RENDERED: July 24, 1998; 2:00 p.m.

NOT TO BE PUBLISHED

C o m m o n w e a l t h O f K e n t u c k y

C o u r t O f A pp e a l s

No. 97-CA-1550-MR

SHIRLEY GEVEDEN APPELLANT v. APPEAL FROM MORGAN CIRCUIT COURT

HONORABLE SAMUEL C. LONG, JUDGE

ACTION NO. 97-CI-0049

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and MORGAN COUNTY APPALACHIAN REGIONAL HOSPITAL

APPELLEES

OPINION AFFIRMING

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BEFORE: BUCKINGHAM, EMBERTON, and GUIDUGLI, Judges. BUCKINGHAM, JUDGE. Shirley Geveden (Geveden) appeals from an order of the Morgan Circuit Court which dismissed her petition for judicial review of an order of the Kentucky Unemployment Insurance Commission (KUIC) affirming a referee's decision to The petition was signed by Geveden's attorney but was not1 verified. disqualify Geveden from receiving unemployment benefits. For the reasons set forth hereinafter, we affirm.

After Geveden was originally denied unemployment benefits due to a determination of work-related misconduct, she appealed to a referee who affirmed the denial after a hearing. Geveden then sought review of the referee's decision by KUIC, and on February 19, 1997, KUIC entered an order affirming the denial of benefits. On March 10, 1997, Geveden filed a petition for judicial review in the Morgan Circuit Court. Although the petition was filed within 20 days after the date of KUIC's decision as required by KRS 341.450(1), the petition was not verified as required by that statute. KRS 341.450(1) provides1 in relevant part that a complaint filed in circuit court appealing a KUIC decision must be filed within 20 days after the date of the decision and that the complaint "shall be verified by the plaintiff or his attorney."

On March 18, 1997, KUIC filed a motion to dismiss Geveden's complaint on the ground of lack of verification. On March 19, Geveden filed an amended petition for judicial review which was verified by her attorney. On March 20, KUIC filed a motion to dismiss Geveden's amended petition for judicial review. On March 25, Geveden's former employer, Morgan County Appalachian Regional Hospital (the Hospital), filed a motion to dismiss both Geveden's original petition and her amended petition. The trial

A motion to dismiss is not considered a responsive2 pleading. See Kentucky Lake Vacation Land, Inc. v. State Property & Bldgs. Comm'n, Ky., 333 S.W.2d 779, 781 (1960); Vincent v. City of Bowling Green, Ky., 349 S.W.2d 694, 696 (1961).

CR 15.03(1) states that "[w]henever the claim or defense3 asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. court subsequently entered an order granting the motions to dismiss based upon the lack of timely verification, and this appeal by Geveden followed.

Geveden's first argument is that her amended petition was sufficient to cure any defect which may have existed in her original petition. In support of her argument, Geveden relies upon Civil Rule (CR) 15.01, which states that a party "may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . ." Geveden correctly notes that her amended pleading was filed before any responsive pleading was filed by either KUIC or the Hospital. She2 contends, therefore, that she filed a verified petition within the twenty days allowed by KRS 341.450(1), since under CR 15.03(1) her amended petition would relate back to the date she filed her original petition. 3

Geveden's argument is without merit. The civil rules, including the rules upon which Geveden relies, "do not apply to appeals of administrative decisions until after the appeal has been perfected and jurisdiction has attached." Cabinet for Human Resources v. Holbrook, Ky.App., 672 S.W.2d 672, 675 (1984). Jurisdiction had not attached in the case sub judice due to Geveden's failure to file a properly verified complaint within the time limit imposed by the statute. Geveden's appeal of KUIC's order was a statutorily allowed appeal from an administrative agency. As the Kentucky Supreme Court stated in Board of Adjustments of the City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978):

There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy.

Id. at 2.

KRS 341.450(1) allowed Geveden twenty days in which to file a verified complaint in the circuit court if she desired to appeal from KUIC's decision. Her original complaint was timely filed but was not verified. Her amended complaint was verified but was not timely filed. The mandatory requirements of the statute allowing the appeal were not met, and the circuit court did not obtain jurisdiction to hear the appeal. Flood, supra. See also Fisher v. Kentucky Unemployment Insur. Comm'n, Ky.App., 880 S.W.2d 891, 892 (1994).

