. “[T]he

doctrine posits that when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same case.” Pepper v.

United States, 562 U.S. 476, 506 (2011) (internal quotation marks omitted). The

resolution of the issue need not be explicit. “Th[e] principle applies to all issues

previously decided, either explicitly or by necessary implication.” Rocky Mountain

Wild v. Dallas, 98 F.4th 1263, 1288 (10th Cir. 2024) (internal quotation marks

omitted). The doctrine is “based on sound public policy that litigation should come to

an end and is designed to bring about a quick resolution of disputes by preventing

continued re-argument of issues already decided.” Gage v. Gen. Motors Corp.,

1 CCS also argues that Harris’s KCPA claims are barred by claim preclusion but since we decide that they are barred by the law of the case there is no need to address this argument. Page 10 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 11

796 F.2d 345, 349 (10th Cir.1986) (citation omitted); see Omni Outdoor Advert., Inc.

v. Columbia Outdoor Advert., Inc., 974 F.2d 502, 505 (4th Cir.1992) (The rule

“furthers the judicial system’s interests in avoiding piecemeal litigation.”); Zdanok v.

Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 953 (2d Cir. 1964)

(“[W]here litigants have once battled for the court’s decision, they should neither be

required, nor without good reason permitted, to battle for it again.”). Absent the

doctrine, “an adverse [resolution of an issue] would become little more than an

invitation to take a mulligan, encouraging lawyers and litigants alike to believe that if

at first you don’t succeed, just try again.” Entek GRB, LLC v. Stull Ranches, LLC,

840 F.3d 1239, 1240 (10th Cir. 2016) (Gorsuch, J.).

The law-of-the-case doctrine “operates on a horizon[t]al plane—constricting a

later panel vis-à-vis an earlier panel of the same court,” as well as “on a vertical

plane—constricting a lower court vis-à-vis a higher court.” In re Deepwater Horizon,

928 F.3d 394, 398 (5th Cir. 2019). The most common application of the vertical

variant is the mandate rule, which “provides that a district court must comply strictly

with the mandate rendered by the reviewing court.” Ute Indian Tribe v. Utah,

114 F.3d 1513, 1520–21 (10th Cir. 1997) (internal quotation marks omitted). It can

also apply, however, when the reviewing court does not even consider an issue

because it has been waived, either on appeal or in the lower court. As stated in The

Law of Judicial Precedent, although ordinarily the law of the case applies only when

“the court issue[s] a dispositive ruling on the point at hand,” an exception to that

requirement is that “a waived or forfeited issue—a decision by inaction—may

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become the law of the case.” Bryan A. Garner et al., The Law of Judicial Precedent

452 (2016) (The Law of Judicial Precedent); see Med. Ctr. Pharmacy v. Holder,

634 F.3d 830, 834 (5th Cir. 2011) (stating that the law-of-the-case requirement that

an issue be expressly or implicitly decided on appeal “is qualified by the waiver

doctrine, which holds that an issue that could have been but was not raised on appeal

is forfeited and may not be revisited by the district court on remand”); United States

v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (“[T]he rule forecloses litigation of issues

decided by the district court but forgone on appeal or otherwise waived, for example

because they were not raised in the district court.”); Omni, 974 F.2d at 505 (“It is

elementary that where an argument could have been raised on an initial appeal, it is

inappropriate to consider that argument on a second appeal following remand.”

(internal quotation marks omitted)). “The doctrine underscores the fundamental

principle that litigants who choose their trial strategy, litigate accordingly, and lose,

are not entitled to resurrect a previously abandoned issue.” Sales v. State Farm Fire

and Cas. Co., 902 F.2d 933, 936 (11th Cir. 1990); see Sullivan v. Flora, Inc.,

63 F.4th 1130, 1138 (7th Cir. 2023) (A party “cannot use the accident of remand as

an opportunity to reopen waived issues.” (internal quotation marks omitted));

Macheca Transp. Co. v. Phila. Indem. Ins. Co., 737 F.3d 1188, 1195–96 (8th Cir.

2013) (“A party who successfully obtains a remand following an initial appeal has

already gotten a second bite at the apple. We should not permit such parties to hold in

reserve an argument regarding a particular issue . . . .”); United States v. Eisom,

585 F.3d 552, 556 (1st Cir. 2009) (“Typically, a waived claim is dead and buried; it

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cannot thereafter be resurrected on appeal.”); Fogel v. Chestnutt, 668 F.2d 100, 109

(2d Cir. 1981) (“It would be absurd that a party who has chosen not to argue a point

on a first appeal should stand better as regards the law of the case than one who had

argued and lost.”); see also McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031,

1035 (10th Cir. 2000) (“The promotion of judicial economy—a primary concern

underlying the law of the case doctrine—requires that litigants be encouraged to

present all available claims and defenses at the earliest opportunity.”).

To be sure, the law-of-the-case doctrine recognizes exceptions to preclusion.

In the context of horizontal law of the case, a court has inherent authority to

reconsider its rulings until judgment has been entered. Fed. R. Civ. P. 54(b) states

that in general “any order or other decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all the parties does

not end the action as to any of the claims or parties and may be revised at any time

before the entry of a judgment adjudicating all the claims and all the parties’ rights

and liabilities.” See Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001)

(“Although courts are often eager to avoid reconsideration of questions once decided

in the same proceeding, it is clear that all federal courts retain power to reconsider if

they wish.” (internal quotation marks omitted)). In contrast, vertical law of the case is

quite restrictive because, among other things, lower courts have a duty to obey the

directions of higher courts. See Mason v. Texaco, Inc., 948 F.2d 1546, 1553

(10th Cir. 1991) (“Among the law of the case rules is the obligation of every court to

honor the rulings of a court that stands higher in the hierarchical judicial structure.”).

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The district court in this case overlooked this duty when it said: “[A] court

may depart from the law of the case in certain circumstances, including when

evidence in a subsequent trial is substantially different. This plainly means that the

district court would not necessarily have been constrained on remand by any prior

implicit holding as to [Harris’s] KCPA claims.” Harris, 2022 WL 1102648, at *5.

