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April 3, 2026 Get Citation Alerts Download PDF Add Note

Jessica Saner v. Commonwealth of Kentucky, Cabinet for Health and Family Services

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0234
• Judges: L. Jones

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (72K)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

                        by [Allison Jones](https://www.courtlistener.com/person/7333/allison-jones/)

RENDERED: APRIL 3, 2026; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0234-MR

JESSICA SANER; BUTLER
LEARNING CENTER, LLC; HEBRON
LEARNING CENTER, LLC;
HIGHLANDS HEIGHTS LEARNING
CENTER, LLC; INDEPENDENCE
LEARNING CENTER, LLC; TAYLOR
MILL LEARNING CENTER, LLC;
AND WALTON LEARNING CENTER,
LLC APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 22-CI-00877

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND PUBLIC
CONSULTING GROUP APPELLEES

OPINION
AFFIRMING

---

BEFORE: CETRULO, COMBS, AND L. JONES, JUDGES.
JONES, L., JUDGE: Jessica Saner and her six childcare centers (collectively

Saner) appeal from the Franklin Circuit Court’s dismissal of their claims against

the Commonwealth of Kentucky, Cabinet for Health and Family Services

(Cabinet), and Public Consulting Group (Group) for failure to state claims upon

which relief may be granted. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

To help mitigate the impact of the COVID-19 pandemic, the federal

government enacted the American Rescue Plan. Among other matters, that

legislation made funds available for states to distribute to childcare providers. The

Cabinet was responsible for distributing those funds in Kentucky. The Cabinet

entered into contracts with childcare providers which required the providers to

provide monthly data sheets to the Cabinet via a third-party, the Group.

Specifically, in relevant part, the apparently identical contracts

between each of Saner’s six childcare centers and the Cabinet provided:

1. The Provider receiving the American Rescue Plan funds must complete a monthly data sheet and send it to the third party vendor by the 5th of each month. The data sheet will include data on enrollment, staff turnover, and other key data points.

...

1. Each payment is conditioned upon the Provider meeting the requirements of this Agreement . . . .

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26. There are no third-party beneficiaries, express or
implied, to this Agreement.

...

1. Nothing contained herein shall be construed to waive the inherent sovereign immunity of the Commonwealth of Kentucky.

Trial Court Record (R.) at 23-26.

According to Saner’s complaint, the monthly data sheet submission

process was “confusing” and “fraught with problems and issues from almost the

beginning. . . .” R. at 9. The gist of Saner’s complaint alleges that the Cabinet, via

the Group, had previously accepted late timesheets but improperly withheld a

$217,503.00 quarterly payment in July 2022 because Saner’s April 2022 timesheet

was, by her own admission, submitted tardily. Saner then filed the complaint at

hand against the Cabinet and the Group, raising claims against each for breach of

contract, promissory estoppel, and negligence.

The Cabinet and the Group each filed a motion to dismiss Saner’s

complaint for failure to state a claim upon which relief may be granted. See

Kentucky Rule of Civil Procedure (CR) 12.02. The trial court granted both

motions in one order.1 Saner then filed this appeal.

1
In that same order the trial court also denied Saner’s motion to amend her complaint, holding
that the proposed amended complaint “cannot cure the deficiencies in the original Complaint.”
R. at 262. Saner’s proposed amended complaint appears to be identical, or nearly so, to the

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II. ANALYSIS

As a preliminary matter, we note Saner’s brief does not contain a

statement showing whether (and, if so, how) she preserved any of the issues in her

brief for appellate review. RAP 32(A)(4) requires the argument section of an

appellant’s opening brief to “contain at the beginning of the argument a statement

with reference to the record showing whether the issue was properly preserved for

review and, if so, in what manner.” As we have explained, “[o]ur Supreme Court

has strictly mandated compliance with the preservation statement requirements in

briefs since its inception under the prior Kentucky Rules of Civil Procedure.”

W.I.S. v. K.M.B., 722 S.W.3d 569, 576 (Ky. App. 2025) (internal quotation marks

and citations omitted). While RAP 31(H)(1) allows us to strike a brief which fails

“to substantially comply with the requirements of these rules[,]” we have elected to

proceed with review and not sanction Saner for this deficiency as the trial record is

modest and neither Appellee has raised the issue in their briefs. However, we

remind all parties of the importance of including preservation statements and

caution them of the risk that a future panel of this Court may not exercise such

leniency.

original complaint. In any event, Saner has not directly challenged the denial of her motion to
file an amended complaint.

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Furthermore, “[w]e have considered the parties’ extensive arguments

and citations to authority but will discuss only the arguments and cited authorities

we deem most pertinent, the remainder being without merit, irrelevant, or

redundant.” Schell v. Young, 640 S.W.3d 24, 29 n.1 (Ky. App. 2021).

