author: Justice LANG.

text:
    IFS SECURITY GROUP, INC. d/b/a Ameritex Guard Services, Appellant v. AMERICAN EQUITY INSURANCE COMPANY, Appellee.
    No. 05-04-01446-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 31, 2005.

      Charles M. Noteboom, The Noteboom Law Firm, Hurst, for appellant.
    D. Bradley Kizzia, Amy L. Saberian, Strasburger & Price, LLP, Dallas, for ap-pellee.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by

Justice LANG.

IFS Security Group, Inc. d/b/a Ameritex Guard Services appeals the trial court’s order denying its petition to take the deposition of an American Equity Insurance Company employee to investigate potential claims for breach of contract, negligence, lack of good faith and fair dealing, and violations of the Texas Insurance Code. See Tex.R. Civ. P. 202.

Ameritex raises generally two issues on appeal: (1) the trial court erred when it applied a summary judgment standard to Ameritex’s rule 202 petition; and (2) the trial court erred when it required the parties to litigate substantive matters of law during the hearing on Ameritex’s rule 202 petition.

In this case, as a threshold question, we must determine whether an order pursuant to Texas Rule of Civil Procedure 202 denying a party’s request to take the deposition of an employee of the corporation, against whom a lawsuit is contemplated, is a final, appealable order. We conclude the trial court’s order rejecting Ameritex’s rule 202 petition is not a final, appealable order. We dismiss this appeal for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ameritex is a private security service insured by American Equity, which contracted to provide security guards for a retail business. An employee of the retailer was murdered while working, and Am-eritex was sued by the employee’s survivors for wrongful death. A settlement was reached in that lawsuit.

Ameritex filed a petition to take the deposition of an American Equity employee to investigate potential claims for breach of contract, negligence, lack of good faith and fam dealing, and violations of the Texas Insurance Code in an anticipated lawsuit against American Equity. Ameri-tex alleged these potential claims arise from American Equity’s handling of Amer-itex’s claim for coverage on its insurance policy in connection with the wrongful death claims. After a hearing, the trial court denied Ameritex’s petition to depose the American Equity employee. The trial court issued findings of fact and conclusions of law stating Ameritex failed to show that allowing Ameritex to take the requested deposition may prevent a failure or delay of justice in the anticipated lawsuit, or that the benefit of taking the requested deposition to investigate the potential claims outweighed the burden or expense of the procedure. See Tex.R. Civ. P. 202.4.

II. APPELLATE JURISDICTION

Ameritex argues that because the deponent is not an anticipated party to any future lawsuit, the trial court’s order denying its petition to take the deposition of an American Equity employee pursuant to Texas Rule of Civil Procedure 202 is a final, appealable order. American Equity responds that we have no jurisdiction to review this appeal because Ameritex’s rule 202 petition was denied and there is no case that holds the denial of a petition to take a presuit deposition is a final, appeal-able order. Rather, American Equity posits the case law addresses only the granting of such orders. Although we agree with American Equity that the order of the trial court is not a final, appealable order, and we conclude we have no jurisdiction to hear this appeal, we do not agree with American Equity’s reasoning leading to that result.

A. Standard of Review

An appellate court reviews whether it has jurisdiction over an appeal de novo because jurisdiction is a legal question. See Parks v. DeWitt County Elec. Coop., Inc., 112 S.W.3d 157, 160 (Tex.App.-Corpus Christi 2003, no pet.) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998)). If the record does not affirmatively demonstrate the appellate court’s jurisdiction, the appeal must be dismissed. See Parks, 112 S.W.3d at 160.

B. Applicable Law

An appellate court’s jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex. Const, art. V, § 6; Tex. Gov’t Code Ann. § 22.220 (Vernon 2004 & Supp.2005). As a general rule, an appeal may be taken only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001) (discussing finality of summary judgment order).

Texas Rule of Civil Procedure 202 provides that a person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: (1) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or (2) to investigate a potential claim or suit. See Tex.R. Civ. P. 202.1. Texas Rule of Civil Procedure 202 applies to all discovery before a lawsuit is filed. Prior to 1999, when rule 202 was promulgated, this subject was covered by former rule 187 governing depositions to perpetuate testimony and former rule 737 governing bills of discovery. See Tex.R. Civ. P. 202 cmt. I. Accordingly, courts may use previous interpretations of former rules 187 and 737 to aid their interpretation of rule 202.

