Friendly Village Nursing and Rehab, LLC v. State of Wisconsin Department of Workforce Development

2022 WI 4

• Court: Wisconsin Supreme Court
• Decided: January 26, 2022
• Docket: 2020AP000520
• Status: Published

Opinion

2022 WI 4

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP520

COMPLETE TITLE: Friendly Village Nursing and Rehab, LLC and Friendly Village Healthcare Center, Plaintiffs-Appellants-Petitioners, v. State of Wisconsin Department of Workforce Development and State of Wisconsin Labor and Industry Review Commission, Defendants-Respondents, v. Rhinelander Healthcare Operator 150, LLC, Defendant.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 395 Wis. 2d 701,954 N.W.2d 392 PDC No:2021 WI App 9 - Published

OPINION FILED: January 26, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 25, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Oneida JUDGE: Michael H. Bloom

JUSTICES: DALLET, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were briefs filed by Alon Stein and Stein Law Offices, Des Plaines, Illinois. There was an oral argument Alon Stein.

For the defendants-respondents, there was a brief filed by Ryan X. Farrell and The Department of Workforce Development; with whom on the brief was Kim T. Castelaz and The Labor and Industry Review Commission. There was oral argument by Ryan X. Farrell.

2 2022 WI 4 NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP520 (L.C. 2019CV121) No. STATE OF WISCONSIN : IN SUPREME COURT

Friendly Village Nursing and Rehab, LLC and Friendly Village Healthcare Center,

Plaintiffs-Appellants-Petitioners,

v. FILED State of Wisconsin Department of Workforce JAN 26, 2022 Development and State of Wisconsin Labor and Industry Review Commission, Sheila T. Reiff Clerk of Supreme Defendants-Respondents, Court v.

Rhinelander Healthcare Operator 150, LLC,

Defendant.

DALLET, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the court of appeals. Affirmed. No. 2020AP520

¶1 REBECCA FRANK DALLET, J. After purchasing Friendly

Village Nursing and Rehab, Eden Senior Care1 untimely filed its

application with the Department of Workforce Development to

succeed the unemployment insurance account of Friendly Village's

previous owner. This was a potentially costly mistake, because

successors generally pay lower rates for unemployment insurance

than non-successors. See generally Wis. Stat. § 108.18 (2019–

20).2 Eden's mistake was not necessarily fatal if it was "a result

of excusable neglect." See § 108.16(8)(b)4. The Labor and

Industry Review Commission, however, concluded that the record was

insufficient to establish that Eden's application was late because

of excusable neglect. Eden challenges that conclusion and claims

that the Commission also erred by failing to apply the "interests

of justice" factors in its analysis. We disagree. The "interests

of justice" factors are not a necessary component of the excusable-

neglect analysis under § 108.16(8)(b)4., and Eden has failed to

demonstrate excusable neglect for filing its application late.

I

¶2 Eden Senior Care is an Illinois company that purchases

and rehabilitates nursing homes. On September 1, 2017, Eden

1 Eden Senior Care is the parent company of Friendly Village Nursing and Rehab, LLC. In addition to Friendly Village Nursing and Rehab being the name of one of Eden's subsidiaries, it is also the name of the nursing home at issue here. Therefore, to avoid confusion between Friendly Village the company and Friendly Village the place, we use "Eden" to refer to the company.

All subsequent statutory references 2 are to the 2019–20 version unless otherwise indicated.

2 No. 2020AP520

purchased its first two nursing homes in Wisconsin, including

Friendly Village Nursing and Rehab.3 The acquisition triggered

several statutory requirements, among them registration and

reporting of a business transfer. Eden could comply with those

two requirements by submitting two Department forms: the Employer

Registration Report and the Report of Business Transfer.

¶3 The Employer Registration Report serves several

purposes. One purpose is that it provides a means for a business

new to Wisconsin to meet the requirement that it register with the

Department of Workforce Development. See Wis. Admin. Code

§ DWD 110.04 (May 2020).4 Another purpose is that it helps the

Department determine whether the business is an "employer" as

defined by Wis. Stat. § 108.02(13). If the business is an

employer, it is required to contribute to the state's unemployment-

insurance fund. See Wis. Stat. §§ 108.16, 108.18.

¶4 Additionally, the Employer Registration Report alerts

the Department that the new business is taking over an already

existing business, in which case the transferee (the new business) may be eligible to acquire (or succeed) the previous employer's

unemployment-account "experience." See § 108.16(8). If the

previous employer has a high amount of account experience, then

the transferee will likely benefit from succeeding that experience

as, generally, the more account experience a business has, the

3 Eden also purchased Northpoint Nursing and Rehab; that purchase is not at issue here. 4 All subsequent references to the Wis. Admin. Code § DWD are to the May 2020 version. 3 No. 2020AP520

lower its contribution to the unemployment-insurance fund. See

§ 108.18. The Employer Registration Report, however, does not

state those implications directly. The closest it gets is a

question that asks whether the new business acquired its "activity

from a previous employer," borrowing from the language of

§ 108.16(8)(a). See § 108.16(8)(a) ("[A] business is deemed

transferred if any asset or any activity of an employer . . . is

transferred in whole or in part . . . ."). In any event, the

Employer Registration Report is not part of the statutory

requirements for succeeding a previous owner's unemployment-

account experience; those requirements are laid out in

§ 108.16(8)(b)4.5

¶5 The second form relevant to Eden's statutory obligations

is the Report of Business Transfer. Any time one business is

transferred to another, the Department must be notified within 30

days of the transfer, even if both the transferee and transferor

have previously operated in the state. See Wis. Stat.

§ 108.16(8)(k); Wis. Admin. Code § DWD 115.03. Completing and returning the Report of Business Transfer to the Department

satisfies this notice requirement. A transferee who wants to

acquire the previous employer's unemployment-account experience

must file a "written application . . . requesting that it be

deemed a successor." See Wis. Stat. § 108.16(8)(b)4. The Report

All businesses, new to Wisconsin or previously established, 5

are subject to the same requirements for succeeding a prior owner's unemployment-account experience. The Employer Registration Report, however, applies only to businesses new to Wisconsin.

