IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-SA-01830-COA DANIEL S. FILLINGAME APPELLANT

v. MISSISSIPPI STATE FIRE ACADEMY, A DIVISION OF MISSISSIPPI INSURANCE DEPARTMENT, STATE OF MISSISSIPPI, REGGIE BELL AND DANIEL CROSS APPELLEES

DATE OF JUDGMENT: 12/11/2014 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: DANIEL S. FILLINGAME (PRO SE) ATTORNEYS FOR APPELLEES: JAMES T. METZ DONALD L. KILGORE JOHN R. HENRY JR. ALAN M. PURDIE LEE DAVIS THAMES JR. BRANDON LEE W HITE NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: LAW SUIT DISMISSED DISPOSITION: APPEAL DISMISSED - 09/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. D a n i e l F illingam e appeals f rom the circuit c ourt’s order g ranting a joint m otio n t o dism iss f iled by the Mississippi S tate F ire Academ y , a division of the Mississippi I nsurance Departm ent of the State of Mississippi (“Academ y ”); Reggie Bell, the Academ y ’s executive director; and Daniel Cross, the Academ y ’s instructor chief ( collectively , “Def endants”). Thecircuit court determ i ned that it lacked subject-m atter jurisdiction and dism issed the case with

prejudice. ¶2. We f

i n d that the circuit c ourt correctly c oncluded that i t l a c k e d s u b j e c t

- ma t t e r jurisdiction. However, we f i nd that the circuit c ourt lacked jurisdiction because Fillingam e did not exhaust his adm inistrative rem edies bef ore seeking relief f

rom the circuit court. W e dism iss this case without p rejudice so that Fillingam e m ay seek adm inistrative relief , if he desires. 1
FACTS AND PROCEDURAL HISTORY ¶3. F i l l i n gam e f

irst enrolled in the Academ y ’s f iref ighter-training progr a m i n 2 0 0 6

. Fillingam e withdrew f

rom the program on f

i v e o c casions f

or m edical reasons and an additional occasion f

or f a iling a course. On February 13, 2009, Fillingam e f iled a com plaint ( Fillingame I

) in the Hinds C o unty Circuit Court against the Academ y , af ter the Academ y ref used to allow h im to re-enroll f or a seventh tim e in the program . Fillingam e’s com plaint alleged wrongf

ul term ination; n e gligenc e a nd gross negligence; breach of c ontract and tortious breach of c ontract; negligent a nd intentional inf liction of e m otional distress; and slander and def

am ation. ¶4. O n D e c e mb e r 3 0 , 2 0 1 0 , t h e c i r c u i t c o u rt dism issed Fillingam e’s tort clai ms . However, the circuit c ourt f ound that Fillingam e was e ntitled to a judgm e n t a s a matter of law on his breach-of

-contract claim

. The circuit court f ound that Fillingam e had an im plied

1 Wh eth e r th e statu te o f lim itatio n s b ars F illin g am e’s g riev an ce u n d er th e M ississip p i F ire P erso n n el B o ard ’ s ad m in istrativ e ru les an d reg u latio n s is n o t an i ssu e b ef o re th is C o u rt. T h at issu e w ill n eed to b e d eterm in ed if F illin g am e p u rsu e s ad m in i strativ e relief

. 2c o n t r actual right to return to the program because the A cadem y ’s policy was to perm it a

trainee to r e-enroll af

ter a m edical withdrawal

. T h e circuit c o urt ordered specif ic perf orm ance of t h e i m

plied contract, i.e., required the A cadem y to allow Fillingam e to reenroll. In accordance w ith the court order, Fillingam e re-enrolled an d r e t u r n e d to the Academ y on April 4, 2011, to com plete his last week of

the program

. ¶5. Af ter F illingam e com

ple t e d h i s t r aining, the A cadem y i ssued him a certif icate on April 12, 2011. The certif icate provided that F illingam e had com pleted the Nati o n a l F ire Protection Asso c i a t ion (NFPA) Firef i ghter 1001 S tandard, Levels I and II (2002 Edition). Because Fillingam e was unsatisf ied with the ty

pe of certif

icate issued, he f

iled a m otion to
im p ose r e me d ial sanctions f or contem

pt of court and f

o r an award of m onetary and consequential dam ages on January 25, 2012. ¶6. Fillingam e argued that the Academ y was in contem pt of the J a nuary 2011 order that

com pelled the Academ y t o perm it him to re-enroll. Although Fillingam e conceded that the Academ y all o w e d h i m t o re-enroll, he claim ed the Academ y f ailed to act in good f

aith because the Aca d e my ’ s contractual d uty to re-enroll h im carried the obligation to issue
proper credentials upon the c om pletion of the training. He claim ed that the Academ y certif y ing him u nder the 2002 edition, rathe r than the 2008 edition, was i m proper and constituted a breach of

the im plied contract. ¶7. O n S e p t em

ber 12, 2012, the circuit court entered an order den y i n g F i l l i n g a me ’ s
contem pt m o tion. F illingam e a

ppealed a nd, o n June 30, 2015, this Court a f f i rm ed the circuit
court’s order deny ing Fillingam e’s m otion f o r contem pt. Fillingame v. State (

