        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-SA-01830-COA

DANIEL S. FILLINGAME                                                       APPELLANT

v.

MISSISSIPPI STATE FIRE ACADEMY, A                                           APPELLEES
DIVISION OF MISSISSIPPI INSURANCE
DEPARTMENT, STATE OF MISSISSIPPI,
REGGIE BELL AND DANIEL CROSS

DATE OF JUDGMENT:                         12/11/2014
TRIAL JUDGE:                              HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   DANIEL S. FILLINGAME (PRO SE)
ATTORNEYS FOR APPELLEES:                  JAMES T. METZ
                                          DONALD L. KILGORE
                                          JOHN R. HENRY JR.
                                          ALAN M. PURDIE
                                          LEE DAVIS THAMES JR.
                                          BRANDON LEE WHITE
NATURE OF THE CASE:                       CIVIL - CONTRACT
TRIAL COURT DISPOSITION:                  LAWSUIT DISMISSED
DISPOSITION:                              APPEAL DISMISSED - 09/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.

       JAMES, J., FOR THE COURT:

¶1.    Daniel Fillingame appeals from the circuit court’s order granting a joint motion to

dismiss filed by the Mississippi State Fire Academy, a division of the Mississippi Insurance

Department of the State of Mississippi (“Academy”); Reggie Bell, the Academy’s executive

director; and Daniel Cross, the Academy’s instructor chief (collectively, “Defendants”). The
circuit court determined that it lacked subject-matter jurisdiction and dismissed the case with

prejudice.

¶2.    We find that the circuit court correctly concluded that it lacked subject-matter

jurisdiction. However, we find that the circuit court lacked jurisdiction because Fillingame

did not exhaust his administrative remedies before seeking relief from the circuit court. We

dismiss this case without prejudice so that Fillingame may seek administrative relief, if he

desires.1

                        FACTS AND PROCEDURAL HISTORY

¶3.    Fillingame first enrolled in the Academy’s firefighter-training program in 2006.

Fillingame withdrew from the program on five occasions for medical reasons and an

additional occasion for failing a course. On February 13, 2009, Fillingame filed a complaint

(Fillingame I) in the Hinds County Circuit Court against the Academy, after the Academy

refused to allow him to re-enroll for a seventh time in the program. Fillingame’s complaint

alleged wrongful termination; negligence and gross negligence; breach of contract and

tortious breach of contract; negligent and intentional infliction of emotional distress; and

slander and defamation.

¶4.    On December 30, 2010, the circuit court dismissed Fillingame’s tort claims.

However, the circuit court found that Fillingame was entitled to a judgment as a matter of

law on his breach-of-contract claim. The circuit court found that Fillingame had an implied



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        Whether the statute of limitations bars Fillingame’s grievance under the Mississippi
Fire Personnel Board’s administrative rules and regulations is not an issue before this Court.
That issue will need to be determined if Fillingame pursues administrative relief.

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contractual right to return to the program because the Academy’s policy was to permit a

trainee to re-enroll after a medical withdrawal.      The circuit court ordered specific

performance of the implied contract, i.e., required the Academy to allow Fillingame to re-

enroll. In accordance with the court order, Fillingame re-enrolled and returned to the

Academy on April 4, 2011, to complete his last week of the program.

¶5.    After Fillingame completed his training, the Academy issued him a certificate on

April 12, 2011. The certificate provided that Fillingame had completed the National Fire

Protection Association (NFPA) Firefighter 1001 Standard, Levels I and II (2002 Edition).

Because Fillingame was unsatisfied with the type of certificate issued, he filed a motion to

impose remedial sanctions for contempt of court and for an award of monetary and

consequential damages on January 25, 2012.

¶6.    Fillingame argued that the Academy was in contempt of the January 2011 order that

compelled the Academy to permit him to re-enroll. Although Fillingame conceded that the

Academy allowed him to re-enroll, he claimed the Academy failed to act in good faith

because the Academy’s contractual duty to re-enroll him carried the obligation to issue

proper credentials upon the completion of the training. He claimed that the Academy

certifying him under the 2002 edition, rather than the 2008 edition, was improper and

constituted a breach of the implied contract.

