Opinion
111,813.
05-29-2015
Eva AYALLA, Appellant, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, Kansas City, Kansas, and J .M. Fahey Construction Company, Appellees.
Eva Ayalla, of Mission, appellant pro se. Michael A. Childs, of Law Offices of Daniel P. Hanson, of Overland Park, for appellee J.M. Fahey Construction Company.
Eva Ayalla, of Mission, appellant pro se.
Michael A. Childs, of Law Offices of Daniel P. Hanson, of Overland Park, for appellee J.M. Fahey Construction Company.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eva Ayalla appeals the district court's dismissal of her petition against the Unified Government of Wyandotte County, Kansas City, Kansas (the County), and the J.M. Fahey Construction Company (Fahey). On appeal, Ayalla claims the district court erred by: (1) finding that she failed to comply with the notice requirements of K.S.A.2014 Supp. 12–105b ; (2) dismissing her petition due to deficiencies in her expert witness' report; and (3) finding that her petition failed to allege inverse condemnation. We find no error and affirm.
Following a repaving project carried out by the defendants on the street in front of Ayalla's property in July 2010, Ayalla claimed that thereafter her driveway would flood after moderate rainfalls, thereby obstructing her access to the property and creating a hazard when the water would freeze. On May 12, 2012, Ayalla filed a claim for damages with the County seeking an “unknown” amount of damages and further stating that she believed the damage was “irreparable, permanent, and [would] result in a loss of value to [her] home.” When the County failed to satisfy her claim, Ayalla brought this action in the district court, alleging damages in excess of $30,000 due to the loss of her property's value.
Over the course of discovery, Ayalla attempted several times to designate an expert witness, but those efforts failed due to procedural and substantive deficiencies in her designations. After the deadline for designating an expert witness had passed, Ayalla filed another expert witness designation, and the defendants successfully moved to strike the designation as untimely and incomplete.
Thereafter, Fahey filed a motion for summary judgment which argued that Ayalla's claim against it failed as a matter of law because she could not show duty, breach of duty, or causation without expert testimony.
Ayalla then sought leave to amend her petition by: (1) expanding on her damages allegations; (2) adding claims regarding a second contractor that worked for the County on a sewer project; (3) claiming inverse condemnation of her property; (4) asserting a theory of res ipsa loquitur; and (5) seeking punitive damages. She also opposed Fahey's motion for summary judgment by generally agreeing with its statement of facts but expanding on those facts in an attempt to show that summary judgment should not be granted.
The County moved for summary judgment based on the same argument made by Fahey and also asserting that Ayalla's claim was time barred by the statute of limitations because she had failed to state the amount of her damages in her notice to the County as required by K.S .A. 12–105b.
Ayalla's response to the County asserted that she was still trying to designate an expert witness for trial. She also asserted that she had substantially complied with the notice requirements of K.S.A. 12–105b despite the fact that she could not determine her precise damages at the time she filed the notice.
At a hearing on December 10, 2013, the district court gave Ayalla 7 days to get a report from her intended expert that addressed the standard of care the defendants were required to meet and any claimed deviation from the standard. Her proposed expert's initial report only addressed causation. The district court also ordered Ayalla to revise her proposed amended petition to exclude any claims regarding a second contractor and ordered her to refile her motion seeking leave to amend.
On December 16, 2013, without seeking leave to amend as the court had ordered, Ayalla filed a second amended petition which excluded claims regarding the second contractor and additionally alleged diminution of property value, a constitutional taking, breach of fiduciary duty, a violation of the Kansas Open Records Act, and inverse condemnation.
At an initial hearing on the summary judgment motions, held December 20, 2013, the district court conditionally granted the defendants' motions, but it allowed Ayalla 7 more days to get an amended report from her proposed expert addressing the standard of care and the defendants' deviation therefrom. The court also warned Ayalla that any report which did not address those points would result in the dismissal of her petition, as she could not show negligence without that evidence.