Under the former rules, an order granting a request for presuit discovery from a third party who is not contemplated as a potential party to a lawsuit is a final, appealable order because it resolves all discovery issues between the parties. See Ross Stores, Inc. v. Redken Lab., Inc., 810 S.W.2d 741, 742 (Tex.1991) (discussing bill of discovery under repealed rule 737); Dallas Joint Stock Land Bank v. Rawlins, 129 S.W.2d 485, 487 (Tex.Civ.App.-Dallas 1939, orig. proceeding) (discussing bill of discovery), cited with approval in Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 31, 137 S.W.2d 993, 996 (Tex.1940) (discussing bill of discovery); cf. Vega v. Davila, 31 S.W.3d 376, 378 (Tex.App.-Corpus Christi 2000, no pet.) (discussing denial of motion to quash); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827-28 (Tex.App.-Austin 1990, no writ) (concluding no jurisdiction to review respondent’s appeal of order denying motion to quash subpoena duces tecum of nonparty to administrative proceeding because order not final and appealable, but distinguishing from action in equity against third party to determine whether action maintainable against another party). Likewise, an order pursuant to rule 202 allowing discovery against a third party not liable to the petitioner would be final for purposes of appeal. See Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex.App.-Waco 2005, no pet.).

However, an order under the former rules granting a request for presuit discovery from a party against whom a lawsuit is pending or contemplated is not a final, appealable order because it is in aid of and incident to the anticipated suit. See Office Empl. Int’l Union Local 277, AFL-CIO v. Sw. Drag Corp., 391 S.W.2d 404, 405-06 (Tex.1965) (discussing deposition to perpetuate discovery under former rule 187 and commenting that question whether order denying right to presuit deposition is final and appealable is not before court); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 903 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (discussing order imposing sanctions for failure to produce documents pursuant to bill of discovery); In re Petition of Am. State Bank to Obtain Testimony of Wade & Willmon to Investigate a Potential Claim by Petitioner, No. 07-03-0483-CV, 2005 WL 1967262, *3 (Tex.App.Amarillo Aug. 16, 2005, pet. filed) (discussing rule 202). Similarly, an order pursuant to rule 202 allowing presuit discovery incident and ancillary to a contemplated lawsuit against the party from whom the discovery is sought is not a final, appeal-able order. See Thomas, 166 S.W.3d at 747-48.

C. Application of the Law to the Facts

Ameritex’s rule 202 petition is styled IFS Security Group, Inc. d/b/a Ameritex Guard Services v. American Equity Insurance Company. In the petition, Am-eritex requests the oral deposition of an American Equity employee who it alleges has “firsthand knowledge” of American Equity’s “handling” of its insurance claim. The petition states Ameritex seeks to investigate potential claims for breach of contract, negligence, lack of good faith and fan* dealing, and violations of the Texas Insurance Code, arising from the “handling” of a claim made by Ameritex under a policy issued by American Equity. Also, it states Ameritex anticipates a lawsuit against American Equity. Further, the petition contains a request for the issuance of a subpoena duces tecum that would require the American Equity employee to produce: (1) the complete file concerning claims filed by Ameritex with American Equity or its affiliates concerning the incident on February 7, 2000; (2) all of American Equity’s written policies and procedures concerning the handling of claims; and (3) all of American Equity’s written policies and procedures concerning reservation of rights.

Ameritex relies on the reported cases of Ross, Rawlins, Jacintoport, and Vega to support its argument that a trial court’s order on a rule 202 petition is a final, appealable order. See Vega, 31 S.W.3d 376. These cases are distinguishable from the facts of this appeal.

In Ross, Redken Laboratories filed a bill of discovery pursuant to former Texas Rule of Civil Procedure 737 seeking to take the deposition of Ross with a view toward filing a lawsuit against the suppliers of Redken products to Ross. See Ross, 810 S.W.2d at 741-42. The trial court ordered Ross to give its deposition and to produce documents related to how it obtained Redken products. See id. at 742. The Texas Supreme Court determined that the bill of discovery order was final and appealable because there was no pending lawsuit against Ross and no such lawsuit was contemplated. See id.

