State ex rel. Bremby v. Lindemuth, Inc.

Green, J.: In this civil enforcement action, Lindemuth, Inc., appeals the trial court’s decision to enforce the administrative order entered by the Kansas Department of Health and Environment (KDHE). On appeal, Lindemuth argues that the trial court erred in finding that die term “accounting” is synonymous with the term “invoice.” We disagree. Accordingly, we affirm. — 387 — Administrative Action On July 23, 2004, KDHE issued an Administrative Order that required Lindemuth to reimburse “Response Costs” to KDHE within 30 days from receipt of an accounting. The Order defined “Response Costs” as follows: “[A]ll costs, including direct costs, indirect costs, enforcement costs and accrued interest incurred by (or on behalf of) KDHE to perform or support response actions at the Site. Response costs include, but are not limited to, the costs of overseeing work at the Site, such as the costs of reviewing plans, reports and/or other items pursuant to this Order and costs associated with verifying the implementation of this Order.” The Administrative Order allowed for Lindemuth to request a hearing to appeal the Order, which Lindemuth did not do. KDHE periodically sent Lindemuth invoices for these response costs. Lindemuth complied with the Order from 2004 through 2007 and paid each invoice without any objection. After Lindemuth failed to pay the invoices from January 1, 2008, through August 15, 2009, KDHE sent demand letters to get Lindemuth to comply with the Order. KDHE and Lindemuth attempted to negotiate a payment plan, but Lindemuth failed to comply with the plan. As a result, on October 21, 2009, KDHE filed a petition for civil enforcement of final agency action. Trial Court Action KDHE filed a brief in support of its petition on March 26,2010. Lindemuth filed a response brief on April 21, 2010, and KDHE filed a reply on April 27, 2010. Lindemuth argued that KDHE failed to provide proper accounting as required by the Order and, therefore, KDHE should not be allowed to collect based on the invoices alone. Lindemuth maintained that the invoices it received did not qualify as an accounting, which it was entitled to under the Order. The trial court disagreed with Lindemuth and ordered Lindemuth to pay the outstanding invoices. The trial court found that based on the plain language of the Order, the term “accounting,” as intended by KDHE, was synonymous with the term “invoice.” Lindemuth timely appealed the trial court’s memorandum decision and order. — 388 — Whether the Term Accounting” Is Synonymous with the Term “Invoice” Lindemuth argues that it was entitled to an accounting based on the Order and that the additional information that KDHE provided did not comply with the Order. Lindemuth contends that the invoices contained contradictions and were inconsistent, and, therefore, they could not meet the standard of an accounting as required by the Order. Lastly, Lindemuth maintains that the trial court did not have enough evidence to reach a conclusion based on the record alone and that it should have conducted an evidentiary hearing. When an appellate court reviews a trial court’s decision reviewing an agency action, it must first determine whether the trial court followed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as the trial court. See Johnson Co. Developmental Supports v. Kansas Dept. of SRS, 42 Kan. App. 2d 570, 577, 216 P.3d 658 (2009). Neither the appellate court nor the trial court may try the case de novo and substitute its judgment for that of KDHE. See In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 806, 676 P.2d 107 (1984). An appellate court should grant deference to an agency’s interpretation of its own regulations and will not disturb the agency’s interpretation unless it is clearly erroneous or inconsistent with the regulation. See Tonge v. Werholtz, 279 Kan. 481, 484, 109 P.3d 1140 (2005). The issue before us is the interpretation of the term accounting, as used in the Administrative Order, and whether the invoices sent by KDHE comply with the meaning of that term. Although no recent Kansas case has specifically addressed this issue, a similar situation arose in Jones v. Kansas State University, 279 Kan. 128, 106 P.3d 10 (2005), where the parties were arguing over the interpretation of the terms “gross misconduct.” The terms were not defined in the statute so our Supreme Court declined to adopt a single definition for the terms. Our Supreme Court held that although the definition might be one factor to consider, the terms are best defined by their dictionary meanings, within the context of the civil service statute, by reviewing other cases inter — 389 — preting similar terms, and by examining the totality of circumstances. 