Opinion
NO. 2011-CA-001975-MR
12-21-2012
ANDREA WEICKGENANNT APPELLANT v. THE BOARD OF REGENTS OF NORTHERN KENTUCKY UNIVERSITY APPELLEE
BRIEFS FOR APPELLANT: Sheila M. Smith Kelly Mulloy Myers Cincinnati, Ohio ORAL ARGUMENT FOR APPELLANT: Elizabeth Loring Cincinnati, Ohio BRIEF FOR APPELLEE: Michael W. Hawkins Kathleen A. Carnes Cincinnati, Ohio ORAL ARGUMENT FOR APPELLEE: Michael W. Hawkins Cincinnati, Ohio Drew Millar Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 10-CI-01998
OPINION
AFFIRMING
BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Andrea Weickgenannt appeals from an Opinion and Order of the Franklin Circuit Court sustaining the Board of Regents of Northern Kentucky University's motion to dismiss her breach of contract claim. Weickgenannt argues that the circuit court erred in sustaining the motion to dismiss based on its finding that the Commonwealth is shielded from implied contract claims by virtue of sovereign immunity. She contends that her series of one-year employment contracts with Northern Kentucky University constitute a written contract for purposes of overcoming sovereign immunity. We find no error in the circuit court's determination that the Commonwealth is immune from liability arising from an implied contract, and accordingly affirm the Opinion and Order on appeal.
In 2000, Weickgenannt began her employment with Northern Kentucky University ("NKU") as an instructor in the College of Business, Department of Accounting. Two years later, she was hired as an Assistant Professor. Weickgenannt's employment with NKU was memorialized in a series of one-year contracts, which were renewed annually, and her status of Assistant Professor qualified her for later consideration as a tenured professor.
In September 2007, Weickgenannt became eligible to apply for tenure at NKU. The tenure requirements were set out in the Faculty Policy and Procedure Manual, which the annual contracts referenced. Weickgenannt's application was denied in May 2008, as was her subsequent appeal.
On March 20, 2009, Weickgenannt filed an action against NKU in Campbell Circuit Court alleging breach of contract and violations of the Kentucky Civil Rights Act. The action was dismissed for improper venue, after which Weickgenannt filed another action in Franklin Circuit Court setting out only a breach of contract claim. Thereafter, NKU filed a motion to dismiss Weickgenannt's action pursuant to CR 12.02. As a basis for the motion, NKU argued that it was immune from actions not arising from a written contract, and that Weickgenannt's claim was filed outside the statute of limitations (some 31 months after the denial of tenure). NKU maintained that the Model Procurement Code, KRS 45A.245, provides a very narrow exception to sovereign immunity where a party is asserting violation of a written contract, and that the instant facts did not meet that exception.
On September 27, 2011, the Franklin Circuit Court rendered an Opinion and Order sustaining NKU's motion to dismiss, and which forms the basis of the instant appeal. In sustaining the motion, the court determined that while Weickgenannt was employed under a series of one-year contracts with NKU, she was not a party to a written contract binding NKU to grant her tenure. At best, the court concluded that the parties had an implied contract in this regard, and that implied contracts were expressly excluded from the exceptions to the protections of sovereign immunity. As such, the court found that Weickgenannt's action was barred by operation of sovereign immunity. It found as moot NKU's argument on the statute of limitations issue, and this appeal followed.
Weickgenannt now argues that the Franklin Circuit Court erred in sustaining NKU's motion to dismiss her action. She contends that contrary to the court's finding, she had a series of legally authorized, written annual contracts of employment with NKU, thus satisfying the requirement of KRS 45A.245 for waiver of sovereign immunity. In support of this contention, she directs our attention to the terms of the annual written employment contracts, notes that she was a party to the contracts, and that the contracts specifically referenced the Faculty Policy and Procedure Manual. That manual sets out the criteria and application process for tenure. Weickgenannt argues that these annual employment documents, referred to by NKU as "Appointment Forms", are proper written contracts for purposes of the waiver requirement set out in KRS 45A.245 as they established the beginning and ending dates of her annual employment, and because they were reduced to writing.
Weickgenannt distinguishes Newton v. University of Louisville, 2010 WL 4366360 (Ky. App. 2010), and upon which the circuit court relied in concluding that Weickgenannt's tenure contract with NKU, if any, was at best an implied contract and not a written contract sufficient to meet the requirements of KRS 45A.245. Weickgenannt maintains that unlike the instant facts, the Newton plaintiff was a university groundskeeper who had no written annual employment contracts, and who relied solely on the university's employee handbook to meet the waiver requirement. Weickgenannt contends that the instant facts are unlike those of Newton, in that Weickgenannt is relying on the annual employment contracts to satisfy the waiver requirement. In sum, Weickgenannt argues that the trial court erred when it failed to conclude that the Faculty Policy and Procedure Manual was incorporated by reference into Weickgenannt's successive annual written employment contracts, thereby satisfying the requirement that she rely on a written contract in order to waive NKU's sovereign immunity.
Discretionary review was granted by the Kentucky Supreme Court on November 16, 2011. This case is not final.
