In the Missouri Court of Appeals Eastern District DIVISION ONE
JAMIE MARX, ) No. ED111992 ) Appellant, ) Appeal from the Labor and Industrial ) Relations Commission v. ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondent. ) Filed: June 25, 2024
Introduction
Jamie Marx (“Marx”) appeals the Labor and Industrial Relations Commission’s order
affirming the Division of Employment Security’s denial of Marx’s petition for reassessment. On
appeal, Marx argues the Commission’s decision was not supported by substantial and competent
evidence. We affirm the decision of the Commission.
Factual and Procedural Background
Facts
We borrow some of the facts from Marx’s first appeal to this Court in Marx v. Division of
Employment Security, 666 S.W.3d 252 (Mo. App. E.D. 2023):
Marx became unemployed in September 2019 following the sale of his employer company,
Sachs Properties. On an unknown date, Marx filed his initial claim for unemployment benefits.
1 Marx alleged that, during that time, he “faithfully complied with all reporting requirements and
submitted weekly claims, including work search information and acknowledgment of my
continued unemployment.” Marx submitted weekly claims through his “UInteract” account.
“UInteract” is the online website of the Missouri Division of Employment Security, where
claimants of unemployment benefits have their own accounts. See Harden v. Div. of Emp. Sec.,
655 S.W.3d 796, 798 n.3 (Mo. App. S.D. 2022). Between May 3, 2020 and October 10, 2020,
Marx was paid unemployment benefits pursuant to the CARES Act of 2020 and the Missouri
Employment Security Law.
Ineligibility and Overpayment Determinations
On December 9, 2020, a deputy with the Division determined Marx had not provided
information about his work status. The deputy determined Marx had been ineligible for benefits
since April 26, 2020 for not meeting registration or reporting requirements. Then, on August 12,
2021, a deputy determined Marx was overpaid benefits from May 9, 2020 to October 10, 2020,
during the period for which Marx had been found ineligible for benefits. The deputy determined
Marx was overpaid $2,790.00 in benefits. Marx appealed these determinations to the Division’s
Appeals Tribunal, the Labor and Industrial Relations Commission, and to this Court.
Untimely Appeal of Ineligibility and Overpayment Determination
This Court previously found Marx’s appeal to the Appeals Tribunal of the ineligibility
determination was untimely by nearly a year, and his appeal of the overpayment determination
was approximately three months out of time. Marx, 666 S.W.3d at 254, 258. Thus, the Commission
properly dismissed Marx’s appeal of the ineligibility and overpayment determinations. Id. at 258.
As a result of the untimely appeal, the Division’s determinations became final 30 days after the
deputy made the determinations.
2 Procedural History
After the expiration of the thirty-day period following the Division’s ineligibility and
overpayment determinations, the Division served Marx with a Notice of Order of Assessment of
Overpaid Benefits via certified mail on November 12, 2021. Marx received the Notice. Marx had
also received all of the $2,790.00 in overpaid benefits and had not repaid any of that amount. In
response to receiving the Notice, Marx timely filed a petition for reassessment on December 6,
2021.
On June 7, 2023, the Appeals Tribunal held a hearing on Marx’s petition for reassessment.
During this hearing, Marx admitted receiving the Notice of Order of Assessment via certified mail.
Marx also admitted he did not repay any of the overpaid benefits.
On June 21, 2023, the Appeals Tribunal denied Marx’s petition for reassessment. The
Appeals Tribunal found that a Division deputy had previously determined Marx was ineligible for
benefits from April 26, 2020 due to a failure to provide information to the Division. Marx had filed
a late appeal of the deputy’s determination, the Appeals Tribunal had dismissed the untimely
appeal, and the deputy’s determination had been made final. Additionally, the Tribunal found that
a deputy had previously determined that Marx was overpaid benefits for the period of August 2,
2020 through October 10, 2020, in the amount of $2,790.00 because he was paid during a period
of ineligibility. 1 Marx had filed an untimely appeal of the overpayment determination, and the
Appeals Tribunal had dismissed the appeal on February 24, 2022. The overpayment determination
had been made final.
1 Marx does not challenge on appeal the Tribunal’s determination of the specific date on which he became ineligible for benefits. 3 In reviewing the petition for reassessment, the Appeals Tribunal analyzed whether Marx’s
Notice of Order of Assessment was properly served and calculated. The Tribunal concluded that
the Division properly served Marx with the Notice by certified mail on November 12, 2021.
Further, the Tribunal concluded that Marx “received the entirety of the $2,790.00 in overpaid
benefits that are the subject of the Order of Assessment and the claimant has made no payments
that would have reduced the assessed amount.” Finally, the Tribunal found “no credible evidence
that shows that the assessment was improperly made or that it should be recalculated.” The Appeals
Tribunal denied the petition and affirmed the Order of Assessment.
Marx appealed the Appeals Tribunal’s decision to the Labor and Industrial Relations
Commission. The Commission affirmed the decision of the Appeals Tribunal and adopted the
decision as its own.
Marx now appeals to this Court. 2
Discussion
On appeal, Marx argues the Commission’s decision denying his petition for reassessment
is not supported by substantial and competent evidence.
