Wilmington Savings Fund Society v. Campbell, 122653

The Campbells mortgaged residential property; multiple lenders filed successive foreclosure actions against them (2013, 2015, 2017).
2013: BMO Harris filed foreclosure; while summary-judgment motion was pending the bank moved to dismiss and a judge signed an order dismissing without prejudice four days after the motion (before the seven-day response period under Kan. Sup. Ct. Rule 133 expired).
2015: PrimeStar (same counsel as earlier lender) filed a second foreclosure; in August 2016 the case was dismissed by a signed court order the day after the motion to dismiss, with the record unclear whether the order explicitly said "without prejudice." Campbells did not move to set aside or object.
2017: Wilmington Savings (current plaintiff) filed the third foreclosure action; the district court granted summary judgment for the Campbells, concluding the two-dismissal rule in K.S.A. 60-241(a) barred this suit because it treated the second dismissal as the functional equivalent of a notice of dismissal and thus an adjudication on the merits.
On appeal, the Kansas Court of Appeals held both prior dismissals were court-ordered dismissals (not notices), so the two-dismissal rule did not apply; the Rule 133 procedural violation did not convert a court-ordered dismissal into a notice.
The appellate court reversed and remanded with instructions to reinstate the foreclosure action; Wilmington’s request for appellate attorney fees was denied as premature pending a merits judgment.

Issue	Plaintiff's Argument (Wilmington)	Defendant's Argument (Campbells)	Held
Whether K.S.A. 60-241(a)'s two-dismissal rule bars a third action when the two prior dismissals were by court order	Prior second dismissal functionally operated as a notice/adjudication on the merits and thus bars the third suit	Both prior dismissals were court-ordered, so the statute’s two-dismissal rule (which applies to notices) was not triggered	Reversed: two prior court-ordered dismissals do not trigger the two-dismissal rule; third action may proceed
Whether procedural violations (failure to allow 7 days under Rule 133) convert a court-ordered dismissal into a notice of dismissal	The procedural shortcut and judge’s signature rendered the dismissal equivalent to a notice, invoking the two-dismissal rule	Rule 133 violations, even if improper, do not change a court-ordered dismissal into a notice under the statute	Held: Rule 133 violation does not alter statutory classification; dismissal remains a court order and statute must be applied as written
Whether Wilmington is entitled to appellate attorney fees now	Fees provision in mortgage allows recovery; appellant prevailed on appeal	Campbells oppose	Denied as premature — fees require Wilmington to obtain a merits judgment (prevailing party) in the district court

Jian Yang Lin v. Shanghai City Corp., 950 F.3d 46 (2d Cir. 2020) (construing comparable federal rule and explaining the two-dismissal rule)
Sumner v. Law Offices of Jerry Berg, P.A., 20 Kan. App. 2d 572 (Kan. Ct. App. 1995) (Kansas application of the two-dismissal rule)
Gioia v. Blue Cross Hosp. Serv., 641 F.2d 540 (8th Cir. 1981) (federal case treating whether a prior dismissal was by notice or court order; distinguished on facts)
Casco v. Armour Swift-Eckrich, 283 Kan. 508 (Kan. 2007) (statutory construction principle: clear statutory language controls)