PAUL CLEVINGER; AND DAVID STURGILL v. COMMONWEALTH OF KENTUCKY, MINE SAFETY REVIEW COMMISSION
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001610-MR
PAUL CLEVINGER; AND
DAVID STURGILL
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 03-CI-00497
COMMONWEALTH OF KENTUCKY, MINE
SAFETY REVIEW COMMISSION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Paul Clevinger and David Sturgill have appealed
from an opinion and order entered by the Franklin Circuit Court
on May 23, 2003, which dismissed their administrative appeal for
failure to list a party’s name and address in the complaint and
for failure to serve a copy of the complaint on a party as
required by KRS1 13B.140(1).
Having concluded that the circuit
court properly dismissed this action, we affirm.
On September 16, 1999, Clevinger and Sturgill were
employed as mine foremen at South Akers Mining Company, LLC’s
Beefhide No. 2 Mine located in Pike County, Kentucky, when the
collapse of the mine’s roof caused the death of miner Ronnie
Charles and injured miner David Ramey.
The Kentucky Department
of Mines and Minerals2 investigated this fatal accident and cited
Clevinger, Sturgill, and South Akers for various mine safety
violations, and on November 16, 2001, took charges against them
for those violations before the Kentucky Mine Safety Review
Commission.
In a final order dated March 28, 2003, the
Commission revoked Clevinger’s and Sturgill’s underground mine
foreman certificates for a period four years.
Pursuant to KRS 351.194(8), Clevinger and Sturgill
filed a complaint and petition for declaration of rights on
April 28, 2003, in the Franklin Circuit Court.
named as respondents:
The petitioners
“Commonwealth of Kentucky, Mine Safety
Review Commission; Charles M. Tackett, Commissioner and William
R. Whitledge, Commissioner,” and asserted various constitutional
1
Kentucky Revised Statutes.
2
Effective July 9, 2004, the Department was reestablished as the Office of
Mine Safety and Licensing (OMSL).
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and statutory violations that they alleged resulted in their
mine foreman certificates being improperly revoked.
On May 1, 2003, OMSL filed a motion to dismiss the
complaint due to the petitioners’ “failure to comply with the
statutory provision regarding appeals of administrative orders.”
Specifically, OMSL relied upon KRS 13B.140(1), which provides as
follows:
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 . . . . Copies of the
petition shall be served by the petitioner
upon the agency and all parties of record.
The petition shall include the names and
addresses of all parties to the proceeding
and the agency involved, and a statement of
the grounds on which the review is
requested. The petition shall be
accompanied by a copy of the final order
[emphasis added].
In its order and opinion entered on May 23, 2003, the circuit
court granted the respondents’ motion to dismiss due to the
petitioners’ failure to list OMSL’s name and address in the
complaint and to serve a copy of the complaint on OMSL as
required by KRS 13B.140(1).
On June 3, 2003, the petitioners
filed a motion to alter, amend, or vacate, which was denied by
an order entered on July 10, 2003.
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This appeal followed.
Clevinger and Sturgill claim their complaint and
petition filed in the circuit court complied with the statutory
requirements of KRS 13B.140.
Specifically, they argue as
follows:
KRS 13B.140 first requires that copies of
the [p]etition shall be served by the
[p]etitioners upon the agency and all
parties of record. The [a]ppellants’
[a]ppeal was only filed against the
Commonwealth of Kentucky, Mine Safety Review
Commission, since it is the Commission that
took action against the mine foreman
certificates held by Clevinger and Sturgill.
As a result, [OMSL] was not named as a party
to the [a]ppeal filed with the Franklin
Circuit Court. In fact, it was acknowledged
during oral arguments in chambers that
[OMSL] was not alleging that it should have
been named as a party to the [a]ppeal.
Since [OMSL] was not a party to the
[a]ppeal, there is no requirement that a
copy of the [p]etition be served on [OMSL]
and there is no requirement that the
[p]etition should include the name and
address of [OMSL].
In addition, the Franklin Circuit Court
seems to indicate in its [o]rder dismissing
the [a]ppellants’ [c]omplaint that the
[p]etitioners should have named [OMSL] as a
party to this proceeding. As indicated
earlier, counsel for [OMSL] alleged during
oral arguments that he was not alleging that
[OMSL] should be a party to this [a]ppeal.
Upon review of the Commission’s enabling
statutes, it is obvious that the Commission
is the agency that took action against the
[a]ppellants and not [OMSL], thus the
Commission is the only party necessary for
this [a]ppeal.
-4-
In OMSL’s brief, it concedes that Clevinger and
Sturgill are correct in arguing that it took the position before
the circuit court that the statute did not require OMSL to be
named as a party respondent in the administrative appeal in
circuit court.