Standard of Review
Judicial appellate review of the Commission’s decision in an unemployment case is
governed by Section 288.210, 3 which provides:
2 The Division urges us to dismiss Marx’s brief for failure to follow the briefing requirements of Rule 84.04. While Marx’s briefing appears to be deficient, “our preference is to resolve cases on the merits.” Southside Ventures, LLC v. La Crosse Lumber Co., 574 S.W.3d 771, 783 n.4 (Mo. App. W.D. 2019). “To the extent we are able to understand the nature of the claim[s] presented,” and the Division was “able to understand and effectively address those claim[s] in its responsive brief, we exercise our discretion to review [Marx’s] claims ex gratia.” Id. (quoting C.S. v. Mo. Dep’t of Soc. Servs., 491 S.W.3d 636, 644 n.9 (Mo. App. W.D. 2016)). 3 All statutory references are to RSMo (2000), as amended, unless otherwise indicated. 4 The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
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In the Missouri Court of Appeals Eastern District DIVISION ONE
JAMIE MARX, ) No. ED111992 ) Appellant, ) Appeal from the Labor and Industrial ) Relations Commission v. ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondent. ) Filed: June 25, 2024
Introduction
Jamie Marx (“Marx”) appeals the Labor and Industrial Relations Commission’s order
affirming the Division of Employment Security’s denial of Marx’s petition for reassessment. On
appeal, Marx argues the Commission’s decision was not supported by substantial and competent
evidence. We affirm the decision of the Commission.
Factual and Procedural Background
Facts
We borrow some of the facts from Marx’s first appeal to this Court in Marx v. Division of
Employment Security, 666 S.W.3d 252 (Mo. App. E.D. 2023):
Marx became unemployed in September 2019 following the sale of his employer company,
Sachs Properties. On an unknown date, Marx filed his initial claim for unemployment benefits.
1 Marx alleged that, during that time, he “faithfully complied with all reporting requirements and
submitted weekly claims, including work search information and acknowledgment of my
continued unemployment.” Marx submitted weekly claims through his “UInteract” account.
“UInteract” is the online website of the Missouri Division of Employment Security, where
claimants of unemployment benefits have their own accounts. See Harden v. Div. of Emp. Sec.,
655 S.W.3d 796, 798 n.3 (Mo. App. S.D. 2022). Between May 3, 2020 and October 10, 2020,
Marx was paid unemployment benefits pursuant to the CARES Act of 2020 and the Missouri
Employment Security Law.
Ineligibility and Overpayment Determinations
On December 9, 2020, a deputy with the Division determined Marx had not provided
information about his work status. The deputy determined Marx had been ineligible for benefits
since April 26, 2020 for not meeting registration or reporting requirements. Then, on August 12,
2021, a deputy determined Marx was overpaid benefits from May 9, 2020 to October 10, 2020,
during the period for which Marx had been found ineligible for benefits. The deputy determined
Marx was overpaid $2,790.00 in benefits. Marx appealed these determinations to the Division’s
Appeals Tribunal, the Labor and Industrial Relations Commission, and to this Court.
Untimely Appeal of Ineligibility and Overpayment Determination
This Court previously found Marx’s appeal to the Appeals Tribunal of the ineligibility
determination was untimely by nearly a year, and his appeal of the overpayment determination
was approximately three months out of time. Marx, 666 S.W.3d at 254, 258. Thus, the Commission
properly dismissed Marx’s appeal of the ineligibility and overpayment determinations. Id. at 258.
As a result of the untimely appeal, the Division’s determinations became final 30 days after the
deputy made the determinations.
2 Procedural History
After the expiration of the thirty-day period following the Division’s ineligibility and
overpayment determinations, the Division served Marx with a Notice of Order of Assessment of
Overpaid Benefits via certified mail on November 12, 2021. Marx received the Notice. Marx had
also received all of the $2,790.00 in overpaid benefits and had not repaid any of that amount. In
response to receiving the Notice, Marx timely filed a petition for reassessment on December 6,
2021.
On June 7, 2023, the Appeals Tribunal held a hearing on Marx’s petition for reassessment.
During this hearing, Marx admitted receiving the Notice of Order of Assessment via certified mail.
Marx also admitted he did not repay any of the overpaid benefits.
On June 21, 2023, the Appeals Tribunal denied Marx’s petition for reassessment. The
Appeals Tribunal found that a Division deputy had previously determined Marx was ineligible for
benefits from April 26, 2020 due to a failure to provide information to the Division. Marx had filed
a late appeal of the deputy’s determination, the Appeals Tribunal had dismissed the untimely
appeal, and the deputy’s determination had been made final. Additionally, the Tribunal found that
a deputy had previously determined that Marx was overpaid benefits for the period of August 2,
2020 through October 10, 2020, in the amount of $2,790.00 because he was paid during a period
of ineligibility. 1 Marx had filed an untimely appeal of the overpayment determination, and the
Appeals Tribunal had dismissed the appeal on February 24, 2022. The overpayment determination
had been made final.
