Russell County, Kentucky Hospital District Health Facilities Corp. v. Ephraim McDowell Health, Inc.
Russell County, Kentucky Hospital District Health Facilities Corp. v. Ephraim McDowell Health, Inc.
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
In a pending original action seeking a writ of prohibition, the Court of Appeals granted intermediate relief under CR 76.36(4) in the form of a temporary stay of a circuit court order. Subsequently, both an original action for a writ of prohibition against the enforcement of the temporary stay and an appeal of the temporary stay were filed in this Court. We are thus presented with the questions of whether the Supreme Court can hear an original action and whether an appeal can be taken from intermediate relief granted under CR 76.36(4). We conclude that an original action may be prosecuted in the Supreme Court under limited circumstances, though
II. FACTUAL AND PROCEDURAL BACKGROUND
Until 1999, Russell County, Kentucky Hospital District Health Facilities Corporation, the Appellant/Movant/Petitioner in this case
On October 25, 2004, the Petitioner filed a lawsuit in Russell Circuit Court, claiming that the Respondent was in default and seeking termination of the lease agreement. Later that day, the Russell Circuit Court entered an ex parte order, styled a “Restraining Order,” which, among other things, prohibits all the parties from interfering in any way with the operation or the personnel of the Russell County Hospital, requires that the Respondent return any and all property belonging to Petitioner, and requires that the Respondent transfer all licenses required for operation of the Russell County Hospital to the Petitioner.
Subsequently, the Respondent filed two pleadings with the Court of Appeals: (1) a motion for relief from a temporary injunction under CR 65.07 seeking to prevent enforcement of the Restraining Order, and (2) an original action under CR 76.36 seeking a writ of prohibition. On October 30, 2004, a Friday, the Court Appeals entered an order that, among other things, refused to grant the Respondent’s requested relief under CR 65.07 because the Restraining Order was not reviewable under that Rule. But in response to an emergency motion filed along with the original action for a writ of prohibition, the Court of Appeals in its October 30, 2004 order granted a temporary stay against the enforcement of the Restraining Order pending further orders of the Court of Appeals. In granting the temporary stay, the Court of Appeals noted that “some interim provision must be made” before the following Monday when the matter could be more fully addressed, and that should the Respondent’s claims be true, then it was apparent that the circuit court’s order “could result in so serious degree of injury as to warrant the entry of a writ of prohibition.” The Court of Appeals expressly indicated that it was proceeding overall under CR 76.36, but that it would revisit the matter the following Monday once a response had been entered by the Petitioner’s counsel.
Rather than attending to the matter at the November 8, 2004, hearing at the Court of Appeals, Petitioner filed an extensive pleading with this Court, which is denominated as follows:
ORIGINAL ACTION AND PETITION FOR WRIT OF PROHIBITION PURSUANT TO CIVIL RULE 76.36;
MOTION FOR INTERMEDIATE RELIEF PURSUANT TO CIVIL RULE 76.36(4);
APPEAL TO SUPREME COURT FROM JUDGMENT OF COURT OF APPEALS ENTERED NOVEMBER 1, 2004 PURSUANT TO CIVIL RULES 76.36(7); AND
PETITION TO VACATE ORDER OF COURT OF APPEALS ENTERED NOVEMBER 1, 2004 AND ORDER ENTERED OCTOBER 30, 2004 PURSUANT TO CIVIL RULE 65.09
In other words, the Petitioner filed the following: (1) a petition for a writ of prohibition against the Court of Appeals under CR 76.36; (2) a motion for intermediate relief under CR 76.36(4) until such a writ is entered; (3) an appeal under CR 76.36(7) of the order issued by the Court of Appeals on November 1, 2004; and (4) a motion under CR 65.09 to vacate the orders entered by the Court of Appeals on October 30 and November 1, 2004. Because Petitioner’s motion for intermediate relief and the motion to vacate the orders of the Court of Appeals were denied by this Court on November 12, 2004, only the appeal and petition for a writ of prohibition remain. We now address those matters.
III. ANALYSIS
A. Petition for a Writ of Prohibition
The petition for a writ of prohibition filed under CR 76.36 now pending before us is an original action seeking to prevent enforcement of the orders of the Court of Appeals, specifically the temporary stay granted by the Court of Appeals under CR 76.36(4). For the sake of clarity, we note that this original action is a separate and distinct original action from that which is currently pending before the Court of Appeals.