The predicate of this mandatory rule is that the higher court must authorize

(explicitly or implicitly) the trial court to reopen the issue on which additional

evidence is presented. For example, in Mason, 948 F.2d at 1552, we had held in a

previous appeal that the district court had given improper instructions on the duties

imposed on Texaco and “remanded for a new trial on all ‘fact bound’ issues without

limitation,” which included liability and damages. In the appeal following remand,

we therefore held that the law-of-the-case doctrine was not violated by the imposition

of punitive damages against Texaco at the retrial, even though the first jury awarded

no punitive damages. See id. at 1553. The appellate court had clearly instructed that

issues such as punitive damages could be reconsidered on retrial.

But the reasoning in Mason does not give the district court free rein to reopen

issues resolved on the first appeal. In its discussion of law of the case, The Law of

Judicial Precedent discusses with approval the decision in United States v. Rivera-

Martinez, 931 F.2d 148 (1st Cir. 1991). The treatise states:

The appellate court held that the new-evidence exception to the law-of- the-case doctrine “does not apply when a trial court gratuitously jettisons the rule in order to address an issue explicitly decided, and foreclosed, in an earlier appeal in the same case.” The efficacy of the law-of-the-case doctrine would be undermined if the outcome were otherwise, the court

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reasoned. If a trial court could flout the law of the case instead of deferring to the appellate court’s resolution, the court said, “the doctrine would disappear into thin air. Federal jurisprudence wisely prohibits trial judges from orchestrating self-fulfilling prophecies of that sort.”

The Law of Judicial Precedent, at 482–83.

With this general background in law-of-the-case doctrine, we now turn to the

specifics of this case. We doubt that Kansas law is significantly different from

federal law in this regard; but it appears that Kansas law governs. The question

before us, after all, is the effect of the Kansas state-court proceedings (which ended

in a stipulated dismissal without prejudice) on this federal lawsuit. And generally a

federal court should give the state-court proceedings the same effect they would have

had in a subsequent proceeding in the state court. Under 28 U.S.C. § 1738, “The

records and judicial proceedings of any court of any . . . State . . . shall have the same

full faith and credit in every court within the United States . . . as they have by law or

usage in the courts of such State.” As the statute clearly provides, the claim- and

issue-preclusive effect of a state-court judgment is the same in federal court as in the

state court. See Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Congress has specifically

required all federal courts to give preclusive effect to state–court judgments

whenever the courts of the State from which the judgments emerged would do so.”).

We see no reason to refuse to apply that language to the situation before us. That the

state-court judgment was a dismissal without prejudice should not be dispositive.

Such a judgment can have issue-preclusive effects. See, e.g., Park Lake Res. LLC v.

USDA, 378 F.3d 1132, 1136–37 (10th Cir. 2004) (prior dismissal without prejudice

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because case was not ripe required dismissal of new suit over essentially same issue

when plaintiff failed to show that issue had ripened since prior judgment). And

applying the state-law bar furthers, and may even be required by, the Erie doctrine,

since otherwise a litigant would have an incentive to refile in federal, rather than

state, court after dismissal without prejudice. See Semtek Int’l Inc. v. Lockheed

Martin Corp., 531 U.S. 497, 508–09 (2001).2

Although not referencing § 1738, this court took that approach in Gage,

796 F.2d 345. The dispute between the parties had initially proceeded in state court.

See id. at 347. After the state court dismissed Gage’s first amended complaint for

failure to state a claim, he filed a second amended complaint adding an additional

state-law claim. See id.at 348. He then moved to have the second amended complaint

dismissed without prejudice so he could file a claim under the Federal Automobile

Dealer’s Day in Court Act. See id. The motion was granted, and Gage filed a

complaint in federal court that realleged his state-law claims and the “Day in Court”

claim. See id. The federal district court dismissed the state-law claims, stating that

“the decision of [the state judge] dismissing Plaintiff’s amended complaint in the

State litigation is the law of the case and must be followed in resolving the issues

presented by Defendants’ motion.” Id. at 349 (cleaned up). We affirmed on that

ground, saying, “The law of case rule applies, as here, when a federal district court

2 We would not go so far as to say that any ruling by the state court (say, a decision to admit evidence) is binding. Here we have the disposition of a cause of action. Page 16 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 17

reviews matters previously considered in state court involving the same parties.” Id.;

accord Eichman v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir. 1989); see also

Barrett v. Baylor, 457 F.2d 119, 124 (7th Cir. 1972) (“Although rulings of state nisi

prius courts are not binding upon federal courts in diversity cases as a matter of stare

decisis, they are binding in instances of res judicata or law of the case.”). We

therefore take a look at Kansas law.3

The situation presented here is a rare (perhaps even unique) one, and there is

no Kansas case on all fours with this case. It is therefore possible to distinguish this

case from each Kansas case on which we rely, and the dissent tries to do so. But each

step in our reasoning finds support in Kansas law and the principles underlying law

of the case. Our reasoning is as follows: (1) Harris’s KCPA claim was decided by the

3 The dissent quotes, see Dissent at 13, the following sentence from a respected treatise: “When a state action is dismissed without prejudice after a ruling on a substantive issue, a federal court hearing a new action arising from the same dispute may defer to the state ruling as the law of the case,31 but the very separateness of the actions—and the cleansing purpose of a dismissal without prejudice—has discouraged some courts from relying on law-of-the-case theory.” 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. (Wright & Miller) § 4478.4 at 753–54 (3d ed. 2019) (“Law of the Case—Coordinate Courts”). Perhaps there is a split of authority in the federal courts on the matter. But the authority for the first clause (the case cited in footnote 31) is this court’s decision in Gage, which is quoted for the proposition that “[t]he law of case rule applies, as here, when a federal district court reviews matters previously considered in state court involving the same parties.” 796 F.2d at 349. It is therefore clear which side of the dispute this circuit is on. Further, to the extent that application of law of the case in this circumstance depends on the specifics, the treatise states in the introductory paragraph to § 4478.4: “In some settings, indeed, there is at least a hint of special deference that arises from [1] comity, [2] the desire to deter strategic changes of court to reargue lost positions, and [3] the need to avoid protracted jurisdictional disputes.” Wright & Miller, § 4478.4 at 737. Factors 1 and 2 support application of the law of the case here. Page 17 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 18

state trial court. (2) For Harris to overcome that judgment against him on the KCPA

claim, he needed to appeal the judgment on the KCPA claim, but he abandoned that

claim on appeal. (3) Abandoning a claim on appeal makes rejection of the claim the

law of the case upon remand to the trial court. (4) When a trial court is bound by law

of the case, a plaintiff cannot escape that result by obtaining a dismissal without

prejudice of the case and refiling the identical claim before a different tribunal.

