Metro Louisville/Jefferson County Gov't v. Abma

• Decision Date: 10 December 2010
• Docket Number: Nos. 2007-CA-001417-MR, 2007-CA-001527-MR.,s. 2007-CA-001417-MR, 2007-CA-001527-MR.
• Citation: 326 S.W.3d 1
• Parties: METRO LOUISVILLE/JEFFERSON COUNTY GOVERNMENT and the City of Louisville, Appellants, v. Shawn ABMA, and Other Individual Appellees as Designated in the Notice of Appeal. and Robert Akridge, and Other Individual Cross-Appellants as Designated in the Notice of Appeal, Cross-Appellants, v. City of Louisville, (Now Known as Metro Louisville/Jefferson County Government), Cross-Appellees.
• Court: Kentucky Court of Appeals

326 S.W.3d 1

METRO LOUISVILLE/JEFFERSON COUNTY GOVERNMENT ¹ and the City of Louisville, Appellants,

v.Shawn ABMA, and Other Individual Appellees as Designated in the Notice of Appeal.andRobert Akridge, and Other Individual Cross-Appellants as Designated in the Notice of Appeal, Cross-Appellants,

v.City of Louisville, (Now Known as Metro Louisville/Jefferson County Government), Cross-Appellees.

Nos. 2007-CA-001417-MR, 2007-CA-001527-MR.

Court of Appeals of Kentucky.

Sept. 4, 2009.

Rehearing Denied Jan. 28, 2010.

Discretionary Review Denied b Supreme Court Dec. 10, 2010.

Laurence J. Zielke (argued), Hays Lawson, Janice M. Theriot, Louisville, KY, for appellant/cross-appellee Louisville Metro.

John D. Parsons, Frankfort, KY, for appellee Commonwealth of Kentucky, LaborCabinet ^*.

Ann B. Oldfather (argued), Vicki L. Buba, Louisville, KY, for Hasken appellees/cross-appellants.

Thomas A. Woodley, Douglas L. Steele (argued), Washington, D.C., Herbert L. Segal, Louisville, KY, for Kurtsinger appellees.

Before ACREE and NICKELL, Judges; KNOPF,² Senior Judge.

OPINION

NICKELL, Judge.

Metro Louisville/Jefferson County Government and the City of Louisville, Kentucky (collectively, the City) ³ appeal from three separate rulings ⁴ of the Jefferson Circuit Court, claiming first, that partial summary judgment was improvidently granted to two groups of firefighters, the Hasken Appellees and the Kurtsinger Appellees, because the City did not breach a series of Collective Bargaining Agreements (CBA) it had negotiated with the International Association of Firefighters, Local 345; second, that the applicable statute of limitations for any contract claim filed by the firefighters should be five years, not fifteen years as the court found; and third, that a judgment certified by the court as final and appealable was really an interlocutory order because it left unanswered too many questions about damages, costs and attorneys' fees, many of which were specifically reserved for future determination. For their part, the Hasken Appellees have filed a cross-appeal arguing the overtime pay formula should include the clothing allowance received by firefighters. After reviewing the record and the law, we affirm in all respects the opinion and order entered by the court on June 16, 2006. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion the judgment entered on September 21, 2006. Finally, we affirm the written order entered on June 17, 2007, denying the City's motion to alter, amend or vacate the judgment entered on September 21, 2006.

PROCEDURAL BACKGROUND

This is a companion case to Commonwealth v. Hasken, 265 S.W.3d 215 (Ky.App.2007). Both appeals stem from judicial and administrative claims ⁵ filed by City of Louisville firefighters alleging miscalculation of overtime pay. Hasken, which began with the filing of a wage and hour law complaint with the Kentucky Labor Cabinet in May 2000, and ended with the denial of discretionary review by the Kentucky Supreme Court in October 2008, addressed only the statutory wage and hour law violation. In contrast, this appeal addresses only the state breach of contract claim.

Hasken had been rendered by a panel of this Court when this case was briefed, but it was pending in our Supreme Court on the City's request for discretionary review. As a result, the proper overtime pay formula was a seminal issue in both Haskenand in the briefs filed in the case sub judice. However, when discretionary review was denied and Hasken became final, it became the law of the case that four of the five additional pay elements ⁶ received by firefighters must be included in the overtime pay formula and that formula must be based on a forty-hour work week. Williamson v. Commonwealth, 767 S.W.2d 323 (Ky.1989) (law of the case doctrine prevents relitigation of issue raised and decided in prior appeal). In the wake of Hasken, there is nothing for us to decide regarding the cross-appeal and the City concedes the prime question now before us is whether the statute of limitations applicable to the breach of contract claim is five years or fifteen years.

