RENDERED: FEBRUARY 5, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1594-MR

CONSTANCE MOUANDA APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 19-CI-000283 

JANI-KING INTERNATIONAL; 

CARDINAL FRANCHISING, INC.,

D/B/A JANI-KING LOUISVILLE; 

AND JANI-KING LEASING CORP. APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Constance Mouanda has appealed from the June 25, 2019, 

order of the Jefferson Circuit Court dismissing her wage and hour, breach of 

contract, and fraud claims for failure to state a claim pursuant to Kentucky Rules of 

Civil Procedure (CR) 12.02. We affirm.
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Prior to addressing the allegations of the lawsuit underlying this 

appeal, we shall set forth the respective parties and explain their roles. To do so, 

we shall rely upon the relevant portions of the statement of facts in a motion to 

dismiss filed below by two of the defendants, Jani-King International, Inc., and 

Jani-King Leasing Corp. (the Jani-King defendants). 

A. Jani-King International, Inc. and Its 

Business Model

Jani-King International, Inc., (“JKI”) is a Texas 

corporation that developed and maintains a proprietary, 

comprehensive commercial cleaning system under the 

brand “Jani-King.” Jani-King Franchising, Inc., (“JKF”) 

is a subsidiary of JKI that sells the right to operate a JaniKing sub-franchisor, which is commonly referred to as a 

master franchisee, in an exclusive territory. Master 

franchisees purchase a license to use the “Jani-King” 

trademark, goodwill, and cleaning system in the 

territories in which they operate. Master franchisees –

such as Defendant Cardinal Franchising, Inc., – in turn 

sell Jani-King unit franchises to small businesses wishing 

to operate a commercial cleaning franchise in the master 

franchisee’s territory (“unit franchisees”). Master 

franchisees train unit franchisees on the proper use of the 

Jani-King proprietary information, and offer various 

support services to unit franchisees, including securing 

commercial cleaning contracts for them to service. The 

Jani-King Defendants are not parties to any agreement 

with a master or unit franchisee.

B. Jani-King Leasing Company

JKL is a Texas corporation that sells or leases 

cleaning equipment (such as vacuum cleaners, autoscrubbers, burnishers, etc.) to unit franchisees, when such 

equipment is needed. Unit franchisees, however, are not 
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required to buy or lease equipment from JKL under their 

respective franchising agreement. Rather, unit 

franchisees are allowed to purchase the necessary 

equipment to operate their Jani-King franchise from 

whatever source they choose. JLK is not a party to any 

regional or regional unit franchise agreement, nor has it 

sold or leased any cleaning equipment in Kentucky in the 

last three (3) years, including to the franchise owned by 

The Matsoumou’s, LLC.1 

C. Cardinal Franchising, Inc.

Cardinal Franchising, Inc., (“Cardinal”) is a 

Kentucky corporation, which operates under the name 

“Jani-King of Louisville.” Cardinal is a Jani-King master 

franchisee and party to a regional franchise agreement 

with JKF (the “Regional Agreement”). Under the 

Regional Agreement, Cardinal purchased the exclusive 

right to use the “Jani-King” name in Oldham, Shelby, 

Jefferson, Spencer, Nelson, Bullitt, Hardin, Henry, and 

Meade Counties in Kentucky; and Washington, Scott, 

Clark, Floyd, Harrison, Jefferson, and Crawford Counties 

in Indiana (the “Territory”). The Regional Agreement 

also provides that Cardinal is responsible for ensuring 

proper use of the “Jani-King” proprietary information in 

the Territory; however, in the event Cardinal fails to do 

so, JKF reserves the right to enforce any necessary 

provisions in Cardinal’s unit franchise agreements. JKI 

and JKL are parties to the Regional Agreement. 

Moreover, Cardinal is a separate business entity and not a 

subsidiary of JKI, JKF or JKL.