Fillingame I) ,

3187 So. 3d 155, 159 (¶19) (Miss. Ct. App. 2015).

¶8. In Fillingame I

, this Court explained the s ignif icance of the ty

pe of certif

i cate issued to Fillingam e: Because Fillingam e b egan his training in 2 006, when the NFPA 2002 standard edition was in place, the Academ y c ertif i ed him a s h a v i n g c o m

pleted that edition. But according to Fillingam e, af ter he f ailed a course in late 2 007, he had to s tart his training a ll over again when he re-enrolled in spring 2008. A nd by this t im e , he claim s, the Academ y had im plem ented the 2008 edition of the NFPA 1001 Standard – an assertion the Academ y denies. Wh a t p articular edition—2002 versus 2 008—Fillingam e com pleted i m p acts his ability to apply f

or c ertif ication with the M ississippi Fire P e r sonnel Minim um Standards and Certif

ication Board (MSCB). To b e c e rtif ied b y the MSCB as hav i n g me t the m inim um training standards f o r a f ull-tim e prof essional f iref ighter, Fillingam e would need not only a certif icate f rom the Academ y stating he com

pleted the N FPA 1001 Standard, Levels I and II, but also the certif

icate m ust have a seal o f accreditation f rom the I nternational Fire Ser v ice Accreditation Congress (IFSAC), an independent non-prof it organization based in Oklahom a. Miss. Code Ann. § 45-11-203 (Rev. 2011); Miss. Adm in. Code 1 9–101:1.07. Filling a me ’s certif icate received no seal because, by April 2011, the IFSAC w a s no longer accrediting the 2002 edition of the NFPA 1001 Standard. Id . at 157 (¶¶7-8). ¶9. W h ile Fillingame I was pend i n g o n appeal in this Court, Fillingam e f iled a second

com plaint ( F illingame II

) in the Hinds County Circuit Court against t h e Academ y , Bell, Cross, a n d the State of Mississippi on April 11, 2014. The F illingame II com

plaint alleged breach of contract; breach of the im plied covenant of g ood f

aith and f air dealing; negligent

m isrepresentation; c o mp e nsatory dam ages; exem p lary dam ages; and attorney ’s f ees and

costs. ¶10. On April 2 8, 2 0 14, the Def e n d a n t s f i l ed a m otion to dism i ss o r, alternatively , f or

4sum m ary j udgm ent. The circuit court granted the Def endants’ m otion t o dism i ss. The circuit court stated that the allegations in Fillingame I I w ere the sam e allegations that were raised
in the contem

pt action in Fillingam e I

. T h e circuit court concluded that it did not have subject-m atter jurisdiction and dism issed the case with p rejudice. On Decem ber 30, 2014, Fillingam e f

iled his notice of

appeal. ¶11. On appeal, Fillingam e argues that the circuit court erred by (1) dism issing the case f or lack of jurisdiction, and ( 2) ignoring v iable claim s against the Def endants. Our opinion is
lim ited to the jurisdictional issue as we f ind it is dispositive.
STANDARD OF REVIEW ¶12. “ T h e d e t e r mi n a tion o f whether jurisdiction over a particular m atter is proper i s a question of law; theref

ore, this Court m

ust apply a de novo standard of review to this issue.”
W inding v. State , 908 So. 2d 163, 165 (¶8) (Miss. Ct. App. 2005) ( citing Sanderson Farms Inc. v. Gatlin , 848 So. 2d 828, 841 (¶38) (Miss. 2003)).
DISCUSSION ¶13. The Def

endants argue that the c ircuit court l a c k e d j u risdiction because Fillingam e f ailed to exhaust his a dm inistrative rem edies. F illingam e argues that the Def endants waived the argum ent f

or l ack o f jurisdiction because i t h as been raised f or the f irst tim e on appeal. However, lack of

jurisdiction m ay be r aised f or the f irst tim e on appeal. W

illiams v. Michael , 319 S o. 2d 226, 227 (Miss. 1975). It is well settled that “[ a] com plainant m

ust exhaust the adm inistrative rem e dies available to him bef o re r esorting to the courts f or resolution of his dispute.” State v. Beebe , 687 So. 2d 702, 704 (Miss. 1996).

