RENDERED: MAY 6, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0293-MR
BOYD COUNTY SHERIFF’S OFFICE APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, SPECIAL JUDGE
ACTION NO. 20-CI-00378
JAMES JOHNSON APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
DIXON, JUDGE: Boyd County Sheriff’s Office (hereinafter “BCSO”) appeals the
order denying its motion to dismiss James Johnson’s claim for unjust enrichment
entered by the Boyd Circuit Court on February 20, 2021. BCSO contends it was
entitled to sovereign immunity for this claim. Following a careful review of the
briefs, the record, and the law, we reverse.
BACKGROUND FACTS AND PROCEDURAL HISTORY
James Johnson is employed by BCSO and alleges he and other
employees were required, or were permitted, to work in excess of their regular
hours, entitling them to overtime compensation. To avoid paying the higher
overtime rate, BCSO offered the employees an hour-for-hour of compensation time
for each overtime hour.
While a one-for-one exchange of overtime for compensation hours is
permitted under KRS1 337.285(4),2 it must be at the written request of the
employee, “made freely and without coercion, pressure, or suggestion by the
employer, and upon a written agreement reached between the employer and the . . .
employee . . . before the performance of the work.” Id. Here, Johnson neither
requested nor agreed to this arrangement. Moreover, Johnson contends BCSO
pressured him to accept its proposal after having worked the additional hours.
Consequently, Johnson sued BCSO3 on his behalf, as well as other
similarly situated employees. Among Johnson’s claims was one of unjust
enrichment since he worked additional hours but was never paid the higher
1
Kentucky Revised Statutes.
2
A “county . . . employee . . . who is authorized to work one (1) or more hours in excess of the
prescribed hours per week may be granted compensatory leave on an hour-for-hour basis.”
3
Johnson also sued the County of Boyd, Kentucky, and the Boyd County Fiscal Court. Since
neither of those entities is a party to this appeal, we need not address them further.
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overtime rate.4 BCSO moved the trial court to dismiss the claim alleging it was
entitled to sovereign immunity. The trial court found BCSO had no sovereign
immunity against the unjust enrichment claim and denied the motion to dismiss.5
This appeal followed.
STANDARD OF REVIEW
This appeal is properly before us because an order denying a claim of
immunity is immediately appealable. Harrod v. Caney, 547 S.W.3d 536, 540 (Ky.
App. 2018); Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky.
2009); Mattingly v. Mitchell, 425 S.W.3d 85, 89 (Ky. App. 2013). Entitlement to
immunity is a question of law. See Univ. of Louisville v. Rothstein, 532 S.W.3d
644, 647 (Ky. 2017); Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citing
Jefferson Cty. Fiscal Ct. v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004)). Questions
of law are reviewed de novo. Rothstein, 532 S.W.3d at 647 (citing Cumberland
Valley Contractors, Inc. v. Bell Cty. Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007)).
4
Both Johnson’s original and amended complaints contained six counts. The other five counts
were for claimed violations of Kentucky’s wage and hour statutes, KRS 337.010 et seq.
5
In the same order, the trial court dismissed Johnson’s claims under KRS 337.055 and KRS
337.060, but made no specific mention about his claims under KRS 337.020, KRS 337.285, or
KRS 337.385. Even so, the content of the order indicates BCSO had no immunity for these
claims and did not dismiss them.
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ANALYSIS
On appeal, BCSO argues the trial court erred by determining BCSO is
not entitled to sovereign immunity for Johnson’s unjust enrichment claim. This is
the sole issue before us as “the scope of appellate review of an interlocutory appeal
of the trial court’s determination of the application of . . . immunity is limited to
the specific issue of whether the immunity was properly denied and nothing more.”
Baker v. Fields, 543 S.W.3d 575, 578 (Ky. 2018).
Sovereign immunity is broad, protecting the state not only from the
imposition of money damages but also from the burden of defending a lawsuit.
Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 830 (Ky. 2021); Lexington-
Fayette Urban Cty. Gov’t v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004) (“Immunity
from suit includes protection against the ‘cost[s] of trial’ and the ‘burdens of
broad-reaching discovery’ that ‘are peculiarly disruptive of effective
government.’”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396, 409-10 (1982)). The doctrine of sovereign
immunity also covers departments, boards, and agencies that are integral parts of
state government. See Bryant v. Louisville Metro Housing Auth., 568 S.W.3d 839,
846 (Ky. 2019). The immunity of governmental and quasi-governmental agencies
is referred to as “governmental” as opposed to “sovereign” immunity, although this
delineation in terminology is a distinction without a difference. Id.
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Here, it is acknowledged that BCSO is an agency which may be
entitled to sovereign – or governmental – immunity; the issue is whether immunity
was waived. The Constitution of Kentucky vests the General Assembly with the
authority to waive immunity for the Commonwealth and its agencies. Benningfield
v. Fields, 584 S.W.3d 731, 736 (Ky. 2019).6 However, it is well-established that
we will find waiver only where one is stated “by the most express language or by
such overwhelming implications from the text as [will] leave no room for any other
reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29
S. Ct. 458, 464-65, 53 L. Ed. 742 (1909).
The doctrine of sovereign immunity extends to both tort and contract
actions. Univ. of Louisville v. Martin, 574 S.W.2d 676, 677 (Ky. App. 1978). In
the case herein, most of Johnson’s claims arise from his employment contract with
BCSO; only one of his claims is not based in contract – the one for unjust
enrichment. At this early stage, however, we need not delve too deeply into the
merits of Johnson’s claim. We must merely determine if BCSO was entitled to
immunity or whether a valid waiver applies to this specific claim.
The case herein is like Lipson v. University of Louisville, 556 S.W.3d
18 (Ky. App. 2018), in which the parties entered into a written employment
6
“The General Assembly may, by law, direct in what manner and in what courts suits may be
brought against the Commonwealth.” KY. CONST. § 231.
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agreement. Id. Our Court found Lipson could not establish that his written
employment contract was violated because he received more total wages than were
due him under the terms of his contract. Id. at 28. His claims for unjust
enrichment were based on documents that were never signed by the University.
Accordingly, the Court held:
Whatever the merits of Lipson’s unjust enrichment claim
against the University may be, Lipson cannot recover
against the University under this equitable remedy
because there is no waiver of immunity for anything
other than a written contract. See [Commonwealth v.
Whitworth, 74 S.W.3d 695, 700 (Ky. 2002)] (holding
governmental immunity prevents the enforcement of an
oral contract); [Furtula v. Univ. of Kentucky, 438 S.W.3d
303, 310 (Ky. 2014)] (holding no waiver of
governmental immunity for oral or implied contracts).
Therefore, the University was properly granted summary
judgment in its favor as to Lipson’s claim for unjust
enrichment.
Id. (emphases added).
The doctrine of unjust enrichment is an equitable one for a “contract
implied in law” – or an implied contract. Union Cent. Life Ins. Co. v. Glasscock,
270 Ky. 750, 110 S.W.2d 681, 686 (1937). It is not based on a “contract obligation
in the true sense, but a quasi[-]contract, constructively imported by law, as where
one has received money or its equivalent under such circumstances that in equity
and in good conscience he ought not to retain it[.]” Id. Thus, as pointed out by
Lipson, there is no waiver of immunity for the unjust enrichment claim, and it may
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not proceed. Thus, to the extent Johnson’s claim is one of unjust enrichment, the
BCSO must be afforded immunity.
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Boyd Circuit Court is REVERSED to the extent it denied BCSO immunity against
Johnson’s unjust enrichment claim.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jeffrey C. Mando Randall S. Strause
Jennifer L. Langen Andrew Williams
Covington, Kentucky Louisville, Kentucky
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