Dismissal without prejudice preserves only those claims that were still “alive” at the

time of the dismissal. We proceed to explain.

First, the KCPA claim was decided by the Kansas trial court in the first

instance. To be sure, as the dissent repeatedly emphasizes, that court did not

explicitly mention the statutory claim in its judgment. But the trial court issued a

final judgment. Under K.S.A. § 60-254(b) (in language identical to Fed. R. Civ.

P. 54(b)) that required, absent a special order not issued in this case, “adjudicating all

the claims and all the parties’ rights and liabilities.” An “order or other decision” that

does not adjudicate every claim in the operative complaint is not a final judgment. Id.

That is why, to establish jurisdiction in the state appellate court, Harris declared in

his docketing statement in that court that the trial court’s judgment was a “final

disposition as to all claims by all parties.” Aplt. App., Vol. I at 185. In particular, the

trial court’s judgment finally disposed of the KCPA claim. The judgment would not

have been final (and could not have been appealed) if it had not dismissed the KCPA

claim with prejudice. Because “a final judgment is always a final decision,” Walters

v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 346 n.17 (1985) (Brennan, J.,

Page 18 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 19

dissenting), we must say that the trial court “decided” Harris’s KCPA claim. If Harris

were holding in reserve that claim in his complaint—say, he sought an order

dismissing the claim without prejudice so he could raise it in a later proceeding—

there would have been no final judgment and he could not have appealed. Because

the KCPA claim was dismissed with prejudice by the final judgment, the resolution

of that claim was a decision entitled to the respect given by law of the case. Cf. Rocky

Mountain Wild, 98 F.4th at 1288 (10th Cir. 2024) (the law-of-the-case doctrine

“applies to all issues previously decided, either explicitly or by necessary

implication” (internal quotation marks omitted)).

Second, because the final judgment dismissed the KCPA claim with prejudice,

Harris would be barred from raising the claim in the future absent a successful appeal

of the dismissal (or a successful postjudgment motion). But, as previously set forth,

Harris abandoned the statutory claim on appeal; it was not mentioned by any party or

the court.

Third, because the KCPA claim was not revived on appeal, the dismissal of the

claim was vertical law of the case on remand to the trial court. As stated succinctly in

the recent decision in State v. Smith, 510 P.3d 696 (Kan. 2022): “The critical issue in

this case is whether a criminal defendant may file a second direct appeal to assert

claims that would have existed at the time the first appeal was filed, when such

claims were either not raised or abandoned in his first direct appeal. We hold he

cannot.” Id. at 697. (We note that although some of the leading Kansas cases on law

of the case are in the criminal context, the doctrine applies equally in civil cases. See

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State v. Parry, 390 P.3d 879, 883 (Kan. 2017) (“The doctrine has equal application in

criminal cases.”).) The court explained: “The law of the case doctrine not only

applies to matters decided in a prior stage of proceedings in the same case, but also to

matters for which the party failed to seek review in those prior stages.” Smith,

510 P.3d at 700; see also Edwards v. State, 73 P.3d 772, 776 (Kan. App. 2003) (“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, even if the issue was

not explicitly or implicitly decided on the first appeal.”).

It is worth noting here that the bar of the KCPA claim under vertical law of the

case applies even if one were to say that the implicit rejection of the claim in the trial

court’s original judgment should not be considered a “decision” for purposes of

horizontal law of the case. The vertical bar arises simply from the failure of Harris to

challenge on appeal the adverse judgment on the statutory claim. In L. Ruth Fawcett

Tr. v. Oil Producers Inc. of Kan., 507 P.3d 1124, 1130 (Kan. 2022), the plaintiff

class claimed that the defendant owed the class members additional royalties because

it had violated its duty to market the gas at its own expense. In the trial court the

class claimed only that the marketable-condition rule for royalties required operators

“to be solely responsible for the processing costs needed to transform the [processed]

gas into interstate pipeline quality.” Id. To narrow the issues, it stated that “it was not

placing any facts in dispute, e.g., it was not challenging the terms of the third-party

sales contracts, it was not challenging the overall price of the third-party contracts, it

was not challenging whether the leases allowed the gas to be sold at the wellhead,

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and it was not challenging that the gas actually was sold at the wellhead.” Id. Even

with these concessions, the class obtained summary judgment in the trial court and

the Kansas Court of Appeals affirmed; but the Kansas Supreme Court reversed and

remanded to the trial court. See id. at 1130–31. Back in the trial court, the class

moved to amend its petition to raise issues it had not previously put in dispute. See

id. at 1131. In particular, the class’s proposed amendment would allege facts to

support a claim that the defendant breached its duty of good faith and fair dealing,

contrary to its prior concession that the contracts were not made in bad faith. See id.

at 1132. The trial court denied the motion to amend and the intermediate appellate

court affirmed. The state Supreme Court affirmed under the law-of-the-case doctrine.

