        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2018-CC-00964-COA

MILTON PILATE                                                               APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                   APPELLEES
EMPLOYMENT SECURITY AND POWELL
TRANSPORTATION COMPANY

DATE OF JUDGMENT:                          06/22/2018
TRIAL JUDGE:                               HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    MILTON PILATE (PRO SE)
ATTORNEYS FOR APPELLEE:                    JAMES RANDALL BUSH
                                           ALBERT B. WHITE
NATURE OF THE CASE:                        CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                               REVERSED AND REMANDED - 07/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

       LAWRENCE, J., FOR THE COURT:

¶1.    In this unemployment-benefits case, Milton Pilate appeals the Hinds County Circuit

Court’s dismissal of his appeal from the Mississippi Department of Employment Security’s

Board of Review (the Board). Two years after Pilate’s appeal, the circuit court dismissed the

appeal with prejudice under Mississippi Rules of Appellate Procedure 2(a)(2) and 31(d).

Pilate then appealed the circuit court’s dismissal. Finding that the circuit clerk must issue

Pilate appropriate notice before a dismissal, we reverse and remand without reaching the

merits of the Board’s decision.
                       FACTS AND PROCEDURAL HISTORY

¶2.    In October 2014, Pilate began working as an over-the-road truck driver for Powell

Transportation Company (Powell) in Flowood, Mississippi. On February 24, 2016, Dr.

Latoya Bullock of Central Mississippi Health Services diagnosed Pilate with vertigo and

treated him with medication. Dr. Bullock recommended that Pilate not drive again until his

symptoms were resolved. After starting the medication, Pilate’s symptoms subsided, so he

continued working.

¶3.    On March 15, 2016, Pilate was driving a work truck from Tennessee to Louisiana.

He was without medication when his symptoms reoccurred in Wiggins, Mississippi. Instead

of continuing his route to Louisiana, Pilate drove to Powell’s Flowood terminal. He arrived

there around 3 a.m. Pilate returned his truck, cleaned it out, and turned in his keys and fuel

card. He did not notify anyone at Powell of what happened nor did he show up for work the

next day. Pilate’s manager assumed he had quit. On March 17, 2016, Pilate called his

manager and said that he was back on his medication, feeling better, and ready to work. The

manager informed Pilate that he would need to check with the owner. According to Pilate,

no one ever contacted him.

¶4.    On March 23, 2016, Pilate filed his initial claim for unemployment benefits with the

Mississippi Department of Employment Security (MDES). An MDES claims examiner

investigated the circumstances surrounding Pilate’s departure and determined that Pilate was

disqualified from receiving unemployment benefits under Mississippi Code Annotated


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section 71-5-513(A)(1)(a) (Rev. 2011) because he left his job without good cause.1 On April

14, 2016, Pilate appealed to the administrative judge (AJ). After conducting a telephonic

hearing with Pilate and his manager on June 8, 2016, the AJ likewise denied Pilate’s claim

for unemployment benefits. On June 16, 2016, Pilate appealed the AJ’s decision to the

Board. On June 27, 2016, the Board adopted the AJ’s findings of fact and opinion and

affirmed his decision.

¶5.    On July 5, 2016, Pilate appealed the Board’s decision to the Hinds County Circuit

Court. MDES filed the record and its answer one month later. Pilate did nothing. Pilate’s

attorney filed an entry of appearance on May 25, 2017. On June 5, 2017, Pilate’s attorney

filed a motion to withdraw as counsel of record. The court entered an order granting the

motion and stated that Pilate had sixty days to obtain substitute counsel or notify the court

that he intended to proceed pro se.2 On July 5, 2017, Pilate filed an “answer” or response to

       1
           Section 71-5-513(A)(1)(a) reads:

       An individual shall be disqualified for benefits:

       For the week, or fraction thereof, which immediately follows the day on which
       he left work voluntarily without good cause, if so found by the department,
       and for each week thereafter until he has earned remuneration for personal
       services performed for an employer, as in this chapter defined, equal to not
       less than eight (8) times his weekly benefit amount, as determined in each
       case . . . .
       2
        Pilate’s attorney moved to withdraw just sixteen days after entering an appearance.
Neither the attorney’s motion to withdraw nor his certificate of service show that he sent a
copy of the motion to Pilate per Uniform Circuit and County Court Rule 1.13 and
Mississippi Rule of Appellate Procedure 46(c). His motion is also problematic because it
was not “accompanied by an appearance form of substitute counsel or a signed statement by

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the order, stating he “ha[d] no choice but to proceed . . . pro se.” From that point, Pilate took

no further action.

¶6.    On December 14, 2017, MDES filed a motion to dismiss with prejudice in accordance

with Mississippi Rules of Appellate Procedure 2(a)(2) and 31(d). On June 22, 2018, the

circuit court granted the motion, stating that Pilate had failed to file his appellant’s brief after

receiving notification of the deficiency. Aggrieved, Pilate appeals.

                                 STANDARD OF REVIEW

¶7.    We review questions of law and legal conclusions de novo. Belmont Holding LLC

v. Davis Monuments LLC, 253 So. 3d 323, 326 (¶12) (Miss. 2018) (citing Aladdin Constr.

Co. v. John Hancock Life Ins. Co., 914 So. 2d 169, 174 (¶8) (Miss. 2005)).

