Sleeth v. Sedan City Hospital

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,876

LINDA L. SLEETH and SCOTT A. SLEETH,
Appellants,

v.

SEDAN CITY HOSPITAL and DAVID SHORT,
Appellees.


SYLLABUS BY THE COURT

1.
K.S.A. 2012 Supp. 12-105b(d) requires anyone bringing a claim against a
municipality under the Kansas Tort Claims Act to provide that municipality with prior
written notice setting out the specific facts and circumstances giving rise to the claim.
Notice is a prerequisite to filing an action against a municipality.

2.
K.S.A. 2012 Supp. 12-105b(d) provides that substantial compliance with its
provisions and requirements is sufficient to constitute valid notice of a tort claim against
a municipality. Within this statute's context, substantial compliance means providing the
essential matters necessary to assure every reasonable statutory objective is met.

3.
The statutory objectives of K.S.A. 2012 Supp. 12-105b(d) are to advise the proper
municipality of the time and place of the injury, to give that municipality an opportunity
to ascertain the character and extent of the injury sustained, and to allow for the early
investigation and resolution of claim disputes.

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4.
K.S.A. 2012 Supp. 12-105b(d) provides a municipality 120 days to investigate and
review a claim before a lawsuit may be filed, unless the municipality denies the claim
earlier. This is a statutory condition precedent. A court lacks subject matter jurisdiction
over a prematurely filed lawsuit.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 3,
2012. Appeal from Chautauqua District Court; FREDERICK WILLIAM CULLINS, judge. Opinion filed
February 7, 2014. Judgment of the Court of Appeals reversing the district court on the issue subject to our
review is reversed. Judgment of the district court is affirmed.

G. Thomas Harris, of Harris Law Office, of Sedan, argued the cause and was on the brief for
appellants.

Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, argued the cause was on the briefs for
appellees.

Teresa L. Watson and David L. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka,
were on the brief for amici curiae Kansas Association of Defense Counsel and Kansas Association of
Counties.

The opinion of the court was delivered by

BILES, J.: In this wrongful death case against a municipal hospital and its
employee, we must resolve widely conflicting opinions by the lower courts regarding
whether written notice of the claim was given to the hospital as required before suit was
filed. See K.S.A. 2012 Supp. 12-105b(d). The district court dismissed the lawsuit for lack
of jurisdiction based on its determination that plaintiffs failed to comply with the statute.
A fractured Court of Appeals panel reinstated the claim, but the panel majority disagreed
as to the rationale for that outcome in Sleeth v. Sedan City Hospital, No. 105,876, 2012
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WL 402018 (Kan. App. 2012) (unpublished opinion). We granted review and now
reverse the Court of Appeals on the issue subject to our review, affirming the district
court's dismissal for lack of jurisdiction.

At issue is whether one or more letters to the hospital's administrator and an
insurance carrier representative substantially complied with the statute as to content and
manner of delivery. We have narrowed the issues somewhat and hold that substantial
compliance with K.S.A. 2012 Supp. 12-105b(d) is not achieved when a claimant's notice
fails to provide any statement of monetary damages. We hold further that the provision in
K.S.A. 2012 Supp. 12-105b(d) giving a municipality 120 days to investigate and review a
claim is a statutory condition precedent to filing a lawsuit and that a claimant's premature
filing of a lawsuit leaves a court without subject matter jurisdiction.

In this case, even if we assume plaintiffs substantially complied with K.S.A. 2012
Supp. 12-105b(d) by May 2, 2010, which is the earliest date they provided the hospital
with any statement of damages, the district court properly dismissed their case because
they prematurely filed it.

FACTUAL AND PROCEDURAL BACKGROUND

The tragic facts underlying this wrongful death claim are not dispositive to the
issue involved. For our purposes, it is sufficient to understand that the case arose after the
death of Christopher J. Johnson, a patient at Sedan City Hospital. His parents, Scott and
Linda Sleeth, allege David Short, a hospital employee, punctured Johnson's bowel while
inserting a feeding tube, causing his death on August 7, 2008. The Sleeths sued the
hospital and Short.

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The district court found that Sedan City Hospital was a municipality as defined by
K.S.A. 2012 Supp. 12-105a(a) because it was owned by the City of Sedan, Kansas. This
meant the wrongful death claim was subject to the notice requirements of K.S.A. 2012
Supp. 12-105b(d) (not amended since 2004; claim arose in 2008). See K.S.A. 75-
6115(a)(2) (the Kansas Tort Claims Act is applicable to claims against a hospital owned
by a municipality and the employees thereof alleging a health care provider's failure to
perform professional services). The district court dismissed the action early in the
proceedings, concluding the Sleeths failed to comply with the K.S.A. 2012 Supp. 12-
105b(d) notice requirements.

