CALLIHAN (WALTER) VS. GRAYSON RURAL ELECTRIC CORP. , ET AL.Annotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 07-CI-00402
GRAYSON RURAL ELECTRIC
COOPERATIVE CORPORATION; AND
KENTUCKY PUBLIC SERVICE
** ** ** ** **
BEFORE: CAPERTON AND VANMETER, JUDGES; BUCKINGHAM,2
Although the appellant’s brief lists both Walter Callihan and his wife Goldie Callihan as
appellants, the notice of appeal reflects that Walter Callihan is the only named appellant.
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
CAPERTON JUDGE: The primary issue in this appeal is whether the Franklin
Circuit Court properly dismissed an administrative appeal for failure to comply
with the statutory requirement concerning designation of the record. Finding no
error in the decision of the trial court, we affirm.
The facts underlying this appeal are not in serious dispute. In April,
2003, appellee Grayson RECC discontinued service to Walter Callihan’s property
for non-payment of his electric bill. Callihan then sought relief by lodging a
complaint with the Kentucky Public Service Commission (“Commission”)
alleging, among other things, that Grayson RECC, several officials of that utility
company, and several current and former employees of the Commission had
conspired to deprive Callihan and his wife of their civil rights and their electric
service. After filing a number of procedural motions, including a motion for
recusal of the Commission members and the members of the Commission's legal
staff, on December 1, 2005, the Callihans filed a notice of intent to withdraw their
The Commission thereafter disposed of all outstanding motions,
treating the Callihans notice of intent to withdraw as a motion to withdraw their
complaint. The Commission granted that motion but directed that the investigation
to continue into the Grayson RECC's provision of electric service to the Callihans.
In the course of that investigation, Commission staff issued interrogatories and
requests for production of documents and deposed several officials and employees
of Grayson RECC who the Callihans had previously indicated had unique
knowledge of the facts surrounding the termination of their electric service and the
Callihans subsequent efforts to have their service restored. Callihan apparently
refused to give testimony.
In an order based upon the following rationale, the Commission
ultimately concluded that Grayson RECC's refusal to provide service to the
Callihans was neither unlawful nor unreasonable:
The Commission is not unmindful of the living
conditions that the Callihans must endure as a result of
the termination of electric service. These living
conditions, however, are of their own choosing and their
own conduct. They may have service restored at any
time by paying the entire balance of the indebtedness and
meeting the other conditions set forth in Grayson
RECC’s rules. Moreover, they may enter into a partial
payment plan with Grayson RECC and have electric
service restored while they pay the outstanding
indebtedness over an agreed period. Their refusal to take
these actions does not entitle them to treatment more
favorable than that to which other customers are entitled.
The Commission’s order further stated that the investigation was closed and that it
would be removed from the Commission’s docket.
Pursuant to the procedure provided in KRS 278.410, Callihan then
appealed the Commission’s order to the Franklin Circuit Court. The Commission
thereafter filed a motion to dismiss the appeal on the basis that Callihan had failed
to comply with KRS 278.420(2) which requires the appealing party to file a
designation of the administrative record. That subsection provides:
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.
Within ten (10) days after the service of the designation
or within ten (10) days after the court enters an order
permitting any other party to intervene in the action,
whichever occurs last, any other party to the action may
designate additional portions for filing. 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. [Emphasis added.]
Rather than asking the circuit court to grant him an enlargement of time to
designate the record as is provided for in the statute, Callihans response to the
motion to dismiss included the following verbatim statement with respect to the
2. In response to KSPC argument for designation of
records was not made within 10 days is erroneous and
without merit. Callihan did not only designate said record
by filing two orders from K.P.S.C. The rest of the record
is incomplete, and the important part of the record that
the K.S.P.C. relies upon has been deleted and destroyed
by the K.S.P.C. The said record was filed timely along
with the complaint.
The circuit court subsequently granted the Commission’s motion and dismissed
Although in his brief to this Court Callihan argues, among other
things, that he “has designated all the record hopefully Gerald Whoucher [Gerald
E. Wuetcher, counsel for the Commission] was not telling the truth and that the
record is still there intact, the records will speak loud and clear,” nothing in the
record before us indicates that Callihan complied with his statutory duty or even
requested additional time from the trial court to do so.
In Forest Hills Developers, Inc. v. Pub. Serv. Comm., 936 S.W.2d 94,
96 (Ky.App. 1996), this court clearly explained why compliance with the record
designation requirements of KRS 278.420(2) is a condition precedent to any action
by the circuit court:
KRS 278.420(2) states in clear and unambiguous terms
that the party filing the complaint shall designate the
portions of the record necessary to resolve the issues
raised in its complaint. It is uncontested in the matter at
bar, however, that Forest Hills did not designate any
portion of the record within ten days of filing the
complaint. Forest Hills maintained in its complaint that
the Commission's dismissal of its application was
unlawful and unreasonable, and further set forth its
argument that the Commission's orders preceding the
dismissal were inconsistent and contradictory.
Accordingly, it appears that at a minimum the
designation of those orders would be necessary in order
for the trial court to resolve the issue raised. Irrespective
of the mandatory language of KRS 278.420(2), the party
challenging the Commission's order “[s]hall have the
burden of proof to show by clear and satisfactory
evidence that the determination, requirement, direction or
order is unreasonable and unlawful.” KRS 278.430.
Without presenting to the trial court the orders which
Forest Hills maintained were inconsistent, contradictory,
unlawful and unreasonable, there existed no evidence,
much less clear and satisfactory evidence, that the
Commission had exceeded its authority.
Despite Callihans assertion that he appended the orders in question to his
complaint, a review of the circuit court record dispels that contention. As was the
case in Forest Hills, without designation of the evidence adduced in the
administrative proceeding—including the Commission’s orders—it would have
been impossible for Callihan to have prevailed before the circuit court. We are
thus convinced that there was no error in dismissing Callihans appeal on the basis
of that deficiency.
Because the failure to comply with KRS 278.420(2) is, in and of
itself, a sufficient basis for affirming the decision of the circuit court, we need not
address the failure to properly serve the Attorney General or the limitations issue.
Similarly, because the remainder of the issues Callihan raises in his brief
necessarily were not addressed by the trial court, we cannot consider them for the
first time on appeal.
Accordingly, the order of the Franklin Circuit Court dismissing
Callihans complaint is affirmed.
BRIEF FOR APPELLANT:
Walter Callihan, Pro Se
BRIEF FOR APPELLEE
KENTUCKY PUBLIC SERVICE
Gerald E. Wuetcher
David S. Samford
BRIEF FOR APPELLEE GRAYSON
RURAL ELECTRIC COOPERATIVE
W. Jeffrey Scott