4 No. 2020AP520

of Business Transfer also satisfies this requirement if the

transferee checks a box on the form indicating that "[t]his is

[its] application to acquire the account experience of the former

owner."6 The Report of Business Transfer is available online as

part of the Department's "Handbook for Employers,"7 which includes

detailed instructions for how to fill out the form, as well as how

to contact the Department with any questions.

¶6 Although the Employer Registration Report and the Report

of Business Transfer serve different purposes, there is one

relevant connection between them. In the Employer Registration

Report, when a new business answers "yes" to the question "Did you

acquire this activity from a previous employer?," the Department

typically contacts the business and alerts it to the Report of

Business Transfer. There is no statutory requirement, however,

that the Department do so. See generally Wis. Stat. § 108.16(8);

Wis. Admin. Code § DWD ch. 115. Rather, the statutes place

compliance with all registration and application requirements

squarely on businesses. See Wis. Stat. § 108.16(8)(b)4., (k); Wis. Admin. Code § DWD 115.03.

6Although reporting a transfer is required——both generally and to acquire the previous employer's unemployment-account experience——using the Report of Business Transfer is not. Under Wis. Stat. § 108.16(8)(k) and Wis. Admin. Code § DWD 115.03, parties are required only to "notify the [D]epartment in writing." As for applying to acquire a previous employer's unemployment- account experience, Wis. Stat. § 108.16(8)(b)4. similarly requires transferees to submit only a "written application." 7 https://dwd.wisconsin.gov/ui201/t6201.htm.

5 No. 2020AP520

¶7 Here, Eden directed its Senior Business Analyst——

a 22-year-old with bachelor's degrees in communications and

biology——to complete the Employer Registration Report in early

August 2017. In response to the question "Did you acquire this

activity from a previous employer?" the analyst answered "no."

That response meant that the Department did not contact Eden

regarding the Report of Business Transfer since, as far as the

Department knew, Eden was not involved in a business transfer.8

¶8 Eden filed its Report of Business Transfer on

March 13, 2018,9 and indicated that it was using that form as its

application to succeed the previous employer's unemployment-

account experience. The application was roughly six weeks late,

as Eden's September 1, 2017 acquisition date set its application

due date as January 31, 2018. Eden traces its untimely application

to the Department's failure to contact it regarding the Report of

Business Transfer. That failure, Eden says, was caused by its

analyst's "misunderstanding" of the question on the Employer

Registration Report regarding whether it had acquired an "activity" from a previous employer.

8 The dissent asserts that Eden notified the Department of the business transfer in August 2017 via the Employer Registration Report. But by answering "no" to whether it acquired a previous employer's activity, Eden notified the Department that there was no transfer. 9 Both Eden and Friendly Village's previous owner signed the Report of Business Transfer, thereby notifying the Department of the transfer. Both were late in doing so, however, because the notice was due no later than October 1, 2017. See Wis. Stat. § 108.16(8)(k) (requiring notice to the Department within 30 days of the transfer).

6 No. 2020AP520

¶9 According to Eden, it was not until February 2018 that

it learned it even had the option to acquire the prior owner's

unemployment-account experience. After filing its successorship

application in mid-March, Eden emailed the Department, explaining

that its application was late due to an "error in completing our

initial DWD account application," adding that it was "new to the

Wisconsin operations space and [was] not familiar with how the

[unemployment-insurance] process worked." The Department found

that Eden's explanation did not amount to excusable neglect and

therefore it rejected the application.10

¶10 Eden appealed to an administrative law judge. After a

hearing at which only the Department employee who handled Eden's

application and Eden's corporate manager testified, the ALJ

reversed the Department's determination. The ALJ concluded that

Eden had moved quickly to remedy its mistake and that Eden had not

acted in bad faith. The ALJ also noted that accepting Eden's

untimely application "served the interests of justice."

¶11 The Department appealed that decision to the Commission, which reversed. The Commission concluded that the record contained

insufficient evidence to warrant a finding of excusable neglect.

Specifically, it noted that the analyst who filled out the Employer

Registration Report did not testify, so there was "no competent

10The Department accepted Eden's untimely successorship application related to Northpoint Nursing and Rehab after determining that certain registration forms were mistakenly mailed to Eden's power of attorney's address rather than its corporate address. The record contains no evidence of a similar problem regarding Friendly Village Nursing and Rehab.

7 No. 2020AP520

evidence establishing the nature of his error." It explained that,

because Eden's central business is acquiring and rehabilitating

nursing homes, Eden's failing to be aware of the law regarding

registering such business transfers was "less excusable than it

otherwise might be," even accounting for the analyst's

inexperience. The Commission also concluded that Eden's prompt

remedy did "not eliminate the requirement that a dilatory party

demonstrate excusable neglect for its initial failure to meet the

statutory deadline."

¶12 Eden appealed to the circuit court,11 arguing that the

Commission erred because it failed to consider whether the

"interests-of-justice factors"12 supported a finding of excusable

neglect. Eden asserted that in Casper v. American International

Southern Insurance Co., 2011 WI 81, 336 Wis. 2d 267, 800

N.W.2d 880, we held that analyzing those factors is a necessary

part of every excusable-neglect analysis. The circuit court

rejected that argument and affirmed the Commission's

determination, as did the court of appeals.

II

¶13 Our review is limited to the Commission's decision, not

the circuit court's or the court of appeals'. Operton v. LIRC,

2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426. We defer to the

11The Honorable Michael H. Bloom of the Oneida County Circuit Court presided. 12See Connor v. Connor, 2001 WI 49, ¶41, 243 Wis. 2d 279, 627 N.W.2d 182.

8 No. 2020AP520

Commission's findings of fact so long as there is "substantial and

credible evidence" to support them, id., but we review its legal

conclusions de novo, Wis. Bell, Inc. v. LIRC, 2018 WI 76, ¶29, 382

Wis. 2d 624, 914 N.W.2d 1.

