Opinion
No. 107,471.
2013-01-18
J. Brad MEARA, Appellant, v. DOUGLAS COUNTY, Kansas, Appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge. Dennis J. Cassidy, of Dunn & Davison, L.L.C., of Kansas City, Missouri, for appellant. J. Steven Pigg and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Dennis J. Cassidy, of Dunn & Davison, L.L.C., of Kansas City, Missouri, for appellant. J. Steven Pigg and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
J. Brad Meara appeals from the district court's decision to grant summary judgment in favor of Douglas County, Kansas (County). The court's decision was based on a finding that Meara failed to comply with the notice of claim statute, K.S.A.2011 Supp. 12–105b(d). But Meara contends that his notice of claim letter substantially complied with the statutory requirements and that the district court should have applied the doctrines of waiver and/or equitable estoppel, which would have precluded the County from raising a notice of claim defense. For the reasons stated below, we affirm the district court's decision.
Facts
On July 11, 2009, Meara was riding his bicycle on Douglas County Highway 1055 in Douglas County, Kansas, and was injured when he struck a sinkhole in the roadway. On September 28, 2009, Meara's counsel mailed a letter to the Douglas County Public Works Department. The letter explained the circumstances that led to Meara's accident and detailed his injuries. The letter further stated: “We intend for this letter to comply with the provisions of K.S.A. 12–105b, by providing written notice of the time when and place where Dr. Meara received his injury due to the pothole in the roadway,” and indicated Meara's intent to file a lawsuit seeking compensation for his injuries sustained as a result of the dangerous condition of the roadway if no settlement could be reached.
The September 28, 2009, letter was sent via certified mail, return receipt requested. The receipt mailed back to Meara's attorney indicated that Gayle Johnson, an administrative officer in the Douglas County Public Works Department, signed the return and acknowledged receipt of the letter on September 30, 2009. Johnson distributed the letter to several individuals, including Keith Browning, Director of Public Works, and two persons with the Douglas County Administrative Services Department: Pam Madl, an assistant county administrator, and Julie Clouse, a management information analyst.
On October 27, 2009, a representative of Douglas County's insurance carrier, St. Paul Fire and Marine (Travelers), contacted Meara's counsel and requested information about the claim. Thereafter, Travelers representatives and Meara's counsel continued to correspond and exchange information for over a year while Travelers investigated Meara's claim.
On March 24, 2011, Travelers notified Meara's counsel that it was denying the claim “based upon several factors including, but not limited to, the fact that the County did not have notice of the pothole.”
On June 29, 2011, Meara filed a petition in the district court against the County, seeking damages based on claims of premises liability and negligence. The County answered and moved for summary judgment, alleging that the district court lacked jurisdiction over Meara's petition because the September 28, 2009, notice of claim letter sent to the Public Works Department did not (1) comply with the service requirements of K.S.A.2009 Supp. 12–105b(d), or (2) substantially comply with the statute in other respects, as it did not contain Meara's address or a statement of a dollar amount of damages. In response, Meara argued that the letter, at a minimum, substantially complied with the requirements of K.S.A.2009 Supp. 12–105b because it provided the County with notice of the claim being raised, along with information that would allow the County to adequately investigate the basis for the claim. Meara further alleged that the doctrines of waiver and equitable estoppel applied to prevent the County from relying on the notice of claim statute as a defense.
After hearing argument on the matter, the district court granted the County's summary judgment motion. Relying on Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 127 P.3d 319 (2006), the court held that it lacked jurisdiction over Meara's petition because Meara did not comply with the mandatory service requirements of K.S.A.2009 Supp. 12–105b(d). Having found Meara's failure to comply with the service requirements precluded the case from moving forward, the district court did not address whether Meara substantially complied with the content (his address and the amount of damages claimed) requirements or whether there was any merit to Meara's waiver/equitable estoppel argument.