As a last point in support of her first argument, Geveden cites Browning Mfg. Div. v. Paulus, Ky., 539 S.W.2d 296 (1976), for the proposition that CR 15 applies to appeals from administrative agencies. In that case, an appeal was filed from the Workers' Compensation Board to the circuit court, but the complaint did not contain allegations with respect to venue. The Paulus court held that the defect in the appeal was cured by the filing of an amended petition prior to the filing of a responsive pleading. Regardless of the holding in Paulus, we believe the law to be clearly stated in Holbrook and in Flood to the effect that there must be strict compliance with the mandatory terms of the statute and that jurisdiction will not attach in the absence of such compliance.

Geveden next argues that Shamrock Coal Co. v. Taylor, Ky.App., 697 S.W.2d 952 (1985), mandates that her petition should not have been dismissed. Shamrock Coal similarly involved an improperly verified petition from a KUIC order. The court ruled that the petition was "in sufficient compliance with KRS 341.450(1)" because it was "clear the petition . . . was verified, though not under oath." Id. at 953. The court deemed the lack of proper verification to be "no more than a technical defect," and stated that it "believe[s] a clear attempt at verification is sufficient, notwithstanding it does not reflect that an oath was rendered to a person authorized to receive same." Id. Geveden argues that her amended petition constitutes a "clear attempt at verification" which should be deemed to be "in sufficient compliance with KRS 341.450(1)."  Shamrock Coal is distinguishable from the case sub judice in that Geveden made no "clear attempt at verification" within the twenty-day limit imposed by the statute. Furthermore, Shamrock Coal appears to be contrary to the weight of authority on this issue. In Pickhart v. United States Post Office, Ky.App., 664 S.W.2d 939 (1983), a petition under KRS 341.450(1) was not verified and was, therefore, dismissed by the circuit court. On appeal, this court affirmed the circuit court on the basis that the verification requirement is "mandated" by the statute and that the failure to comply with the verification requirement was "fatal" to the claim since the statutory requirements are jurisdictional in nature. Id. at 940. The rationale in Pickhart was reaffirmed in Monyhan v. Kentucky Unemployment Ins. Comm'n, Ky.App., 709 S.W.2d 837 (1986), and again in Fisher, 880 S.W.2d at 892.

Shamrock Coal's doctrine of "sufficient compliance" also appears to be at odds with the Kentucky Supreme Court's holding in Kentucky Unemployment Ins. Comm'n v. Carter, Ky., 689 S.W.2d 360 (1985). In that case, an appeal from a KUIC decision failed to name the employer as a party to the appeal. In the course of deciding that such a failure was sufficient cause for dismissal of the complaint, the court noted that "we find no authority before the court to authorize the doctrine of substantial compliance in a case where the appeal process is statutorily created and implemented." Id. at 361. 

Geveden next argues that her attorney's signature on the petition was sufficient to constitute verification due to CR 11. In Fisher, supra, this court rejected a similar argument that an attorney's signature on a complaint is sufficient to comply with the verification requirement of KRS 341.450(1). See id. at 892.

Geveden's final argument is that KRS 341.450(1) violates $ 59 of the Kentucky Constitution, which serves to bar the General Assembly from passing acts of local or special legislation. Although her brief is not entirely clear, Geveden is presumably arguing that the statute violates $ 59(1), which prohibits local or special legislation on the subject of "the jurisdiction, or practice or the circuits of the courts of justice . . . ." Her argument appears to be that it is constitutionally impermissible for the General Assembly to determine that the civil rules apply in some instances but not in others. This argument is without merit, as it has been the appellate courts of this state, not the General Assembly, who have held that the civil rules do not apply in statutorily created appeals from administrative agencies until the provisions of the statute authorizing the appeals are complied with in a strict manner. See e.g. Flood, supra. At any rate, KRS 341.450(1) is not local or special legislation as it deals equally with each person who appeals to the circuit court from a decision of the KUIC. See Walters v. Binder, Ky., 435 S.W.2d 464, 467 (1968). 

The order of the Morgan Circuit Court dismissing Geveden's petition for judicial review of the KUIC's order is affirmed.

GUIDUGLI, JUDGE, CONCURS. EMBERTON, JUDGE, DISSENTS BY SEPARATE OPINION.

EMBERTON, JUDGE, DISSENTING. First, I agree that the majority is probably correct in its holding in that we are compelled to follow the precedent of 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) (or else we must overrule them). Here, an attempt to correct the oversight was made; no one would be prejudiced by permitting the amendment; the amendment relates back to the date of the initial filing (CR 15.03(1)); and, verification is no more than a ministerial act; it, therefore, makes no sense to me to disallow a CR 15.01 amendment. I believe the case should be submitted to this Court En Banc for consideration of overruling Pickhart and Monyhan.

BRIEF FOR APPELLANT: Richard L. Masters Louisville, KY

BRIEF FOR APPELLEE: Randall K. Justice Frankfort, KY