As a preliminary matter, we must address the Respondent’s claim that the Civil Rules “do not allow for an original action to be brought in the Supreme Court from an interlocutory order of the Court of Appeals.” We would first note that review of the denial or grant of a writ of prohibition is properly obtained by an appeal. “An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.”
This, however, does not answer the question of whether this Court may entertain an original action as to an interlocutory order of the Court of Appeals. And, given that writs of prohibition generally apply only to interlocutory orders (because the appealability of a final order is usually dispositive of the matter), Respondent has, in effect, raised the question of whether an original action is ever appropriate before this Court. We must answer that question in the affirmative because the Civil Rules clearly contemplate that original actions may be filed in the Supreme Court.
The basic rule on original actions in appellate courts provides that “[o]riginal proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court. All other actions must be prosecuted in accordance with the applicable law.”
The argument could be raised that because CR 76.36(7)(a)
Having determined that this Court can hear original actions, we must determine when such an action is appropriate. As discussed above, CR 76.36(1) allows that an original action may be brought in “an appellate court,” but the Rule also places a limit on when such an action may be brought, namely, such an action may “be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court.”
This hints at a second requirement, namely, that the original action in the Court of Appeals must still be pending. As noted above, we held in Stephens v. Goodenough
Here, because the Petitioner is seeking a writ of prohibition against the enforcement of a temporary stay by the Court of Appeals, this matter falls under the very narrow class of cases wherein an original action for a writ of prohibition against the Court of Appeals is allowed. Thus, because the original action in the Court of Appeals is still pending, Petitioner’s original action in this Court is proper.
2. Merits of Petitioner’s Claim
We begin by noting that just because an original action is allowed before this Court does not mean that the action is meritorious and relief will be granted to the petitioner. As our predecessor court noted previously, a writ of prohibition is an “extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief.”
We have divided writ cases into “two classes,” which are distinguished by “whether the inferior court allegedly is (1) acting without jurisdiction (which includes ‘beyond its jurisdiction’), or (2) acting erroneously within its jurisdiction.”
Petitioner never claims that the Court of Appeals acted outside its jurisdiction; thus we conclude that it is not invoking the first class of writ cases. But were that the case, we would simply note that although the orders entered by the Court of Appeals did not state the authority for the temporary stay, such authority is expressly given in the “intermediate relief’ provision of CR 76.36(4) and, as such, the Court
Because Petitioner claims it will suffer “immediate and irreparable harm” from the enforcement of the temporary stay, Petitioner’s claim appears to fall under the second class of writ case. On this, we have noted that writs of prohibition “ordinarily ha[ve] not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied).”
We would note that Petitioner’s claim of irreparable harm and injury would likely fail given that the orders of the Court of Appeals merely preserve the status quo (i.e., the Respondent’s continued operation of the Russell County Hospital).
B. Appeal of the Order Entered on November 1, 2004
We find even less merit in Petitioner’s appeal of the order of the Court of Appeals entered November 1, 2004. Petitioner is entitled to a matter of right appeal only “from a judgment or final order in any proceeding originating in the Court of Appeals.”
Basically, the Petitioner mischaracter-izes the order as a “judgment.” The order entered on October 30, 2004, created a temporary stay under CR 76.36(4) of the Russell Circuit Court’s Restraining Order. The order entered on November 1, 2004, of which the Petitioner seeks this expedited appeal, simply maintains that stay pending the outcome of the determination of the merits of the Petitioner’s original action for a writ of prohibition (which, given that the hearing on the merits was scheduled for November 8, 2004, might have already happened had the Petitioner not filed this second original action). The November 1, 2004, order is interlocutory in nature, and an appeal of such an order is inappropriate and premature. Once the merits of the original action are heard in the Court of Appeals, the Petitioner enjoys a matter of right appeal to this Court should the outcome favor the Respondent. But we will not review the Petitioner’s appeal until, and unless, such a result should come to pass. In other words, there is no reviewable order or judgment at this time.