III

¶14 To qualify as a successor to an acquired business's

"unemployment account experience," the transferee must meet two

statutory requirements. First, it must establish that a business

was, in fact, transferred. Under Wis. Stat. § 108.16(8)(a), a

transfer occurs when a business's "asset or activity" is conveyed

to another business "by any means, other than in the ordinary

course of business." Second, the transferee must satisfy the

Department that it meets all four successorship conditions in

§ 108.16(8)(b): the transferee must continue the transferor's

business with generally the same employees, the transfer must have

included at least 25 percent of the transferor's total business,

the transferee must be subject to certain statutory financing

provisions, and it must file a timely successorship application.

There is no dispute that Eden is a transferee or that it meets the

first three successorship conditions. Our focus is therefore on

only the timeliness of Eden's successorship application.

¶15 A timely successorship application is one that the

Department receives no later than "the contribution payment due

date for the first full quarter following the date of the

transfer." § 108.16(8)(b)4. Up to 90 days after that deadline, however, the Department may accept a late application, but only if

9 No. 2020AP520

"the transferee satisfies the [D]epartment that the application

was late as a result of excusable neglect." Id.13 Here, Eden

submitted its application late but within the 90-day post-deadline

window. The question is whether its application was late due to

excusable neglect.

¶16 The Commission concluded that it was not, and Eden

challenges that conclusion on two grounds. It first argues that

the Commission applied the wrong law by failing to include the

"interests of justice factors" in its excusable-neglect analysis.

Eden then argues that the Commission erred in concluding that, as

a matter of law, the record evidence was insufficient to show

excusable neglect. We address each argument in turn.

A

¶17 Eden argues that the Commission applied the incorrect

standard for excusable neglect because the Commission did not

consider the "interests-of-justice factors." Eden asserts that

our holding in Casper makes those factors part of every excusable-

neglect analysis. But this reads too much into Casper and ignores

key differences between the text of the statute at issue there

(§ 801.15(2)(a)) and the one at issue here (§ 108.16(8)(b)4.).

¶18 In Casper, we considered what a party must show for a

circuit court to grant a motion to extend certain filing deadlines

13 The legislature added the excusable-neglect provision in 2013. See 2013 Wis. Act 36, § 99. Prior to that amendment, the Department was required to deny all late successorship applications, no matter why they were late. See Wis. Stat. § 108.16(8)(b)4. (2011–12).

10 No. 2020AP520

under § 801.15(2)(a). 336 Wis. 2d 267, ¶¶34–49. That statute

provides that a court may grant such an extension "only on motion

for cause shown and upon just terms." § 801.15(2)(a) (emphasis

added). When a party moves for an extension after the original

deadline has already passed, the court may grant the extension

only if it makes the additional finding that the party's "failure

to act [before the deadline] was the result of excusable neglect."

Id. Therefore, § 801.15(2)(a), by its plain terms, permits a court

to grant a motion for an extension that is made after the original

filing deadline passes only if it makes two separate findings: (1)

granting the extension is "just"; and (2) the party's neglect in

failing to file earlier is excusable. See id.; Casper, 336

Wis. 2d 267, ¶¶37–38. Nowhere in Casper did we hold that the

interests of justice are part of the excusable-neglect analysis.

Rather, we reiterated that they guide part one of the two-part

analysis required by the explicit language of § 801.15(2)(a).

Casper, 336 Wis. 2d 267, ¶¶35–38; Miller v. Hanover Ins. Co., 2010

WI 75, ¶43, 326 Wis. 2d 640, 785 N.W.2d 493 (explaining that a court may grant a motion to enlarge time under § 801.15(2)(a) "if

the circuit court makes a finding of excusable neglect 'and if the

interests of justice would be served by the enlargement of time'")

(quoting Estate of Otto v. Physicians Ins. Co. of Wis., Inc., 2008

WI 78, ¶114, 311 Wis. 2d 84, 751 N.W.2d 805 (emphasis added)).

¶19 Our analysis of the interests of justice in Casper was

rooted in the text of § 801.15(2)(a), which explicitly allows a court to grant relief on "just terms." Other statutes similarly

pair "excusable neglect" with notions of justice or equity. For 11 No. 2020AP520

example, § 806.07(1) allows a court to grant a party relief from

judgment "upon such terms as are just" and for reasons including

excusable neglect or a finding that applying the judgment is "no

longer equitable," as well as "[a]ny other reason[] justifying

relief." But § 108.16(8)(b)4. contains no similar language

directing the Department to consider just terms, equity, or "other

reasons" for relief. Rather, "excusable neglect" is the only

justification for the Department's accepting a late successorship

application. See § 108.16(8)(b)4. (limiting even this exception

to applications submitted fewer than 90 days late).

¶20 Given these differences in the statutory text, we cannot

read "excusable neglect" as encompassing other interests-of-

justice considerations. See Miller, 326 Wis. 2d 640, ¶¶43–44

(declining to extend to another statute the excusable-neglect

requirement in § 801.15(2)(a) because the other statute "does not

by its plain language require" such a finding); Village of Elm

Grove v. Brefka, 2013 WI 54, ¶¶35–40, 348 Wis. 2d 282, 832

N.W.2d 121. The Commission therefore applied the correct legal standard for excusable neglect.14

B

¶21 Eden's other claim is that the Commission erred in

concluding that the record does not demonstrate excusable neglect.

We have defined "excusable neglect" as an error that "a reasonably

Because the interests-of-justice factors are not part of 14

the excusable-neglect analysis under Wis. Stat. § 108.16(8)(b)4., we deny as moot the Commission's motion to strike.

12 No. 2020AP520

prudent person" would have committed "under the same

circumstances." E.g., Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461,

468, 326 N.W.2d 727 (1982).15 The inquiry is context dependent and

requires a showing of something more than ordinary neglect or

carelessness. E.g., id.; Casper, 336 Wis. 2d 267, ¶37. A party

seeking relief under an excusable-neglect provision must offer a

"persuasive explanation" for its mistake by pointing to "specific

incidents" that occurred at the time of the mistake. See Hedtcke,

109 Wis. 2d at 473. In assessing a party's explanation, courts

may consider the negligent actor's familiarity with the subject

matter, as well as the actor's "age, education and experience."