                                         DISCUSSION

¶8.    While Pilate argues the merits of the Board’s denial of his request for unemployment

benefits, the circuit court’s dismissal was based solely on Pilate’s failure to file a brief. Rule

5.06 of the Uniform Civil Rules of Circuit and County Court Practice provides that “[b]riefs

filed in an appeal on the record must conform to the practice in the Supreme Court, including

form, time of filing[] and service . . . . The consequences of failure to timely file a brief will

be the same as in the Supreme Court.” Therefore, this appeal from the MDES to the circuit

court is controlled by the Mississippi Rules of Appellate Procedure.




the client that the client agrees to proceed pro se” or an explanation as to why he could not
provide either document. M.R.A.P. 46(c).

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¶9.    The supreme court adheres to Mississippi Rule of Appellate Procedure 31(b), which

states that “[t]he appellant shall serve and file the appellant’s brief within 40 days after the

date on which the record is filed.” Here, MDES filed the record with the circuit clerk on

August 4, 2016. Between August 4, 2016, and the court’s dismissal on June 22, 2018, Pilate

never filed an appellant’s brief or a request for additional time to file a brief. Mississippi

Rule of Appellate Procedure 31(d) details the consequences for failure to file a timely brief:

“If an appellant fails to file the appellant’s brief within the time provided by this rule or

within the time as extended, the appeal may be dismissed on motion of appellee or on the

Supreme Court’s own motion as provided in Rule 2.”

¶10.   Here, MDES filed a motion to dismiss Pilate’s case under Rules 31(d) and 2(a)(2).

Rule 2(a)(2) reads:

       An appeal may be dismissed upon motion of a party or on motion of the
       appropriate appellate court (i) when the court determines that there is an
       obvious failure to prosecute an appeal; or (ii) when a party fails to comply
       substantially with these rules. When either court, on its own motion or on
       motion of a party, determines that dismissal may be warranted under this Rule
       2(a)(2), the clerk of the Supreme Court shall give written notice to the party
       in default, apprising the party of the nature of the deficiency. If the party in
       default fails to correct the deficiency within fourteen (14) days after
       notification, the appeal shall be dismissed by the clerk of the Supreme Court.

(Emphasis added). While the Rule literally requires “the clerk of the Supreme Court” to

issue the written notice of deficiency, the supreme court has held that the circuit court clerk

bears that responsibility when an appeal is taken in circuit court. See Van Meter v. Alford,

774 So. 2d 430, 432 (¶3) (Miss. 2000) (stating that “the court clerk (the circuit clerk in this


                                               5
instance) [shall] officially notify an appellant of deficiencies in his appeal and that the

appellant be given fourteen (14) days therefrom to correct any deficiencies”).

¶11.   While the circuit judge’s order dismissing Pilate’s case states that Pilate received

“notification of the deficiency and opportunity to correct said deficiency,” the record lacks

any verification of a written notice. The only indication from the record that Pilate received

notice comes from MDES’s motion to dismiss.3 Even so, our supreme court has specifically

held that “[a] motion to dismiss cannot be substituted for an official notice of deficiencies

from the court clerk.” Id. at (¶4). More recently, this Court applied the same rule in Thomas

v. Five County Child Development Program Inc., 958 So. 2d 247, 251-52 (¶17) (Miss. Ct.

App. 2007), noting that Rule 2(a)(2) mandates notice before dismissal.4 Further, the official

comment to the Rule defines what constitutes proper notice:


       3
         On appeal, MDES makes the same argument from its motion to dismiss—that, at
a status hearing held on June 12, 2017, the circuit judge informed Pilate that his appeal had
not progressed because of his failure to file a brief. On May 25, 2017, Pilate filed a “notice
of status conference hearing,” informing MDES that a hearing was set for June 12, 2017.
However, the hearing itself is not listed on the docket, and the record contains no documents
or transcript related to the hearing. Even if the circuit judge gave Pilate notice of his
deficiency at the hearing, that notice is still insufficient under Rule 2(a)(2).
       4
         Since our supreme court’s ruling in Van Meter in 2000, this Court has repeatedly
dealt with this issue. See, e.g., Thomas v. Five County Child Development Program Inc.,
958 So. 2d 247 (Miss. Ct. App. 2007); Fields v. City of Clarksdale, 27 So. 3d 464, 467 (¶9)
(Miss. Ct. App. 2010); Blackwell v. Howard Indus. Inc., 98 So. 3d 463, 467 (¶11) (Miss. Ct.
App. 2012). It seems every few years this Court rules in another case that the Rules of
Appellate Procedure apply to the trial clerks and trial courts when a trial court is sitting as
an appellate court. Perhaps it is time to amend the Mississippi Rules of Appellate Procedure
to clarify when the appellate rules apply “when the trial court is sitting as an appellate
court.”

                                              6
       Where dismissal appears warranted for any . . . reason [other than failure to
       timely file a notice of appeal], the rule provides for the clerk to give written
       notice of the deficiency to counsel for the defaulting party. Specifically, the
       clerk will notify counsel that the party is in default in some manner and has 14
       days to correct the noted deficiency.

¶12.   On a review of the record, nowhere does it appear that the circuit clerk gave Pilate

written notice of his deficiencies and fourteen days in which to cure any deficiencies before

the court dismissed the appeal. Since the supreme court has held that the notice provision

of Rule 2(a)(2) applies in a circuit court when sitting as an appellate court, such notice was

required before the appeal could be dismissed. Therefore, we find that the circuit court erred

in dismissing Pilate’s appeal. We reverse and remand the case to the circuit court with

instructions that Pilate be given proper notice and an opportunity to cure deficiencies.

¶13.   REVERSED AND REMANDED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ.,
CONCUR.




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