Stiles v. Hopkins

Steele Hays, Justice. This is an appeal of a claim for unemployment benefits under the Arkansas Employment Security Law. The Appeal Tribunal denied the claim under Section 5 (a) of the Act [Ark. Stat. Ann. § 81-1106 (a)], which disqualifies a claimant who voluntarily leaves employment without good cause connected with the work. The Appeal Tribunal found that the claimant, who was receiving benefits from earlier employment, did not have good cause to quit subsequent part-time work at Sears Portrait Studio. The Board of Review affirmed. The claimant was represented by retained counsel both before the Board of Review and on appeal to the Court of Appeals, where her attorney prepared and filed an abstract and brief as in non-ESD cases. The Court of Appeals affirmed the Board of Review on the finding that claimant had quit her job without good cause, but reversed and remanded the case for an award of benefits on an issue the Director of Labor submits was not raised by either side at any stage in the proceedings. We granted the Director’s petition for review to determine whether the point was presented and, hence, properly decided by the Court of Appeals. After deciding the first issue, i.e. whether the Board of Review had substantial evidence to find the claimant did not have good cause to leave her j ob at Sears Studio, the Court of Appeals considered what it termed a “second issue raised by the appeal,” i.e. whether an individual who is already receiving benefits attributable to prior full-time employment becomes disqualified because he or she voluntarily quits after-acquired, part-time work. The first issue is dealt with under Ark. Stat. Ann. § 81-1106 (a), and is a common point of dispute in ESD cases, but the second issue, which the Court of Appeals recognized as one of first impression in Arkansas, involves other sections of the act, § 81 -1104 (c) and § 81-1105 (m), dealing with the effect of part-time work on entitlement to benefits. We have no hesitancy in declaring that the second issue is not raised in any discernible fashion in the brief of either party, nor do we find anything in the abstract or, for that matter, in the record itself which suggests that this question was considered or argued by the parties either below or on appeal. The only issue discussed in the briefs is whether the claimant had good cause to quit her part-time work. We are left to conclude that the second issue, one we think may have far reaching consequences, has not been properly presented and should not have been decided without being fully developed. Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S.W.2d 407 (1961); Palmer v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973); First Pyramid Life Insurance Company of America v. Reed, et al, 247 Ark. 1003, 449 S.W.2d 178 (1970). In City of Ft. Smith v. Daniels, Director of Labor, 269 Ark. 617, 599 S.W.2d 750 (Ark. App. 1980) the Court of Appeals rejected arguments raised for the first time in the Court of Appeals; It is settled law that an appellate court will not consider questions raised for the first time on appeal. Issues are resolved upon a record that is properly constructed at the trial level; and the appellant has the duty, unless the appellee deems the transcript deficient, to tender a record containing all of the evidence relevant to his case. (Citations omitted.) Nor do we think the two issues are essentially one, so that a claimant merely by arguing that there was good cause to leave part-time employment raises the contention, entirely by implication, that the legislature had in mind only “full-time work” when it drafted § 81-1106 (a) to state that one who “voluntarily and without good cause connected with the work, left his last work” (our italics) is disqualified for benefits. The Court of Appeals has cited decisions from other jurisdictions applying that construction where similar wording is found in employment security statutes1. However, we make no attempt to decide whether that interpretation is sound because it is certain the issue was not considered even remotely by the Board of Review or by the parties. The question should not be decided apart from the traditional methods of litigation, but by adversary proceedings at the trial and appellate levels after fair notice of the issues raised. It would be fundamentally unfair to one litigant to reverse and dispose of a case on appeal on arguments which have not been developed in the lower court, nor argued and briefed in the appellate court. Grumlin v. Gray, 246 Ark. 635, 439 S.W.2d 290 (1969); Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951). Reversed. Purtle, J., dissents. Footnotes [1] Tomlin v. California Unemployment Ins. Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978); Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983), and Unemployment Comp. Board of Review v. Fabric, 24 Pa. Commw. 238, 354 A.2d 905 (1976).