Thomas v. Five County Child Dev. Program, Inc., et al.
| Docket Number: | 2006-WC-00121-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-29-2007 Opinion Author: CARLTON, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Workers’ compensation - Failure to file brief - UCCCR 5.06 - M.R.A.P. 31 - Correcting deficiencies - M.R.A.P. 2(a)(2) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 12-22-2005 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Frank G. Vollor Disposition: APPEAL DISMISSED Case Number: 05 0284 CI |
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| Party Name: | Attorney Name: | |||
| Appellant: | TEQUELIA T. THOMAS |
SORIE S. TARAWALLY |
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| Appellee: | FIVE COUNTY CHILD DEVELOPMENT PROGRAM, INC. AND COMMERCE AND INDUSTRY INSURANCE COMPANY | BRYAN GRAY BRIDGES |
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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: | Workers’ compensation - Failure to file brief - UCCCR 5.06 - M.R.A.P. 31 - Correcting deficiencies - M.R.A.P. 2(a)(2) |
| Summary of the Facts: | While working with Five County Child Development Program, Inc. as an operator/driver, providing transportation services for clients and their children to and from work and childcare, Tequelia Thomas received a call to pick up a client. When she attempted to enter her work vehicle, she was confronted by an ex-boyfriend who highjacked the vehicle and ran over her with it. Thomas filed a worker’s compensation claim which was denied by the administrative law judge. Thomas appealed to the Commission which affirmed the findings of the administrative law judge. Thomas perfected an appeal of the Commission’s decision to the circuit court. Five County filed a motion to dismiss for Thomas’s failure to file a brief. The court granted the motion, and Thomas appeals. |
| Summary of Opinion Analysis: | Thomas argues that the court’s dismissal of her appeal for failure to file a brief was an abuse of discretion, because the clerk’s office delayed in docketing the case and failed to provide notice to the parties that the record had been received by the circuit court. She argues that, due to the clerk’s failure to give notice, the time for filing briefs did not begin to run, and the obligation to brief did not arise. UCCCR 5.06 provides that briefs filed in an appeal on the record must conform to the practice of the Supreme Court. M.R.A.P. 31(b) mandates that a brief be filed within forty days of the filing of the record in the circuit court. M.R.A.P. 31(a) provides that the clerk’s failure to provide notice of the receipt of the record or a party’s failure to receive such notice does not excuse an untimely filed brief. In this case, the record shows that the commission forwarded the record to the circuit clerk’s office for filing on July 25, 2005. However, it was not until six weeks later that the clerk, after reviewing the authority cited by Thomas’s counsel that no filing fee is required in an appeal from an administrative agency and consulting with an attorney, decided to docket the case. The case was docketed in the circuit court on September 19, 2005. Thus, Thomas had forty days therefrom to timely file a brief pursuant to M.R.A.P. 31(b). No brief was ever filed by Thomas nor was a motion for extension or enlargement of time. Accordingly, the time for filing a brief began to run when the circuit clerk filed the record. Pursuant to M.R.A.P. 2(a)(2), however, Thomas was entitled to written notice from the clerk of the deficiencies in the appeal and a fourteen day period in which to cure any deficiencies. A motion to dismiss cannot be substituted for an official notice of deficiencies from the court clerk. Thus, the case is remanded to the circuit court with instructions that proper notice and an opportunity to cure be given to Thomas. |
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