279 Kan. at 148-51. As no recent Kansas case discusses or interprets the term “accounting” or “invoice,” we examine all of the resources set forth in Jones in resolving this issue. No question exists as to whether Lindemuth received an invoice for KDHE’s services; rather, the critical issue is whether those invoices constitute an accounting of KDHE’s services, as stated in the Order. In support of its argument, Lindemuth directs us to Leslie v. Pine Crest Homes, Inc., 388 So. 2d 178, 182 (Ala. 1980), which cites to Kansas City v. Burns, 137 Kan. 905, 22 P.2d 444 (1933), and Black’s Law Dictionary 17,18 (5th ed. 1979). Bums, however, cites to a Webster’s dictionary definition of the term “accounting” that is no longer current. See Kansas City, 137 Kan. at 912. Because the definition in Bums is outdated, Lindemuth’s reliance on Kansas City and Leslie is misplaced. Currently, Black’s Law Dictionary 22 (9th ed. 2009) defines “accounting” as “[t]he act or a system of establishing or settling financial accounts; esp., the process of recording transactions in the financial records of a business and periodically extracting, sorting, and summarizing the recorded transactions to produce a set of financial records. . . . More broadly, an action for the recovery of money for services performed, property sold and delivered, money loaned, or damages for the nonperformance of simple contracts.” Webster’s defines “accounting” as “[t]he bookkeeping methods involved in malting a financial record of business transactions and in the preparation of statements concerning the assets, liabilities, and operating results of a business.” Webster’s II New Riverside University Dictionary 72 (1984). In addition, Black’s Law Dictionary 904 (9th ed. 2009) defines “invoice” as “[a]n itemized list of goods or services furnished by a seller to a buyer, usu. specifying the price and terms of sale; a bill of costs.” Webster’s defines “invoice” as “[a]n itemized list of goods shipped or services rendered, with an account of all costs.” Webster’s II New Riverside University Dictionary 642 (1984). Application of the dictionary definitions, the caselaw listed earlier, and an examination of the Administrative Order, all support — 390 — the conclusion that the trial court correctly interpreted the term “accounting” to be synonymous to the term “invoice.” Additionally, we draw further guidance from the decision of Johnson Co. Developmental Supports (JCDS), 42 Kan. App. 2d 570, dealing with an agency interpretation. In JCDS, there was a dispute over the agency’s interpretation of the term “known.” 42 Kan. App. 2d at 582. The trial court determined that JCDS was attempting to substitute its interpretation for that of the agency’s. This court affirmed the trial court’s conclusion that in giving deference to the agency’s interpretation, as it was required to do, the trial court properly found the agency’s interpretation to be rational and appropriate. 42 Kan. App. 2d at 583. Our case is similar to JCDS. Like JCDS, Lindemuth is attempting to substitute its interpretation of the term “accounting” for that of KDHE’s interpretation. Also, like JCDS, the trial court gave deference to the agency’s interpretation, when it ruled in KDHE’s favor. Based on the plain language of the Order, the dictionary definitions, and the relevant caselaw, we conclude that the trial court properly upheld KDHE’s interpretation of the term “accounting” in the Administrative Order. Moreover, KDHE’s argument that Lindemutli is estopped from objecting to the invoices has merit. “Estoppel involves an assertion of rights inconsistent with past conduct, silence by those who ought to speak, or situations where it would be unconscionable to permit persons to maintain a position inconsistent with one in which they have already acquiesced.” Schraft v. Leis, 236 Kan. 28, 36, 686 P.2d 865 (1984). Lindemuth acquiesced to the form of the invoices by paying them for years without objection. Lindemuth paid the invoices for 3 years before raising an issue to the adequacy of the invoices. Based on Lindemuth’s past conduct of paying the invoices, it is now estopped from objecting to the invoices. In addition, we reject Lindemuth’s argument that the trial court should have conducted an evidentiary hearing for two reasons: (1) the issue was not raised below; and (2) the parties agreed in the — 391 — case management order that no additional discovery would be allowed and that the case would be decided on the record. Affirmed. * # #