Lovelace v. Director, Employment SEC. Dept.

Josephine, Linker Hart, Judge, dissenting. As the majority notes,appellant had twenty days in which to file a notice of appeal by mail. Ark. Code Ann. § ll-10-524(a)(l) (Repl. 2002). Also, the majority correctly states that appellant’s counsel, David P. Henry, mailed the notice of appeal one day beyond the twenty-day period. The majority also properly asserts that, on appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § ll-10-529(c)(l) (Repl. 2002). Further, it notes that if the appeal is “not perfected within the twenty-day period as a result of circumstances beyond appellant’s control, the appeal may be considered as having been filed timely.” Ark. Code Ann. § 11-10-524 (a)(2) (Repl. 2002). However, relying on a fine of cases that a client is bound by the acts of her attorney, the majority erroneously concludes that the one-day delay was not “a result of circumstances beyond the appellant’s control,” which would have excused the delay.

While the notice of appeal had to be mailed by April 5, 2001, it was postmarked one day later. Appellant testified that on March 21, she asked Henry to file a notice of appeal, and she further stated that she did not know why her appeal was filed on April 6. Henry testified that he is a sole practitioner, that his only secretary was absent from his office from April 2 to April 6, and that on April 4 and 5, he was absent from his office with “a severe case of tendonitis” in his right knee. When he returned to the office on April 6, he prepared the notice of appeal. Henry testified that the delay in the filing of the notice of appeal was attributable to his being ill, his secretary being absent, and his not being at the office to prepare it. When the hearing officer asked why he did not file the notice before April 4, Henry stated that he did not know he was going to be ill.

The majority states that “[t]here was no evidence presented that there was anything that prevented the attorney from filing the appeal before he was out sick. . . The majority’s conclusion that Henry could have filed the appeal prior to the onset of his illness misses the point. Certainly, there is nothing in the statute requiring a claimant to act prior to the last day of the twenty-day period, and there is no indication that Henry knew prior to the onset of his tendonitis that he would subsequently suffer from the onset. By the majority’s reasoning, no circumstance would be beyond a claimant’s control if the claimant did not file his notice on the first day of the twenty-day period. Adoption of the majority’s reasoning would constrict the twenty-day period and effectively eliminate the statutory excuse.

The majority further states there was no evidence that Henry “was so incapacitated that he could not have mailed the appeal from his home.” I note that the hearing officer, who assumed the role of adversary in questioning appellant and Henry, did not ask Henry whether he could have mailed the notice of appeal from his home. There may have been numerous reasons why Henry did not file the notice of appeal from home. The majority further states that appellant could have filed the notice herself. Again, the hearing officer never asked whether appellant knew Henry was ill. The statute does not make the proof of either fact a condition precedent to establishing circumstances beyond appellant’s control, and there was no reason that appellant could have anticipated that development of such facts was required.

The real issue, rather, is whether there were circumstances beyond appellant’s control, and here, there was substantial evidence establishing circumstances beyond appellant’s control. The majority’s observations that appellant failed to establish that Henry could have filed the notice from his home and that appellant could have filed the notice herself cannot be considered as substantial evidence to support the denial of the appeal. Thus, the majority’s stated reasons for reaching its decision are pure speculation. What we have is this court concluding, as a matter of law, that an attorney’s illness does not constitute circumstances beyond appellant’s control. Based on this record, this is far too much to conclude, and, therefore, I respectfully dissent.