Hansher v. Kaishian, 79 Wis. 2d 374, 391–92, 255 N.W.2d 564

(1977). Ultimately, "the analysis in each case is fact specific,"

with the inquiry turning on a party's reasons or justifications

for its negligent conduct as reflected in the record. See Casper,

336 Wis. 2d 267, ¶39.

¶22 In cases where we have held that a party's mistake was

due to excusable neglect, the record contained some concrete, non- speculative evidence for why the mistake occurred. For example,

excusable neglect includes a foreign corporation untimely filing

its answer to a complaint due to reasonable "confusion created by

15 Black's Law Dictionary contains a definition of "excusable neglect" that largely mirrors ours. See Neglect-excusable neglect, Black's Law Dictionary (11th ed. 2019) ("A failure——which the law will excuse——to take some proper step at the proper time . . . not because of the party's own carelessness, inattention, or willful disregard . . . but because of some unexpected or unavoidable hindrance or accident . . . .").

13 No. 2020AP520

the interplay between the summons and the notice of service," each

of which seemingly set a different date for when the answer was

due. See Shirk v. Bowling, Inc., 2001 WI 36, ¶21, 242 Wis. 2d 153,

624 N.W.2d 375. We have also excused a corporation's untimely

answer when the record demonstrated that the company had developed

certain procedures for handling lawsuits, had followed those

procedures, and, "despite its best efforts," its claims specialist

had never received the complaint. See Casper, 336 Wis. 2d 267,

¶¶44–45.

¶23 But when the record is silent, or contains only

speculation about the reasons for a party's mistake or its failure

to take reasonably prudent precautions, there is no basis for the

Commission or the court to excuse the party's neglect. For

instance, we declined to excuse a defendant's untimely filing of

its answer when it claimed it had misunderstood the terms of a

"courtesy extension agreement," but the record contained "no

notes, confirmation letters, or other documentation" reflecting

the alleged misunderstanding. See Connor v. Connor, 2001 WI 49, ¶22, 243 Wis. 2d 279, 627 N.W.2d 182. We have also held that when

a party attempts to justify its neglect by pointing to other

typical work circumstances, such as the "press of other legal

business" or "summer vacations," those reasons are insufficient,

absent some additional "extraordinary explanation." See, e.g.,

Giese v. Giese, 43 Wis. 2d 456, 461–62, 168 N.W.2d 832 (1969);

Cruis Along Boats, Inc. v. Standard Steel Prods. Mfg. Co., 22 Wis. 2d 403, 409, 126 N.W.2d 85 (1964). And when a defendant

missed a 20-day deadline to file its answer but offered no 14 No. 2020AP520

explanation for why it took 19 days to send the complaint from its

office in Waukesha to its claims manager in California, the court

of appeals declined to excuse the late filing because, "in the era

of overnight express mail" and fax machines, a reasonably prudent

person in the party's shoes would have ensured the complaint made

it to California sooner. See Gerth v. Am. Star Ins. Co., 166

Wis. 2d 1000, 1008, 480 N.W.2d 836 (Ct. App. 1992); see also

Dugenske v. Dugenske, 80 Wis. 2d 64, 70, 257 N.W.2d 865 (1977)

(declining to reverse the circuit court's finding of no excusable

neglect because the record "shed[] little light" on whether a

reasonably prudent person would have acted as the negligent party

did).

¶24 Here, Eden traces its untimely application to an

employee mistakenly answering "no" to the question on the Employer

Registration Report asking if Eden had "acquired an activity from

a previous employer." According to Eden, its employee

misunderstood the question——due to his young age, inexperience,

and lack of legal training——and therefore answered it incorrectly. Because of that mistake, the Department did not contact Eden

regarding the Report of Business Transfer. And because the

Department did not alert it to that form, Eden did not return the

form as its successorship application prior to the application

deadline. There are two problems with Eden's argument.

¶25 First, the record contains only speculation about why

Eden incorrectly answered the question of whether it acquired an activity from a previous employer. Eden's owner——who was not the

person who filled out the Employer Registration Report——testified 15 No. 2020AP520

that there "might have been [a] misunderstanding or mistake on one

of the questions" (emphasis added). The record, however, contains

no evidence that the employee who completed the form in fact

misunderstood the question. That employee did not testify, and

the record contains no other evidence explaining why he answered

the question "no." See Connor, 243 Wis. 2d 279, ¶22.

¶26 In the absence of the employee's direct testimony, Eden

points to the employee's relatively young age, inexperience, and

lack of legal training as sufficiently justifying his mistake. To

the extent that the employee's youth and inexperience contributed

to his supposed confusion, a reasonably prudent person in the same

situation——having no unemployment-insurance experience and not

fully understanding the consequences of certain responses on the

Employer Registration Report——would ask for help before submitting

the document, or at least do additional research. See Hansher, 79

Wis. 2d at 391–92; Maier Constr., Inc. v. Ryan, 81

Wis. 2d 463, 474, 260 N.W.2d 700 (1978), overruled on other

grounds by J.L. Phillips & Assocs., Inc. v. E & H Plastic Corp., 217 Wis. 2d 348, 577 N.W.2d 13 (1998). There is no evidence that

Eden's employee did so. Moreover, Eden has offered no explanation

for why it directed someone so inexperienced and unfamiliar with

Wisconsin's business-registration procedures to complete the

Employer Registration Report. See Carmain v. Affiliated Cap.

Corp., 2002 WI App 271, ¶27, 258 Wis. 2d 378, 654 N.W.2d 265.

¶27 Second, no matter how Eden completed the Employer Registration Report, it was still obligated to fulfill the

successorship requirements under Wis. Stat. § 108.16(8)(b) and 16 No. 2020AP520

Wis. Admin. Code § DWD 115.03. It is true that had Eden answered

"yes" to the question of whether it acquired a previous employer's

activity, the Department likely would have contacted Eden and

notified Eden of its obligation to file the Report of Business

Transfer. But the Department has no statutory duty to contact the

employer. Eden, on the other hand, has a statutory obligation to

"notify the [D]epartment in writing" of both its business

acquisition, Wis. Stat. § 108.16(8)(b)(k); Wis. Admin. Code

§ DWD 115.03, and that it was applying to succeed the previous

employer's unemployment-account experience, Wis. Stat.

