            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

EMMANUEL KENNEDY,                                )
                                                 )
                                   Appellant,    )
                                                 )
                                                       WD77432
v.                                               )
                                                 )
                                                       OPINION FILED:
                                                 )
                                                       November 25, 2014
DIVISION OF EMPLOYMENT                           )
SECURITY,                                        )
                                                 )
                                 Respondent.     )


                Appeal from the Labor and Industrial Relations Commission

              Before Division Three: Karen King Mitchell, Presiding Judge, and
                         Cynthia L. Martin and Gary D. Witt, Judges

       Emmanuel Kennedy appeals from the Labor and Industrial Relations Commission‟s

determination that he is not entitled to unemployment benefits after being terminated from

employment when he missed work due to incarceration.          Because Kennedy has preserved

nothing for appellate review, we dismiss the appeal.

                                     Factual Background

       Kennedy worked for Kelly Services, which is an agency that sends people to work

assignments at other businesses but remains the employer. Kennedy began working for Kelly

Services in March 2012 and was assigned to work as a box maker and truck driver in another
company‟s warehouse. Kennedy was successful in this employment until October 9, 2013, when

he failed to show up for work because he had been arrested and incarcerated. Kennedy had a

cousin call Kelly Services on his behalf and inform them that Kennedy could not come back to

work for the next two weeks because he had to care for his sick aunt. When Kennedy was

released on October 17, 2013, he attempted to contact Kelly Services, but received no response.

       Kennedy filed for unemployment benefits with the Division of Employment Security

(Division). In a “Pending Issue Questionnaire” filed with the Division, Kennedy stated that he

was discharged because he “needed a couple of days off to help [a] sick relative.” A Division

deputy determined that Kennedy was disqualified from receiving benefits because he left work

voluntarily without good cause attributable to his work or the employer. Specifically, the deputy

found that Kennedy “quit” in order to “care for family,” and thus, his reason was “personal.”

Kennedy appealed that decision to the appeals tribunal within the Division. In his request for

appeal, Kennedy claimed, for the first time, that he had not left work voluntarily because he had

been incarcerated. Kennedy acknowledged that he had previously stated he had been caring for a

sick aunt, but he claimed to have said this because a Kelly Services‟ employee had previously

told him that incarceration would affect his ability to achieve permanent employment.

       Following a hearing, the tribunal determined that Kennedy had not left work voluntarily,

because, although a claimant whose employment ends because of incarceration has left his

employment voluntarily without good cause attributable to work or the employer, Kennedy

attempted to contact his employer about returning to work after his incarceration ended. Thus,

Kennedy did not simply abandon his position, and Kelly Services‟ unwillingness to return

Kennedy‟s call indicated that he had been discharged from his employment. However, the

appeals tribunal determined Kennedy‟s failure to report the real reason for his absence showed




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“reckless or willful disregard for the employer‟s absence-reporting standards and his own

obligations” and amounted to “misconduct.”          The appeals tribunal modified the deputy‟s

determination and found Kennedy to be disqualified from benefits because he was discharged for

misconduct connected with his work.        The Commission affirmed and adopted the appeals

tribunal‟s decision.

                                      Standard of Review

       “[W]here, as here, the Commission adopts the decision of the Appeals Tribunal, we

consider the Tribunal‟s decision to be the Commission‟s for purposes of our review.” Sheridan

v. Div. of Emp’t Sec., 425 S.W.3d 193, 198-99 (Mo. App. W.D. 2014). “[T]he reviewing court

defers to the factual determinations made by the Commission.” Dorris v. Stoddard Cnty., 436

S.W.3d 586, 590 (Mo. App. S.D. 2014).           “In conducting our review, „[w]e defer to the

Commission on issues concerning credibility and weight to be given conflicting evidence.‟”

Carver v. Delta Innovative Servs., 379 S.W.3d 865, 869 (Mo. App. W.D. 2012) (quoting Bailey

v. Phelps Cnty. Reg’l Med. Ctr., 328 S.W.3d 770, 773 (Mo. App. S.D. 2010)). But we review

questions of law de novo. Id.

                                            Analysis

       In Kennedy‟s sole point, he argues that the Commission committed “error . . . due to the

facts [sic] that [Kennedy] did not quit [his] job.” Similarly, in the argument portion of his brief

to this court, Kennedy argues only that he did not voluntarily leave his job. But the Commission

did not disqualify Kennedy from benefits for voluntarily leaving his employment. While a

Division deputy initially determined that Kennedy voluntarily quit, that determination was

modified by the appeals tribunal following a hearing. The appeals tribunal determined that




                                                3
Kennedy had been terminated from employment due to misconduct. The Commission affirmed

the appeals tribunal‟s decision and adopted it as the decision of the Commission.

        “Under section 288.050,[1] a claimant shall be disqualified from receiving unemployment

benefits if the claimant: (1) „has left work voluntarily without good cause attributable to such

work or to the claimant‟s employer[ ]‟; or (2) „has been discharged for misconduct connected

with the claimant‟s work[.]‟” Waggoner v. Ozark Anesthesia Assocs., Inc., 364 S.W.3d 713, 718

(Mo. App. S.D. 2012) (quoting §§ 288.050.1(1), .2) (emphasis added). The statute contains two

independent bases, both mandating disqualification from benefits.

        Kennedy has failed to challenge the basis for the Commission‟s decision below. “While

it may not be stated explicitly in Rule 84.04, the fundamental requirement for an appellate

argument is that it demonstrate the erroneousness of the basis upon which a lower court or

agency issued an adverse ruling.” Rainey v. SSPS, Inc., 259 S.W.3d 603, 606 (Mo. App. W.D.

2008). “Unless an appellant challenges the grounds on which an adverse ruling depends, he has

shown no entitlement to appellate relief.” Id.

        Having failed to challenge the ground upon which the Commission disqualified him,

Kennedy has preserved nothing for this Court to review. Parker v. Action Contracting Corp.,

100 S.W.3d 168, 171 (Mo. App. W.D. 2003) (“Insufficient points relied on preserve nothing for

appellate review and constitute grounds for dismissal.”); Dumproff v. Driskill, 376 S.W.3d 680,

688 n.7 (Mo. App. S.D. 2012) (Arguments not raised “in the argument portion of the brief are

deemed abandoned and present nothing for appellate review.” (Internal citation and quotation

omitted.)). This failure is sufficient cause to dismiss Kennedy‟s appeal. See Parker, 100 S.W.3d




        1
         All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2013
Cumulative Supplement, unless otherwise noted.


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at 171; Russell v. LM Servs. Corp., 250 S.W.3d 838, 839-40 (Mo. App. E.D. 2008); Chase v.

Baumann Prop. Co., 169 S.W.3d 891, 892-93 (Mo. App. E.D. 2005).

                                         Conclusion

       This appeal is dismissed.



                                           Karen King Mitchell, Presiding Judge

Cynthia L. Martin and Gary D. Witt, Judges, concur.




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