KENOYE EKE, Ph.D. v. KENTUCKY STATE UNIVERSITY
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RENDERED:
February 18, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000191-MR
KENOYE EKE, Ph.D.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 03-CI-00471
v.
KENTUCKY STATE UNIVERSITY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
HENRY, JUDGE:
Kenoye Eke, Ph.D. (Dr. Eke) appeals from a
summary judgment of the Franklin Circuit Court upholding his
dismissal as an employee of Kentucky State University (KSU).
We
affirm.
Dr. Eke was first hired by KSU in May of 1999 to serve
as Associate Vice President for Academic Affairs and Acting Dean
of the College of Professional Studies.
The term of this first
employment contract was one year, beginning July 1, 1999 and
ending June 30, 2000.
Dr. Eke accepted this appointment on June
10, 1999.
In this first contract Dr. Eke was also appointed
Professor with tenure in Political Science.
During the course
of his employment at KSU Dr. Eke’s job title and duties changed
somewhat and his salary was increased.
On April 25, 2001 the
parties signed an Employment Agreement (Agreement) appointing
Dr. Eke Vice President for Academic Affairs at KSU for a
fifteen-month term beginning April 1, 2001 and ending June 30,
2002.
The terms and conditions of Dr. Eke’s status as a tenured
Professor were specifically excluded from the scope of the
Agreement; therefore, even if his employment as Vice President
for Academic Affairs was ended he retained a separate
contractual right to continued employment as a tenured
Professor.
On or about June 21, 2002 KSU fired Dr. George Reid,
who had been KSU’s President when the Agreement was signed, and
hired Dr. Paul E. Bibbens, Jr. as Interim President.
On June
28, 2002 President Bibbens called Dr. Eke into his office and
told him that as of June 30, 2002 he would no longer be Vice
President for Academic Affairs.
During the next two months the
parties discussed payment of a severance package to Dr. Eke but
no final agreement was reached.
In late August 2002 KSU
learned, apparently from an article published in the Frankfort
newspaper, that Dr. Eke had accepted a position as Provost at
Cheyney State University in Pennsylvania, and the negotiations
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ceased.
This action was filed in Franklin Circuit Court on
April 22, 2003.
8, 2003.
KSU filed a motion for summary judgment on May
The motion was granted on December 29, 2003, and this
appeal followed.
Dr. Eke states five grounds for reversal of the
Franklin Circuit Court’s summary judgment:
First, that the
court erroneously determined that Dr. Eke’s employment was not
“terminated” as that term is defined in the Agreement; second,
that summary judgment was granted before he had an opportunity
to complete discovery; third, that the court erroneously
dismissed Counts I and II of the complaint based on the doctrine
of sovereign immunity; fourth, that the court erroneously
rejected Dr. Eke’s claims of promissory estoppel, detrimental
reliance and fraud; and finally that the court improperly
dismissed his request for declaratory relief.
TERMINATION VERSUS EXPIRATION
Dr. Eke’s complaint alleges that on June 28, 2002 he
was told by President Bibbens that his employment “would
terminate” effective June 30, 2002.
KSU contends that there was
no “termination” but that the Agreement expired of its own terms
effective June 30, 2002.
This is important because of Paragraph
9(b) of the Agreement which states as follows:
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(b) Without Cause. The University may terminate
Employee’s employment as Vice President for Academic Affairs
hereunder at any time without cause, provided, however, that
Employee shall be entitled to severance pay in the amount of
$60,000, (26) weeks of Base Salary, in addition to accrued but
unpaid Base Salary and accrued vacation, less deductions
required by law, but if, and only if, Employee executes a valid
and comprehensive release of any and all claims that the
Employee may have against the University in a form provided by
the University and Employee executes such form within seven (7)
days of tender. In addition, Employee shall have the right to
return to faculty status at ten-twelths (sic) of base salary.
Dr. Eke argues that an issue of fact exists regarding
whether he was terminated or the Agreement merely expired
because his verified complaint alleges that he was terminated
and KSU’s responsive pleadings fail to contravene that
allegation.
If his employment was terminated without cause, he
is entitled to severance, but if the contract simply expired of
its own terms there is no contractual basis for severance pay.
Exhibit No. 3 to Dr. Eke’s complaint is a copy of a letter
from President Bibbens to Dr. Eke which states in pertinent
part:
This letter will confirm the expiration of
your contract as Vice-President for Academic
Affairs at Kentucky State University on June
30, 2002. In accordance with the terms of
this contract, you retain all rights as a
tenured professor of Political Science at
KSU . . . .
We are to review the record in the light most
favorable to the non-moving party.
Dossett v. New York Mining &
Mfg. Co., 451 S.W.2d 843 (Ky. 1970).
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Having done so we are
unable to conclude that Dr. Eke’s characterization of the ending
of his administrative employment as “termination” creates an
issue of material fact.
KSU doesn’t deny that Bibbens may have
used some tense of the verb “terminate” when advising Dr. Eke of
the cessation of his administrative employment, but contends
that the dispute is merely semantic.
We agree.
The facts are
clear that Dr. Eke’s contract expired on June 30 and that
Bibbens told him that his administrative employment would end
June 30.
“. . . [S]ummary judgment does not require that there
be no issue of fact but that there be no genuine issue of fact.
If the defenses have no substance, if controlling facts are not
in dispute, or factual disputes are insignificant, summary
judgment is appropriate.”
(Citation omitted) Blue Cross & Blue
Shield of Kentucky, Inc. v. Baxter, 713 S.W. 2d 478, 479 (Ky.
App. 1986).
OPPORTUNITY TO COMPLETE DISCOVERY
Dr. Eke contends that summary judgment was entered
before he had a chance to begin discovery.
