                                               RENDERED: OCTOBER 23, 2014
                                                         TO BE PUBLISHED

               oisuptrittr Court of "#'firttfuritg
                                2014-SC-000470-I




SALAHADIN M. GHARAD, M.D.                                                 MOVANT


                    ON REVIEW FROM COURT OF APPEALS
V.                      CASE NO. 2014-CA-000696-I
                   ROWAN CIRCUIT COURT NO. 14-CI-00001


ST. CLAIRE MEDICAL CENTER, INC.                                     RESPONDENT




                             OPINION AND ORDER

                     DENYING INTERLOCUTORY RELIEF

      St. Claire Medical Center operates a hospital in Morehead, Kentucky,

serving a nine-county region in and around Morehead. St. Claire terminated

an employment agreement with Salahadin M. Gharad, M.D., a cardiologist.

Gharad then sued St. Claire for wrongful termination in which he seeks, among

other relief, a declaration that the noncompetition provision of the employment

agreement—prohibiting the performance of medical services in the hospital's

nine-county service area for a period of two years after termination—is

unenforceable.

      The trial court granted Gharad a temporary injunction, which prevented

St. Claire from enforcing the noncompetition provision. St. Claire then sought

to dissolve the temporary injunction by filing a motion for temporary relief in
the Court of Appeals under Kentucky Rules of Civil Procedure (CR) 65.09. The

Court of Appeals granted temporary relief to St. Claire and dissolved the

temporary injunction. The Court of Appeals found that the trial court abused

its discretion by temporarily enjoining enforcement of the noncompetition

provision at issue because Gharad failed to establish he would suffer

irreparable injury, a prerequisite for the granting of an injunction.

      Gharad now requests this Court to grant him interlocutory relief from the

order of the Court of Appeals and restore the trial court's temporary injunction.

We deny interlocutory relief because we agree that Gharad has failed to make

the requisite showing of irreparable injury.

      At this juncture, the underlying facts of Gharad's dispute with St. Claire

are immaterial to our determination. Suffice it to say, Gharad and St. Claire

present differing views of not only Gharad's performance and conduct while

employed by St. Claire but also whether St. Claire terminated Gharad with or

without cause. The only issue before us is whether the trial court abused its

discretion in granting a temporary injunction against St. Claire.

          Our review is limited under CR 65.09. As we have repeatedly

emphasized, only those cases presenting "extraordinary cause" are worthy of

our review. Of course, we have interpreted "extraordinary cause" to include

"abuse[] of discretion by the courts below[1" 1

      The appropriate standard for a trial court when reviewing a motion for a

temporary injunction is well settled. CR 65.04 mandates that a trial court


      1   Price v. Paintsville Tourism Com'n, 261 S.W.3d 482, 483 (Ky. 2008).

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deny injunctive relief unless it finds: "(1) that the movant's position presents 'a

substantial question' on the underlying merits of the case . . . ; (2) that the

movant's remedy will be irreparably impaired absent the extraordinary relief;

and (3) that an injunction will not be inequitable[.]" 2

      The trial court went through the proper analytical steps and determined

that Gharad satisfied all the requirements. Notably for purposes of the motion

before this Court, the trial court found Gharad was irreparably injured because

he would suffer loss of income and damage to his reputation. Furthermore, the

trial court found St. Claire's enforcement of the noncompetition provision

would render Gharad unable to revive his practice in the provision's designated

nine-county area. Finally, the trial court found disallowing Gharad's patients'

ability to continue to treat with him, if they so desired, constituted irreparable

injury.

      Try as he might, Gharad is simply unable to distinguish materially his

action from our decision in Price v. Paintsville Tourism Comm'n. Of course,

Price did not involve a noncompetition provision like Gharad challenges here.

In Price, we adopted the federal approach 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." 3 Surely, "extraordinary circumstances surrounding a discharge

could, conceivably, amount to irreparable injury so as to justify an injunction,


      2   Id. at 484.
      3   Id. This approach is also the majority approach among the states.

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but in the ordinary case, . . . loss of income or damage to reputation" 4 is

inadequate. Gharad's discharge does not involve any "extraordinary

circumstances."

      The physician-patient relationship, in and of itself, does not make

Gharad's discharge "extraordinary." Aside from the possible impact on

Gharad's current patients, Gharad's discharge is, at its core, a dispute between

an employer and employee over whether the employee's termination was

appropriate. We emphasize "possible" because there is no guarantee that

Gharad's patients will, in actuality, be negatively affected. Indeed, as the Court

of Appeals highlighted, the noncompetition provision at issue does not restrict

Gharad's practice of medicine or treatment of any specific patient. 5 The

noncompetition provision only limits—for two years—the geographical area

within which Gharad may offer medical services. Gharad's current patients are

free, as is their right, to continue seeing Gharad, provided his practice is

outside the geographic area designated in the St. Claire employment

agreement.

      In any event, this Court, in virtually the identical context, has previously

noted, "[t]here is no basic public policy against such covenants, particularly

when[, as here,] they involve professional services." 6 We offer no position on


      4   Id. (citing Sampson v. Murray, 415 U.S. 61, 91-92 (1974)).
       5 The Court of Appeals was also correct in noting that the impact on patients
would not provide irreparable injury to Gharad. Instead, any harm done to Gharad's
patients by the enforcement of the noncompetition provision would be accounted for'in
weighing whether the injunction would be inequitable.
      6   Lareau v. O'Nan, 355 S.W.2d 679, 681 (Ky. 1962).

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whether the instant provision is enforceable against Gharad or whether we

should depart from our historic approval of noncompetition covenants involving

physicians because it is unnecessary for the resolution of this motion. Instead,

we note our precedent as evidence that, contrary to Gharad's argument and the

trial court's determination, "extraordinary circumstances" are missing from

this challenged discharge.

      The "usual consequences of the loss of employment" 7 are not injuries

irreparable in nature. Typically, "reinstatement and/or back pay at the

conclusion of.proceedings is an adequate remedy rendering pretrial injunctive

relief unnecessary and improper." 8 In finding irreparable injury present, the

trial court's decision was "unsupported by sound legal principles" 9 and, as a

result, constituted an abuse of discretion. Sure, the noncompetition provision

at issue may make calculating damages more difficult; but, given the record in

this case, it is not impossible. The fact that damages are calculable means

Gharad's alleged injury is not irreparable.

      Before concluding, we pause to discuss a matter both parties appear to

believe to be presented to this Court. Both parties have provided us with

arguments regarding the trial court's supposed determination that, as a matter

of law, the noncompetition provision at issue is enforceable. As an initial

matter, we do not read the trial court's opinion and order to say that. Instead,



      7   Price, 261 S.W.3d at 485.
      8   Id.
      9   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

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we simply understand the trial court's order to find that Gharad has presented

a substantial question regarding the enforceability of the noncompetition

provision. But in the event some lingering concern remains, we emphasize—as

we did in Price—that the order of the Court of Appeals dissolving the temporary

injunction vacated the trial court's opinion and order in its entirety.

      Because Gharad has failed to show "extraordinary cause," his motion for

interlocutory relief from the order of the Court of Appeals is DENIED.

      IT IS SO ORDERED.

      All sitting. All concur.

      ENTERED this 23rd day of October, 2014.




                                              JUSTICE JOHN D. MINTO , JR.




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