                     In the Missouri Court of Appeals
                             Eastern District

                                       DIVISION TWO

MICHELE PINKOWSKI,                                  )       No. ED101581
                                                    )
       Claimant/Respondent,                         )
                                                    )
vs.                                                 )       Appeal from the Labor and
                                                    )       Industrial Relations Commission
WASHINGTON UNIVERSITY,                              )
                                                    )
       Respondent,                                  )
                                                    )
and                                                 )
                                                    )
DIVISION OF EMPLOYMENT SECURITY,                    )       Filed: December 30, 2014
                                                    )
       Appellant.                                   )


                                          Introduction

       This appeal arises out of a claim for unemployment benefits filed by Michele Pinkowski

(Claimant), which was contested by her employer, Washington University (Employer). After an

initial determination that Claimant was not disqualified from receiving benefits, Employer filed a

notice of appeal with the Appeals Tribunal, contesting the claim. The Appeals Tribunal found

that Employer’s appeal was not lawfully filed and dismissed the appeal without reaching the

merits of whether Claimant was disqualified for benefits. Employer filed an application for

review with the Labor and Industrial Relations Commission (Commission). After reviewing the

case, the Commission issued a decision, reversing the Appeals Tribunal’s dismissal, and
affirming the deputy’s determination that Claimant was not disqualified from receiving benefits.

On appeal, the Division of Employment Security (Division) claims the Commission erred in

reversing the Appeals Tribunal’s dismissal because Employer’s appeal was not lawfully filed.

We dismiss the appeal.

                                                Background Facts

         In December 2013, Michele Pinkowski (Claimant) worked for Washington University

(Employer) in a position that lasted one day. Claimant subsequently filed a claim for

unemployment benefits, which Employer contested. After an investigation, a deputy from the

Division determined that Claimant was not disqualified from receiving benefits and Employer

appealed.      On behalf of Employer, Jennifer DeLatour, who was identified as “Employee

Relations,” for Employer, drafted, signed, and sent a letter notifying the Appeals Tribunal of

Employer’s intent to appeal the deputy’s decision. In February 2014, the Appeals Tribunal held

a telephone hearing and questioned DeLatour regarding the status of her position with Employer.

DeLatour indicated that she was in a contractual position and filling a managerial role until

Employer could fill the position with a permanent employee. DeLatour also testified that she

prepared, signed, and filed the notice of appeal letter on behalf of Employer.

         Following the hearing, the Appeals Tribunal issued its decision, dismissing Employer’s

appeal on the grounds that the appeal was not lawfully filed because DeLatour was an

independent contractor, and not the “employing unit which employed claimant,” or a lawful

representative of Employer under Rule 5.29 (c).1 The Appeals Tribunal did not reach the merits

of the appeal to determine whether Claimant was disqualified from receiving benefits.


1
 Rule 5.29(c) provides that, “[i]n an employment security proceeding before the state division of employment
security, a corporation, partnership or other business entity . . . may be represented by an officer of the entity or a
person in the full-time employment of the entity in a managerial capacity who shall be afforded the opportunity to
participate in the proceeding.”


                                                            2
        In March 2014, Employer filed an application for review with the Commission. In May

2014, the Commission issued its decision, reversing the Appeals Tribunal’s dismissal of

Employer’s appeal. In its decision, the Commission found that the letter signed by DeLatour and

sent to the Appeals Tribunal on Employer’s behalf was “sufficient to apprise anyone reading it”

of Employer’s intent to appeal the deputy’s determination. The Commission also found there was

no cause on the record to deny Employer’s appeal on the basis that to do so would permit

DeLatour to engage in the unauthorized practice of law. The Commission also addressed the

“benefits qualification” issue on its merits and found in favor of Claimant. The Division appeals.

        In its sole point on appeal, the Division contends that the Commission erred in reversing

the Appeals Tribunal’s dismissal because Employer’s appeal was not lawfully and timely filed.

The Division maintains that DeLatour’s attempt to file an appeal on Employer’s behalf

constituted the unauthorized practice of law because she was not an officer or full-time

managerial employee for Employer under Rule 5.29(c).

        In response, Employer asserts that the Division lacks standing to appeal. Employer also

maintains that the issue is moot because the Division fails to raise a justiciable issue on appeal, in

that, it is not challenging the Commission’s decision regarding Claimant’s benefits or any

existing immediate justiciable controversy, and instead, is seeking an advisory opinion on a

collateral legal issue that will have no bearing on the merits or outcome of this case.

        “Although sometimes referred to in terms of jurisdiction, . . . the concept of standing is

better understood as a matter of justiciability, that is, of a court’s authority to address a particular

issue when the party suing has no justiciable interest in the subject matter of the action.”

Schweich v. Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013). Standing is a prerequisite to this

Court’s authority to address the substantive issues and must be addressed before all other issues.




                                                   3
Id. A party seeking relief has the burden to establish that it has standing to maintain its claim.

Borges v. Missouri Public Entity Risk Management Fund, 358 S.W.3d 177, 181 (Mo. App. W.D.

