Gaylon Frazier, Claimant/Appellant, v. Laidlaw Transit, Inc., and Division of Employment Security, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Gaylon Frazier, Claimant/Appellant, v. Laidlaw Transit, Inc., and Division of Employment Security, Respondents. Case Number: ED87359 Handdown Date: 05/30/2006 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Party Acting Pro Se Counsel for Respondent: Cynthia A. Quetsch Opinion Summary: Gaylon Frazier appeals from the labor and industrial relations commission's decision affirming the appeals tribunal's decision to dismiss his appeal regarding his unemployment benefits. REVERSED AND REMANDED WITH DIRECTIONS. Division Five holds: Frazier did not need to sign his initial appeal to the appeals tribunal and, because it was filed within 30 days of the deputy's determination, it is timely under section 288.070.4, RSMo 2000. Citation: Opinion Author: Glenn A. Norton, Chief Judge Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Knaup Crane and Shaw, JJ., concur. Opinion: Gaylon Frazier (Claimant) has appealed from the decision of the Labor and Industrial Relations Commission (Commission) affirming the decision of the Appeals Tribunal to dismiss his appeal regarding his unemployment benefits. We reverse and remand with directions. On August 1, 2005, a deputy for the Division of Employment Security (Division) determined that Claimant was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with his

work. On August 29, 2005, Claimant mailed an appeal to the Division, seeking review with the Appeals Tribunal. The Division received this appeal on August 30, 2005, but returned it to Claimant because he had not signed the appeal letter. On September 7, 2005, Claimant mailed the appeal again, along with a yellow post-it note that stated, "I had to sign and re-send it out again. So the date will be a little off." On September 19, 2005, the Appeals Tribunal dismissed Claimant's appeal because it was not filed in a timely fashion by August 31, 2005. Claimant filed an application for review with the Commission, which affirmed the Appeals Tribunal's decision. Claimant has now appealed to this Court. The Division has filed a motion to reverse and remand the Commission's decision. The Division asserts that Claimant's initial appeal to the Appeals Tribunal, although unsigned, was valid and the Tribunal erred in dismissing his appeal. Neither Claimant nor his employer has filed a response to the motion. This precise issue was recently addressed by the Western District of the Missouri Court of Appeals in Rector v. Kelly, 183 S.W.3d 256 (Mo. App. W.D. 2005). In that case, the Appeals Tribunal had dismissed a claimant's appeal because the appeal had not been signed by the claimant's attorney. The Division had argued that a state regulation, 8 CSR 10-5.010, required the appeal to be signed, and that the regulation must be "rigidly and fully complied with as an absolute jurisdictional prerequisite to review of a Deputy's determination by the Appeals Tribunal. . . ." Id. at 261. The Western District rejected this argument, concluding that 8 CSR 10-5.010 does not "clearly, unambiguously, or unequivocally mandate that either the appellant or his or her licensed attorney-representative sign the notice of appeal as a jurisdictional condition precedent . . . ." Id. Indeed, the court concluded that any "reasonable method calculated to accomplish the purposes of the rule" should suffice and a party should not suffer if he or she has made a "good faith attempt to comply with a rule, which is not mandatory by its terms, by use of a method which satisfactorily accomplishes the aim of the rule." Id. at 262. The reasoning of the Western District is sound and we adopt it. Consequently, Claimant did not need to sign his initial appeal to the Appeals Tribunal and since it was filed within 30 days of the deputy's determination, it is timely under section 288.070.4, RSMo 2000.(FN1) The Division's motion to remand is granted.(FN2) The decision of the Commission is reversed and the cause is remanded to the Commission with directions to set aside its decision and remand the case to the Appeals Tribunal for a hearing on the merits. Footnotes: FN1. In addition, section 288.070 does provide for filing a late appeal of a deputy's determination to the Appeals Tribunal "for good cause." Section 288.070.8.

FN2. The Division has also filed a motion to strike Claimant's brief, which is denied. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.