In Rawlins, the State of Texas filed a bill of discovery pursuant to former Texas Rule of Civil Procedure 737 seeking the names and addresses of Dallas Joint Stock Land Bank’s stockholders in order to demand payment and, if necessary, sue those stockholders for the recovery of taxes. See Rawlins, 129 S.W.2d at 485-86. The trial court ordered Dallas Joint Stock Land Bank to answer the interrogatories. See id. at 486. Dallas Joint Stock Land Bank gave notice of appeal, but the trial judge refused to set the amount of the supersedeas bond because he believed the order was interlocutory and not appeal-able. See id. As a result, Dallas Joint Stock Land Bank filed a petition for mandamus. See id. The court of appeals concluded the order was final and appeal-able because no other relief was sought or contemplated against Dallas Joint Stock Land Bank and issued a writ of mandamus ordering the trial judge to set the amount of the supersedeas bond so Dallas Joint Stock Land Bank could appeal the order. See id. at 487.

In Jacintoport, an injured worker filed a bill of discovery pursuant to former Texas Rule of Civil Procedure 737 seeking to clarify the identity of his employer and potentially responsible third parties. Ja-cintoport, 987 S.W.2d at 902. A representative of the corporation failed to appear for Jacintoport’s deposition. Id. The trial court ordered Jacintoport to comply, and the petitioner filed a lawsuit against Jacin-toport. Id. at 902-03. When Jacintoport failed to comply with the trial court’s order, the trial court imposed sanctions. Id. at 902. Jacintoport appealed the trial court’s order imposing sanctions. Id. The court determined that the bill of discovery order was not final and appealable because the express language of the petition in the nature of a bill of discovery contemplated a lawsuit against Jacintoport, and a lawsuit was pending when the sanctions were ordered. Id. at 903.

Our review of Ross and Rawlins leads us to conclude they are distinguishable from the facts of this case. In those cases, there was no employer and employee relationship between the party from whom the discovery was sought and the party against whom the litigation was anticipated. Instead, the parties from whom the discovery was sought were third parties, apparently independent of the proposed defendant or defendants, who were believed to possess facts relevant to the anticipated lawsuits. Additionally, Jacinto-port is not factually similar to the case before us because Jacintoport was an anticipated defendant, a lawsuit was actually filed against it, and the order appealed was the trial court’s order imposing sanctions, not the order to appear for the deposition.

In Vega, Mr. and Mrs. Vega were served with subpoenas to take their depositions in a pending case alleging tortious interference with a contract filed by their former attorney against three different persons. Vega, 31 S.W.3d at 377-78. Mr. and Mrs. Vega filed a motion to quash the depositions, which the trial court denied. Id. at 378. The Vegas appealed. The court of appeals determined the trial court’s order denying the Vegas’ motion to quash the depositions was a final, appealable order because they were not parties to the pending lawsuit and no lawsuit against the Vegas was contemplated. See id. at 378, 380-81. The court of appeals also determined the trial court could require the Vegas to attend the depositions. See id.

In Vega, the court of appeals determined an order denying a motion to quash the discovery of the third-party deponents against whom no lawsuit was anticipated was final and appealable. However, Vega is distinguishable from the facts of this case because it involves a discovery dispute in a pending lawsuit. Also, in Vega, there was no employer and employee relationship between Mr. and Mrs. Vega and their former attorney.

In this case, we are presented with a record that discloses the witness is the employee of the anticipated defendant. No other facts are described in the record which could reflect any other status of the witness. Moreover, not only does Ameri-tex seek to depose an employee of American Equity, it requests that the witness be subpoenaed to produce documents clearly described as American Equity’s documents. There is no contention that these documents are anything other than documents directly pertinent to the potential claims of Ameritex against American Equity. Finally, the style of the petition seeking the presuit deposition is clearly against American Equity, not the employee.

We observe that a corporation acts only through its human agents or employees. See Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 124 (Tex.1996). Further, the Texas Rules of Civil Procedure relating to discovery contemplate that when a corporation appears for its deposition, it is to designate representatives with knowledge of the matters about which inquiry will be made. See Tex.R. Civ. P. 199.2(b)(1), 200.1(b). Accordingly, because the substance of Ameritex’s rule 202 petition is to discover the facts from American Equity about its handling of the insurance claim, it follows that, based on the record before us, the person with that knowledge is the American Equity employee Ameri-tex seeks to depose.

