NOT DESIGNATED FOR PUBLICATION
No. 129,251
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
THOMAS RIEHLE, Individually, and as Special Administrator for the ESTATE OF DOROTHY RIEHLE, Appellant,
v.
CATHOLIC CARE CAMPUS, INC., d/b/a PLAZA HEALTH SERVICES AT SANTA MARTA, Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; RHONDA K. MASON, judge. Submitted without oral argument. Opinion filed August 28, 2026. Affirmed in part, reversed in part, and remanded with directions.
Jonathan Steele, of Steele Law Firm II, LLC, of Kansas City, Missouri, for appellant.
Kemper A. Bogle, Lawrence J. Logback, and J. Wesley Smith, of Simpson, Logback, Lynch, Norris, P.A., of Overland Park, for appellee.
Before HILL, P.J., ARNOLD-BURGER, J., and ANDREA PURVIS, District Judge, assigned.
PER CURIAM: Thomas Riehle filed a medical negligence and wrongful death action against Catholic Care Campus, Inc., (Catholic Care), in his individual capacity and on behalf of his mother's estate (collectively referred to as Riehle) after his mother passed away following an assisted fall while residing at a skilled nursing facility owned by Catholic Care. The district court resolved the case by summary judgment, based on Riehle's failure to timely designate any expert witnesses. Because we find that the district
2
court failed to make adequate findings regarding whether to sustain Riehle's alternative motion to dismiss the case without prejudice based on this failure, we remand for the court to make such findings. Accordingly, we affirm the district court's decision in part, reverse it in part, and remand the case with directions.
FACTUAL AND PROCEDURAL HISTORY
In January 2021, Dorothy Riehle suffered a hip fracture during an assisted fall at the Santa Marta skilled nursing and rehabilitation facility. Dorothy passed away the next day.
About two years later, Thomas, Dorothy's surviving son, filed a medical negligence and wrongful death action in his individual capacity and on behalf of her estate against several defendants, including: Catholic Care Campus, Inc., which owned and operated Santa Marta; Greystone Management Services Company, LLC, a Delaware limited liability company allegedly involved in operating Santa Marta and overseeing staffing; Brian Haase, the administrator at Santa Marta; and Kelli Demaline, a registered nurse and acting Director of Nursing at Santa Marta. The petition alleged essentially that the defendants were negligent in their care of Dorothy because of inadequate training and understaffing, which resulted in her death, causing damages. The only remaining party in the case on appeal is Catholic Care.
Discovery began in May 2023. The following month, Riehle served Catholic Care with requests for production of documents. Catholic Care objected to the production of some of the documents including punch detail data for staff at Santa Marta, internal emails discussing staffing and budgets, and Governing Body and Resident Council meeting minutes. Its objections centered on the fact that this was an "assisted" fall, meaning there was no evidence that the fall was the result of a lack of staffing. Moreover, Catholic Care asserted in its responses that Riehle had agreed that "Plaintiff has sought to judicially notice CMS data
3
that demonstrates that Defendant had above average staffing and total nursing hours during the times at issue in this case." Riehle took no further action related to Catholic Care's failure to produce these documents that he later claimed his expert witness needed to form an opinion.
In April 2024, the district court entered a case management order by the agreement of the parties which included a firm August 2025 trial date. Relevant here, the discovery completion deadline was March 2025, while the deadline for Riehle to disclose his expert witnesses was set for Friday, October 25, 2024.
On Wednesday, November 6, 2024, Riehle electronically filed a motion for a trial continuance and extension of deadlines, asserting that his retained expert witnesses had recently advised that additional written discovery was necessary to provide their complete opinions. Riehle asserted that his retained experts now needed the documents that Catholic Care had refused to produce in August 2023, when it responded to the request for documents. Riehle also argued that because Catholic Care delayed producing two of the parties for depositions, there was good cause to continue the trial and extend any deadlines by 90 days.
Because Riehle's continuance request was not filed until 12 days after the deadline to designate experts, Catholic Care opposed the continuance request. And, in a separate filing the same day, moved for summary judgment on the grounds that Riehle had failed to timely designate any experts to support his medical negligence claims.
Riehle responded by filing a document that expanded on the reasons a continuance was warranted and why his request for a continuance was not timely. Riehle explained that counsel had attempted to electronically file the continuance request on the evening of the deadline, but that "[t]he transition from JIMS to the eflex filing system in Johnson County made it impossible to file the document on that day." Riehle added that his
4
counsel alerted the district court and opposing counsel about the issue that very evening—a Friday—by sending a copy of the motion by email to the court's administrative assistant and advising he would "get this filed officially as soon as the software update is complete." These emails were sent at about 6:30 p.m., after the close of business. The court staff would obviously not be back to respond to emails until the following Monday.
