6$Uyrrntr dourf of JOANNE BUCKLEY V. NON . STEVE ALAN WILSON, JUDGE, WARREN CIRCUIT COURT, ET AL .
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6$Uyrrntr dourf of
2004-SC-000727-MR
JOANNE BUCKLEY
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
2004-CA-001221
WARREN CIRCUIT COURT NO . 97-CI-00504
NON . STEVE ALAN WILSON, JUDGE,
WARREN CIRCUIT COURT, ET AL.
APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
Appellant Joanne (Joan) Buckley appeals from the Court of Appeals'
denial of a writ of prohibition in which she sought to prevent the trial court from
enforcing a pretrial order. Specifically, the order bars Appellant from presenting her
claim for intentional infliction of emotional distress (TIED) to the jury. Because Buckley
has failed to make the requisite showing for extraordinary relief, we affirm the Court of
Appeals .
Buckley began working for The Kroger Company, d/b/a Country Oven
Bakery, in 1981 . She asserts that in 1996, the company forced her to discover and
report to management any mistakes made by one of her fellow male co-workers, or
alternatively be held responsible for his mistakes . She avers that this put her in a
precarious position because she feared the co-worker and believed him to be
dangerous . A few months after the management directive, the stress of the situation
prompted Buckley to seek a physician's care . Despite being diagnosed with posttraumatic stress disorder, Buckley continued to work for approximately six more
months . However, in April 1997, she went on full-time medical leave.
In May 1997, Buckley filed suit against the company under KRS 344.040
for disability discrimination and asserted a common law claim of TIED . In March 1998,
she sent the Kroger Company a letter, indicating that she could return to her position if
the company would make certain accommodations required by her physician, but the
company refused, explaining that the accommodations would prevent her from doing
the essential elements of her job. Buckley's one-year medical leave, the maximum
allowed by the company, ended on April 9, 1998, leaving her unemployed.
Buckley pursued her claims against the company and prevailed on both
the IIED claim and the disability discrimination claim. A jury awarded Buckley punitive
as well as compensatory damages, medical expenses and damages for humiliation .'
Buckley's claims were combined for the purpose of awarding damages, preventing the
Court of Appeals from determining the amount awarded for each claim .2 The company
appealed the jury's verdict and the Court of Appeals vacated and remanded the case,
holding that under its recent decision in Wilson v. Lowe's Home Center,3 Buckley's IIED
claim was subsumed by her discrimination claim .4 Wilson held that a claim under
Kentucky's discrimination statutes 5 preempted any common law claim such as IIED .
'
2
3
4
5
The Kroger Co . v. Buckle , 113 S .W.3d 644 (Ky. App. 2003).
Buckle , 113 S.W.3d 644.
75 S .W .3d 229 (Ky. App. 2001) .
Buckle , 113 S .W . 3d 644.
KRS 344.010 et. seq.
Thus, the Court of Appeals vacated the judgment and remanded the case for anew
Buckley chose not to seek discretionary review in this Court .
trials
Buckley's original claim for damages alleged both statutory discrimination
and common law TIED . However, after litigation was already underway, Kroger refused
to make reasonable accommodations upon receipt of the March 1998 letter wherein
Buckley requested to return to work under restrictions established by her physician .
She contends that this latter action, alone, supports the discrimination claim, while the
company's prior conduct which forced her medical leave supports the I I ED claim .
Buckley interprets Wilson to prohibit concurrent prosecutions of TIED claims and KRS
Chapter 344 claims, only where the claims are based on the same set of facts. Thus,
on remand, Buckley amended her claim for damages in an attempt to separate the
company's conduct into two distinct sets of facts, one which supported the IIED claim
and another which supported the discrimination claim. However, the trial court entered
an order prohibiting Buckley from pursuing both claims . Buckley sought a writ of
prohibition to prevent the trial court from enforcing this order.
Before we address the merits of Buckley's argument, we must evaluate
the prerequisites for entitlement to extraordinary relief .' Because the trial court's order
is interlocutory, immediate appeal is not available . However, remedies traditionally
available through common law writs, such as mandamus and prohibition, are allowed
by the Rules of Civil Procedure .9 Thus, Buckley brought an original action in the Court
of Appeals for an extraordinary writ. She requested that the Court of Appeals clarify its
6
_Id.
Fritsch v. Caudill, 146 S.W .3d 926 (Ky . 2004).