¶7.    On September 12, 2012, the circuit court entered an order denying Fillingame’s

contempt motion. Fillingame appealed and, on June 30, 2015, this Court affirmed the circuit

court’s order denying Fillingame’s motion for contempt. Fillingame v. State (Fillingame I),



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187 So. 3d 155, 159 (¶19) (Miss. Ct. App. 2015).

¶8.      In Fillingame I, this Court explained the significance of the type of certificate issued

to Fillingame:

         Because Fillingame began his training in 2006, when the NFPA 2002 standard
         edition was in place, the Academy certified him as having completed that
         edition. But according to Fillingame, after he failed a course in late 2007, he
         had to start his training all over again when he re-enrolled in spring 2008. And
         by this time, he claims, the Academy had implemented the 2008 edition of the
         NFPA 1001 Standard – an assertion the Academy denies.

         What particular edition—2002 versus 2008—Fillingame completed impacts
         his ability to apply for certification with the Mississippi Fire Personnel
         Minimum Standards and Certification Board (MSCB). To be certified by the
         MSCB as having met the minimum training standards for a full-time
         professional firefighter, Fillingame would need not only a certificate from the
         Academy stating he completed the NFPA 1001 Standard, Levels I and II, but
         also the certificate must have a seal of accreditation from the International Fire
         Service Accreditation Congress (IFSAC), an independent non-profit
         organization based in Oklahoma. Miss. Code Ann. § 45-11-203 (Rev. 2011);
         Miss. Admin. Code 19–101:1.07. Fillingame’s certificate received no seal
         because, by April 2011, the IFSAC was no longer accrediting the 2002 edition
         of the NFPA 1001 Standard.

Id. at 157 (¶¶7-8).

¶9.      While Fillingame I was pending on appeal in this Court, Fillingame filed a second

complaint (Fillingame II) in the Hinds County Circuit Court against the Academy, Bell,

Cross, and the State of Mississippi on April 11, 2014. The Fillingame II complaint alleged

breach of contract; breach of the implied covenant of good faith and fair dealing; negligent

misrepresentation; compensatory damages; exemplary damages; and attorney’s fees and

costs.

¶10.     On April 28, 2014, the Defendants filed a motion to dismiss or, alternatively, for



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summary judgment. The circuit court granted the Defendants’ motion to dismiss. The circuit

court stated that the allegations in Fillingame II were the same allegations that were raised

in the contempt action in Fillingame I. The circuit court concluded that it did not have

subject-matter jurisdiction and dismissed the case with prejudice. On December 30, 2014,

Fillingame filed his notice of appeal.

¶11.   On appeal, Fillingame argues that the circuit court erred by (1) dismissing the case for

lack of jurisdiction, and (2) ignoring viable claims against the Defendants. Our opinion is

limited to the jurisdictional issue as we find it is dispositive.

                                 STANDARD OF REVIEW

¶12.   “The determination of whether jurisdiction over a particular matter is proper is a

question of law; therefore, this Court must apply a de novo standard of review to this issue.”

Winding v. State, 908 So. 2d 163, 165 (¶8) (Miss. Ct. App. 2005) (citing Sanderson Farms

Inc. v. Gatlin, 848 So. 2d 828, 841 (¶38) (Miss. 2003)).

                                         DISCUSSION

¶13.   The Defendants argue that the circuit court lacked jurisdiction because Fillingame

failed to exhaust his administrative remedies. Fillingame argues that the Defendants waived

the argument for lack of jurisdiction because it has been raised for the first time on appeal.

However, lack of jurisdiction may be raised for the first time on appeal. Williams v. Michael,

319 So. 2d 226, 227 (Miss. 1975). It is well settled that “[a] complainant must exhaust the

administrative remedies available to him before resorting to the courts for resolution of his

dispute.” State v. Beebe, 687 So. 2d 702, 704 (Miss. 1996).