§ 108.16(8)(b)4. Those obligations apply regardless of how an

employer answers the questions in the Employer Registration Report

or whether the Department alerts the employer to the Report of

Business Transfer.16 Not to mention, anyone can find the Report

of Business Transfer on the Department's public website.

16For this same reason, the dissent's focus on the mechanism by which the Department contacts businesses who may be involved in a transfer is misplaced. The Department could eliminate that voluntary process and Eden's statutory obligations would remain. Moreover, the dissent's argument that Eden was disadvantaged because it didn't know how the Department's process worked is self- defeating. If Eden had no idea that certain answers on the Employer Registration Report would have generated an alert from the Department, then it had no reason to wait for the Department to contact it before fulfilling its statutory requirements.

The dissent also confusingly suggests that because Eden and Friendly Village's previous owner failed to comply with their joint requirement to notify the Department of the business transfer under § 108.16(8)(k), the court should excuse Eden's failure to comply with the separate successorship-application requirements under § 108.16(8)(b)4. We fail to see why the previous owner's failure under para. (8)(k) is relevant or how Eden's two wrongs make a right.

17 No. 2020AP520

¶28 Eden makes no specific argument for why, independent of

its mistake on the Employer Registration Report, it failed to

timely file its successorship application. Rather, Eden urges

generally that we should excuse its neglect because it was "not

familiar with how the [unemployment-insurance] process worked" in

Wisconsin. But mere ignorance of the law, particularly in the

area of one's business expertise, is not excusable neglect. See

Putnam v. Time Warner Cable, 2002 WI 108, ¶13 n.4, 255 Wis. 2d 447,

649 N.W.2d 626 ("[E]very person is presumed to know the law and

cannot claim ignorance of the law as a defense."). Eden's owner

testified that he was aware Wisconsin's laws may differ from

Minnesota's (where Eden had exclusively conducted its previous

business), but he "d[id]n't recall" speaking to anyone regarding

what those differences might be. A reasonably prudent business in

these circumstances would have at least attempted to familiarize

itself with Wisconsin's requirements before submitting official

documentation to the Department. See Edwards v. Kotlarek,

No. 2009AP123, unpublished op., ¶¶8–10 (Wis. Ct. App. Aug. 31, 2010) (holding that a party's unfamiliarity with the law,

without more, is not excusable neglect). Eden could have contacted

the Department directly for guidance or taken advantage of the

Department's publicly available resources regarding new employers'

unemployment-insurance responsibilities. Indeed, Eden reached out

to the Department after its deadline passed, but offers no reason

for why it did not do so earlier. ¶29 In sum, focusing on the Employer Registration Report

distracts from the real issue——that Eden failed to timely file a 18 No. 2020AP520

successorship application under § 108.16(8)(b)4. As the

Commission correctly concluded, nowhere does the record contain

evidence of a reason for that failure that rises to the level of

IV

¶30 We conclude that the Commission applied the correct

legal standard. The interests-of-justice factors are not part of

the excusable-neglect analysis under Wis. Stat. § 108.16(8)(b)4.

We further conclude that there is no basis in the record on which

to excuse Eden's neglect in filing its successorship application

after the statutory deadline. The Department thus correctly

rejected Eden's successorship application.

By the Court.—The court of appeals' decision is affirmed.

19 No. 2020AP520.pdr

¶31 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The Labor

Industry Review Commission (LIRC) denied Friendly Village Nursing

and Rehab, LLC (Friendly Village) successor status for the

Department of Workforce Development (DWD) unemployment account

experience of the business Friendly Village purchased because LIRC

concluded that Friendly Village's untimely request to become a

successor was not excusable. Wis. Stat. § 108.16(8)(b)4. Late

filings that occur within 90 days of the DWD deadline are accepted

if the totality of circumstances relative to the late filing meet

the legal standard of excusable neglect. Wis. Stat.

§ 108.16(8)(b)4; Wis. Admin. Code § DWD 115.07(2)(a).

¶32 In the case before us, the manner in which DWD programmed

its response to answers to its online questions denied Friendly

Village effective communication that would have facilitated

Friendly Village's timely filing as a successor business.1 Stated

otherwise, DWD's programming was a reasonable factual cause that

contributed to Friendly Village's late filing. In addition,

Friendly Village's seller did not notify DWD of its sale as Wis.

Stat. § 108.16(8)(k) required. And finally, Friendly Village

promptly filed corrected information with DWD. Therefore, under

the totality of circumstances, I conclude that Friendly Village

proved excusable neglect. Because the majority opinion follows

LIRC's erroneous lead and does not review the totality of

circumstances as is required, I respectfully dissent.

1Program: "to work out a sequence of operations to be performed by (a mechanism, such as a computer)." Merriam Webster. Merriam-Webster.com/dictionary/program (last visited Jan. 19, 2022).

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I. BACKGROUND

¶33 On September 1, 2017, Friendly Village purchased a

business from Rhinelander Healthcare Operator 150, and Northpoint

Nursing and Rehab, LLC (Northpoint) purchased a business from Simon

Oshkosh Properties, LLC. Friendly Village and Northpoint are both

operated by Eden Senior Care (Eden), whose nursing home

rehabilitation business is new to Wisconsin. As employers new to

Wisconsin, both were required to register with DWD. Wis. Stat.

§ 108.16(8)(k). This can be accomplished with DWD's "Internet

Employer Registration Report," also referred to herein as DWD's

online report.2

¶34 On August 9, 2017, in anticipation of closing on

purchases of Friendly Village and Northpoint, an Eden employee

completed the DWD online report for each facility. The report had

numerous questions. The first question asked, "Did you acquire

this activity from a previous employer?" That question was

answered "No" for both Friendly Village and Northpoint. The second

question on the report was, "Have you paid employees for work

performed in Wisconsin?" That question was answered "No," as well,

for both facilities. The third question asked, "Do you expect to

pay wages for work performed in Wisconsin in the future?" Both

facilities answered "Yes" to this online report question.

