HAYSE (JOSEPH MURRAY) VS. BOARD OF TRUSTEES OF THE UNIVERISTY OF KENTUCKY , ET AL.
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RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000284-MR
DR. JOSEPH MURRAY HAYSE
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 79-CI-00437
BOARD OF TRUSTEES OF THE
UNIVERSITY OF KENTUCKY,
DEAN JOHN B. STEPHENSON,
CHARLES T. WETHINGTON, JR.
DAVID DURANT, ROBERT HEMENWAY,
JAMES ALBISETTI, DAVID SPAETH,
JAMES FORCE, KEVIN KIERNAN, MINA
MILLER AND ARTURO SANDOVAL
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, LAMBERT AND THOMPSON, JUDGES.
APPELLEE
CAPERTON, JUDGE: Appellant, Dr. Joseph Hayse files this appeal from the
ruling of the Hon. Roger L. Crittenden of the Franklin Circuit Court. Specifically,
Hayse appeals the circuit court’s determination that neither the Board of Trustees
of the University of Kentucky nor Dean John B. Stephenson was in contempt of
the injunction issued by the court on December 15, 1992, as well as the court’s
dismissal of this matter on the ground of laches. Upon review, we affirm the order
of the trial court.
At the outset, we note that this case has a long and complex
procedural history. Hayse initiated this action in the Franklin Circuit Court in
March of 1979, for the purpose of challenging the University’s denial of his 1978
application for a promotion with tenure. Thereafter, an appeal was taken to the
Kentucky Supreme Court, then remanded to the circuit court for consideration of
prospective injunctive relief in the form of an ab initio review of Hayse’s
application for tenure. Ultimately, Hayse was denied tenure and moved the trial
court to hold the University in contempt for violations of the injunction. The trial
court found the University was not in contempt and Hayse appeals. Factually, we
rely upon the history provided by the Kentucky Supreme Court in Board of
Trustees of the University of Kentucky v. Hayse, 782 S.W.2d 609 (Ky. 1989):
This case has a long history. In 1971, Hayse was
employed as an instructor in the University of Kentucky
Honors Program. Hayse had been recruited by Dr. Robert
O. Evans, Director of the Honors Program, while Hayse
was a Ph.D. candidate in Comparative Literature at the
University of Wisconsin. In June 1976, Hayse was
promoted to Assistant Professor and remained in such
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position through June 1978. During the academic year of
1976-77, through his Director, Dr. Evans, Hayse
submitted an application for promotion to the level of
Associate Professor, with tenure. Stephenson, as Dean of
Undergraduate Studies, had supervisory authority over
the Honors Program. Hayes claims his employment was
terminated in violation of First Amendment rights to
freedom of association and Fifth Amendment guarantees
of due process because of a raging internal dispute
between Stephenson and Evans involving differences
over the Honors Program.
Hayse was recommended for tenure by his Department
Chairman, Dr. Evans. This recommendation was
forwarded to Stephenson, who rejected his application.
Hayse was then given a one-year terminal appointment in
which to seek another position. Hayse made a second
application for tenure during the 1977-78 academic year
and his application was again endorsed by Dr. Evans but
was again denied by Dean Stephenson.
The University's Regulations did not authorize the Dean
to reject appointment to the rank of Associate Professor.
His authority was limited to reviewing the proposal,
adding his endorsement or commentary, and forwarding
everything through channels, ultimately to the Board of
Trustees, which had the exclusive final authority to
approve or disapprove the application. The University
and Stephenson dispute this interpretation of the
Regulations, claiming the procedure was altered by
custom and application. But this dispute was resolved by
the Court of Appeals in its Opinion on the first appeal of
this case. This 1982 Court of Appeals Opinion states in
pertinent part:
“The university further contends that as a matter of
practice and custom all recommendations for promotion
are passed on for higher review only in the event they are
approved by the dean of the college. This is not the
procedure established by the regulations which have been
adopted and custom cannot be allowed to supersede the
duly adopted procedures.”
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Shortly after receiving this second rejection, Hayse met
with Stephenson and pointed out to him that under
University regulations Stephenson did not have the sole
power to reject his application. In response to Hayse's
objection, Stephenson appointed a three-person
committee to assist him in reconsidering Hayse's
application. This committee also recommended against
tenure. Hayse again protested, indicating Stephenson was
still not following University regulations. Subsequently,
and in response to Hayse's continuing objections,
Stephenson forwarded Hayse's file to two different
committees, a Vice-President, and ultimately, President
Otis Singletary, all of whom sustained the denial of
tenure. The application and supporting documents were
never forwarded to the Board of Trustees to consider
Hayse's application as the Regulations prescribed.
