Manning G. Warren v. University of Louisville ( 2022 )

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0468-MR
MANNING G. WARREN APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 21-CI-00010
UNIVERSITY OF LOUISVILLE APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Appellant, Manning G. Warren, appeals the Franklin Circuit
Court’s orders denying his motion for a temporary injunction and granting
Appellee’s, University of Louisville’s, motion to dismiss. After careful review, we
affirm.
In 1984, the James Graham Brown Foundation gifted $750,000 to
Appellee to establish an endowed chair of commercial law at the University of
Louisville Brandeis School of Law. This gift created the H. Edward Harter Chair
of Commercial Law (the Harter Chair), which Appellant has continued to hold
since 1990 as a tenured professor of law. Before Appellee hired Appellant, his
appointment letter stated Appellant “will be assigned a full-time personal secretary,
subject to the understanding that other faculty members at the School of Law may
use the secretary’s typing services when not required by [Appellant].” The letter
also stated the university’s governing handbook, the Redbook, would govern
Appellant’s employment.
In 2018, Appellee claims its Integrity and Compliance Office received
multiple hotline complaints alleging Appellant misused his administrative
assistants and had been misusing them for years. According to Appellee, the
complaints included tips that Appellant used his assistants to conduct personal
tasks for him unrelated to his role at the university, including work done outside
business hours for which the assistants were not compensated. In response,
Appellee initiated an audit to investigate the allegations.
Appellee claims the internal audit substantiated the hotline complaints
and found Appellant tasked his assistants with the following: booking dog kennel
appointments for Appellant’s dog; booking a personal ski vacation for Appellant
and his family; scheduling Appellant’s personal medical appointments and paying
Appellant’s personal bills, including a phone bill and credit card bill; helping
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Appellant’s children with car insurance and title registration for personal vehicles;
and running items to Appellant’s children at school. Appellee’s audit showed
assistants performed many of these tasks outside regular business hours and,
therefore, the tasks were uncompensated. Appellee calculated the amount owed to
each assistant who performed extracurricular tasks.
To pay the assistants, Appellee requested Appellant personally pay his
former assistants or, in the alternative, the money would come out of funding for
the Harter Chair. To the Appellee, at issue was the compensation of two former
assistants: Janet Sullivan and Betsy Wiley. Appellant responded stating Janet did
not go uncompensated as he personally paid her $32,350 for undisclosed reasons.
Appellant refused to pay Betsy. Without justification for withholding
compensation from Betsy, Appellee decided to use Harter Chair funds to pay her.
Additionally, Appellee determined Appellant’s then-current assistant worked less
than her required 37.5 hours per week, performing only about 7.5 to 10.5 hours of
work each week for Appellant. Appellee, as a result, suggested Appellant share his
assistant with other professors.
Appellant rejected this idea, claiming his appointment letter
guarantees him an assistant that he has exclusive access to. Appellant resisted and
refused to allow his assistant to perform work for other professors. Once COVID-
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19 lockdown went into full effect, Appellee transitioned Appellant’s assistant to
perform work for multiple professors. Appellant then initiated this lawsuit.
In his complaint, Appellant sought injunctive relief against Appellee.
Appellant alleged the employment letter guaranteed him a “personal secretary.”
Complaint ⁋ 1. Additionally, Appellant claimed that during contract negotiations,
he orally expressed to Appellee he would not accept the Harter Chair position
unless the university guaranteed him a “personal secretary.” Complaint ⁋ 9.
Appellant stated the importance of this through several oral statements made prior
to the parties entering the employment contract. Complaint ⁋ 9-12. The
appointment letter for Appellant’s employment explicitly stated: Appellant “will
be assigned a full-time personal secretary, subject to the understanding that other
faculty members at the School of Law may use the secretary’s typing services
when not required by [Appellant].”
The Franklin Circuit Court denied Appellant’s motion for temporary
injunction on January 20, 2021. A few months later, Appellee filed a motion to
dismiss pursuant to CR1 12.02, and the circuit court granted this motion, finding
the complaint did not possess a cognizable claim as a matter of law. In its written
opinion, the circuit court concluded that the 1990 appointment letter did not
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Kentucky Rules of Civil Procedure.
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constitute a contract, but even if it construed the letter as a contract, Appellant
failed to state a valid breach of that contract in his complaint. This appeal follows.
Appellant’s first argument is that the circuit court erred when it denied
the temporary injunction he sought pursuant to CR 65.04. We conclude this
argument is waived. “CR 65.07 allows for a streamlined and expedited disposition
of certain matters appropriate for injunctive relief – followed by an opportunity for
immediate review by the Kentucky Supreme Court under CR 65.09.”
Bridgestone/Firestone v. McQueen, 3 S.W.3d 366, 367 (Ky. App. 1999). This
procedure is unique to orders relating to temporary injunctions (i.e., not restraining
orders or permanent injunctions, see CR 65.01(a) and (c), respectively). Relief
from orders denying a temporary injunction must be sought in this Court within
twenty (20) days. CR 65.07(1) (“When a circuit court by interlocutory order has
granted, denied, modified, or dissolved a temporary injunction, a party adversely
affected may within 20 days after the entry thereof move the Court of Appeals for
relief from such order.”). Appellant did not pursue such relief within that twenty-
day time limit.2
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Even timely pursuit of such appellate court relief faces and “enormous burden,” as our Supreme
Court noted when it said:
[T]he burden placed on an aggrieved party in requesting relief pursuant to 65.07 is
high. Indeed, a trial court will only grant an injunction where it is clearly shown
that, among other things, “the movant will suffer immediate and irreparable injury,
loss, or damage pending a final judgment.” CR 65.04. Thus, the Court of Appeals
will only reverse where the movant can show such injury or loss will occur in light
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Next, we consider whether the circuit court properly granted
Appellee’s motion to dismiss Appellant’s claims for breach of contract and
declaration of rights.
