Mickelson v. Commonwealth

Full title: MICHAEL MICKELSON APPELLANT v. COMMONWEALTH OF KENTUCKY, UNEMPLOYMENT…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 21, 2014

NO. 2013-CA-000776-MR (Ky. Ct. App. Mar. 21, 2014)

Opinion

NO. 2013-CA-000776-MR

03-21-2014

MICHAEL MICKELSON APPELLANT v. COMMONWEALTH OF KENTUCKY, UNEMPLOYMENT INSURANCE COMMISSION APPELLEE

BRIEFS FOR APPELLANT: C. Ed Massey Erlanger, Kentucky BRIEF FOR APPELLEE: James C. Maxson Frankfort, Kentucky

STUMBO

NOT TO BE PUBLISHED

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE JAMES R. SCHRAND, II, JUDGE

ACTION NO. 12-CI-00550

OPINION

AFFIRMING

BEFORE: CLAYTON, COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Michael Mickelson appeals from an order of the Boone Circuit Court which dismissed his claim for unemployment benefits. The trial court found that Mickelson's complaint was not verified as required by KRS 341.450(1) and dismissed the action. We find no error and affirm.

On October 26, 2011, Mickelson left his employment with Comair, Inc. Subsequently, he applied for unemployment benefits. On February 24, 2012, the Unemployment Insurance Commission (hereinafter the Commission) denied his request for benefits. At the time of this denial, Mickelson was in California caring for a sick relative. In order to appeal the denial of benefits, Mickelson's counsel prepared and filed a complaint in the Boone Circuit Court. The complaint was not verified by Mickelson or his attorney. The Commission moved to dismiss the action because the complaint was not verified. The Commission relied on KRS 341.450(1) and Taylor v. Kentucky Unemployment Ins. Comm'n, 382 S.W.3d 826 (Ky. 2012). The trial court granted the motion to dismiss and this appeal followed.

KRS 341.450(1) states:

Except as provided in KRS 341.460, within twenty (20) days after the date of the decision of the commission, any party aggrieved thereby may, after exhausting his remedies before the commission, secure judicial review thereof by filing a complaint against the commission in the Circuit Court of the county in which the claimant was last employed by a subject employer whose reserve account or reimbursing employer account is affected by such claims. Any other party to the proceeding before the commission shall be made a defendant in such action. The complaint shall state fully the grounds upon which review is sought, assign all errors relied on, and shall be verified by the plaintiff or his attorney. The plaintiff shall furnish copies thereof for each defendant to the commission, which shall deliver one (1) copy to each defendant. (Emphasis added).

The case of Taylor, supra, cited by the Commission, is directly on point and is controlling in this matter. In Taylor, the Commission denied unemployment benefits to Tony Taylor. Taylor sought review of the decision from the Henderson Circuit Court. Taylor's counsel filed the petition for review. Counsel signed the petition, but the signature was not verified by being signed in front of a notary public. Taylor did not sign the petition. The Commission moved to dismiss the action.

The circuit court concluded that strict compliance with the terms of KRS 341.450 was necessary in order to invoke its jurisdiction, and that without formal verification, the petition did not comply with the statute. The court further reasoned that, since the defective petition was inadequate to invoke its jurisdiction, the court lacked authority to grant [a] motion to amend the petition. Accordingly, the circuit court dismissed the case.

Id. at 829. A previous panel of this Court affirmed and the Kentucky Supreme Court granted discretionary review. The Supreme Court held that an appeal of an administrative agency's decision to the circuit court is granted by statute, not as a matter of right; therefore, strict compliance with the statute is required. Id. at 831-32. It further found that an attorney's signature on the petition, which is not verified, does not meet the requirement of KRS 341.450(1). Id. at 834.

In the case at hand, Mickelson's attorney signed the complaint, but the signature was not verified. KRS 341.450(1) requires the plaintiff or his attorney to sign the complaint and have that signature verified. According to Taylor, supra, without the verification, the circuit court has no jurisdiction over the matter. We are bound by the holding in Taylor. The complaint was properly dismissed.

For the foregoing reasons, we affirm the judgment of the Boone Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: C. Ed Massey
Erlanger, Kentucky
BRIEF FOR APPELLEE: James C. Maxson
Frankfort, Kentucky