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Gale v. Thomas12/9/1999
the elements of an estoppel is on the party asserting the estoppel. The existence of the elements of an estoppel must be established by the preponderance of the evidence.
Mississippi Dep't of Pub. Safety v. Stringer, 1999 WL 353025, at *4 (Miss. June 3, 1999) (quoting Chapman v. Chapman, 473 So. 2d 467, 470 (Miss. 1985) (citations omitted)).
. Gale's estoppel argument is without merit. Gale makes no allegation and presents no evidence that the City of Jackson misled Gale to believe she need not comply with the notice provisions of the MTCA or that she had already complied with the statute. Neither has Gale asserted that she relied on such a representation or changed her position in reliance thereon. She merely argues that more than three years passed between the time the case was filed and the time the Defendants raise the notice issue on appeal. This is insufficient to create an issue of fact as to estoppel.
. Gale's only viable argument is that by not asserting the notice defense to the trial court, the Appellees waived the defense. The Appellees state that they should be allowed to raise the defense on appeal because this Court has held that the notice requirements of the MTCA are jurisdictional, and, because subject matter jurisdiction may be raised at any time, the Appellees should be allowed to raise the defense even on appeal. It is an accurate statement of the law that a question of subject matter jurisdiction may be presented at any time. See Comment to M.R.C.P. 12(h)(3). It is also true that this Court has stated that the notice requirements of the MTCA are jurisdictional and are a prerequisite to maintaining an action. See, e.g., Stringer, 1999 WL 353025 at *3; Carr, 733 So. 2d at 265; Lumpkin, 697 So. 2d at 1181. However, this Court has stated very recently:
The statutory notice required by the Tort Claims Act does not give rise to the same jurisdictional/due process concerns which arise, for example, in the context of summonses mailed following the filing of a lawsuit . . . The statutory notice is, instead, merely a means of informing a governmental entity of the existence of a claim which might give rise to a lawsuit in the future. Thornburg v. Magnolia Reg'l Health Ctr., 741 So. 2d 220, 223-24 (Miss. 1999).
This Court went on to state, "[The issue of non-compliance with the notice provisions of the MTCA] is not a jurisdictional one." Id. However, in Stringer, decided less than one month after Thornburg, this Court again cited Lumpkin for the proposition that "timely filing of notice is a jurisdictional issue." Stringer, 1999 WL 353025, at *3.
. This Court has not addressed the issue of whether the question of compliance with the notice provisions of the MTCA may be raised for the first time on appeal. Despite this Court's statements that compliance with the notice requirements is a jurisdictional issue, and in light of this Court's statements in Thornburg, it is the conclusion of this Court that the City and Thomas are precluded from raising this issue for the first time on appeal. As this Court has stated, time and again, an issue not raised before the lower court is deemed waived and is procedurally barred. See, e.g. Davis v. State, 684 So. 2d 643, 658 (Miss. 1996); Cole v. State, 525 So. 2d 365, 369 (Miss. 1987).
CONCLUSION
. This Court affirms the trial court's grant of summary judgment in favor of both the City of Jackson and Officer Thomas. The trial court correctly held that there is no genuine issue of material fact as to whether the City of Jackson is protected by the immunity granted by the Mississippi Tort Claims Act. Though the "interim" version of Miss. Code Ann. § 11-46-3 (Supp. 1
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