"Activity" was not defined in the online report, nor was there a

statutory reference to Wis. Stat. § 108.16(8) that might link

"activity" to a business purchase.

2 Transcript of Administrative Hearing Department of Workforce Development, Exhibit 5 (Oct. 3, 2018).

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¶35 The Report of Business Transfer (ROBT) form differs from

the online report and provides significant communication about

options that a business new to Wisconsin should know.3 To explain

further, the ROBT requires that each "Former Owner/Operator" and

each "New Owner/Operator" sign a joint ROBT for each business

transfer. Wisconsin Stat. § 108.16(8)(k) also provides that "both

the transferor and the transferee shall notify the department in

writing of the transfer, within 30 days after the date of

transfer." In the matter before us, Friendly Village complied

when it completed the online report, but the transferor to Friendly

Village did not notify DWD of the transfer within 30 days.4

¶36 ROBT provision 5, contains "Options for New

Owner/Operator," which instructs, "You may have an option to

acquire the Unemployment Insurance experience of the former owner.

An application to acquire this experience must be filed by the

appropriate date. See chart at right." The ROBT permits a new

owner to choose, "This is my application to acquire the account

experience of the former owner." The ROBT communicates that if

the change of business ownership or operation occurs during the

period of "July 1 to Sept. 30," the new owner should apply to

transfer the account experience by January 31.

3 The ROBT form references Wis. Stat. § 108.16(8), which provides additional business-transfer information. 4 It is possible, although the record is not clear, that the transferor to Northpoint did notify DWD of the transfer because DWD knew Northpoint was a new employer and tried to send Northpoint forms relative to becoming a successor to account experience. Transcript of Administrative Hearing Department of Workforce Development, Exhibit 6 (Oct. 3, 2018).

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¶37 And finally, ROBT provision 8 is labeled "Continuation

of Business" and it asks, "Has the new owner/operator continued to

operate the same business activity without interruption?" To

which, the Eden employee answered, "Yes" for Friendly Village.

Provision 8 also asks, "Has the new owner/operator continued to

operate the same business activity in the same location?" Again,

the query was answered, "Yes." The questions and answers provide

the necessary factual foundation for Friendly Village and

Northpoint to succeed to the prior owners/operators unemployment

account experiences.

¶38 DWD rejected Friendly Village's ROBT, but it accepted

Northpoint's ROBT, which also was filed late but reviewed by a

different DWD employee.5 Friendly Village asked for an

administrative review, which DWD provided.

¶39 Chelsea Church, the DWD employee who reviewed Friendly

Village's request to conclude that its late filing was due to

excusable neglect, testified at the administrative hearing. She

explained how the DWD online report operated as part of DWD's

5Initially, DWD rejected Northpoint's request to become a successor for its seller's unemployment account experience. On February 27, 2018, Northpoint appealed stating, "I am writing to appeal the initial determination made that Northpoint Nursing and Rehab LLC . . . is not the successor to the Wisconsin Unemployment Reserve account of Simon Oshkosh Properties LLC." The Eden employee said that his requests for information had been sent to the former management company on 11/06/2017 and 12/06/2017, rather than Eden Senior Care. Daniel McHugh of DWD responded to Northpoint, saying that "I should be able to process this without processing the appeal. It was late, but this seems to be 'excusable neglect' and I should be able to approve it." Transcript of Administrative Hearing Department of Workforce Development, Exhibit 6 (Oct. 3, 2018).

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"system." She explained that if the first question of the report

had been answered yes, "then after they submitted this registration

online, they'll receive a notification from our system that they

need to complete their Report of Business Transfer form."6 She

also explained that with a "yes" answer to the first online report

question, "our department receives notification that we need start

a transfer investigation, and they would start contacting them for

that."7 On cross-examination, she also explained that there was

nothing in the online report that directed the person completing

it to the ROBT.8 She explained, "It only does that if the employer

answers yes to that question, the --– did you acquire this activity

from a previously employer question, otherwise, it does not."9

¶40 Rostislav Pukshansky, an owner of Friendly Village, also

testified. He said that Jesse Pukshansky completed the online

report for Friendly Village. He explained that Jesse is 22 years

old and had no legal education or experience with DWD. As part of

his testimony, Mr. Pukshansky also presented a communication that

concluded that Northpoint's late filing was accepted based on a

determination that the lateness was due to excusable neglect.

¶41 Mr. Pukshansky never received any communication from DWD

or from the seller, Rhinelander Healthcare Operator, regarding

successor status or an ROBT application. He was provided with a

6 Transcript of Administrative Hearing, Department of Workforce Development, at 21 (Oct. 3, 2018). 7 Id. 8 Id. at 24. 9 Id.

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ROBT form in early March of 2018 after he reached out to DWD with

questions about what he had heard about Northpoint's experience.

He was told he could still apply to become a successor to the

seller's account experience and to write a letter, as Northpoint

had, explaining why the ROBT filing was late. He testified that

he called the contact for the seller that same day and asked him

to complete the seller's part of the ROBT.10 The seller did so.11

It was that joint ROBT that Friendly Village filed with DWD on

March 13, 2018.

¶42 Mr Pukshansky also testified about his call with

Ms. Church. "I remember she confirmed that there hadn't been any

forms sent by the unemployment office for the Rhinelander/Friendly

Village sale. We both figured out maybe because of the way the

registration was filled out by Jesse initially, there might have

been misunderstanding or mistake on one of the questions."12 After

their discussion, he submitted a letter explaining why the ROBT

10 Id. at 36. 11 Id. at 38. 12Id. at 40. Later, on redirect, Ms. Church confirmed that Northpoint's answer to the first report question had been, "no," just as Friendly Village had answered its first report question. She also explained that a second report had been submitted for Northpoint on March 8, 2018, and in that report, Northpoint answered the first question, "yes." Ms. Church explained that March 8th "was about the same time as [her] activity with, uh, Mr. [Pukshansky] was going on regarding Friendly Village." She further explained that March 8, 2018 was after DWD's March 6, 2018 grant of successorship to Northpoint. Transcript of Administrative Hearing Department of Workforce Development, at 53- 54 (Oct. 3, 2018).