Analysis
On appeal, Meara argues that the district court erred in granting summary judgment in favor of the County. He alleges, as he did below, that the September 28, 2009, letter he sent to the Public Works Department substantially complied with K.S.A.2009 Supp. 12–105b(d). Meara also contends that the County has waived or is otherwise estopped from relying on his failure to comply with the statute as a defense. We address each of these arguments in turn.
Standard of Review
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding whether summary judgment is appropriate, the district court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888(2011).
The parties do not dispute the material facts regarding Meara's service of notice; thus, resolution of this case rests upon the interpretation of K.S.A.2011 Supp. 12–105b. Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Kuxhansen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010). Likewise, interpretation of a statute presents a question of law over which we have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). A. Substantial Compliance with the Service Provisions of K.S.A.2011 Supp. 12–105b(d)
Any person who has a claim against a municipality that could give rise to an action brought under the Kansas Tort Claims Act (KTCA), K .S.A. 75–6101 et seq. , must file a written notice to the municipality before commencing such action. K.S.A.2011 Supp. 12–105b(d). The purpose of a written notice of claim is to advise the municipality of the time and place of the injury and to give the municipality an opportunity to ascertain the character and extent of the injury sustained. The notice requirement of K.S.A.2011 Supp. 12–105b(d) is a mandatory prerequisite to bringing a tort claim against a municipality in district court; if the statutory notice requirement is not met, the district court cannot acquire jurisdiction over the municipality. Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 (2009). A municipality is broadly defined to include counties. K.S.A.2011 Supp. 12–105a(a); K.S.A.2011 Supp. 75–6102(b).
With regard to the substance of the notice, K.S.A.2011 Supp. 12–105b(d) provides:
“The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.” (Emphasis added.)
Our Supreme Court has defined substantial compliance as “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” Dodge City Implement, Inc., 288 Kan. at 639.
In granting the County's summary judgment motion, the district court relied on Myers to find that Meara's September 28, 2009, letter to the Public Works Department did not substantially comply with the service requirements of K.S.A.2009 Supp. 12–105b(d) because the letter was not filed with the clerk or governing body of the County. In Myers, the plaintiff served a notice of claim for wrongful termination on the county counselor. The county counselor forwarded the notice to the county's governing body (the board of county commissioners), which provided the body with actual notice of the claim. The county investigated and denied the claim, and the plaintiff subsequently filed a lawsuit. The county moved for summary judgment, arguing that service of the notice of claim was ineffective because the county counselor was neither the county clerk nor the county's governing body. The district court agreed and granted summary judgment in favor of the county.
Our Supreme Court affirmed the district court's decision. Specifically, the court determined that if it allowed service of the notice on the county counselor to constitute substantial compliance with K.S.A. 12–105b(d), it “would establish a new, judicially created method of serving notice beyond the methods established by the legislature.” 280 Kan. at 875; see also Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan.App.2d 379, 383, 988 P.2d 263 (1999) (service of notice on county counselor does not substantially comply with K.S.A. 12–105b[d]'s requirement that claim be filed with the county clerk).
In an attempt to distinguish Myers, Meara contends that his notice of claim letter sent to the Public Works Department constituted substantial compliance with K.S.A.2009 Supp. 12–105b(d). To that end, he alleges: (1) a panel of this court recently held that service of a notice of claim letter upon the Public Works Department substantially complies with the requirement that service of the letter be sent to the County; (2) the Public Works Department has “charge and control” over the County's roadways; (3) the employees who received the notice performed clerical functions; and (4) the information he supplied to Travelers provided the County with sufficient notice of the claim and the ability to investigate the claim. For the reasons stated below, we disagree.