The Sleeths initially argued their claim arose out of contract, rather than tort. Both
lower courts rejected that argument. See Sleeth, 2012 WL 402018, at *4 (an injured party
may not proceed on a contract theory under a factual scenario that depicts negligent
conduct to avoid notice requirements). The Sleeths have not sought review of that issue,
so we do not consider it. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157,
172, 298 P.3d 1120 (2013) ("party aggrieved by a decision of the Court of Appeals on a
particular issue must seek review in order to preserve the matter for Kansas Supreme
Court review"); Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 74).

The Sleeths contend here that they actually or substantially complied with K.S.A.
2012 Supp. 12-105b(d) through a letter to the hospital administrator or a series of letters
sent to the hospital administrator and an insurance carrier representative. We review
those letters first to frame the issues. We then consider the district court proceedings, the
Court of Appeals decision, and our relevant caselaw.

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Communications Alleged to Constitute Notice

On February 21, 2010, the Sleeths' attorney sent a letter to Michelle Williams, the
Sedan City Hospital administrator, identifying himself as the attorney for the Sleeths in a
"wrongful death claim against your hospital and others." The letter threatened suit if a
settlement could not be reached. It requested that Williams "forward this claim, in
addition to all medical records relating thereto, to your claims manager or someone with
authority to review and settle this matter." It also identified Short as a hospital employee
and alleged Johnson died because of Short's negligent insertion of a feeding tube and the
hospital staff's negligent failure to detect and repair the punctured bowel in a timely
manner. The letter, however, did not include the Sleeths' address or any statement of the
monetary damages sought—two content notice requirements expressly identified in
K.S.A. 2012 Supp. 12-105b(d)(1) and (5).

On March 8, 2010, Jan Langgard, a medical liability analyst for the hospital's
professional liability insurance carrier, responded by letter to the attorney's February 21
letter to Williams. Langgard requested an itemization of damages and enclosed
authorization forms required to process the claim. Langgard also wrote that "[a]ny further
correspondence regarding this matter should be directed to me."

On March 22, 2010, the Sleeths' attorney returned the forms and promised to
provide "an itemization of appropriate damages or loss . . . in the near future."

On May 2, 2010, the Sleeths' attorney submitted another letter to Langgard
specifying damages totaling $1,183,000 for "purposes of settlement only." Those
damages included $900,000 for economic injury calculated from lost monthly disability
benefits over a life expectancy of 50 years, $250,000 for "pain and suffering, grief and
bereavement, and $33,000 for estimated medical, ambulance, and funeral expenses."
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On August 2, 2010, the Sleeths filed their wrongful death action in Chautauqua
County District Court. Normally, this timing would be adequate because the August 2
filing was 7 days before the 2-year statute of limitations expired. See K.S.A. 60-
513(a)(5), (7) (wrongful death and medical malpractice actions must be brought within 2
years). But K.S.A. 2012 Supp. 12-105b(d) prohibits a plaintiff from commencing a
lawsuit against a municipality "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." The Sleeths' lawsuit was filed more
than 120 days after the February 21 letter, but less than 120 days after the May 2 letter
itemizing damages.

District Court Proceedings

The hospital and Short filed separate answers to the petition, enumerating as
affirmative defenses that the Sleeths had "failed to file a notice of claim with defendant
Sedan City Hospital prior to filing the lawsuit as required by K.S.A. 12-105 sub-section
(d) and therefore the Court has no jurisdiction." The defendants also asserted a statute of
limitations defense as a consequence of the Sleeths' alleged failure to file the necessary
notice of claim as a condition precedent to filing suit.

A short time after filing their answers, the defendants submitted a joint motion to
dismiss or for summary judgment, claiming the district court lacked subject matter
jurisdiction because the Sleeths failed to serve the hospital with notice as required by law.
In the defendants' statement of uncontroverted facts, they alleged in part that (1) Sedan
City Hospital was a municipality as defined by K.S.A. 2012 Supp. 12-105a(a); (2) the
hospital was governed by a board of trustees; and (3) no board member was served with
notice of the claim. Affidavits accompanying the motion supported these allegations.
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In response, the Sleeths generally denied the defendants' factual averments,
alleging insufficient information to form a belief as to their truth. They further claimed
they fully complied with the statutory notice requirements and argued the hospital
administrator was a "de facto" clerk authorized to receive the notice. In the alternative,
the Sleeths theorized that the May 2 letter to the liability insurer further evidenced
substantial compliance. In essence, they claimed the February 21 and May 2 letters
combined to provide the hospital and its agents "a clear indication" of the claim and
fulfilled the notice statute's purposes.

