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Walker v. Division of Employment Security

Court of Appeals of Missouri, Western District, Second Division

January 7, 2020

DONZELL WALKER, Appellant,
v.
DIVISION OF EMPLOYMENT SECURITY, Respondent.

          Appeal from the Labor and Industrial Relations Commission.

          Before: Thomas H. Newton, P.J., Anthony Rex Gabbert, and Thomas N. Chapman, JJ.

          OPINION

          Thomas N. Chapman, Judge.

         Donzell Walker appeals the decision of the Labor and Industrial Relations Commission dismissing his claim for unemployment benefits. The Commission determined that Mr. Walker failed to demonstrate good cause for failing to participate in a hearing. The appeal is dismissed.

         Factual and Procedural History

         Mr. Walker worked for City Wide Maintenance (Employer), and was terminated for directing profanity at his supervisor during a telephone conversation (where his absence from work was being discussed). Mr. Walker filed a claim for unemployment compensation benefits. A Deputy of the Division of Employment Security (Division) found Mr. Walker ineligible to receive unemployment insurance benefits. Mr. Walker appealed that decision, and was mailed a notice of the hearing before the Appeals Tribunal, on November 5, 2018, at 12:30 pm. Mr. Walker failed to call in, and his appeal was dismissed. He requested a new hearing, which was conducted. At that hearing Mr. Walker acknowledged that the address where the notice was sent was correct, that he had received the notice for the 12:30 pm hearing, and that he did not participate in the hearing. He testified that he received notice of another hearing (regarding his ability to work) for that same date, set at 1:15 pm, and that he did call in for that hearing. When asked why he didn't participate in the 12:30 pm hearing, he testified as follows:

Q: All right. Why didn't you call in for that hearing?
A: Because, uh, I deal with - I was confused about the, uh, the first package or the second package which I had called in at 12:30 but the one prior to that, I believe it was 1:15 I mean. I didn't - I called in at 1:15 but I didn't call in at 12:30 because I was confused and I deal with a mental illness and I just - I got overwhelmed. This is my first time, uh, going through, uh, appeals or trying to get unemployment so I was just confused and it - it - it - it - I couldn't understand what I needed - what I needed to do….
Q: Okay. So - so I just want to be clear and I believe we asked this but I wasn't - I wasn't sure I understood it. When - when you received all the documents in the mail for the two hearings, uh, on - on November 5th, did you notice that they - they were two different notices with two different times?
A: No, sir. I - I only read, uh, the one at 1:15 and I made sure that I called in that day because that's the only one. I-I-I reckon I missed - I reckon the other one at 12:30…

         In its decision dismissing Mr. Walker's claim, the Commission found that, when he received the two notices, Mr. Walker "only read the notice for the 1:15 pm hearing." The Commission further found that Mr. Walker "suffers from a mental health issue…that sometimes causes him confusion. The claimant did not present any medical evidence regarding his condition." In its conclusions of law, the Commission found as follows:

The claimant did not demonstrate good cause for failing to participate (sic) the previous hearing. The claimant failed to participate because he did not read the notices provided to him.…The claimant's failure to review the documents provided to him does not constitute good cause. The claimant did not demonstrate reasonableness and good cause under the circumstances.
The claimant failed to provide any competent evidence to show that his mental health issues caused him to miss the hearing. The claimant admitted he had not read the notice. It was the claimant's failure to read the notice, not any confusion, which prevented him from participating in the hearing…."

         In its decision, the Commission concluded: "Good Cause has not been shown for failing to participate in the prior hearing….The claimant's appeal is dismissed." This appeal by Mr. Walker followed.

         Dismissal of Appeal

         In his sole point on appeal, Mr. Walker contends that the Commission erred in finding him disqualified for unemployment benefits based on his discharge for misconduct connected with work. Because Mr. Walker does not properly appeal the only ruling made by the Commission (that he had failed to demonstrate good cause for failure to participate) and he does not comply with the briefing requirements of Rule 84.04 for the good cause issue, the appeal is dismissed.

         Rule 84.13(a) provides that "allegations of error not briefed or not properly briefed shall not be considered in any civil appeal." Rather than addressing the Commission's decision to dismiss appeal of his claim, Mr. Walker's sole point on appeal addresses the merits of his claim.[1] While Mr. Walker does discuss the reasons he missed the hearing in his one-paragraph conclusion, he does not even mention the phrase "good cause" in his brief.[2] A question not presented in an appellant's brief will be considered abandoned on appeal. Stanton v. Div. of Emp't Sec., 321 S.W.3d 486, 488 (Mo. App. W.D. 2010).