A. Standard of Review

As our Supreme Court has explained:

A motion to dismiss for failure to state a claim upon
which relief may be granted admits as true the material
facts of the complaint. So a court should not grant such a
motion unless it appears the pleading party would not be
entitled to relief under any set of facts which could be
proved. Accordingly, the pleadings should be liberally
construed in the light most favorable to the plaintiff, all
allegations being taken as true. This exacting standard of
review eliminates any need by the trial court to make
findings of fact; rather, the question is purely a matter of
law. Stated another way, the court must ask if the facts
alleged in the complaint can be proved, would the
plaintiff be entitled to relief? Since a motion to dismiss
for failure to state a claim upon which relief may be
granted is a pure question of law, a reviewing court owes
no deference to a trial court’s determination; instead, an
appellate court reviews the issue de novo.

Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal quotation marks, ellipsis,

and citations omitted).

B. Breach of Contract

The elements of a breach of contract claim are “1) existence of a

contract; 2) breach of that contract; and 3) damages flowing from the breach of

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contract.” Metro Louisville/Jefferson Cnty. Government v. Abma, 326 S.W.3d 1, 8

(Ky. App. 2009).

1. The Group

The entirety of the breach of contract claims against the Group in

Saner’s complaint is that the Cabinet “breached the Agreements by making it

impossible for [Saner] to comply with an essential term of the Agreements,

through Defendant Cabinet’s own negligence and that of its third-party vendor,

[the Group].” R. at 17. Saner’s breach of contract claims against the Group fail

because the complaint does not allege the existence of any contract(s) between

Saner and the Group. Nave v. Feinberg, 539 S.W.3d 685, 691 (Ky. App. 2017)

(“Nave’s claim for breach of contract must fail because no contract existed

between her and Dr. Feinberg and Rouse.”).

We also reject Saner’s hazy argument that she is a third-party

beneficiary of the agreements between the Cabinet and the Group. In Kentucky:

a third party for whose benefit a contract is made may
maintain an action thereon; however, he must have been
a party to the consideration or the contract must have
been made for his benefit, and the mere fact that he will
be incidently benefited by the performance of the
contract is not sufficient to entitle him to enforce it.

Ball v. Cecil, 148 S.W.2d 273, 274 (Ky. 1941).

Even accepting the assertions in Saner’s complaint as true, her third-

party beneficiary argument fails. Saner has not provided the contract(s) between

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the Cabinet and the Group and the complaint does not mention what terms in any

such contracts make Saner an intended third-party beneficiary of those agreements.

Consequently, Saner has not adequately pleaded a viable third-party beneficiary

claim for relief. Ball, 148 S.W.2d at 274.

1. The Cabinet

The Cabinet asserts it is immune from Saner’s breach of contract

claims. Sovereign immunity is “an inherent attribute of a sovereign state that

precludes the maintaining of any suit against the state unless the state has given its

consent or otherwise waived its immunity.” Louisville Arena Authority, Inc. v.

RAM Engineering & Const., Inc., 415 S.W.3d 671, 679–80 (Ky. App. 2013)

(internal quotation marks and citations omitted). As we have held, “the Cabinet is

a statutorily created agency performing an integral function of state government.

Thus, the Cabinet is entitled to the protection of sovereign immunity.”

Commonwealth v. Samaritan All., LLC, 439 S.W.3d 757, 761 (Ky. App. 2014).

However, that is not the end of the matter because “KRS [Kentucky

Revised Statute] 45A.245 expressly waives sovereign immunity for actions arising

under contracts with the Commonwealth.” Id. at 762. KRS 45A.245 provides in

relevant part:

(1) Any person, firm or corporation, having a lawfully
authorized written contract with the Commonwealth at
the time of or after June 21, 1974, may bring an action
against the Commonwealth on the contract, including but

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not limited to actions either for breach of contracts or for
enforcement of contracts or for both. Any such action
shall be brought in the Franklin Circuit Court and shall
be tried by the court sitting without a jury. All defenses
in law or equity, except the defense of governmental
immunity, shall be preserved to the Commonwealth.

As our Supreme Court has held, “KRS 45A.245 is an unqualified waiver of

immunity in all cases based on a written contract with the Commonwealth . . . .”

University of Louisville v. Rothstein, 532 S.W.3d 644, 647 (Ky. 2017).