OMSL states that its position on that issue
remains the same and it argues that the circuit court’s opinion
and order dismissing “is somewhat ambiguous as to whether it
means that Clevinger and Sturgill were required to make [OMSL] a
party-[r]espondent, or merely list – in their [c]omplaint [and]
[p]etition – [OMSL] as a party in the proceeding below.”
OMSL
states that it “believes the more reasonable interpretation of
the [c]ourt’s [o]pinion and [o]rder is that the [c]ourt merely
required Clevinger and Sturgill to list in their [c]omplaint
[and] [p]etition the name and address of [OMSL] (as a party
below), and to serve [OMSL] with a copy of their [p]etition.”
In dismissing this action, the circuit court relied
upon City of Richmond v. Flood,3 where the circuit court
dismissed an administrative appeal of a decision of a city board
of adjustments due to the petitioners’ failure to make the city
planning commission a party to the circuit court action within
30 days.
The Court of Appeals reversed the circuit court, but
the Supreme Court reversed the Court of Appeals and stated as
follows:
3
581 S.W.2d 1 (Ky. 1978).
-5-
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 [citation omitted].
. . .
It is as plain as a billboard that the
legislature has granted to persons aggrieved
by the final action of the board of
adjustments the grace of appeal to the
circuit court provided they perfect that
appeal by filing it in the circuit court,
including the planning commission as a
party, within thirty days. Here the appeal
was filed within the thirty-day limitation,
but no effort was made to include the
Commission as a party until sixty-eight days
after the final action of the Board.
Consequently, one of the conditions
precedent to the exercise of judicial power
by the circuit court was not met and it was
required to dismiss the appeal for want of
jurisdiction [citations omitted].4
Clevinger and Sturgill attempt to distinguish Flood by
pointing out that the enabling statute5 in Flood required that
summons shall issue “to all parties, including the planning
commission, in all cases.”
They argue in this case that “there
is no requirement that [OMSL] be made a party since [OMSL] did
not take any action in the [f]inal [o]rder which revoked the
underground mine foreman certificates of Sturgill and
4
Flood, 581 S.W.2d at 2.
5
KRS 100.347(2).
-6-
Clevinger.”
They note in this case that “[t]he [a]ppeal was
taken against the Commission, which was named as a party to the
[a]ppeal in conformity with KRS 13B.140(1), since it is the
agency who took action against the [a]ppellants.”
Clevinger and
Sturgill also rely on Commonwealth of Kentucky, Dept. of Public
Safety v. Bell,6 which was a case involving the suspension of
Bell’s driver’s license.
Bell filed a petition in Wayne
Quarterly Court and obtained reinstatement of his license.
The
circuit court affirmed and the Department appealed to the former
Court of Appeals.
In affirming, the Court stated that “[w]hen
an aggrieved party is in literal compliance with this statute
[KRS 186.580(2)] and the administrative agency is afforded
reasonable notice and opportunity to be heard, judicial review
of the administrative order is proper” [citation omitted].7
However, as OMSL correctly notes, Bell was decided
before Flood, and while Bell has not been followed in any other
case, Flood has been relied upon several times.
In Kentucky
Unemployment Insurance Commission v. Providian Agency Group,8 the
Court stated ”[w]hen an appeal is brought in circuit court by
grant of statute, the parties must strictly comply with the
dictates of that statute.”
And in Compton v. American
6
453 S.W.2d 749 (Ky. 1970).
7
Id. at 750.
8
981 S.W.2d 138, 140 (Ky.App. 1998).
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Commercial Barge Line Co.,9 the Court of Appeals noted that “the
courts in this jurisdiction have consistently ruled in favor of
strict compliance when the action brought in the circuit court
is brought pursuant to a statute[,]” and “[g]iven such rulings,
the circuit court acted correctly in dismissing appellants’
action for failing to name the Workers’ Compensation Board as a
party to the appeal” [citations omitted].
Accordingly, the circuit court correctly applied KRS
13B.140(1), which contains the jurisdictional requirement that
the petitioners list OMSL’s name and address in the complaint
and serve a copy of the complaint on OMSL, and thus, it properly
dismissed Clevinger’s and Sturgill’s complaint.
Based on the
foregoing, the opinion and order of the Franklin Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
Billy R. Shelton
Lexington, Kentucky
BRIEF FOR APPELLEE, OFFICE OF
MINE SAFETY & LICENSING:
Tony Oppegard
Frankfort, Kentucky
James P. Pruitt, Jr.
Pikeville, Kentucky
9
664 S.W.2d 950, 952 (Ky.App. 1984).
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