On May 5, 1978, Hayse was notified of his failure to
receive tenure with the explanation that he did not meet
the research and publication requirements. Hayse
disputed this and contended that his dismissal resulted
from the ongoing dispute between Dr. Evans, his direct
supervisor, and Stephenson, the Dean of Undergraduate
Studies. He also alleged that the University failed to
follow its own regulations governing tenure.
On March 27, 1978, Hayse filed an action in Franklin
Circuit Court against the Board of Trustees of the
University of Kentucky and Dean Stephenson alleging
that he was wrongfully denied tenure. He demanded
damages and reinstatement at the rank of Associate
Professor. In May 1981, Hayse amended his Complaint
by adding allegations of constitutional rights violations of
the First, Fifth and Fourteenth Amendments to the United
States Constitution and Section 2 of the Kentucky
Constitution. The Board of Trustees and Stephenson
denied the allegations, pled sovereign immunity, and
argued both that Hayse's constitutional rights were not
violated and that Stephenson acted appropriately in
denying tenure.
On May 27, 1981, the Franklin Circuit Court granted
Summary Judgment in favor of the Board and
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Stephenson. The first appeal, supra, followed. The Court
of Appeals reversed, holding that the University had
failed to follow its own regulations, and, citing Mount
Healthy City Board of Education v. Doyle, 429 U.S. 274
(1977), remanded the case to the trial court for the
purpose of giving Hayse the opportunity to prove “that
constitutionally protected conduct was a substantial or
motivating factor in the rejection of his promotion unless
the University can then convince the trier of fact that
Hayse's promotion would have been denied anyway, even
if there had been no consideration of impermissible
facts.” [Emphasis added.]
Subsequent to this remand by the Court of Appeals,
Hayse filed a second amended complaint adding a claim
under 42 U.S.C. §1983 based on the same constitutional
rights violations he had previously alleged in the
Amended Complaint filed in 1981 before the first appeal.
This theory of liability was based on the same facts held
to state a cause of action for constitutional violations as
per the Mount Healthy City Board of Education case,
supra, on the original appeal.
The case then proceeded to trial on January 29, 1986,
with the jury returning a verdict in favor of Hayse
awarding him $61,760 in compensatory damages for loss
of earnings, damage to professional reputation, and
damages for embarrassment, humiliation and emotional
distress. These are the elements of damages in the
instructions, and they have not been challenged on this
appeal. The trial court then ordered Hayse reinstated at
the rank of Associate Professor with tenure.
Following the trial, the Board of Trustees and Stephenson
filed a Motion for Judgment Notwithstanding the
Verdict, which the trial court sustained, holding that the
evidence at trial was insufficient to support the jury's
verdict and that there was no evidence upon which
reasonable minds could conclude that impermissible
considerations were a motivating factor in the denial of
tenure to Hayse. The problem is that this was
substantially the same evidence which Hayse had
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represented that he would produce when he prevailed on
his first appeal.
The Court of Appeals rendered its Opinion on this second
appeal on December 11, 1987, as modified April 1, 1988.
It held, in pertinent part, that the trial court erred in
granting Judgment notwithstanding the Verdict. Further,
it held the amended complaint was not, as claimed, in
violation of the statute of limitations. But then it reached
the same result as the trial court, denying compensation,
by deciding the Board of Trustees and Stephenson were
protected by sovereign immunity from monetary
damages. Finally, the Court of Appeals reversed the trial
court's decision that Hayse was not entitled to injunctive
relief mandating reinstatement to Associate Professor
with tenure, holding that sovereign immunity does not
apply to prospective injunctive relief against state
officials.
Thus the Court of Appeals agreed with Hayse that the
trial court erred in deciding the evidence was insufficient
to prove the facts alleged as a cause of action on the first
appeal, but nevertheless, on grounds of sovereign
immunity, sustained the result denying monetary
damages, and then ordered that Hayse be reinstated as an
Associate Professor with tenure...
After setting forth the facts of the case as outlined herein above, the
Supreme Court ultimately upheld the damages verdict. However, with respect to
Hayse’s claim for prospective injunctive relief, the Supreme Court held that Hayse
was not entitled to automatic reinstatement, but was instead entitled to an ab initio
review of his application for a promotion with tenure by the appropriate
individuals at the University.