Nonetheless, the trial court properly dismissed Saner’s breach of

contract claims against the Cabinet because Saner failed to first raise them to the

Secretary of the Finance and Administration Cabinet. KRS 45A.230 provides that:

Prior to the institution of any action in a court concerning
any contract, claim, or controversy, the secretary of the
Finance and Administration Cabinet is authorized,
subject to any limitations or conditions imposed by
regulations, to settle, compromise, pay, or otherwise
adjust the claim by or against, or controversy with, a
contractor relating to a contract entered into by the
Finance and Administration Cabinet on behalf of the
Commonwealth or any state agency, including a claim or
controversy based on breach of contract . . . .

Saner has not cited any authority which exempts the breach of

contract claims from the provisions of KRS 45A.230. Therefore, we must consider

the language in KRS 45A.235 providing that if a breach of contract claim against

the Commonwealth “is not resolved by mutual agreement, the secretary of the

Finance and Administration Cabinet, or his designee, shall promptly issue a

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decision in writing . . . . The decision shall be final and conclusive unless

fraudulent, or unless the contractor sues pursuant to KRS 45A.245.”

Though the statutes contain stilted language, their overall impact is

clear: breach of contract claims must generally be submitted to the Secretary of

the Finance and Administration Cabinet before a party may seek judicial relief

against the Commonwealth for the alleged breach. As we explained:

KRS Chapter 45A, Kentucky’s Model
Procurement Code, provides that claims or controversies
arising under contracts between and among the
Commonwealth and its contractors shall be resolved by
the written decision of the Secretary of the Finance and
Administration Cabinet or his designee. KRS 45A.235.
Following an adverse decision, an aggrieved party may
file a civil action on the contract against the
Commonwealth in Franklin Circuit Court. KRS
45A.245(1). The action is to be tried by the court sitting
without a jury.

Geupel Constr. Co., Inc. v. Commonwealth of Kentucky Transp. Cabinet, 136

S.W.3d 43, 46 (Ky. App. 2003) (emphasis added).

Saner filed this action against the Cabinet without having first

presented the breach of contract claims to the Secretary of the Finance and

Administration Cabinet. Therefore, we agree with the trial court that Saner failed

to exhaust her administrative remedies before seeking judicial relief.

“[E]xhaustion of administrative remedies is required prior to

resort[ing] to the courts.” Kentucky State Police v. Scott, 529 S.W.3d 711, 716

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(Ky. 2017). A court lacks jurisdiction to resolve claims when a party has not

exhausted his or her administrative remedies, unless one of the three narrow

exceptions to the exhaustion requirement applies. Id.

The three exceptions are: “(1) a party demonstrates the futility of

continuing the administrative process, (2) a statute authorizes direct judicial relief,

and (3) a party challenges the constitutionality of a particular regulation or statute

on its face.” Id. Saner argues that the pandemic meant it would have been futile

for her to seek administrative relief, but she does not adequately explain that

assertion. The COVID-19 pandemic upended life for everyone, but Saner has not

adequately explained how the pandemic made it inherently futile for her to present

her breach of contract claims to the Secretary of the Finance and Administration

Cabinet. Moreover, Saner does not cite to specific language in the American

Rescue Plan requiring participating states to allow parties receiving those funds to

sue a state in state court without first exhausting administrative remedies.

Finally, the authorities cited by Saner are materially distinguishable.

We decline to unnecessarily lengthen this Opinion by discussing each of them. By

way of representative example, the federal cases cited by Saner generally involve

determining whether a state may be sued in federal court without its consent. That

issue involves interpretation of the Eleventh Amendment, unlike the case at hand.

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In sum, Saner did not exhaust her administrative remedies and has not

shown that any of the recognized exceptions to the exhaustion requirement are

applicable. Therefore, we affirm the trial court’s dismissal of Saner’s breach of

contract claims against the Cabinet.

C. Estoppel

Saner’s second claim is based on promissory estoppel. The doctrine

of promissory estoppel is that “[a] promise which the promisor should reasonably

expect to induce action or forbearance on the part of the promisee or a third person

and which does induce such action or forbearance is binding if injustice can be

avoided only by enforcement of the promise.” Sawyer v. Mills, 295 S.W.3d 79, 89

(Ky. 2009) (internal quotation marks and citations omitted).

1. The Group

We readily affirm the dismissal of Saner’s promissory estoppel claims

against the Group.2 First, Saner has not identified a promise made to Saner by the

Group. Saner’s complaint alleges that the monthly data collection process was

confusing and frustrating, but Saner does not denote a specific, tangible promise

made by the Group to Saner. For example, Paragraph 63 of Saner’s complaint

2
The trial court did not explain why it dismissed the estoppel or negligence claims against the
Group. However, findings of fact are not at issue when ruling on motions to dismiss under CR
12.02, Fox, 317 S.W.3d at 7, and “we are authorized to affirm the lower court’s decision for any
reason supported by the record.” Greene v. White, 584 S.W.3d 299, 304 (Ky. App. 2019).
Therefore, we do not need to remand the case to the trial court to make findings as the record and
applicable law show that the estoppel and negligence claims against the Group must fail.