When reviewing a circuit court’s granting of a motion to dismiss, the
appropriate standard of review is de novo. Netherwood v. Fifth Third Bank, Inc.,
514 S.W.3d 558, 563 (Ky. 2017); Carruthers v. Edwards, 395 S.W.3d 488, 491
(Ky. App. 2012). “It is well settled in [Kentucky] when considering a motion to
dismiss under [CR 12.02], that the pleadings should be liberally construed in a
light most favorable to the plaintiff and all allegations taken in the complaint to be
true.” Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App.
2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). “[I]n
reviewing a motion to dismiss, the trial court is not required to make any factual
findings . . . .” D.F. Bailey, Inc. v. GRW Eng’rs, Inc., 350 S.W.3d 818, 820 (Ky.
App. 2011) (citing Benningfield v. Pettit Env’t, Inc., 183 S.W.3d 567, 570 (Ky.
App. 2005)). Nevertheless, “[A circuit court] may properly consider matters
outside of the pleadings in making its decision. However, reliance on matters
outside the pleadings by the court effectively converts a motion to dismiss into a
of the trial court’s decision. Similarly, this Court will only entertain CR 65.09
motions where “extraordinary cause” is shown. All of this evidences the enormous
burden placed on the movant when requesting relief pursuant to CR 65.07 and CR
65.09.
Kindred Hosps. Ltd. Partnership v. Lutrell, 190 S.W.3d 916, 919 (Ky. 2006).
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motion for summary judgment.” Id. at 820-21 (citing McCray v. City of Lake
Louisvilla, 332 S.W.2d 837, 840 (Ky. 1960)).
The circuit court here considered matters Appellee presented to the
court which were outside the pleadings. It is fair to construe the black letter of
Appellant’s appointment letter as a part of his complaint, but evidence concerning
Appellee’s internal investigation and the alleged misuse of Appellant’s assistants
were not in Appellant’s complaint. Considering such evidence turned Appellee’s
motion to dismiss into a motion for summary judgment, which is governed by CR
56. See CR 12.02.
A circuit court properly grants summary judgment “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “An appellate court’s role in reviewing a summary judgment is
to determine whether the trial court erred in finding no genuine issue of material
fact exist[ed] and the moving party was entitled to judgment as a matter of law.”
Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018); see also Smith v.
Crimson Ridge Dev. LLC, 410 S.W.3d 619, 620 (Ky. App. 2013) (citing CR 56.03;
Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476, 480 (Ky. 1991)). Thus,
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appellate courts review a circuit court’s summary judgment de novo. Cmty. Fin.
Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).
Assuming, arguendo, the appointment letter created a valid contract
under Kentucky law, we will address whether Appellant’s claim may survive
summary judgment. For the following reasons, we concluded the claims cannot.
To begin, we note the cardinal rule of contract interpretation is that
words will be given their ordinary meaning where no ambiguity exists on the face
of the document. Fay E. Sams Money Purchase Pension Plan v. Jansen, 3 S.W.3d
753, 757 (Ky. App. 1999). Appellant, here, alleges Appellee guaranteed him
exclusive access to a personal secretary. Appellant cites Board of Regents of
Kentucky State University v. Gale to support its argument that Appellant’s
complaint survives Appellee’s motion. 898 S.W.2d 517 (Ky. App. 1995).
However, this reliance is misplaced. Insofar as Gale could have bearing on this
case, the relevant facts are as follows.
In Gale, Kentucky State University created an endowed chair for the
humanities, a position the university offered to Gale. Id. at 518. At the time, it
was Kentucky State’s first dabble into the academic world of endowed chairs, as it
had no experience with endowed chairs prior to this. Id. at 517. Several notable
problems arose between the university and Gale because of this inexperience. Id.Relevant to the appeal in Gale was whether Kentucky State employed Gale as a
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tenured professor or if the university could place a time limitation on his
employment. Id. at 520. After trial, a jury found Gale, in fact, was fully tenured
under his employment contract because paragraph 3 of his appointment letter
explicitly said so. Id.Here, Appellant’s appointment letter explicitly indicates he may have
to share his assistant, stating: Appellant “will be assigned a full-time personal
secretary, subject to the understanding that other faculty members at the School of
Law may use the secretary’s typing services when not required by [Appellant].”
There is no ambiguity in the above quoted language; Appellant may have to share
his assistant. Like the operative principles in Gale, if we give the plain, ordinary
meaning to the words of the appointment letter, Appellant had a right to an
assistant but not a right to one only employed to serve his exclusive needs.
On appeal, Appellant is primarily concerned with the diminished
access to and shared use of his assistant. At issue is not whether Appellant may
use his assistant for purely private matters or only matters related to his tenured
employment as the Harter Chair. The plain language of the appointment letter
shows Appellant did not have exclusive access to an assistant. Appellant points to
neither evidence of record nor the potential for undiscovered evidence which might
support a claim for breach of contract based on Appellant’s assistant’s work
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assignments. Appellant’s aspirations for such evidence is not enough to survive a
motion for summary judgment.
For the foregoing reasons, we affirm the Franklin Circuit Court’s
order denying Appellant’s motion for a temporary injunction and its order granting
Appellee’s, University of Louisville’s, motion to dismiss.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Garry R. Adams Donna King Perry
Abigail V. Lewis Jeremy Rogers
Louisville, Kentucky Matthew Barszcz
Aaron Vance
Louisville, Kentucky
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