An exhibit attached to the filing showed that the judge's administrative assistant responded to the email the following Monday morning explaining that "[y]ou will need to walk in paper copies of any Motions to be filed. Or, you can wait until 11/5/24 and file the Motion through e-flex." Thus, Riehle argued that "the complete unavailability of the e-filing system is an extraordinary event and constitutes good cause for an extension even if the Court determined [the] request was untimely as it relates to the expiration of the expert designation deadline." Alternatively, Riehle asked the court to allow him to dismiss the matter without prejudice.
Riehle also opposed Catholic Care's motion for summary judgment, asking the district court at the outset to "stay any ruling . . . pending a decision on Plaintiffs' Motion to Extend the Case Management Order filed on November 7, 2024." In the filing, Riehle admitted that "[a]s of the date of this filing, Plaintiff has not designated any expert witness to support their negligence claims and the time to file such designations has expired." Yet, Riehle asserted additional statements of uncontroverted fact about how Catholic Care had delayed discovery by refusing to produce fact witnesses for deposition until July 2024, as supported by copies of the letters and email correspondence between the parties, as well as an affidavit from his counsel. According to Riehle, it would be improper to grant summary judgment without first addressing the discovery delays and apparent e-filing system failure that prevented him from timely designating his retained experts.
5
Catholic Care disputed many of the uncontroverted facts asserted by Riehle particularly those related to the parties' correspondence about discovery and provided copies of other email correspondence omitted by Riehle. Further, Catholic Care disagreed that the timing of the depositions or its objections to producing the requested documents prevented Riehle from designating his experts by the deadline.
After taking up the parties' arguments at a hearing in February 2025, the district court granted summary judgment for Catholic Care and denied Riehle's continuance request. In the order, the court found the following undisputed facts supported its decision:
"1. On December 4, 2020, Dorothy Riehle was admitted to Santa Marta for skilled nursing care and rehabilitation services.
"2. On January 10, 2021, Ms. Riehle was being assisted by staff when her leg gave out on her and she was assisted to the floor. It was later discovered that Ms. Riehle suffered a mildly displaced intertrochanteric fracture on her left hip.
"3. Ms. Riehle died on January 11, 2021. The cause of her death is disputed. "4. On January 11, 2023, Plaintiff filed this medical negligence action on behalf of himself and as the Special Administrator for the Estate of Dorothy Riehle.
"5. Plaintiff alleges Defendant was negligent in its care to Ms. Riehle.
Specifically, Plaintiff alleges that Defendant breached its duty by failing to measure up to the requisite standard of care, skill, and practice ordinarily exercised by members of its profession.
"6. Plaintiff further alleges that as a direct and proximate result of this alleged negligence, he suffered damages, including pain, suffering, mental anguish, loss of companionship, loss of comfort, death, and other damages.
"7. The Court entered a Case Management Order on April 16, 2024.
Pursuant to the Order, Plaintiff's deadline to designate experts was October 25, 2024.
"8. Plaintiff did not designate any expert witness to support the negligence claims by this deadline.
"9. On October 25, 2024, Plaintiff emailed a copy of a Motion for Continuance of Trial and Certain Case Management Deadlines to Judge Mason's
6
Administrative Assistant at approximately 6:30 p.m., with an assertion that the Johnson County District Court's upcoming transition to the Kansas Court efiling system limited his ability to file the motion.
"10. Plaintiff did not provide the Court with any evidence indicating the Court's efiling system was down or not working properly. It should be noted that there were no other reported outages of the Court's efiling system for October 25, [2024].
"11. On October 28, 2024, Judge Mason's Administrative Assistant informed Plaintiff's counsel that he would need to walk into the Court and hand file paper copies of any motions to be filed that week or wait until November 5, 2024, to file the motion through e-flex.
"12. Plaintiff did not file the Motion for Continuance of Trial and Certain Case Management Deadlines through e-flex [until] November 6, 2024, twelve days after the expert designation deadline.
