KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION V. JAMES "BO" EDWARDS
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RENDERED : JUNE 19, 2008
TO BE PUBLISHED
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2007-SC-000927-1
KENTUCKY HIGH SCHOOL ATHLETIC
ASSOCIATION
V.
MOVANT
ON MOTION FOR INTERLOCUTORY RELIEF (CR 65 .09)
FROM COURT OF APPEALS NO. 2007-CA-002292
BARREN CIRCUIT COURT NO . 07-CI-000769
JAMES "BO" EDWARDS
RESPONDENT
OPINION OF THE COURT BY JUSTICE NOBLE
SUPPORTING DISMISSAL
The Kentucky High School Athletic Association (KHSAA) moves this Court for
interlocutory relief under CR 65.09 and asks to be relieved from an order of the Barren
Circuit Court granting a temporary injunction. Because the order entered by the Barren
Circuit Court was in substance a restraining order, KHSAA improperly sought
interlocutory relief.
I. Background
James "Bo" Edwards was a student athlete at Barren County High School from
ninth to eleventh grade.
In May 2007, Barren County High's administration found that
Edwards violated the school's alcohol policy and as a result declared him ineligible to
participate in interscholastic athletics for the following school year. Edwards enrolled at
Glasgow High School in June 2007, and subsequently requested that the KHSAA
declare him eligible for interscholastic athletics at the school because of the bona-fidechange-in-address exception to the KHSAA Bylaws Transfer Rule based on his family
having moved to a new house. The KHSAA denied the request .
Edwards appealed the denial and was given a pair of hearings in August and
September of 2007. The hearing officer recommended affirming the KHSAA's initial
ruling, finding that while Edwards had established a bona fide address change, he was
still ineligible under the Transfer Rule, which states that the bona-fide-change-inresidence exception is not available where the "student left the sending school under
penalty which would have resulted in their ineligibility at the sending school . . . ." The
KHSAA subsequently adopted the Hearing Officer's recommendation and declared
Edwards ineligible for interscholastic athletics at Glasgow High School for the 20072008 school year in an order dated October 22, 2007.
On October 24, 2007, Edwards filed a verified complaint with the Barren Circuit
Court seeking judicial review of the KHSAA's decision . He also filed an ex parte motion
for a temporary injunction barring enforcement of the decision .' The trial court granted
the ex parte motion in a document titled "Findings of Fact, Conclusions of Law and
Temporary Injunction" entered on October 26, 2007 . The KHSAA was served with the
verified complaint several days later.
On November 13, 2007, the KHSAA filed a motion for interlocutory relief with the
Court of Appeals under CR 65.07. The court denied the motion on December 12, 2007,
noting that "[w]hile the findings of fact, conclusions of law and temporary injunction
' A copy of this motion does not appear in the record before this Court.
However, it is referred to in the CR 65.09 motion and response and is described as an
"ex pane motion for a Temporary Injunction" in the trial judge's subsequent order
granting the motion.
entered by the Barren Circuit Court on October 26, 2007 does not provide sufficient
factual findings to permit this Court to adequately review this matter, it is clear that the
KHSAA has failed to demonstrate that the circuit court's findings were clearly erroneous
or failed to properly balance the equities between the parties."
The KHSAA then filed the current motion for interlocutory relief under CR 65.09
with this Court . In its motion before this Court, the KHSAA argues that it is entitled to
relief because of the "special difficulties" presented by student athlete eligibility cases
and because the trial court abused its discretion . See National College Athletic Ass'n v.
Lasege , 53 S .W .3d 77 (Ky. 2001) (holding that interlocutory review by the Supreme
Court is appropriate in student athlete eligibility matters where the trial court abuses its
discretion) .
II . Analysis
Whether to review a ruling on a CR 65 .07 motion is entirely discretionary with this
Court. CR 65.09(1). Exercise of that discretion turns on whether the movant has
shown "extraordinary cause . . . in the motion." See id .
Ordinarily, this requires an
examination of the merits of the controversy to determine whether the trial court abused
its discretion . Cf. Lasege, 53 S .W.3d at 84 (holding that "extraordinary cause" can be
demonstrated by showing that the lower courts abused their discretion in granting or
denying an injunction) . A review of the motion by the KHSAA, however, renders
unnecessary a review of the merits of the controversy because it demonstrates that the
petition for interlocutory relief was premature and therefore that this Court is without
jurisdiction to reach the merits .