On December 26, 2013, Ayalla filed an amended report from her proposed expert which opined that the defendants did not meet the standard of care necessary for the repaving project, but the report failed to set out the standard of care or to show how the defendants deviated from that standard. Fahey immediately asked the district court to confirm summary judgment based on the report's deficiencies. Fahey also argued that the report was flawed because the proposed expert drew his conclusions from a survey that would be inadmissible hearsay at trial, as Ayalla had failed to designate the surveyor as a witness at trial.
After hearing arguments at a hearing conducted on February 24, 2014, the district court granted summary judgment as to both defendants and dismissed Ayalla's petition with prejudice because she did not comply with K.S.A. 12–105b by stating the amount of her damages before filing suit against the County, and she failed to timely and adequately comply with K.S.A. 60–226 by designating an expert witness to opine on the applicable standard of care of each defendant and how each defendant breached that standard.
Ayalla moved the court to reconsider its decision, and the district court denied the motion after a hearing. She also moved the district court for a new trial, and that motion was summarily denied.
Ayalla's first argument on appeal asserts that the district court erred by dismissing her claims against the County for lack of compliance with the notice requirements found in K.S.A.2014 Supp. 12–105b(d). She maintains that she substantially complied with the requirement by asserting that her damages were “loss of value to [her] home.”
When the contents of the purported notice pursuant to K.S.A.2014 Supp. 12–105b(d) are uncontroverted, whether the notice substantially complied with the requirements of that statute is a question of statutory interpretation over which we exercise de novo review. Compliance with the written notice requirements is a prerequisite to filing a petition seeking relief in the district court, and failure to comply precludes such relief. Continental Western Ins. Co. v. Shultz, 297 Kan. 769, 774, 304 P.3d 1239 (2013).
K.S.A.2014 Supp. 12–105b(d) states, in pertinent part:
“Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. 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.” (Emphasis added.)
When considering whether a notice substantially complies with the requirements found in K.S.A.2014 Supp. 12–105b(d), the Kansas Supreme Court has held that “substantial compliance means” “ “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” “ “ “ 297 Kan. at 775 (quoting Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 [2009] ). Further,
“the question of compliance is not based upon a ‘mechanical counting’ of information addressing each enumerated category in the statute. Instead, notice is sufficient if it gives the municipality what it needs for a ‘full investigation and understanding of the merits of the claims advanced.’ [Citations omitted.] This is achieved when the notice advises the municipality of the time and place of the injury, affords the municipality an opportunity to ascertain the character and extent of the injury sustained, and allows for the early investigation and resolution of claim disputes. [Citation omitted.]” Sleeth v. Sedan City Hospital (Sleeth II), 298 Kan. 853, 865, 317 P.3d 782 (2014).
Here, Ayalla submitted a claim for damages to the County on May 12, 2012. Question 4 on the form requested the amount of damages sought, and Ayalla responded, “unknown.” In an attached letter dated May 7, 2012, wherein Ayalla provided further details about her claim, she stated, “I believe the damage is irreparable, permanent, and will result in a loss of value to my home.... I am uncertain as to the amount of damages and I don't know if a solution can be found....” She did not provide the County with any information about the value of her home before or after the repaving project or any other information that would help the County ascertain her alleged damages.
The amount of damages claimed is essential for compliance with the notice statute. See Sleeth v. Sedan City Hospital (Sleeth I), No. 105,876, at *6, 2012 WL 402018 (Kan.App.2012) (unpublished opinion), rev'd on other grounds 298 Kan. 853 (2014). Ayalla asks us to conclude that her notice substantially complied with the statute because her attached letter makes “[s]ome mention of damages or the value of the claim.” But Ayalla's argument ignores both the plain language of K.S.A.2014 Supp. 12–105b(d)(5) —which requires a statement of the amount of monetary damages being requested—and a companion statute relating to claims against municipalities. See Sleeth II, 298 Kan. at 866. In the definition statute preceding K.S.A.2014 Supp. 12–105b, a “claim” is defined as
“the document relating to and stating an amount owing to the claimant by a municipality for material or service furnished to the municipality, or some action taken by or for the municipality and for which the municipality may or may not be responsible in a liquidated or an unliquidated amount.” (Emphasis added.) K.S.A.2014 Supp. 12–105a(c).