"13. In opposing summary judgment and requesting a continuance, Plaintiff stated that during the week of October 25, 2024, Plaintiff's counsel was advised by his potential expert witnesses that limited additional discovery was required for those experts to provide complete opinions in this matter. Specifically, the discovery needed included:
a. Punch Detail Data demonstrating hours that staff worked versus scheduled coverage;
b. Facility emails regarding staffing challenges; and c. Meeting Minutes of Defendant's Governing Body and Resident Counsel that may demonstrate staffing problems and their impact on resident care.
"14. Although Plaintiff had an expert, he opted not to designate the expert. "15. The items above were originally the subjects of Requests for Production of Documents that were served by Plaintiff on June 11, 2023.
"16. Defendant, after an agreed extension, timely objected to producing documents responsive to these Requests on August 1, 2023. The basis of the objections, in part, included that the Requests 'were overly broad and not proportional to the needs of the case. As Plaintiff's counsel is aware, Plaintiff has sought to judicially notice CMS data that demonstrates that Defendant had above average staffing and total nursing hours during the times at issue in this case. As Ms. Riehle suffered an assisted fall and staffing levels were, according to Plaintiff's data, above average, this request seems to be asserted
7
only for an improper purpose of harassment or needlessly increasing the cost of litigation.'
"17. After such objections were raised in August 2023, no motion to compel was filed and Plaintiff moved forward with the litigation without the categories of documents to which Defendant objected.
"18. The Case Management Order entered by the Court and signed by each party's attorney provides that '[a]ny motion to compel discovery must be filed within 30 days of the default, service of response, answer or objection that is the subject of the motion. If the motion is not filed within this time, the motion will not be considered.'
"19. The Case Management Order further states that the trial date set in this matter 'is a firm trial date and no continuance will be granted. Only under extraordinary circumstances will the court consider a continuance.'"
As for its legal conclusions, the district court explained that Catholic Care was entitled to summary judgment because of Riehle's undisputed failure to designate any experts. The court also determined that "[r]elief under K.S.A. 60-256(f) is not warranted here," because Riehle had not sought to compel production of the documents related to staffing after Catholic Care's objection in August 2023, thereby waiving the issue. The court added that these claims were "not a new issue only recently uncovered in discovery, as claims relating to inadequate staffing were articulated in the Petition." Lastly, the court found that Riehle's request for additional discovery was not tied to obtaining documents that would be needed to determine Dorothy's cause of death, which was an essential element of his claims.
Riehle appealed.
ANALYSIS
Riehle raises five issues in this appeal: (1) the district court erred by misapplying mandatory summary judgment standards; (2) the district court erred as a matter of law and abused its discretion by refusing to grant relief due to an efiling system failure; (3)
8
the district court abused its discretion by denying a request for additional discovery under K.S.A. 60-256(f); (4) the district court abused its discretion by denying a request to voluntarily dismiss the case without prejudice; and (5) cumulative error requires reversal. We will address each issue in turn.
The district court did not abuse its discretion by denying Riehle's request for a deadline extension.
On November 6, 2024, Riehle electronically filed a motion requesting to modify the April 2024 case management order, arguing there was "good cause" for his request because Catholic Care had delayed producing relevant fact witnesses for deposition for more than year, beginning in June 2023 until those depositions finally occurred in July 2024. Upon reviewing the transcripts from those depositions, Riehle's retained experts advised they needed certain documents that Catholic Care had previously refused to produce to provide their complete opinions. Thus, Riehle requested "an additional 90 days to conduct discovery prior to the designation of their retained expert witnesses" and "to continue this case's trial setting and extend the deadlines an additional 90 days."
Although only briefly mentioned in Riehle's brief, discovery was still open at the time he filed his motion because the case management order set a February 2025 cutoff date for serving written discovery requests, while all discovery needed to be completed a month later. But instead of simply asking the court to extend the expert designation deadline by 90 days, Riehle requested to extend all remaining deadlines by 90 days. Emphasizing this point is important because of the timing of the request: Riehle had filed it nearly two weeks after the expert designation deadline and did not explain why it was delayed, nor did he cite any statutory authority for the requests.
The statute governing requests for deadline extensions provides:
9
"(1) . . . When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) With or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect." K.S.A. 60-206(b).
By the plain language of this statute, Riehle only needed to show "good cause" for any future deadlines but would need to show he "failed to act because of excusable neglect" for any already expired deadlines. K.S.A. 60-206(b)(1)(A)-(B). So, in opposing Riehle's requests, Catholic Care disputed that it had caused any discovery delays, noting it had objected to producing the documents the experts claimed were essential in early August 2023, after which Riehle did nothing to compel their production. Further, Catholic Care argued Riehle failed to show "excusable neglect to extend deadlines that have already expired," because he took no steps to obtain the documents.