1. Southwestern Bell v. Lyon County
Claiming it to be factually similar to the present case, Meara relies primarily on Southwestern Bell Tel. Co. v. Board of Lyon County Comm'rs, 41 Kan.App.2d 346, 202 P.3d 54,rev. denied 289 Kan. 1280 (2009), as support for his assertion that sending notice to the Public Works Department was sufficient. In that case, a Lyon County employee damaged telephone facilities owned by Southwestern Bell while operating lawn mowing equipment. Southwestern Bell sent an invoice to the county on AT & T letterhead, identified the nature and amount of the damages as damages to “SBC Southwest Region Facilities,” and requested payment to AT & T at “One SBC Center.” 41 Kan.App.2d at 347. When the county did not pay the invoice, an attorney for Southwestern Bell sent a notice of claim to the Lyon County Highway Department. The notice identified the claimant as AT & T and contained the same information as the invoice. The county denied the claim, and Southwestern Bell filed suit against the county. The county moved for judgment on the pleadings based on a lack of notice under K.S.A. 12–105b(d). The district court denied the motion, concluding there had been substantial compliance with the statute.
On appeal, the county argued the district court erred in finding that there had been substantial compliance with the statute because the formal notice of claim specified the claimant as AT & T, while Southwestern Bell was the entity who filed the lawsuit. This court affirmed the district court's ruling, pointing to undisputed evidence in the record that Southwestern Bell was commonly referred to as AT & T and did business under the trade name AT & T in concluding that “the entity identified in the formal notice of claim is the same company which ultimately brought suit against the County.” 41 Kan.App.2d at 349–50.
In his brief, Meara highlights the fact that the notice of claim in Southwestern Bell Tel Co. was sent to a county department, just like it was here. Meara further highlights the following excerpt from the opinion: “[T]he County has not challenged any other aspect of the formal notice. From our review of the notice, we conclude that it appears to comply with all other statutory prerequisites.” 41 Kan.App.2d at 350. Meara suggests that if the Southwestern Bell Tel. Co. court had perceived a problem with the service of the notice of claim, it would have raised the issue sua sponte; its failure to do so constituted an implicit approval of Southwestern Bell's service of the notice of claim on the county highway department. Applying this reasoning to the present facts, Meara alleges that his service of the notice of claim letter upon the Public Works Department was also proper.
Meara's reliance on Southwestern Bell Tel. Co. is misplaced. The Southwestern Bell Tel. Co. court did not address, either directly or indirectly, whether Southwestern Bell substantially complied with K.S.A.2011 Supp. 12–105b(d)'s service requirements. The only issue before the court was whether Southwestern Bell substantially complied with the statute by sufficiently identifying the claimant. 41 Kan.App.2d at 348. Moreover, Meara does not allege, and there is no evidence in the record to establish, that the County and the Public Works Department in this case are the same entity, like Southwestern Bell and AT & T. Simply put, we cannot construe a brief comment from the court that the notice “appears to comply with all other statutory prerequisites” as a legal holding that Southwestern Bell's service on the county highway department substantially complied with the service requirements set forth in K.S.A.2011 Supp. 12–105b(d). 41 Kan.App.2d at 350.
Moreover, as noted by the County, the Southwestern Bell Tel. Co . briefs on file with our Clerk's Office contain a copy of the notice of claim letter from that case. The letter, which lists the Lyon County Highway Department as the debtor, is addressed to the attention of the County Clerk. Thus, it appears that Southwestern Bell literally complied with the service requirements of K.S.A.2011 Supp. 12–105b(d). Although Southwestern Bell's notice of claim letter is not part of the record on appeal in the present case, this court may take judicial notice of its own court files. See K.S.A. 60–409(b)(4) (court may take judicial notice of facts capable of immediate and accurate determination by resort to easily accessible resources of indisputable accuracy); In re A.S., 12 Kan.App.2d 594, 598, 752 P.2d 705 (1988) (court may take judicial notice of its own court file).