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¶14.   In Fillingame I, we determined that “Fillingame's real grievance ha[d] to do with the

certificate the Academy issued him at the end of his training.” Fillingame I, 187 So. 3d at

156 (¶2). Furthermore, “the [circuit] court’s order directing the Academy to re-enroll him

did not mandate the type of certificate he would receive. Id. Rather, this was a later-made

administrative decision by the Academy, for which Fillingame could not seek circuit court

review by simply filing for contempt.” Id. For this reason, we held:

       [T]he type of certificate Fillingame should have received upon completion of
       his training was not a matter of contract law that could be resolved by going
       back to the 2009 breach-of-contract action. It was instead an administrative
       decision, which the Legislature expressly conferred upon the Academy. Miss.
       Code Ann. § 45-11-7(6) (Rev. 2011) (requiring the Academy to “present an
       appropriate certificate signifying the successful completion of its prescribed
       courses”).

       While agency decisions may be subject to judicial review, the procedural
       posture of this case is not an appeal of an agency’s decision, filed after the
       exhaustion of administrative remedies. Rather, Fillingame filed a motion for
       contempt, seeking to enforce a court order entered before the Academy even
       made the decision to certify Fillingame under the 2002 standards.

       We thus find any grievance Fillingame may have with his certificate is a
       separate administrative issue completely outside the circuit court’s January
       2011 order. So Fillingame could not use his motion for contempt, based on
       that order, to prompt judicial review of the Academy’s decision. For this
       additional reason, we find the judge properly denied the motion for contempt.

Id. at 158-59 (¶¶16-18).

¶15.   Fillingame claims that he does not have any administrative remedies to exhaust. We

disagree. Under Mississippi Code Annotated section 45-11-253 (Rev. 2015), the Mississippi

Fire Personnel Board (MFPB) is tasked with promulgating the administrative rules and

regulations for minimum standards and certifications for firefighter training. Rule 1.14 of



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the Rules and Regulations for Minimum Standards Certification outlines the appeals process

relating to any certification issue:

        Appeals to any certification issue shall be made to the Board and submitted
        within one (1) year of the date of the original action. Such appeals may be
        initiated by an individual or through the executive fire officer of the local fire
        fighting unit. Once a written appeal has been filed, the individual may petition
        the Board in person at a regularly scheduled meeting of the MSCB. Upon
        hearing the basis of the appeal, the chair may forward the appeal to [the]
        appropriate committee for further investigation and a recommendation for
        action. The Board will communicate its final decision in writing within thirty
        (30) days following any action taken on the issue.

¶16.    In lieu of seeking administrative relief under Rule 1.14, Fillingame filed a contempt

action in Fillingame I, which was denied and ultimately affirmed by this Court on appeal.

¶17.    Fillingame claims that his contempt action in Fillingame I differs from Fillingame II,

because the contempt action in Fillingame I was based on the certificate he was issued,

whereas here his claim is relative to being placed in an “obsolete NFPA (2002 [edition])

firefighter training course.” Fillingame claims that the Defendants led him to believe that

he was enrolled in the 2008 edition NFPA firefighter training and did not realize he was

placed in the 2002 edition NFPA firefighter training until he completed his training in April

2011.

¶18.    Although Fillingame frames the issue as strictly dealing with what training program

he completed, his grievance is ultimately based on his certificate being eligible for a seal of

accreditation from IFSAC. Nonetheless, the Academy’s decision to place him in the 2002

edition NFPA program was an administrative decision.

¶19.    “It is the intent of the Legislature to require and provide minimum standards for



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training and to declare that the State Fire Academy is the principal facility for such

purposes.” Miss. Code Ann. § 45-11-201 (Rev. 2015). The Academy’s decision to certify

Fillingame under the 2002 edition was an administrative decision. Like we held in

Fillingame I, Fillingame’s dispute is based on an administrative decision for which he must

exhaust his administrative remedies before resorting to the courts for relief.

                                     CONCLUSION

¶20.   The circuit court correctly found that it lacked subject-matter jurisdiction. We find

that the circuit court lacked jurisdiction because Fillingame failed to exhaust his

administrative remedies before resorting to the circuit court for relief. We dismiss the case

without prejudice so that Fillingame may proceed administratively, if he desires.

¶21. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.




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