Holt v. MISSISSIPPI EMPLOYMENT SEC. COM'N

724 So. 2d 466, 1998 WL 850090
CourtCourt of Appeals of Mississippi
DecidedDecember 8, 1998
Docket97-CC-00552COA
StatusPublished
Cited by16 cases

This text of 724 So. 2d 466 (Holt v. MISSISSIPPI EMPLOYMENT SEC. COM'N) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holt v. MISSISSIPPI EMPLOYMENT SEC. COM'N, 724 So. 2d 466, 1998 WL 850090 (Mich. Ct. App. 1998).

Opinion

724 So.2d 466 (1998)

Brenda S. HOLT, Appellant,
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.

No. 97-CC-00552COA.

Court of Appeals of Mississippi.

December 8, 1998.

*467 Pro Se, Attorney for Appellant.

Albert B. White, Madison, Attorney for Appellee.

Before McMILLIN, P.J., COLEMAN and SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. Brenda Holt brought a claim in the Mississippi Employment Security Commission (MESC) regarding her dismissal from employment. Holt did not timely seek review of the appeals referee's denial of benefits to the Board of Review. The Board of Review and the circuit court found the untimely appeal to end Holt's right to contest the decision. Holt appeals to this Court, claiming that she never received notice of the decision denying benefits, and therefore should not be held to have untimely appealed from that decision. We find that insufficient evidence was presented to overcome the presumption of proper delivery of the notice. Consequently, we affirm.

STATEMENT OF FACTS

¶ 2. Holt was an employee at Four Points Restaurant in Yazoo City. The restaurant manager counseled Holt about serving coffee in an improper cup. There appears to have been an earlier discussion regarding the same error. According to the employer, Holt became irate and created a scene in the restaurant. She was asked either to calm down and go back to work or to go home. The manager indicated in her testimony that the discussion between the two was fairly heated, with some sharp words exchanged. Holt's response to the choice was "do you mean you're firing me?" The manager said, "[T]ake it for whatever it's worth. But hush your mouth."

¶ 3. Holt left the restaurant at that time, and as the manager put it, "she left me with no help." The manager testified that Holt never returned to work.

¶ 4. Subsequently Holt filed for unemployment benefits.

¶ 5. The procedural chronology is central to our resolution of the case:

1. November 22, 1996, notice sent that claims examiner disqualified Holt from benefits, finding that Holt had been discharged for misconduct; that decision was timely appealed.
2. December 19, 1996, notice sent that appeals referee affirmed the claims examiner.
3. January 14, 1997, Holt appealed from the referee's decision.
4. February 7, 1997, MESC Board of Review dismissed the appeal as having been untimely.
5. February 11, 1997, Holt appealed to the circuit court.
6. April 4, 1997, the circuit court affirmed the Board of Review's decision.
7. April 9, 1997, Holt appealed from the circuit court.

DISCUSSION

¶ 6. The decision of the Board of Review, which was affirmed by the circuit court, relied upon the following statute:

*468 The parties shall be duly notified of such [appeal] tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the Board of Review unless, within 14 days after the date of notification or mailing of such decision, further appeal is further initiated [to the Board of Review].

Miss.Code. Ann. Section 71-5-519 (Rev. 1995). It is undisputed that the appeal referee mailed notice of the affirmance of denial of benefits on December 19, 1996. Considerably more than 14 days later, on January 14, 1997, Holt filed her appeal to the Board of Review. The analysis of the Board of Review was simply this:

The Referee's decisions was mailed to all interested parties to their last known address on December 19, 1996.
The appeal was not filed to the Board of Review until January 14, 1997. The Referee's decision had become final and the appeal is herewith dismissed.

¶ 7. The Board of Review's decision was not based upon considering any evidence regarding a possible failure of notice, and such evidence was implicitly found irrelevant. Holt's explanation that was filed with her notice of appeal to the Board of Review stated this:

I didn't receive the letter they said they mailed to me. I called to see about this they said they mailed it. I didn't get it.

¶ 8. This notice states that she attached letters from neighbors indicating that "we've had lots of trouble with our mail here. If I need to and it will help, I'll get everyone on my mail route to sign a paper to this. People were all the time getting other people's mail." The appellate record does not have any attachments from neighbors.

¶ 9. Thus this case raises the issue of whether the Section 71-5-519 obligation to file within fourteen days of the mailing of notice is absolute. If in fact the claimant has evidence that might convince a fact-finder that she did not receive the notice, despite having given the MESC the proper address to use, does this statute prevent the consideration of that evidence? In other words, does the statute only require mailing, or does it require delivery?

¶ 10. The leading case under this provision dealt with an MESC practice that allowed a claimant three extra days to respond to mailed notice. Wilkerson v. Mississippi Employment Security Commission, 630 So.2d 1000, 1001 (Miss.1994). The court found that even if the MESC had authority to interpret the statute to permit a three-day extension for mailing, that interpretation should be adopted only after rule making procedures were followed. Id. at 1002. In the absence of a rule, and none existed then nor now, the strict fourteen-day requirement applied. Id. Here, we are not dealing with a systematic relaxing of the requirements of the statute, in which all appellants received more time than the statute contemplates. Instead, we are determining whether the statute by its terms overrides a claimant's argument and even her proof that the mailed notice was never received.

¶ 11. In Wilkerson the court stated that no excuse was accepted in civil cases for failing to file a timely notice of appeal. Id. at 1002. The case relied upon was discussing appeals from trial courts to the supreme court. Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308, 310-11 (Miss.1989). The Tandy court itself recognized that the rules governing appeals permitted a trial court to grant an extension "upon motion filed not later than 30 days after the expiration" of the appeal time. M.R.A.P. 4(g). The problem in Tandy was that appellant's counsel did not request such an extension.

¶ 12. Here, we are not addressing appeals from trial courts to an appellate court, but instead the internal appellate procedures of an administrative agency. We therefore need to understand the reason that a timely filing of a notice of appeal from a trial court to an appellate court is an absolute requirement before we can say that the same unalterable rule applies to what occurs within the MESC. We note that a trial court clerk has no obligation by statute or rule to send notice of a final civil judgment to the parties. The clerk in criminal cases "shall make a diligent effort to assure that all attorneys of record have received notice" of the entry of an order *469 or judgment, but "best efforts" is far from an absolute requirement. URCCC 11.05 ("Rule Series 6 through 12 are applicable only to criminal proceedings." URCCC 6.01).

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Bluebook (online)
724 So. 2d 466, 1998 WL 850090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holt-v-mississippi-employment-sec-comn-missctapp-1998.