Our Supreme Court has held that some mention of damages or the value of the claim is essential “because it is impossible for a municipality to evaluate what is at stake without any indication as to what the claimant wants.” Sleeth II, 298 Kan. at 866.
By definition, one cannot have a “claim” for payment under this statute when the amount is unknown. The municipality could not possibly make payment if the amount is unstated. Absent some accounting of her perceived damages, Ayalla failed to provide a highly pertinent piece of information about her claim, which ultimately meant that the County was not apprised of the extent of Ayalla's claimed injury. When a notice of claim lacks any statement of monetary damages claimed against the municipality, the notice cannot reasonably be seen as complying with K.S.A.2014 Supp. 12–105b's objective or requirements. Sleeth II, 298 Kan. at 866.
Here, Ayalla made reference to having been damaged but did so without any specificity. When reading her notice of claim in conjunction with her attached letter, one can come to two possible conclusions. One is that she experiences temporary standing water in front of her driveway after a storm, and her damages are minor. But Ayalla's letter also referred to this problem as “irreparable,” “permanent,” and possibly without a solution. So her notice could also be read as indicating that she suffered significant but undefined damages. We must determine whether her mention of damages and loss of home value was sufficiently detailed to comply with the statute. We conclude the notice was insufficient.
This court has previously determined that a notice of claim did not substantially comply with K.S.A.2014 Supp. 12–105b when the amount of damages claimed in the notice differed from the amount of damages demanded in the petition. See Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan.App.2d 379, 383, 988 P.2d 263 (1999) (holding that where the notice of claim stated monetary damages in the amount of $15,000 but the petition sought damages in excess of $50,000, the notice was insufficient and failed to substantially comply with K.S.A. 12–105b [d] ). But the Kansas Supreme Court later referred to that finding as dicta because this court had disposed of the substantial compliance issue on other grounds. See Continental Western, 297 Kan. at 776–77. In Continental Western, substantial compliance with the notice requirement was found despite an amended petition asking for damages greatly in excess of those included in the notice of claim because the original petition sought damages in conformance with those requested in the notice of claim. 297 Kan. at 775–78.
Unlike here, both of those cases involved notices of claims that included actual dollar amounts. Nevertheless, the Zeferjohn and Continental Western opinions are helpful. As was done in those cases, we have looked at the notice of claim versus the petition Ayalla filed in the district court to determine whether the County was adequately put on notice about the damages sought in the petition.
Even if we assume for the sake of argument that Ayalla's notice of claim and attached letter make an appropriate claim for damages despite lacking a dollar figure, her subsequent petition sought damages in excess of $30,000 for what is, by her own description, a large puddle at the end of her driveway. Despite her catastrophic language, the County was not put on notice that her claim would subject it to damages in excess of $30,000. Therefore, we find that Ayalla did not substantially comply with the notice requirement of K . S.A.2014 Supp. 12–105b(d) because she failed to state the amount of monetary damages she was requesting in her claim. Accordingly, the district court lacked jurisdiction as to the County, and dismissal with prejudice of the claims against the County was proper.
Ayalla makes an additional argument that her notice should be deemed sufficient because the County was able to investigate her claim before denying it. She also asserts that she should not have to comply with the notice of damages provision because to do so would be futile as the County has claimed it is not liable for increased surface water. We are not persuaded by these arguments. Ayalla had to substantially comply with K.S.A.2014 Supp. 12–105b, and her failure to do so deprived the district court of subject matter jurisdiction. See Sleeth II, 298 Kan. at 871. Further, parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012).
