Darick K. Jones v. Virginia Employment Commission ( 2004 )

  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Bumgardner, Kelsey and Senior Judge Overton
                                                                    MEMORANDUM OPINION*
    v.     Record No. 0362-04-4                                         PER CURIAM
                                                                      NOVEMBER 23, 2004
                                      John E. Kloch, Judge
                     (Darick K. Jones, pro se, on brief).
                     No brief for appellee.
           Darick K. Jones appeals a final order of the trial court, which affirmed the July 23, 2003
    decision by the Virginia Employment Commission (VEC or Commission) dismissing his appeal.
    The Commission dismissed his appeal because Jones failed to timely file an appeal from the
    decision of the appeals examiner and because he failed to show good cause to extend the
    statutory appeal period. Upon reviewing the record and opening brief, we conclude that this appeal
    is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
           On September 27, 2002, Jones filed a claim application for temporary extended
    unemployment compensation benefits. He indicated on the application that the reason for his
               Pursuant to Code § 17.1-413, this opinion is not designated for publication.
             Because we find that the Commission’s decision is subject to summary affirmance, we
    deny the Commission’s motion to dismiss on the ground that Jones failed to comply with Rule
    5A:25(d) with respect to the filing of the appendix.
    separation from Visions Restaurant was lack of work. On October 30, 2002, Robert Kraus, the
    manager of Visions, submitted a Report of Separation and Wage Information, indicating that
    Jones voluntarily quit. The record contains two telephone reports completed by VEC Claims
    Deputy D. Smith summarizing a telephone conversation with Jones on November 1, 2002, and a
    telephone conversation with Kraus on November 20, 2002, regarding Jones’ claim. Jones told
    Smith he did not quit his job at Visions, and said he intended to contact Visions to correct this
    mistake. Kraus told Smith that Jones was discharged for tardiness and not complying with the
    assigned schedule. “[B]ased on facts obtained in connection with [Jones’] claim for
    unemployment compensation,” Smith denied the claim, finding that appellant was disqualified
    because he was discharged due to misconduct pursuant to Code § 60.2-618(2). The Commission
    mailed the notice of determination on December 17, 2002, and advised Jones that the claims
    deputy’s “determination becomes final unless a notice of appeal is filed within thirty days after it
    is delivered in person or mailed to the last known address.”
           Jones timely noted his appeal to the claims deputy’s decision, and on March 4, 2003,
    Appeals Examiner Randolph Ashburn, III, conducted a hearing. The hearing was scheduled to
    be conducted by telephone. A transcript of the hearing contained the appeals examiner’s finding
    that “neither party . . . telephoned the Commission and provided a telephone number where it
    could be reached for the hearing.” After entering various documents into the record, Ashburn
    treated the parties “as non-appearances” and concluded the hearing. The VEC mailed a copy of
    Ashburn’s decision on March 4, 2003. In it, Ashburn “adopt[ed] the findings of the Deputy as
    fact[,]” reviewed the determination and the existing record, “conclude[d] that the Deputy
    correctly applied the law to the facts” and affirmed and sustained the deputy’s determination.
    The March 4, 2003 decision advised the parties that “this decision becomes final 30 days after
    mailing unless an appeal is filed . . . not later than midnight of April 03, 2003.”
           Jones filed his appeal of Ashburn’s decision on May 9, 2003. By letter dated May 20,
    2003, and filed in the Commission on May 29, 2003, Jones “request[ed] that [his] hearing take
    place via conference call at the employer’s and the commission[’s] earliest convenience.”
           On July 14, 2003, the Commission conducted a hearing on Jones’ appeal. On July 23,
    2003, the Commission mailed a copy of the decision rendered by Special Examiner Dean Ricks.
    Ricks ruled as follows:
                   In this case, the appeal was filed more than a month late.
