Jason Alston v. Mississippi Department of Employment Security

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CC-01220-COA

JASON ALSTON APPELLANT

v.

MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT: 07/17/2019
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: JASON ALSTON (PRO SE)
ATTORNEY FOR APPELLEE: ROBERT E. SANDERS
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 06/23/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. On August 21, 2017, Jason Alston filed a pro se complaint against the Mississippi

Department of Employment Security (MDES) in the Hinds County Circuit Court pursuant

to Mississippi Code Annotated sections 11-46-1 to -23 (Rev. 2019) (the Mississippi Tort

Claims Act) alleging various tort theories stemming from his denial of unemployment

benefits. At the time he filed the complaint, the issue of the actual denial of his

unemployment benefits was still pending on appeal with this Court in Alston v. Mississippi

Department of Employment Security, 247 So. 3d 303 (Miss. Ct. App. 2017) (Alston I). This

Court affirmed the circuit court’s denial of Alston’s benefits in Alston I on November 28,
2017, prior to the circuit court’s making of its ruling in the present case. On July 17, 2019,

the circuit court granted MDES’ motion to dismiss pursuant to Mississippi Rule of Civil

Procedure 12(b)(6). Aggrieved by the circuit court’s ruling, Alston appealed. Finding no

error in the circuit court’s ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Alston was an employee with the Mississippi Department of Transportation (MDOT)

from September 1, 2012, until October 26, 2015. As a result of his employment ending at

MDOT, Alston filed for unemployment benefits with MDES on November 12, 2015. On

March 22, 2016, an administrative law judge (ALJ) denied his request for unemployment

benefits. Alston appealed that decision to the MDES Board of Review (Board). The Board

affirmed the ALJ’s decision denying benefits on May 23, 2016. Alston appealed that

decision to the Attala County Circuit Court. The circuit court affirmed the denial of benefits

by MDES’ decision on August 26, 2016. Alston appealed the circuit court’s decision, and

this Court affirmed the denial of Alston’s unemployment benefits on November 28, 2017.

Alston, 247 So. 3d at 311 (¶31).

¶3. In Alston I, Alston alleged that there was a due process violation and misconduct by

MDOT in presenting improper evidence at the ALJ hearing. He also claimed that his right

to due process was violated when the ALJ hearing was postponed due to a scheduling

conflict with the MDOT attorney. Further, he alleged misconduct by MDOT in that it

presented evidence during the ALJ hearing that was not disclosed to him in a timely manner.

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This Court found that Alston’s arguments lacked merit, the ALJ hearing was fair and

impartial, and this court ultimately affirmed the denial of unemployment benefits. Id. at

(¶30).

¶4. While Alston I was pending in this Court, Alston filed a new complaint on August 21,

2017, which is the subject of this appeal.1 Alston’s complaint alleged civil conspiracy,

intentional misrepresentation, breach of duty and loyalty, fraud, intentional infliction of

emotional distress, and negligent infliction of emotional distress. The allegations set forth

in Alston’s new complaint wholly arose out of the same factual circumstances and allegations

of the denial of his unemployment benefits that he asserted in Alston I. As such, on

September 20, 2017, MDES filed a motion to dismiss pursuant to Mississippi Rule of Civil

procedure 12(b)(1), (2) and (6). Alston filed several motions throughout the circuit court

proceeding, including two motions for sanctions, a motion for a directed verdict, two motions

to take judicial notice of the proceedings in Alston I, a motion to recuse, and a petition for

writ of mandamus.2 On July 17, 2019, the circuit court entered an order denying Alston’s

motion to recuse and an order granting MDES’s motion to dismiss.3 By the date of the

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Alston filed a motion to amend his complaint on October 17, 2017; however, there
was no order entered granting his motion.
2
As a result of the circuit court’s granting of MDES’s motion to dismiss, there was
no reason to address any of Alston’s remaining pending motions other than his motion to
recuse.
3
Alston is not appealing from the circuit court’s order denying the motion to recuse,
and therefore it will not be addressed.

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circuit court’s ruling, Alston 1 had concluded. In the order granting the motion to dismiss,

the court stated in part:

In granting the Motion to Dismiss, the Court finds that the plaintiff’s claim for
unemployment benefits was handled in the Circuit Court of Attala County and
affirmed by the Mississippi Court of Appeals. Moreover, the claims herein
relate to the claim for unemployment benefits and contain nothing other than
conclusory allegations and unsupported legal theories.

STANDARD OF REVIEW

¶5. Motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) raise an issue

of law that we review de novo. Wolfe v. Delta Discount Drugs, 2019-CA-00160-SCT, 2020

WL 1060468, at *2 (¶10) (Miss. March 5, 2020) (citing City of Vicksburg v. Williams, 191

So. 3d 1242, 1244 (¶5) (Miss. 2016)).