D. Plaintiff Constance Mouanda

Plaintiff formed the Company, which purchased 

and operated a unit franchise of Cardinal. The Company 

 

1 The Matsoumou’s, LLC (the “Company”) is a Kentucky limited liability company formed by 

Plaintiff Constance Mouanda (“Plaintiff”) for the purpose of purchasing and operating a JaniKing unit franchise. (Footnote 1 in original.)
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entered into a unit franchise agreement (“Unit 

Agreement”) with Cardinal on February 28, 2018. The 

Unit Agreement provides the Company with the right to 

operate a franchise under the “Jani-King” name in the 

Territory and use the Jani-King cleaning system and 

proprietary marks licensed by Cardinal. JKI and JKL are 

not parties to the Unit Agreement, nor did they 

participate in the negotiations of its terms or otherwise 

make any representations to Plaintiff or the Company 

concerning the Unit Agreement. Cardinal holds the 

accounts serviced by the Company and established the 

sale price for the Company’s franchise. Neither JKI nor 

JKL participated in these negotiations. While the 

Company, as a franchisee of Cardinal, has the right to 

implement a business model established by JKI, neither 

the Company’s nor Plaintiff’s performance of cleaning 

services is controlled by JKI or JKL. Additionally, while 

JKI had the ability to enforce the Unit Agreement 

between Cardinal and the Company to protect the “JaniKing” branding, JKI was not obligated to pay the 

Company or Plaintiff, and JKI’s status as the owner of a 

national franchise brand did not make it a party to that 

agreement. 

(Citations to appendices omitted.)

In January 2019, Mouanda filed a complaint against Cardinal and the 

Jani-King defendants for causes of action she alleged arose on February 28, 2018. 

Mouanda, who is not a native English speaker, alleged that she entered into 

agreements to become the owner of a Jani-King franchise on that day. In order to 

do so, she made a $6,000.00 down payment and was guaranteed to earn $2,000.00 

per month by the contract. She claimed that the agreements amounted to 50 pages,

which she did not have counsel review or have a reasonable opportunity to review 
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herself. These documents, she alleged, included corporate resolutions, LLC 

formation documents, and a franchise agreement setting forth the relationship 

between her and Jani-King. She claimed that she was fraudulently induced to sign 

the agreement, which required her to lease commercial cleaning equipment and 

purchase cleaning materials from the defendants. 

Mouanda alleged that Jani-King structures its business to avoid 

providing its workers with employment law protections by deeming workers like 

her as franchisees. She was not paid a minimum wage for her work in violation of 

Kentucky Revised Statutes (KRS) 337.275 nor was she given information about 

hours worked in violation of KRS 337.070. She was not paid what she had 

bargained for. Mouanda claimed that the nature of the relationship between herself 

and Jani-King was identical to an employment relationship. She alleged that the 

contract she entered into with Jani-King was substantively unconscionable. As a 

result, Mouanda alleged causes of action for fraud based upon the material 

representations that she would earn over $2,000.00 per month, for a violation of 

Kentucky’s minimum wage law, and for breach of contract based upon Jani-King’s 

failure to offer her work that would provide her with $2,000.00 in income as 

promised and its refusal to refund her $6,000.00 down payment. Mouanda sought 

compensatory and punitive damages. 
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In lieu of an answer, Cardinal filed a motion to dismiss Mouanda’s 

complaint for failure to state a claim pursuant to CR 12.02. It argued that she 

lacked standing to bring this cause of action because the franchise agreement was 

between Cardinal as the franchisor and The Matsoumou’s, LLC as the franchisee. 

Mouanda, individually, did not have a contractual relationship with Cardinal and 

therefore could not bring suit against it. In addition, Cardinal asserted that 

Mouanda was an independent contractor performing work for her LLC. Therefore, 

she was not an employee, and Cardinal was not her employer. Cardinal also 

argued that Mouanda failed to plead her fraud claim with particularity. In the 

accompanying memorandum, Cardinal pointed out that the LLC had been 

incorporated on November 11, 2017, well before the franchise agreement was 

signed. The franchise agreement contained provisions in which Mouanda 

acknowledged that she was an independent contractor and that no employment 

taxes would be withheld by Cardinal. 

