                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 94-CC-01296-SCT
MARY B. BANKSTON
v.
MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                            11/21/94
TRIAL JUDGE:                                 HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                   SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      C. EVERETTE BOUTWELL
ATTORNEY FOR APPELLEE:                       JAN D. GARRICK
NATURE OF THE CASE:                          CIVIL - STATE BOARDS AND AGENCIES
                                             (OTHER THAN WORKER'S COMPENSATION)
DISPOSITION:                                 AFFIRMED - 2/13/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     BEFORE DAN LEE, C.J., BANKS AND MILLS, JJ.


     DAN LEE, CHIEF JUSTICE, FOR THE COURT:




                                          SUMMARY

Mary B. Bankston was denied unemployment benefits by the Mississippi Employment Security
Commission, which held that she voluntarily quit her job without cause. The MESC's decision was
affirmed by the Circuit Court of Smith County. Bankston moved the court to set aside the judgment.
Bankston was subsequently notified by letter that the circuit court had decided to re-affirm the
decision of the MESC; however, she was not provided a copy of the final judgment that was entered.
Sixteen months after the circuit court's entry of final judgment in the matter, Bankston filed her
motion to vacate final judgment, which was denied. Aggrieved by the circuit court's ruling on the
matter, Bankston appeals, raising the following as error:

     I. WHETHER WHEN THE CLERK'S OFFICE DOES NOT MAIL COPIES OF FINAL
     JUDGMENTS AND ORDERS TO ATTORNEYS FOR THE PARTIES AT THE TIME
     OF FILING, BECAUSE A SPECIFIC REQUEST TO DO SO WAS NOT MADE BY
     THE ATTORNEYS, THE PARTIES ARE TIME BARRED FROM FILING AN
     APPEAL,

     II. WHETHER THE CIRCUIT COURT ERRED BY ENTERING ITS ORDER
     DENYING APPELLANT'S MOTION TO VACATE ITS FINAL JUDGMENT RE-
     AFFIRMING THE DENIAL OF BENEFITS, AND

     III. WHETHER THE CIRCUIT COURT ERRED BY AFFIRMING THE DECISION
     OF THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION TO DENY
     UNEMPLOYMENT BENEFITS TO MARY B. BANKSTON.

It is the opinion of this Court that the circuit court, acting in its appellate capacity, committed no
error in the present case and, therefore, each of these assignments of error is without merit.

                                    STATEMENT OF THE CASE

Bankston filed an initial claim for unemployment benefits on December 4, 1991, claiming that she had
voluntarily quit work on August 24, 1991. Her claim was denied by a claims examiner and Bankston
timely appealed to the MESC. A hearing was held before a referee where documentary evidence and
testimony were received. The referee found Bankston disqualified from receiving benefits and
affirmed the decision of the claims examiner.

Bankston appealed to the MESC Board of Review which, without a hearing, reviewed the matter on
the record presented, and the Board subsequently affirmed the decision of the referee, denying
Bankston benefits. Aggrieved by this adverse decision, Bankston petitioned the Circuit Court of
Smith County to review the decision of the MESC Board of Review.

The circuit court, in its appellate capacity, reviewed the MESC record and on July 13, 1992, found
the decision of the Board of Review to be "supported by substantial evidence and the applicable law."
Bankston filed a motion to set aside judgment on June 27, 1992, which was denied by the court's
final judgment entered on December 21, 1992.

Although Bankston did not receive a copy of the final judgment when entered, nor did she request a
copy pursuant to local rules, she did receive notice by letter from the Clerk of the Circuit Court of
Smith County that the court was going to re-affirm the MESC's decision.

On March 7, 1994, Bankston filed her motion to vacate final judgment, which was subsequently
denied on November 28, 1994. Aggrieved by the court's decision in the matter, Bankston filed this
appeal on February 23, 1995.