In reply, the defendants admitted the letters were received but argued the letters
did not comply with K.S.A. 2012 Supp. 12-105b(d). They asserted that the February 21
letter was deficient because it was sent to the hospital administrator, who was not the
clerk of the hospital board. In the alternative, they argued that even if notice could be sent
to the hospital administrator, the letter nevertheless lacked a "statement of the amount of
monetary damages that is being requested."

The defendants also disputed the Sleeths' alternative argument that the May 2
letter to the insurer could fulfill the statutory requirements. For one, they argued, the
letter was sent to the hospital's insurer, not its clerk or governing body. Moreover, they
argued, even if the insurer could be served with notice and the May 2 letter could be
combined with the February 21 letter to fulfill the statute's content requirements, the
Sleeths prematurely filed their lawsuit because less than 120 days had elapsed since the
May 2 letter that provided the missing damages statement.

The district court granted the motion and dismissed the suit with prejudice as to
both defendants. In its journal entry, it made six factual findings it deemed to be
uncontroverted: (1) Short was a hospital employee; (2) Sedan City Hospital was a
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municipality as defined by statute; (3) Sedan City Hospital had no clerk but was governed
by a board of trustees; (4) no board member was served notice of the wrongful death
claim; (5) the February 21 letter to the hospital administrator did not contain any damages
statement; and (6) the May 2 letter to the insurer itemized damages. The district court
held that neither the administrator nor the insurer were the hospital's "clerk" as that term
is used in the statute, so notice was not provided to the appropriate person or entity under
the statute.

The district court also held that even if the combination of letters could be treated
as supplying statutorily compliant notice, the lawsuit was premature because 120 days
had not passed since the May 2 letter to the insurer, which supplied the missing
information relating to the required statement of damages. Finally, the court concluded
that without compliance with K.S.A. 2012 Supp. 12-105b(d), the statute of limitations for
wrongful death had lapsed. The court dismissed the case.

The Sleeths timely appealed to the Court of Appeals, which reversed the district
court. Sleeth, 2012 WL 402018, at *12.

The Court of Appeals Decision

All three panel members authored individual opinions in this multiple-issue case.
Because of this anomaly, it is challenging to determine when Chief Judge Richard D.
Greene (concurring) and Senior Judge J. Patrick Brazil (dissenting) diverged from Judge
G. Gordon Atcheson's analysis regarding some sub-issues. But for purposes of this
opinion, we will assume the other judges agreed with Judge Atcheson's analysis unless
they explicitly stated otherwise or unless such an assumption would obviously contradict
that judge's stated theory of the case.

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The panel effectively outlined two differing theories for substantial compliance
with the statute's notice and content requirements. Judge Atcheson's decision determined
that the February 21 letter to the hospital administrator, taken in conjunction with the
May 2 letter to the hospital's liability insurer, combined to substantially comply with the
statute. 2012 WL 402018, at *4-7. Chief Judge Greene wrote separately, concluding that
the initial February 21 letter to the hospital administrator was enough to substantially
comply by itself. Judge Greene disputed whether any reference to damages, which was
admittedly lacking in the February 21 letter, was required. 2012 WL 402018, at *12-15
(Greene, C. J., concurring).

Judge Atcheson stated that "[s]ome mention of damages or the value of the claim
is essential to a notice compliant with K.S.A. [2012] Supp. 12-105b(d)." 2012 WL
402018, at *6. Chief Judge Greene disagreed, concluding under the facts of the case that
the $250,000 cap on nonpecuniary wrongful death damages found in K.S.A. 60-1903
eliminated at least some uncertainty regarding the alleged damages. 2012 WL 402018, at
*14 (Greene, C.J., concurring). He also concluded the absence of more specific
information about damages would not have impeded the hospital's investigation and
review of the claim's merits. 2012 WL 402018, at *14.