Although Catholic Care took a firm position that Riehle's motion was untimely as to the expert designation deadline, it nonetheless acknowledged that Riehle had "initially emailed a copy of the motion" to the court's administrative assistant "at around 6:30 p.m. on his expert deadline . . . claiming that Johnson County District Court's upcoming transition to the Kansas Courts eFiling system limited his ability to file the motion." The same day it responded to Riehle's continuance motion, Catholic Care separately moved for summary judgment on the grounds that he failed to timely designate any experts to support his claims.
On November 27, 2024, Riehle filed a supplement to his continuance motion, particularly to assert that the district court should consider his motion to be timely because "[t]he transition from JIMS to the eflex filing system in Johnson County made it impossible to file the document" on the date of the deadline and that "November 6, 2024, was the first day electronic filing for Johnson County cases was made available on the
10
eflex system." As support, Riehle provided a copy of the email referenced by Catholic Care, showing that his counsel sent a copy of the continuance motion to opposing counsel and the court's administrative assistant, who later advised on the morning of the next business day to "walk in paper copies" or "wait until 11/5/24 and file the Motion through e-flex." Yet, like the initial motion, Riehle referenced no statutes or procedural rules applicable to his request and argued simply that "the complete unavailability of the e- filing systems is an extraordinary event and constitutes good cause for an extension even if the Court determined Plaintiffs' request was untimely as it relates to the expiration of the expert designation deadline."
Although technically concerning Riehle's request for additional discovery in opposition to the summary judgment motion—which is addressed in a later section—it also bears mentioning that Riehle asked the district court to "stay any ruling on Defendant's Motion for Summary Judgment pending a decision on Plaintiffs' Motion to Extend the Case Management Order filed on November 7, 2024." He proceeded to argue that summary judgment was "preclude[d]" under Supreme Court Rule 122(e)(1) (2026 Kan. S. Ct. R. at 210) because the rule states that "[a]n attorney whose filing is untimely made due to the unavailability of the system may seek relief from the court." In addition, he asserted several statements of uncontroverted fact on this issue, relying on an affidavit from his counsel, Jonathan Steele, for support. Those need not be repeated in their entirety, except to note the following factual assertions made in Steele's affidavit:
"13. Following the July 12, 2024, depositions, I personally provided the deposition transcripts to our retained expert witnesses for their review.
"14. During the week of October 25, 2024, both expert witnesses independently identified several categories of previously requested documents that were essential to completing their opinions regarding the standard of care and causation in this matter. . . .
....
11
"17. For that reason, on October 25, 2024, prior to the expiration of the expert designation deadline, I personally attempted to file through the Kansas Electronic Filing System a Motion to Extend the Case Management Order seeking an additional 90 days to complete discovery and designate expert witnesses.
"18. When I attempted to file the motion, I received an error message indicating that the system was unavailable. I made multiple additional attempts to file the motion, but each attempt was unsuccessful due to the system's complete unavailability.
"19. At approximately 6:28 p.m. on October 25, 2024, upon confirming that the system remained inoperable, I emailed a copy of the Motion to Extend the Case Management Order to the Court's chambers and opposing counsel. This email included the complete motion and a detailed explanation of our attempts to file through the e-filing system.
"20. On Monday, October 28, 2024, I received an email response from the Court's Judicial Assistant Stacy Christ stating: 'You will need to walk in paper copies of any Motions to be filed. Or, you can wait until 11/5/24 and file the Motion through e- flex.' A true and correct copy of this email is attached as Exhibit B.
"21. Despite Ms. Christ's indication that the system would be available by November 5, 2024, it remained inaccessible to our office through November 6, 2024.
"22. On November 6, 2024, at approximately 10:50 p.m., while working late on another matter, I discovered that the e-filing system had finally become operational. I immediately filed our Motion to Extend the Case Management Order, completing the filing at 10:56 p.m.
"23. The delay in designating expert witnesses was caused solely by the combination of Defendant's delayed production of essential fact witnesses for deposition and the subsequent failure of the Kansas Electronic Filing System when we attempted to file our Motion to Extend the Case Management Order." (Emphases added.)
The district court ultimately denied Riehle's motion for a continuance when granting summary judgment, stating without elaboration that the motion was denied.
