O & J Loading Serv., LLC v. Miss. Employment Sec. Comm'n
| Docket Number: | 2005-CC-01965-COA Linked Case(s): 2005-CC-01965-COA ; 2005-CT-01965-SCT ; 2005-CT-01965-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-06-2007 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Unemployment benefits - Timeliness of appeal - Section 71-5-355(2)(b)(ix) Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): BARNES AND CARLTON, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 09-13-2005 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: CIRCUIT COURT UPHELD COMMISSION DECISION. Case Number: 251-04-354CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | O & J LOADING SERVICE, LLC |
JOHN S. HILL,
WILLIAM D. PRESTAGE,
ALBERT G. DELGADILLO |
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| Appellee: | MISSISSIPPI EMPLOYMENT SECURITY COMMISSION | ALBERT B. WHITE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Unemployment benefits - Timeliness of appeal - Section 71-5-355(2)(b)(ix) |
| Summary of the Facts: | Gerald Phelps worked for O & J Loading Service, LLC loading tires onto trucks. Under O & J’s limited liability company structure, Phelps owned one non-voting share in O & J, evidenced by a certificate. After he left his employment with the company, he applied for unemployment benefits with the Mississippi Employment Security Commission. His application was denied. Phelps filed an application for reconsideration. The Contribution and Status Department at the Commission determined that Phelps was an employee of, and not a partner in, O & J. O & J sent a letter disagreeing with the Department’s decision outside the ten-day appeal period set forth in the decision. A hearing officer concluded that O & J had failed to file its appeal of the Department’s findings of an employer/employee relationship within the applicable 10-day period and, therefore, dismissed the appeal. O & J then appealed that decision to the Commission which held that the appeal of the initial decision was untimely and stated further that the initial decision was supported by substantial evidence. O & J appealed to the trial court which affirmed the Commission’s decision. O & J appeals. |
| Summary of Opinion Analysis: | O & J argues that it is appealing an order establishing its contribution rate and that the decision was an initial determination. Specifically, O & J argues that it is not an employer required to make contributions to the fund, as its relationship with Phelps and other similarly situated persons is not an employer/employee relationship. Accordingly, O & J argues that the statute permits a thirty-day appeal period. Section 71-5-355(2)(b)(ix) clearly states that only an employer appealing a determination of his “rate of contribution” is entitled to the thirty-day appeal period. O & J’s appeal is not an appeal of the applicable contribution rate, but of its contribution liability with regard to a particular employee and class of employees. Section 71-5-355(2)(b)(ix) also provides that an appeal of contribution liability is allowed only when an employer, who was not previously notified of proceedings to determine such liability, seeks to contest benefits awarded to a former employee and charged to his account during an employee’s attempt to secure unemployment benefits. When an appeal is allowed in this limited circumstance, the employer is granted ten days in which to perfect his appeal. O & J’s notice of appeal was filed outside of the ten-day appeal period set forth in section 71-5-355. Accordingly, O & J’s appeal was not timely filed. |
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