City of Jennings v. Division of Employment Sec., 70893

Decision Date08 April 1997
Docket NumberNo. 70893,70893
PartiesCITY OF JENNINGS, Appellant, v. DIVISION OF EMPLOYMENT SECURITY and Tim Jones, Respondents.
CourtMissouri Court of Appeals

Lloyd E. Eaker & Jamis Kresyman, Clayton, for appellant.

Alan J. Downs and Ninion S. Riley, St. Louis, for respondent Mo. Dept. of Labor/Ind.

Rick Barry, Althea P. Johns, The Law Offices of Rick Barry, St. Louis, for respondent Tim Jones.

KAROHL, Judge.

The City of Jennings (City) appeals a decision of the Labor and Industrial Relations Commission (Commission) ruling Tim Jones (Jones), a former police officer of the City, was not disqualified from unemployment compensation benefits when the City discharged Jones on January 23, 1996. The City argues "[JONES] WAS DISCHARGED FOR MISCONDUCT CONNECTED WITH WORK," thus, he is disqualified from receiving unemployment benefits. When an employee is terminated for misconduct connected with the employee's work, the Division of Employment Security may disqualify the claimant from receiving unemployment benefits for a period up to sixteen weeks; if the misconduct is sufficiently egregious, the claimant may be denied benefits entirely. Section 288.050.2 RSMo 1994. After reviewing the evidence, the Commission found "the claimant's discharge on January 23, 1996, was not for misconduct connected with his work." We affirm the Commission's decision.

This court has jurisdiction to decide this controversy pursuant to § 288.210 RSMo Supp.1995. We review "[t]he findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, [they] shall be conclusive, and [our jurisdiction] shall be confined to questions of law." Id. Thus, if the Commission's findings are supported by substantial evidence, it is our duty to affirm that decision even if we might have reached a different conclusion from the evidence.

In order for this court to perform its role of judicial review after a decision by the Commission, the aggrieved party must follow various appeal procedural steps, including submitting briefs to the court. See generally, Rule 81. The required contents of the brief are set forth in Rule 84.04. A significant section of that rule requires appellant to provide "points relied on." The points relied on shall state briefly and concisely what actions or rulings of the Commission are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations or authorities thereunder. Rule 84.04(d).

In this case, the City failed to conform to the requirements of Rule 84.04(d). The Missouri Supreme Court, in the renowned case of Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978), stated:

The requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or matter of hypertechnicality on the part of appellate courts. It is rooted in sound policy. Perhaps the most important objective of the requirement relative to the points relied on is the threshold function of giving notice to the party opponent of the precise matters which must be contended with and answered. Absent that, it is difficult, at the very least, for respondent's counsel to properly perform his briefing obligation.... In addition, such notice is essential to inform the court of the issues presented for resolution.


The more invidious problem is that the court may interpret the thrust of the contention differently than does the opponent or differently than was intended by the party asserting the contention. If that happens, the appellate process has failed in its primary objective of resolving issues raised and relied on in an appeal.

Id. at 686. In Thummel the court affirmed the decision of the court of appeals' decision not to consider appellant's points relied on which failed to comply with Rule 84.04(d). The City's brief in this case consisted of a simple, one issue "point relied on" which made no attempt to address wherein and why the Commission erred.

However, we will review on the merits. Jones did not move for dismissal, nor did the Division of Employment Security. Both filed their briefs in a timely fashion and appear to have addressed the issue the City was disputing. Also, the City substantially complied with Rule 84.04(d) in its reply brief by expanding the point relied on. We note that when a reply brief raises new points, courts will not consider such arguments. See, Knopke v. Knopke, 837 S.W.2d 907, 923 (Mo.App. W.D.1992). Whether a reply brief can correct the deficiencies contained in an appellant's original brief is an issue we need not decide on present facts. The conclusion reached by the Missouri Supreme Court in Independent Stave Co., Inc. v. Higdon, 572 S.W.2d 424 (Mo. banc 1978), decided one month after Thummel, supra, seems appropriate here. In Independent Stave Co. Inc., the court noted that the appellants' original brief did not comply with the wherein and why requirements of Rule 84.04(d), but decided "some of those deficiencies are supplied in appellants' reply brief and we have concluded that the appeal should not be dismissed." Id. at 430. This comports with the court's reasoning that "[t]he final disposition of an appeal based on a failure to comply with the appellate briefing rules has long been a matter of great concern in this court. On numerous occasions we have expressed our reluctance to punish innocent parties for the shortcomings of counsel on appeal. As we have often declared, it is the policy of this court to decide cases on the merits whenever possible." Thummel, 570 S.W.2d at 690.

Jones was employed as a police officer for six years with the City before being terminated on January 23, 1996. The City opposed Jones' unemployment claim on the contention he was terminated by the mayor and city council for violations of police regulations and insubordination. The City alleged that three separate incidents resulted in Jones' termination. First, in January, 1995, Jones left the City's jurisdiction while on duty without obtaining permission Second, in February, 1995, Jones was outside of his jurisdiction again without permission. Jones was suspended for two days in June, 1995, in connection with the January incident, and notified that further violations could result in his termination. Finally, in December, 1995, Jones was insubordinate when he failed to present a medical note concerning a surgery procedure he was scheduled to undergo. The City's Chief of Police ordered Jones to produce the medical note before December 8, 1995, the scheduled date of Jones' surgery. In the evidentiary record before the Commission, the Chief of Police testified the medical note was not delivered by Jones until December 18, 1995; thus, Jones was insubordinate for failing to produce the medical note by December 8, 1995, as ordered. Jones and a secretary of the City testified the medical note requested was timely delivered to the City on December 7, 1995. The Commission believed Jones. However, the City argues Jones was terminated due to the December insubordination incident and prior violations of police regulations in January and February. The City argues Jones' actions were sufficient to support a finding he was fired for misconduct connected with work which would disqualify Jones for unemployment benefits.

Following his termination, Jones appealed the decision of the mayor and city council to the police board. The police board took testimony and gathered evidence regarding the termination of Jones. Jones later filed for unemployment compensation benefits with the Division of Employment Security. The City, as Jones' former employer, contested an award of unemployment benefits. A deputy for the Division of Employment Security determined that Jones was not disqualified from receiving benefits because Jones' discharge was not for misconduct connected with work. The deputy noted "THE CLAIMANT WAS DISCHARGED BECAUSE THE EMPLOYER BELIEVED THEY WERE NOT PROPERLY NOTIFIED OF THE CLAIMANT'S DATE FOR SURGERY. THE EMPLOYER WAS


The City appealed the deputy's decision to the Division of Employment Security Appeals Tribunal (Tribunal). Both the City and Jones stipulated that the evidentiary record generated from the police board hearing be used in lieu of testimony before the Tribunal. The police board's findings of fact and conclusions of law were not part of the record considered by the Tribunal, nor are they considered here. The Tribunal considered the matter anew, and found that Jones was not disqualified from receiving unemployment benefits due to misconduct connected with work. On application for review the Labor and Industrial Relations Commission affirmed the Tribunal's decision and adopted the Tribunal's decision as the Commission's decision of the case.

The Missouri Employment Security Law does not define "misconduct" as used in § 288.050.2 RSMo 1994. The Commission relied on the definition of misconduct as articulated in Ritch v. Industrial Commission, 271 S.W.2d 791 (Mo.App.1954):

Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the...

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