MILTON PILATE v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND POWELL TRANSPORTATION COMPANY
NO. 2018-CC-00964-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
DATE OF JUDGMENT: 06/22/2018
MILTON PILATE APPELLANT
v.
MISSISSIPPI DEPARTMENT OF
EMPLOYMENT SECURITY AND POWELL
TRANSPORTATION COMPANY
APPELLEES
DATE OF JUDGMENT: 06/22/2018
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MILTON PILATE (PRO SE)
ATTORNEYS FOR APPELLEE: JAMES RANDALL BUSH
ALBERT B. WHITE
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: REVERSED AND REMANDED - 07/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
¶1. In this unеmployment-benefits case, Milton Pilate appeals the Hinds County Circuit
Court’s dismissal of his appeal from the Mississippi Department of Employment Security’s
Board of Review (the Boаrd). Two years after Pilate’s appeal, the circuit court dismissed the
appeal with prejudice under Mississippi Rules of Appellate Procedure 2(a)(2) and 31(d).
Pilate then appealed the circuit court’s dismissal. Finding that the circuit clerk must issue
Pilate appropriate notice before a dismissal, we reverse and remand without reaching the
merits of the Board’s decision.
FACTS AND PROCEDURAL HISTORY
¶2. In Octobеr 2014, Pilate began working as an over-the-road truck driver for Powell
Transportation Company (Powell) in Flowood, Mississippi. On February 24, 2016, Dr.
Latoya Bullock of Central Mississippi Health Services diagnosed Pilate with vertigo and
treated him with medication. Dr. Bullock recommended that Pilate not drive again until his
symptoms were resolved. After starting the medication, Pilate’s symptoms subsided, so he
continued working.
¶3. On March 15, 2016, Pilate was driving a work truck from Tennessee to Louisiana.
He was without medication when his symptoms reoccurred in Wiggins, Mississippi. Instead
of continuing his route to Louisiana, Pilate drоve to Powell’s Flowood terminal. He arrived
there around 3 a.m. Pilate returned his truck, cleaned it out, and turned in his keys and fuel
card. He did not notify anyone at Powell of what happеned nor did he show up for work the
next day. Pilate’s manager assumed he had quit. On March 17, 2016, Pilate called his
manager and said that he was back on his medication, feeling better, and ready to work. The
manager informed Pilate that he would need to check with the owner. According to Pilate,
no one ever contacted him.
¶4. On March 23, 2016, Pilate filed his initial claim for unemployment benefits with the
Mississippi Department of Employment Security (MDES). An MDES claims examiner
investigated the circumstances surrounding Pilate’s departure and determined that Pilate was
disqualified from receiving unemployment benefits under Mississippi Code Annotated
section 71-5-513(A)(1)(a) (Rev. 2011) because he left his job without good cause.1 On April
14, 2016, Pilate appealed to the administrative
hearing with Pilate and his manager on June 8, 2016, the AJ likewise denied Pilate’s claim
for unemployment bеnefits. On June 16, 2016, Pilate appealed the AJ’s decision to the
Board. On June 27, 2016, the Board adopted the AJ’s findings of fact and opinion and
affirmed his decision.
¶5. On July 5, 2016, Pilate appealed the Board’s decisiоn to the Hinds County Circuit
Court. MDES filed the record and its answer one month later. Pilate did nothing. Pilate’s
attorney filed an entry of appearance on May 25, 2017. On June 5, 2017, Pilate’s attorney
filed a mоtion to withdraw as counsel of record. The court entered an order granting the
motion and stated that Pilate had sixty days to obtain substitute counsel or notify the court
that he intended to proceed pro se.2 On July 5, 2017, Pilate filed an “answer” or response to
the order, stating he “ha[d] no choice but to proceed . . . pro se.” From that point, Pilate took
no further action.
¶6. On December 14, 2017, MDES filed a motion to dismiss with prejudice in accordance
with Mississippi Rules of Appellate Procedure 2(a)(2) and 31(d). On June 22, 2018, the
circuit court granted the motion, stating that Pilate had failed to file his appellant’s brief after
receiving notification of the deficiеncy. Aggrieved, Pilate appeals.
STANDARD OF REVIEW
¶7. We review questions of law and legal conclusions de novo. Belmont Holding LLC v. Davis Monuments LLC, 253 So. 3d 323, 326 (¶12) (Miss. 2018) (citing Aladdin Constr. Co. v. John Hancock Life Ins. Co., 914 So. 2d 169, 174 (¶8) (Miss. 2005)).
DISCUSSION
¶8. While Pilate argues the merits of the Board’s denial of his request for unemployment
benefits, the circuit court’s dismissal was based solely on Pilate’s failure to file a brief. Rule
5.06 of the Uniform Civil Rules of Circuit and County Court Practice provides that “[b]riefs
filed in an appeal on the record must conform to the practice in the Supreme Court, including
form, time of filing[] and service . . . . The consequences of failure to timely file a brief will
be the same as in the Suprеme Court.” Therefore, this appeal from the MDES to the circuit
court is controlled by the Mississippi Rules of Appellate Procedure.
