DORA NANCY PRICE V. PAINTSVILLE TOURISM COMMISSION AND CITY OF PAINTSVILLE
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MODIFIED : AUGUST 21, 2008
TO BE PUBLISHED
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2007-SC-000957-1
APPELLANT
DORA NANCY PRICE
V.
ON REVIEW FROM COURT OF APPEALS
2007-CA-001946-MR
JOHNSON CIRCUIT COURT NO. 07-CI-00418
PAINTSVILLE TOURISM COMMISSION
AND CITY OF PAINTSVILLE
APPELLEES
OPINION AND ORDER
Dora Price, the General Manager of the Paintsville Tourism Commission, seeks
interlocutory relief pursuant to CR 65 .09 from a December 21, 2007 order of the Court
of Appeals vacating a temporary injunction issued by the Johnson Circuit Court . The
Tourism Commission sought to terminate Price's employment, and the injunction
required the Commission to keep Price employed pending the outcome of her suit
challenging the termination . The Court of Appeals vacated the injunction because in its
view Price was not subject to "immediate and irreparable injury," such as would justify
injunctive relief. Price asserts that the Court of Appeals has improperly substituted its
assessment of the circumstances for that of the trial court and asks that the injunction
be reinstated . Because Price's motion fails to demonstrate "extraordinary cause" for
relief, the motion is denied .
On August 27, 2007, the Tourism Commission voted to remove Price from her
duties as General Manager . The Commission notified Price of its decision and
purported to effect the termination immediately . Alleging that the Commission did not
have authority to discharge her, on September 5, 2007, Price brought suit in the
Johnson Circuit Court against the Commission and the City of Paintsville . She sought a
declaration that she was an employee of the City, not the Commission, and as such
could not be removed from her position without pre-termination notice and a hearing
before the City's personnel authority . She also moved that the Commission be enjoined
to restore her to her position as General Manager pending disposition of the suit.
A hearing on this latter motion was held September 12, 2007, and by Order
entered the next day the Johnson Circuit Court granted Price's motion for a temporary
injunction. In light of evidence adduced at the hearing, including evidence that Price's
paychecks came from the City, that she participated in the City's health insurance and
retirement plans, and that the Commission had not been issued a federal employer's
identification number, the court ruled that there was a substantial possibility that Price's
suit would succeed on the merits . That likelihood, the court believed, justified
maintaining the pre-termination status quo until the matter could be finally resolved .
The court also opined that because Price was seeking reinstatement to her job and not
merely monetary damages, she would suffer immediate and irreparable injury were she
not allowed to maintain her position pending final disposition .
The Commission and the City sought relief from the temporary injunction in the
Court of Appeals, and as noted that Court granted relief because in its view an
injunction was not required to preserve Price's access to an adequate remedy should
her suit ultimately prevail . Price now seeks additional review by this Court . Under CR
65.09 our review is limited to those cases which demonstrate "extraordinary cause," and
we have noted that "abuses of discretion by the courts below can supply such cause."
National Collegiate Athletic Association v. Lasege, 53 S .W .3d 77, 84 (Ky. 2001). Price's
motion fails to meet this standard .
As the parties correctly observe, CR 65 governs injunctive relief, and under CR
65.04 a temporary injunction may be granted during the pendency of an action
if it is clearly shown by verified complaint, affidavit, or other
evidence that the movant's rights are being or will be
violated by an adverse party and the movant will suffer
immediate and irreparable injury, loss, or damage pending a
final judgment in the action, or the acts of the adverse party
will tend to render such final judgment ineffectual .
This rule has been construed as requiring the trial court to deny injunctive relief
unless it finds (1) that the movant's position presents "a substantial question" on the
underlying merits of the case, i.e. that there is a substantial possibility that the movant
will ultimately prevail ; (2) that the movant's remedy will be irreparably impaired absent
the extraordinary relief; and (3) that an injunction will not be inequitable, i.e. will not
unduly harm other parties or disserve the public. Cyprus Mountain Coal Corporation v.
Brewer ; 828 S .W.2d 642 (Ky. 1992) (citing Maupin v. Stansbury, 575 S.W.2d 695 (Ky.
App. 1978)) . Although a trial court's ruling granting or denying injunctive relief is
reviewed under the abuse of discretion standard, id., our case law is adamant that
injunctions generally will not be granted "when the remedy at law is sufficient to furnish
the injured party full relief." Id. at 645 .
In accord with a like restriction on injunctive relief, the rule in federal practice has
long been that despite individual hardship the loss of one's job and one's income
pending disposition of a wrongful termination case does not amount to "irreparable
injury" justifying a temporary injunction . On the contrary, "income wrongly withheld may
be recovered through monetary damages in the form of back pay." Overstreet v.