Riehle correctly acknowledges that appellate courts review a district court's refusal to extend a deadline under K.S.A. 60-206(b) for excusable neglect using an abuse of discretion standard. Bank of Whitewater v. Decker Investments, Inc., 238 Kan. 308, 315,
12
710 P.2d 1258 (1985). Accordingly, Riehle seems to concede that the motion was untimely as to the expert designation deadline, since "excusable neglect" need only be shown under K.S.A. 60-206(b)(1)(B) when a motion is untimely.
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. In re A.S., 319 Kan. 396, 400, 555 P.3d 732 (2024). As the party asserting the district court abused its discretion, Riehle bears the burden of showing such abuse. 319 Kan. at 400.
Here, Riehle argues the district court committed three legal errors in denying his untimely motion to extend the expert designation deadline: (1) the court disregarded the explicit mechanism for seeking relief due to a filing system unavailability; (2) the court failed to apply the "'unique circumstances'" doctrine to excuse his delayed filing; and (3) the court failed to conduct the excusable neglect analysis.
Contrary to Riehle's first claim of legal error, Supreme Court Rule 122(e)(1) does not require a district court to grant relief due to the filing system being unavailable. Rather, the rule states that "[t]he provisions of K.S.A. 60-206 apply if the district court clerk's office is inaccessible because the approved district court electronic filing system is unavailable. An attorney whose filing is untimely made due to the unavailability of the system may seek relief from the court." (Emphases added.) Rule 122(e)(1) (2026 Kan. S. Ct. R. at 210). Put simply, the court retains its discretion whether to grant relief once requested, even when a filing is untimely due to the unavailability of the filing system. And since the rule states it applies only when a filing is untimely, that means the court must still consider whether a party seeking relief has shown excusable neglect under K.S.A. 60-206(b)(1).
Moving then, to Riehle's argument that the district court failed to conduct the excusable neglect analysis, courts consider excusable neglect using a case-by-case
13
analysis. Boyce v. Boyce, 206 Kan. 53, 55-56, 476 P.2d 625 (1970). The party asserting excusable neglect to extend a deadline can meet that burden by providing evidence of good faith, establishing a reasonable excuse for the failure, and showing that the interests of justice could be served by granting the request. 206 Kan. at 56.
According to Riehle, the district court failed to conduct this analysis because the journal entry of judgment is "utterly silent" on that point and makes no relevant findings, which he asserts is "an abuse of discretion per se." We disagree, because a party bears the responsibility to object to inadequate findings of fact and conclusions of law to give the district court an opportunity to correct any alleged inadequacies. See In re Guardianship and Conservatorship of B.H., 309 Kan. 1097, 1107-08, 442 P.3d 457 (2019). When a party abdicates this responsibility, this court can presume the district court found all facts necessary to support its judgment. Bicknell v. Kansas Dept. of Revenue, 315 Kan. 451, 510, 509 P.3d 1211 (2022). Still, if the record does not support such a presumption and the lack of specific findings precludes meaningful review, this court can consider a remand. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361-63, 277 P.3d 1062 (2012).
While the district court's journal entry indeed omits any findings regarding excusable neglect or the factors outlined in Boyce, it is not entirely silent on this issue because the court found the following undisputed material facts supported granting summary judgment:
"9. On October 25, 2024, Plaintiff emailed a copy of a Motion for Continuance of Trial and Certain Case Management Deadlines to Judge Mason's Administrative Assistant at approximately 6:30 p.m., with an assertion that the Johnson County District Court's upcoming transition to the Kansas Court efiling system limited his ability to file the motion.
14
"10. Plaintiff did not provide the Court with any evidence indicating the Court's efiling system was down or not working properly. It should be noted that there were no other reported outages of the Court's efiling system for October 25, 202[4].
"11. On October 28, 2024, Judge Mason's Administrative Assistant informed Plaintiff's counsel that he would need to walk into the Court and hand file paper copies of any motions to be filed that week or wait until November 5, 2024, to file the motion through e-flex.
"12. Plaintiff did not file the Motion for Continuance of Trial and Certain Case Management Deadlines through e-flex [until] November 6, 2024, twelve days after the expert designation deadline."
