In the Missouri Court of Appeals Eastern District DIVISION FIVE
SAMANTHA B. BOURNE, ) No. ED111790 ) Appellant, ) Appeal from the Labor and Industrial ) Relations Commission vs. ) Appeal Nos. 2245130–34 ) DIVISION OF EMPLOYMENT SECURITY, ) ) Respondent. ) FILED: June 11, 2024
Opinion
Samantha B. Bourne (Appellant) appeals from the decisions of the Labor and Industrial
Relations Commission (Commission) denying her unemployment benefits. In two points on
appeal, Appellant argues improper notice by the Division of Employment Security (Division)
resulted in the Commission denying her due process rights by dismissing her appeals from her
overpayment determinations as untimely. Because the Commission specifically treated
Appellant’s appeals as timely and denied the appeals on the merits—concluding that she was
disqualified from receiving unemployment benefits during the relevant periods because she was
not unemployed—we deny both points. Accordingly, we affirm the Commission’s decisions.
Background
A Deputy of the Division issued Appellant five overpayment determinations regarding
state and Federal Pandemic Unemployment Compensation (FPUC) benefits during periods of ineligibility between May 2020 and April 2021. Appellant appealed from each of the
determinations, and the Appeals Tribunals set them for a telephone conference hearing on
February 17, 2023, which Appellant attended. Subsequently, the Appeals Tribunal concluded
Appellant’s appeals were untimely filed and dismissed them. Appellant sought review of
Appeals Tribunal decisions with the Commission.
The Commission found Appellant credibly testified that she had moved and not updated
her address with the Division because she had not claimed any benefits in over a year, thus
Appellant’s lack of notice regarding the Division’s determinations would result in a violation of
her due process rights. Therefore, the Commission found Appellant’s appeals to be timely filed
as a matter of due process. The Commission stated that the sole issue for review was whether
Appellant was paid benefits during periods of ineligibility. The Commission affirmed the
overpayment determinations on the grounds that Appellant was disqualified to receive benefits
during the relevant periods because she was not unemployed. This appeal follows.
Standard of Review
Our review of Commission decisions is governed by § Section 288.210 1 .
The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.
§ 288.210. We consider whether the Commission’s decision is “supported by competent and
substantial evidence upon the whole record.” Humphrey v. Tramar Cont., Inc., 669 S.W.3d 151,
153 (Mo. App. E.D. 2023) (quoting Lexow v. Boeing Co., 643 S.W.3d 501, 504 (Mo. banc 2022)
1 All Section references are to RSMo (2016).
2 (quoting MO. CONST. art. V, sec. 18))). We review only the decision of the Commission.
Sanders v. Div. of Emp. Sec., 417 S.W.3d 895, 897 (Mo. App. W.D. 2014) (internal citation
omitted). “We do not review the decision of the Appeals Tribunal except to the extent it is
adopted by the Commission.” Id. (internal citation omitted).
Discussion
In her first of two points on appeal, Appellant argues the Commission erred in finding her
appeal from the FPUC overpayment determination was untimely due to improper notice. In her
second point, she contends the Commission erred in upholding the FPUC and other overpayment
determinations because the improper notice entitles her to a new hearing to contest her eligibility
for unemployment benefits during the relevant periods.
Compliance with briefing requirements:
As a threshold issue, the Division appropriately argues that we should dismiss
Appellant’s appeal for failure to comply with the Rules of Appellate Procedure set forth in Rule
84.04. See Thompson v. Special Sch. Dist. of St. Louis Cnty., 663 S.W.3d 493, 498 (Mo. App.
E.D. 2023) (internal citations omitted) (noting “[c]ompliance with the briefing requirements
under Rule 84.04 is mandatory” and “[f]ailure to substantially comply with Rule 84.04 preserves
nothing for review and is a proper ground for dismissing an appeal”). Nevertheless, “we have
discretion to review a brief that has deficiencies under Rule 84.04 when its argument is readily
understandable, ‘notwithstanding minor shortcomings’ in complying with the rules of appellate
procedure[.]” Townsend v. Div. of Emp. Sec., 654 S.W.3d 424, 428 (Mo. App. E.D. 2022)
(quoting Murphree v. Lakeshore Est., LLC, 636 S.W.3d 622, 624 (Mo. App. E.D. 2021)). Here,
despite Appellant’s deficiencies in briefing the points relied on, facts, and arguments, in addition
to obvious formatting errors, we exercise our discretion to reach the merits of the appeal because
3 Appellant’s key contentions are readily understandable. See id. at 427 (internal quotation
omitted) (noting our courts prefer to dispose of cases on the merits).
