ALI SHAMAEIZADEH, M.D. V. HON. JUDITH MCDONALD-BURKMAN, JUDGE, JEFFERSON CIRCUIT COURT AND KENTUCKY MEDICAL LICENSURE BOARD
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RENDERED: MAY I/& 2002
ALI SHAMAEIZADEH, M.D.
V.
APPEAL FROM THE COURT OF APPEALS
NO. 2001 -CA-l 148-OA
HON. JUDITH MCDONALD-BURKMAN,
JUDGE, JEFFERSON CIRCUIT COURT
AND
KENTUCKY MEDICAL LICENSURE BOARD
APPELLEE
REAL PARTY IN INTEREST
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
The Kentucky Board of Medical Licensure issued an order revoking
Appellant’s medical license. Appellant appealed to the Circuit Court. On April 6, 2000,
Appellant’s motion in Circuit Court for a temporary injunction was granted. The
language of that order is as follows:
Temporary Order
The Petitioner comes before the Court for a
temporary injunction for the duration of which would last the
litigation of this matter before the Court and on Appeal. . .
....
IT IS HEREBY ORDERED that the Order
Revoking Petitioner’s medical license is hereby temporarily
enjoined from being effective and the Petitioner shall retain
his medical license until such time as his judicial review is
complete.
The issues on appeal are whether the order was a temporary injunction or
temporary restraining order and whether it was intended to remain in effect beyond the
final judgment of the Circuit Court.
The Circuit Court rendered its final judgment affirming the Board’s Order
of Revocation of Appellant’s medical license. Appellant filed a Motion for Rule with the
Circuit Court requesting that it require the Board to show cause why it should not be
held in contempt for failing to abide by the Temporary Order. The Circuit Court deferred
with the conclusion that it did not have jurisdiction to rule on Appellant’s motion
because
If the April 6, 2001 [sic] Temporary Order is deemed a
Temporary Restraining Order, it only remains in force and
effect until entry of a Final Judgment. If it is considered a
Temporary Injunction, that type of relief is only granted
during the pendency of an action and is further resolved by
Final Judgment. This matter is now with the Court of
Appeals and the Petitioner has an appropriate vehicle for
relief in that Court. Having no jurisdiction, the Court can not
rule on this matter and request for a ruling is DENIED.
Appellant then sought Emergency Relief pursuant to CR 65.08(7)’ and
likewise filed a Petition for Writ of Mandamus. The Court of Appeals denied Appellant’s
Motion for Emergency Relief holding that the Temporary Order expired when the Circuit
Court’s Final Judgment was entered. Appellant apparently concluded that it would be
futile to seek further relief under CR 6508(l)’ because the Circuit Court had already
’ CR 65.08(7). If a movant will suffer irreparable injury before the Court of
Appeals may hear the motion, the movant may request emergency relief from a
member of the Court which may be granted ex parte if necessary. If such relief is
sought ex parte the motion shall state why it is impractical to notify opposing counsel so
that they may appear, in person or by phone, before the judge to whom the request for
emergency relief is presented.
2 CR 65.08 Interlocutory Relief Pending Appeal From Final Judgment.
(continued. ..)
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held that it lacked jurisdiction to rule on Appellant’s contempt motion. The Court of
Appeals disagreed.
However, we do not equate the circuit court’s denial of the
‘Motion For Rule’ with a considered determination that the
court has no jurisdiction under CR 65.08( 1). Appellant had
sought only to hold the Board in contempt for violation of the
prior order. Appellant did not seek injunctive relief pending
appeal. Rulings on such motions by the circuit court
frequently determine the status of the parties pending
appeal. Even when a party seeks relief under CR 65.08(2),
the ruling of the circuit court is a valuable tool in this Court’s
review.
. . . .
It is the opinion of this panel that the
appellant’s motion does not demonstrate such a chance of
success on the merits or such a possibility of irreparable
injury that emergency relief is justified. Appellant has not
shown a valid reason for failure to make an initial application
to the circuit court under CR 6508(l).
The Court of Appeals denied Appellant’s Petition for Writ of Mandamus,
holding that
The circuit court’s order of April 6, 2000, is
most readily interpreted as a temporary injunction which
expired when the final judgment was entered. Any relief to
which the petitioner may be entitled is available by a motion
for intermediate relief in the appeal taken form [sic] the final
judgment.
Appellant appeals to this Court as a matter of right. CR 76.36(7).
*(...continued)
(1) After an appeal is taken from a final judgment granting or denying an injunction any
party may move the circuit court to grant, suspend or modify injunctive relief during the
pendency of the appeal. The circuit court, in its discretion, may provide in the order
ruling on the motion that the status existing immediately before the entry of the final
judgment shall be maintained for a specified limited time to protect a party wishing to
proceed promptly under paragraph (2) of this rule.
(2) A party adversely affected by a ruling by the circuit court under paragraph (1) of this
rule, may move the Court of Appeals for relief.
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Appellant argues that this Court should reverse the Court of Appeals
because a temporary injunction “shall remain in force until modified or dissolved on
motions or until a permanent injunction is granted or denied.” CR 65.04(4). He argues
that a final judgment does not dissolve a temporary injunction as the Court of Appeals
and Circuit Court held and that no motions were made requesting modification or
dissolution of the temporary injunction. He contends that the temporary injunction was
to remain in effect until appeals were complete and therefore, the Circuit Court should
be required to enforce the injunction,
Appellee argues that the Court of Appeals was correct when it held that
Appellant should have sought relief under CR 6508(l) rather than under CR 76.36.
Appellee also argues that because Appellant incorrectly sought relief under CR
65.08(2) that fact does not render the available remedy under 6508(l) inadequate.
For this Court to grant a writ of mandamus, it must be shown that there is
no adequate remedy by appeal or otherwise.3 As the Court of Appeals correctly held,
Appellant had a remedy under CR 65.08(l). He could have sought extension of the
Circuit Court injunction “for a specified limited time to protect a party wishing to proceed
promptly under paragraph (2) of [CR 65.081.” CR 65.08(l). Thereafter, Appellant would
have been entitled to review of the Circuit Court decision pursuant to CR 65.08.
Moreover, it should not be overlooked that Appellant sought injunctive relief in the Court
of Appeals pursuant to CR 65.08(7) and that his motion was denied. The order of the
Court of Appeals is hereby affirmed.
3 Commonwealth v. Maricle, Ky., 10 S.W.3d 117, 1 2 1 (1999) (citing Tipton
v. Commonwealth, Ky.App., 770 S.W.2d 239 (1989); Hobson v. Curtis, Ky., 329 S.W.2d
565 (1959)).
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All concur.
COUNSEL FOR APPELLANT:
David R. Marshall
271 West Short Street
111 Security Trust Building
Lexington, KY 40507
COUNSEL FOR APPELLEE:
Honorable Judith McDonald-Burkman
Judge, Jefferson Circuit Court
700 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR REAL PARTY IN INTEREST:
C. Lloyd Vest II
Kentucky Board of Medical Licensure
310 Whittington Parkway, Suite 1 B
Louisville, KY 40222
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