Several cases hold
that summary judgment should not be entered so as to terminate
the proceedings before the parties have had ample time to
complete discovery.
See for example Hartford Ins. Group v.
Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628 (Ky. App.
1979).
The complaint was filed April 22, 2003.
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KSU filed its
answer on May 6, 2003, and filed its motion for summary judgment
on May 8, 2003.
Summary judgment was entered almost eight
months later on December 29, 2003. It does not appear from the
record that any notices to take depositions were filed, that any
depositions were taken or that the trial court entered any
orders staying discovery during this time.
Eight months is
ample time to at least commence the discovery process. As stated
in Hartford, supra at 630:
It is not necessary to show that the respondent
has actually completed discovery, but only that
respondent has had an opportunity to do so.
Here, Hartford had a period of some six months
between the filing of the complaint and the date
of summary judgment in which to engage in
discovery, or to inform the court, pursuant to
CR 56.06, why judgment should not be entered or
why a ruling on the motion for summary judgment
should be continued.
There is nothing in the record to indicate that Dr. Eke’s
opportunity to complete discovery was foreclosed by the timing
of the entry of the judgment, and we conclude that this argument
is without merit.
SOVEREIGN IMMUNITY
During July and August 2002 Dr. Eke had discussions
with various representatives of KSU toward severing all ties
with KSU, including his position as a tenured professor.
A
document titled “Settlement Agreement and Release” was drafted
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by KSU’s private counsel and forwarded to Dr. Eke.
By its terms
this document was not to be “…binding or enforceable against KSU
until approved by the Board of Regents of Kentucky State
University at a regular or specially called meeting.”
It is
undisputed that the document, referred to by Dr. Eke and the
circuit court as the “verbal severance agreement”, was never
executed by KSU or approved by the Board of Regents.
As noted
by the circuit court, Counts I through IV of the complaint are
based on this “verbal severance agreement”.
Count I sought
specific performance of the agreement, Count II sought damages
for its breach, Count III raised the theories of detrimental
reliance and promissory estoppel in support of the agreement and
Count IV alleged fraud and misrepresentation by KSU pertaining
to the agreement.
As to Counts III and IV it is Dr. Eke’s
contention that KSU induced him to resign his tenured position
by negotiating a severance agreement that it never intended to
execute or implement.
The parties do not dispute that Kentucky State
University is an agency of the Commonwealth of Kentucky.
Discussing KRS1 45A.245(1), the Kentucky Supreme Court recently
stated in Commonwealth v. Whitworth, 74 S.W.3d 695, 700 (Ky.
2002):
1
Kentucky Revised Statutes
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Suit cannot be instituted against the Commonwealth on a
claim unless sovereign immunity has been specifically
waived, as it has been on a lawfully authorized written
contract.
Whitworth specifically dealt with an attempt to
enforce oral contracts against the Commonwealth of Kentucky and
held that contracts with the state must be in writing to be
enforceable.
It is undisputed that the “verbal severance
agreement” was never executed by KSU, and therefore the circuit
court properly found it unenforceable against the Commonwealth.
The circuit court found that absent a specific express
waiver, the doctrine of sovereign immunity bars any relief on
any of the remaining theories cited by Dr. Eke.
While Dr. Eke
makes no claim of an express waiver he urges us to find that
“special circumstances” exist in this case which require us to
enforce the “verbal severance agreement”.
Dr. Eke cites
Laughead v. Commonwealth, Department of Transportation, 657
S.W.2d 228 (Ky. 1983) for the proposition that sufficiently
egregious intentional misconduct by the Commonwealth may
constitute “special circumstances” in which the courts are
justified in fashioning an equitable remedy despite sovereign
immunity. Laughead does not mention “special circumstances” in
regard to the application of equitable remedies against the
Commonwealth.
Although the doctrine of equitable estoppel was
employed by the court in that case, it was in aid of Laughead’s
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suit for an injunction to enforce a statute which waived
sovereign immunity and provided for a specific remedy.
In J.
Branham Erecting & Steel Service Co. v. Ky. Unemployment
Insurance Commission, 880 S.W.2d 896 (Ky. App. 1994) this court,
declining to apply the doctrine against the Commonwealth, could
find no case enumerating what specific “special circumstances”
would have to exist to justify applying the doctrine but
indicated that it would only be applied when a “gross inequity”
would result.
Here it appears that Dr. Eke accepted a position
with Cheyney University in Pennsylvania on or about August 5,
2002, then continued to try to negotiate a severance package
with KSU.
When KSU learned that Dr. Eke had accepted other
employment it had no further incentive to negotiate to “buy out”
his contractual tenured position.
KSU never terminated Dr. Eke
as a Professor of Political Science, with or without cause.
He
abandoned that position when he accepted employment in
Pennsylvania.
While we agree that the Commonwealth should not
be permitted to profit by its own wrong, there is no support in
this record for a finding of “special circumstances”.
That
being the case sovereign immunity applies and Whitworth, supra,
is controlling.
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DECLARATORY RELIEF
The circuit court dismissed Dr. Eke’s claim for
declaratory relief because it held that the claim was “based
upon the claims asserted in Counts I through V of the
complaint.”
This, Dr. Eke claims, is only partially correct in
that he also sought a determination that he was terminated
without cause under Paragraph 9(c) of the Agreement.
We find
this contention to be without merit because the circuit court’s
finding that the Agreement expired of its own terms is
necessarily a finding that Dr. Eke’s employment was not
terminated without cause.
The judgment of the Franklin Circuit
Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
William C. Rambicure
Lexington, Kentucky
J. Guthrie True
Frankfort, Kentucky
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