ANALYSIS

¶6. Within his complaint, Alston requested monetary damages resulting from injuries he

claimed he suffered based on six tort theories. The facts outlined in his complaint are wholly

related to the allegedly corrupt MDES process wherein his unemployment benefits were

denied. His complaint was filed pursuant to the Mississippi Tort Claims Act and requested

punitive damages in an amount up to $4,000,000 plus reasonable attorney’s fees. MDES

filed its motion to dismiss based on two arguments: (1) the claims were not ripe for

consideration given the fact that Alston I was still pending, and (2) the complaint stated no

claim upon which relief could be granted.

A. Civil Conspiracy

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¶7. Alston alleged in his complaint that MDES and the attorney for MDOT conspired with

one another and agreed to sabotage his claim for unemployment by prolonging the process

and concealing information. Further, Alston alleged that as a result of the conspiracy, he has

suffered substantial damages, including stress and mental anguish. Alston’s claim was based

upon three facts: (1) the initial ALJ telephonic hearing was continued per the request of

MDOT’s attorney, (2) the allegation that MDOT’s attorney untimely submitted evidence to

be used at the hearing, and (3) MDOT’s attorney used a blank exit-interview form to be

admitted into evidence at the hearing. All three of these allegations were considered and

resolved in Alston I, wherein this Court held that there was no due process violation and that,

furthermore, the hearing was fair and impartial.

¶8. “ In Mississippi law, the elements of a civil conspiracy are: ‘(1) an agreement between

two or more persons, (2) to accomplish an unlawful purpose or a lawful purpose unlawfully,

(3) an overt act in furtherance of the conspiracy, (4) and damages to the plaintiff as a

proximate result.’” Rex Distributing Co. v. Anheuser-Busch LLC, 271 So. 3d 445, 455 (¶34)

(Miss. 2019) (quoting Bradley v. Kelley Bros. Contractors, 117 So. 3d 331, 339 (¶32) (Miss

Ct. App. 2013)). This Court ruled on this issue in Alston I and held that the ALJ was fair and

impartial. Further, Alston does not set forth any specific facts that would substantiate an

agreement between MDES and MDOT to get past the first element of civil conspiracy.

Finding no error, we affirm the ruling of the circuit court as to civil conspiracy.

B. Intentional Misrepresentation

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¶9. In his complaint, Alston alleged that the Board made false representations intending

to induce him to act or refrain from acting based on those representations. He further alleged

that based on his reliance on those false representations, he was damaged. In the facts of his

complaint, Alston alleged that he was denied information regarding his unemployment claim

and more specifically regarding the Board’s decision. However, the record reflects that a

letter was sent to Alston on June 7, 2016, which included a compact disc of the ALJ

telephonic hearing. Further, the record reflects that an additional letter was mailed to Alston

on October 26, 2016, which explained that there were no transcripts associated with the

Board’s decision. That decision was made based on the ALJ hearing transcripts and other

records that were previously provided to Alston in connection with his appeal to the Circuit

Court of Attala County.

¶10. To prove a prima facie case of intentional misrepresentation, the plaintiff must show

the following by clear and convincing evidence:

(1) a representation, (2) that is false (3) and material (4) that the speaker knew
was false or was ignorant of the truth (5) combined with the speaker’s intent
that the listener act on the representation in a manner reasonably contemplated
(6) combined with the listener’s ignorance of the statement’s falsity (7) and the
listener’s reliance on the statement as true (8) with a right to rely on the
statement, and (9) the listener’s proximate injury as a consequence.

Moran v. Fairly, 919 So. 2d 969, 975 (¶23) (Miss. Ct. App. 2005) (citing Se. Med. Supply

Inc. v. Boyles, Moak & Brickell Ins. Inc., 822 So. 2d 323 (¶39) (Miss. Ct. App. 2002)). There

was no evidence presented that MDES made any representations to Alston that were false.

In fact, MDES sent Alston multiple letters regarding his case and explained in detail why

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certain information was not available. There were not sufficient facts set forth in Alston’s

complaint upon which relief could have been granted, and therefore we affirm the circuit

court’s ruling as to intentional misrepresentation.

C. Breach of Duty of Loyalty

¶11. In his complaint, Alston also alleged that MDES and its employees owed him a duty

of loyalty and that they breached that duty by interfering with his claim for unemployment.

He claimed it was wilful and intentional and as a proximate result of the alleged breach, he

suffered damages in an amount up to $4,000,000. Alston did not present any specific

instances wherein a duty was owed or breached but merely cited by reference the entirety of

“the Mississippi Department of Employment Security Title 20, Part 101 of the Mississippi

Administrative Code and Mississippi Employment Security Law as set forth in Sections 71-

5-1 to 71-5-541.”

