Cerrato v. Mis. Employ. Sec. Comm'n
| Docket Number: | 2006-CC-01979-COA Linked Case(s): 2006-CC-01979-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-30-2007 Opinion Author: ISHEE, J., Holding: Affirmed |
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| Additional Case Information: |
Topic: Unemployment benefits - Timeliness of appeal - Section 71-5-517 - Good cause Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 10-06-2006 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: Richard Smith Disposition: DECISION OF BOARD OF REVIEW AFFIRMED Case Number: CI-2006-132 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | TOM CERRATO |
TOM CERRATO (PRO SE) |
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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 71-5-517 - Good cause |
| Summary of the Facts: | Tom Cerrato filed for unemployment benefits with the Mississippi Department of Employment Security after being terminated from his employment at a Radio Shack store. The MDES claims examiner determined that Cerrato was discharged for misconduct connected with his work and, therefore, was disqualified from receiving benefits. The MDES notified Cerrato of the claims examiner’s decision by mailing a letter to his Greenville address. Cerrato contends that he moved from his Greenville residence to Florida and that he never received the letter prior to moving. Even though Cerrato did not receive the letter prior to moving, he was informed that he had been denied benefits through a telephone conversation with a MDES representative. Cerrato filed his appeal of the claims examiner’s decision on the same day, which was eleven days after the fourteen-day appeals period had expired. The appeals referee found that Cerrato’s appeal was untimely and consequently dismissed the appeal. Cerrato appealed the decision to the MDES board of review which affirmed the decision of the appeals referee. Cerrato appealed to circuit court which affirmed. Cerrato appeals. |
| Summary of Opinion Analysis: | Section 71-5-517 sets out the applicable appeals period for a claimant or employer who wishes to protest the decision of a MDES claims examiner. The fourteen-day time period is to be strictly construed, and unless the notification of the decision is made by means other than mailing, the time period to appeal to the board of review begins to run on the date that notice is mailed to the parties. It is undisputed that the MDES mailed the letter on February 27, 2006, notifying Cerrato of the claims examiner’s decision to deny him benefits. It is also undisputed that the letter was mailed to the last known address made available to the MDES by Cerrato. Therefore, in order for Cerrato’s notice of appeal to be held to be timely filed, it should have been filed with the MDES by March 13, 2006. Cerrato admits that he did not file his notice of appeal until March 24, 2006. Therefore, the circuit court did not err in finding that Cerrato’s notice of appeal was untimely. Under the MDES appeal statutes, the fourteen-day time period may be relaxed or extended if there is a showing of good cause by the appellant that the mailing to the last known address was not reasonably calculated, under all circumstances, to apprise the party of the decision. Cerrato bases his “good cause” argument on the fact that he moved from Mississippi to Florida before receiving the notification and was forced to place a hold on his mail in Mississippi because he was unable to obtain a Florida mailing address. Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party's control. Cerrato has failed to provide any evidence that his failure to receive notice of the claims examiner’s decision was due to an act beyond his control. In fact, the evidence provided by Cerrato shows that his failure to receive the notification was of his own doing. Therefore, the circuit court did not err in upholding the decision of the MDES that Cerrato failed to show good cause for his untimely filing. |
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