As to the requirement that a claimant provide the notice to the municipality's
"clerk or governing body," the entire panel apparently agreed delivery to the hospital
administrator substantially complied with that provision. It noted the hospital did not
have a clerk and interpreted Kansas caselaw to authorize "service of the notice on an
officer or executive with similar standing or authority within the organization." 2012 WL
402018, at *5 (citing Orr v. Heiman, 270 Kan. 109, 114-15, 12 P.3d 387 [2000]). The
panel concluded that "directing the February 21, 2010, letter to the hospital administrator
satisfied the service requirement of K.S.A. [2012] Supp. 12-105b(d)." 2012 WL 402018,
at *5.
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As to the May 2 letter to the insurer, Judges Atcheson and Brazil apparently
agreed the insurer, too, was a proper entity to receive notice under the facts of the case.
Judge Atcheson adopted an agency theory to conclude that the insurer was authorized to
receive the damages information missing from the first letter on the hospital's behalf
because "the hospital, through its insurance carrier's representative, requested that further
communications go to that representative. So delivery of the May 2, 2010, letter to the
insurance representative conformed to the statutory requirements for service." 2012 WL
402018, at *5.

Regarding the 120-day statutory bar from filing suit after the notice of claim was
delivered, Judge Atcheson reasoned this requirement related only to a personal
jurisdiction defense, which was waived. See 2012 WL 402018, at *8-12. He conceded his
view conflicted with that of another Court of Appeals panel that had found the 120-day
review period involved subject matter jurisdiction, rendering it nonwaivable. See Steed v.
McPherson Area Solid Waste Utility, 43 Kan. App. 2d. 75, 88-89, 221 P.3d 1157 (2010).
But Judge Acheson argued the Steed panel did not focus on the legal nuances he
perceived to be associated with the 120-day review period. Sleeth, 2012 WL 402018, at
*11. And he further suggested the entire statute should be read to implicate only personal
jurisdiction. 2012 WL 402018, at *8 ("[A] strong argument can be made that the lack of
notice affects personal jurisdiction.").

Judge Atcheson then concluded defendants waived the 120-day review period as a
defense because they did not explicitly raise it in their answers. 2012 WL 402018, at *9-
10. He also implied defendants acted in bad faith by not including in their answers any
mention of the 120-day bar to suit, which he speculated might have allowed the Sleeths to
remedy the premature filing problem without actual prejudice to the hospital. 2012 WL
402018, at *10-11.
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Senior Judge Brazil dissented, focusing entirely on his opinion that the failure to
comply with the 120-day review period implicated subject matter jurisdiction based on
the "strong statutory language and the consistent outcomes of judicial opinions." 2012
WL 402018, at *17. He concluded the notice requirements could not be waived and
criticized Judge Atcheson's analysis as encroaching on governmental immunity and
legislative authority. 2012 WL 402018, at *16-17 (Brazil, S.J., dissenting).

The hospital and Short petitioned for review regarding the panel's differing
interpretations of the notice/substantial compliance issues. The Sleeths did not cross-
petition. We granted review under K.S.A. 20-3018(b) and obtained jurisdiction under
K.S.A. 60-2101(b).

ANALYSIS

The questions before this court specifically concern whether the Sleeths
substantially complied with K.S.A. 2012 Supp. 12-105b(d) and, if not, what consequence
results from that lack of compliance. The parties offer a progression of arguments—some
stated in the alternative—for their respective positions.

The Sleeths' first theory is that the February 21 letter to the hospital administrator
substantially complied with K.S.A. 2012 Supp. 12-105b. The defendants argue this letter
was deficient in two regards: (1) It did not substantially comply with the requirement
that the notice shall be filed with the clerk or governing body of the municipality; and (2)
it did not supply all the necessary information, particularly a statement of damages.

In the alternative, the Sleeths argue the February 21 letter and the May 2 letter to
the hospital's insurance carrier representative combined to substantially comply with
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K.S.A. 2012 Supp. 12-105b. The defendants acknowledge the May 2 letter contained a
detailed statement of monetary damages, but they note neither letter was sent to the clerk
or the hospital's governing body. And, the defendants continue that if the May 2 letter
was needed to complete the statute's content requirements, the petition was filed
prematurely because the municipality's 120-day period for investigation and review had
not expired. The defendants argue the premature filing deprived the district court of
subject matter jurisdiction.

We agree that the February 21 letter did not substantially comply with the notice
requirements because it lacked any statement of damages. This conclusion leaves us with
the Sleeths' second theory—that the February 21 and May 2 letters combined to comply
with K.S.A. 2012 Supp. 12-105b—but this alternative is lacking as well.