                   Additionally, there is no information before the Commission that
                   would establish uncontrollable circumstances of a compelling and
                   necessitous nature [that] prevented the appeal from being filed on
                   time. Therefore, the Commission must conclude that the appeal
                   was not timely and good cause to extend the statutory appeal
                   period has not been shown. Consequently, the Appeals
                   Examiner’s decision has become final and the Commission has no
                   authority to review, reconsider, modify, or reverse that decision.
    As a result, the Commission “dismissed” Jones’ appeal “pursuant to the provisions of 16 VAC
    5-80-30(A)(3),” and held that “the decision of the Appeals Examiner has become the final
    decision of the Commission.”
           On August 18, 2003, Jones petitioned the circuit court for judicial review of the
    Commission’s July 2003 decision. The record contains no transcript or statement of facts from
    the hearing before the trial court. In a one-page final order entered on January 28, 2004, the trial
    court ruled:
                           Having considered the statutory authorities cited, the
                   pleadings filed herein and the oral arguments, the trial court is of
                   the opinion and hereby
                           ADJUDGES that the VEC did not err in this case, and
                           It is therefore ORDERED that Final decision No. 67395-C,
                   mailed by the Virginia Employment Commission on July 23, 2003,
                   is affirmed.
                          Accordingly, it is also ORDERED that this matter is hereby
                   dismissed with prejudice and shall be stricken from the Court’s
                   docket, nothing further remaining to be done.
    Appellant signed the final order, “SEEN AND OBJECT.”
                                             RELEVANT LAW
           Code § 60.2-619(A) provides that the Commission shall designate a deputy to promptly
    examine a claim and determine its validity and the amount and duration of any such benefit. A
    claims deputy’s decision “shall be final unless the claimant” or employer timely files an appeal
    of that decision to be heard by an appeal tribunal. Code § 60.2-619(C).
           In order to hear and decide a disputed claim made by the claims deputy, the Commission
    may establish an appeal tribunal consisting of, inter alia, an appeals examiner. Code § 60.2-621.
                           (A) Appeals filed under § 60.2-619 shall be heard by an
                   appeal tribunal appointed pursuant to § 60.2-621. Such appeal
                   tribunal, after affording the claimant and any other parties
                   reasonable opportunity for a fair hearing, shall have jurisdiction to
                   consider all issues with respect to the claim since the initial filing
                   thereof. Such tribunal shall affirm, set aside, reverse, modify, or
                   alter the findings of fact and decision of the [claims] deputy and
                   may enter such order or decision with respect to the claim as such
                   appeal tribunal finds should have been entered. . . .
                           (B) The parties shall be duly notified of such tribunal’s
                   decision, together with its reasons therefore, which shall be
                   deemed to be the final decision of the Commission, unless within
                   thirty days after the date of notification or mailing of such
                   decision, further appeal is initiated pursuant to § 60.2-622.
                   However, for good cause shown, the thirty-day period may be
    Code § 60.2-620.
           “Any party to a hearing before an appeals examiner may appeal the decision within the
    time limit set forth in § 60.2-620 . . . .” 16 VAC 5-80-30(A)(1).
                           If the appeal to the commission is not filed within the
                   statutory time limit . . . , the appellant shall set forth in writing the
                   reasons for the late filing. If the reasons set forth, if proven, would
                   show good cause for extending the appeal period, the commission
                   shall schedule a hearing to take testimony on the issue of good
                   cause for late filing. If the reasons set forth in the notice of appeal
                   are insufficient to show good cause for late filing, the appeal shall
                   be dismissed and the decision of the appeals examiner shall
                   become the final decision of the commission.
