Kouadio-Tobey v. Div. of Emp't Sec.
| Decision Date | 30 August 2022 |
| Docket Number | WD 85197 |
| Citation | 651 S.W.3d 839 |
| Parties | Lee KOUADIO-TOBEY, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent. |
| Court | Missouri Court of Appeals |
Lee Kouadio-Tobey, Appellant Acting Pro Se.
Marie Claire Dwyer, Jefferson City, MO, for Respondent.
Before Division Three: Cynthia L. Martin, Presiding Judge, Lisa White Hardwick, Judge, W. Douglas Thomson, Judge
Lee Kouadio-Tobey ("Claimant") appeals from a decision by the Labor and Industrial Relations Commission ("Commission") that concluded that Claimant did not timely appeal from the Division of Employment Security's denial of a claim for unemployment benefits. Because Claimant's brief materially violates Rule 84.04, no issues are preserved for our review and the appeal is dismissed.
On November 16, 2020, Claimant filed a claim for unemployment benefits after being laid off on November 13, 2020. The Division of Employment Security determined that Claimant was entitled to a weekly benefit of $320, with a maximum benefit amount of $6,400.
Claimant filed a claim for unemployment benefits for the week of December 27, 2020 ("December 27, 2020 claim"). On January 29, 2021, the Division of Employment Security mailed Claimant the deputy's determination ("deputy's determination") denying the December 27, 2020 claim. The deputy's determination reasoned that "[t]he originating point of the claim is outside the area defined as a state for the purposes of Missouri unemployment insurance." The deputy's determination further stated: The deputy's determination notified Claimant that any appeal from the determination must be filed no later than March 1, 2021. Claimant appealed the deputy's determination to the Appeals Tribunal on June 28, 2021.
On September 7, 2021, the Appeals Tribunal held a telephone hearing to consider Claimant's appeal. Because the Division of Employment Security's records indicated that Claimant's appeal was not timely, the issue before the Appeals Tribunal was "whether good cause existed for the claimant to file a late appeal."
In addition to receiving documents from the Division of Employment Security regarding the December 27, 2020 claim, Claimant testified. Claimant testified that he left the country for Africa on December 28, 2020, and was there until his return to the United States on January 19, 2021. Claimant testified that, when he returned, he saw that the deputy's determination had been posted to his online unemployment portal. He then called the Division of Employment Security to advise that he had returned to the country. Claimant testified that the employee with whom he spoke said that the process "would take a bit of time." Claimant testified that he continued to call the Division of Employment Security regularly until June 2021, when he decided to file an appeal from the deputy's determination.
The Appeals Tribunal issued its decision on November 23, 2021 ("Appeals Tribunal's Decision"). The Appeals Tribunal's Decision concluded that Claimant's appeal was untimely, and that there was no good cause to extend the filing period "because this is not a situation in which circumstances were outside of the claimant's control and because the claimant did not act reasonably under the circumstances."
Claimant appealed the Appeals Tribunal's Decision to the Commission. On January 13, 2022, the Commission issued its decision affirming the Appeals Tribunal's decision and adopting it as its own ("Commission's Decision").
Claimant appeals.
Before we reach the merits of Claimant's appeal, we must consider the Division of Employment Security's argument that, because Claimant's brief failed to follow the briefing requirements set forth in Rule 84.04,2 dismissal of Claimant's appeal is warranted. Rule 84.04 sets forth the required contents of every appellate brief filed in Missouri appellate courts, and failure to comply substantially with these mandatory requirements preserves nothing for review. Lexow v. Boeing Co. , 643 S.W.3d 501, 505, 509-10 (Mo. banc 2022). Self-represented litigants, like Claimant, are held to the same standards as attorneys, and their briefs must comply with Rule 84.04. Craig v. Craig , 644 S.W.3d 857, 861 (Mo. App. W.D. 2022).
Claimant's brief does not comply with Rule 84.04 in several respects. We first note that Claimant's brief introduces new facts in its statement of facts in violation of 84.04(c)’s requirement that the statement of facts "be a fair and concise statement of the facts relevant to the questions presented for determination without argument," and contrary to the purpose of the statement of facts, which "is to afford an immediate, accurate , complete and unbiased understanding of the facts of the case." Vogel v. Steffen , 628 S.W.3d 224, 226 (Mo. App. W.D. 2021) (emphasis added) (quoting Lattimer v. Clark , 412 S.W.3d 420, 422 (Mo. App. W.D. 2013) ). Further, Claimant fails to include specific page references to the record on appeal after each statement of fact in violation of Rule 84.04(c), a requirement that exists "because ‘courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record.’ " Brown v. Brown , 645 S.W.3d 75, 83 (Mo. App. W.D. 2022) (quoting Sharp v. All-N-One Plumbing , 612 S.W.3d 240, 245 (Mo. App. W.D. 2020) ).
Claimant's single point relied on fails to follow the format mandated by Rule 84.04(d)(2). "The function of [points relied on] is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review." Lexow , 643 S.W.3d at 505 (quoting Wilkerson v. Prelutsky , 943 S.W.2d 643, 647 (Mo. banc 1997) ). Rule 84.04(d)(2), applicable to appeals from the decision of an administrative agency, provides a point relied on must:
The rule then provides the following template for the appellant to follow:
The [name of agency ] erred in [identify challenged ruling or action ], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review ], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error ].
Rule 84.04(d)(2). Claimant's point relied does not follow this template, and reads as follows: "The [Commission] erred in determining that I did not file my appeal timely and that I had full control over the situation and to the Division of Employment Security this is a violation." This point relied on is grammatically nonsensical. And though the point relied on claims error in the ultimate determination by the Commission that Claimant's appeal was untimely, it does not state "wherein and why" the Commission erred in concluding that Claimant's concededly untimely appeal should not be excused on the basis of good cause shown. The point relied on is not in compliance with Rule 84.04(d)(2) and preserves nothing for review. Lexow , 643 S.W.3d at 505.
The argument portion of Claimant's brief also fails to comply with Rule 84.04(e), which provides:
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