It said: “[T]he Class both in the district court and on appeal candidly acknowledged it

sought to reverse course and put its previous factual concessions into dispute. But the

law of the case doctrine precludes the Class from reversing course like this.” Id.

at 1140. It concluded: “To allow the Class now to put facts in dispute that it

previously deemed admitted would give the Class an impermissible second bite at the

apple. . . .” Id. Of course, neither the trial court nor either of the appellate courts had

actually resolved the factual dispute; they did not “decide” any facts or even a claim

based on those facts. They just acted on the basis of the concession by the plaintiff

class. Yet the law of the case barred the plaintiff class from alleging contrary facts to

raise a claim not presented to the Kansas Supreme Court on the first appeal. We have

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little doubt that the Kansas courts would have barred Harris from raising his KCPA

claim after remand to the state trial court.4

As for the fourth and final principle of Kansas law, the Kansas Supreme Court

in Parry established that a party cannot escape the mandate of vertical law of the case

by obtaining a dismissal without prejudice in the trial court after remand. In that case

the district court had ordered suppression of evidence seized in a warrantless search.

See Parry, 390 P.3d at 881. The State took an interlocutory appeal to the state court

of appeals, which affirmed the suppression order. See id. at 881. The State did not

pursue relief in the state supreme court but promptly dismissed the case without

prejudice and charged Parry with the same offenses in a new case. See id. After

another evidentiary hearing, the district court again suppressed the evidence and,

again, the State challenged the ruling through an interlocutory appeal. See id. The

appellate court held that the appeal was precluded by the law-of-the-case doctrine.

See id. The Kansas Supreme Court affirmed, saying that “the doctrine 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.” Id. at 884. (We assume

that the reference to the failure to seek review related to the failure to seek state

supreme court review on the initial appeal.) The court then held that the doctrine

4 The Kansas Supreme Court in L. Ruth Fawcett Trust did recognize an exception to the (vertical) law of the case that would not have precluded the plaintiff class from amending its petition if the original state supreme court decision had changed the relevant law, but it held that it had not changed the law. See 507 P.3d at 1134–37. Page 22 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 23

applied even though “technically, this case is not the same case as” the dismissed

case. Id. at 885 (internal quotation marks omitted). It pointed out that “the State

refiled identical criminal charges on the same facts against the same defendant after

losing the first interlocutory appeal just so it could repackage the same issue it had

already lost. It did so only as a means to revive a dead issue.” Id. “[T]o ignore this

reality,” it said, “would defeat the long standing purposes supporting the law of the

case doctrine.” Id.; cf. Grimmett v. S & W Auto Sales Co., Inc., 988 P.2d 755, 759

(Kan. App. 1999) (“We believe that preclusion doctrines should be applied when a

party voluntarily dismisses a case [without prejudice] after an adverse ruling has been

made on a summary judgment motion. Summary judgment procedure, at least from

the defendant’s point of view, would become a virtual nullity if plaintiffs could

obtain ‘overs’ by dismissing and refiling a case rather than fully litigating an adverse

summary judgment decision through the appellate process.”).

In light of this case law, we are confident that Harris would have been barred by

Kansas law-of-the-case doctrine if he had pursued his KCPA claims in Kansas state court

after the dismissal without prejudice of his original case. He unambiguously waived and

abandoned that claim at two steps in the proceedings. First, in the state trial court he

failed to request jury instructions on the claim, resulting in a final judgment disposing of

the claim with prejudice. Second, in the state appellate court he failed to request

reinstatement of the claim. (He has not suggested, much less argued, that there was any

chance that such a request would be granted.) As established by the law reviewed above,

waiver and abandonment of a claim is the law of the case despite the lack of any explicit

Page 23 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 24

court statement to that effect. See, e.g., Smith, 510 P.3d at 697; Eisom, 585 F.3d at 556

(“Typically, a waived claim is dead and buried.”). And Parry makes clear that this law of

the case applies to a newly filed case that duplicates one that was dismissed without

prejudice. Finally, comity, 28 U.S.C. § 1738, and the Erie doctrine together require the

federal courts to respect the Kansas law barring Harris from pursuing his KCPA claims.

He is not entitled to take a mulligan just because he has chosen a new club to hit the ball.

Because the KCPA claims were barred by law of the case, we reverse the

judgment with respect to those claims with instructions to dismiss them with prejudice on

remand.

B. Negligence Claim/Causation

CCS also challenges the judgment against it on Harris’s negligence claim,

contending that Harris failed to prove the causation element of the cause of action.

We are not persuaded.

This Court reviews de novo a district court’s denial of a motion for judgment

as a matter of law based on insufficient evidence of an element of the cause of action.

See Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 916 (10th Cir. 2005). Such a

denial should be reversed only “if there is no legally sufficient evidentiary basis for a

claim under the controlling law.” Id. “The question is not whether there is literally no

evidence supporting the nonmoving party but whether there is evidence upon which a

jury could properly find for that party.” Herrera v. Lufkin Indus., Inc., 474 F.3d 675,

685 (10th Cir. 2007) (internal quotation marks omitted). The bar is high for

overturning a jury verdict based on the insufficiency of the evidence. “We do not

Page 24 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 25

retry issues, second guess the jury’s decision-making, or assess the credibility of

witnesses and determine the weight to be given their testimony, as it is the province

of the jury, and not this court, to resolve conflicts in the evidence.” Stroup v. United

Airlines, Inc., 26 F.4th 1147, 1157 (10th Cir. 2022) (brackets and internal quotation

marks omitted).

Harris’s negligence claim required him to prove causation—that is, that CCS’s

actions or omissions caused his injuries. CCS does not challenge the sufficiency of

the evidence that the accident was caused by the pinched wire. But, as stated by the

district court, Harris still had the burden of proving “the pinched wire was present at

the time [CCS] serviced the motorcycle.” Aplt. App., Vol. VIII at 212–13. CCS

contends that Harris did not satisfy that burden. We disagree.