Even if we assume for the purpose of their argument that multiple writings can
suffice to comply with the statute, and further assume the letters notified the proper
persons or entities, we are still confronted with a premature filing because the 120-day
period for investigation and review had not expired before the Sleeths filed their lawsuit.
And we hold the review period cannot be waived because it is a condition precedent to
filing suit that implicates a court's subject matter jurisdiction.

In taking this approach, we decide the case based on the uncontroverted facts
without delving more deeply into other entanglements of the analysis, such as the
contractual or apparent authority of the hospital administrator; the agency relationship, if
any, between the hospital and its insurer; or whether the municipality waived the
statutory notice requirement. See, e.g., K.S.A. 2012 Supp. 80-2511(b) (hospital board
authorized to contract for an administrator or chief executive officer "to manage the
affairs of the hospital"); Meara v. Douglas County, No. 107,471, 2013 WL 310363, at
*8-10 (Kan. App. 2013) (unpublished opinion) (distinguishing Sleeth because no
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evidence county waived statutory notice through an agent and holding no waiver could be
legally effective under the statute); see also Huehl v. Board of Lincoln County Comm'rs,
No. 107,907, 2013 WL 1729259, at *3-6 (Kan. App. 2013) (unpublished opinion)
(insufficient to provide statutory notice to insurer or hospital administrator).

We leave those questions to future cases because this case can be decided on the
basis of the premature filing. This approach also allows us to resolve the conflict between
Court of Appeals panels over whether K.S.A. 2012 Supp. 12-105b(d) implicates subject
matter jurisdiction, as well as any ambiguity in this court's prior caselaw. Compare Steed,
43 Kan. App. 2d. at 88-89 (notice implicates subject matter jurisdiction) with Sleeth,
2012 WL 402018, at *9-12 (notice statute's review period implicates personal
jurisdiction); see also Sleeth, 2012 WL 402018, at *7 (Supreme Court has been "opaque
about the precise jurisdictional bar" arising from failure to provide sufficient notice).

Standard of Review

When the contents of the purported notice are uncontroverted, whether a plaintiff
has substantially complied with K.S.A. 2012 Supp. 12-105b(d) involves only statutory
interpretation, and, accordingly, is a question of law subject to de novo review. See
Continental Western Ins. Co. v. Shultz, 297 Kan. 769, 774, 304 P.3d 1239 (2013); Dodge
City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 638, 205 P.3d
1265 (2009); Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 871, 127 P.3d
319 (2006).

Compliance with the Statutory Content Requirements

K.S.A. 2012 Supp. 12-105b(d) requires anyone bringing a claim against a
municipality under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., to provide that
14



municipality with prior written notice setting out the specific facts and circumstances
giving rise to the claim. Notice is a prerequisite to filing an action against a municipality.
Failure to substantially comply with the statute precludes a plaintiff from obtaining relief
in district court. Continental Western, 297 Kan. at 774.

K.S.A. 2012 Supp. 12-105b(d) provides:

"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. 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."

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Notably, K.S.A. 2012 Supp. 12-105b(d) references only claims against a
municipality, but it does state the notice must contain the name and address of any
"public officer or employee involved" in such a claim. In this case, the district court
dismissed both Sedan City Hospital and its employee (Short) based upon the failure to
comply with K.S.A. 2012 Supp. 12-105b(d). And although the issue was not raised, the
Court of Appeals agreed the statute requires notice to the municipality even when suing a
municipal employee. See Sleeth, 2012 WL 402018, at *7; see also King v. Pimentel, 20
Kan. App. 2d 579, 589, 890 P.2d 1217 (1995) (concluding legislature intended written
notice of claim under the statute was required for bringing an action against municipal
employees).

We have never addressed whether K.S.A. 2012 Supp. 12-105b(d) applies to claims
against municipal employees acting within the scope of their employment and express no
opinion now on that. The Sleeths have not challenged the statute's application to Short, so
this issue is not subject to review. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d
144 (2008) (issue not briefed is deemed waived or abandoned); see also Snider v.
American Family Mut. Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013) (aggrieved
party must seek review; failure to file cross-petition for review).

Moving to the issue of content compliance, the statute expressly states that notice
is deemed effective if the notice substantially complies with statutory requirements.
K.S.A. 2012 Supp. 12-105b(d). Substantial compliance means compliance in respect to
the essential matters necessary to assure every reasonable objective of the statute.
Continental Western, 297 Kan. at 775 (quoting Dodge City Implement, 288 Kan. at 639;
Orr, 270 Kan. at 113).