Accordingly, we conclude the trial court’s order denying Ameritex’s rule 202 petition to take the presuit deposition of an American Equity employee is not a final, appealable order because it is in aid of and incident to the contemplated lawsuit against American Equity.

III. CONCLUSION

The trial court’s order denying Ameri-tex’s rule 202 petition to take the presuit deposition of an American Equity employee is not a final, appealable order.

This appeal is dismissed for lack of jurisdiction.

      . The notes and comments to the amended discovery rules are intended to inform the construction and interpretation of the rules. Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions, Nov. 11, 1998, G-4, http://www.su-preme. courts.state.tx.us/ rules/tdr/disc-cle37.pdf.

      . Ameritex also cites to opinions that are not designated for publication. Opinions not designated for publication have no precedential value. See Tex.R.App. P. 47.7.


source: Caselaw Access Project

author: Chief Justice THOMAS.

license: Public Domain

text:
    Robert William NESBIT, Appellant v. The STATE of Texas, Appellee.
    No. 05-04-01797-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 1, 2005.

      Peter R. Thompson, Dallas, for appellant.
    Laura Anne Coats, Assistant District Attorney, Dallas, for state.
    Before Chief Justice THOMAS and Justices BRIDGES and FRANCIS.
   OPINION

Opinion by

Chief Justice THOMAS.

Robert William Nesbit pleaded guilty to indecency with a child. See Tex. Pen.Code Ann. § 21.11(a)(2)(A) (Vernon 2003). On April 29, 1994, the trial court adjudicated appellant guilty and assessed punishment at ten years’ confinement, probated for ten years. Appellant’s community supervision was revoked, and appellant was sentenced to ten years’ confinement. In this appeal, we must determine whether the trial court had jurisdiction to revoke appellant’s community supervision. We conclude the trial court did not have jurisdiction and vacate the trial court’s judgment.

Appellant entered a negotiated guilty plea to the offense of indecency with a child. On November 10, 1988, pursuant to the agreement, the trial court deferred adjudicating guilt, placed appellant on ten years’ probation, and assessed a $500 fine. The State later moved to adjudicate guilt, alleging appellant violated the conditions of community supervision. On April 29, 1994, the trial court adjudicated appellant guilty and assessed punishment at ten years’ confinement, probated for ten years. Between May 5, 1994 and February 13, 2001, the trial court modified the conditions of appellant’s community supervision eight times. On April 29, 2004, the State filed a motion to revoke appellant’s community supervision, alleging appellant violated the conditions of his community supervision. Appellant filed a motion to quash the motion to revoke, asserting that the trial court did not have jurisdiction because the motion to revoke was untimely. The judge denied appellant’s motion to quash by written order. On November 5, 2004, on appellant’s plea of true, the trial court revoked appellant’s community supervision and sentenced him to ten years’ imprisonment.

In his sole issue, appellant asserts the trial court did not have jurisdiction to revoke his community supervision because the motion to revoke was filed one day after the ten-year period of supervision ended. The State responds that the motion to revoke was filed on the day appellant’s community supervision ended. The State contends that we should treat community supervision like a statute of limitations period during which a motion to revoke may be filed. Relying on general statute of limitations law, the State argues the ten-year term of community supervision that began on April 29,1994 ended on April 29, 2004. And, because the motion to revoke was filed and the capias issued on April 29, 2004, the trial court had jurisdiction over the revocation proceedings. The State, however, cites no authority to support its argument that a term of community supervision is akin to a statute of limitations, nor have we found any.

We have found cases from the court of criminal appeals that would support both appellant’s and the State’s contentions as to the date appellant’s community supervision ended. See, e.g., Ex parte Donaldson, 86 S.W.3d 231, 232 (Tex.Crim.App.2002) (per curiam) (six-year probation beginning on May 10, 1993 ended May 10, 1999); Ex parte Fulce, 993 S.W.2d 660, 662 (Tex.Crim.App.1999) (two-year probation beginning February 18, 1994 ended February 17, 1996). Neither case, however, involved the dispositive issue in this appeal — whether the community supervision ended on the day before or the day of the anniversary of the applicants’ having been placed on community supervision.