Harris brought his motorcycle to CCS specifically because the ABS on his

motorcycle was not functioning properly. CCS documented this in its repair order,

which said, “ABS light was on.” Aplt. App., Vol. VII at 50. To be sure, CCS

employee Mizes testified that the motorcycle showed no trouble codes and that the

ABS performed as intended during a test ride. But the jury may have disbelieved him

because there is no documentation of a test ride. And the test ride may not have been

definitive because the ABS light problems were only intermittent. McCracken, an

expert witness for Harris, opined that the pinched wire that caused the ABS to

malfunction when Harris had his accident also caused the ABS light to intermittently

and randomly come on as Harris described. And even after the ABS module was

replaced by Historic, the ABS light was still on; only after the pinched wire was

Page 25 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 26

repaired did the ABS light go off. Although we do not understand why the district

court did not permit McCracken to testify explicitly to his opinion that the wire was

pinched when Harris took his motorcycle to CCS, McCracken was permitted to

testify to opinions from which that opinion naturally followed. If the pinched wire

was the cause of both the intermittent ABS light and the failure of the ABS system

(as McCracken testified), and the intermittent light was a problem with the

motorcycle when it was taken to CCS, then the pinched wire must have been present

when CCS examined the vehicle. “[C]ausation may . . . be inferred by a jury if the

plaintiff has provided evidence that would make the inference reasonable.” Truck Ins.

Exch. v. Magnetek, Inc., 360 F.3d 1206, 1214–15 (10th Cir. 2004). We think that the

evidence admitted at trial was sufficient for a nonexpert to reasonably infer that

Harris established causation.

III. CONCLUSION

We AFFIRM the district court’s denial of judgment as a matter of law on the

causation issue and REVERSE the district court’s denial of judgment as a matter of

law on the KCPA issue.

Page 26 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 27

23-3116, Harris v. City Cycle Sales, Inc. PHILLIPS, J., concurring in part and dissenting in part.

For the reasons explained below, I do not join Parts II.A and III of the

majority’s opinion. 1

The law-of-the-case doctrine directs that when a court “decides” an issue,

“that decision should continue to govern the same issues in subsequent stages

in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983) (emphases

added). But here, no Kansas court has ever issued a “decision” on Harris’s

KCPA claim. See id. Nor is this federal case the “same case” as Harris’s state

case considering that the parties agreed to a voluntary dismissal of the state

case without prejudice pursuant to Kan. Stat. Ann. § 60-241(a)(1)(A), and

Harris then filed this new case in federal court. 2 Arizona, 460 U.S. at 618.

Given the lack of a decision in the same case, I do not think that the federal

district court erred by declining to invoke the law-of-the-case doctrine to

dismiss Harris’s KCPA claim. And because none of the authority that the

majority cites holds that federal district courts are required to apply the law-of-

the-case doctrine to issues that have been abandoned by a party (but never

1 I join the majority’s ruling that Harris proved the causation element of his negligence claim. See Maj. Op. at 24–26. 2 Kan. Stat. Ann. § 60-241(a)(1)(A) permits plaintiffs to voluntarily dismiss an action “without a court order . . . by filing: a stipulation of dismissal signed by all parties who have appeared.” “When the dismissal is by stipulation, the clerk of the court must enter an order of dismissal as a matter of course.” Id. Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 28

decided) in a separate case before a different tribunal, especially when that case

was dismissed without prejudice, I respectfully dissent from the majority’s law-

of-the-case ruling.

I. Decided in the Same Case

“As most commonly defined, the [law-of-the-case] doctrine posits that

when a court decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.” Arizona,

460 U.S. at 618 (emphases added); see also Entek GRB, LLC v. Stull Ranches,

LLC, 840 F.3d 1239, 1241 (10th Cir. 2016) (“The law-of-the-case doctrine . . .

preclud[es] the relitigation of issues . . . resolved in prior proceedings in the

same court.” (emphases added)); Kennedy v. Lubar, 273 F.3d 1293, 1298

(10th Cir. 2001) (“The law of the case doctrine posits that when a court decides

upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case” to “avoid reconsideration of matters once

decided during the course of a single continuing lawsuit.” (emphases added)

(cleaned up)). The majority seems to agree. See Maj. Op. at 10 (“[T]he doctrine

posits that when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same case.”

(emphases added) (quoting Pepper v. United States, 562 U.S. 476, 506 (2011)

(internal quotation marks omitted))).

Here (1) no court has decided upon a rule of law concerning Harris’s

KCPA claim and (2) Harris’s federal case is not the same case as Harris’s state-

2 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 29

court case that the parties agreed to dismiss without prejudice. So, in my view,

the law-of-the-case doctrine is inapplicable, and the federal district court did

not err by rejecting City Cycle’s motion to dismiss Harris’s KCPA claim.

A. There is no state-court “decision” on Harris’s KCPA claim that could become the law of the case in the district court.

“The doctrine of law of the case comes into play only with respect to

issues previously determined.” Quern v. Jordan, 440 U.S. 332, 347 n.18

(1979); see also Chung v. Lamb, 73 F.4th 824, 835 (10th Cir. 2023) (“Unless

and until a court addresses a point implicated by the dispute, whether raised by

the parties or not, there is no law of the case to apply.” (quoting Bryan A.

Garner et al., The Law of Judicial Precedent 448 (2016)); Kennedy, 273 F.3d

at 1299 (“[L]aw of the case principles apply only to decisions on the actual

merits.”); Wilmer v. Bd. of Cnty. Comm’rs, 69 F.3d 406, 409 (10th Cir. 1995)

(“Law of the case principles do not bar a district court from acting unless an

appellate decision has issued on the merits of the claim sought to be

precluded.” (quotation omitted)); Fortis Corp. Ins., SA v. Viken Ship Mgmt. AS,

597 F.3d 784, 792 (6th Cir. 2010) (O’Connor, J., sitting by designation) (“The

law of the case doctrine has no application where the issue in question was not

previously decided.” (quotation omitted)); 18B Charles A. Wright, Arthur R.

Miller, & Edward H. Cooper, Federal Practice and Procedure § 4478 (3d ed.

2024) (“[An] actual decision of an issue is required to establish the law of the

case.”); The Law of Judicial Precedent at 448 (“A ruling qualifies as the law of

3 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 30

the case only if it meets two conditions: there must be a decision on a particular

legal issue, and that decision must be final.”). But here, neither the Kansas trial

court nor the Kansas appellate court addressed Harris’s KCPA claim at all.

Thus, the first component of the law-of-the-case doctrine—a decision—is

missing.

