Com. v. Whitworth
| Decision Date | 16 May 2002 |
| Docket Number | No. 2000-SC-0895-DG.,2000-SC-0895-DG. |
| Citation | 74 S.W.3d 695 |
| Parties | COMMONWEALTH of Kentucky, Tourism Development Cabinet, Department of Parks; Mark A. Lovely; Department of Personnel and Personnel Board, Appellants, v. Phillip WHITWORTH, Individually and on Behalf of All Others Similarly Situated; Roy H. Allen; Daniel F. Billington; Mason G. Billington; Richard A. Blackman; Timothy Bryant; Benjamin Joseph Bunch; William Tracy Cassidy; Kenny Collins; Warfield Crowley; Boyd T. Curry; Larry W. Curry; William Lawrence Daring; Frank Douglas; Archie F. Embry; Jerry Garland; Paul T. Garvin; Aubrey Len Grace; Kenneth James Grider; James Howard Hogan; Joshua Hogan; Thomas L. Hilton; Joe Johnson; Phyllis Joyce; Teddy Dean Lawson; Bobby Little; William M. Logan; Jackie D. Mann; Donald E. Marksberry; Jeffrey Paul McIntosh; George W. McPherson; Paul A. McPherson; Kenneth Minor; Cecil R. Moore; Roger Darryl Murphy Danny Ray O'Dell; Brian L. Payne; Leo J. Payne; Egbert Wayne Riddle; Reggie C. Roberson; Charles E. Stubblefield; James Neal Stumbo; Fred Sullivan; James A. Tate; Roger S. Taul; Bobby Thomas; Anthony Lee Wakefield; Phillip Whitworth; Roger Woosley, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Henry J. Curtis, Office of General Counsel, Frankfort, Counsel for Appellants.
Michael L. Judy, Paul C. Harnice, Johnson, Judy, True & Guarnieri, LLP, Frankfort, Counsel for Appellees.
This appeal is from an opinion of the Court of Appeals affirming in part, reversing in part and remanding an opinion and order of the Franklin Circuit Court which granted summary judgment to the Department of Parks on the breach of contract claims brought by some of its contract employees.
The Department of Parks argues that the persons involved were at all times at-will or temporary employees; that the employees are precluded from prosecuting this action because of the election of remedies doctrine; that the case must be dismissed because of sovereign immunity and that the Court of Appeals abused its discretion when it reversed the circuit court order. The employees respond that the Court of Appeals was correct when it reversed the summary judgment of the circuit court in favor of the Department of Parks on sovereign immunity because it was premature, and they contend that the other arguments of the Department of Parks are not at issue in this appeal.
This class action lawsuit was filed in circuit court against the Department of Parks by employees hired by oral contract as temporary maintenance and construction workers pursuant to KRS 56.491(5) and KRS 148.026. The employees were hired over a period of years and worked as electricians, plumbers and carpenters, etc. They allege that they were orally promised eleven months of work per year. A dispute arose when the Department began requiring the employees to sign a certification as to a condition of further state service. This document required the employees to acknowledge their status as "P-9" or temporary, nonmerit state employees who were only allowed nine months of work per year. The Department undertook this policy after being informed by the Kentucky Retirement System that temporary P-9 employees who worked in excess of nine months per year were eligible for coverage in the retirement system. The Department began suspending the employment of the employees when they refused to sign the certification or when they completed nine months of employment.
The legal action began in 1993 when the employees filed an appeal to the Kentucky Personnel Board, contending that they were full-time state employees, qualified for Kentucky Retirement benefits. The Board rejected that appeal for lack of subject matter jurisdiction. That dismissal was then appealed to the circuit court in 1994 and was filed along with the class action presently before this Court. The 1994 appeal was remanded to the Board for consideration of whether the class plaintiffs were, by virtue of their hiring under KRS 56.491(5) and KRS 148.026, infringing upon the principles of the merit system. On remand, the Board, following a six-day evidentiary hearing, once again denied the appeals. An appeal from that decision filed by the same employees and raising the same issues is currently pending in Franklin Circuit Court, presumably awaiting the outcome of this case.