1 Marx does not challenge on appeal the Tribunal’s determination of the specific date on which he became ineligible for benefits. 3 In reviewing the petition for reassessment, the Appeals Tribunal analyzed whether Marx’s
Notice of Order of Assessment was properly served and calculated. The Tribunal concluded that
the Division properly served Marx with the Notice by certified mail on November 12, 2021.
Further, the Tribunal concluded that Marx “received the entirety of the $2,790.00 in overpaid
benefits that are the subject of the Order of Assessment and the claimant has made no payments
that would have reduced the assessed amount.” Finally, the Tribunal found “no credible evidence
that shows that the assessment was improperly made or that it should be recalculated.” The Appeals
Tribunal denied the petition and affirmed the Order of Assessment.
Marx appealed the Appeals Tribunal’s decision to the Labor and Industrial Relations
Commission. The Commission affirmed the decision of the Appeals Tribunal and adopted the
decision as its own.
Marx now appeals to this Court. 2
Discussion
On appeal, Marx argues the Commission’s decision denying his petition for reassessment
is not supported by substantial and competent evidence.
Standard of Review
Judicial appellate review of the Commission’s decision in an unemployment case is
governed by Section 288.210, 3 which provides:
2 The Division urges us to dismiss Marx’s brief for failure to follow the briefing requirements of Rule 84.04. While Marx’s briefing appears to be deficient, “our preference is to resolve cases on the merits.” Southside Ventures, LLC v. La Crosse Lumber Co., 574 S.W.3d 771, 783 n.4 (Mo. App. W.D. 2019). “To the extent we are able to understand the nature of the claim[s] presented,” and the Division was “able to understand and effectively address those claim[s] in its responsive brief, we exercise our discretion to review [Marx’s] claims ex gratia.” Id. (quoting C.S. v. Mo. Dep’t of Soc. Servs., 491 S.W.3d 636, 644 n.9 (Mo. App. W.D. 2016)). 3 All statutory references are to RSMo (2000), as amended, unless otherwise indicated. 4 The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.
In the absence of fraud, the Commission’s factual findings are conclusive and binding if
supported by competent and substantial evidence. Burns v. Lab. Indus. Rels. Comm’n, 845 S.W.2d
553, 554-55 (Mo. banc 1993); McCabe v. ADP Total Source FL XVIII, Inc., 653 S.W.3d 420, 423
(Mo. App. E.D. 2022). “We will affirm the Commission’s decision if we find, upon a review of
the whole record, that there is sufficient competent and substantial evidence to support the
Commission’s decision.” McCabe, 653 S.W.3d at 423-24 (quoting Smith v. Greyhound Bus Co.,
477 S.W.3d 55, 59 (Mo. App. E.D. 2015)).
Analysis
The only issue before this Court is whether the Commission’s denial of Marx’s petition for
reassessment is supported by competent and substantial evidence. Our review of the Commission’s
decision denying the petition for reassessment is “limited to the making of the assessment and the
calculations involved.” Tucker v. Labor Indus. Rels. Comm’n, 815 S.W.2d 37, 38 (Mo. App. W.D.
1991).
Our review does not include the previous ineligibility and overpayment determinations,
which Marx erroneously asks us to review. Id. In this case, the Commission, in adopting the
5 Appeals Tribunal’s decision, found both the December 2020 ineligibility determination and the
August 2021 overpayment determination were final. Marx was required to file his appeal within
30 days of the ineligibility and overpayment determinations. See 8 C.S.R. § 10-5.10(5)(C). 4 As
this Court previously determined, Marx failed to file his appeal within 30 days of the
determinations, and they thus became final upon the expiration of the 30-day period. See Marx,
666 S.W.3d at 258. On that basis, the Commission’s factual finding here that the determinations
were final is supported by substantial and competent evidence.
Also, the Commission found no credible evidence that the assessment should be
recalculated. The Commission, in adopting the Appeals Tribunal’s decision, found that Marx
“received the entirety of the $2,790.00 in overpaid benefits.” This amounted to $310 per week for
nine weeks. Marx had not repaid any of the overpaid benefits, and the amount of the assessment
was correct. Substantial and competent evidence thus supports the Commission’s decision that the
assessment was correct and is not to be recalculated.
Finally, substantial and competent evidence likewise supports the Commission’s finding
that the Division properly served Marx with the Notice of Order of Assessment via certified mail
on November 12, 2021. See Section 288.160.3; Div. of Emp’t Sec. v. Cusumano, 809 S.W.2d 113,
114 (Mo. App. E.D. 1991). First, the record indicates the Division in fact mailed the Notice of
Order of Assessment. Second, before the Appeals Tribunal, Marx fully admitted he received the
Notice of Order of Assessment.
In sum, substantial and competent evidence supports the Commission’s decision denying
Marx’s petition for reassessment. The point is denied.
Conclusion
4 All regulatory references are to C.S.R. (2023). 6 For the foregoing reasons, we affirm the decision of the Commission.
Cristian M. Stevens, J.
Robert M. Clayton III, P.J., and Philip M. Hess, J., concur.