When a defendant is sentenced to a term of imprisonment, that period expires on the day before the anniversary date of the sentencing. See, e.g., Ex parte Hale, 117 S.W.3d 866, 867 (Tex.Crim.App.2003) (seven-year sentence imposed on October 7, 1991 ended October 6, 1998); Ex parte Gabriel, 56 S.W.3d 595, 596 (Tex.Crim.App.2001) (per curiam) (eight-year sentence imposed on July 19,1989 ended July 18, 1997). Therefore, in this case, had appellant’s ten-year sentence been imposed on April 29, 1994, rather than suspended, the sentence would have ended on April 28, 2004. See Ex parte Hale, 117 S.W.3d at 867; Ex parte Gabriel, 56 S.W.3d at 596.

Of course, community supervision is not a sentence; it is an arrangement in lieu of a sentence. See Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App.1999). Nevertheless, a defendant on community supervision is subject to court-imposed restrictions on his or her freedom during the period of the supervision. Therefore, we conclude a term of community supervision is more akin to a sentence than a statute of limitations for purposes of calculating the ending date. Moreover, we see no reason to require appellant to spend one more day on community supervision than he would have been required to serve had his sentence been imposed. Accordingly, we hold that appellant’s ten-year period of community supervision that began on April 29, 1994 ended on April 28, 2004. See Ex parte Fulce, 993 S.W.2d at 662.

A trial court retains jurisdiction to revoke community supervision after the supervision period has expired if, before the expiration of the supervision period, the State files the motion to revoke and a capias is issued for the defendant’s arrest. See TexCode CRiM. PROC. Ann. art. 42.12, §§ 21, 23 (Vernon Supp.2005); Peacock v. State, 77 S.W.3d 285, 287 (Tex.Crim.App. 2002). The trial court does not have jurisdiction to revoke community supervision if the motion to revoke is filed after the supervision period expires. See Ex parte Fulce, 993 S.W.2d at 661-62.

The State filed its motion to revoke appellant’s community supervision on April 29, 2004, one day after the ten-year supervision period ended. Therefore, the trial court did not have jurisdiction to revoke appellant’s community supervision, and the revocation of appellant’s community supervision was a nullity. See Peacock, 77 S.W.3d at 287. We resolve appellant’s issue in his favor.

We vacate the trial court’s judgment revoking community supervision and remand the cause to the trial court for further proceedings.


author: /s/ Joseph E. Lambert CHIEF JUSTICE Justice JOHNSTONE. Justice GRAVES.

text:
    Warren P. ROGERS; Joseph K. Jarboe; Kathy Gornik and Kentucky-American Water Company, Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; Teresa A. Isaac, in Her Capacity as Mayor; Bill Cegelka, in the Capacity as a Member of the Lexington Fayette Urban County Council; George A. Brown, Jr., in the Capacity as a Member of the Lexington Fayette Urban County Council; Dick Decamp, in the Capacity as a Member of the Lexington Fayette Urban County Council; Chuck Ellinger II, in the Capacity as a Member of the Lexington Fayette Urban County Council; Bill Farmer, Jr., in the Capacity as a Member of the Lexington Fayette Urban County Council; Linda Gorton, in the Capacity as a Member of the Lexington Fayette Urban County Council; George Myers, in the Capacity as a Member of the Lexington Fayette Urban County Council; Jay McChord, in the Capacity as a Member of the Lexington Fayette Urban County Council; Kevin Stinnett, in the Capacity as a Member of the Lexington Fayette Urban County Council; Richard Moloney, in the Capacity as a Member of the Lexington Fayette Urban County Council; Ed Lane, in the Capacity as a Member of the Lexington Fayette Urban County Council; Mike Scanlon, in the Capacity as a Member of the Lexington Fayette Urban County Council; Sandy Shafer, in the Capacity as a Member of the Lexington Fayette Urban County Council; David B. Stevens, in the Capacity as a Member of the Lexington Fayette Urban County Council; Jacques Wigginton, in the Capacity as a Member of the Lexington Fayette Urban County Council; Donald W. Blevins, Fayette County Clerk; Bluegrass Flow, Inc.; Joe B. Hall; Jennifer Mossotti; Harry N. Sykes; Vanmeter Petit; and Robert R. Jefferson, Appellees.
    No. 2005-SC-0748-I.
    Supreme Court of Kentucky.
    Oct. 13, 2005.