The majority opinion reinforces that the law-of-the-case doctrine applies

only when an issue has been decided. Indeed, every case that the majority cites

concerning the law-of-the-case doctrine involved an issue that a court had

previously decided. See Zdanok v. Glidden Co., Durkee Famous Foods Div.,

327 F.2d 944, 953 (2d Cir. 1964) (ruling that the “court’s interpretation of the

contract” in a prior appeal of a “test case” governed the party against whom the

contract was invoked because that party was “given the opportunity to make its

argument on the construction of the contract and took full advantage of it”

(emphasis added)); Entek GRB, 840 F.3d at 1240–41 (declining to consider in a

“second appeal” the issues that the Tenth Circuit had “considered and resolved

in the first appeal” (emphasis added)); Gage v. Gen. Motors Corp., 796 F.2d

345, 347, 350 (10th Cir. 1986) (affirming the district court’s application of the

law-of-the-case doctrine to adopt the state court’s “final decision . . .

dismiss[ing]” the plaintiff’s claims in a prior state case based on the state

court’s finding that the plaintiff had “failed to state a claim for relief”

(emphasis added)); United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (“[T]he

[mandate] rule forecloses litigation of issues decided by the district court but

4 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 31

foregone on appeal or otherwise waived . . . .” (emphasis added)); State v.

Smith, 510 P.3d 696, 697, 699–700 (Kan. 2022) (declining to consider in the

defendant’s fourth appeal the defendant’s new arguments challenging the

constitutionality of his sentence given that the district court had denied the

defendant’s motion for a sentence modification and the defendant didn’t

challenge the constitutionality of his sentence in his initial appeal of that

denial-decision); State v. Parry, 390 P.3d 879, 883–85 (Kan. 2017) (applying

the law-of-the-case doctrine to a suppression issue that had been decided by the

trial court and affirmed on appeal). 3

Recognizing that the “decision” component of the law-of-the-case

doctrine is absent here, the majority attempts to equate an abandoned issue with

a decided issue. Specifically, the majority says that the law-of-the-case doctrine

“can also apply” “when the reviewing court does not even consider an issue

because it has been waived.” Maj. Op. at 11. No cite follows this statement, but

the next sentence quotes from The Law of Judicial Precedent, which states that

an exception to the requirement that a court has issued a “dispositive ruling on

3 The majority also cites Pepper, 562 U.S. at 505–08, in which the Supreme Court determined that after an appellate court had set aside the defendant’s entire sentence and remanded for de novo resentencing, the original sentencing court’s decision was no longer the “law of the case” and so the district court on remand was “not bound by the law of the case doctrine to apply the same [sentence variance] that had been applied at [the defendant’s] prior sentencing.” I strain to see how Pepper aids us in our resolution of this case given the lack of procedural similarities, and the majority does not explain how Pepper supports the result that it reaches. 5 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 32

the point at hand” is “that a waived or forfeited issue—a decision by inaction—

may become the law of the case.” Maj. Op. at 11 (emphasis added) (quoting

The Law of Judicial Precedent at 452). The cases that The Law of Judicial

Precedent cites in support of this statement are Medical Center Pharmacy v.

Holder, 634 F.3d 830, 834 (5th Cir. 2011), and Liccardi v. Stolt Terminals,

Inc., 687 N.E.2d 968, 972 (Ill. 1997). Examining these cases reveals that this

exception does not cover cases like the one before us now—an abandoned claim

brought in federal court after the state case was dismissed without prejudice;

rather, it pertains to issues a court has previously decided and that were waived

on either a first or second appeal in a single continuing lawsuit.

Medical Center Pharmacy is a classic appellate-waiver case. A group of

pharmacies filed a lawsuit for injunctive and declaratory relief challenging the

authority of the FDA to regulate compounded drugs under the Federal Food,

Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301–399a. Medical Center

Pharmacy, 634 F.3d at 832. Among other things, the pharmacy-plaintiffs

sought declaratory judgments “(1) that compounded drugs are not ‘new drugs’

or ‘new animal drugs’ under the FDCA . . . , and (2) that the [pharmacy-

plaintiffs] . . . [were] exempt from the heightened ‘records inspection’

authorized by” the FDCA. Id. (cleaned up). The district court granted summary

judgment to the pharmacy-plaintiffs on both declarations, and the FDA

appealed. Id. at 832–33. Before the Fifth Circuit, the FDA sought review of

“only the district court’s ruling on the new-drug issue,” and “specifically

6 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 33

disavowed any intent to raise the inspection issue.” Id. at 833. The appellate

court reversed the district court’s ruling on the new-drug issue, noting that

“neither party appeals the [district court’s] holding regarding ‘records

inspection,’” and remanded for further proceedings. Id. (cleaned up). On

remand before the district court, the FDA asserted that the Fifth Circuit’s

new-drug ruling required a “reevaluation of the district court’s original”

records-inspection ruling. Id. “The district court agreed, and it entered a new

judgment that declared that the FDA has the statutory authority to conduct

limited inspections of the records of pharmacies . . . .” Id. The pharmacy-

plaintiffs appealed, bringing the case before the Fifth Circuit for a second time.

Id. at 834. In the second appeal, the Fifth Circuit ruled that the case “fit[]

squarely within the waiver doctrine”: not only had the FDA “failed to raise its

objection to the district court’s original” records-inspection ruling in the first

appeal, but it had “expressly disavowed any intent to raise” the records-

inspection issue. Id. at 835–36. Thus, the Fifth Circuit held, “[T]he FDA

forfeited the inspection issue, and the district court erred by reversing its prior

inspection ruling on remand.” Id. at 836. In my view, there are vast differences

between an issue that was decided and then expressly disavowed in a previous

appeal before the same court (Medical Center Pharmacy), and an issue that was

abandoned, but never decided, in a different tribunal before the case was

dismissed without prejudice (this case). And so I do not think that this case

belongs in the same decision-exception category as Medical Center Pharmacy.

