Edmonds Dental Co. v. Keener

403 S.W.3d 87, 2013 WL 2179268, 2013 Mo. App. LEXIS 622
CourtMissouri Court of Appeals
DecidedMay 21, 2013
DocketNo. WD 75545
StatusPublished
Cited by3 cases

This text of 403 S.W.3d 87 (Edmonds Dental Co. v. Keener) 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
Edmonds Dental Co. v. Keener, 403 S.W.3d 87, 2013 WL 2179268, 2013 Mo. App. LEXIS 622 (Mo. Ct. App. 2013).

Opinion

VICTOR C. HOWARD, Judge.

Edmonds Dental Company (“EDC”) appeals the decision of the Labor and Industrial Relations Commission (“Commission”), which affirmed the Appeals Tribunal’s decision that Elbert Keener was not disqualified for unemployment benefits because EDC discharged him, but not for misconduct connected with work. The decision of the Commission is reversed and the case is remanded for further proceedings in accordance with this opinion.

Facts

Elbert Keener was a corporate officer and the sole employee of EDC. Mr. Keener’s employment was for both EDC and Edmonds Dental Prosthetics, Inc. (“Dental Prosthetics”). At some point during Mr. Keener’s employment with the two companies, a memorandum about employees restricting their computer use was issued to employees on letterhead of Dental Pros-thetics.

Mr. Keener was discharged on September 14, 2011, for intentionally violating company policy. The policy prohibited [89]*89employees’ use of company property, including the computers, for personal business. The conduct for which Mr. Keener was discharged included using company computers to make posts on Facebook, perform job searches, and otherwise conduct his own personal business.

Following his discharge, Mr. Keener filed for unemployment benefits, and EDC filed a protest. A deputy of the Division of Employment Security (“Division”) found him to be not disqualified. EDC appealed the deputy’s determination. The Appeals Tribunal of the Division heard the appeal, in which Mr. Keener testified by telephone and two witnesses testified in person on behalf of EDC. The Appeals Tribunal modified the deputy’s determination, but also decided that Mr. Keener was not disqualified for benefits. EDC again appealed, and the Commission affirmed the decision of the Appeals Tribunal, agreeing with the result, but adding certain findings and conclusions in a written supplemental decision. EDC timely appealed.

Standard of Review

Appellate review of the Commission’s decision granting unemployment benefits is governed by Section 288.210.1 This court may modify, reverse, remand for rehearing, or set aside the Commission’s decision only if: “(1) the Commission acted without or in excess of its power; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient, competent evidence in the record to warrant the making of the award.” Lewis v. Fort Zumwalt Sch. Dist., 260 S.W.3d 888, 889-90 (Mo.App. E.D.2008) (citing § 288.210).

In our determination of whether there is sufficient competent and substantial evidence to support the decision of the Commission, this Court examines the evidence in the context of the entire record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). “The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be eonclusive[.]” Section 288.210. We defer to the Commission’s determinations regarding the weight of the evidence and the credibility of witnesses. Scrivener Oil Co. v. Crider, 304 S.W.3d 261, 266 (Mo.App.S.D.2010). We do not defer, however, to the Commission’s determinations regarding issues of law. Id.

Discussion

In its sole point on appeal, EDC argues that the Commission’s decision was erroneous because it acted without or in excess of its powers by misapplying the law. EDC’s argument in this regard is based upon its assertion that Mr. Keener was jointly employed by two related companies, Dental Prosthetics and EDC, and his conscious and deliberate violation of company policies of Dental Prosthetics constituted misconduct with regard to both companies. Mr. Keener argues in response that EDC cannot show that he violated a policy of EDC of which he was given notice, and that EDO and Dental Prosthetics are not one business, as EDC asserts, but rather two different businesses.

The issues central to this dispute on appeal, then, are whether EDC and Dental Prosthetics should be treated as one employer, such that misconduct as to Dental Prosthetics constitutes misconduct as to EDC, or different employers; and if different employers, whether Mr. Keener’s actions constituted misconduct as to EDC.

[90]*90“Employer” is defined by section 288.032.1 to include “[a]ny employing unit which in any calendar quarter in either the current or preceding calendar year paid for service in employment wages of one thousand five hundred dollars or more[.]” Section 288.030.1(15) defines “employing unit” as

any individual, organization, partnership, corporation, common paymaster, or other legal entity ... which has ... in its employ one or more individuals performing services for it within this state. All individuals performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this chapter.

Also relevant to determination of whether EDC and Dental Prosthetics are one employer or separate employers as to Mr. Keener under Chapter 288 is Section 288.030.1(8), defining “common paymaster” as “two or more related corporations in which one of the corporations has been designated to disburse remuneration to concurrently employed individuals of any of the related corporations[.]”

Insufficiency of the Commission’s Factual Findings

Section 288.200.1 requires that the Commission “promptly notify the parties of its decision and its reasons therefor.” And while “[t]he decision need not be in any particular form, [it] must provide for intelligent review of the decision and reveal a reasonable basis for the Commission’s decision.” Garden View Care Center, Inc. v. Labor and Indus. Relations Comm’n, 848 S.W.2d 603, 607 (Mo.App. E.D.1993) (internal citations omitted). Findings are adequate if they leave the appellate court no room for doubt about which evidence the Commission believed and that which it rejected. Id. This Court cannot be expected to determine whether an agency’s decision violated any provisions of section 288.210 when only the conclusions reached by the Commission are before it. Cummings v. Mischeaux, 960 S.W.2d 560, 563 (Mo.App. W.D.1998).

Here, the entirety of the Commission’s decision consists of eight paragraphs of analysis, undivided into fact or law sections, and a conclusion. The Commission’s decision did adopt and incorporate the decision of the Appeals Tribunal, stating that the Commission’s written decision was meant to “add certain findings and conclusions” and be a “supplemental decision.”

The Appeals Tribunal’s decision contained a distinct Findings of Fact section, which, in its entirety, reads as follows:

The claimant was a corporate officer, and sole employee of this employer. The claimant was discharged on September 14, 2011, for intentionally violating policy.

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403 S.W.3d 87, 2013 WL 2179268, 2013 Mo. App. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmonds-dental-co-v-keener-moctapp-2013.