                                   STATEMENT OF THE FACTS

Appellant Bankston worked for Nita's Kwik Kurb for twenty-three years as a cashier/assistant
manager. At the time this case began, she was fifty-eight years of age. Bankston left her employment
in August, 1991, and filed for unemployment benefits effective December 1, 1991.
Kwik Kurb responded in writing to the MESC that Bankston had voluntarily quit. Bankston was
interviewed by the MESC and allegedly told the interviewer that the store owner had repeatedly told
her to sell cigarettes to minors, which she refused to do. Bankston eventually did sell cigarettes to a
minor and was charged with selling tobacco products to a minor. Bankston was eventually found not
guilty of the offense. Bankston also reported that she was the target of harassment from a co-worker
which went uncorrected by the store owner. Robinson, the owner/employer, was also interviewed
and alleged that he did believe the charge was politically motivated, as he was the mayor and a
candidate for the position of tax assessor. He further told the interviewer that he believed the conflict
to be resolved but that Bankston's husband had become involved and this made matters worse. One
week after the talk with the employees, Bankston turned in her keys.

The interviewer recommended that Bankston's claim be allowed. However, a claims examiner denied
her benefits, finding that, although Bankston left her employment due to working conditions, she had
not shown that the working conditions were a detriment to her health, safety or morals. Bankston
appealed.

A series of appeals proved unsuccessful and the matter eventually was affirmed by the Circuit Court
of Smith County. That decision is the subject of this appeal.

                                     STANDARD OF REVIEW

Motions for relief from judgment are generally addressed to the sound discretion of the trial court,
and appellate review is limited to whether that discretion has been abused. State ex rel. Mississippi
Bureau of Narcotics v. One (1) Chevrolet Nova Auto, 573 So. 2d 787 (Miss. 1990); Stringfellow v.
Stringfellow, 451 So. 2d 219 (Miss. 1984).

The scope of review of the findings of an administrative agency is well established. The reviewing
court will entertain the appeal to determine whether or not the order of the administrative agency 1)
was unsupported by substantial evidence, 2) was arbitrary or capricious, 3) was beyond the power of
the administrative agency to make, or 4) violated some statutory or constitutional right of the
complaining party. These are the only grounds for overturning an agency action; otherwise the
agency's determination must remain undisturbed. Mississippi Employment Security Comm'n v.
Harris, 672 So. 2d 739 (Miss. 1996); Mississippi Comm'n on Envtl. Quality v. Chickasaw County
Bd. of Supervisors, 621 So. 2d 1211, 1215 (Miss. 1993).

                                    DISCUSSION OF THE LAW

WHETHER WHEN THE CLERK'S OFFICE DOES NOT MAIL COPIES OF FINAL
JUDGMENTS AND ORDERS TO ATTORNEYS FOR THE PARTIES AT THE TIME OF
FILING, BECAUSE A SPECIFIC REQUEST TO DO SO WAS NOT MADE BY THE
ATTORNEYS, THE PARTIES ARE TIME BARRED FROM FILING AN APPEAL.

Appellant Bankston argues that "parties have a right to know when a final order or judgment is
entered." Bankston argues further that she "should not have to police the docket in order to find out
when a final order or judgment is entered."

Bankston contends that, as a result of the Smith County Circuit Court's policy not to provide copies
of such documents unless requested, it was sixteen months after its entry that she discovered that the
judgment had been entered, thus necessitating the filing of an untimely motion to set aside final
judgment and the untimely appeal to this Court.

Bankston relies on this Court's decision in City of Gulfport v. Saxton, 437 So. 2d 1215 (Miss. 1983),
as authority for the circuit court's error in failing to provide copies and the court's ultimate denial of
her untimely motion to vacate. Citing Saxton, she argues that:

     [w]hen a trial court sits as an appeals court, the parties to an appellate proceedings [sic] may
     reasonably expect notification from the court or its clerk when a ruling is made, without the
     parties having to police the docket as to its final entry . . . .