Based on these facts, it is reasonable to conclude that the district court determined Riehle had failed to show the efiling system was actually unavailable on the date of the expert designation deadline. The record supports this conclusion, as well, because the most direct evidence he provided to show the system unavailability was Steele's affidavit, in which his attorney stated specifically that he "personally attempted to file through the Kansas Electronic Filing System" on the date of the deadline and "received an error message indicating that the system was unavailable." The problem with Steele's assertion is that the district court was still using the Johnson County District Court Justice Information Management System (JIMS) electronic filing system on that date. See Kansas Supreme Court Administrative Order 2024-CC-083, effective October 22, 2024 (setting schedule for transition to centralized case management system). Under that schedule, electronic filing in the Johnson County District Court ceased "[a]t 12 p.m. CT, Saturday, October 26, 2024" and became "fully operational and available" under the new centralized system "[e]ffective at 8 a.m. Tuesday, November 5, 2024." Order 2024-CC- 083.
It simply cannot be said that Riehle proved the delay in filing his continuance request stemmed from a system unavailability when his attorney's sworn statement reflects that he may not have been using the proper filing system. Even assuming Steele
15
was correct that JIMS was also unavailable on the deadline, the clerk's office was accessible the following Monday by paper filing and remained so for more than a week. By Steele's admission, he deliberately chose to wait until he could file through eflex, nearly 39 hours after the new centralized system was scheduled to become operational. Unlike the specific statements describing unsuccessful attempts to file the motion on the date of the deadline, Steele's affidavit generally asserted the system "remained inaccessible" until late at night the next day, when he inadvertently "discovered that the e-filing system had finally become operational."
Riehle's reliance on the unique circumstances doctrine is also misplaced because his argument hinges on having shown that the electronic filing system was, in fact, unavailable and that court staff misled him. As Catholic Care points out, the unique circumstances doctrine is one of specific and limited application, and whether it applies is a question of law subject to de novo review. Finley v. Estate of DeGrazio, 285 Kan. 202, 207, 170 P.3d 407 (2007). This equitable doctrine applies only when nonparty error causes an untimely filing. 285 Kan. at 211. Contrary to Riehle's argument, the information relayed to him by the court's administrative assistant was accurate because it described his available filing methods under Order 2024-CC-083 and did not purport to extend any deadlines.
For these reasons, we find that Riehle has not shown the district court abused its discretion in denying his motion for a continuance.
The district court did not abuse its discretion by denying a request for additional discovery under K.S.A. 60-256(f).
Riehle states in the facts section of his brief that he emailed a motion "seeking additional time under K.S.A. 60-256(f)" to the court in October 2024, which he later filed
16
in November 2024, then "renewed" the request when opposing Catholic Care's motion for summary judgment.
Contrary to his assertion, K.S.A. 60-256(f) is a specific procedural mechanism that allows a party opposing summary judgment to "show[] by affidavit or by declaration pursuant to K.S.A. 53-601, and amendments thereto, that, for specified reasons, it cannot present facts essential to justify its opposition." When presented with such a showing, the district court can "(1) Deny the motion; (2) order a continuance to enable affidavits or declarations to be obtained, depositions to be taken or other discovery to be undertaken; or (3) issue any other just order." K.S.A. 60-256(f). Thus, Riehle's initial motion could not have been raised under K.S.A. 60-256(f) because there was not yet a summary judgment motion on file at the time. As explained previously, Riehle argued in the initial motion only that there was "good cause" for a trial continuance and extension of any remaining discovery deadlines. Thus, it is more accurate to say the initial motion arose under K.S.A. 60-206(b) (extensions granted for good cause shown) or K.S.A. 60-240(b) (continuances for good cause shown) and would be distinct from any later request for additional discovery under K.S.A. 60-256(f) (extensions when affidavits or declarations are unavailable).
Another point bears mentioning as well. A review of Riehle's filings suggests that Riehle never invoked K.S.A. 60-256(f) as a basis for relief in the underlying proceedings. Riehle asserted in his December 2024 response to the summary judgment motion that the court should "stay any ruling on Defendant's Motion for Summary Judgment pending a decision on Plaintiffs' Motion to Extend the Case Management Order filed on November 7, 2024." He proceeded to argue that summary judgment was "preclude[d]" under Supreme Court Rule 122(e)(1) (2026 Kan. S. Ct. R. at 210), which states that "[a]n attorney whose filing is untimely made due to the unavailability of the system may seek relief from the court." In other words, he was asking the court to grant his prior motion to extend the expert designation deadline, not articulating specific reasons preventing him
17
from presenting facts essential to justifying his opposition as required by K.S.A. 60- 256(f).