There are five content notice requirements specified in K.S.A. 2012 Supp. 12-
105b(d) that must be given: (1) the name and address of the claimant and the name and
16



address of the claimant's attorney, if any; (2) a concise statement of the claim's factual
basis, 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 being requested.
See Continental Western, 297 Kan. at 774-75; Dodge City Implement, 288 Kan. at 639.

But 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." Continental Western, 297 Kan. at
775; 288 Kan. at 642. 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. See Continental Western, 297 Kan. at 778.

In this case, the February 21 letter failed to include both the claimants' address and
a statement of the monetary damages requested. The defendants conceded at oral
argument that, under the circumstances, the failure to include claimants' address was
inconsequential, and we agree. The five notice elements specified in K.S.A. 2012 Supp.
12-105b(d) are not always equal because some have a greater impact on a municipality's
ability to investigate and understand a claim depending on the circumstances. In this
instance, the claimants' address added nothing because counsel's contact information was
included.

But the same cannot be said about the failure to include any statement of monetary
damages. We reject Chief Judge Greene's rationale that the lack of a damages statement
in the first letter could not have hindered the municipality's full investigation and
17



understanding of the claim because there was a $250,000 statutory cap on nonpecuniary
damages. Sleeth, 2012 WL 402018, at *13-14 (Greene, C.J., concurring).

We note that during the early stages of this controversy, the Sleeths sought
substantially more than just nonpecuniary damages. In fact, the great majority of the
Sleeths' initial demand arose from alleged pecuniary damages consisting principally of
Johnson's lost disability income. Our law recognizes no limit on pecuniary damages
recoverable in certain personal injury and wrongful death actions. See K.S.A. 60-1903
(limiting wrongful death damages, other than pecuniary loss, to $250,000). And while we
express no opinion as to whether the alleged economic losses were recoverable in this
particular scenario, they were clearly included in the Sleeths' claim. As a result, this was
significant information for the municipality to have in its claims evaluation process. The
statutory cap on nonpecuniary damages could not have alerted the municipality as to the
amount and character of the pecuniary damages being claimed by the Sleeths.

We hold that a notice that lacks any statement of monetary damages claimed
against the municipality cannot reasonably be seen to meet K.S.A. 2012 Supp. 12-105b's
objectives and/or requirements. See Garcia v. Anderson, 46 Kan. App. 2d 1094, 1104,
268 P.3d 1248 (2012) (Without the municipality's understanding of the extent of alleged
damages, the legislature's obvious desire to facilitate early and easy resolution of a claim
was undermined.), rev. denied 296 Kan. ___ (February 7, 2013); accord Dodge City
Implement, 288 Kan. at 642. We agree with Judge Atcheson that "some mention of
damages or the value of the claim is essential to a notice compliant with K.S.A. [2012]
Supp. 12-105b(d)" because it is impossible for a municipality to evaluate what is at stake
without any indication as to what the claimant wants. Sleeth, 2012 WL 402018, at *6. In
this case, it is unnecessary to determine what detail is required.

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In Continental Western, we held there was substantial compliance when a claimant
demanded the same damages in both the notice and its petition, even though the claimant
later sought to amend the pleadings and pursue a much higher damages amount as the
facts evolved in the litigation. We held under the facts of that case that the notice
provided sufficient information to advise the defendants about the extent of injuries,
afforded the municipality an opportunity to fully investigate the claim's merits, and did
not disturb the statutory purpose of facilitating early and easy claim resolution. We held
any dispute regarding subsequent amendments to the pleadings could be decided by the
district court under K.S.A. 60-215. 297 Kan. at 778.

But in the Sleeths' case, in the absence of any mention of monetary damages, the
February 21 letter cannot be seen as substantially complying with the content notice
requirements specified in K.S.A. 2012 Supp. 12-105b(d). Accordingly, the Sleeths could
only have met the statutory requirements for giving notice if we accept their second
theory: that a combination of the February 21 and May 2 letters complied with the
statute. We consider that question next, assuming for purposes of the argument that it is
possible to achieve the statutorily required notice through multiple writings and that the
Sleeths substantially complied with K.S.A. 2012 Supp. 12-105b(d)'s requirement that the
notice "shall be filed with the municipality's clerk or governing body" by filing notice
with a hospital administrator and the hospital's insurance representative.