The trial court granted the "temporary injunction" ex parte, that is, without notice
to KHSAA and a hearing . However, a temporary injunction may only be granted with
notice and a hearing. Common Cause of Kentucky v. Commonwealth , 143 S.W.3d 634,
636-37 (Ky. App. 2004) ("A temporary injunction may be issued only after a
hearing . . . ."); see also 7 Kurt A. Phillips, Jr., David V. Kramer & David W. Burleigh,
Kentucky Practice, Rules of Civil Procedure Annotated Rule 65.04, at 669 (6th ed.
2005) [hereinafter Phillips, Kentucky Practical ("A temporary injunction can only be
granted on motion after proper notice and a hearing ."). The trial court's order, then, was
not a temporary injunction . Although the trial court's order refers to the relief it granted
as a "temporary injunction," cites the temporary injunction rule, CR 65 .04, and includes
findings of fact consistent with that rule, its ex parte nature makes it a restraining order
as allowed under CR 65.03. See Common Cause of Kentucky v. Commonwealth , 143
S.W .3d 634, 636-37 (Ky. App . 2004) (holding that substance and form of order made it
a restraining order, despite movant's claim that it amended its motion to argue for a
temporary injunction) .
Despite the similarity between restraining orders and temporary injunctions,
distinguishing between them is important, and not simply academic, because there is no
right to appeal or to seek interlocutory relief from a restraining order, unlike a temporary
injunction . See CR 65.07(1) (creating a right to seek interlocutory relief only for orders
related to temporary injunctions) ; Common Cause of Kentucky, 143 S.W .3d at
636 ("The rules do not provide for appellate relief from the grant or denial of a
restraining order."); 7 Phillips, Kentucky Practice Rule 65.03, at 665 ("There is no right
of appeal to the Court of Appeals from an order either granting, denying, modifying, or
dissolving a restraining order. Appellate relief may only be sought after the [trial] court
has taken action on a motion for a temporary injunction, or has entered a final
judgment."). The remedy for a restraining order is a motion for the trial court to dissolve
the restraining order, which has the effect of automatically ending the restraining order
unless the other side has also moved for a temporary injunction. See CR 65.03(5)
(dissolving the restraining order automatically upon a hearing to dissolve the order
unless a motion for a temporary injunction is pending) ; see also Palmer-Ball v.
Mei s, 456 S .W .2d 697, 697-98 (Ky. 1970); 7 Phillips, Kentucky Practice Rule 65.03, at
663 ("A restraining order operates as an ex parte restraint until the parties have had an
opportunity to be heard on the question of interlocutory or permanent injunctive relief.
When the party restrained is brought into court, or appears, the restraining order has
then served its purpose, and should be extinguished ." (footnote omitted)) .
Because the Civil Rules make no provision for appeals from restraining orders,
the appellate courts lack jurisdiction to address the merits of KHSAA's claim at this time.
Common Cause of Kentucky, 143 S .W .3d at 636 ("If the trial court's order . . . is the
[grant or] denial of a restraining order, then it is not final or otherwise reviewable and
thus is not within this Court's authority to review.") ; cf. KRS 22A .020(2)("The Court of
Appeals has jurisdiction to review interlocutory orders of the Circuit Court in civil cases,
but only as authorized by rules promulgated by the Supreme Court .").
Finally, it should be noted that neither of the parties has objected on the basis of
a lack of jurisdiction. This Court, however, is required to address the issue sua sponte if
necessary . See Hook v. Hook, 563 S .W.2d 716, 717 (Ky. 1978) ("Although the question
is not raised by the parties or referred to in the briefs, the appellate court should
determine for itself whether it is authorized to review the order appealed from .").
For the foregoing reasons, the decision of the Court of Appeals shall be vacated
and KHSAA's CR 65.09 motion shall be dismissed by separate order.
All sitting . All concur.
COUNSEL FOR MOVANT:
Phillip D. Scott
Greenebaum, Doll & McDonald, PLLC
300 West Vine Street, Suite 1100
Lexington, Kentucky 40507-1665
Theodore R. Martin
Greenebaum, Doll & McDonald, PLLC
300 West Vine Street, Suite 1100
Lexington, Kentucky 40507-1665
COUNSEL FOR RESPONDENT:
Ronald L. Hampton
Gillenwater and Hampton Law Firm
103 East Main Street
Glasgow, Kentucky 42141
Steven R. Romines
Romines, Weis & Young, P .S .C.
600 West Main Street
Suite 100
Louisville, Kentucky 40202
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