Sovereign immunity insulates the Commonwealth from litigation. Kentucky Constitution, Section 231. The public universities of the Commonwealth are an extension of the Commonwealth for purposes of sovereign immunity. Hutsell v. Syre, 5 F.3d 996, 999 (6th Cir. 1993). However, the General Assembly may by its Acts waive this immunity in limited circumstances and direct in which manner and in what courts suits may be brought against the Commonwealth. Id. Kentucky's Model Procurement Code, set out in KRS Chapter 45A, creates a limited exception to the sovereign immunity of the Commonwealth by allowing persons to institute claims in Franklin Circuit Court for breach of an authorized written contract against the Commonwealth. KRS 45A.245(1) states,
Any person, firm or corporation, having a lawfully authorized written contract with the Commonwealth at the time of or after June 21, 1974, may bring an action against the Commonwealth on the contract, including but not limited to actions either for breach of contracts of for enforcement of contracts or for both. Any such action shall be brought in the Franklin Circuit Court and shall be tried by the court sitting without a jury. All defenses in law or equity, except the defense of governmental immunity, shall be preserved to the Commonwealth.For purposes of KRS 45A.245, the Model Procurement Codes defines contracts as "state agreements, including grants and orders, for the purchase of disposal of supplies, services, construction or any other item." KRS 45A.030(4).
The dispositive question before us is whether the Franklin Circuit Court erred in concluding that Weickgenannt did not have "a lawfully authorized written contract" sufficient to meet the sovereign immunity waiver requirement set out in KRS 45A.245. We must answer that question in the negative. We first note that in the Opinion and Order on appeal, the Franklin Circuit Court made no specific finding that the annual "Appointment Forms", which Weickgenannt refers to as employment contracts, did indeed constitute "lawfully authorized written contracts." Weickgenannt acknowledges that the annual Appointment Forms were not signed or otherwise executed by an NKU official, but rather were accompanied by cover letters stating that her appointments were approved by the Board of Regents.
Arguendo, even if the Appointment Forms constituted "legally authorized written contracts," those contracts provided for annual employment and did not guarantee tenure appointment. In sustaining NKU's motion to dismiss, the circuit court determined that at best, Weickgenannt had an implied contract providing that she could apply for tenure. This finding is supported by the record and the law. In Newton, supra, a panel of this Court determined that a university employment handbook or manual did not constitute "a lawfully authorized written contract" for purposes of KRS 45A.245. In the matter at bar, it is this very manual to which Weickgenannt directs our attention and sets forth as the basis for her cause of action. We are not persuaded by Weickgenannt's contention that Newton is inapplicable to the instant facts. Even if the Appointment Forms constituted lawfully authorized written contracts, and even if those contracts incorporated by reference the terms of the Faculty Policy and Procedure Manual, at best they would allow Weickgenannt to apply for tenure with no guarantee of success.
More important, we find no error in the Franklin Circuit Court's conclusion that Weickgenannt failed to demonstrate that the purported tenure "contract" was spelled out in any extant written agreement as required by KRS 45A.245. Weickgenannt received the annual employment provided for by the Appointment Forms, and even if the manual was incorporated by reference, she was availed of the opportunity to apply for tenure in accordance with its terms. The Appointment Forms, taken alone, are insufficient to create a lawfully authorized written contract for tenure, and the circuit court properly so found. In fact, the Faculty Handbook states in clear and unambiguous terms that, "faculty who have probationary contracts do not have tenure," and "if a person does not receive the grant of tenure before the end of the sixth year of probationary contracts . . . the seventh contract shall be a terminal contract." Exhibit 3, Sec. II E. This is precisely what occurred herein.
A circuit court may not grant a motion to dismiss under CR 12.02 unless it appears that the plaintiff would not be entitled to relief under any set of facts which could be proved in support of her claim. Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007). In evaluating such a motion, the court must construe all pleadings liberally in a light most favorable to the plaintiff. Id. The dismissal of a breach of contract claim is a question of law, and therefore is subject to de novo review. A &A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999).
Even when construing the pleadings liberally in a light most favorable to Weickgenannt, we cannot conclude that she would be entitled to relief under any set of facts which could be proved in support of her claim. While Weickgenannt may have been a party to annual employment by appointment with NKU, she was not a party to a lawfully authorized written contract entitling her to tenure. As such, we find no error in the Franklin Circuit Court's determination that Weickgenannt did not overcome NKU's claim of sovereign immunity. The circuit court did not address Weickgenannt's argument that her action was properly filed within the statutory period, and this argument is moot.
For the foregoing reasons, we affirm the Franklin Circuit Court's Opinion and Order granting NKU's CR 12.02 motion to dismiss.
ALL CONCUR. BRIEFS FOR APPELLANT: Sheila M. Smith
Kelly Mulloy Myers
Cincinnati, Ohio
ORAL ARGUMENT FOR
APPELLANT:
Elizabeth Loring
Cincinnati, Ohio
BRIEF FOR APPELLEE: Michael W. Hawkins
Kathleen A. Carnes
Cincinnati, Ohio
ORAL ARGUMENT FOR
APPELLEE:
Michael W. Hawkins
Cincinnati, Ohio
Drew Millar
Lexington, Kentucky