         In Stanton, the appellant's claim for unemployment compensation benefits was dismissed by the Commission due to his failure to call in and participate in the hearing before the Appeals Tribunal; and the appellant, like Mr. Walker, challenged the merits of the claim on appeal, rather than the dismissal for failure to participate. Id. at 487-88. In dismissing the appeal in Stanton, we observed:

Our review is confined to those points of error that the appellant properly raises on appeal. In this case, Stanton has failed to allege any reviewable point of error on the part of the Commission. The Commission's decision upheld the dismissal of Stanton's case. Stanton, however, does not address this issue in his brief. Rule 84.13(a) provides that allegations of error not briefed or not properly briefed shall not be considered in any civil appeal. Furthermore, a question not presented in an appellant's brief will be considered abandoned on appeal and no longer an issue in the case. Because Stanton's appeal does not contest the dismissal of his case for failure to appear at the hearing, he has abandoned that issue. Having failed to raise the grounds upon which the Commission dismissed his claim, Stanton presents no appealable issue for this court to review.

Id. at 488 (internal quotes and citation omitted).

         Furthermore, Mr. Walker fails to comply with the Rule 84.04 briefing requirements for the good cause issue. Rule 84.04 describes mandatory requirements for appellate briefs. Hubbard v. Schaefer Autobody Ctrs., Inc., 561 S.W.3d 458, 460-61 (Mo. App. E.D. 2018).

In the interest of judicial impartiality, judicial economy and fairness to all parties, pro se appellants are held to the same standards as attorneys regarding the mandatory appellate briefing rules. All litigants are required to comply with Rule 84.04; an appellate court should not speculate as to the parameters of the appellant's argument because doing so would cast the court in the role of the appellant's advocate.

Id. at 461 (internal citations omitted). "While we prefer to dispose of a case on the merits whenever possible, if the deficiencies in the brief are such that no claims are preserved for appellate review, then we must dismiss the appeal." Scott. v. Potter. Elec. Signal Co., 310 S.W.3d 311, 312 (Mo. App. E.D. 2010).

         An appellate brief must contain a "Point Relied On" for each issue on appeal and an argument that substantially follows the corresponding "Point Relied On." Hubbard, 561 S.W.3d at 461. Specifically, Mr. Walker's brief fails to comply with Rules 84.04(d)(2) and 84.04(e). Under Rule 84.04(d)(2), "each point relied on must identify the administrative ruling or action the appellant challenges, provide a concise statement of the legal reasons for the claim on appeal, and explain why the legal reasons support the claim of error." Hubbard, 561 S.W.3d at 461 (internal quotes and citation omitted). Rule 84.04(e) requires the argument to substantially follow the order of the "Point Relied On." The argument shall include the applicable standard of review. Id. Moreover, "[a]ll factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal." Id. The argument "should develop the claim of error by showing the interaction between the relevant principles of law and the facts of the particular case." Hubbard, 561 S.W.3d at 461 (internal quotes and citation omitted). "Mere conclusions and the failure to develop an argument with support from legal authority preserve nothing for review." Wallace v. Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018) (internal quotes and citation omitted).

         Mr. Walker's brief fails to comply with Rule 84.04 in a number of ways. He fails to assert a "Point Relied On" challenging the Commission's decision that he failed to demonstrate good cause for his failure to appear. While he does raise the good cause issue in his conclusion, he makes only conclusory claims not supported by legal argument. He fails to set forth the applicable standard of review for that issue, to present legal authority or argument for reversal, or to cite to specific page references to the relevant portions of the record.[3]

         Compliance with the briefing requirements of Rule 84.04 is required to give notice to the other party of the precise matters at issue and to ensure that appellate courts do not become advocates for the appellant by speculating facts and arguments that have not been made. Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo. App. E.D. 2005). In Hampton v. Davenport, 86 S.W.3d 494, 496 (Mo. App. S.D. 2002), the Southern District of our court dismissed an appeal for briefing deficiencies, noting the importance of giving the court and other parties notice of the issues on appeal:

Rule 84.04 mandates what an appellant's brief shall contain. Violations of Rule 84.04 are grounds for a court to dismiss an appeal. Whether an appeal will be dismissed for failure to comply with Rule 84.04 is discretionary. That discretion is generally not exercised unless the deficiency impedes disposition on the merits. A brief impedes disposition on the merits where it is so deficient that it fails to give notice to [the court] and to the other parties as to the issue presented on appeal.
The garnishee's appellant's brief impedes disposition of the case on its merits. It does not identify any issue that permits meaningful review. It is the appellant's obligation to identify, with particularity, the proposition on which the party relies and to provide accurately referenced authority for the proposition. Likewise, an appellant's obligation includes providing authority in support of alleged trial court errors with accurate citations to that authority. Were the appellate court to undertake these things when an appellant has failed to do them, the appellate court would be assuming the role of advocate. It is not the function of the appellate court to serve as advocate for any party to an appeal.

Id. at 496 (internal quotations and citations omitted).

         Mr. Walker's brief discussion in his conclusion of the reasons he did not call into the hearing does not adequately identify the proposition on which he relies or provide authority for that proposition to permit meaningful review. Again, Mr. Walker does not even mention the phrase "good cause" in his brief. To engage in a good cause analysis, therefore, would require this court to assume the role of advocate for Mr. Walker on appeal, which we cannot do. Having failed to properly raise or brief the grounds upon which the Commission dismissed his claim, Mr. Walker presents no appealable issue for this court to review.[4]

         The appeal is dismissed.

          Thomas N. Chapman, Judge, ...


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