I. Appellant’s appeals were found to be timely by the Commission:
We now turn to Appellant’s first point on appeal, which asserts the Commission erred in
finding the appeals untimely so as to deprive Appellant of meaningful notice and opportunity to
contest her unemployment determinations. Given the record and the Commission’s decision,
Appellant’s arguments are wholly without merit. The Division correctly notes that Appellant
misstates the record. While the Appeals Tribunal found Appellant’s appeals untimely, those
decisions are outside the scope of our review. See Sanders, 417 S.W.3d at 897 (internal citation
omitted). The Commission—whose decision we are reviewing—did not find Appellant’s
appeals were untimely. Instead, the Commission considered the mailing issue to be a matter of
due process and expressly treated Appellant’s appeals as timely filed and denied her relief on the
merits. Specifically, the Commission denied Appellant’s appeals on the grounds that she was
disqualified to receive benefits during the relevant periods for the stated amounts because she
was not unemployed. 2 Because the Commission did not find that Appellant’s appeals were
untimely, Appellant alleges no claim of reversible error. We deny Point One.
II. Issue of lack of notice is unpreserved for review:
We now examine Appellant’s second point on appeal in which she alleges the same lack
of notice and due process violation raised in Point One of her appeal. Specifically, Appellant
alleges the improper notice of the overpayment determinations entitles her to a new evidentiary
hearing to contest her eligibility for unemployment benefits during the time periods at issue.
2 We note this case does not involve good cause, thus it is distinguishable from the line of cases holding that the Commission has no authority to excuse untimely appeals from overpayment determinations for good cause. See Kline v. Div. of Emp. Sec., 662 S.W.3d 158, 162 (Mo. App. E.D. 2023) (citing 8 C.S.R. 10-5.010(5)(c)).
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In the Missouri Court of Appeals Eastern District DIVISION FIVE
SAMANTHA B. BOURNE, ) No. ED111790 ) Appellant, ) Appeal from the Labor and Industrial ) Relations Commission vs. ) Appeal Nos. 2245130–34 ) DIVISION OF EMPLOYMENT SECURITY, ) ) Respondent. ) FILED: June 11, 2024
Opinion
Samantha B. Bourne (Appellant) appeals from the decisions of the Labor and Industrial
Relations Commission (Commission) denying her unemployment benefits. In two points on
appeal, Appellant argues improper notice by the Division of Employment Security (Division)
resulted in the Commission denying her due process rights by dismissing her appeals from her
overpayment determinations as untimely. Because the Commission specifically treated
Appellant’s appeals as timely and denied the appeals on the merits—concluding that she was
disqualified from receiving unemployment benefits during the relevant periods because she was
not unemployed—we deny both points. Accordingly, we affirm the Commission’s decisions.
Background
A Deputy of the Division issued Appellant five overpayment determinations regarding
state and Federal Pandemic Unemployment Compensation (FPUC) benefits during periods of ineligibility between May 2020 and April 2021. Appellant appealed from each of the
determinations, and the Appeals Tribunals set them for a telephone conference hearing on
February 17, 2023, which Appellant attended. Subsequently, the Appeals Tribunal concluded
Appellant’s appeals were untimely filed and dismissed them. Appellant sought review of
Appeals Tribunal decisions with the Commission.
The Commission found Appellant credibly testified that she had moved and not updated
her address with the Division because she had not claimed any benefits in over a year, thus
Appellant’s lack of notice regarding the Division’s determinations would result in a violation of
her due process rights. Therefore, the Commission found Appellant’s appeals to be timely filed
as a matter of due process. The Commission stated that the sole issue for review was whether
Appellant was paid benefits during periods of ineligibility. The Commission affirmed the
overpayment determinations on the grounds that Appellant was disqualified to receive benefits
during the relevant periods because she was not unemployed. This appeal follows.
Standard of Review
Our review of Commission decisions is governed by § Section 288.210 1 .
The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.
§ 288.210. We consider whether the Commission’s decision is “supported by competent and
substantial evidence upon the whole record.” Humphrey v. Tramar Cont., Inc., 669 S.W.3d 151,
153 (Mo. App. E.D. 2023) (quoting Lexow v. Boeing Co., 643 S.W.3d 501, 504 (Mo. banc 2022)
1 All Section references are to RSMo (2016).
2 (quoting MO. CONST. art. V, sec. 18))). We review only the decision of the Commission.
Sanders v. Div. of Emp. Sec., 417 S.W.3d 895, 897 (Mo. App. W.D. 2014) (internal citation
omitted). “We do not review the decision of the Appeals Tribunal except to the extent it is
adopted by the Commission.” Id. (internal citation omitted).
Discussion
In her first of two points on appeal, Appellant argues the Commission erred in finding her
appeal from the FPUC overpayment determination was untimely due to improper notice. In her
second point, she contends the Commission erred in upholding the FPUC and other overpayment
determinations because the improper notice entitles her to a new hearing to contest her eligibility
for unemployment benefits during the relevant periods.
