Charles Mucker, II v. Kentucky State University ( 2022 )

RENDERED: JULY 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0651-MR
CHARLES MUCKER, II APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00477
KENTUCKY STATE UNIVERSITY
AND CHRISTOPHER CRIBBS APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Charles Mucker, II, brings this appeal from a May 5, 2021,
Order of the Franklin Circuit Court rendering summary judgment dismissing
Mucker’s contract claims against Kentucky State University upon the basis of
governmental immunity. We affirm.
BACKGROUND
This case has previously been before the Court of Appeals in
Kentucky State University v. Mucker, No. 2018-CA-001817-MR, 2020 WL
1332976 (Ky. App. Mar. 20, 2020), and we will refer thereto for the relevant
underlying facts as follows:
When Mucker enrolled at [Kentucky State University]
KSU in the summer of 2014 and took up residence in
university housing, he was required to, and did, sign a
“Resident Zero Tolerance Acknowledgment.” (Record
(R.) 137). He accepted the rule of campus housing that
his “using and/or trafficking in drugs . . . will result in my
immediate eviction and that I will be subject to
suspension or dismissal without a right of appeal.”
On April 13, 2016, while he was in his dorm room,
Mucker was told a campus police officer was parked next
to his vehicle. Mucker approached the officer. After a
discussion, Mucker consented to the officer’s search of
his vehicle. The officer recovered marijuana cigarettes,
individual bags of marijuana, and a small scale. This was
reported to KSU officials.
Christopher Cribbs, KSU’s Assistant Vice President for
Student Affairs, met with the campus police officer to
assess the situation. On Thursday, April 14, 2016, Cribbs
decided to suspend Mucker and prepared a letter to him
stating, in pertinent part:
You are alleged of [sic] having a bag of
marijuana, used marijuana joints, and a scale
in your car on campus. After reviewing the
available information and due to the nature
and circumstances surrounding the event
and the subsequent disciplinary proceedings,
I have made the following finding related to
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the violation of the Student [H]andbook for
which you were charged:
• Unlawful use and or possession of illicit
drugs (Section 5A p. 17) – Responsible
As a result, . . . [y]ou have been suspended
from Kentucky State University, effective
April 14, 2016[,] through June 01, 2016.
You must vacate your . . . residence room by
5 p.m. Sunday, April 17, 2016.
During the period of suspension, you are
prohibited [from appearing on campus].
Failure to abide by these restrictions may
result in an extended period of suspension,
or possibly expulsion. . . .
Upon your June 1, 2016[,] return to
Kentucky State University, you must
schedule drug counseling. . . .
Due to your signing the Resident Zero
Tolerance form. [sic] You acknowledged
that you would be subject to suspension or
dismissal without a right of appeal.
Henceforth, you will not receive the right to
appeal the suspension decision.
(R. at 9).
The following day, Friday, April 15, Cribbs met with
Mucker to discuss the suspension and then met with
Mucker’s parents and the Chief of the KSU Police
Department.
Kentucky State University v. Mucker, No. 2018-CA-001817-MR, 2020 WL
1332976, at *1 (Ky. App. Mar. 20, 2020)
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On May 3, 2016, Mucker filed a complaint and on April 6, 2017, an
amended complaint against Kentucky State University (Kentucky State) and
against Christopher Cribbs in his individual capacity and in his official capacity.1
Therein, Mucker raised the following claims – violation of his rights under the
Fourteenth Amendment of the United States Constitution and Section 2 of the
Kentucky Constitution, illegal forfeiture, breach of contract, breach of implied
contract/quasi-contract, quantum meruit, and promissory estoppel. Mucker sought
both monetary damages and injunctive relief.
In their answers, Kentucky State raised the defense of governmental
immunity, and Cribbs raised the defense of qualified official immunity.
Thereafter, Kentucky State and Cribbs filed a motion for summary judgment
seeking dismissal upon the bases of governmental immunity and qualified official
immunity. The circuit court concluded that it could not determine whether
Kentucky State and Cribbs were entitled to immunity because of limited facts
provided the court. As a consequence, the circuit court denied summary judgment.