3
Lexington-Fayette Urban County Government , 305 F .3d 566, 579 (6th Cir. 2002) .
This federal rule was established by the United States Supreme Court in
Sampson v. Murray , 415 U.S. 61, 94 S. Ct. 937, 39 L . Ed . 2d 166 (1974), in which a
discharged federal employee was granted a temporary injunction pending her
administrative appeal. In reversing and holding that the injunction constituted an abuse
of discretion, the Court acknowledged that extraordinary circumstances surrounding a
discharge could, conceivably, amount to irreparable injury so as to justify an injunction,
but in the ordinary case, the Court explained, loss of income or damage to reputation as
a result of discharge "falls far short of the type of irreparable injury which is a necessary
predicate to the issuance of a temporary injunction ." Id. at 91-92. Courts, after all, are
ill-suited to enforce a continuing relationship between parties who have become
adverse to one another and have traditionally been unwilling "to enforce contracts for
personal service either at the behest of the employer or of the employee." Id. at 83.
Although the issue does not seem to have resulted in many published state court
opinions, several states and the District of Columbia have concurred in the Supreme
Court's ruling . Miller v. Foley, 317 N.W.2d 710 (Minn . 1982) ; Packaging Industries
Group, Incorporated v. Cheney , 405 N .E .2d 106 (Mass . 1980) ; Broward County v.
Meiklejohn , 936 So. 2d 742 (Fla . App. 2006); Zirkle v. District of Columbia , 830 A.2d
1250 (D .C. 2003); Tulsa Order of Police Lodge No . 93 ex rel . Tedrick v. City of Tulsa ,
39 P .3d 152 (Okla. App . 2001); Ford v. Landmark Graphics Corporation , 875 S.W.2d
33 (Tex. App. 1994); Leibson v. Ohio Department of Mental Retardation and
Developmental Disabilities , 618 N.E.2d 232 (Ohio App . 1992) (holding that extreme
hardship caused by the loss of health insurance was an extraordinary circumstance
justifying an injunction) ; Hess v. Clarcor, Incorporated , 603 N .E.2d 1262 (III. App. 1992) .
We agree with these courts that in ordinary wrongful termination cases, such as this
one, where the damage alleged is the loss of income, the disruption of one's work, the
damage to reputation, or any of the other usual consequences of the loss of
employment, reinstatement and/or back pay at the conclusion of proceedings is an
adequate remedy rendering pretrial injunctive relief unnecessary and improper .
In this case, although the trial court found that Price adequately established a
substantial possibility that she will prevail on the merits, the Court of Appeals correctly
determined that neither the loss of income nor the removal from her duties amounted to
an irreparable injury . Both of those alleged injuries may be fully remedied should
Price's suit prevail . Price, accordingly, has failed to demonstrate the "extraordinary
cause" necessary for relief from the Court of Appeals' ruling .
Finally, all of the parties have expressed either the belief or the concern that in its
September 13, 2007 Opinion and Order granting Price's temporary injunction motion the
Johnson Circuit Court held that Price is, in fact, an employee of the City rather than an
employee of the Commission-a key issue in Price's underlying suit. We do not
understand the trial court's Order as holding more than that Price succeeded in raising a
substantial question on that issue, but lest there be any doubt that that issue is still to be
heard and decided, we emphasize that the December 21, 2007 Order of the Court of
Appeals vacating the temporary injunction vacated the September 13, 2007 Opinion
and Order of the Johnson Circuit Court in its entirety. Because Price has failed to
demonstrate "extraordinary cause," her motion for relief from the Court of Appeals'
Order is hereby denied .
All sifting . All concur.
ENTERED: April 24, 2008 .
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2007-SC-000957-1
DORA NANCY PRICE
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NUMBER 2007-CA-001946
JOHNSON CIRCUIT COURT NO. 07-CI-00418
PAINTSVILLE TOURISM COMMISSION
AND CITY OF PAINTSVILLE
RESPONDENTS
ORDER DENYING MOTION TO RECONSIDER
AND ORDER MODIFYING OPINION TO DESIGNATE PUBLICATION
The appellant's motion to reconsider the Opinion and Order, rendered April 24,
2008, is DENIED. On the Court's own motion, however, the Opinion and Order,
rendered April 24, 2008, is MODIFIED on its face to designate publication ; and the
attached page 1 of the opinion is substituted therefor. The modification does not affect
the holding of the case.
All sitting, except Venters, J . All concur.
ENTERED: August 21, 2008.
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