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was late, and he asked her "to grant the excusable neglect

exception in a similar basis as the North Point facility."13

¶43 After a full evidentiary hearing, the Administrative Law

Judge determined that Friendly Village's late filing was due to

excusable neglect; and therefore, its ROBT should be accepted.

LIRC reversed the Administrative Law Judge's decision, without

taking any additional testimony and without conferring with the

Administrative Law Judge.14

¶44 LIRC concluded that because the Eden employee who

completed the online report did not appear to testify, "[t]here

thus is no competent evidence establishing the nature of his error,

such that a finder of fact could conclude that the error was

excusable."15 The issue, however, is whether the totality of

circumstances relative to the late filing fulfilled the legal

standard for excusable neglect pursuant to Wis. Stat.

§ 108.16(8)(b)4. This includes the factual background for the

late filing and subsequent actions taken by Friendly Village in

regard to becoming the successor of its seller's unemployment

account experience. As I explain below, it is the undisputed facts

applied to the statutory standard that drives the question of law

that controls this case. LIRC did not apply the correct standard

of review because it thought excusable neglect was a finding of

13 Id. at 41.

Rhinelander 14 Healthcare Operator 150, LLC Employer/Transferor Friendly Village Nursing and Rehab, LLC, Employer/Transferee, No. S1800077MD, slip op. at 2 (April 24, 2019). 15 Id. at 3.

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fact and that it could be shown only by testimony from Jesse

Pukshansky that relayed what he was thinking when he completed

DWD's online report.

¶45 Friendly Village appealed LIRC's determination. The

circuit court affirmed LIRC, as did the court of appeals.

II. DISCUSSION

A. Standard of Review

¶46 The Administrative Law Judge concluded that excusable

neglect had been shown for Friendly Village's late ROBT filing.

LIRC concluded the opposite.16 Whether excusable neglect has been

shown requires us to determine whether the uncontested facts

fulfill the statutory standard set out in Wis. Stat.

§ 108.16(8)(b)4. This determination presents a question of law,

Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671 N.W.2d 279;

Johns v. County of Oneida, 201 Wis. 2d 600, 605, 549 N.W.2d 269

(Ct. App. 1996), which we review independently. Tetra Tech EC,

Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21.

B. Excusable Neglect

¶47 Excusable neglect is not an easy legal principle to

apply. It appears in a number of different statutes to be used in

a number of different contexts. For example, Wis. Stat.

§ 801.15(2)(a), which employs excusable neglect, often is

discussed in opinions involving default judgments when a filing

deadline has been missed. See e.g., Hedtcke v. Sentry Ins. Co.,

109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982).

We review LIRC's decision not that of the circuit court or 16

the court of appeals. Operton v. LIRC, 2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426.

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¶48 In regard to LIRC's decision on a transferee's successor

status when the transferee's application is received late,

excusable neglect is driven by Wis. Stat. § 108.16(8), which

provides in relevant part:

(b) If the business of any employer is transferred, the transferee is deemed a successor for purposes of this chapter if the department determines that all of the following conditions have been satisfied:

. . . .

4. The department has received a written application from the transferee requesting that it be deemed a successor. Unless the transferee satisfies the department that the application was late as a result of excusable neglect, the application must be received by the department on or before the contribution payment due date for the first full quarter following the date of the transfer. The department shall not accept a late application under this subdivision more than 90 days after its due date.[17] § 108.16(8)(b). All agree that Friendly Village met all the

criteria to become a successor to Rhinelander Healthcare Operator

150's unemployment account experience, except for its tardy filing

of the ROBT. ¶49 Whether the undisputed facts fulfill "excusable neglect"

for the late filing of Friendly Village's ROBT pursuant to Wis.

Stat. § 108.16(8)(b)4. is central to this controversy. The

majority opinion does not cite a decision interpreting

§ 108.16(8)(b)4., and I could find none. The majority opinion

17Wisconsin Admin. Code § DWD 115.07(2)(a) contains a similar directive: "The department shall accept a late application received no more than 90 days after its due date if the transferee satisfies the department that the application was late as a result of excusable neglect."

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simply concludes Friendly Village had an obligation to timely file

a ROBT and it did not meet it.18

¶50 I conclude that a plain reading of Wis. Stat.

§ 108.16(8)(b)4. requires that a reasonable factual cause must

contribute to filing the ROBT late in order to constitute excusable

neglect. This conclusion is consistent with employing a reasonable

factual cause as a contributing factor for excusable neglect in

other contexts.

¶51 For example, applying Wis. Stat. § 801.15(2)(a), we

concluded in Hedtcke that "the first step is to determine if there

are reasonable grounds for the noncompliance with the statutory

time period (excusable neglect)." Id. We also reasoned that a

court must "be aware of the effects of an order denying or granting

relief." Id. at 469. That is, what effect would the court's

decision have on both parties.

¶52 Wisconsin courts have defined excusable neglect as

"conduct that 'might have been the act of a reasonably prudent

person under the same circumstances.'" Binsfeld v. Conrad, 2004

WI App 77, ¶23, 272 Wis. 2d 341, 679 N.W.2d 851. In Binsfeld where

a motion for default judgment was lodged against Conrad, Conrad

responded that he should not be subject to a default judgment

because confusion was caused, in part, by Binsfeld's counsel.

Conrad relayed that when the insurance company's representative

asked counsel for Binsfeld for the answer's due date, he said that

he would get back to him but never did. Id., ¶27. In considering

the totality of circumstances that bear on excusable neglect, the

18 Majority op., ¶¶27, 28.

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court concluded that "ineffective communication" had occurred

thereby supporting the legal conclusion of excusable neglect. Id.,

¶30.

¶53 In the matter before us, I consider the totality of

circumstances that contributed to Friendly Village's late filing.

