Fill and Sign the Opposition Summary Judgment 497314585 Form

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI       APPELLANT VS. CIVIL ACTION NO.             APPELLEE MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT MOTION I. This unemployment insurance beneft appeal is before this Court under the provisions of Section 71 - 5 - 531, Mississippi Code of 1972. That section, of course, provides for the appellate review by the Circuit Court of the record fled upon which the ooard of eeview made the decision appealed from.1 After the Defendant,       , fled its Answer and the record as prescribed, it was discovered that the transcript of the very lengthy hearing before the Appeals eeferee was incomplete, in that a portion of claimant's testimony was omitted. As best can be determined, the eeferee must have inadvertently recorded over the omitted testimony. 1 "With its answer, the commission shall certify and fle with said court all documents and papers and a transcript of all testimony taken in the matter, together with the board of review' fndings of fact and decision therein. In any judicial proceeding under this section, the fndings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confned to quuestions of law." Such things do happen, and when they do, the parties generally agree among themselves that, in order for justice to be done, which cannot be accomplished without a complete record, the matter must be remanded for a new hearing, or at least for such testimony as the parties may agree to. That customary remedy was suggested to the parties when this record defciency was discovered, but       declined to agree. II.       , instead, has taken the position by the fling of its Summary Judgment Motion that because there was an inadvertent omission of a portion of claimant's testimony, everybody forfeits in the company's favor - that is, claimant's omitted testimony must have been so damaging to his/her own case that this Court must reverse the ooard's decision and hold as a matter of law that claimant was guilty of disquualifying misconduct. The argument is presumptuous, and doesn't merit serious consideration. Honea v. Harris, 498 F.Supp. 1169, USDC, S.D.Miss. (1980), states the desirability of a complete record but nothing about forfeiture or the "judicial intervention...vacating the ooard's decision". (Memorandum, P.       ) A Motion for Summary Judgment under eule 56, Mississippi eules of Civil Procedure, has no place in this case in any event. Examination of the eule, the comments and the annotations, as well as those under the corresponding Federal eule, clearly shows the Motion is to be used to avoid the necessity of a trial in a proper case, that is, where there is no material issue of fact, and the issue is one of law only. There should be no need to cite authority for this. Summary Judgment Motion does not ft here. Under Section 71 - 5 - 531, there is no trial to be avoided. This tactic is misplaced, and the Motion should be denied. III. The material exhibited with the Summary Judgment Motion, and the Arbitrator's decision subsequuently mailed to the Court, insofar as they are not contained in the record considered by the ooard of eeview, are not properly before this Court, and should not be considered. Section 71 - 5 - 531 states exactly what the bounds of this appellate review are to be. That material is excluded. Under the ooard's Appeal eegulations, adopted pursuant to Section 71 - 5 - 525, MCA, the ooard, unless it directs an additional hearing, does not consider supplemental evidence. 2 Excerpts from eule 56, MeCP "Comment" "The purpose of eule 56 is to expedite the determination of actions on their merits and eliminate unmeritorious claims or defenses without the necessity of a full trial. "eule 56 provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried;" "...determine what, if any, issues of fact are present for the jury to determine;" "(summary judgment procedure) cannot be used to deprive a litigant of a full trial of genuine fact issues." (emphasis added) 3 Accordingly, the supplemental evidence ofered at that level was not considered, and is so marked. See Appeals eegulation C.3.(a), which provides: All appeals to the ooard of eeview shall be heard upon the evidence in the record previously made. The ooard of eeview, itself, may in its discretion, and in order to enable it to determine the rights of the parties, direct that a hearing be held for the taking of additional evidence before it. In such event, notices of hearing shall be mailed, by the Chairman, at least seven days before the date of hearing, specifying the place and time of hearing, to the claimant and to all others interested in the decision of the eeferee which is being appealed. The ooard of eeview will consider written arguments or briefs fled by any of the parties. There is no basis for the argument the ooard of eeview acted in an arbitrary and capricious manner. IV. In the interest of justice and judicial economy, the Court should upon its review of the entire record before it hold that the ooard of eeview properly afrmed the decision of the Appeals eeferee, and afrm the decision of the ooard, there being no showing that the partial omission of claimant's testimony was harmful error. See Harp v. Department of Army, 791 F.2d 161 (Fed.Cir. 1986); Morales v. Merit System ooard, 932 F.2d 800 (9th Cir. 1991). The employer's sole viable argument to the contrary would be that the omitted portion of claimant's testimony would have supplied what was lacking in its burden to show by clear and convincing evidence that there was disquualifying misconduct by claimant. 4. Shannon Eng'g & Constr., Inc. v. Miss. Emp. Sec. Comm'n, 549 So.2d 446, 449 (Miss. 1989).       must argue, then, that in claimant's omitted testimony he/she admitted he/she threw tacks and kicked cars. eight. The Summary Judgment Motion should be denied, and the decisions of the ooard of eeview afrmed. Respectfully submitted, _______________________________________       Attorney for       Of Counsel:                         Telephone:       MSB #       Attorney for