The Jani-King defendants also filed a motion to dismiss for lack of 

personal jurisdiction and for failure to state a claim upon which relief could be 

granted pursuant to CR 12.02. They asserted that the circuit court could not 

exercise jurisdiction over them because both entities were incorporated in Texas 

and did not have business operations or conduct business in Kentucky. In addition, 

they asserted that they were not Mouanda’s employer, they had not made any 
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statement during the negotiation for the franchise agreement, and they had not 

breached the franchise agreement as they were not parties to the contract between 

the LLC and Cardinal. 

Mouanda responded to both motions, first asserting that the 

defendants’ ownership, operation, and interests were “so aligned as to make them 

one entity.” Thus, she argued that piercing the corporate veil would be appropriate 

to hold the parent corporation liable. She went on to argue that Jani-King 

exercised a level of control over her that created an agency relationship between 

them. In addition, Mouanda stated that she was an employee of Cardinal, and thus 

she was entitled to prosecute her wage and hour claim as an individual, based upon 

the economic reality of her relationship with Jani-King and the control Jani-King 

exerted over her. She relied upon federal law to support this argument. Mouanda 

continued to argue that Cardinal and the Jani-King defendants committed fraud by 

requiring the unit franchisees to incorporate and by misrepresenting the benefits of 

a franchise. She described the push to incorporate and invest personal capital as “a 

scheme to obtain labor without following labor laws.” Mouanda objected to the 

jurisdiction arguments, and she claimed to be the proper person to bring the fraud 

allegation. Finally, Mouanda acknowledged that she was not a party to the 

franchise agreement, individually, and stated she would be filing an amended 

complaint to add the LLC as a party for the breach of contract claim. Mouanda 
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believed discovery was necessary to detail the full scope of “the corporate 

entanglements.” Cardinal and the Jani-King defendants filed separate replies 

disputing Mouanda’s arguments. 

On September 23, 2019, the circuit court entered a memorandum and 

order granting the motions and dismissing Mouanda’s claims without prejudice. 

The court first addressed whether Mouanda lacked standing to bring the claims in 

the complaint. After summarizing the law related to standing when an LLC is 

involved, including the Opinion of Turner v. Andrew, 413 S.W.3d 272 (Ky. 2013), 

in which the Supreme Court of Kentucky held that an individual member of an 

LLC does not have the capacity to sue as a real party in interest, the circuit court 

observed and ruled as follows:

Similar to Turner, Plaintiff was the sole owner and 

member in Matsoumou’s LLC. The record reflects that 

Plaintiff acknowledged by her signature that she was 

provided documentation from Cardinal Franchising 

through a Franchise Disclosure Form, dated December 2, 

2016, and by another Franchise Disclosure Form, dated 

October 16, 2017. The record also reflects that the 

Articles of Incorporation for Matsoumou’s LLC were 

filed with the Kentucky Secretary of State on November 

11, 2017. The record further reflects that Plaintiff, as 

president of Matsoumou’s LLC, executed the Franchise 

Agreement with Cardinal Franchising on February 28, 

2018. Thus, the Franchise Agreement appears to be 

between Matsoumou’s LLC and Cardinal Franchising 

and, allegedly, Jani-King. Even if Cardinal Franchising 

was perpetrating a fraud in assisting Plaintiff to 

incorporate Matsoumou’s LLC as Plaintiff asserts, 

Plaintiff cannot prove that she suffered any injury that 
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resulted from Cardinal Franchising’s purported assistance 

in incorporating Matsoumou’s LLC. As noted by the 

Supreme Court of Kentucky in United Parcel Service Co. 

v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999), “In a 

Kentucky action for fraud, the party claiming harm must 

establish six elements of fraud by clear and convincing 

evidence as follows: a) material misrepresentation b) 

which is false c) known to be false or made recklessly d) 

made with inducement to be acted upon 3) acted in 

reliance thereon and f) causing injury.” Id. at 468, citing 

Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 

(Ky. App. 1978). All of the claims Plaintiff asserts in the 

Complaint related to actions allegedly taken subsequent 

to Plaintiff’s execution of the Franchise Agreement, in 

her capacity as president of Matsoumou’s LLC. 