Thereafter, the circuit court granted the class action certification. After the employees filed an amended class action complaint and filed a motion for partial summary judgment, the Department responded by filing a motion for summary judgment. The circuit judge entered a summary judgment in favor of the Department finding that a suit on oral contracts was barred by sovereign immunity. As to the employees' claim that the oral contracts may have been ratified by the Department on the basis of internal written documents in their personnel files, the circuit court found that an oral contract with the Commonwealth is void and not capable of being ratified by any subsequent writing which may appear in a personnel file. The employees offered no evidence as to the actual existence of such documents.
The Court of Appeals held that although sovereign immunity barred suit on an oral contract, the oral contracts were not void and a genuine issue of material fact existed as to whether the oral contracts were ratified in some way by written documents. This Court accepted discretionary review.
The standard for summary judgment is abundantly clear in Kentucky. A movant must 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. The record must be viewed in a light most favorable to the party opposing the motion for a summary judgment and all doubts must be resolved in favor of that party. Summary judgment should be used only when, as a matter of law, it appears it would be impossible for the respondent to produce evidence at trial warranting a judgment in favor of the respondent and against the movant. See Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985).
The proper function of summary judgment is to terminate litigation when it appears that it would be impossible for the respondent to produce evidence at trial warranting judgment in the respondents' favor. It is proper where the movant shows that the adverse party cannot prevail under any circumstances. James Graham Brown Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., Ky., 814 S.W.2d 273 (1991).
The mere fact that legal conclusions may be drawn from undisputed evidentiary facts in controversy does not prevent summary judgment. Murphy v. Lumbermens Mutual Casualty Co., Ky.App., 580 S.W.2d 502 (1979). When any claim has no substance, or controlling facts are not in dispute, a summary judgment can be proper. Brown, supra.
In Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), this Court reaffirmed the standards set out in Paintsville Hospital, supra, that summary judgments are to be cautiously applied and should not be used as a substitute for trial. Under the rule and cases noted, a movant must convince the circuit court that based on the evidence in the record there is no material fact at issue. The movant will not succeed unless the right to summary judgment is shown with such clarity that there is no room left for controversy.
Only when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in its favor, should a motion for summary judgment be granted. A party opposing a properly documented summary judgment cannot defeat it without presenting at least some affirmative evidence demonstrating that there is a material issue of fact. See Perry v. Motorists Mutual Ins. Co., Ky., 860 S.W.2d 762 (1993); West American Ins. Co. v. Dickerson, Ky., 865 S.W.2d 320 (1993); Hubble v. Johnson, Ky., 841 S.W.2d 169 (1992); Brown, supra; Steelvest, supra.
The circuit court correctly determined that even if the employees could establish that they had oral contracts with the state which allowed them to work longer than nine months, they were precluded by sovereign immunity from suing on an oral contract. KRS 45A.245(1) waives sovereign immunity for a lawfully authorized written contract. As recognized by Withers v. University of Kentucky, Ky., 939 S.W.2d 430 (1997), the state cannot be sued except upon a specific and explicit waiver of sovereign immunity. Thus, the circuit judge correctly determined that the public policy of the Commonwealth bars claims on oral contracts. The employees in this action were unable to show any specific and explicit waiver of sovereign immunity as required by Withers, supra. Such a waiver cannot be implied from KRS 148.026. That statute provides that the Commissioner of Parks may employ or contract with such persons, firms or corporations as he deems necessary or desirable to accomplish the duties and functions assigned by law to the Department of Parks. There is no express language waiving sovereign immunity for the contracts alleged in this matter.
Nor can a waiver be implied from KRS 56.491(5). It provides that a capital construction project not exceeding the statutorily designated amount may be performed by employees of the requesting agency or by individuals hired specifically for the project who shall be exempt from the requirements of KRS Chapter 18A, if the project is approved and authorized by the Cabinet. Chapter 18A is the comprehensive statute which deals with state personnel.
The Court of Appeals was in error when it reversed and remanded this case to the circuit court to allow employees to introduce internal documents as proof of the ratification of the oral contracts for temporary employment. Even if such documents exist, they cannot be construed as constituting a written employment contract because the Commissioner of Parks has no authority to hire employees in violation...
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