2. “Charge and Control”
Relying on Orr v. Heiman, 270 Kan. 109, 12 P.3d 387 (2000), Meara contends that sending notice to the Public Works Department was sufficient because the department has “charge and control over county roadways.” In Orr, a widow filed suit against her late husband's employer, a school district. She served a notice of claim upon the superintendent of schools and later sued the superintendent and the school district. Our Supreme Court upheld service on a school superintendent as being in substantial compliance with K.S.A. 12–105b(d). The Orr court reasoned that although the superintendent was neither the clerk nor the governing body of the school district, the superintendent was statutorily recognized to have “charge and control” of the public schools. 270 Kan. at 114–15.
In this case, Meara argues that the Public Works Department has charge and control over the County's roadways because the director of the Public Works Department answered interrogatories during the discovery phase of this case and his job description includes directing the planning, design, and construction of public road and utility projects. But even if this court accepts Meara's claim that the Public Works Department exercises charge and control over the County's roads, Meara has not shown that the department, or any individual in the department, has authority to act on the County's behalf, like the school superintendent in Orr. Nor does Meara cite any authority for the proposition that the department has charge and control over the County or its board of county commissioners. See Myers, 280 Kan. at 876 (distinguishing Orr on grounds that county counselor who was served with notice of claim had no statutory authority over board of county commissioners). Instead, Meara contends that certain employees who handled the September 28, 2009, letter—Johnson, Madl, and Clouse—“unequivocally had charge and control over handling claims against Douglas County.” But none of the employees' job descriptions demonstrate that these employees are responsible for handling claims against the County or otherwise involved in making the decision to grant or deny these claims. In addition, the September 28, 2009, notice of claim letter was not addressed to the attention of any of these individuals.
Next, Meara contends that the County acted through Travelers because the County delegated charge and control over settling claims to Travelers and Travelers had all the information required by K.S.A.2009 Supp. 12–105b(d) prior to denying the claim. Travelers, as the County's insurer, participates in the processing and payment of claims against the County. But there is no evidence in the record, and Meara cites to none, to support his assertion that the County actually delegated to Travelers the power to settle claims made against the County. And even if it had, the notice of claim letter was not served on, or addressed to, Travelers.
3. The County Clerk
K.S.A.2011 Supp. 12–105b(d) provides that a notice of claim must be served on “the clerk or governing body of the municipality.” Meara admits that he did not serve his notice of claim upon the Douglas County Clerk but argues that the statute does not require the notice of claim to be served on the “county clerk” and that service on any clerk is sufficient. He reasons that the three county employees who received the letter—Johnson, Madl, and Clouse—have acted as clerks within their positions for the County and therefore could be considered “clerks.”
The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. Our first task is to ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. Redd v. Kansas Truck Center, 291 Kan. 176, 188, 239 P.3d 66 (2010). Only if the statute's language or text is unclear or ambiguous do we move to the next analytical step, applying canons of construction or relying on legislative history to construe the statute to effect the legislature's intent. Phillips v. St. Paul Fire & Marine Ins, Co., 289 Kan. 521, 525, 213 P.3d 1066 (2009).
The term “clerk” is not defined in K.S.A.2011 Supp. 12–105b or elsewhere in the KTCA. The role of a county clerk is described in K.S.A. 19–301 et seq. , but does not mention K.S.A.2011 Supp. 12–105b(d) or otherwise reference the KTCA. Meara notes that K.S.A.2011 Supp. 60–304(d)(1) makes specific reference to service on a “county clerk” and argues that if the legislature had intended only the person holding the title of “county clerk” to receive written notices of tort claims against Kansas counties, then the legislature would have included appropriate references within the statutes.
Meara's argument lacks merit. K.S.A.2011 Supp. 60–304(d)(1) makes specific reference to a “county clerk” because it discusses the appropriate methods of service of process on a county, providing that service of process may be made upon “[a] county, by serving one of the county commissioners, the county clerk or the county treasurer.” K.S.A.2011 Supp. 12–105b(d), however, is not unique to counties, but instead discusses service of notice of claims on municipalities in general. The statute does not separately detail the appropriate method of service for each particular type of municipality; therefore, specific reference to a “county clerk” is not warranted. A plain reading of the service provision of K.S.A.2011 Supp. 12–105b(d) indicates that notice of a claim against a county must be served on “the clerk or governing body of the [county],” i.e., the county clerk or the board of county commissioners.