      Robert E. Wier, Ransdell & Wier PLLC, Hanly Acton Ingram, Lindsey W. Ingram, Jr., William M. Lear, Jr., Steven B. Loy, Stoll, Keenon & Park, Lexington, for Appellants.
    Mary Ann Delaney, David L. Holmes, Leslye M. Bowman, David Jeffrey Barber-ie, Lexington-Fayette Urban County Gov’t, William R. Garmer, Garmer & O’Brien, PLLC, Jane E. Graham, Henry, Watz, Gardner, Sellars & Gardner, Edwin Foster Ockerman, Jr., Martin, Ockerman & Brabant, Julius Rather, Denny, Morgan, Rather & Gilbert, Lexington, for Appel-lees.
   OPINION AND ORDER

The appellants seek review from a decision of a panel of the Court of Appeals which denied their motion for relief under CR 65.08. The Court of Appeals also denied their motion for oral argument; denied their motion to strike exhibits; and denied their motion for recommendation of transfer.

The appellants, pursuant to CR 65.09 and 76.22, move this Court to grant expedited interlocutory relief, pending appeal, to enjoin the Lexington-Fayette Urban County Government and Fayette County Clerk Don Blevins from expending any funds or otherwise taking any steps in furtherance of conducting an election on November 8, 2005 on the ballot initiative at issue in this case.

The facts are not in dispute and are well known to the parties. The circuit court determined that the initiative process was legal in Fayette County and permitted the election to go forward, ruling that the next regular election in Fayette County was in November of 2005. An appeal was taken to the Court of Appeals and a panel of that court denied injunctive relief and found that the appellants failed to show cause why they would suffer irreparable harm. We are now presented with a motion for interlocutory relief.

The central question is whether an election can be held on November 8, 2005. We answer “No” because it is not a regular election.

CR 65.09 allows interlocutory relief in the Supreme Court by any party adversely affected by an order of the Court of Appeals. The rule states in part as follows:

The decision whether to review such order shall be discretionary with the Supreme Court. Such a motion will be entertained only for extraordinary cause shown in the motion.

In this case, the ordinance which is intended to be presented to the voting public, will require the urban county council to acquire by purchase, or if necessary, by eminent domain, the assets of the Ken-tueky-American Water Company. Taxpayer funds must be provided for any election in November and may have been expended to some degree. A budget of $250,000 has been set by the urban county government. There is no reasonable expectation that such funds could be recovered if an election is conducted, but later held to be invalid.

Financial concerns aside, it must be recognized that voting is an extremely serious and important matter. It is fundamental in our form of government. The citizenry must have faith that their vote will have meaning and will be valid. Clearly, the appellants have shown extraordinary cause for granting relief.

In considering this case, the requirements for the issuance of an injunction must be carefully considered. They are explained in the seminal cases of Oscar Ewing, Inc. v. Melton, d/b/a Melton’s Grocery, 309 S.W.2d 760 (Ky.1958) and Man- pin v. Stansbury, 575 S.W.2d 695 (Ky.App.1978). They are as follows: (1) Has the plaintiff shown an irreparable injury; (2) Are the equities in the plaintiffs favor, considering the public interest, harm to the defendant, and whether the injunction will merely preserve the status quo; and (3) Does the complaint present a substantial question?

In Commonwealth, Revenue Cabinet v. Picklesimer, 879 S.W.2d 482 (Ky.1994), this Court held that a movant for interlocutory relief must demonstrate that the circuit court ruling was “clearly erroneous.” This standard is set out in CR 52.01 which provides that findings of fact shall not be set aside unless they are clearly erroneous, with due regard given to the opportunity of the trial court to judge the credibility of the witnesses. On appellate review, the appellate court may determine that findings are clearly erroneous if they are without adequate evidentiary support or occasioned by an erroneous application of the law. Cf. Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d 193 (Ky.2002).

KRS 89.610, which was repealed on July 15, 1980, set forth the procedure for initiating a public question, initiative and referendum. It stated in relevant part as follows:

[T]he board shall then either pass the proposed ordinance without alteration within ten days after the petition is filed, or submit the question of passage to the voters of the city at the next regular election.

KRS 89.610 (repealed July 15, 1980) (emphasis added).

The aforementioned statute was in effect when the Lexington-Fayette Urban County Charter was adopted. KRS 67A.060 indicates that a statute in effect at the time urban county government is formed remains so unless expressly repealed for that government. Accordingly, the contention is that KRS 89.610 was never expressly repealed as to the Lexington-Fay-ette Urban County Government.