Compliance with the Statutorily Required 120-day Review Period

As noted above, the petition was filed on August 2, 2010, which was 92 days after
the May 2 letter containing the statement of damages. And since we have determined that
the February 21 letter did not substantially comply with the statute, it did not trigger the
120-day review period under the statute. See K.S.A. 2012 Supp. 12-105b(d) ("Once
notice of the claim is filed, no action shall commence until after the claimant has received
19



notice from the municipality that has denied the claim or until after 120 days has passed
following the filing of the notice of claim, whichever occurs first."). The Sleeths do not
allege their claim was denied, so the statutory time—as calculated from the May 2
letter—had not expired and the lawsuit was filed prematurely.

We must decide next if the 120-day review period may be waived, as Judge
Atcheson reasoned, when the municipality fails to raise the issue as an affirmative
defense. This question turns on whether the failure to comply with the notice requirement
implicates subject matter or personal jurisdiction. We hold that it may not be waived and
that substantial compliance with K.S.A. 2012 Supp. 12-105b(d) is necessary before a
court may obtain subject matter jurisdiction over the claim.

Subject matter jurisdiction establishes the court's authority to hear and decide a
particular action. It cannot be conferred by consent, waiver, or estoppel. Nor can parties
convey subject matter jurisdiction onto a court by failing to object to the court's lack of
jurisdiction. If the district court lacks subject matter jurisdiction, an appellate court
cannot acquire jurisdiction over the subject matter on appeal. Kingsley v. Kansas Dept. of
Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).

There are two types of personal jurisdiction: specific and general. Specific
jurisdiction refers to jurisdiction over causes of action arising from or related to a
defendant's actions within a forum state. It is governed by the Kansas long arm statute
and is not relevant to this appeal. In contrast, general personal jurisdiction refers to the
power of a state to adjudicate any cause of action involving a particular defendant,
regardless of where the cause of action arose. Merriman v. Crompton Corp., 282 Kan.
433, 440, 146 P.3d 162 (2006).

20



This court has characterized the K.S.A. 2012 Supp. 12-105b(d) notice
requirements as jurisdictional, but we have not previously specified whether the
requirements implicate subject matter or personal jurisdiction. For example in Kau Kau
Take Home No. 1 v. City of Wichita, 281 Kan. 1185, Syl. ¶ 2, 135 P.3d 1221 (2006), the
court held:

"Any person with a claim against a municipality under the Kansas Tort Claims
Act must file a written notice of the claim with the municipality. The filing of a proper
notice of claim is a prerequisite to filing an action in the district court against a
municipality. These notice requirements are jurisdictional. If the statutory notice
requirements are not met, the court cannot obtain jurisdiction over the municipality."
(Emphasis added.)

This description of K.S.A. 2012 Supp. 12-105b(d) as jurisdictional is based in part
on the statute's legislative history. In Gessner v. Phillips County Comm'rs, 270 Kan. 78,
81, 11 P.3d 1131 (2000), the court noted the League of Kansas Municipalities' Task
Force on Tort Reform was a significant contributor to the amendment of K.S.A. 12-
105b(d). The task force's recommendation pertaining to K.S.A. 12-105b(d) was as
follows: "'[R]equire written notice of claims by persons alleging injury from acts of
municipalities as a jurisdictional prerequisite to commencing a lawsuit under the [Kansas
Tort Claims] Act.' (Emphasis added.) Minutes of the House Judiciary Committee,
February 5, 1987, Hearing on H.B. 2023." Gessner, 270 Kan. at 81. The Gessner court
relied upon the plain language of K.S.A. 12-105b(d) and this legislative history to
conclude that a party is not entitled to relief against a city unless the party complies with
the statutory notice requirement. 270 Kan. at 82.

The Court of Appeals has previously characterized K.S.A. 12-105b(d) as
implicating subject matter jurisdiction. See, e.g., Steed v. McPherson Area Solid Waste
Utility, 43 Kan. App. 2d 75, Syl. ¶ 8, 221 P.3d 1157 (2010); Christopher v. State, 36 Kan.
21



App. 2d 697, Syl. ¶ 1, 143 P.3d 685 (2006). Both cases cited Gessner. Judge Atcheson
criticized those cases, correctly pointing out that Gessner did not explicitly identify
which type of jurisdiction was involved. He argued the better interpretation of Gessner is
that K.S.A. 2012 Supp. 12-105b(d) implicates personal jurisdiction because Gessner can
be read as "treating the obligation to give notice under K.S.A. [2012] Supp. 12-105b(d)
as a component of commencing an action comparable to service of process in K.S.A. 60-
203a . . . ." Sleeth, 2012 WL 402018, at *7. But his analysis also reads something into
Gessner that is not there.