Kentucky State and Cribbs filed a direct appeal, and this Court
reversed and remanded for additional proceedings. In Kentucky State University v.
Mucker, No. 2018-CA-001817-MR, 2020 WL 1332976, at *9 (Ky. App. Mar. 20,
1
Christopher Cribbs was the Assistant Vice President of Student Affairs at Kentucky State
University.
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2020), the Court of Appeals concluded that Kentucky State was entitled to
governmental immunity and that Cribbs was entitled to governmental immunity in
his official capacity and qualified official immunity in his individual capacity. The
Court directed the circuit court to dismiss all tort claims against both Kentucky
State and Cribbs. The Court of Appeals also considered Mucker’s “contractual
claims”:
Mucker’s claims for breach of contract, breach of implied
contract, quantum meruit, promissory estoppel, and
unenforceable forfeiture are premised on the existence of
a contract with KSU; therefore, KSU is the only
potentially liable party. Mucker cites only the student
handbook as evidence of that contract.
Pursuant to [Kentucky Revised Statute] KRS 45A.245,
“the General Assembly has explicitly waived the defense
of governmental immunity for claims based upon
lawfully authorized written contracts with the
Commonwealth.” Furtula v. Univ. of Kentucky, 438
S.W.3d 303, 305 (Ky. 2014) (internal quotation marks
and footnote omitted). That is, “KRS 45A.245 is an
unqualified waiver of immunity in all cases based on a
written contract with the Commonwealth . . . [and] this
immunity is not limited to contracts entered into pursuant
to the KMPC [Kentucky Model Procurement
Code]. . . .” University of Louisville v. Rothstein, 532
S.W.3d 644, 647 (Ky. 2017) (emphasis in original).
We cannot address whether immunity applies here
because the circuit court never decided whether a
contract existed. . . .
Kentucky State University v. Mucker, No. 2018-CA-001817-MR, 2020 WL
1332976, at *9 (Ky. App. Mar. 20, 2020).
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Upon remand, Kentucky State and Cribbs filed a motion for summary
judgment arguing that no written contract existed with Mucker. Mucker filed a
response and argued otherwise. By a May 5, 2021, Order, the circuit court granted
the motion for summary judgment. In relevant part, the circuit court concluded:
On remand, the Court of Appeals has instructed
the Court to determine whether a contract existed.
Plaintiff asserts claims for breach of contract, illegal civil
forfeiture, promissory estoppel, and quantum meruit
against KSU. KRS 45A.245(1) provides for a waiver of
governmental immunity when a person has “a lawfully
authorized written contract with the Commonwealth[.]”
Plaintiff claims that the KSU Student Handbook was
such a contract. KSU contends that the Student
Handbook language negates such a claim. The Court
agrees.
KSU’s Student Handbook, in relevant part,
provides: “The policies, regulations, and guidelines
herein are not and shall not be construed as contractual
obligations between the University and its students.”
Moreover, the Student Handbook is “subject to change at
any time without prior individual notice.” Both express
and implied contracts require “the agreement of the
promisor to be bound.” [Furtula] v. University of
Kentucky, 438 S.W.3d 303, 308 (Ky. 2014). In the
Student Handbook, KSU expressly stated that it does not
intend to be bound and that the terms of the Student
Handbook are subject to change without notice. In
[Furtula], the Kentucky Supreme Court declined to
imply a contract when the University of Kentucky, in its
handbook, stated that the handbook was not a contract,
coupled with “express reservations of the authority to
alter and amend the . . . policies at any time.” 438
S.W.3d at 309 (emphasis omitted). KSU used similar
language, expressing the intent for the Student Handbook
not to be a contract, and reserved the authority to change
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the Student Handbook at any time without notice. Thus,
as in [Furtula], the Court declines to find a contract
either express or implied. As Plaintiff did not have a
lawfully authorized written contract with KSU, KSU did
not waive governmental immunity under KRS 45A.245.
Plaintiffs [sic] remaining claims are also barred as the
Court has concluded KSU enjoys governmental
immunity.