Ayalla's next argument concerns the district court's determination that her expert's report was insufficient to support her claim of negligence and was based upon inadmissible hearsay. To support this allegation, she asserts that (1) the defendants could have deposed her proposed expert to clarify his report; (2) the district court's finding that her expert's report relied on inadmissible hearsay because it referenced a survey done by someone else conflicts with K.S.A. 60–461 ; and (3) Fahey is precluded by the doctrine of invited error from objecting to the admissibility of the survey at issue here because it complained in its motion for summary judgment that she did not have a survey.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). The burden is on the moving party to demonstrate that no genuine issue of material fact exists when the record is viewed in a light favoring the nonmoving party. Crooks v. Greene, 12 Kan.App.2d 62, 64, 736 P.2d 78 (1987). When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a disputed material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. These same rules apply on appeal. Summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. O'Brien, 294 Kan. at 330.
Summary judgment should be granted with caution in negligence actions. However, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P .3d 1047 (2007). After adequate time for discovery and upon motion, summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. In that situation there can be no genuine issue as to any material fact because “ ‘a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.’ “ Crooks, 12 Kan.App.2d at 64–65 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 [1986] ).
For a negligence action, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causation between the duty breached and the injury suffered. Legleiter v. Gottschalk, 32 Kan.App.2d 910, 913, 91 P.3d 1246, rev. denied 278 Kan. 846 (2004). The duty of a professional in a negligence action is described in the pattern jury instruction: “In performing professional services, (a)(an) ____ has a duty to use that degree of care and skill which would be used by a reasonably competent ____ providing similar services (in the same community or similar communities) and acting in similar circumstances.” PIK Civ. 4th 123.70. Accordingly, to maintain a claim of negligence, a plaintiff must establish the existence of a duty, otherwise known as the standard of care. Generally, when plaintiffs are attempting to establish negligence based upon a departure from the reasonable standard of care in a particular profession, expert testimony is required to establish such a departure. Moore v. Associated Material & Supply Co., 263 Kan. 226, 234–35, 948 P.2d 652 (1997).
Here, the district court gave Ayalla multiple chances to designate an expert witness to help her establish her claim. When she finally obtained her expert's report just prior to the close of discovery, the report did not state the standard of care the defendants had to meet when repaving her street, nor did it state how either defendant deviated from that standard.
The district court granted her even more time to get the report amended to include that information, and the court went to great pains to explain why that information was necessary. Ayalla was amply warned that, absent such expert testimony, her claim of negligence would fail. Ayalla then attempted to argue that expert testimony was not needed here, but she does not make that argument on appeal so it is considered waived. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Eventually, Ayalla submitted a second report from her proposed expert which relied on a survey conducted by someone other than the proposed expert, and in the second report the expert concluded that the defendants did not meet the standard of care required for the repaving project. But the report failed to state what that standard of care was or how the defendants deviated from the standard. In short, her expert's report failed to establish negligence.
Ayalla's argument that the defendants could have deposed her expert in order to get more information is without merit. As the plaintiff, she bore the burden of establishing her claim. See Yount v. Deibert, 282 Kan. 619, 628–29, 147 P.3d 1065 (2006) (discussing a plaintiffs burden of proof regarding causation). Additionally, K.S.A.2014 Supp. 60–226(b)(6) states that a party must disclose the identity of any experts he or she plans to use at trial, and this disclosure must include not only the subject matter on which the expert will testify, but also “the substance of the facts and opinions to which the expert is expected to testify.” A litigant may not lie in the weeds and withhold the essential grounds for an expert's ultimate opinion and expect the opposing party to tease those facts out during the expert's deposition without any advance notice of the expert's opinions on essential matters such as the standard of care and the opposing party's breach of the standard. Under the present circumstances, the failure of Ayalla to disclose her expert's opinions on these essential elements of her claim, we conclude that summary judgment was appropriate, even without considering the inadmissibility of the survey.