¶9. The supreme court adheres to Mississipрi Rule of Appellate Procedure 31(b), which
states that “[t]he appellant shall serve and file the appellant’s brief within 40 days after the
date on which the record is filed.” Here, MDES filеd the record with the circuit clerk on
August 4, 2016. Between August 4, 2016, and the court’s dismissal on June 22, 2018, Pilate
never filed an appellant’s brief or a request for additional time to file a brief. Mississippi
Rule оf Appellate Procedure 31(d) details the consequences for failure to file a timely brief:
“If an appellant fails to file the appellant’s
within the time as extended, the appeal may be dismissed on motion of appellee or on the
Supreme Court’s own motion as provided in Rule 2.”
¶10. Here, MDES filed a motion to dismiss Pilate’s case under Rules 31(d) and 2(a)(2).
Rule 2(a)(2) reads:
An appeal may be dismissed upon motion of a party or on motion of the
appropriаte appellate court (i) when the court determines that there is an
obvious failure to prosecute an appeal; or (ii) when a party fails to comply
substantially with these rules. When either court, on its own motion or on
motion of a party, determines that dismissal may be warranted under this Rule
2(a)(2), the clerk of the Supreme Court shall give written notice to the party
in default, apprising the party of the nature of the deficiency. If the party in
default fails to correct the deficiency within fourteen (14) days after
notification, the appeal shall be dismissed by the clerk of the Supreme Court.
(Emphasis added). While the Rule literally requires “the clerk of the Supreme Court” to
issue the written notice of deficiency, the suрreme court has held that the circuit court clerk
bears that responsibility when an appeal is taken in circuit court. See Van Meter v. Alford, 774 So. 2d 430, 432 (¶3) (Miss. 2000) (stating that “the court clerk (the circuit clerk in this
instance) [shall] officially notify an appellаnt of deficiencies in his appeal and that the
appellant be given fourteen (14) days therefrom to correct any deficiencies”).
¶11. While the circuit judge’s order dismissing Pilate’s сase states that Pilate received
“notification of the deficiency and opportunity to correct said deficiency,” the record lacks
any verification of a written notice. The only indication from the record that Pilate received
notice comes from MDES’s motion to dismiss.3 Even so, our supreme court has specifically
held that “[a] motion to dismiss cannot be substituted for an official notice of deficiencies
from the court clerk.” Id. at (¶4). More recently, this Court applied the same rule in Thomas v. Five County Child Development Program Inc., 958 So. 2d 247, 251-52 (¶17) (Miss. Ct.
App. 2007), nоting that Rule 2(a)(2) mandates notice before dismissal.4 Further, the official
comment to the Rule defines what constitutes proper notice:
Where dismissal appears warranted for any . . . reason [other than failure to
timely file a notice of appeal], the rulе provides for the clerk to give written
notice of the deficiency to counsel for
clerk will notify counsel that the party is in default in some manner and has 14
days to correct the noted deficiency.
¶12. On a review of the record, nowhere does it appear that the circuit clerk gave Pilate
written notice of his deficiencies and fourteen days in which to cure any deficiencies before
the court dismissed the appeal. Since the supreme court has held that the notice provision
of Rule 2(a)(2) applies in a circuit court when sitting as an appellate court, such notice was
required before the аppeal could be dismissed. Therefore, we find that the circuit court erred
in dismissing Pilate’s appeal. We reverse and remand the case to the circuit court with
instructions that Pilate be given proper notice and an opportunity to cure deficiencies.
¶13. REVERSED AND REMANDED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ.,
CONCUR.
Notes
An individual shall be disqualified for benefits:
For the week, or fraction thereof, which immediately follows the day on which
he left work voluntarily without good cause, if so found by the department,
and for each week thereafter until he has earned remuneration for personal
services performed for an еmployer, as in this chapter defined, equal to not
less than eight (8) times his weekly benefit amount, as determined in each
case . . . .
Neither the attorney’s motion to withdraw nor his certificate of service show that he sent a
copy of the motion to Pilate per Uniform Circuit and County Cоurt Rule 1.13 and
Mississippi Rule of Appellate Procedure 46(c). His motion is also problematic because it
was not “accompanied by an appearance form оf substitute counsel or a signed statement by
the client that the client agrees to proceed pro se” or an explanation as to why he could not
provide either document. M.R.A.P. 46(c).
a status hearing held on June 12, 2017, the circuit judge informed Pilate that his appeal had
not progressed because of his failure to file a briеf. On May 25, 2017, Pilate filed a “notice
of status conference hearing,” informing MDES that a hearing was set for June 12, 2017.
However, the hearing itself is not listed on the docket, and the record contains no documents
or transcript related to the hearing. Even if the circuit judge gave Pilate notice of his
deficiency at the hearing, that notice is still insufficient under Rule 2(a)(2).
dealt with this issue. See, e.g., Thomas; Fields v. City of Clarksdale, 27 So. 3d 464, 467 (¶9)
(Miss. Ct. App. 2010); Blackwell v. Howard Indus. Inc., 98 So. 3d 463, 467 (¶11) (Miss. Ct.
App. 2012). It seеms every few years this Court rules in another case that the Rules of
Appellate Procedure apply to the trial clerks and trial courts when a trial court is sitting as
an appеllate court. Perhaps it is time to amend the Mississippi Rules of Appellate Procedure
to clarify when the appellate rules apply “when the trial court is sitting as an appellate
court.”