In Gessner, the issue was whether the Kansas saving statute, K.S.A. 60-518,
permits a claimant to file a K.S.A. 12-105b(d) notice and commence a lawsuit after the
applicable limitation period has expired when a previous, timely lawsuit was dismissed
for failure to comply with the notice requirement. See K.S.A. 60-518 (providing plaintiff
whose timely commenced action fails other than on the merits may bring new suit within
6 months, even though limitations period has expired). The court concluded that under
the notice statute's plain meaning, written notice must be filed before an action could
commence and K.S.A. 12-105b(d) evidences a "clear legislative intent to disallow the
commencement of any actions prior to the filing of the requisite notice." 270 Kan. at 81.
Gessner simply holds that a claimant cannot have commenced an action, within the
meaning of the saving statute, without first having complied with K.S.A. 12-105b(d). 270
Kan. at 81-82; see K.S.A. 60-518.

The plain language of K.S.A. 2012 Supp. 12-105b(d) prohibits initiating an action
before the 120-day review period has expired, stating: "[N]o 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." The
statute then repeats that "[n]o person may initiate an action against a municipality unless
22



the claim has been denied in whole or part." (Emphasis added.) K.S.A. 2012 Supp. 12-
105b(d).

Clearly, the time bar is shortened if a municipality denies a claim before the 120
days passes. Just as clearly, any shortening of the time period is intended to occur only
from the municipality's decision to deny a claim, in whole or in part, before a legal action
is initiated. But under Judge Atcheson's waiver analysis, a claimant could ignore the
statute and easily force the municipality's hand by filing early, then waiting to see if the
municipality, obligated to respond to the petition, waives the time bar by failing to assert
it by motion or as an affirmative defense. See K.S.A. 2012 Supp. 60-212(a)(1)(A)(i), (b)
(answers to petitions or motions asserting certain defenses, when permitted, to be served
within 21 days of service of summons and petition).

This is not what K.S.A. 2012 Supp. 12-105b(d) envisions. The statute plainly
provides that no person may initiate a lawsuit until the claim is denied or statutorily
deemed denied. See Gessner, 270 Kan. at 81 (The plain language of K.S.A. 12-105b(d)
"expresses a clear legislative intent to disallow the commencement of any actions prior to
the filing of the requisite notice."). Any other reading of the statute diminishes its utility
and the underlying policy of giving a municipality an opportunity to "ascertain the
character and extent of the injury sustained, and to allow for the early investigation and
resolution of claim disputes." See Continental Western, 297 Kan. 769, Syl. ¶ 3 (defining
purpose of statute).

We also question Judge Atcheson's analogy to statutes of limitations, which he
used to downplay the importance of the 120-day review period. He characterized K.S.A.
2012 Supp. 12-105b(d) as promoting a "more limited public policy and serv[ing] a
narrower constituency" than statutes of limitations. Sleeth, 2012 WL 402018, at *9. But
as noted above, K.S.A. 2012 Supp. 12-105b(d) establishes a condition precedent to filing
23



suit; and in that sense, it is more analogous to this court's caselaw discussing exhaustion
of administrative remedies. For example, this court held in Kingsley that a district court
lacked subject matter jurisdiction to consider a petition when a person does not exhaust
all available administrative remedies under the Kansas Judicial Review Act. Kingsley,
288 Kan. at 408-09. The KJRA exhaustion provisions align closely with K.S.A. 2012
Supp. 12-105b(d) because they impose certain procedural requirements that must be
satisfied before judicial review can be sought. Kingsley supplies additional support by
analogy for finding K.S.A. 2012 Supp. 12-105b(d) implicates subject matter jurisdiction.

We hold that the 120-day review period requirement of K.S.A. 2012 Supp. 12-
105b(d) establishes a statutory condition precedent that must be met before a court has
subject matter jurisdiction over a claim against a municipality under the Kansas Tort
Claims Act. Its time constraint may be shortened only if a municipality acts to deny the
claim in whole or in part before a petition is filed in the district court. The 120-day
review period cannot be waived to give a court subject matter jurisdiction over a
prematurely filed lawsuit.

The decision of the Court of Appeals reversing the district court on the issue that
is subject to our review is reversed. The district court's dismissal for lack of jurisdiction is
affirmed.

LUCKERT, J., not participating.
MORITZ, J., not participating.
DANIEL D. CREITZ, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Creitz was appointed to hear case No. 105,876
vice Justice Moritz pursuant to the authority vested in the Supreme Court by art. 3, § 6(f)
of the Kansas Constitution.