Shana Medley v. Division of Employment Security

• Court: Missouri Court of Appeals
• Decided: February 4, 2014
• Docket: WD76197
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

 SHANA MEDLEY,   WD76197 Appellant,  OPINION FILED: v.   FEBRUARY 4, 2014 STATE OF MISSOURI DIVISION OF  EMPLOYMENT SECURITY,   Respondent.  

Appeal from the Labor and Industrial Relations Commission

Before Division Three: Anthony Rex Gabbert, P.J., Victor C. Howard, Thomas H. Newton, JJ.

Shana Medley appeals the decision of the Labor and Industrial Relations Commission

(“Commission”) dismissing her appeal for failing to show good cause to excuse her failure to

participate in her second telephone hearing before the Appeals Tribunal. Medley raises one point

on appeal. She argues that the Commission erred in denying her unemployment benefits because

the Commission “willfully accepted and supported false information provided by the employer

and the employees at Myers Nursing Home.” We dismiss Medley’s appeal for failure to comply

with Rule 84.04 and failure to include any legal authority supporting her claim. Factual Background

Medley was employed at Myers Nursing Home (“Employer”) as a certified nursing

assistant from December 1, 2011, until July 19, 2012, when she was discharged for misconduct.

Medley filed for unemployment benefits and Employer protested the claim, alleging that Medley

was discharged for using profanity in front of residents and coworkers.

On August 8, 2012, the Division of Employment Security (“DES”) mailed its

determination, finding that Medley was disqualified from receiving unemployment benefits

because she was discharged by her Employer for misconduct connected with her work. The

following day, Medley filed a Notice of Appeal to Appeals Tribunal form. DES notified Medley

by mail that she was scheduled for a telephone hearing on September 10, 2012, at 2:45 p.m. The

notification letter also provided Medley with a specific telephone number and access code to use

for the telephone hearing. On September 10, 2012, Medley failed to call in for her telephone

hearing and consequently, the Appeals Tribunal referee dismissed the appeal.

On October 2, 2012, Medley appealed the dismissal, alleging that she missed her

telephone appeal hearing because her cell phone charger was broken and her phone was not

adequately charged. She further contended that she was also unable to borrow another phone to

call in to the hearing. The Appeals Tribunal set the dismissal aside and ordered a new hearing to

take evidence regarding Medley’s failure to participate in the hearing and on the merits of the

disqualification. Medley received a notification letter instructing her that her second telephone

hearing was scheduled for 2:15 p.m. on November 7, 2012. The second hearing had a different

telephone number for Medley to call and a different access code than for her first hearing. At

2:20 p.m., the referee closed the hearing because Medley failed to connect to the conference for

the hearing.

2 On November 8, 2012, the Appeals Tribunal referee issued an order dismissing Medley’s

appeal for failure to appear. On the same day, Medley appealed the dismissal, and it was set

aside by the Appeals Tribunal. A third hearing was scheduled for January 11, 2013 in Kansas

City, Missouri. Medley appeared in person. The referee took testimony regarding Medley’s

failure to appear at the previous hearings and on the merits of the disqualification. On January

15, 2013, the Appeals Tribunal referee determined that Medley did not have good cause for

missing her second hearing and reinstated the dismissal order from November 8, 2012.

Medley appealed the Appeals Tribunal’s decision to the Commission on January 18,

2013. The Commission affirmed and adopted the Appeals Tribunal’s decision on February 20,

2013. Medley appealed.

Appeal Dismissed

Before deciding the merits of Medley’s appeal, this Court must determine whether

Medley’s brief complies with the mandatory rules for appellate briefing under Rule 84.04. An

appellant is required to substantially comply with this Court’s briefing requirements enumerated

in Rule 84.04. Thompson v. Flagstar Bank, FSB, 299 S.W.3d 311, 313 (Mo. App. 2009). Failure

to comply with these requirements constitutes grounds for dismissal. First State Bank of St.

Charles v. Am. Family Mut. Ins. Co., 277 S.W.3d 749, 752 (Mo. App. 2008). Further, failure to

comply with Rule 84.04 impedes this Court’s “ability to reach a disposition on the merits to such

an extent that we could not conduct a meaningful review without improperly advocating for the

appellant.” First Bank v. The Annie-Joyce Group, LLC, 334 S.W.3d 589, 591 (Mo. App. 2011).

While we recognize that Medley is a pro se appellant, such appellants are bound by the same

rules of court procedure as those licensed to practice law. Thompson, 299 S.W.3d at 313.

3 In reviewing Medley’s brief we find that it fails to substantially comply with Rule 84.04.

First, Medley’s brief lacks a table of cases, statutes, and other authorities cited, with reference to

the pages of the brief where they are cited, in violation of Rule 84.04(a)(1). The brief lacks any

legal authority other than the legal authority cited in the jurisdictional statement. “It is an

appellant’s obligation to cite appropriate and available precedent if [the appellant] expects to

prevail.” In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo. App. 1999). “Where, as here, the

appellant neither cites relevant authority nor explains why such authority is not available, the

appellate court is justified in considering the points abandoned and dismiss the appeal.” Id.

Second, the Point Relied On section of Medley’s brief is not in compliance with the

specific requirements of Rule 84.04(d). Medley’s brief fails to cite any legal reasoning for her

claim of reversible error by the Commission. Rule 84.04(d)(2). Further, Medley failed to

include a list of cases and the constitutional, statutory, and regulatory provisions or other

authority upon which she principally relied. Rule 84.04(d)(5).

Finally, in violation of Rule 84.04(e), Medley’s argument does not include a concise

statement of the applicable standard of review for her claim of error nor does the brief restate the

Point Relied On at the beginning of the argument.

We note that this Court struck Medley’s first appellate brief for the aforementioned

briefing deficiencies, and thereafter mailed her a letter advising her of the three deficiencies

listed above. In Medley’s amended brief, she failed to correct any of the deficiencies enumerated

in this Court’s letter to her. In order to fix these deficiencies and determine if Medley is entitled

to relief, it would require this Court to act as Medley’s advocate—which we cannot do. Smith v.

Med Plus Healthcare, 401 S.W.3d 573, 576 (Mo. App. 2013).

4 Quite apart from the technical deficiencies in Medley’s brief, we also note that her Point

Relied On addresses the merits of her claim for unemployment benefits, rather than the basis on

which the Commission dismissed her appeal: her failure to appear at the September 10 and

November 7 telephone hearings before the Appeals Tribunal. “[T]he fundamental requirement

for an appellate argument is that it demonstrate the erroneousness of the basis upon which a

lower court or agency issued an adverse ruling.” Rainey v. SSPS, Inc., 259 S.W.3d 603, 606

(Mo. App. W.D. 2008). “Because [Medley] does not challenge the basis upon which the

Commission actually ruled against [her], we would be constrained to dismiss [her] appeal even if

[s]he had otherwise complied with the rules governing appellate briefing.” Id.

We conclude, therefore, that because Medley’s brief fails to substantially comply with

Rule 84.04 and fails to include any legal authority supporting her claim, it preserves nothing for

our review. We dismiss this appeal.

Anthony Rex Gabbert, Judge

All concur.