AIR RELIEF, INC. VS. CENTRIFUGAL TECHNOLOGIES, INC. , ET AL.Annotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
AIR RELIEF, INC.
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CI-00115
CENTRIFUGAL TECHNOLOGIES, INC.,
AND MICHAEL SHEEHAN
ORDER AND OPINION
** ** ** ** **
BEFORE: ACREE AND CLAYTON, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
ACREE, JUDGE: Air Relief, Inc., a Kentucky corporation, appeals from a
judgment of the Graves Circuit Court finding provisions of a non-compete and
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
non-disclosure agreement between itself and its former employee, Michael
Sheehan, to be unreasonable. We dismiss this case as moot.
Beginning in October 1999, Sheehan worked as a sales representative
for Air Relief. On July 19, 2004, Air Relief and Sheehan entered into a noncompete and non-disclosure agreement with a term ending one year from the
effective date of Sheehan’s termination of employment.
On February 19, 2007, Sheehan resigned with the intention of taking a
similar position at Centrifugal Technologies, Inc. (CTI), a direct competitor of Air
Relief. The effective date of that resignation was February 28, 2007. CTI and
Sheehan filed the underlying declaratory judgment action seeking to have the noncompete and non-disclosure agreement declared invalid.
The trial court determined that the non-compete and non-disclosure
agreement was overly broad and reformed certain of its provisions. Seeking to
appeal that determination, Air Relief filed a Notice of Appeal on September 6,
On February 28, 2008, the non-compete and non-disclosure agreement
expired by its own terms thereby eliminating the controversy between the parties.
CTI and Sheehan therefore argue that the issue before us is moot and should be
dismissed. We agree.
An appellate court is required to dismiss an appeal when a change in
circumstance renders that court unable to grant meaningful relief to either party.
Brown v. Baumer, 301 Ky. 315, 321, 191 S.W.2d 235, 238 (Ky. 1946). Unless
there is “an actual case or controversy,” this Court has no jurisdiction to hear an
issue and is prohibited from producing mere advisory opinions. Commonwealth v.
Hughes, 873 S.W.2d 828, 829 (Ky. 1994); KY. CONST. § 110.
Air Relief notes the well-known exception to the mootness doctrine
where an issue is “capable of repetition, yet evading review.” Lexington HeraldLeader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky. 1983), quoting Neb. Press
Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976);
see also Woods v. Commonwealth, 142 S.W.3d 24, 31 (Ky. 2004); Commonwealth
v. Hughes, 873 S.W.2d 828, 830 (Ky. 1994). A two-part test governs the
application of this exception: “(1) is the ‘challenged action too short in duration to
be fully litigated prior to its cessation or expiration and (2) [is there] a reasonable
expectation that the same complaining party would be subject to the same action
again.’ ” Hughes, 873 S.W.2d at 830 (emphasis supplied), quoting In re
Commerce Oil Co., 847 F.2d 291, 293 (6th Cir. 1988). Covenants not to compete
are typically addressed by pursuing injunctive relief which, even in this case,
would allow full resolution before the cessation or expiration of the challenged
action. Therefore the first prong is not met. Because this same complaining party
will not be subject to this action again, the second prong is not met.
As we have concluded that the issue in this case is nonjusticiable and
not subject to the “capable of repetition, yet evading review” exception to the
mootness doctrine, we dismiss this appeal.
ENTERED: October 31, 2008
/Glenn E. Acree
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Shannon Antle Hamilton
Demetrius O. Holloway
Brooks D. Kubik
Richard D. Null