Hasken held the circuit court correctly applied the five-year statute of limitations mentioned in KRS 413.120(2) to the wage and hour law violation because KRS Chapter 337 does not specify a separate statute of limitations for such a claim. Hasken also held there was no equitable tolling of the statute under KRS 413.190(2).

FACTS

While the appeal we consider today is limited to the breach of contract claim, it stems from the same miscalculation of overtime pay performed by the City between 1984 and 2001. On June 16, 2006, an opinion and order of the Jefferson Circuit Court was entered granting partial summary judgment to both firefighter groups and the City. The opinion found: the City breached a series of contracts with the firefighters by failing to compensate them for overtime pay in accordance with the CBAs, caselaw and both federal and state legislation; the firefighter's claims were governed by the fifteen-year statute of limitations that applies to written contracts; and, as it found in its opinion entered on September 10, 2004, the clothing allowance was properly excluded from the overtime calculation because it was not an item of remuneration but instead was reimbursement of clothing costs.

The judgment drafted by the firefighters, at the court's direction, was signed and entered by the court on September 21, 2006. In addition to reciting it was "final and appealable" pursuant to CR 54.02, the judgment stated: there was no genuine dispute as to any material fact; the firefighters were entitled to receive overtime compensation at one and one-half times their regular rate of pay for all hours worked in excess of forty; four additional elements of pay were to be included in the regular rate of pay; the overtime calculation was to be based on a forty-hour work week; the City violated its contract with the firefighters by miscalculating their overtime pay; because of the City's miscalculation, any firefighter employed by the City was entitled to additional overtime pay but could not recover twice for any payment already received; the window for recovery was fifteen years or September 8, 1985, to date; and the firefighters were not entitled to additional overtime pay for the clothing allowance. The judgment went on to award pre- and post-judgment interest, costs, and consequential damages, but reserved the precise amount of these items pending the taking of proof. Otherquestions reserved for further proceedings were: whether firefighters may recover contract damages for periods prior to September 9, 1985; whether the statute of limitations on the contract claim should be tolled; and finally, whether the firefighters were entitled to liquidated damages and the amount of any costs and attorneys' fees ⁷ owed to them on both the breach of contract claim and the wage and hour violation.

The City moved to alter, amend or vacate ⁸ the judgment claiming: there were so many issues left unresolved and so much proof yet to be taken that the judgment was really interlocutory, even though it contained finality language; ⁹ entry of the judgment would result in piecemeal appeals; and the City was insulated from any award of interest and attorneys' fees by sovereign immunity. The motion was heard in October 2006, at which time the court stated from the bench that it would deny the motion, however, no contemporaneous written order was entered. A status conference on the motion was held on June 11, 2007. After reviewing the videotape record of the October hearing, the trial court entered a written order on June 15, 2007, formally denying the motion to alter, amend or vacate. This appeal and cross-appeal followed.

The complexion of this appeal changed greatly when Hasken became final. As a result, we restrict ourselves to three issues: 1) whether the City's flawed overtime formula breached its CBAs with the firefighter's union; 2) whether the fifteen-year statute of limitations applicable to written contracts governs the breach of contract claims; and finally, 3) whether the circuit court's award of pre- and post-judgment interest is foreclosed by the City's assertion of sovereign immunity.

I. Did the City breach its contract with the union?

This claim reaches us by way of the circuit court's grant of partial summary judgment to the firefighters on their state law contract claims. When a grant of summary judgment is appealed to us, our standard of review "is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearson ex rel. Trent v. National Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.2002). A grant of summary judgment is appropriate only if "it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). When considering a motion for summary judgment, the trial court must construe the record in the light most favorable to the party opposing the motion and the non-moving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but 'must present affirmative evidence in order to defeat a properly supported motion for summary judgment.' " Id. at 480-81. While we defer to the trial court regarding factual issues, questions of law are reviewed de novo on appeal. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App.2005). Here, there appear to be no disputed issues of fact so our review of the circuit court's application of the law to thefacts is de novo. After reviewing the pleadings, the law, and specifically the law of the case as established in Hasken, we affirm in full the trial court's opinion and order entered on June 16, 2006, granting partial summary judgment to both the...