-11-
only generically states that “Defendants made false promises and representations

of fact to Plaintiffs.” R. at 17. Second, Saner similarly has not alleged with

specificity what actions she took, or declined to take, in reliance upon any promise

made by the Group. For example, Paragraph 65 of Saner’s complaint only vaguely

states that “Defendants’ false promises and representations of fact induced action

and/or forbearance on the part of [Saner].” Id.

Even Saner’s brief on appeal does not specify a promise made by the

Group nor how Saner acted, or declined to act, in reliance upon that promise.

Instead, after reciting the elements of the claim and the standard of review, she

simply states: “As clearly laid out, [the Group] deals with ‘sustainability

payments’ (pursuant to Jessica Cain, M.Ed[.] Program Manager, ARPA [American

Rescue Plan Act] Funding Division of Child Care Department of Community

Based Services) and would be a significant injustice to [Saner] if the promise was

not enforced in this matter.” Appellants’ Brief, p. 9. Without identifying a

promise Saner allegedly relied on, she fails to state a claim for promissory estoppel

upon which relief may be granted. We affirm the dismissal of the promissory

estoppel claims against the Group.

1. The Cabinet

The promissory estoppel claims against the Cabinet suffer from the

same fatal defects as those against the Group. Saner has not pointed to a specific

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promise made by the Cabinet nor what act she took, or refrained from taking,

pursuant to that promise. In addition, “it must be remembered that only in

exceptional circumstances is estoppel invocable against a governmental agency.”

Urban Renewal and Community Development Agency of Louisville v. International

Harvester Co. of Del., 455 S.W.2d 69, 72 (Ky. 1970). Saner has not adequately

alleged exceptional circumstances allowing her to present estoppel claims against

the Cabinet. We affirm the dismissal of the estoppel claims against the Cabinet.

D. Negligence

“In general, negligence claims require proof that the defendant owed

the plaintiff a duty, that the defendant breached that duty, and that the plaintiff

suffered a harm that was proximately caused by the breach.” Walmart, Inc. v.

Reeves, 671 S.W.3d 24, 26 (Ky. 2023).

1. The Group

Paragraphs 69 and 70 of Saner’s complaint allege the Group and the

Cabinet “owed a duty to [Saner] to provide a reliable data sheet submission

system” and a duty “to provide reliable and accurate communications with

Plaintiffs regarding the status of their data sheet submissions.” R. at 18. The

Group argues it had no duty towards Saner. Saner does not explain how, or why,

the Group purportedly owed to her the duties alleged in the complaint. As

previously explained, Saner did not have a contract with the Group and Saner has

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not cited another specific authority which imposed a duty upon the Group towards

Saner. We affirm the dismissal of Saner’s negligence claims against the Group.

1. The Cabinet

The Cabinet argues the trial court properly dismissed the negligence

claims against it because Saner failed to exhaust her administrative remedies. The

Cabinet would typically have sovereign immunity over Saner’s negligence claims,

for which she seeks monetary damages, unless the General Assembly has waived

that immunity. As our Supreme Court has held, “sovereign immunity protects the

state from judicial relief affecting funds in the State Treasury that are the State’s

money.” Long v. Department of Revenue, 718 S.W.3d 868, 886 (Ky. 2025)

(internal quotation marks and citations omitted). However, the General Assembly

has waived sovereign immunity, to an extent, by creating the Board of Claims,

Letcher County Board of Education v. Hall, 671 S.W.3d 374, 380 (Ky. 2023), and

that entity has “exclusive jurisdiction of negligence claims against the

Commonwealth . . . .” Long, 718 S.W.3d at 886 n.15. See also KRS 49.060;

49.070.

However, Saner did not raise her negligence claims in the Board of

Claims prior to bringing them in circuit court. As with her breach of contract

claims, she therefore has not exhausted her administrative remedies. For the same

basic reasons we discussed when affirming the dismissal of the breach of contract

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claims due to Saner’s failure to exhaust administrative remedies, we reject Saner’s

arguments that it was futile or not feasible for her to present her negligence claims

to the Board of Claims. We affirm the dismissal of Saner’s negligence claims.

III. CONCLUSION

For the foregoing reasons, the Franklin Circuit Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE
COMMONWEALTH OF
David L. Drake KENTUCKY, CABINET FOR
Independence, Kentucky HEALTH AND FAMILY
SERVICES:

Chris Ballantine
Frankfort, Kentucky

BRIEF FOR APPELLEE PUBLIC
CONSULTING GROUP, LLC:

Chadwick A. McTighe
Alisa Micu
Louisville, Kentucky

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