7 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 34

Liccardi is no more analogous to the case now before us. Indeed, the

parenthetical following the cite to Liccardi reads: “[A]s a general rule, the

failure of a party to challenge a legal decision when it has the opportunity to do

so renders that decision the law of the case for future stages of the same

litigation, and [that party is] deemed to have waived the right to challenge that

decision at a later time.” The Law of Judicial Precedent at 452 n.24 (emphases

added) (quoting Liccardi, 687 N.E.2d at 972). Liccardi is thus being used to

bolster the idea that a decision on an issue, and a party’s failure to challenge

that decision, makes that issue waived “for future stages of the same litigation.”

Id. (quoting same). But again, a decision must be made for that decision to

govern “future stages of the same litigation.” Id. (quoting same). By contrast

here, no court has ever issued a decision about Harris’s KCPA claim, and

Harris’s federal case is not a “future stage” of the state litigation. 4 So Liccardi

is, at best, tenuously relevant to this case, leaving us still in uncharted waters.

In my view, these cases evince that The Law of Judicial Precedent quote

that the majority relies on does not address the situation before us at all: a

plaintiff brings and then abandons a claim in state court before the court issues

a decision on that claim, the parties agree to a voluntary dismissal of that state

4 The majority also cites Omni Outdoor Advertising, Inc. v. Columbia Outdoor Advertising Inc., 974 F.2d 502, 505 (4th Cir. 1992), which, like Medical Center Pharmacy and Liccardi, is an inapposite appellate-waiver case. See Omni Outdoor Advert., 974 F.2d at 505 (ruling that the plaintiff could not argue in its second appeal that it was entitled to a new trial based on a theory of liability that it could have, but did not, assert in its first appeal). 8 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 35

case without prejudice, and that same plaintiff then files a new case, including

his abandoned claim, in federal court; rather, this quote, and the cases

supporting it, all involve a situation where a district court has decided an issue

and the party fails to challenge that decision (either in the district court or on

appeal) before the same tribunal in a single continuous lawsuit. 5 That is not this

case.

To be sure, I agree with the majority that if this case had proceeded on

remand in state court and the Kansas trial court had determined that Harris’s

failure to submit his KCPA claim to the jury during the first trial waived that

claim (thus barring him from asserting his KCPA claim in the second remand-

trial), then the Kansas Court of Appeals would have affirmed that decision

under the law-of-the case doctrine. See, e.g., Smith, 510 P.3d at 700 (“The law

of the case doctrine not only applies to matters decided in a prior stage of

5 The same is true for the cases cited by the majority in support of its view that “litigants who choose their trial strategy, litigate accordingly, and lose, are not entitled to resurrect a previously abandoned issue.” Maj. Op. at 12 (quoting Sales v. State Farm Fire & Cas. Co., 902 F.2d 933, 936 (11th Cir. 1990)). I agree with this statement for cases operating on either a “vertical plane—constricting a lower court vis-à-vis a higher court,” or on a “horizontal plane—constricting a later panel vis-à-vis an earlier panel of the same court.” Id. at 11 (cleaned up). But the federal district court is not a lower court to either Kansas’s trial or appellate courts. Nor is it the “same court” as either of the state courts involved in Harris’s first case. Id. (citation omitted). So the majority’s discussion about how the law-of-the-case doctrine operates on horizontal and vertical planes, id., and the cases cited in support thereof, id. at 11–13 (collecting cases discussing how the law-of-the-case doctrine works within a single continuous lawsuit in a single judicial system), are irrelevant to the more specific and unique question presented here. 9 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 36

proceedings in the same case, but also to matters for which the party failed to

seek review in those prior stages.”); L. Ruth Fawcett Tr. v. Oil Producers Inc.

of Kan., 507 P.3d 1124, 1131, 1140 (Kan. 2022) (affirming the Kansas trial

court’s denial of a party’s motion to amend its petition to raise an issue not

previously in dispute after the Kansas Supreme Court reversed and remanded

the case back to the Kansas trial court for further proceedings); see also Maj.

Op. at 23. But that is not what happened here. Indeed, neither the Kansas trial

court nor the Kansas Court of Appeals ruled that Harris had waived or

abandoned his KCPA claim. Had either court done so, we would have a

decision. What’s more, City Cycle could have easily procured this kind of

decision in either of two ways: (1) by asking the Kansas trial court to dismiss

the KCPA claim before submitting the case to the jury; or (2) by not agreeing

to a dismissal without prejudice after the Kansas appellate court reversed and

remanded the case for a new trial. Either option would have procured a decision

on the KCPA claim. But without such a decision, the law-of-the-case doctrine

does not apply.

B. Harris’s case in federal court is distinct from his state-court case.

The law-of-the-case doctrine also requires that an issue have been

decided or “resolved in prior proceedings in the same court.” Entek GRB,

840 F.3d at 1241 (emphasis added); Thoroughbred Assocs. L.L.C. v. Kansas

City Royalty Co., 308 P.3d 1238, 1251 (Kan. 2013) (“The law of the case

10 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 37

prevents relitigation of the same issues within successive stages of the same

suit.” (emphasis added) (citation omitted)). After the parties agreed to dismiss

the state case without prejudice, Harris filed a new case in federal court. So we

have two distinct lawsuits here—the suit in the Kansas state-court system and

the suit in the federal-court system. The majority wants to use Harris’s

abandonment of his KCPA claim in the first suit to preclude Harris from filing

his KCPA claim in the second. But “[t]he doctrine that limits the relitigation of

an issue in a subsequent suit, as opposed to a subsequent stage of the same suit,

is collateral estoppel, not law of the case.” 6 Rekhi v. Wildwood Indus., Inc.,

61 F.3d 1313, 1317 (7th Cir. 1995); accord State v. West, 281 P.3d 529, 532

(Kan. Ct. App. 2011) (“[L]aw-of-the-case promotes the same goals as res

judicata except that it operates within the life of a single case rather than across

successive cases.”). “It would be a different matter if [Harris’s] state court suit

6 City Cycle also argues on appeal that Harris’s KCPA claim is barred by res judicata (or claim preclusion). The majority does not reach this issue based on its ruling that Harris’s claim is barred by the law-of-the-case doctrine. See Maj. Op. at 10 n.1. But had the majority reached the res judicata issue, it would have easily concluded that Harris’s KCPA claim is not precluded because a case that is dismissed without prejudice does not have a preclusive effect. See Santa v. City of Tulsa, 359 F.3d 1241, 1246 n.3 (10th Cir. 2004) (“Generally, a dismissal without prejudice ‘is a dismissal that does not operat[e] as an adjudication upon the merits, . . . and thus does not have a res judicata effect.’” (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)); cf. Herington v. City of Wichita, 500 P.3d 1168, 1181 (Kan. 2021) (“hold[ing]” that when a federal court dismisses a party’s claims without prejudice that “there has been no final judgment on those . . . claims, and the Kansas common law doctrine of res judicata does not preclude a litigant from bringing those claims in state court”).