Thereafter, in compliance with the Supreme Court opinion, the trial
court entered judgment and issued an injunction on December 15, 1992. This
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injunction specified the terms, criteria, and procedure for the ab initio review of his
application for promotion with tenure. Pursuant to the mandate of the injunction,
and significantly for purposes of the issues now pending before us, a process of
reconstructing Hayse’s dossier began. With respect to the dossier, the injunction
mandates that Hayse’s “complete dossier” be removed from the court record and
furnished to the University to be used as the official file and dossier for the ab
initio consideration of Hayse’s application.
Our review of the injunction indicates that the trial court was
apparently under the belief that Hayse’s “complete” dossier was already a part of
the record. The injunction states, “It further appearing that Plaintiff’s complete
dossier in support of his application for promotion to Associate Professor, with
tenure, has been part of the record of this action since the completion of the trial in
February, 1986 ....” However, as has now been made clear, any such assumption
was incorrect.
In reviewing this matter, we find that the record contains numerous
correspondences between Hayse’s counsel, Hon. William Jacobs, and former
University General Counsel, Hon. John C. Darsie, now deceased, with respect to
attempts to compile the dossier necessary for review. These letters, which are part
of the court record, have not been challenged by either Hayse or his counsel.
A review of these letters reveals that on January 19, 1993, Darsie
traveled to the circuit clerk’s office for the purpose of obtaining Hayse’s dossier
from the court record. At that point, it became evident that the court record was
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incomplete. This led to an ongoing correspondence between Darsie and Jacobs
with respect to creating a compilation of the documents necessary to be included in
the dossier. The correspondence between counsel indicates that this effort
continued over the course of the next several months.
In reviewing these letters, we note repeated requests from Darsie to
Jacobs to verify the completeness of the dossier prior to such time as it was
removed from the court record. Indeed, a time was scheduled for Hayse to review
the dossier for the purpose of verifying its completeness. That review was
conducted, and various supplementations were made pursuant to Jacobs’ request.
On July 27, 1993, Darsie advised Jacobs that the Board of Trustees
would act on Hayse’s application at its August 17, 1993, regular meeting. Jacobs
was invited to address any questions about the ab initio review prior to the Board’s
meeting on August 17. We cannot find anything in the record to suggest that any
complaints were made by Jacobs at that time. Hayse’s dossier was reviewed and
the Board of Trustees denied his application.
Thereafter, on October 5, 1993, the University filed its “Compliance
with Injunction”. Hayse took issue with the Compliance by filing a Motion for a
Show Cause Order in January of 1999.1 In the interim on August 15, 1994,
approximately one year after the Notice of Compliance was filed, Hayse filed an
action in the U.S. District Court for the Eastern District of Kentucky claiming
constitutional defects in the ab initio review of his application for promotion and
We note that Hayse filed his Motion for Show Cause more than five years after the University
filed its Compliance with Injunction.
1
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tenure. Based on the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971),
the U.S. District Court dismissed that action. On April 7, 1997, the U.S. Court of
Appeals affirmed, in Hayse v. Wethington, 110 F.3d 18 (6th Cir. 1997).
Following the affirmation by the U.S. Court of Appeals, Hayse filed a
May 5, 1997 motion for leave to file a fourth amended complaint before the state
court asserting the same claims2 that were dismissed in the federal action. While
the state court sustained the motion to allow the amended complaint to be filed, the
additional causes of actions set forth therein were subsequently dismissed on
grounds of res judicata. Hayse then filed a KRCP 59.05 motion to vacate the order
of dismissal. As a result, the trial court amended its prior order and clarified that
the dismissal was only as to the claims in the fourth amended complaint.
However, in so doing, the court stated:
The within action shall continue to pend on the docket,
and nothing shall be deemed to foreclose Plaintiff from
pursuing such remedies as he may have, including, but
not limited to, contempt of court.
Thereafter, on January 25, 1999, Hayse filed a motion with the trial
court for a show cause order, setting forth various alleged violations of the
injunction. The trial court reviewed and overruled the motion on the ground of
laches, finding there was no reason for a five year delay in bringing same. The
court felt that the delay unduly prejudiced the University, as many of the
individuals involved had either left the University or died. Hayse appealed the
The complaint alleged constitutional defects in the ab initio review process concerning his
application for promotion with tenure.