2012). Whether a party has standing is an issue of law that we review de novo. Manzara v. State,

343 S.W.3d 656, 659 (Mo. banc 2011).

       The issue of standing was recently addressed by this Court’s Southern District in Howard

v. Joplin Stone Co., WL 4744195; --- S.W.3d --- (Mo. App. S.D. Sept. 2014), rehearing denied,

(Oct.16, 2014); transfer denied, (Mo. banc Nov. 25, 2014). In Joplin Stone, the Court dismissed

a virtually identical appeal by the Division. In that case, the employer (Joplin Stone Company)

contested a claim for unemployment benefits filed by a former employee. After a deputy

determined that the claimant was not disqualified from receiving benefits, the employer filed an

appeal with the Appeals Tribunal. The appeal was filed by an individual who was identified as

the “Human Resources” manager for Joplin Stone.            Subsequently, the Appeals Tribunal

determined that Joplin Stone’s appeal was not lawfully filed based on its finding that the appeal

was not “drafted, signed and filed” by an officer or full-time managerial employee for Joplin

Stone pursuant to Rule 5.29(c). The appeal was dismissed without reaching the merits of

whether the claimant was disqualified from receiving benefits. After Joplin Stone filed an

application for review, the Commission reversed the dismissal and addressed the merits of the

benefits claim, finding in favor of the claimant. The Division appealed the Commission’s

reversal, arguing that the Commission erred in reversing the Appeals Tribunal’s dismissal

because Joplin Stone’s appeal was not lawfully filed by an officer or full-time managerial

employee of the company.

       In determining that the Division lacked standing, the Joplin Stone Court found that the

Division was not an “aggrieved” party and dismissed the appeal. In its decision, the Court




                                                4
addressed the statutory language set forth in § 288.210,2 regarding which parties may appeal a

decision of the Commission, noting in pertinent part:

         Section 288.210 provides that ‘the director or any party aggrieved’ by a decision of the
         Commission may appeal that decision. The key language in this section is that a party must
         be ‘aggrieved’ by the decision of the Commission. Here, there is no doubt that the Division
         is an appropriate party. However, the Division has not been aggrieved by this decision.
         [Emphasis added].

         Pursuant to the statutory language of § 288.210, the Southern District found that the

Division was not “aggrieved” by the Commission’s decision because it had “no stake in th[e]

outcome.”3 In reaching this conclusion, the Court noted that a party is “aggrieved” when “the

judgment operates prejudicially and directly on a party’s personal or property rights or interest

and such effect is an immediate and not merely as possible remote consequence.” (citation and

quotation omitted). The Court also noted that counsel for the Division had acknowledged during

oral argument that there were other alternatives available to accomplish their objective.

         Here, the Division did not raise the issue of standing in its original brief. However, in its

responsive brief to Employer’s argument, the Division maintains that it has standing to appeal

based on a statutory right as an “aggrieved” party and based on an “automatic” right to appeal

pursuant to § 288.210. Specifically, the Division claims that it is not required to be “aggrieved”

by the Commission’s decision because it has an “automatic” right to appeal under § 288.210.

The Division asserts that the legislature’s removal of the word “other” from the statutory

language in 1995 changed the plain meaning of the statute to grant the Division an “automatic”

right to appeal regardless of whether it is “aggrieved” by the Commission’s decision.4

         The Court in Joplin Stone specifically addressed § 288.210 in determining whether the

Division had standing to appeal the Commission’s decision. In accordance with the plain
2
  All statutory references are to RSMo (Supp. 2012), unless otherwise indicated.
3
  In Joplin Stone, the Division had appealed purportedly to protect its own legal personnel from anticipated
discipline by the office of the disciplinary counsel. See Joplin Stone, supra.
4
  The prior version of § 288.210 read, in pertinent part, “the director or any other party aggrieved.”


                                                          5
language and meaning of the statute, the Court concluded that the Division was not an

“aggrieved” party within the meaning of the statute and therefore lacked standing.5 It is evident

from the conclusion reached in Joplin Stone that the Court’s holding reflects a clear mandate

requiring a party to be “aggrieved” by the Commission’s decision in order to have standing to

appeal. In the absence of convincing authority and reasons to the contrary, we are persuaded and

compelled to follow the Court’s sound reasoning.6

         Notwithstanding the Court’s clear mandate in Joplin Stone regarding the lack of standing,

the Division, in this case, urges us to reach the opposite conclusion. The Division claims that it

is an “aggrieved” party because as the “administrator of the UI trust fund, it must protect funds

and accounts via a system of interpretation and application,” and the Commission’s decision

would cause the system to lose uniformity. The Division asserts that without a definitive

decision as to whether filing an appeal with the Appeals Tribunal constitutes the practice of law,

future claims dispute cases will continue to be dismissed by the Appeals Tribunal and reversed

by the Commission, which in turn, would affect the Division’s procedures and the manner in

which it conducts hearings. The Division also urges us to exercise our discretion to consider this

issue because it involves a matter of “general public interest.”

         It is well-settled that appellate courts do not render advisory opinions, Maples v.

Department of Social Services, 11 S.W.3d 869, 874 n.7 (Mo. App. S.D. 2000), or determine

speculative issues for the benefit of other cases arising in the future where a judgment rendered

would have “no practical effect upon a then existing controversy.” See Henning v. Board of

Election Comm’rs of St. Louis County, 787 S.W.2d 742, 744 (Mo. App. E.D. 1989).


5
  This is consistent with the statutory language found in other sections of Chapter 288, i.e., § 288.200.2,which states,
in pertinent part: “[j]udicial review of any decision of the commission shall be permitted only after the party
claiming to be aggrieved thereby has exhausted the administrative remedies as provided by law[.]”
6
  Application to the Missouri Supreme Court for transfer in Joplin Stone was denied in November 2014.


                                                           6
        The issue presented by the Division concerns a collateral legal matter for which there are

alternative means available for accomplishing their objectives. The determination sought by the

Division would have no practical effect with respect to Claimant’s benefits or any other existing

immediate justiciable controversy. Therefore, in accordance with Joplin Stone, we hold the

Division is not aggrieved by the Commission’s decision and therefore lacks standing. We

dismiss the appeal.



                                             _________________________________
                                             Philip M. Hess, Judge

Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.




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