11 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 38

had been removed or otherwise transferred to federal court.” Rekhi, 61 F.3d

at 1317. Certainly then, assuming there was a “decision” on the KCPA claim,

the “doctrine of law of the case would apply, for it would be the same suit,

albeit in different courts.” Id. (citing Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 816 (1988)). But that is not what occurred. Instead, on

remand from the Kansas appellate court, the parties stipulated to a voluntary

dismissal of the state case without prejudice, “leav[ing] the parties as though

the action had never been brought.” Pinson v. Equifax Credit Info. Servs., Inc.,

316 F. App’x 744, 751–52 (10th Cir. 2009) (unpublished) (quoting Brown v.

Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961 (10th Cir. 1991)). Harris then

started over in federal court with a new case. 7 Because the state case is not the

“same case” as the federal case, the law-of-the-case doctrine does not apply.

7 The procedural history in this case is dissimilar to that in State v. Parry, 390 P.3d 879 (Kan. 2017). In the majority’s view, Parry stands for the proposition that the “law of the case applies to a newly filed case that duplicates one that was dismissed without prejudice.” Maj. Op. at 23. While in certain circumstances this may be true, Parry is unlike the situation here where there was no district-court (or appellate-court) decision on the pertinent issue. The question in Parry was whether the law-of-the-case doctrine “prevents the State from relitigating an evidence suppression question in a second criminal prosecution after it lost on that question in an earlier appeal, then dismissed the first case, and refiled a new one against the same defendant on the same charges.” 390 P.3d at 881. Reviewing the second case, the Kansas Supreme Court ruled that the law-of-the-case doctrine applied because, “though[] technically . . . not the same case,” the “issue decided against the State [in the first case] is the same issue the State seeks to pursue in this second prosecution, i.e., whether the evidence . . . should be suppressed.” Id. at 884 (emphasis added) (citation omitted). (footnote continued) 12 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 39

***

Like the majority, I cannot find another case with the same unusual

procedural posture as this case. See Maj. Op. at 17. 8 But Wright and Miller’s

Federal Practice and Procedure addresses this uncommon situation. That

treatise explains that “[w]hen a state action is dismissed without prejudice after

a ruling on a substantive issue, a federal court hearing a new action arising

from the same dispute may defer to the state ruling as the law of the case, but

the very separateness of the actions—and the cleansing purpose of a dismissal

without prejudice—has discouraged some courts from relying on law-of-the-

case theory.” Wright & Miller, supra, § 4478.4 (emphases added).

For two reasons, Parry is distinguishable from this case. First, the suppression issue had been decided by the trial court (and affirmed by the appellate court) in the first case. Second, both lawsuits were filed in the same tribunal: both cases proceeded in the Kansas state-court system. See id. at 885 (noting that “Parry’s second prosecution amounted to a successive stage in the same criminal prosecution, in which the State had already litigated—and lost— the suppression issue”). So, while I do not challenge the reasoning or outcome in Parry, I do not see how that decision applies to this case where (1) the KCPA issue was never decided and (2) the second case was filed in a different court system than the first case. 8 Given that the procedural posture of this case is an outlier (neither the panel nor the parties have found one like it), I do not think that we risk promoting gamesmanship or forum-shopping by permitting Harris to pursue his KCPA claim in federal court. Indeed, Harris’s risk of losing the KCPA claim completely by losing the state appeal on the jury-instruction issue is too great to worry about future litigants taking this gamble in hopes of a federal-court do-over. And the risk is even greater given that Harris had no guarantee that City Cycle would agree to the dismissal without prejudice. Thus, I have no concern that Harris being allowed to bring his KCPA claim in this federal case will open the floodgates for litigants attempting to follow the same risky and unconventional path that Harris paved in this case. 13 Appellate Case: 23-3116 Document: 010111097399 Date Filed: 08/20/2024 Page: 40

Assuming for the sake of argument that there was a state-court ruling on

Harris’s KCPA claim (which, as detailed above, there wasn’t), this quote

supports my view that the federal district court had discretion about whether to

defer to that state-court ruling, but that “the separateness of the actions” and

the “cleansing purpose of dismissal without prejudice” meant that the district

court was free to disregard the law-of-the-case doctrine and allow Harris to

litigate his KCPA claim in federal court. 9 Id.; see also Rocky Mountain Wild v.

Dallas, 98 F.4th 1263, 1288 (10th Cir. 2024) (“[T]he decision whether to apply

the law of the case doctrine remains a matter of judicial discretion.” (quoting

Entek GRB, 840 F.3d at 1242)). There is no authority in the majority’s opinion

indicating that the district court erred by allowing Harris’s KCPA claim to

proceed to trial.

Given the absence of authority indicating that the district court erred by

declining to apply the law-of-the-case doctrine to a claim that was never

decided, in a different case, before a different tribunal, that ended in a

dismissal without prejudice, I would affirm. Because, in my view, the majority

attempts to fit a square peg into a round law-of-the-case-doctrine hole, I

respectfully dissent.

9 Under 28 U.S.C. § 1738, the majority says, “the claim- and issue- preclusive effect of a state-court judgment is the same in federal court as in the state court.” Maj. Op. at 15 (emphasis added). I agree with this statement of the law. But when, as here, there is no state-court judgment on Harris’s KCPA claim to be given preclusive effect, this legal principle is inapplicable. 14