It is unnecessary for this Court to decide whether the above contention is valid. However, even if we accept it as so, there is still a clear misapplication of the law. As previously noted, former KRS 89.610 required submission of the issue to the voters at the next regular election, (emphasis added) KRS 446.010(28) defines a regular election as one that occurs in even-numbered years at which members of Congress are elected and the election in odd-numbered years at which state officers are elected. The effect of the statute and its schedule of transitional provisions eliminated regular elections in 1997, and every four years thereafter. There are no state officers to be elected in 2005, consequently, there is no “regular election” this year. Apparently the parties here agree that there is a regular election scheduled for November 7, 2006.

We are satisfied that the appellants have complied with the requirements for the issuance of an injunction. See Oscar Ewing, Inc., supra, and Maupin, supra. The appellants have shown an irreparable injury. The expenditures necessary to hold this election are public not private funds. They cannot be recouped by money damages on appeal. Thus, the injury is irreparable.

The equities certainly favor the appellants. In view of the fact that the elimination of elections from the 2005 calendar year has been widely publicized, we must disagree that there is any expectation on the part of the voting public to go to the polls in November of this year. The ultimate cost of any purchase or condemnation of the water company is highly speculative and may be determined by market factors. We perceive no detriment to the public interest by delaying the election to an appropriate time. The situation here is not the maintenance of the status quo, but a prevention of conduct that is in clear violation of statutory law.

The complaint presents a substantial question. Clearly, the appellants are entitled to protection of the law and to rely on the existing statutes in any consideration of this nature. The cost and importance of voting simply cannot be overlooked.

It is the decision of this Court that the Urban County Government and the Fay-ette County Clerk should be enjoined from expending any funds or otherwise taking any steps in furtherance of conducting an election on the ballot question on November 8, 2005. The order of the Court of Appeals denying the motion for relief under CR 65.08 is hereby vacated and this matter is remanded to the Fayette Circuit Court for issuance of an injunction upon the posting of a nominal bond.

LAMBERT, C.J., and COOPER, SCOTT and WINTERSHEIMER, JJ., concur.

JOHNSTONE, J., dissents by separate opinion and is joined by GRAVES, J., who also dissents by separate opinion and is joined by JOHNSTONE, J.

ROACH, J., not sitting.

ENTERED: October 13, 2005.

/s/ Joseph E. Lambert CHIEF JUSTICE

Dissenting opinion by

Justice JOHNSTONE.

Respectfully, I dissent from the Majority’s Opinion and Order granting CR 65.09 relief to Appellants. In my opinion, Appellants have failed to demonstrate “extraordinary cause” justifying such relief. In the seminal case, Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky.App.1978), the Court of Appeals held:

[Applications for temporary injunctive relief should be viewed on three levels. First, the trial court should determine whether plaintiff has complied with CR 65.04 by showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly, the trial court should weigh the various equities involved. Although not an exclusive list, the court should consider such things as possible detriment to the public interest, harm to the defendant, and whether the injunction will merely preserve the status quo. Finally, the complaint should be evaluated to see whether a substantial question has been presented. If the party requesting relief has shown a probability of irreparable injury, presented a substantial question as to the merits, and the equities are in favor of issuance, the temporary injunction should be awarded. However, the actual overall merits of the case are not to be addressed in CR 65.04 motions. Unless a trial court has abused its discretion in applying the above standard, we will not set aside its decision on a CR 65.07 review.

The deferential standard under which appellate courts review circuit court determinations as to injunctive relief only heightens the importance of sound decision making at the circuit court level. Under CR 65.04, the Court of Appeals may reverse such a determination only where it appears that the circuit court has made clearly erroneous findings unsupported by substantial evidence. See National Collegiate Athletic Association v. Lasege, 53 S.W.3d 77 (Ky.2001). Interlocutory relief in this Court is appropriate only where we find that it is warranted by “extraordinary cause.”

I would agree that Appellants have raised substantial questions regarding the timing of the election and the validity of the initiative process. Nonetheless, I cannot conclude that Appellants have shown irreparable injury if the election is held on November 8, 2005.