Nevertheless, Meara contends that the statute does not require a notice of claim to be filed with the county clerk personally but that it can be filed with other individuals who perform clerical functions. Meara argues that Johnson, Madl, and Clouse—the county employees who handled his notice of claim letter—performed duties consistent with that of a clerk. Specifically, Meara notes: (1) Johnson, a Public Works administrative officer, acted as a clerk for the County because she affixed a file stamp to the notice of claim letter and distributed it; (2) Madl, an assistant county administrator in the Administrative Services Division, forwarded the claim to Travelers; and (3) Clouse, a management information analyst in the Administrative Services Division, provided “assistance and coordination for the risk management functions.”
Meara cites to Steed v. McPherson Area Solid Waste Utility, 43 Kan.App.2d 75, 221 P.3d 1157 (2010), for the proposition that substantial compliance with K.S.A.2011 Supp. 12–105b(d) may be effectuated where service is made upon “someone who served in a role consistent with that of a clerk.” Steed was involved in a car accident with a vehicle owned by the McPherson Area Solid Waste Utility and filed a notice of claim with the Utility's office manager, Mary Pywell. Pywell's official title was office personnel and finance manager of the Utility, and she was also responsible for human resources. Pywell forwarded the notice to the general manager of the Utility, who then forwarded the notice to the Utility's board of directors. Steed later sued the Utility. The Utility moved for summary judgment on the basis that the plaintiff did not comply with the notice requirements of K.S.A. 12–105b because he did not serve the clerk or the governing body of the Utility. The district court denied the motion, finding that the plaintiff had substantially complied with the statute because the Utility did not have an expressly designated clerk and Pywell's job duties made her the de facto clerk. A panel of this court affirmed the district court's decision, holding that service on Pywell, who “served in a role consistent with that of a clerk,” constituted substantial compliance with K.S.A. 12–105b(d). 43 Kan.App.2d at 86.
Steed is readily distinguishable from the present case. Unlike the Utility in Steed, the County has an identifiable clerk and governing body. Additionally, the record reflects that Johnson, the employee on who Meara's notice of claim was served, worked as an administrative officer with the Public Works Department. Her job duties included: “[p]rovide reception support, open mail and distribute to staff, file, schedule meetings and draft correspondence.” The record does not support Meara's suggestion that Johnson served as the County's de facto clerk or that Johnson, Madl, or Clouse were “subordinates” of the County Clerk. Rather, it appears that Johnson simply received the letter because she opened the mail, while Madl and Clouse received the letter when it was subsequently distributed to various county employees.
Finally, Meara attempts to distinguish Myers based on the fact that it involved a notice letter that was served upon a county counselor, not a clerk. But the Myers court held:
“Allowing a claimant to serve notice on a county counselor or anyone else who is not the ‘clerk or governing body of the municipality’ as specified in K.S.A.2004 Supp. 12–105b(d) would violate the clear language in K.S.A.2004 Supp. 12–105b. The ‘substantial compliance’ language does not authorize the court to create new methods of serving notice of claim. [Citations omitted.]” (Emphasis added.) 280 Kan. at 877.
Adopting Meara's reasoning to include any clerk or anyone who performed clerical duties as an acceptable person on whom to serve a notice of claim on a county would create a new method of service, contrary to the plain language of K.S.A.2011 Supp. 12–105b(d) and the holding in Myers. See 280 Kan. at 877.
4. Information provided to Travelers
Meara argues that analysis of his notice of claim should not be limited to the September 28, 2009, letter, reasoning that multiple writings can constitute substantial compliance with the statutory notice requirements. He points to the records and documents he provided to Travelers as evidence that the County was aware of his claim and had sufficient information from which to adequately investigate the claim. For support, Meara relies primarily on Sleeth v. Sedan City Hospital, No. 105,876, 2012 WL 402018 (Kan.App.2012) (unpublished opinion).