2
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dismissal to our Court, and an unpublished decision was rendered by this Court in
2002.
In 2002, the Court of Appeals determined that Hayse’s fourth
amended complaint was not barred by the doctrine of res judicata, but was,
however, precluded on other grounds not relevant to this appeal. More importantly
for our purposes, our court disagreed with the trial court’s overruling of Hayse’s
motion by finding that it was not barred by laches. This court reasoned that,
although Hayse did not file his show cause motion until over five years after the
University filed its statement of compliance, litigation was pending in the federal
court concerning the allegations arising from the ab initio review. After the federal
court abstained from hearing the case, Hayse filed his motion in state court within
the following month.
Accordingly, this court then held that laches did not bar the motion,
finding that the mere passage of time is insufficient to invoke that defense. As a
result, we remanded back to the trial court, with instructions to issue an order
directing the University to show cause as to why it should not be held in contempt
for violating the injunction, and if such violation occurred, to provide Hayse with
an adequate remedy.
As a result of that decision, this matter was remanded to the Franklin
Circuit Court. Upon remand, Hayse filed a March 10, 2004 motion, requesting the
trial court to schedule a status or pretrial conference to address the instructions
handed down from the Court of Appeals. On March 17, 2004, in open court, the
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trial court instructed the parties to outline the issues to be addressed on remand,
and specifically instructed Hayse to set forth an exhaustive list of his allegations to
support his charges of contempt.
The University, pursuant to the March 17, 2004, court instructions,
reasserted all points it had previously made in its response to the show cause
motion filed by Hayse in 1999. In so doing, the University argued that the trial
court should not only consider the defenses and arguments raised in the 1999
response, but that the court should also readdress the defense of laches. In support
of that argument, the University asserted that the 2002 Court of Appeals opinion
merely found that the laches requirements were not met as of the time of that
opinion, but did not hold that the University was precluded from further asserting
and developing that defense in the future.
To that end, the University correctly notes that the Kentucky Supreme
Court denied discretionary review of the Court of Appeals decision on April 17,
2003. Approximately one year later, Hayse requested a status conference before
the trial court. In the interim, the University’s former General Counsel, Paul
VanBooven, who had been responsible for ensuring compliance with the injunction
when the Board of Trustees met in 1993, passed away.
After the University filed its Response to Plaintiff’s Motion for Show
Cause Order and Date for Hearing, Hayse filed a May 3, 2004, Proposed Agenda
for Status/Pre-trial Conference. Thereafter, on July 13, 2004, the trial court issued
an Agreed Order for Mediation. No settlement was reached by the parties at the
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October 25, 2004 mediation, and on October 31, 2005, Hayse filed his own Motion
for Summary Judgment of Contempt as a Matter of Law. In that motion, Hayse
asserted the same ten injunction violations that he now argues before this court.
Hayse also requested loss of earnings by reason of having been denied due process,
asserting that because the University was in contempt, he should be allowed to try
to the jury the question of the amount of his compensatory damages, including lost
earnings and benefits.
Shortly thereafter, on January 4, 2006, the University obtained the
affidavit of Dr. David Durant, who was responsible for conducting the first-level of
ab initio review as mandated by the trial court’s December 15, 1992, injunction. In
that affidavit, Durant stated that his review consisted of a list of items from
Hayse’s tenure dossier labeled “materials consulted”. Durant indicated that he was
aware that Hayse is now asserting that certain items were missing from the dossier.
However, Durant could not, due to the passage of twelve years time, recall whether
or not these items were initially included, nor could he recall whether his list of
“materials included” was meant to be a complete record of all items contained in
Hayse’s 1993 tenure dossier.
Durant further stated that “[r]egardless of whether my June 2, 1993,
recommendations list of materials consulted was meant to be a complete record, I
recall that Joseph Hayse’s 1993 tenure dossier contained the information necessary
to evaluate the level of scholarship activity required of him for promotion and
tenure ....” Therefore, Durant stated that the items that Hayse contends were not
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included in his 1993 tenure dossier ultimately would not have affected his
recommendation regarding Hayse’s application for promotion and tenure, because
they would not mitigate the deficiencies in his scholarly research.
On January 9, 2006, the University’s cross-motion for summary
judgment was filed. Oral arguments were held before the trial court on June 19,
2006. On July 11, 2006, the trial court issued an Order in response to the parties’
respective motions for summary judgment, and ultimately granted summary
judgment to the University. In so doing, the court found against Hayse, apparently
because of laches, noting that Dr. Durant’s affidavit provided sufficient evidence
that the University had been prejudiced by Hayse’s delay in bringing this action.
