Donald Perkins v. Director, et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

DONALD PERKINS

APPELLANT

V.

DIRECTOR, ET AL.

APPELLEE

E 02-346

September 24, 2003

APPEAL FROM THE BOARD OF

REVIEW [2002-BR-2054]

AFFIRMED

John F. Stroud, Jr., Chief Judge

Donald Perkins appeals the Board of Review's dismissal of his appeal on the basis that the untimely filing of his appeal was not due to circumstances beyond his control. We affirm the dismissal of his appeal.

Appellant's claim for unemployment benefits was denied by the Appeal Tribunal; an opinion explaining the basis for the denial was mailed to appellant on August 21, 2002. Pursuant to Arkansas Code Annotated section 11-10-524(a)(1) (Repl. 2002), the opinion instructed appellant that the decision would become final unless it was appealed within twenty calendar days after the date of mailing, and that if the appeal was mailed, it would be considered to have been filed as of the date of the postmark on the envelope.

Appellant employed counsel to pursue his appeal to the Board of Review. The last day for appellant to timely file an appeal was Tuesday, September 10, 2002; however, appellant's appeal was not postmarked until September 13, 2002. Arkansas Code Annotated section 11-10-524(a)(2) provides that an appeal may be considered to have been timely filed even if it was filed outside of the twenty-day period if the late filing was due to circumstances beyond the appellant's control. Pursuant to Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980), a hearing was conducted to determine whether the late filing of the appeal was due to circumstances beyond appellant's control. At that hearing, appellant's attorney testified that she placed the notice of appeal in the mail at her office on the morning of September 10, and that she assumed that the mail went out on the day that it was placed "in the system." She did not know of any reason the appeal would not have gone out in the September 10 mail, and she had no explanation as to why the appeal was not postmarked until September 13. She stated that when she mailed things from her office, it was her experience that they were postmarked on the day that she put them in the system. She did not go to a post office to ensure a September 10 postmark because she always sent her mail out from the office. When asked why she had waited until the last day to file the appeal, she stated that she had been waiting on a doctor's statement and that she was waiting to see if a witness was going to be available. The Board of Review found that the untimely filing was not due to circumstances beyond appellant's control and dismissed the appeal. Appellant now appeals that finding to this court.

The well-settled standard of review in unemployment cases was set forth in Baldor Electric v. Director, 71 Ark. App. 166, 169-70, 27 S.W.3d 771, 773 (2000) (citations omitted):

On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.

In this case, there is substantial evidence to support the Board of Review's finding that appellant's untimely appeal was not due to circumstances beyond his control. Although appellant contacted his attorney in a timely manner, and the attorney testified that she placed the appeal in the mail at her office on September 10, the letter was not postmarked until September 13. A client is bound by the acts of his attorney within the scope of the latter's authority, including the attorney's negligent failure to file proper pleadings. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002); Springdale Mem'l Hosp. v. Director, 34 Ark. App. 266, 809 S.W.2d 828 (1991). Appellant contends that placing the appeal in the mail on the twentieth day was not negligent but rather "normal business operations." However, the attorney was aware that the appeal was placed in the mail on the twentieth day, but instead of ensuring that the appeal was postmarked on September 10 by taking it to the post office, she mailed it from her office and assumed that it would be postmarked on that date. Furthermore, when asked why she had waited until the last day to file the appeal, appellant's attorney stated that she had been waiting for a doctor's statement and to see if a witness would be available; such information was not necessary in order to file an appeal. There is substantial evidence to support the Board's finding that appellant's untimely filing was not due to circumstances beyond his control.

Affirmed.

Bird and Vaught, JJ., agree.