First, when Friendly Village attempted to register as an employer

with DWD by completing DWD's online report, the first question did

not ask about the purchase of a business. Instead it asked, "Did

you acquire this activity from a previous employer?" Because

Friendly Village answered that question, "No," DWD's report was

programmed not to communicate with Friendly Village about

successor status, as it would have if the answer to that question

had been "Yes."19

¶54 If DWD had contacted Friendly Village as a new employer,

effective communication would have facilitated Friendly Village's

timely filing. Also, Friendly Village's seller did not report the

sale of its business to DWD within 30 days of the September 1,

2017 sale as Wis. Stat. § 108.16(8)(k) required. If it had done

so, DWD would have known about Friendly Village as a new employer,

as apparently DWD did with Northpoint. Therefore, ineffective

communications from DWD due to DWD's programming of the online

report and the seller, who did not comply with § 108.16(8)(k) were

contributing causes of Friendly Village's late filing because both

resulted in limiting DWD's communication of necessary information

to Friendly Village. Id.

Transcript of Administrating Hearing, 19 Department of Workforce Development, at 21 (Oct. 3, 2018).

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¶55 Second, Friendly Village corrected its late filing as

soon as it learned what it should do. Mr. Pukshansky explained

that he learned about successor status in late February 2018 when

he heard about Northport's experience.20 He testified that he

called DWD and learned of the ROBT and that both Friendly Village

and its seller had to sign it. He called his contact with the

seller that same day, asked him to sign the ROBT, and sent him the

form.21 When the seller returned the signed ROBT, Mr. Pukshansky

promptly filed it with DWD.22 Prompt corrective action is

supportive of concluding that excusable neglect has been shown.

Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 512,

285 N.W.2d 720 (1979) (directing that in "determining whether the

'reasonably prudent person' standard has been met, the trial court

should consider whether the person has acted promptly to remedy

his situation").

¶56 The majority opinion quotes excerpts from Black's Law

Dictionary that defines excusable neglect as, "A failure——which

the law will excuse——to take some proper step at the proper

time . . . not because of the party's own carelessness,

inattention, or willful disregard . . . but because of some

unexpected or unavoidable hindrance or accident."23 Although I do

Transcript of Administrative Hearing, 20 Department of Workforce Development, at 50 (Oct. 3, 2018). 21 Id. at 36. 22 Id. at 38. 23 Majority op., ¶21 n.15; Black's Law Dictionary, 1133 (9th ed).

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not agree with the majority opinion's ultimate conclusion, I have

no problem with Black's definition.

¶57 In the matter before us, the majority opinion does not

seem to have a clue about why Friendly Village was a victim of

DWD's computer program that underlies its online report. This is

surprising because as explained by Ms. Church in her testimony at

the administrative hearing, the report controls whether

communication about filing a ROBT will be sent from DWD's "system"

to a new Wisconsin employer. It also controls whether DWD will

receive notice so that it will begin contacting the new employer.

¶58 Friendly Village had no knowledge of DWD's programming

and how it impacted effective communication between DWD and

Friendly Village, nor is it reasonable to expect that as a new

employer it should have had such knowledge. Accordingly, the

reason for Jesse Pukshansky's answering the first question "No"

does not matter. Whatever his reason, communication from DWD to

Friendly Village would be the same: no communication because of

the program's response to a "No" answer.24

¶59 The Administrative Law Judge who heard Ms. Church's

testimony concluded that given an employee inexperienced with DWD

completed the online report, excusable neglect for the late filing

had been shown. LIRC reversed.25

I hope that DWD reads this dissent and revises its program 24

for the online report so that sending ROBT filing information and departmental-successor contacts occur for all new employers who complete DWD's online report. 25 LIRC decision at 3.

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¶60 Although LIRC's opinion shows it likely knew how the

online report program functioned, its decision ignores how

critical that knowledge was to effectively completing the online

report. Its decision also seems to presume that the employee who

completed Friendly Village's online report should have known what

results would be generated by DWD's system if question one were

answered "Yes." The record contains nothing to support such a

presumption.

¶61 DWD set up the online report through its Bureau of Tax

and Accounting – Tax Unit. How the report is programmed and

functions is beyond the control and knowledge of those who complete

the report for the first time. Ms. Church may not have understood

the underlying programming, but she knew how the online program

worked, as her testimony showed.

¶62 There is no way that the Eden employee who was new to

Wisconsin and completed DWD's online report would know, or should

know, that a "No" answer to the first online report question would

deny Friendly Village communications from DWD that would

facilitate its registration as an employer with successor status.

Rather, the failures of DWD to send necessary information and to

begin its business transfer investigation resulted from the way in

which DWD's online report is programmed. The resulting

"ineffective communication" from DWD was a contributing cause of

Friendly Village's late filing, just as "ineffective

communication" contributed to the court of appeals' conclusion of

excusable neglect in Binsfeld.

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¶63 Accordingly, because the programming of DWD's online

report set up the chain of events that resulted in Friendly

Village's tardy filing of its ROBT, together with the seller's

failing to register the business sale and Friendly Village's prompt

efforts at correcting its tardy filing, I conclude that the

statutory standard for excusable neglect has been met. Friendly

Village was not careless. Rather, the online report created an

unexpected hindrance to an employer who did not know that the

report provided differing assistance to the employer as the result

of differing answers to the first report question.

III. CONCLUSION

¶64 In the case before us, the manner in which DWD programmed

its response to answers to its online questions denied Friendly

Friendly Village's timely filing as a successor business. Stated

otherwise, DWD's programming was a reasonable factual cause that

contributed to Friendly Village's late filing. In addition,

Friendly Village's seller did not notify DWD as Wis. Stat.

§ 108.16(8)(k) required. And finally, Friendly Village promptly

filed corrected information with DWD. Therefore, under the

totality of circumstances, I conclude that Friendly Village proved

excusable neglect. Because the majority opinion follows LIRC's

erroneous lead and does not review the totality of circumstances

as is required, I respectfully dissent.

¶65 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this dissent.

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