¶12. “The duty of loyalty is fiduciary in nature.” Baker Donelson Bearman Caldwell &

Berkowitz P.C. v. Seay, 42 So. 3d 474, 486 (¶34) (Miss. 2010) (citing Tyson v. Moore, 613

So. 2d 817, 823 (Miss. 1992)). There are simply no facts presented that would indicate that

MDES had any actionable fiduciary duty to Alston. Further, Alston did not plead with any

particularity what regulation or statute that MDES failed to comply with. There were not

sufficient facts set forth in Alston’s complaint upon which relief could have been granted,

and therefore we affirm the ruling of the circuit court’s ruling as to breach of a duty of

loyalty.

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D. Fraud

¶13. In his complaint, Alston alleged that MDES and its employees made false

representations to him, knowing that the allegations were false for the purpose of sabotaging

his claim for unemployment benefits and constituting fraud. Alston claimed that as a result

of those actions, he incurred damages. Alston did not state with any particularity what he

believed to be false representations by MDES other than those allegations previously

addressed under the claim of intentional misrepresentation.

¶14. The elements of fraud are identical to the elements of intentional misrepresentation

as previously discussed. Se. Med. Supply, 822 So. 2d at 330 (¶29). There was no evidence

presented that MDES made any representations to Alston that were false. As previously

stated, it sent Alston multiple letters containing information regarding his case and explained

in detail why certain information was not available. There were not sufficient facts set forth

in Alston’s complaint upon which relief could have been granted, and therefore we affirm

the circuit court’s ruling as to fraud.

E. Intentional Infliction of Emotional Distress

¶15. In his complaint, Alston alleged that MDES intended to cause him to suffer emotional

distress or in the alternative engaged in conduct with reckless disregard causing him to suffer

emotional distress. Further, Alston claimed that as a result of MDES’ actions he is entitled

to damages in an amount up to $4,000,000. However, he offered no facts to support his

conclusory statements, nor any specific damages that he incurred.

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A claim for intentional infliction of emotional distress requires: (1) The
defendant acted willfully or wantonly toward the plaintiff by committing
certain described actions; (2) [t]he defendant’s acts are ones ‘which evoke
outrage or revulsion in civilized society’; (3)[t]he acts were directed at, or
intended to cause harm to, the plaintiff; (4) [t]he plaintiff ‘suffered severe
emotional distress as a direct result of the acts of the defendant’; and (5)
‘[s]uch resulting emotional distress was foreseeable from the intentional acts
of the defendant.’

Orr v. Morgan, 230 So. 3d 368, 375-76 (¶18) (Miss. Ct. App. 2017) (quoting Rainer v. Wal-

Mart Assocs. Inc., 119 So. 3d 398, 403-04 (¶19) (Miss. Ct. App. 2013)). There were not

sufficient facts set forth in Alston’s complaint upon which relief could have been granted,

and therefore we find no error in the circuit’s court ruling as to intentional infliction of

emotional distress.

F. Negligent Infliction of Emotional Distress

¶16. In addition to alleging intentional infliction of emotional distress, Alston alleged

negligent infliction of emotional distress in his complaint. Alston claimed that MDES had

a duty to act with reasonable care and should have known that their conduct would result in

his physical and emotional distress. He claimed that as a result of their alleged negligent

conduct and wrongful acts, he has suffered and will continue to suffer significant physical,

mental and emotional distress. Because of MDES’ alleged conduct, Alston requested

damages of at least $4,000,000. Alston provided no specific facts to substantiate the claim

for negligent infliction of emotional distress.

¶17. “In order to recover emotional distress damages resulting from ordinary negligence,

[a plaintiff] must prove ‘some sort of physical injury or demonstrable harm, whether it be

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physical or mental, and that the harm must have been reasonably [foreseeable] to the

defendant.’” Humphries v. Virlilia Road Conservation Grp. LLC, 276 So. 3d 1272, 1278

(¶20) (Miss. Ct. App. 2018) (quoting Randolph v. Lambert, 926 So. 2d 941, 946 (¶17) (Miss.

Ct. App. 2006)), cert denied, 276 So. 3d 661 (Miss. 2019). While Alston claimed that he

received treatment at Life Help Mental Health Center and St. Dominic Behavioral Health as

a result of MDES’ conduct, there were no facts or evidence presented that link Alston’s

treatment to any wrongdoings of MDES. There were not sufficient facts set forth in Alston’s

complaint upon which relief could have been granted, and therefore we find no error in the

circuit’s court ruling as to negligent infliction of emotional distress.

CONCLUSION

¶18. Simply stated, Alston’s complaint in this case consisted of the same facts and

allegations identical to those pled in Alston I surrounding the denial of his unemployment

benefits. However, this case alleged torts as a result of those same facts. Those facts as

stated were insufficient or lacked particularity to state a claim upon which relief could be

granted. Accordingly, we affirm the circuit court’s dismissal of Alston’s complaint.

¶19. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ. GREENLEE,
WESTBROOKS, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR.

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