This Court in Saxton held that:

     Parties to an appellate proceeding may reasonably expect notification from the court or its clerk
     when a ruling is made. We know of no appellate court which requires that parties police the
     docket and fail to do so at their peril. Billy D. Saxton and the City of Gulfport in the 18 months
     prior to September 2, 1981, had every reasonable expectation that each would be notified by
     the court when a decision on the appeal had been made. In this context, it would be intolerable
     to subject Saxton to prejudice and the loss of the rights he has subsequently won because he
     took no action between September 2 and October 15. Such as (sic) result would smack of a
     violation of due process.

City of Gulfport v. Saxton, 437 So. 2d 1215, 1217 (Miss. 1983) (emphasis added).

This assignment of error is without merit. Bankston's counsel admits in her brief that she was notified
by letter from the circuit court clerk that the court had decided to re-affirm the decision of the MESC
denying benefits to Bankston. Her counsel admits further that "in this cause, the Smith County
Circuit Court verbally announced at a motion hearing in this cause, that in this jurisdiction they do
not send out notice or copies unless requested", and that "[Bankston's] counsel did not specifically
request the clerk to send a copy of the final judgment when filed. The reason the request was not
made was that counsel was not aware of the Smith County Circuit Court's policy to not furnish
copies of final orders and judgments unless requested."

In the present case, Bankston filed her appeal of the adverse decision of the MESC in the Circuit
Court of Smith County on May 6, 1992. On July 9, 1992, she received a letter from the circuit court
clerk's office advising the parties that the decision of the MESC would be affirmed. The circuit
court's order was subsequently filed on July 13, 1992. Bankston filed her motion to set aside
judgement on July 24, 1992. By letter dated November 18, 1992, the circuit court directed the court
clerk to advise the parties that the decision of the MESC would be re-affirmed. The order was
subsequently entered on December 21, 1992. Bankston's counsel admits that she received notice from
the clerk's office of this decision.

Bankston alleges further that she did not receive notice that the final judgment had been entered until
March 3, 1994. She subsequently filed her untimely motion to vacate final judgment on March 7,
1994, which was denied by the court on November 28, 1994.
It is the responsibility of each party to be familiar with the rules of the courts in which they elect to
practice. It is also their responsibility to track their cases and follow through on motions they have
filed. Bankston had the responsibility to check upon her motions to see that a ruling was obtained. It
is the affirmative duty of the party bringing the motion to follow up her action by bringing it to the
attention of the court. Cossitt v. Federated Guaranty Mutual Ins. Co., 541 So. 2d 436 (Miss. 1989)
. In the present case, Bankston had notice that a decision had been made to re-affirm the MESC's
decision. Saxton requires no more. Upon receipt of the clerk's notification letter, Bankston should
have then filed her appeal of the adverse decision. Periodic phone calls or a request made to the clerk,
upon receipt of the re-affirmance notice, to forward Bankston a copy of the order upon entry were
reasonable and could also have prevented the untimely motion to vacate judgment. To wait almost
two years before filing her motion for relief or an appeal is unreasonable. Bankston's motion to
vacate judgment was out of time as is this appeal. Accordingly, this assignment of error is without
merit and warrants Bankston no relief.

WHETHER THE CIRCUIT COURT ERRED BY ENTERING ITS ORDER DENYING
APPELLANT'S MOTION TO VACATE ITS FINAL JUDGMENT RE-AFFIRMING THE
DENIAL OF BENEFITS.

Bankston's argument fails under reasoning similar to that discussed in the previous assignment of
error. Bankston could have, and should have, been more diligent in pursuing a response from the
court on her motion to set aside the judgment affirming the MESC. Bankston received notice of the
court's re-affirmation of the MESC's decision and failed to properly follow up. The court did not
abuse its discretion in denying Bankston's motion to vacate judgment. Such post-trial motions are left
to the discretion of the court, and her dilatory actions are owed no such relief without a showing of
exceptional circumstances. Therefore, this assignment is without merit and warrants no relief.