In that regard, Ayalla's reliance on K.S.A. 60–461 to demonstrate that the district court erred by concluding that the survey was inadmissible hearsay is misplaced. That statute says that any writing admissible under the hearsay exceptions for the content of an official record, a certificate of marriage, records of documents affecting an interest in property, and a certified motor vehicle certificate of title history can be received only if the party offering the writing has delivered copies to the adverse parties. The survey is not an official record, a certificate of marriage, records of documents affecting an interest in property, or a certified motor vehicle certificate of title history. Ayalla also cites the Federal Rules of Evidence to support her argument, but the federal rules are inapplicable here. Nonetheless, it appears Ayalla was trying to argue that the survey was admissible despite being hearsay because it was relevant and the defendants had notice of the survey.
Undoubtedly the survey was relevant here, but it would have been inadmissible hearsay at trial as Ayalla never indicated that she planned to call the surveyor to testify about it. See K.S.A. 60–460. Under K.S.A. 60–456(b), “[i]f [a] witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are ... based on facts or data perceived by or personally known or made known to the witness at the hearing ....“
Here, the survey contained information that was certainly not perceived by Ayalla's proposed expert or personally known by him. It was information prepared by another source. The Kansas Supreme Court has held that an expert's reliance for his or her testimonial opinion based upon “ ‘information prepared by other sources' “ and “ ‘data obtained from other sources' “ constitutes an opinion based upon hearsay and is inadmissible. State v. Gonzalez, 282 Kan. 73, 93–94, 145 P.3d 18 (2006). Thus, Ayalla's proposed expert would have been precluded from offering opinions based on the survey at trial unless the survey was properly placed in evidence. To do that, Ayalla would have had to call the surveyor to testify about the report, which she indicated she did not plan to do. Accordingly, the district court did not err here.
Finally, Ayalla misapplies the doctrine of invited error, which holds that a party cannot invite an error and then complain about it on appeal. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203–04, 308 P.3d 1238 (2013). Thus, a party cannot lead the court to make a mistake of fact or law and then complain about that mistake on appeal. It does not mean that an adverse party waives its objections to evidence simply by pointing out that such evidence was lacking. Fahey may have mentioned that Ayalla did not have a survey to support her claim, but any survey she procured was still subject to the rules of evidence. Summary judgment was appropriate here.
For her next argument, Ayalla claims that the district court erred by failing to interpret her petition as a claim for relief under Kansas' eminent domain laws. She asserts that her allegations of negligence, nuisance, and interference with access and normal use of property, plus her stated damages of “ ‘loss of value,” ‘ resulted in a takings claim.
Ayalla did not point this court to any place in the record where the district court found that her petition did not state a claim of inverse condemnation, and the journal entry of dismissal does not make this finding. Ayalla was required to provide this court with a pinpoint citation to the record on appeal showing where this issue was raised and ruled on at the district court. See Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40). Nonetheless, the record does show that she did attempt to assert a claim of inverse condemnation as the discovery period drew to a close, and the district court's dismissal of her case implies that it declined to allow her to proceed on that theory, so we will address this issue on its merits.
Ayalla proceeded pro se. “While pro se pleadings are to be liberally construed so that relief may be granted if warranted by the facts alleged, this simply means that the substance of the pleading controls over its label.” In re Estate of Broderick, 34 Kan.App.2d 695, 701, 125 P.3d 564 (2005).
“A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se.” Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595–96, 730 P.2d 1109 (1986).
Whether a district court correctly construed a pro se pleading is a question of law subject to unlimited review. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).
Ayalla did not seek leave to file her amended petition as the court directed her to do. Thus, because Ayalla did not successfully amend her petition, our review of this issue looks only to the contents of her original petition.
