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
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)
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,
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).
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
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...