The Court further stated that most of the individuals involved in the tenure review
process ordered by the Court were no longer at the University and therefore unable
to testify to the actions taken by the University in its attempts to comply with the
injunction.
However, and significantly for our purposes, while laches was
certainly a basis for the court’s dismissal, it was not the only one. The court
further stated that upon review of the respective motions for summary judgment
and exhibits attached thereto, it was apparent that the University acted in good
faith in attempting to comply with the injunction. Indeed, the Court found that the
letters from University counsel to Hayse’s counsel evidenced a desire to provide
Hayse with “every advantage during the tenure review process.”
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The trial court viewed Hayse’s chief complaint as the University not
providing everyone in the tenure review with copies of the annual Faculty
Performance Reviews and Distribution of Effort Agreements for the years Hayse
was employed. Nevertheless, the court stated that “the record is replete with
conclusions drawn by those reviewing his file that he was an excellent teacher and
had excellent reviews by his students.” Thus, the court concluded that the
materials provided to the University were “more than adequate” for a review of
Hayse’s work, and that there was “substantial evidence” to indicate that the
University complied with the mandates of the injunction, even without the
Distribution of Effort Agreements.
Following the court’s order of summary judgment, Hayse filed a
motion to alter, amend, or vacate pursuant to CR 59.05. Specifically, Hayse
requested that the Hon. Roger L. Crittenden, now retired, be appointed to rule on
the motion, as he was the same judge who issued the order of dismissal which
Hayse was seeking to vacate and also the judge who drafted the injunction which
Hayse claims was violated in his motion for contempt.
The parties were heard by the court on January 4, 2007. Hayse’s
motion was ultimately denied on January 8, 2007 via an Order which expressly
found that the record provided to the court indicated substantial compliance on the
part of the University, and finding that the University had “complied with the
intent of the injunction”. Further, the Order stated that Hayse had been “afforded
due process during the review”.
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On February 1, 2007, Hayse filed his notice of appeal, concerning
both the July 11, 2006, order denying Hayse’s motion for summary judgment and
granting the cross-motion for summary judgment filed by the University, as well as
the denial of his CR 59.05 Motion. It is from that appeal that we now review this
matter, in light of the very convoluted and complex history as outlined above.
Hayse raises two primary issues before this court, which we will
address in their respective order. First, we address Hayse’s assertion that there is
still a pending contract claim to be resolved by the trial court. Following careful
examination of the record, we disagree.
As long ago as 1989, contempt has been treated as the sole issue in
this matter. Indeed, in 1999, upon issuing its judgment, the trial court treated
contempt as the only remaining issue. As we noted clearly in our 2002 opinion,
the initial Supreme Court opinion in this matter resolved any claims arising as to
Hayse’s initial denial of tenure, and any relief to which he was entitled in that
regard was granted. The Supreme Court’s decision in that regard is the law of the
case in this matter.
The law of the case doctrine prohibits the relitigation of an issue
decided in a previous appeal. As our Supreme Court noted in Ellison v.
Commonwealth, 994 S.W.2d 939, 940 (Ky. 1999), “[a] final decision of this Court,
whether right or wrong, is the law of the case and is conclusive of the questions
therein resolved. It is binding upon the parties, the trial court, and the Court of
Appeals. It may not be reconsidered by prosecuting an appeal from a judgment
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entered in conformity therewith.” As the Supreme Court clearly resolved this
issue at the time that it issued its opinion, we find their opinion to be the law of the
case in this matter, and decline to address the issue further in the context of this
appeal.
We therefore now address whether or not the trial court abused its
discretion in concluding that the University was not in contempt of its injunction
and, by extension, whether or not the trial court’s dismissal of this action should be
affirmed.
Hayse argues that our standard of review with respect to this issue
should be de novo, pursuant to Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996), wherein we held that an appellate court has no obligation to defer to the trial
court when factual findings are not at issue. The University, however, asserts that
the correct standard of review should instead be under abuse of discretion, as set
forth in Smith v. City of Loyall, 702 S.W.2d 838 (Ky. App. 1986). We agree with
the University and affirm.
In the matter sub judice, both parties have filed motions for summary
judgment, in which they concede that no material facts exist. Indeed, the question
before the court is whether or not the University was in contempt of the court’s
order. That is an issue that is uniquely the province of the court that drafted the
injunction at issue.
