Earth City Supply LLC v. Division of Employment Security

527 S.W.3d 92, 2017 WL 3479658, 2017 Mo. App. LEXIS 783
CourtMissouri Court of Appeals
DecidedAugust 15, 2017
DocketWD 80254 (Consolidated with WD 80255, WD 80256, WD 80261, WD 80262, and WD 80263)
StatusPublished
Cited by3 cases

This text of 527 S.W.3d 92 (Earth City Supply LLC v. Division of Employment Security) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Earth City Supply LLC v. Division of Employment Security, 527 S.W.3d 92, 2017 WL 3479658, 2017 Mo. App. LEXIS 783 (Mo. Ct. App. 2017).

Opinion

Mark D. Pfeiffer, Chief Judge

Earth City Supply LLC (“Earth City”), Apex Landscape LLC (“Apex”), and Phoenix Landscape Group LLC (“Phoenix”) (collectively, “Appellants”) appeal from rulings of the Labor and Industrial Relations Commission (“Commission”), which affirmed the Appeals Tribunal’s dismissal of Appellants’ appeals for failure to participate in a scheduled hearing. We affirm.

Factual and Procedural History

The Division of Employment Security (“Division”) determined that certain named individuals were employees of Earth City. The Division also determined that Earth City was the successor to the businesses of Apex and Phoenix as provided under section 288.110 of the Missouri Employment Security Law. Additionally, the Division determined that certain named individuals were employees of Earth City at a later period of time. Greg Flerlage, manager of Earth City, requested a hearing regarding the Division’s notices of successorship and of liability.

The Division also determined that certain named individuals were employees of Phoenix. The Division determined that Earth City was Phoenix’s successor pursuant to section 288.110 of the Missouri Employment Security Law. Christie Flerlage, manager of Phoenix, requested a hearing regarding the Division’s notices of liability and of transfer.

The Division further determined that certain named individuals were employees of Apex. The Division determined that Earth City was Apex’s successor pursuant to section 288.110 of the Missouri Employment Security Law. Greg Flerlage, as owner of Apex, requested a hearing regarding the Division’s notices of liability and of transfer.

The Appeals Tribunal’s acknowledgment letters enclosed an informational pamphlet explaining the. hearing procedure. The pamphlet instructed the recipient:

ATTENDANCE
If you filed the appeal and do not attend the hearing, your appeal will be dismissed and the determination will stay the same....
HEARING NOTICE
A hearing notice is mailed to each party at least seven days before the hearing. READ THE NOTICE CAREFULLY for more instructions. A copy of the appeal packet (which will be used as an exhibit in the hearing) will be mailed with the hearing notice....
PREPARATION
Start preparing for the hearing NOW by arranging for witnesses and gathering evidence to support your case....
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POSTPONEMENTS
If it is necessary to postpone the hearing, you must contact the referee by phone or fax as soon as possible. Explain in detail why you are asking for a postponement. The Appeals Tribunal will tell the parties if a hearing has been postponed.
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ADDITIONAL INFORMATION
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If you have questions, contact the Appeals Section at 573-751-3913. More inr formation can be found at www.labor. mo.gov/DES/Appeals.

[94]*94On August-11, 2016, the Appeals Tribunal mailed each Appellant identical Notices of Hearing:

You are notified that there will be a hearing at 9:00 a.m., on Tuesday, August 23, 2016 at
111 North 7th St, Room 402 Wainwright State Office Building Saint Louis MO 63101
before an Appeals Tribunal Charles E. Callier, Referee, presiding.
Promptness is required,
Be prepared to present all pertinent evidence respecting this matter.

The notice also contained the address, telephone number, and fax number of the Division’s Appeals Section. The notice stated: ‘IMPORTANT) If needed, call 573-751-3913 for assistance in the translation and understanding of the information in this document.” On August 29, 2016, the Appeals Tribunal referee issued orders dismissing the appeals because “appellant did not appear to pursue the appeal.”

Greg Flerlage, as president of Apex, Phoenix, and Earth City, timely filed a consolidated application for review with the Commission, asserting that Appellants were “not afforded opportunity to prepare a defense” because they were “given six (6) days to prepare for hearing.” In each case, the Commission issued an Order affirming the Appeals Tribunal's Order, stating:

Appellant’s allegations, if true, will not support .a finding of good cause for appellant’s failure to participate in the scheduled hearing. As such, appellant has not made a prima facie showing that appellant is entitled to relief. No purpose would be served by remanding to determine the truth or falsity of the allegations..

Each of the Appellants appealed to this court pursuant to section 288.210.1 By this court’s orders, the separate appeals were consolidated under case number WD80254.

Standard of Review

Article V, section 18 of the Missouri Constitution provides for judicial review of the Commission’s decision to determine whether it is “supported by competent and substantial evidence upon the whole record,” Section 288.210 further provides that upon appellate review of a decision of the Commission, we may modify, reverse, remand for rehearing, or set aside the decision of the Commission on the following grounds and no other: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the decision. “In reviewing the decision, we determine whether the Commission abused its discretion in refusing to set aside the dismissal for faitee to show good cause,” Jackson-Mughal v. Div. of Emp’t Sec., 359 S.W.3d 97, 100 (Mo. App. W.D. 2011) (internal quotation omitted). “Abuse of discretion is shown.where the outcome is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. (internal quotation omitted).

Analysis

Appellants assert that the Commission erred when it affirmed the Appeals Tribunal’s dismissal of Appellants’ appeals for lack of good cause for failing to appear at the scheduled hearing. Specifically, Appellants contend that because they were only given six days to respond to the determinations by obtaining counsel, prepar[95]*95ing for their defense, and appearing at the hearing, they were denied their due process right to a reasonable opportunity to defend.

Section 288.190.3 provides in pertinent part:

Unless an appeal on a disputed determination or referred claim is withdrawn, an appeals tribunal, after affording the parties reasonable- opportunity for fair hearing, shall affirm, modify, or reverse the determination of the deputy, or shall remand the matter to the deputy with directions. In addition, in any case wherein the appellant, after having been duly notified of the date, time, and place of the hearing, shall fail to appear at such hearing, the appeals tribunal may enter an order dismissing the appeal.

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Bluebook (online)
527 S.W.3d 92, 2017 WL 3479658, 2017 Mo. App. LEXIS 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earth-city-supply-llc-v-division-of-employment-security-moctapp-2017.