But Sleeth is not helpful to Meara's argument and has no bearing on the controlling issue in this case. To the extent that the Sleeth court considered multiple writings in analyzing whether a party substantially complied with K.S.A.2011 Supp. 12–105b(d), it did so in determining whether the content of the notice of claim complied with the statute, not in deciding whether the notice was served on the proper party. Sleeth, 2012 WL 402018, at *5–7. A notice of claim is required to include the name and address of the claimant and the claimant's attorney; a statement of the factual basis of the claim; the name and address of any public officer or employee involved; a statement of the nature and extent of the claimed injury; and a statement of the amount of requested monetary damages. These requirements are separate and distinct from the requirement that the notice must be served on “the clerk or governing body of the municipality.” K.S.A.2011 Supp. 12–105b(d). Thus, even if the content of Meara's notice of claim substantially complied with the statutory requirements, it does not remedy his initial failure to serve the notice of claim on the County Clerk or the Board of County Commissioners.
Moreover, the County's actual notice of the claim is irrelevant. The claimant in Myers raised a similar argument by alleging that service on the county counselor was sufficient because the objective of the statute had been met, as the Board was advised of his claim, including the time and place of his injury, and the Board also had the opportunity to ascertain the character and extent of his injury because it denied his claim. The Myers court rejected this argument, stating: “If this court concludes that Myers' notice substantially complies with K.S.A.2004 Supp. 12–105b because the Board issued a decision regarding the merits of Myers' claim, we would establish a new, judicially created method of serving notice beyond the methods established by the legislature in K.S.A.2004 Supp. 12–105b.” 280 Kan. at 875.
In sum, we hold K.S.A.2011 Supp. 12–105b(d) requires a notice of claim against a county to be served on the county clerk or the board of county commissioners. Jamie Shew, the Douglas County Clerk, signed an affidavit attesting to the fact that neither he nor the Board of County Commissioners received notice of Meara's claim prior to receiving a copy of Meara's petition on July 6, 2011. Kansas appellate courts have found substantial compliance with the notice of claim statute in limited situations, including where the municipality at issue has no designated clerk or readily ascertainable governing body or where service is made upon one who has “charge and control” over the municipal entity. See, e.g., Orr, 270 Kan. at 114–15;Steed, 43 Kan.App.2d at 86. Neither of these exceptions applies here. Because Meara's notice of claim letter served on the Public Works Department failed to literally or substantially comply with K.S.A.2011 Supp. 12–105b(d), the district court lacked jurisdiction over his claims against the County. As a result, the district court's decision to grant summary judgment in favor of the County was proper. B. Waiver and Equitable Estoppel
Meara contends that the doctrines of waiver and/or equitable estoppel should apply to prevent dismissal of his claim for failing to comply with K.S.A.2011 Supp. 12–105b(d). The parties presented argument on this issue below, but the district court did not address it in its ruling, apparently rejecting it. See Shaffer v. City of Topeka, 30 Kan.App.2d 1232, 1236, 57 P.3d 35 (2002) (“We interpret the district judge's silence on this issue and his grant of summary judgment to the City to mean he rejected plaintiffs' attempt to apply the equitable estoppel doctrine.”).
Where, as here, there are no material facts in dispute, the application of the doctrines of waiver and equitable estoppel are reviewed for an abuse of discretion. See Fleetwood Enterprises v. Coleman Co., 37 Kan.App.2d 850, 864, 161 P.3d 765 (2007) (“the district court has discretion whether to invoke the equitable estoppel doctrine”); Shaffer, 30 Kan.App.2d at 1236 (“The application of an equitable doctrine rests within the sound discretion of the district court.”). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable or is guided by an erroneous legal conclusion. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011).