Accordingly, Plaintiff lacks standing to assert the claims 

asserted in the Complaint in this action as a matter of 

law.

The court did not find any support for Mouanda’s argument that she should be 

permitted to pursue her fraud claim under a modified theory of piercing the 

corporate veil. Concluding that Mouanda lacked standing to assert the claims in 

the complaint, the court dismissed the action without prejudice. This appeal now 

follows.

Our standard of review of a motion to dismiss filed pursuant to CR 

12.02 for failure to state a claim upon which relief may be granted is set forth in 

Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567, 570 (Ky. App. 2005):

A motion to dismiss should only be granted if “it appears 

the pleading party would not be entitled to relief under 

any set of facts which could be proved in support of his 

claim.” Pari-Mutuel Clerks’ Union v. Kentucky Jockey 

Club, 551 S.W.2d 801, 803 (Ky. 1977). When ruling on 
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the motion, the allegations in “the pleadings should be 

liberally construed in a light most favorable to the 

plaintiff and all allegations taken in the complaint to be 

true.” Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky. App. 

1987). In making this decision, the trial court is not 

required to make any factual findings. James v. Wilson, 

95 S.W.3d 875, 884 (Ky. App. 2002). Therefore, “the 

question is purely a matter of law.” Id. Accordingly, the 

trial court’s decision will be reviewed de novo. Revenue 

Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).

With this standard in mind, we shall review Mouanda’s claims.

For her first argument, Mouanda contends that the circuit court erred 

in finding that she did not have standing to sue under Kentucky’s wage and hour 

laws. She asserts that the court should have applied an economic realities test 

adopted by the federal courts to determine whether she was an employee of JaniKing. In support, Mouanda cites to several federal cases that relate to whether an 

individual is an employee or an independent contractor, as well as to Acosta v. 

Jani-King of Oklahoma, Inc., 905 F.3d 1156 (10th Cir. 2018). The Acosta Court 

detailed the circumstances in that case and addressed whether the lower court 

should have applied the economic realities test:

Jani-King is a janitorial company providing 

cleaning services in the Oklahoma City area. The 

company engages individuals, pairs of related 

individuals, or small corporate entities which are 

allegedly composed predominantly or entirely of single 

individuals or pairs of related individuals to perform 

janitorial work on its behalf through franchise 

arrangements. Jani-King recently began requiring 

individuals and pairs of related individuals—both those 
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already affiliated with Jani-King and those who are new

—to form corporate entities, which then become the 

named parties to the franchise.

Following an investigation into Jani-King’s 

employment practices, the Secretary of Labor filed a 

complaint against Jani-King, alleging violations of the 

Fair Labor Standards Act and seeking an injunction to 

require Jani-King to keep the requisite FLSA employee 

records. Specifically, the Secretary asserted that 

individuals who form corporate entities and enter 

franchise agreements as required by Jani-King 

“nonetheless personally perform the janitorial work on 

behalf of Jani-King” and, based on the economic realities 

of this relationship, are Jani-King’s employees under the 

FLSA. (Appellant’s Opening Br. at 5.)

