HOLLY CREEK PRODUCTION CORPORATION v. PUBLIC SERVICE COMMISSION OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
AUGUST 24, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001186-MR
HOLLY CREEK PRODUCTION
CORPORATION
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 99-CI-01085
v.
PUBLIC SERVICE COMMISSION
OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; KNOPF, JUDGE
AND MARY COREY, SPECIAL JUDGE.1.
KNOPF, JUDGE:
Holly Creek Production Corporation, a supplier of
natural gas, appeals from an April 10, 2000, order of the
Franklin Circuit Court dismissing its petition for review of a
decision by the Public Service Commission (PSC).
The PSC
determined that Holly Creek had overcharged one of its natural
gas customers $23,674.00 and ordered it to refund that amount.
Arguing that the PSC had miscalculated the amount of the
1
Senior Status Judge Mary Corey sitting as special judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
overcharge, Holly Creek sought review in Franklin Circuit Court.
The court dismissed the action on the ground that Holly Creek’s
tardy designation of the record rendered its petition fatally
defective.
Holly Creek contends that the court applied the
designation requirement too strictly.
We affirm.
KRS 278.410 provides that parties to proceedings before
the PSC may seek review of commission orders by filing an action
in the Franklin Circuit Court.
KRS 278.420 then provides, in
pertinent part, as follows:
(2) Unless an agreed statement of the record
is filed with the court, the filing party
shall designate, within ten (10) days after
an action is filed, the portions of the
record necessary to determine the issues
raised in the action. . . . The court may
enlarge the ten (10) day period where cause
is shown. Additionally, the court may
require or permit subsequent corrections or
additions to the record.
Holly Creek filed its action for review of the PSC’s
order on September 17, 1999.
Attached to its complaint was a
copy of the PSC’s original order finding Holly Creek liable for
the refund and a copy of a subsequent order denying Holly Creek’s
motion for reconsideration.
Holly Creek did not file a
designation of the administrative record, nor did it anywhere
indicate that the orders attached to its complaint were intended
to serve in lieu of a designation.
On September 29, 1999, the
PSC moved for dismissal of Holly Creek’s action on the grounds
both that Holly Creek had failed to name an indispensable party
(the over-billed customer) and that it had failed to designate
the record.
Holly Creek responded on September 30, 1999, by
filing a designation of the entire administrative record.
-2-
It
also moved, on October 8, 1999, for an enlargement of the time in
which to file the designation.
It is from the court’s order
denying this latter motion and dismissing the action that Holly
Creek appeals.
Holly Creek argues that it substantially complied with
the designation requirement by attaching the PSC’s orders to its
complaint.
Those orders, it maintains, provided the circuit
court with a meaningful basis to review the PSC’s method of
calculating the alleged overcharge.
At the very least, Holly
Creek insists, the attached orders established a preliminary
designation of the record, which might then have been
supplemented or amended as the statute seems plainly to
contemplate.
The circuit court not only had the authority to so
rule, Holly Creek contends, but its failure to do so was
erroneous.
We tend to agree with Holly Creek that the circuit
court’s authority, its jurisdiction, is not the issue here.
Procedural rules, even those governing the invocation of a
court’s jurisdiction, do not themselves fix or alter that
jurisdiction.2
In this case in particular, the statute provides
that enforcement of the designation requirement is to some extent
within the discretion of the circuit court.
2
This would not be
Johnson v. Smith, Ky., 885 S.W.2d 944 (1994); Stewart v. Kentucky Lottery
Corporation, Ky. App., 986 S.W.2d 918 (1998). But see Forest Hills Developers, Inc. v. Public
Service Commission, Ky. App., 936 S.W.2d 94 (1996) (“[T]he failure to abide by the statutory
scheme for seeking review of a commission's order deprives the reviewing court of jurisdiction.”
citing Frisby v. Board of Education of Boyle County, Ky. App., 707 S.W.2d 359 (1986));
Kentucky Unemployment Insurance Commission v. Providian Agency Group, Inc., Ky. App.,
981 S.W.2d 138 (1998).
-3-
the case if the requirement were jurisdictional.