May 5, 2021, Order at 6-7 (footnotes omitted and citation omitted). This appeal
follows.
Mucker contends that the circuit court erroneously rendered summary
judgment dismissing his breach of contract claim. Mucker argues that the circuit
court failed to consider the entirety of the Kentucky State Student Handbook and
improperly focused upon one provision thereof. Mucker points out that a provision
of the handbook states that “[e]ach student desiring to reside in University Housing
will be required to sign a Kentucky State University Two Semester Resident Hall
Contract.” Mucker’s Brief at 10. Thus, Mucker believes that the handbook makes
“clear that both parties are bound by contractual terms.” Mucker’s Brief at 10.
Additionally, Mucker alleges that Kentucky State has failed to clearly indicate its
intent not to be contractually bound by the provisions of the handbook, as were the
facts in Furtula v. University of Kentucky, 438 S.W.3d 303, 308 (Ky. 2014).
STANDARD OF REVIEW
The standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found that there were no genuine
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issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
Kentucky Rule of Civil Procedure 56.03). Upon a motion for summary judgment,
all facts and inferences in the record are viewed in a light most favorable to the
nonmoving party and “all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Thus, if there are
no factual issues, a summary judgment looks only to questions of law and we
review a trial court’s decision to grant summary judgment de novo. Brown v.
Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016). See also Peterson v. Foley, 559
S.W.3d 346, 348 (Ky. 2018).
ANALYSIS
The primary issue in this appeal is whether the Kentucky State
Student Handbook created a contract with Mucker sufficient to trigger the
governmental immunity waiver set out in KRS 45A.245. That statute provides, in
relevant part:
(1) 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 or 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.
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KRS 45A.245 has been interpreted as “an unqualified waiver of immunity in all
cases based on a written contract[.]” University of Louisville v. Rothstein, 532
S.W.3d 644, 647 (Ky. 2017).
Thus, to be entitled to a waiver of immunity per KRS 45A.245, it is
incumbent upon Mucker to demonstrate that a written contract existed between
Kentucky State and him. To do so, Mucker relies upon the student handbook and
points to provisions of the handbook that reference Residence Hall Contracts.
However, Mucker’s claims are not based upon provisions in such a Residence Hall
Contract; rather, his claims are based upon provisions in the student handbook
relating to hearing and appeal procedures for disciplined students.2
As a result, we view Furtula, 438 S.W.3d at 309 as controlling.
Therein, our Supreme Court considered whether a University of Kentucky Staff
Handbook and related documents constituted a contract that would effectively
waive immunity by operation of KRS 45A.245. The Court pointed out that the
handbook expressly stated that it was not a contract and that the university retained
the authority to change or modify relevant provisions. In view of these statements,
2
Charles Mucker, II, also executed a Resident Zero Tolerance Acknowledgement that provided
that the use of drugs would result in immediate eviction from campus housing and suspension
from the University. There is no dispute that Mucker signed the acknowledgement.
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the Court held that no contract was created, and the university retained its
governmental immunity.
As in Furtula, 438 S.W.3d at 309, the Kentucky State Student
Handbook clearly and unmistakably states that its provisions “shall not be
constructed as contractual obligations” and “are subject to change at any time
without prior individual notice.” Simply stated, Kentucky State plainly expressed
its intent not to create contractual obligations by any provision set forth in the
student handbook. Accordingly, we agree with the circuit court that Furtula is
dispositive and that the student handbook does not create a contract between
Kentucky State and Mucker. As a result, KRS 45A.245 is inapplicable, and
Kentucky State enjoys governmental immunity.
Mucker also argues that the circuit court erred by dismissing his
promissory estoppel claim. We disagree and conclude that this claim is barred by
governmental immunity, as the statutory exception to immunity under KRS
45A.245 is inapplicable herein.
For the foregoing reasons, the Order of the Franklin Circuit Court is
affirmed.
MAZE, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF AND ORAL ARGUMENT BRIEF FOR APPELLEES:
FOR APPELLANT:
William E. Johnson
F. Todd Lewis W. Eric Branco
Louisville, Kentucky Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
William E. Johnson
Frankfort, Kentucky
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