WHETHER THE CIRCUIT COURT ERRED BY AFFIRMING THE DECISION OF THE
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION TO DENY UNEMPLOYMENT
BENEFITS TO MARY B. BANKSTON.

Because Bankston's appeal is out of time, this assignment of error need not be addressed at length.
Miss. Code Ann. § 71-5-513 provides that an individual shall be disqualified for unemployment
benefits if she voluntarily left work without good cause. Under Miss. Code Ann. § 71-5-511 (1972),
an individual need only show that she has been paid wages during a base period for insured work,
that she is unemployed and registered for work, and that she "is able to work and is available for
work" in order to be eligible for unemployment benefits. Section 71-5-513 provides for certain
disqualifications for persons otherwise eligible, including the disqualification for leaving work
voluntarily without "good cause." In this jurisdiction, the burden of proof is on the claimant to show
that she left work voluntarily with good cause to avoid disqualification. Miss Code Ann. § 71-5-
513A(1)(c).

Bankston left her job in August, 1991. She filed an initial claim for benefits under the Mississippi
Employment Security Law that December. At the time of filing her claim, Bankston gave "voluntary
quit" as her reason for separation. Her claim was disqualified by a claims examiner pursuant to § 71-
5-513A(1)(a) on the grounds that she left work voluntarily without good cause. Bankston appealed
and a hearing was held before a referee.
The referee, based upon the record and witness testimony, found that Bankston

     had an ongoing conflict with a fellow employee and had complained several times to the
     employer that she was being verbally harassed by the other employee. The employee was rude
     to [Bankston] and would talk about [her]. The employer told [Bankston] several times that they
     would take care of the situation but the situation continued. On August 19, 1991, the other
     employee cursed at [Bankston] for no apparent reason and [she] reported the incident to the
     employer. The employer talked with [Bankston] and with the other employee on that day and
     the situation seemed to improve. The employee did not harass [Bankston] after that day but
     [Bankston] felt that something else would probably happen and [she] decided to quit her job.
     On August 24, 1991, [Bankston] voluntarily left her job. Work was available for [Bankston] at
     the time she left and [she] was not under the threat of discharge.

The referee then provided the following opinion.

     Section 71-5-513 A(1)(a) of the Law provides that an individual shall be disqualified for
     benefits if he left work voluntarily without good cause.

     The claimant [Bankston] voluntarily left her employment because of a conflict with another
     employee. [Bankston] had complained about the situation several times to the employer and the
     situation seemed to improve. However, [Bankston] decided to voluntarily leave her
     employment because she thought that something else would happen. It is the opinion of the
     Referee that good cause within the meaning of the law for voluntarily leaving employment has
     not been shown. Therefore, the decision of the Claims Examiner is in order.

Bankston filed her notice of appeal of the decision of the claims examiner and the decision of the
referee to the MESC Board of Review, which subsequently considered Bankston's appeals on the
record without further hearing and affirmed the decisions of both the claims examiner and referee.

A careful review of the transcript, as well as documentary evidence presented at the hearing
conducted before the referee, evidences substantial evidence to support the findings and conclusions
reached by the referee and affirmed by the Board of Review. Therefore, this assignment of error is
without merit and warrants no relief.

                                           CONCLUSION

The circuit court, acting in its appellate capacity, committed no error in the present case. The circuit
court did not abuse its discretion in denying Bankston's motion to vacate judgment. Nor did the court
err in affirming the actions of the MESC, finding them supported by substantial evidence and the
applicable law. Therefore, each of these assignments of error is without merit and none warrant
Bankston any relief.

Accordingly, the judgment of the Circuit Court of Smith County denying Bankston's motion to
vacate final judgment is affirmed.

AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS, SMITH AND
MILLS, JJ., CONCUR.