    16 VAC 5-80-30(A)(3).
                                          RECORD ON APPEAL
           “[O]n appeal the judgment of the lower court is presumed to be correct and the burden is
    on the appellant to present to us a sufficient record from which we can determine whether the
    lower court has erred in the respect complained of. If the appellant fails to do this, the judgment
    will be affirmed.” Justis v. Young, 
    202 Va. 631
    , 632, 
    119 S.E.2d 255
    , 256-57 (1961); see also
    Lawrence v. Nelson, 
    200 Va. 597
    , 598-99, 
    106 S.E.2d 618
    , 620 (1959) (“An appellant who seeks
    the reversal of a decree on the ground that it is contrary to the law and the evidence has the
    primary responsibility of presenting to this court, as a part of the printed record, the evidence
    introduced in the lower court, or so much thereof as is necessary and sufficient for us to give full
    consideration to the assignment of error.”); Twardy v. Twardy, 
    14 Va. App. 651
    , 658, 
    419 S.E.2d 848
    , 852 (1992).
           Although Jones attached several copies of documents to his brief, he did not submit a
    transcript or signed statement of facts pursuant to Rule 5A:8, nor did he file an appendix as
    required by Rule 5A:25. Jones labeled the photocopied documents Exhibits K through Z;
    however, it is unclear whether these photocopies were presented to the trial court and admitted in
    evidence at that time or whether they were personal documents he possessed.
           Jones includes thirteen issues on appeal in his opening brief, some of which contained
    multiple sub-issues. In essence, Jones argues that: his claim had merit; there were and are
    alleged errors and inconsistencies in the procedures relating to Commission appeals; by filing a
    an untimely appeal in May 2003, after the case became final, he demonstrated good cause why
    his case should be reopened; and there were inaccuracies in the wage statement submitted by the
    employer.2 However, none of those issues related to the rulings by the Commission and the trial
    court that Jones failed to timely file his appeal of the appeals examiner’s decision to the
    Commission and that Jones failed to show good cause as to why “the thirty-day period may be
    extended” pursuant to Code § 60.2-620(B). Moreover, Jones failed to indicate where he argued
    and preserved those issues at trial.3 “[E]ndorsing a decree ‘seen and objected to’ does not
    preserve an issue for appeal unless the record further reveals that the issue was properly raised
    for consideration by the trial court.” Konefal v. Konefal, 
    18 Va. App. 612
    , 615, 
    446 S.E.2d 153
    155 (1994).
             Some issues, such as Issue VI, contained vague, confusing assertions that failed to
    sufficiently allege any cognizable error. In expressing the alleged error, Jones wrote:
                   In order for employee to give reasonable notice to cross-examine
                   an anonymous claims examiner from Richmond, Virginia, the
                   employee has to establish (see Rule 4:1) personal in rem
                   jurisdiction from discoveries made from motion in limine. When
                   does the court establish territorial jurisdiction on the subject matter
                   of wrongful misconduct associated with work if due process was
                   not served for a telephonic hearing on an interstate claim?
                           A. Claims examiners were the employee’s primary
                              correspondence in address notification, notification of
                              dates in regards to amounts owed to the V.E.C.,
                              notification that an appeal wasn’t filed, notification to
                              file another appeal (May 9), and minimum contact was
                              made in the forum state by filing an affidavit after
                              employee called the Commission that he could not
                              make the 120 mile journey to Richmond, Virginia from
                              Largo, Maryland July 14, 2003.
             Jones’ reference to Exhibits K through Z, the unofficial photocopied documents he
    placed in his brief, failed to explain how such a document alerted the trial court to the issue or
    preserved it in the trial court.
           Absent a statement of facts or a transcript of the hearing in the trial court, the record fails
    to show that these issues were raised, argued and preserved in the trial court. Accordingly, these
    issues are procedurally barred on appeal and we do not address them. Whitt v. Race Fork Coal
    Corp. and Virginia Employment Comm’n, 
    18 Va. App. 71
    , 74, 
    441 S.E.2d 357
    , 359 (1994); Rule
    5A:18. Based on the record before us, we find that the trial court did not commit reversible error
    in affirming the Commission and dismissing the case from the docket. Accordingly, the decision
    of the trial court is summarily affirmed.