Even so, Catholic Care understood that Riehle was seeking additional discovery to oppose its motion for summary judgment under the statute, and the district court addressed Riehle's request as such in its summary judgment ruling. So even if Riehle never explicitly invoked K.S.A. 60-256(f) below, the relief he sought—additional time to obtain discovery documents he believed were essential to presenting expert testimony— was within the district court's discretion to grant. But the court denied that relief for two reasons: (1) Riehle waived the issue by not trying to compel production of the underlying documents after Catholic Care raised objections in August 2023; and (2) Riehle had not shown that the underlying documents were necessary to determine Dorothy's cause of death or designate an expert to speak on the issue of causation.
Riehle first challenges these findings by arguing that the district court misapplied the mandatory summary judgment standard, particularly by applying incorrect legal standards and failing to resolve disputed material facts in his favor. Generally, summary judgment is not proper until the parties have completed discovery. Yet, "if the facts pertinent to the material issues are not controverted, summary judgment may be appropriate even when discovery is unfinished." Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
But contrary to Riehle's arguments, the summary judgment standard of review does not apply to this issue because appellate review of a district court's refusal to allow additional discovery under K.S.A. 60-256(f) is for an abuse of discretion. 296 Kan. at 935. As stated above, judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. In re A.S., 319 Kan. at 400. And, as the party asserting the district court abused its discretion, Riehle bears the burden of showing such abuse. 319 Kan. at 400. Accordingly,
18
we must consider Riehle's arguments as claims of legal error and factual error under the abuse of discretion framework.
Beginning with the district court's finding that Riehle waived the right to seek certain discovery documents, he contends Catholic Care failed to meet its burden of showing he had an "'affirmative intent'" to waive that right. Lyons ex rel. Lawing v. Holder, 38 Kan. App. 2d 131, 139, 163 P.3d 343 (2007); see also First Nat'l Bank of Omaha v. Centennial Park, 48 Kan. App. 2d 714, 727, 303 P.3d 705 (2013) ("Under Kansas law, waiver is an intentional relinquishment of a known right and intention may be inferred from conduct."). But these authorities deal with contractual waiver claims, so they are not applicable here.
Rather, the basis for the district court's ruling was that the affidavit Riehle submitted in support of his request for additional discovery failed to explain what steps were taken to obtain the discovery he now sought. As support, the court relied on McGregor v. Shane's Bail Bonds, No. 10-CV-2099-JWL, 2010 WL 3155635, at *16 (D. Kan. 2010), which dealt with the federal counterpart to K.S.A. 60-256(f). As the court in that case recognized, invoking Rule 56(f) required the nonmovant to furnish an affidavit
"'explain[ing] why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts. . . . [T]he nonmovant also must explain how additional time will enable him to rebut movant's allegations of no genuine issue of fact.'" (Emphasis added.) 2010 WL 3155635, at *16 (quoting Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 [10th Cir.1992]).
Although not mentioned by the district court in its ruling, the Tenth Circuit in Committee for the First Amendment held that the district court had not abused its discretion by implicitly denying a motion for additional discovery raised in opposition to summary judgment. 962 F.2d at 1523. Relevant here, the court reached that conclusion
19
upon recognizing that an attorney's unverified assertions raised in a memorandum opposing summary judgment were insufficient to meet the Rule 56(f) requirements. 962 F.2d at 1522. Taken altogether, these authorities undermine Riehle's assertion in his brief that it was "legally irrelevant" for the district court to consider the lack of demonstrated efforts to obtain the discovery he now claimed was essential.
Riehle also claims his attorney made a "reasonable, good-faith decision to 'forgo a drawn-out discovery dispute' in 2023 . . . to prioritize securing the long-delayed depositions first." Even accepting his explanation that the depositions were delayed through no fault of his own—and likewise that a new, critical need arose for obtaining the documents Catholic Care had refused to produce—does not excuse the basic fact that Riehle fails to demonstrate he took any steps to seek production of the documents after Catholic Care objected in August 2023. Riehle still had another four months to serve any written discovery requests at the time he learned from his experts that they needed the documents. Put simply, there was still time for Riehle to obtain the documents through discovery and other procedural avenues available through which he might have been more successful. But under the circumstances present, the district court did not abuse its discretion in declining relief based on his minimal efforts to compel production of the documents.
As for the district court's finding that Riehle failed to show the additional discovery would allow him to prove medical causation, he contends the court created a "'Causation Catch-22'" that held him to an impossible standard. In other words, the court denied his K.S.A. 60-256(f) request to obtain specific documents that would have helped him establish Catholic Care's negligence through expert testimony, then used the lack of expert testimony against him by finding that he also could not prove medical causation. But this argument fundamentally misunderstands the district court's explanation for finding that he was not entitled to relief.