Jani-King filed a motion to dismiss on two 

grounds: (1) under Rule 12(b)(6), the Secretary failed to 

plausibly suggest that every franchise owner should be 

treated as an employee under the FLSA, and (2) under 

Rule 12(b)(7), the Secretary failed to name the 

franchisees as necessary parties. The district court 

granted Jani-King’s Rule 12(b)(6) motion and dismissed 

the Secretary’s complaint without prejudice. The 

Secretary then filed an amended complaint alleging that 

the individuals who personally perform the janitorial 

cleaning work for Jani-King through the franchise 

arrangements are employees under the FLSA, and asking 

that Jani-King be required to keep records about those 

individuals. In response, Jani-King raised the same Rule 

12(b)(6) and 12(b)(7) motions, arguing that the Secretary 

is not free to ignore its corporate organization. The 

district court again granted Jani-King’s Rule 12(b)(6) 

motion—this time with prejudice—concluding the

amended complaint “ignores corporate forms” and does 

not plausibly suggest the FLSA applies to all janitorial 

cleaners. (Appellant’s App. at 183 & n.9.) The 

Secretary now appeals.
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. . . .

. . . [W]e conclude that the Secretary’s amended 

complaint contains sufficient factual matter to state a 

facially plausible claim for relief. The complaint 

identifies individuals (those who “personally perform the 

janitorial cleaning work”) who could qualify as Section 

203(e)(1) “employees” under the economic realities test 

if all the Secretary’s well-pleaded factual allegations 

about the nature of the relationship between Jani-King 

and these individuals are accepted as true and viewed in 

the light most favorable to the Secretary. The complaint 

also alleges that Jani-King has violated the FLSA as to 

these employees by failing to comply with recordkeeping 

requirements. These allegations are sufficient to state a 

claim at this stage of the proceedings. In so concluding, 

we make no determination as to the merits of the 

Secretary’s case—we only hold that it survives this initial 

Rule 12(b)(6) motion to dismiss.

Acosta, 905 F.3d at 1158, 1161-62 (footnote omitted). Mouanda also cites to the 

federal case of Williams v. Jani-King of Philadelphia, Inc., 837 F.3d 314 (3d Cir. 

2016), in which the Third Circuit addressed class certification sought by two 

franchisees of Jani-King. We note that these franchisees were individuals rather 

than LLCs. 

In their responsive briefs, the appellees argue that, because the 

franchisee in this case is an LLC, not Mouanda the individual, Mouanda lacks 

standing to pursue her claims against them. The Matsoumou’s, LLC was created 

by Mouanda in November 2017, several months before the franchise agreement 
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between the LLC and Cardinal was signed on a date that Mouanda identified as the 

date her claim accrued. 

KRS 275.010(2) specifically provides that “[a] limited liability 

company is a legal entity distinct from its members.” In Turner v. Andrew, supra, 

the Supreme Court of Kentucky addressed the attributes of a limited liability 

company as follows, specifically citing to the language of KRS 275.010(2) and an 

LLC’s legal distinction from its members:

A limited liability company is a “hybrid business 

entity having attributes of both a corporation and a 

partnership.” Patmon v. Hobbs, 280 S.W.3d 589, 593 

(Ky. App. 2009). As this Court stated in Spurlock v. 

Begley, 308 S.W.3d 657, 659 (Ky. 2010), “limited 

liability companies are creatures of statute” controlled by 

[KRS] Chapter 275. KRS 275.010(2) states 

unequivocally that “a limited liability company is a legal 

entity distinct from its members.” Moreover, KRS 

275.155, entitled “Proper parties to proceedings,” states:

A member of a limited liability company 

shall not be a proper party to a proceeding 

by or against a limited liability company, 

solely by reason of being a member of the 

limited liability company, except if the 

object of the proceeding is to enforce a 

member’s right against or liability to the 

limited liability company or as otherwise 

provided in an operating agreement.