8 CR 54 .02. See also Vaught v. Vaught , 178 S .W.2d 590 (Ky. 1944) .
9 CR 81 .
earlier opinion and direct the trial judge to permit her to pursue both claims upon retrial
of the case. The Court of Appeals denied Buckley's petition and she appeals to this
Court.'°
Extraordinary writs are disfavored, but may be appropriate when a lower
court is acting without jurisdiction or acting erroneously within its jurisdiction ." In her
brief to this Court, Buckley states, "[t]echnically this effort by Appellant to obtain relief
pursuant to CR 76.36 is probably similar to those cases involving actions by the trial
court within the trial court's jurisdiction where no adequate appeal is available and the
petitioner would be irreparably harmed. But, in reality, it is an effort to prevent a court
from acting outside of its jurisdiction ." Buckley argues, in essence, that the appellate
court's directive, if correctly interpreted by the trial court, allows the appellate court to
determine the facts of the case upon retrial. She points out that jurisdiction to
determine the facts is reserved exclusively for the jury.
Buckley has improperly framed the issue . As noted, she chose not to
seek review of the Court of Appeals' initial decision which held, "[o]n remand, Wilson
will operate to bar the concurrent prosecution of KRS Chapter 344 and IIEDloutrageous
conduct claims ." But in her writ petition she took issue with the trial court's
interpretation of this directive . She claims that the trial court's interpretation renders the
Court of Appeals' opinion outside of its jurisdiction .
The trial court's order acknowledged that it was bound by the appellate
court's decision which included the above directive . Essentially, the trial court
determined that its ruling was mandated by the law-of-the-case doctrine . The law-of-
'° Kroger moved to strike Buckley's reply brief to this court. Our ultimate determination
to affirm the Court of Appeals' denial of her writ petition renders this issue moot.
11 .
Bender v. Eaton , 343 S.W.2d 799 (Ky. 1961) .
4
the-case doctrine describes a principle which requires obedience to appellate court
decisions in all subsequent stages of the litigation
12
Thus, on remand, a trial court
must strictly follow the mandate given by an appellate court in that case . 13 "The court to
which the case is remanded is without power to entertain objections or make
modifications in the appellate court decision . It necessarily
follows,
therefore, that if a
party is aggrieved by an adverse appellate determination, his remedy is in an appellate
court at the time the adverse decision is rendered . "14
As previously stated, Buckley did not seek review of the Court of Appeals'
initial decision . Instead, after the trial court interpreted that decision, she attacked the
trial court's interpretation in her writ petition . However, it was the trial court's duty to
interpret and apply the controlling appellate court decision . . A trial court, in interpreting
an appellate court's decision, is not acting outside its jurisdiction even if its
interpretation is erroneous. 16 That brings us to the prerequisites
of
obtaining an
extraordinary writ where the court is alleged to be acting erroneously, though within its
jurisdiction .
In such cases, the appellant must make a threshold showing before we
review the merits of the alleged error. 17 Namely, there must be a showing that the
appellant has no remedy by appeal and, in most cases, there must also be a showing
of
irreparable injury . 18 In the instant case, Buckley has not shown that she lacks an
12 Inman v. Inman, 648 S.W .2d 847 (Ky. 1982) .
13 Williamson v. Com . , 767 S .W .2d 323 (Ky. 1989) (citing City of Lexington v. Garner ,
329 S.W .2d 54 (Ky . 1959) and E'town Shopping Center, Inc ., v . Holbert , (Ky. 1970)) .
14 Williamson , 767 S .W.2d at 325 .
15
Williamson , 767 S .W.2d 323.
16
Id.
17 Bender, 343 S.W .2d 799 .
18 Grange Mut. Ins. Co . v. Trude , 151 S.W.3d 803 (Ky. 2004).
adequate remedy by appeal. If the trial court incorrectly interpreted the Court of
Appeals' opinion, its order disallowing submission of the IIED claim to the jury will be
subject to appellate correction .
Buckley's argument for inadequacy of a remedy by appeal centers on the
delays involved in every lawsuit and appeal, including the practical difficulties of fading
memories and unavailability of witnesses . However, this argument has been explicitly
rejected by this Court in the past. For example, in National Gypsum Company v. Corns,
we stated, "the delay incident to litigation and appeal by litigants who may be financially
distressed cannot be considered as unjust, does not constitute irreparable injury, and is
not a miscarriage of justice ."' 9
For the foregoing reasons, we affirm the Court of Appeals' decision to
deny Buckley's petition for an extraordinary writ.
All concur.
'9 736 S .W.2d 325, 348 (quoting Ison v. Bradley, 333 S .W .2d 784, 786 (Ky . 1960)).
6
COUNSEL FOR APPELLANT :
Lee Huddleston
HUDDLESTON & HUDDLESTON
Attorneys at Law
P . O . Box 2130
Bowling Green, KY 42102-2130
COUNSEL FOR APPELLEES :
Hon . Steve A . Wilson
Judge, Warren Circuit Court
Warren County Justice Center
1001 Center Street, Suite 404
Bowling Green, KY 42101
David B . SAndler
Brent R . Baughman
GREENBAUM DOLL & McDONALD PLLC
3500 National City Tower
Louisville, KY 40202
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