1. Waiver
Meara contends that Travelers waived the statutory notice of claim requirements based on its communications with him between October 27, 2009, and March 24, 2011, reasoning that Travelers never questioned Meara about the sufficiency of the September 28, 2009, letter prior to the filing of the lawsuit.
But Meara provides no support for his assertion that Travelers had the legal ability to waive the statutory notice of claim requirements on behalf of the County. In fact, the County itself could not waive the notice of claim requirements. K.S.A.2011 Supp. 12–105b(d) is “designed to protect taxpayers as well as officers of the municipality involved,” and “serious consequences could occur” if the statute was subject to waiver. Zeferjohn, 26 Kan.App.2d at 381–82. Waiver is not allowed even when the municipality suffers no prejudice from the lack of proper service of the notice of claim. 26 Kan.App.2d at 381.
Additionally, K.S.A.2011 Supp. 12–105b(d) is a “jurisdictional prerequisite” to commencing suit. Gessner v. Phillips County Comm'rs, 270 Kan. 78, Syl. ¶ 1, 11 P.3d 1131 (2000); Myers, 280 Kan. at 877 (“If the statutory requirements are not met, the court cannot acquire jurisdiction over the municipality.”). Parties may not confer subject matter jurisdiction on a court by waiver. See Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 814, 987 P.2d 1096 (1999); but see Sleeth, 2012 WL 402018 (plurality opinion reflecting disagreement over whether failure to meet requirements of K.S.A.2011 Supp. 12–105b[d] implicates personal jurisdiction or subject matter jurisdiction).
Because the requirements of K.S.A.2011 Supp. 12–105b(d) are not subject to waiver, the district court did not abuse its discretion in declining to find waiver existed here.
2. Equitable estoppel
The equitable estoppel doctrine “ ‘is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. [Citation omitted.]’ “ Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources, 272 Kan. 265, 276, 32 P.3d 1146 (2001). A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed, and it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 116, 991 P.2d 889 (1999). A party asserting application of the equitable estoppel doctrine against a government must prove:
“ ‘ “(1) The party to be estopped must know the facts; (2) he [or she] must intend that his [or her] conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he [or she] must rely on the former's conduct to his [or her] injury.” ‘ [Citation omitted.] (quoting Allen v. United States, 630 F.Supp. 367, 371 [D. Kan.1984] ).” Shaffer, 30 Kan.App.2d at 1237.
Meara contends that Travelers—and by extension, the County—believed as early as February 2010 that the content of Meara's notice of claim was defective and that the claim could be defended on the basis that the County had no prior knowledge of the sinkhole, yet it waited more than a year to deny Meara's claim. Meara concedes that Travelers had no affirmative duty to advise him that his notice of claim letter was defective but suggests that by not denying his claim sooner, Travelers purposefully misled him in order to avoid liability on procedural grounds.
Meara's argument is without merit. The record reflects that during Travelers' initial discussions with the County in February 2010, the County indicated that it did not have any knowledge of the sinkhole prior to Meara's accident. Meara suggests that this information must mean that Travelers knew then that the claim would be denied on this basis, yet chose to continue communicating with Meara and led him to believe the claim would be settled. But there is nothing in the record to support Meara's assertion. Instead, it appears that Travelers received the information about the County's lack of knowledge during its initial investigation and that this information simply reflected the County's interpretation, not any conclusion reached by Travelers with respect to the validity of Meara's claim. The record does not include Travelers' complete file, and as such, it is impossible to know what Travelers' investigation involved between February 2010 and its denial of Meara's claim in March 2011. But the fact that Travelers made note of the County's defense during its initial investigation appears to refute Meara's assertions that Travelers had decided in February 2010 to deny his claim on this basis or that Travelers purposefully delayed its investigation so that his claim would ultimately be dismissed on procedural grounds.
Meara has the burden to designate a record sufficient to establish the claimed error; without such a record, his claim of error fails. Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008). As a result, the district court did not abuse its discretion in rejecting Meara's attempt to invoke the doctrine of equitable estoppel.
Affirmed.