Appellants assert, and the Majority apparently agrees, that the expenditure of public funds to proceed with the election constitutes an irreparable injury that outweighs the voters’ right to be heard on the issue this November. I find this proposition to be fatally flawed. A party asserting a loss of monetary funds as evidence of irreparable harm is generally the party expending those funds. Here, although there certainly is a monetary cost involved in preparing for the election, the funds necessarily come from the Lexington-Fay-ette Urban County Government’s budget, not from Appellants. Notably, Lexington-Fayette Urban County Government does not object to the expenditure of these monies; indeed, the Government supports the County Clerk’s use of the designated funds for election preparation.

Moreover, the Majority fails to cite any authority, and we find none, for distinguishing the expenditure of public versus private monies. Our law is clear that the financial distress of a party does not warrant extraordinary relief. In Ison v. Bradley, 383 S.W.2d 784, 786 (Ky.1960), our predecessor court held:

By this proceeding, petitioners are attempting a premature appeal and seeking a precipitate decision of this Court on an interlocutory order. It takes a minimum of imagination to envision the utter confusion and chaos in the trial of cases if this Court should entertain original proceedings in cases of this character. The basis urged for doing so is the financial distress of litigants. This is not an uncommon status, however unwanted it may be, and is not confined to litigants. Thus, 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.

In fact, in Maupin v. Stansbwry, supra, this Court found that an injunction prohibiting the Louisville Board of Aldermen from expending public finds in furtherance of an investigation of the mayor was improper, because there was no evidence as to how the expenditures would irreparably harm the party who obtained the injunction. “At the most, the complaint create[d] only a speculation of possible harm to the taxpayers as a group. There being no clear showing of irreparable injury ... the temporary injunction [was] improper.” Id. at 700. Here, neither Appellants nor the Majority can point to any tangible injury that Appellants will suffer as a result of this use of public monies. Certainly, if Appellants won at the polls, they could allege no injury despite the election having taken place against their wishes. Nonetheless, I believe that the expenditure of a miniscule percentage of the Lexington-Fayette Urban County Government’s budget, in and of itself, falls far short of demonstrating irreparable injury.

Furthermore, Appellants herein are not “seeking to maintain the status quo,” but are “requesting mandatory relief which would require [Appellees] to change [their] course of conduct.” Oscar Ewing, Inc. v. Melton, 309 S.W.2d 760, 761 (Ky.1958). To maintain the status quo, the County Clerk must be permitted to continue with the current course of conduct in preparing for the election. Clearly, a balancing of the equities of the parties herein favors allowing the election process to go forward as determined by the Fayette Circuit Court and Court of Appeals.

The most troubling aspect of the Majority’s opinion is that it undertakes to decide the merits of the appeals below, notwithstanding the fact that this Court has previously denied transfer of those same appeals. Without question, deciding the merits of the parties’ conflicting claims is inappropriate in reviewing a request for a temporary injunction. Maupin v. Stans-bury, supra.

To permit the expenditure of public monies to form the basis of a taxpayer’s claim for extraordinary relief vastly broadens this Court’s prior notion of irreparable harm. Given the saturation of public monies in nearly every aspect of today’s society, the extent of interlocutory litigation involving taxpayer monies will be virtually unlimited. Both the Fayette Circuit Court and the Court of Appeals denied Appellants’ motion for extraordinary relief. As did the Court of Appeals, I would give due deference to the findings of the circuit court and also deny the requested relief.

GRAVES, J., joins in this dissent.

Dissenting opinion by

Justice GRAVES.

I fully agree with and join Justice John-stone’s well-reasoned dissent. I write to further express my disappointment in the majority’s opinion to this extent: not only does the majority abuse its discretion for the reasons set forth in Justice John-stone’s dissent, but also the majority takes the even more outrageous step of disrupting the status quo in a context where the electorate has taken great pains to exercise its right to peacefully participate in the democratic processes of this Commonwealth. Our constitution deems this right of the people to be sacred and inherent. Ky. Const. §§ 1-4.

The irreparable harm in this case is not being suffered by Appellants, but rather it is being inflicted on the electorate. This is especially true because Appellants asserted at oral argument that only a small percentage of the electorate favored acquisition of the water company. The harm beyond repair is the increased public apathy being created by the contorted litigation we see today that delays, or perhaps denies, the electorate’s vote in a timely manner on an important public question.

JOHNSTONE, J., joins in this dissent.