RENDERED: May 15, 1998; 2:00 p.m.

NOT TO BE PUBLISHED

NO. 97-CA-0434-MR RUSSELL L. NICHOLSON APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE DOUGLAS M. STEPHENS, JUDGE

ACTION NO. 96-CI-002170

COMMONWEALTH OF KENTUCKY, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; and SKYWAY FREIGHT SYSTEMS, INC. APPELLEES

OPINION AFFIRMING

* * *

BEFORE: ABRAMSON, KNOX, AND MILLER, JUDGES.

KNOX, JUDGE: Russell Nicholson (Nicholson) appeals from an order of the Kenton Circuit Court dismissing his petition and appeal for review of a decision by the Unemployment Insurance Commission denying Nicholson unemployment compensation benefits. The trial court dismissed the action due to Nicholson's failure to verify the complaint as required by KRS 341.450(1). We affirm the trial court's decision.

Russell Nicholson sought review in the Kenton Circuit Court of a decision by the Kentucky Unemployment Insurance Commission denying his claim for benefits. The Commission moved for dismissal of Nicholson's petition and appeal, on the ground that the trial court lacked subject matter jurisdiction over the action due to Nicholson's failure to verify the complaint as required by KRS 341.450(1). Nicholson then filed an amended complaint, pursuant to CR 15.01, which contained a "Verification" signed by his attorney. The Commission moved for dismissal of that complaint as well, arguing that (1) The amended complaint was filed after expiration of the twenty-day appeal period set forth in KRS 341.450(1); and that (2) In any event, the amendment had no force or effect under Fisher v. Kentucky Unemployment Ins. Comm'n, Ky.App., 880 S.W.2d 891 (1994).

In its order dismissing Nicholson's petition and appeal, the trial court found that it had no discretion in the matter and was:

[C]ompelled by KRS 341.450, Fisher v. Kentucky Unemployment Ins. Comm'n, Ky.App., 880 S.W.2d 891 (1994), and the authorities cited in Fisher to dismiss plaintiff's complaint. Were the court to have discretion in this matter, the result might very well be different.

On appeal, Nicholson argues that because the Commission did not tender an answer to his complaint, but rather a motion to dismiss, which is not a "responsive" pleading under the Civil Rules, he was absolutely entitled to amend his complaint in accordance with CR 15.01: "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served. . . ." Thus, Nicholson maintains, his amendment, valid under the Civil Rules, relates back to the original complaint under CR 15.03, rendering his petition and appeal timely after all. Further, he argues, CR 11 discourages the court's striking a pleading merely for its lack of form or for the inadvertence of a party's counsel: "If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. . . ." Lastly, Nicholson maintains that because Fisher does not specifically hold that an amendment pursuant to CR 15 is without effect, and because the time frame in Fisher is unclear, that case is not dispositive of the issue before this Court.

We must disagree with Nicholson. The facts in Fisher are sufficiently similar, and the time frame sufficiently clear, to dispose of this issue, although it is necessary to look to both the majority and the dissenting opinions to glean the following perspective: (1) Like Nicholson, Fisher was denied unemployment compensation benefits, and filed a complaint against the Commission and her former employer; (2) Prior to tendering an answer in the matter, the employer filed a motion to dismiss based upon Fisher's failure to verify her complaint; (3) The trial court dismissed the complaint upon that basis; (4) On appeal, Fisher argued that her attorney's signature on the complaint, regardless of whether "verified" or not, satisfied KRS 341.450(1); (5) Alternatively, she argued, she should be allowed to amend her complaint under both CR 15 and CR 11 (an argument that was addressed by, and wholeheartedly embraced in, the dissenting opinion).

Citing to precedent, this Court upheld the dismissal of Fisher's complaint, albeit reluctantly:

While we are not unsympathetic to appellant's argument, we are simply unable to distinguish appellant's plight from that which was found in Pickhart v. United States Post Office, Ky.App., 664 S.W.2d 939 (1983), and Monyhan v. Kentucky Unemployment Ins. Comm'n, Ky.App., 709 S.W.2d 837 (1986). The Court in Pickhart adhered to the long-standing principle that statutes providing for judicial review of the decisions of administrative agencies are to be strictly observed. This view fully comports with the rationale utilized by our Supreme Court in rejecting a claim of substantial compliance in Kentucky Unemployment Insurance Comm'n v. Carter, Ky., 689 S.W.2d 360, 361-62 (1985).

Fisher, 880 S.W.2d at 892. We further noted in Fisher that it was Pickhart that "unequivocally" declared the verification requirement to be "mandatory and jurisdictional." Id.

As we did in Fisher, we note here our duty to defer to precedent, regardless of our view of the "advisability" of the policy set out in that precedent, and conclude here, as we did there, that "we are precluded from simply choosing not to follow the law." Id. We affirm the order of the trial court dismissing Russell Nicholson's complaint.

ABRAMSON, JUDGE, CONCURS. MILLER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

MILLER, JUDGE, DISSENTING. I dissent for the reasons set forth in my dissent in Pickhart v. United States Post Office, Ky. App., 664 S.W.2d 939 (1983).

-6- BRIEF FOR APPELLANT: Howard L. Tankersley Covington, Kentucky

BRIEF FOR APPELLEES: Timothy A. Sturgill Frankfort, Kentucky

Charles E. Jones Frankfort, Kentucky

Patricia Lucas Palo Alto, California