Be that as it
may, the point is largely academic, for it is well established
even apart from any question of jurisdiction that courts will
apply statutes and regulations governing appeals from
administrative tribunals strictly according to their terms.3
Substantial compliance, a policy guiding judicial construction of
the civil and criminal rules, generally does not apply to such
questions of statutory or regulatory construction.4
Did the circuit court misconstrue KRS 278.420?
Should
it, as Holly Creek contends, have deemed the administrative
orders attached to Holly Creek’s brief a designation of the
record?
Our review of this question, a matter of statutory
construction, is without deference to the circuit court’s answer.
As did the circuit court, we strive to give effect to the
legislative intent as expressed in the statute’s terms and as it
appears within the statutory context.5
We are not persuaded that the circuit court read the
designation requirement too strictly.
It is true, as Holly Creek
points out, that KRS 278.420, unlike CR 75.01, does not expressly
define what shall constitute a designation of the record.
We do
not agree, however, that this silence renders the concept vague
3
Johnson v. Smith, supra; Fisher v. Kentucky Unemployment Insurance Commission, Ky.
App., 880 S.W.2d 891 (1994).
4
Bowen v. Commonwealth, 887 S.W.2d 350 (1994); Jenny Wiley Health Care Center v.
Commonwealth of Kentucky Cabinet for Human Resources, Ky., 828 S.W.2d 657 (1992).
Unless of course the general assembly or the regulatory body have indicated otherwise.
Whittaker v. Wright, Ky., 969 S.W.2d 209 (1998).
5
Commonwealth v. Montaque, Ky., 23 S.W.3d 629 (2000) (citing Floyd County Board of
Education v. Ratliff, Ky., 955 S.W.2d 921 (1997)).
-4-
or mysterious.
An important aspect of an appeal, at least in our
system, is the direct communication between the reviewing and the
reviewed tribunals.
This communication helps to protect both
tribunals against collusive appeals, and it helps to ensure the
pertinence of the reviewing tribunal’s mandate.
Along with the
notice of appeal, the formal designation of the record in the
reviewed tribunal and that tribunal’s preparation and
certification of the record serves not only to bring the
appellant’s allegations of error before the reviewing body, but
also to establish that inter-tribunal communication.
We believe
that the designation requirement of KRS 278.420 was intended, in
part and as a general rule, to serve this communicative function.
Holly Creek’s purported designation by way of its
complaint bypassed the PSC and interfered with that function.
Even if the orders Holly Creek included with its complaint
provided an adequate record for review,6 therefore, we would
agree with the circuit court that they did not constitute a
designation of the record as required by the statute.
As noted above, KRS 278.420 permits the circuit court
to enlarge the ten-day designation period where cause is shown.
The court abused its discretion under this provision, Holly Creek
next contends, by denying Holly Creek’s belated motion for an
enlargement.
The test for abuse of discretion is:
6
They do not. Although they indicate the method the PSC used to arrive at its estimate of
the overcharge, they do not include the underlying data. Doubtless that data bore upon the PSC’s
choice of a method.
-5-
whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.7
We are not persuaded that the circuit court’s decision failed
this test.
Although we sympathize with Holly Creek’s counsel,
whose parents it seems were both critically ill at the time of
Holly Creek’s appeal, the circuit court was within its discretion
when it insisted upon a strict compliance with KRS 278.420's
designation requirement.
As noted above, strict compliance with the statutory
prerequisites for administrative appeals is the general rule.
Another general rule is that, to avail oneself of an enlargement
of a time period, one should request the enlargement before the
original deadline.8
Here, however, the ten-day designation
period had expired before Holly Creek sought relief.
Only
extraordinary cause will mandate the granting of a tardy motion
for enlargement.
No such cause was shown.
As the trial court
noted, designating the record was no more onerous than filing the
notice of appeal, a task counsel performed despite his parents’
illnesses.
Although Holly Creek’s neglect of the designation
requirement is understandable, we are not persuaded that the
circuit court was compelled to excuse it.
For these reasons, we affirm the April 10, 2000, order
of the Franklin Circuit Court.
COREY, SPECIAL JUDGE, CONCURS.
GUDGEL, CHIEF JUDGE, DISSENTS.
7
Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999) (citations omitted).
8
Cf. CR 6.02.
-6-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sam P. Burchett
Lexington, Kentucky
Deborah Eversole
James R. Goff
Frankfort, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