As established in Smith, the trial court has inherent discretion in
determining when to apply its contempt powers. Crook v. Schumann, 167 S.W.2d
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836 (Ky. App. 1942). As we noted in Smith, the courts' discretionary power
necessarily includes the power to refrain from imposing sanctions and fines in the
face of compliance. Therefore, absent an abuse of discretion, we will not disturb
the trial court’s decision regarding contempt. The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d
941 (Ky. 1999). We review with those standards in mind.
We note at the outset that Kentucky law is clear that an injunction
must not be construed literally to the point of absurdity and that they must be
honestly and fairly obeyed. Wormald v. Macy, 349 S.W.2d 199 (Ky. 1961), citing
Ginsberg v. Kentucky Utilities Co., 83 S.W.2d 497 (Ky. 1961). An injunction
order is to be construed with reference to the nature of the proceeding and the
purpose sought to be achieved as shown by the pleadings and the relief requested.
In our review, it is important to consider the desired result the injunction was to
achieve as well as the attending circumstances. Macy at 201.
In Macy, our Supreme Court stated that an injunction should be given
the effect that it was intended to have. Id. at 201. Thus, in order to establish a
violation of an injunction so as to justify a finding of contempt, a movant must
establish two things: (1) That the alleged breach was a substantial violation of the
injunction (emphasis added), and (2) The absence of a good faith effort to comply
with the injunction’s terms. Cann v. Air Reduction Co., 338 S.W.2d 911, 912 (Ky.
1960).
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Hayse cites Thomas v. Lyons, 586 S.W.2d 711 (Ky. 1979) for the
proposition that nothing less than “full compliance” will satisfy a parties’
obligation when objective standards are set for compliance with the law. We do
not find that case to be directly on point. That case, unlike the matter sub judice,
dealt with an election statute drafted by the legislature, and noted that “substantial
compliance” with the statute would amount to an unauthorized amendment of
same. In the matter sub judice, the issue of the University’s compliance is being
argued before the court that drafted the injunction at issue. Accordingly, we
believe that court to be in the best position to render a judgment regarding same.
Hayse asserts that approximately six years have passed since we
issued our opinion in 2002 and that the University has never shown why it should
not be held in contempt of the injunction. We disagree. Clearly, pursuant to Cann,
supra, it is Hayse’s burden to prove contempt, not the University’s burden to
disprove it.
In the matter sub judice, we simply cannot find that Hayse has met
that burden. We believe that the trial court that issued the injunction is in the best
position to determine whether or not actions taken by the University amount to
compliance. In this instance, the trial court clearly based its dismissal on at least
four grounds, those being laches, either insubstantiality or irrelevance of the
violations alleged by Hayse to the ultimate basis for denial of tenure, good faith
attempts on the part of the University to comply with the injunction, and actual or
substantial compliance with the injunction.
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Hayse argues that the trial court failed to consider each of the ten
alleged injunction violations individually. We believe it implicit in the trial court’s
order that those allegations of Hayse not addressed individually were insubstantial
in light of the grounds on which the trial court based its’ decision and orders.
Upon review, we find none of the omissions alleged by Hayse related to the lack of
scholarship that supported denial of his tenure in the ab initio review.
We find that the trial court did not abuse its discretion in finding that
the University made both a good faith attempt to comply with the injunction and
had substantially complied therewith. We need not reach the laches argument, nor
whether laches specifically applies to the matter sub judice. While laches was one
of several grounds for the trial court’s dismissal, it clearly was not the only ground.
More importantly, the trial court found that the University not only substantially
complied with the terms of the injunction but had made a good faith attempt at
doing so; either finding was sufficient under Cann to defeat a finding of contempt.
Accordingly, any reliance on laches, even if in error, was harmless.
Lastly, in affirming the judgment of the trial court that the contract
claim is res judicata and the University is not in contempt, we note that Hayse’s
motion under 59.05 must fail and any analysis thereunder would be superfluous.
For the foregoing reasons, we affirm the order entered by the trial
court. Specifically, we believe that no pending contract claim exists, and that the
trial court is in the best position to determine compliance, or lack thereof, with its
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injunction. Therefore, the Order of the Hon. Roger L. Crittenden, Judge, Franklin
Circuit Court, be and hereby is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
William C. Jacobs
Lexington, Kentucky
Stephen L. Barker
Joshua M. Salsburey
Lexington, Kentucky
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