Not surprisingly, courts across the country 

addressing limited liability statutes similar to our own 

have uniformly recognized the separateness of a limited 

liability company from its members even where there is 

only one member. See, e.g., O’Reilly v. Valletta, 139 
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Conn.App. 208, 55 A.3d 583 (2012) (sole member of 

LLC lacked standing to bring suit personally where LLC 

was party to lease and operated the restaurant at issue); 

Krueger v. Zeman Construction Co., 758 N.W.2d 881 

(Minn. App. 2008) (individual who was sole member of 

LLC had no standing to bring business discrimination 

suit in her own name where relevant contract was 

between LLC and corporation engaged in construction 

business); Bankston v. Tasch, LLC, 40 So.3d 495 (La.

App. 2010) (even where LLC has sole member it is entity 

separate and distinct from that member in terms of 

procedural capacity); FTC v. Payday Financial, LLC, 

935 F.Supp.2d 926 (D.S.D. 2013) (limited liability 

companies organized under South Dakota law are 

separate and distinct legal entities from their sole 

member). It is indisputable that KRS 275.010(2) and 

.155 similarly mandate that Billy Andrew, Jr. Trucking, 

LLC be the named plaintiff in any suit asserting a lost

business income claim rightfully belonging to the LLC.

The Court of Appeals reasoned that because 

Andrew was the sole owner of the business he was 

necessarily the real party in interest, a status that allowed 

him to properly advance the lost profits claim in his own 

name rather than in the name of the LLC. The theory of 

interchangeability underpinning this position was 

explicitly rejected by this Court in Miller v. Paducah 

Airport Corp., 551 S.W.2d 241 (Ky. 1977) in the context 

of a solely-owned corporation. In Miller, the president of 

a corporation that operated a cab service brought suit in 

his individual capacity against an airport challenging the 

legality of a lease. Id. at 242. The Court held that the 

corporation was “an entity, separate, apart and distinct 

from [Mr. Miller] himself,” despite the fact that Mr. 

Miller owned the entirety of the corporation’s stock. Id. 

This Court concluded that the corporation, and not Mr. 

Miller in his personal capacity as the corporation’s 

president, was the real party in interest to the claim, 

declaring that such a distinction “is not trivial nor 

supertechnical.” Id. at 243. The same conclusion is 
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mandated here. The LLC and its solitary member, 

Andrew, are not legally interchangeable. Moreover, an 

LLC is not a legal coat that one slips on to protect the 

owner from liability but then discards or ignores 

altogether when it is time to pursue a damage claim. The 

law pertaining to limited liability companies simply does 

not work that way.

Turner, 413 S.W.3d at 275-76 (footnote omitted).

Based upon the holding above, we must agree with the appellees that 

Mouanda lacked standing to bring suit against any of them. “To have standing to 

sue, one must have a judicially cognizable interest in the subject matter of the 

suit.” Bailey v. Preserve Rural Roads of Madison County, Inc., 394 S.W.3d 350, 

355 (Ky. 2011). The proper plaintiff for this complaint should have been The 

Matsoumou’s, LLC, the named franchisee in the franchise agreement with 

Cardinal. And as the Jani-King appellees argued, Mouanda’s citations to the two 

federal Jani-King decisions do not support her assertions herein. The Acosta Court 

did not decide whether an individual has standing to pursue a claim after the 

formation of an LLC, but merely held that the Secretary of Labor had survived the 

motion to dismiss, and the Williams case did not include franchises that were 

entered into by an incorporated entity. Therefore, we must hold that the circuit 

court properly dismissed Mouanda’s complaint. 

Based upon this holding, we need not reach the rest of Mouanda’s 

allegations of error.
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For the foregoing reasons, the order of the Jefferson Circuit Court 

dismissing Mouanda’s complaint without prejudice is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Ryan Fenwick

Louisville, Kentucky

BRIEF FOR APPELLEES JANIKING INTERNATIONAL, INC., 

AND JANI-KING LEASING CORP.:

Thomas J. Birchfield

Paul E. Goatley

Louisville, Kentucky

BRIEF FOR APPELLEE CARDINAL 

FRANCHISING, INC., D/B/A JANIKING OF LOUISVILLE:

Randall S. Strause

Andrew J. Williams

Louisville, Kentucky