Opinion
NO. 2013-CA-000790-MR
03-14-2014
FRANCES Y. CRISWELL APPELLANT v. COMMONWEALTH OF KENTUCKY, KENTUCKY RETIREMENT SYSTEMS, BOARD OF TRUSTEES ACTING THROUGH ITS DISABILITY APPEALS COMMITTEE APPELLEE
BRIEFS FOR APPELLANT: Thomas E. Carroll Monticello, Kentucky BRIEF FOR APPELLEE: Brian C. Thomas Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 12-CI-00553
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Frances Y. Criswell appeals from a Franklin Circuit Court order dismissing her petition for a writ of mandamus. The underlying claim concerns Criswell's eligibility for disability retirement benefits, but the sole issue on appeal is whether she failed to timely appeal from a final order of the Disability Appeals Committee of the Board of Trustees of the Kentucky Retirement Systems (Board), thereby divesting the circuit court of subject matter jurisdiction.
Criswell, who was last employed as an assistant city clerk by the City of Monticello, applied for disability retirement benefits in 2004. Criswell suffers from multiple sclerosis.
Under the statutory framework governing the Kentucky Retirement Systems, a member may qualify to retire on disability if she has at least five years (sixty months) of service and, since the last day of her paid employment, has been mentally or physically incapacitated to perform the job. Such a person may not collect disability benefits, however, if the incapacity pre-existed becoming a member of Kentucky Retirement Systems or reemployment, whichever is the most recent. The pre-existing condition exception does not apply if the person has at least sixteen years (192 months) of service with employers participating in the Kentucky Retirement Systems.
Kentucky Revised Statutes (KRS) 61.600(1)(a), (3)(a).
The exception for pre-existing conditions was an issue in Criswell's case, because she had only eleven years five months (137 months) of service credit, and admitted the diagnosis of multiple sclerosis pre-existed her reemployment date of 1998. Criswell claimed she unsuccessfully attempted to purchase approximately four years of service credit from 1994 to 1998, and this credit would add up to sixteen years of service for purposes of KRS 61.600(4)(b). She contended she was unable to complete the purchase, however, because she was given incorrect information by Kentucky Retirement Systems personnel.
The Board issued a report and order in September 2007 holding Criswell's multiple sclerosis pre-existed her reemployment in Kentucky Retirement Systems. Regarding her attempt to purchase service credit, the Board stated, "whether or not the Claimant completed her service purchase has no bearing on her application for disability because even assuming the member made the purchase, she would still lack the requisite service credit to remove the pre-existing condition hurdle." Her application for disability retirement benefits was denied.
Criswell appealed the order to the Franklin Circuit Court, which held the Board had inadequately considered applicability of the equitable estoppel doctrine to her attempted purchase of service credit. The matter was remanded with directions to make factual findings regarding Criswell's equitable arguments and further proceedings as necessary.
In November 2010, the Board issued an order granting Criswell the remedy of equitable estoppel and giving her sixty days to complete her service purchase. The order also stated as follows:
If the Claimant had been allowed to purchase the remaining months of delayed service with the City of Monticello, her reemployment date would still be April 1998. This is the correct interpretation of the statute. Nothing changes the fact pattern that occurred. The(Record citations omitted). The order concluded with the following statement of appeal rights:
Claimant went from employment with a participating agency (the PVA) to employment with a non-participating agency (City of Monticello). The fact that the City of Monticello later became a participating agency does not change the fact that they were not participating in 1994. Thus, Claimant has a re-employment date of April 1998.
In accordance KRS 61.665(5) and KRS 13B.140, any person aggrieved by a final order of the Board may seek judicial review after all administrative appeals have been exhausted. A party shall institute an appeal by filing a petition in Franklin Circuit Court within thirty (30) days after the final order of the agency is mailed.Criswell purchased her service credit in a timely manner, but did not file an appeal from the November order. She contends she was waiting for the Board to grant disability benefits or take further action to affirm or deny coverage.
Almost one and one-half years after entry of the order, Criswell filed a complaint and petition for a writ of mandamus in the Franklin Circuit Court. Kentucky Retirement Systems moved to dismiss the complaint arguing Criswell had failed to perfect her appeal pursuant to KRS 13B.140. The circuit court granted the motion to dismiss. This appeal by Criswell followed.
KRS 61.665(5) provides "[a]ny person aggrieved by a final order" of the Board "may seek judicial review after all administrative appeals have been exhausted by filing a petition for judicial review in the Franklin Circuit Court in accordance with KRS Chapter 13B." The pertinent provision of that chapter provides:
All final orders of an agency shall be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty (30) days after the final order of the agency is mailed or delivered by personal service.KRS 13B.140(1).
It is well settled that "[w]hen grace to appeal [a decision of an administrative body to the circuit court] is granted by statute, a strict compliance with its terms is required." Louisville Gas and Elec. Co. v. Hardin & Meade County Property Owners for Co-Location, 319 S.W.3d 397, 400 (Ky. 2010) (citing Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978)). As the Flood Court observed, "[w]here 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.
It is undisputed Criswell did not file an appeal within thirty days of entry of the November 2010 order. She argues the order was not final because it afforded her the opportunity to purchase her remaining credit and thereafter to seek disability retirement benefits. She contends it was impossible for the Board to enter a final order until it determined whether she had purchased the remaining credits. However, the November order plainly stated Criswell's purchase of service credit would not affect its earlier ruling—she was not entitled to disability retirement benefits because purchasing the credit would not change the date of her re-employment.
Criswell argues the order was not final under CR 54.01, which requires a final and appealable judgment to adjudicate all rights of all parties in an action or proceeding. She argues that although the November 2010 order included finality language, it did not combine the Board's earlier findings of fact and conclusions of law with the impact of her subsequent purchase of credit so as to constitute final determination of her eligibility for benefits. We disagree.
Kentucky Rules of Civil Procedure.
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The November 2010 order met the requirements for a final and appealable order under CR 54.01. The order unambiguously restated its earlier holding regarding Criswell's eligibility for benefits; explained how that holding remained unchanged whether she purchased the service credit or not; and, gave her sixty days within which to purchase the service credit, if she so desired. Every issue raised by Criswell was adjudicated by the order. There was no need for the Board to restate its earlier order in its entirety.
Thus, the trial court correctly dismissed her appeal for lack of subject matter jurisdiction. "It is beyond dispute that mandamus may not be used as a substitute for appeal." National Gypsum Co. v. Corns, 736 S.W.2d 325, 326 (Ky. 1987).
The Franklin Circuit Court order dismissing the petition for a writ of mandamus is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Thomas E. Carroll
Monticello, Kentucky
BRIEF FOR APPELLEE: Brian C. Thomas
Frankfort, Kentucky