RENDERED:
FEBRUARY 27, 2004; 2:00 p.m. NOT TO BE PUBLISHED
C ommonwealth O f K entucky C ourt O f A ppeals
NO. 2003-CA-000971-MR
ROBERT K. LANDRUM
APPELLANT
v.
APPEAL FROM ADAIR CIRCUIT COURT HONORABLE JAMES G. WEDDLE, JUDGE ACTION NO. 01-CI-00132
LINDSEY WILSON COLLEGE
APPELLEE
OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, KNOPF, AND McANULTY, JUDGES. Robert K. Landrum appeals from a summary
KNOPF, JUDGE:
judgment order of the Adair Circuit Court which dismissed his wrongful-termination and breach of contract claims against Lindsey Wilson College. He asserts that summary judgment was
not appropriate and that he should have been allowed to complete discovery. We agree with the trial court that
Landrum had failed to present evidence of facts in dispute which would have precluded judgment for the College. we affirm. The essential facts of this action are not in dispute. In February of 1992, Lindsey Wilson College (the Hence,
College) hired Landrum as a professor in its business department.1 From 1992 until 1997, Landrum was employed by In
the College under a series of one-year contracts.
February of 1997, the College offered Landrum a three-year “rolling” employment contract. While the contract set forth The contract
a three-year term, it was renewable annually.
also provided that it was subject to the terms and conditions set forth in the faculty handbook. contract provided: If this letter agreement is terminated as provided for herein, it is understood that the College has no responsibility or liability to continue paying your compensation to you after the date this agreement is terminated and your employment with the College has ended. Landrum signed the contract on February 14, 1997. In February of 1998, 1999, 2000, and 2001, Landrum signed substantially identical contracts with the College, each of which provided for a three-year term from the date of the contract. However, beginning with the February 10, 1999, In addition, the 1997
contract, the agreements provided as follows: This letter of agreement may be terminated by you or the College by either party giving thirty (30) days prior written notice to the other. If this letter of agreement is terminated as Lindsey Wilson College is a private, four-year liberal arts college located in Columbia, Kentucky.
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provided for herein, it is understood that the College has no responsibility or liability to continue paying your compensation to you after the date this agreement is terminated and your employment with the College has ended. Although Landrum signed each of the annual contracts, he objected to the inclusion of the new provision. On June 19, 2000, Landrum requested in writing that the provision relating to the thirty-day termination notice be stricken from his 2000 employment contract. not agree to this request. On June 29, 2001, the College’s president, William T. Luckey, Jr., sent a letter notifying Landrum that Landrum’s employment would terminate thirty days later. Thirty days later, the College did terminate Landrum’s employment. In response, Landrum filed this action in Adair The College did
Circuit Court, seeking damages for breach of contract and wrongful termination. Landrum also sought an injunction In an order entered
requiring the College to reinstate him.
on August 20, 2001, the trial court denied Landrum’s motion for a preliminary injunction. Following a period of discovery, the College filed a motion for summary judgment, arguing that the thirty-day notice provision in the contract allowed it to terminate Landrum’s employment with or without cause. The College also
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asserted that Landrum had engaged in conduct which justified its decision to terminate his employment.2 In an order
entered on March 1, 2003, the trial court granted the College’s motion for summary judgment. This appeal followed.
The underlying conflicts between Landrum and the College are complex, but in brief, they developed as follows: In 1996, two female students accused Landrum of engaging in sexually harassing behavior. One of those students filed an action in federal court against Landrum and the College, but that action was ultimately dismissed on a motion for summary judgment In April of 2000, several students complained to the College administration that Landrum’s conduct in the classroom created an uncomfortable atmosphere for the women in the class. The students also voiced fears that Landrum would retaliate against them for reporting this conduct. A subsequent investigation by the College found that harassment had not occurred, but suggested that Landrum should have handled the matter differently. Thereafter, several of the students involved complained that Landrum had contacted them about the alleged harassment. The College directed Landrum not to communicate with the students or anyone else about the matter. In 2001, Landrum published a book about the harassment claims and how the College handled the matters. Robert K. Landrum, The Blame Game, Black Forest Press, 2001. Landrum also publicized the book in the local newspaper. College President Luckey took issue with the book, asserting that Landrum’s publication of the book:(1) violated the prior direction to Landrum not to discuss the matter with anyone; (2) contained confidential information about the accuser’s grades in violation of the “Family Education Rights and Privacy Act” 20 U.S.C. § 1232g. (Requiring institutions receiving Federal funding to maintain confidentiality of student records); and (3) was prejudicial to the College’s interests. College President Luckey issued the letter giving Landrum thirty-days notice of termination shortly after the book was published. Landrum contends that his actions in publishing the book did not violate Luckey’s direction to refrain from discussing the matter with students, and did not violate any privacy rights.