20
In Riehle's opposition to summary judgment, he alleged his retained experts advised him they needed the following documents that Catholic Care had refused to produce during discovery: punch detail data, meeting minutes for the Santa Marta facility's governing body and resident council, and facility emails. According to the experts, these documents were important and necessary to form their complete opinion. But the reasons set forth in the motion and supporting affidavit centered solely on the allegations of understaffing that would have supported the negligence claims. Then, at the hearing on the summary judgment motion, Riehle's counsel stated that he expected "there is going to be a single expert on that issue at this time," despite alluding to having retained multiple experts in his written response.
Lastly, Riehle argues that the district court abused its discretion in denying his motion under K.S.A. 60-256(f) because it failed to apply the correct legal standard. He references the "Canaday factors," which are a list of factors this court has considered when determining whether a district court abused its discretion by striking witnesses as a sanction for a party's violation of the case management order. See Canaday v. Midway Denton U.S.D. No. 433, 42 Kan. App. 2d 866, 873-74, 218 P.3d 446 (2009). The factors discussed in Canaday have no relevance to the issue presented here, because the district court did not deny him relief as a sanction.
In sum, we find the district court did not abuse its discretion in denying Riehle's K.S.A. 60-256(f) request.
The record is insufficient to determine whether the district court abused its discretion by refusing to allow voluntary dismissal without prejudice rather than granting summary judgment in favor of Catholic Care.
In both Riehle's supplemental support for his continuance request filed with the court, and during oral argument on the summary judgment motion, Riehle asked that as an alternative to summary judgment the district allow him to voluntarily dismiss his case
21
without prejudice. Riehle contends the district court abused its discretion by declining to allow him to voluntarily dismiss the case without prejudice under K.S.A. 60-241(a)(2).
We review a district court's decision on whether to allow a voluntary dismissal without prejudice after a party has moved for summary judgment for an abuse of discretion. Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 325, 469 P.2d 272 (1970). Again, Riehle bears the burden of showing the district court's decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. In re A.S., 319 Kan. at 400.
Kansas courts considering such requests have traditionally considered whether the defendant (here, Catholic Care) has suffered some "plain legal prejudice" other than the continuing prospect of a second suit on the same cause of action. See Gideon, 205 Kan. at 326 ("[T]he court should follow the traditional principle that dismissal be allowed unless the defendant will suffer some plain legal prejudice other than [the] mere prospect of a second lawsuit."). That the plaintiff may gain some tactical advantage is not a bar to dismissal. 205 Kan. at 326. The court must "consider the rights of the parties and how they will be affected, and what benefits or injuries may result to the respective sides in the controversy if a dismissal is granted." 205 Kan. at 327-28.
Although the parties trade arguments about whether the district court properly addressed whether Catholic Care would have been prejudiced by allowing dismissal, resolving this issue would be improper on the current record. While Riehle asserts the district court implicitly denied his request by granting Catholic Care's motion for summary judgment, nothing in the record shows the court considered the applicable factors. There are no findings related to the request in the journal entry, and the court only said it wanted to "look at the filings and the timing associated with this case regarding deadlines and things of that nature" after the parties finished presenting their arguments at the summary judgment hearing. Without any findings on the required
22
factors outlined in Gideon, this court cannot determine whether the district court abused its discretion in declining to allow Riehle to voluntarily dismiss the case without prejudice.
Thus, we must reverse and remand for the district court to make the necessary findings before exercising its discretion to determine whether Riehle should be allowed to dismiss his case without prejudice.
If the cumulative error doctrine applies in civil cases, Riehle has failed to show cumulative error.
Finally, Riehle argues the district court's judgment should be reversed based on the cumulative effect of its procedural errors.
Cumulative error typically applies in criminal cases and may require reversal of a defendant's conviction "when the totality of the circumstances establishes that the defendant was substantially prejudiced by the errors and denied a fair trial." State v. Zongker, 319 Kan. 411, 433, 555 P.3d 698 (2024). Even assuming, without deciding, that the cumulative error doctrine can be applied in civil cases, there must be multiple errors for it to apply. See State v. Lowry, 317 Kan. 89, 100, 524 P.3d 416 (2023). Of the procedural rulings challenged in this appeal, Riehle established only that the court neglected to make necessary findings on his motion for voluntary dismissal without prejudice. Riehle has not shown he is entitled to relief on his other issues as well because of cumulative error.
Affirmed in part, reversed in part, and remanded with directions.