5¶14. In F illingame I

, we determ ined that “Fillingam e ' s real grievance h a[ d] to do with the certif i cate the Academ y issued him at the end of his training.” Fillingame I , 187 So. 3 d at 156 (¶2). Furtherm ore, “the [ circuit] court’s o rder directing the Academ y to re-enroll h im did not m andate the ty

pe of c ertif

icate he would receive. I

d . Rather, this was a later-m ade adm inistrative decision by the Academ y , f

or which Fillingam e could not seek circuit court review by sim p ly f i ling f or contem pt.” Id

. For this reason, we held: [ T]he ty pe of c ertif

icate Fillingam e should have received upon com pletion of his training was not a m a tter of c ontract l aw that c o uld be resolved by going back to t h e 2 0 09 breach-of -contract action. It was instead an adm inistrative decision, which the Legislature expressly c o nf erred upon the Academ y . M iss. Code Ann. § 4 5-11-7(6) (Rev. 2011) (requiring the A c a d e my t o “present an appropriate c ertif

icate s ignif

y ing t he successf

ul com pletion of its prescribed courses”).
W h ile agency decisions m ay be subject to judici a l r e v i e w, the p rocedural p o sture of this case is n o t an appeal of an agency ’s decision, f iled af ter the exhaustion of a dm inistrative rem edies. Rather, Fillingam e f iled a m o tion f

or contem pt, seeking to enf

orce a court order entered bef ore the Academ y

even m ade the decision to certif y Fillingam e under the 2002 standards.
W e thus f

ind any g rieva n c e F i l lingam e m a y have with his certif icate is a separate adm inistrative issue c om pletely ou t s i d e the circuit court’s January 2011 or d e r . S o Fillingam e could not u se his m otion f o r contem p t, b ased on that order, to p r om

pt j udicial review of the Academ y ’s decisi o n . F o r this additional reason, we f

ind the judge properly denied the m otion f or contem p t. Id. at 158-59 (¶¶16-18). ¶15. Fillingam e c laim s that he does not have a ny adm inistrative rem edies t o exhaust. W e disagree. Under Mississippi Code Annotated section 45-11-253 (Rev. 2015), the Mississippi Fire Personnel Board (MFPB) is tasked with prom ulgating the adm inistrative rules and regulations f

or m i nim um standards and certif

i cations f or f iref ighter training. Rule 1.14 of

6the Rules a nd Regulations f or Minim um Standards Certif

ication outlines the appeals process relating to any

certif i cation issue: Appeals to any c e r t i f

i c a t ion issue shall be m ade to the Board and subm itted within o ne (1) y ear of the date of the o riginal action. Such appeals m a y be initiated b y a n individual or through the executive f ire of f icer of the local f

ire f ighting unit. O nce a written appeal h as b een f iled, the individual m a y petition the Board in person at a regularly sc h e d u l ed m eeting of the MSCB. Upon hearing the basis of the appeal, the chair m a y f orward the appeal to [ the] app r o p r i a te com m ittee f

or f urther investigation and a recom m endation f or action. The Board will com m unicate its f

i nal decision i n writing within thirty (30) day s f

ollowing any

action taken on the issue. ¶16. In lieu of seeking adm inistrative relief under Rule 1.14, Fillingam e f iled a contem

pt action in Fillingame I

, which was denied and ultim a t ely af f irm ed by this Court on appeal. ¶17. Fillingam e claim s that his contem pt action in Fillingame I dif f e rs f r om Fillingame II

, because the contem

pt a ction i n Fill i n g a m e I was based o n the certif icate he was issued, whereas here his c laim is relative to being placed i n an “obsolete NFPA (2002 [ edition])
f iref i ghter training course.” Fillingam e claim s th a t t h e D e f endants l ed h im to believe that he was enrolled in the 2008 edition NFPA f iref ighter tr a i n i n g and did n ot realize he was placed i n the 2002 e dition NFPA f iref ighter training u ntil he com pleted his training in April
2011. ¶18. Although Fillingam e f ram es the issue a s strictly dealing with what training program he com pleted, his grievance is ultim a tely based on his certif i cate being eligible f

or a seal of accreditation f

rom IFSAC. Nonetheless, the Academ y ’s decision to p lace him in the 2002 edition NFPA program

was an adm inistrative decision. ¶19. “It is the i ntent of the L e g i s l a t u r e t o require and provide m inim um standards f

or

7training and to d eclare that the State Fire Academ y is the principal f acility f or such purposes.” Miss. Code Ann. § 4 5-11-201 (Rev. 2015). T he Academ y ’s decision to certif y Fillingam e u n d e r t he 2002 edition was a n adm i nistrative d ecision. Like we held in Fillingame I

, Fillingam e’s dispute is based on an a dm inistrative decision f o r which he m

ust exhaust his adm inistrative rem edies bef ore resorting to the courts f or relief

. CONCLUSION ¶20. The c ircuit court correctly f ound that it lacked subject-m a tter jurisdiction. W e f i n d that the circuit court lacked jurisdiction because F illingam e f ailed to e xhaust his adm inistrative rem e dies bef ore resorting to the circuit c o urt f or r elief

. W e dism i ss the case without prejudice so that Fillingam e m ay proceed adm i nistratively , if he desires. ¶21. THIS APPEAL IS D ISMI S S E D F O R L A C K O F J U R I S D I C T I O N. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
L E E , C . J . , I R

V I N G AND GRIFFIS, P.JJ., ISHEE, CA R L T O N , F A I R , W I L S O N AND GREENLEE, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

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