Compliance with briefing requirements:
As a threshold issue, the Division appropriately argues that we should dismiss
Appellant’s appeal for failure to comply with the Rules of Appellate Procedure set forth in Rule
84.04. See Thompson v. Special Sch. Dist. of St. Louis Cnty., 663 S.W.3d 493, 498 (Mo. App.
E.D. 2023) (internal citations omitted) (noting “[c]ompliance with the briefing requirements
under Rule 84.04 is mandatory” and “[f]ailure to substantially comply with Rule 84.04 preserves
nothing for review and is a proper ground for dismissing an appeal”). Nevertheless, “we have
discretion to review a brief that has deficiencies under Rule 84.04 when its argument is readily
understandable, ‘notwithstanding minor shortcomings’ in complying with the rules of appellate
procedure[.]” Townsend v. Div. of Emp. Sec., 654 S.W.3d 424, 428 (Mo. App. E.D. 2022)
(quoting Murphree v. Lakeshore Est., LLC, 636 S.W.3d 622, 624 (Mo. App. E.D. 2021)). Here,
despite Appellant’s deficiencies in briefing the points relied on, facts, and arguments, in addition
to obvious formatting errors, we exercise our discretion to reach the merits of the appeal because
3 Appellant’s key contentions are readily understandable. See id. at 427 (internal quotation
omitted) (noting our courts prefer to dispose of cases on the merits).
I. Appellant’s appeals were found to be timely by the Commission:
We now turn to Appellant’s first point on appeal, which asserts the Commission erred in
finding the appeals untimely so as to deprive Appellant of meaningful notice and opportunity to
contest her unemployment determinations. Given the record and the Commission’s decision,
Appellant’s arguments are wholly without merit. The Division correctly notes that Appellant
misstates the record. While the Appeals Tribunal found Appellant’s appeals untimely, those
decisions are outside the scope of our review. See Sanders, 417 S.W.3d at 897 (internal citation
omitted). The Commission—whose decision we are reviewing—did not find Appellant’s
appeals were untimely. Instead, the Commission considered the mailing issue to be a matter of
due process and expressly treated Appellant’s appeals as timely filed and denied her relief on the
merits. Specifically, the Commission denied Appellant’s appeals on the grounds that she was
disqualified to receive benefits during the relevant periods for the stated amounts because she
was not unemployed. 2 Because the Commission did not find that Appellant’s appeals were
untimely, Appellant alleges no claim of reversible error. We deny Point One.
II. Issue of lack of notice is unpreserved for review:
We now examine Appellant’s second point on appeal in which she alleges the same lack
of notice and due process violation raised in Point One of her appeal. Specifically, Appellant
alleges the improper notice of the overpayment determinations entitles her to a new evidentiary
hearing to contest her eligibility for unemployment benefits during the time periods at issue.
2 We note this case does not involve good cause, thus it is distinguishable from the line of cases holding that the Commission has no authority to excuse untimely appeals from overpayment determinations for good cause. See Kline v. Div. of Emp. Sec., 662 S.W.3d 158, 162 (Mo. App. E.D. 2023) (citing 8 C.S.R. 10-5.010(5)(c)).
4 Thus, Appellant contends the Commission erred in upholding the FPUC and other overpayment
determinations.
We find that her due-process argument is unpreserved, as Appellant did not raise any
due-process issues in her applications to the Commission for review, and an Appellant may not
raise issues on appeal to this Court that were not raised with the Commission. See St. John’s
Mercy Health Sys. v. Div. of Emp. Sec., 273 S.W.3d 510, 516 (Mo. banc 2009); Humphrey, 669
S.W.3d at 154 (internal citations omitted).
Even setting aside such preservation concerns, Appellant does not dispute the correctness
of the amounts of overpayment, which, as the Division notes, is the sole issue on appeal rather
than benefits eligibility. See Hergins v. Div. of Emp. Sec., 372 S.W.3d 543, 546 (Mo. App. W.D.
2012); see also Schmidt v. Ritter Horticultural Servs., Inc., 678 S.W.3d 134, 136–37 (Mo. App.
E.D. 2023) (distinguishing between appeals from eligibility determinations from overpayment
determinations). Moreover, Appellant’s due process allegations are plainly refuted by the
record, which shows that Appellant had sufficient notice to attend and testify at her telephone
hearing and, further, that the Commission treated her appeals as timely filed for purposes of
review. Appellant’s second point on appeal is denied.
Conclusion
For the reasons set forth above, the decision of the Commission is affirmed.
Rebeca Navarro-McKelvey, J.
Thomas C. Clark, II., C.J., and Thomas C. Albus Sp. J., concur.