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As a preliminary matter, the College asserts that Landrum’s pro se brief should be disregarded because it does not comply with the requirements of CR 76.12. However, the
College’s argument in its brief is not accompanied by a separate motion to strike Landrum’s brief. Furthermore, the
courts traditionally give some latitude to pleadings by pro se litigants. Although Landrum’s brief has significant
stylistic and substantive deficiencies, it generally meets the requirements set forth in CR 76.12. In particular,
Landrum’s brief essentially sets out his alleged grounds of error, at least in layman’s terms. While he has failed to
cite any legal authority for his claimed error, this omission goes more to the merits of his appeal than to the sufficiency of his brief. We agree with the College that the appendix to
Landrum’s brief contains documents and materials which were not made part of the record below. Accordingly, we have
disregarded these materials in our consideration of this appeal. The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of
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law.3
There is no requirement that the appellate court defer
to the trial court since factual findings are not at issue.4 "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor."5 Summary judgment is
“proper only where the movant shows that the adverse party could not prevail under any circumstances."6 Consequently,
summary judgment is to be granted only when it appears impossible for the non-moving party to produce evidence at trial warranting a judgment in his favor and against the movant.7 The primary issue in this case is whether the College properly invoked the provision allowing it to terminate Landrum’s employment upon thirty-days’ notice. Matters involving the interpretation of a contract are
CR 56.03; Scrifes v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996). Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992). Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).
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Id. at 479; citing, Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985). Id. at 480.
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questions of law, which this Court may review de novo.8 Landrum argues that the provision was improperly inserted into his 1999 contract because it was never approved by the College’s Board of Trustees. imposing such a requirement. However, he cites no authority As a general rule, summary
judgment should not be granted until the parties have an opportunity to complete discovery.9 Nonetheless, a party
opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial.10 Landrum failed to
bring forward any evidence supporting his argument that the thirty-day notice provision in the contract was never properly adopted by the College. However, the provision remains problematic, although for an entirely different reason than asserted by Landrum. Beginning in February of 1997, Landrum and the
College entered into a series of three-year employment contracts. Yet somewhat inconsistently, the faculty manual
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See Morganfield National Bank v. Damien Elder & Sons, Ky., 836 S.W.2d 272 (1997). Welch v. American Publishing Co. of Kentucky, Ky., 3 S.W.3d 724, 730 (1999). Hubble v. Johnson, Ky., 841 S.W.2d 169, 171 (1992).
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(adopted by reference in the contract) stated that these contracts were “renewable annually”. Under the terms of the
1997 and 1998 contracts, Landrum’s employment could be terminated or modified only as set out in the faculty manual. The faculty manual also provided that a faculty member under a multi-year contract may be dismissed or may seek to be released with a one-year notice and majority consent of the division chairs. The policy also allows the College to
dismiss a contracted faculty member for misconduct, or under other specified conditions. But in 1999, the College
inserted the provision allowing it to terminate Landrum’s employment for any reason provided that it gave him thirtydays’ notice. In its order denying Landrum’s motion for a temporary injunction, the trial court concluded that each of the annual contracts superceded the previous year’s contract. However, none of the letter agreements specifically rescinded the prior contract.11 Rather, the only reasonable
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In fact, the faculty manual provides that “[e]ach appointment or reappointment of a faculty member continues only for the term specified in that individual’s employment contract. Notwithstanding anything expressed or implied elsewhere in this Handbook, there is no obligation to reappoint for another term, and non-renewal of a faculty member’s appointment or reappointment may be with or without cause and is solely at the discretion of the College. Each such appointment or reappointment terminates without further 8
interpretation of the contracts as a whole is that each letter agreement merely extended the prior contract for an additional year. In an at-will employment relationship, the employer may unilaterally modify an at-will employment contract prospectively upon reasonable notice to the employee.12 conversely, where an employment contract sets forth a specific period of employment, an employer may not unilaterally alter the terms and conditions of the employment during that period. It is doubtful that the College would But
have been authorized to invoke the thirty-day notice provision until the prior contract term had expired. Any
other interpretation would seem to render the employment contract illusory. Nevertheless, this concern does not allow Landrum to avoid the express terms of the contract in this situation. The 1998 contract, which was the last contract not containing the thirty-day notice provision, set forth that the agreement
action on the expiration date specified in the faculty member’s contract, unless that appointment is renewed.”
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See Roshong v. American Saw & Tool Company, Inc., Ky., 244 S.W.2d 974 (1951); Meyers v. Brown-Forman Distillery Company, 289 Ky. 185, 158 S.W.2d 407 (1942); see also Thomas G. Fischer, Annotation, “Sufficiency of Notice of Modification in Terms of Compensation of At-Will Employee Who Continues Performance to Bind Employee”, 69 A.L.R.4th 1145 (1989 & 2003 Supp.). 9
was to be effective through the spring semester of 2001.
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College in fact, retained Landrum through the completion of that semester. Under the terms of the subsequent contracts,
the College was authorized to terminate Landrum’s employment after that time upon giving him the required notice. Furthermore, Landrum agreed to the inclusion of that provision by signing each of the contracts. Because the
applicable contract allowed the College to terminate Landrum’s employment without cause, we need not consider whether the College would have had cause to do so. Accordingly, the judgment of the Adair Circuit is affirmed.
McANULTY, JUDGE, CONCURS. COMBS, JUDGE, CONCURS IN RESULT. BRIEF FOR APPELLANT: Robert K. Landrum, pro se Lexington, Kentucky BRIEF FOR APPELLEE: John O. Sheller Joseph A. Worthington Smith & Smith, Attorneys Louisville, Kentucky
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