IV. CONCLUSION
While the Petitioner’s original action in the form of a petition for a writ of prohibi
WHEREFORE, IT IS HEREBY ORDERED:
(1) The petition for a writ of prohibition is denied;
(2) Petitioner’s appeal is dismissed; and
(3) This matter is remanded to the Court of Appeals for further proceedings.
. Russell County, Kentucky Hospital District Health Facilities Corporation is the Real Party in Interest in the original action still pending before the Court of Appeals. In this separate original action before the Supreme Court, Ephraim McDowell Health, Inc. and L. Clark Taylor are the Real Parties in Interest.
. "A restraining order shall only restrict the doing of an act.” CR 65.01. But “[a]n injunction may restrict or mandatorily direct the doing of an act.” Id. (emphasis added). Thus, because the order issued by the circuit court was denominated a "restraining order” and issued without notice, it was improper for the order to mandate any action by the Respondent. See also 7 Kurt A. Philipps, Jr„ Kentucky Practice, Rules Of Civil Procedure Annotated Rule 65.01, cmt. 3, at 478 (5th ed. 1995) ("A restraining order, which is granted without notice, may not be mandatory in character, and may only restrict the commission or continuance of an act.”). Perhaps, this is the basis, at least in part, for the Court of Appeals’s serious concerns with the restraining order issued by the circuit court.
. Ky.App., 143 S.W.3d 634 (2004).
. CR 76.36(7)(a),
. Gilliece v. City of Covington, Ky., 565 S.W.2d 451, 452 (1978).
. See 63C AM. JUR. 2D Prohibition § 88 (1997) ("Although it has been said that the proper remedy to contest dismissal of a petition for a writ of prohibition is a request for a writ from a higher court, rather than appeal, it has also been said that an appeal, rather a motion for discretionary review, is the proper method for securing review of an order of an intermediate appellate court granting or denying a writ of prohibition.” (footnotes omitted)).
. See also Stephens v. Goodenough, Ky., 560 S.W.2d 556, 557 (1977) (noting that the Supreme Court was presented with "double-barreled attack on ... [an] order of the Court of Appeals ... denying a writ of prohibition” in the form of an appeal and a separate petition for a writ of prohibition and holding that the proper procedure where the Court of Appeals has ruled is a matter of right appeal to the Supreme Court).
. CR 76.36(1) (emphasis added).
. CR 81.
. CR 76.43(k).
. CR 76.09(1) (emphasis added).
. CR 76.09(2) (emphasis added).
. 7 KURT A. PHILLIPS, JR., KENTUCKY PRACTICE, RULES OF CIVIL PROCEDURE ANNOTATED, Rule 76.36, cmt. 1, at 697 (5th ed. 1995) (emphasis added).
. See also KY. CONST. § 115 (“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.”).
. KY. CONST. § 110.
. CR 76.36(1) (emphasis added).
. Ky., 560 S.W.2d 556, 557 (1977).
. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961).
.Id.
. See also Green Valley Environmental Corp. v. Clay, Ky., 798 S.W.2d 141, 144 (1990) (holding that "Court of Appeals was proceeding within its jurisdiction” in issuing a temporary stay while the merits of a petition for a writ were pending).
. Bender, 343 S.W.2d at 801.
. Green Valley Environmental Corp., 798 S.W.2d at 144 (holding that a stay preserving the status quo while the merits of a petition for a writ were pending did not rise to the level of immediate and irreparable harm).
. Bender, 343 S.W.2d at 801.
. CR 76.36(7)(a).
Reference
- Full Case Name
- RUSSELL COUNTY, KENTUCKY HOSPITAL DISTRICT HEALTH FACILITIES CORPORATION, Appellant/Movant v. EPHRAIM McDOWELL HEALTH, INC. and L. Clark Taylor, Jr., Appellees/Respondents and Russell County, Kentucky Hospital District Health Facilities Corporation v. Ephraim McDowell Health, Inc. L. Clark Taylor, Jr. and Hon. Vernon Miniard, Jr., Judge, Russell Circuit Court, Appellees and Russell County, Kentucky Hospital District Health Facilities Corporation v. Ephraim McDowell Health, Inc. and L. Clark Taylor, Jr., Respondents/Real Parties in Interest, and Honorable Sara Combs, Judge, Kentucky Court of Appeals
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- Published