The first numbered paragraph of the petition states that it is being brought pursuant to the Kansas Tort Claims Act (KTCA). The petition then alleges that the defendants repaved the road in front of her house and, as a result, her driveway now floods after precipitation. She alleges that her property value has decreased as a result and alleges that the remedy to the problem—raising her garage door 6 inches—would prevent normal use of the premises. She then prays for relief from the “negligence of the defendants causing a permanent, ongoing nuisance that adversely affects the value and use of [her] home.” It is clear from the pleading that Ayalla's lawsuit was brought in tort based on negligence and nuisance. The district court did not misconstrue the pleading.
Even if the district court had allowed Ayalla to proceed with this case as an action for inverse condemnation, she would not have survived summary judgment from the County. Fahey would not have been a party to such an action, as inverse condemnation is an action brought against a governmental entity by a private party when that person's real property interest has been taken by the government for public use in the absence of formal condemnation proceedings by the government. Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 559, 215 P.3d 561 (2009). In regard to any claim against the County, whether there has been a compensable taking is a question of law subject to unlimited review. See 289 Kan. at 559.
In this case, while there may have been a dispute between the parties about the amount of damage suffered by Ayalla, there was no dispute as to any material fact of the kind of damage suffered. If that kind of damage is not compensable as a taking, Ayalla's claim of inverse condemnation would fail as a matter of law.
Under K.S.A. 26–513(a), a condemning authority must provide just compensation for property that is taken or damaged for public use. Not all property damage is compensable through our eminent domain laws. 289 Kan. at 568. In order to be compensable under eminent domain proceedings, the damage must be the planned or inevitable result of government action undertaken for public benefit. 289 Kan. at 569. Tangential or consequential damages do not require compensation and are more appropriately addressed in the realm of tort law. 289 Kan. at 569.
Ayalla has not alleged that the county planned to damage her property or that the damage was the inevitable result of the County's repaving project. The flooding to her driveway is an unplanned consequence of the repaving and thus is not compensable as a taking. Had the district court allowed Ayalla to proceed against the County on an inverse condemnation claim, that claim would have failed as a matter of law.
Finally, Ayalla argued in her appellate brief that she should have been allowed to proceed with her case under a theory of res ipsa loquitur, and she alleged prejudice, abuse of discretion, manifest injustice, and bias by the district court. We decline to address these arguments for several reasons. First, her briefing of these arguments violated Supreme Court Rule 6.02(a)(3) (2014 Kan. Ct. R. Annot. 40) because she did not specifically designate these arguments as issues being raised on appeal. She also failed to provide this court with a pinpoint citation to the record on appeal where these issues were raised and ruled on at the district court as required by Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40.) Additionally, an issue not briefed by an appellant is deemed waived and abandoned. Superior Boiler Works, 292 Kan. at 889. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Ayalla's arguments on these matters were wholly unsupported by pertinent authority, thus we deem them waived and abandoned.
In a reply brief, Ayalla attempted to cure the deficiencies of her res ipsa loquitur and bias arguments by designating res ipsa loquitur as an issue and expanding on both arguments. But a reply brief is an inappropriate vehicle for raising additional issues. It violates Supreme Court rules and denies the appellees the opportunity to respond to those issues. In re Marriage of Powell, 13 Kan.App.2d 174, 177, 766 P.2d 827 (1988), rev. denied 244 Kan. 737 (1989). Additionally, Supreme Court Rule 6.05 (2014 Kan. Ct. R. Annot. 48) precludes an appellant from filing a reply brief unless is it made necessary by new material contained in the appellee's brief. A reply brief also is not intended to be used to reiterate arguments from the initial brief or get in the last word. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 895–96, 166 P.3d 1047 (2007). Ayalla's arguments in her reply brief did not address anything new raised by the defendants; she merely reiterated and expanded upon her initial arguments, again without providing any authority that was on point. Accordingly, we have not considered these arguments.
Affirmed.