King v. Division of Employment Security

964 S.W.2d 832, 1997 Mo. App. LEXIS 1920, 1997 WL 693713
CourtMissouri Court of Appeals
DecidedNovember 10, 1997
DocketNo. WD 53501
StatusPublished
Cited by4 cases

This text of 964 S.W.2d 832 (King 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
King v. Division of Employment Security, 964 S.W.2d 832, 1997 Mo. App. LEXIS 1920, 1997 WL 693713 (Mo. Ct. App. 1997).

Opinion

SMART, Judge.

The Missouri Division of Employment Security (“Division”) determined that Lee King was an “employer” subject to § 288.032, RSMo 1994 1. Ms. King’s appeal of that decision was dismissed by the Appeals Tribunal (“Tribunal”) as untimely. The Labor and Industrial Relations Commission (“Commission”) affirmed the decision of the Tribunal. Ms. King alleges that the Commission erred in applying 8 CSR 10-5.040(4) to limit the statutory “good cause” basis to extend the time of the appeal pursuant to § 288.130.4. She also contends that the Commission erred in concluding that good cause did not exist for extending the 15 day filing period. Judgment is vacated and remanded to the Commission.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. King operates a business, Personal Promotions Limited, in partnership with her husband. Personal Promotions Limited operates as an agency providing demonstration services for grocery stores, food companies and brokers. On July 6, 1992, the Division dispatched notification to Ms. King by letter of its determination that she was an “employer” subject to Missouri Employment Security Law. Counsel for Ms. King received a copy of the determination on July 8, 1992. The letter informed Ms. King that the determination would become final fifteen days after the date that the letter was mailed unless a signed written request for a hearing was filed within those fifteen days. The deadline, therefore, was July 21,1992.

On July 23, 1992, counsel filed a motion to extend the time to file the appeal. Counsel then filed an appeal on July 27, 1992, nearly a week after the deadline for filing an appeal had passed.

On October 2, 1992, the Tribunal entered an order dismissing the appeal as untimely. On October 15,1992, Ms. King filed a motion for reconsideration. The Tribunal, on Oeto-ber 19, 1992, set aside its October 2 order and set a hearing on the issue of whether the untimely appeal would be allowed. Ultimately, four years later, on July 11, 1996,2 a hearing was held and on July 26, 1996, the Tribunal entered an order dismissing the appeal on the grounds that the appeal was not filed within the time period provided by statute and that Ms. King did not show good cause to excuse her failure to file a timely appeal.

. Ms. King filed an application for review with the Commission. The Commission adopted the decision of the Tribunal, finding that the decision of the Tribunal should be affirmed because it was supported by competent and substantial evidence on the whole record and was in accordance with law. Ms. King appeals.

STANDARD OF REVIEW

Review is governed by Section 288.210, RSMo Supp.1996, which provides, in pertinent part:

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 making the determination of whether the Commission’s findings are sup[835]*835ported by competent and substantial evidence, an appellate court employs a two-step process. We outlined the process for review of an award made by the Commission in worker’s compensation decisions in Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App.1995). In Travelers Equities Sales, Inc. v. Division of Employment Sec., 927 S.W.2d 912, 917 (Mo.App.1996) we held that the Davis standard was applicable to employment security decisions as well. Review is a two-step process. First, an appellate court must determine whether the whole record, viewed in the light most favorable to the decision, contains sufficient competent and substantial evidence to support the Commission’s decision. Davis, 903 S.W.2d at 571. If it does, the court, in the second step, makes a determination as to whether the decision is against the overwhelming weight of the evidence. Id. In this second step, the reviewing court considers all of the evidence in the record, including that not favorable to the decision. Id.

“GOOD CAUSE”

In Point I, Ms. King claims that the Commission erred in applying the regulation defining good cause, 8 CSR 10-5.040(4), to limit the appeal time under § 288.130.4. She contends that the regulation contradicts the expressed will of the legislature, which has specifically allowed an extension of the 15 day time period for “good cause.” She bases her argument on the amendment of § 288.130 in 1988. Before the 1988 amendment to the statute, there was no provision for extending the time for filing an appeal. The 1988 amendment added subsection 4 which allows an extension of time for good cause. She reasons that the restrictive definition of good cause promulgated in 8 CSR 10-5.040(4) thwarts the purpose of the legislature because, she suggests, that there are very few situations that fit the definitional criteria of that section. She argues that, as a result of the strict definition of good cause, the right to an extension of the deadline is rendered practically meaningless.

Section 288.130 provides, in pertinent part:

3. A deputy shall make an ex parte determination after investigation but without hearing with respect to any matter pertaining to the liability of an employing unit which does not involve a claimant. The deputy shall promptly notify any interested employing units of each such determination and the reason for it. The division shall grant a hearing before an appeals tribunal to any employing unit appealing from any such ex parte determination provided an appeal is filed in writing within fifteen days following the date of notification or the mailing of such determination to the party’s last known address. In the absence of an appeal any such determination shall become final at the expiration of a fifteen-day period. The deputy may, however, at any time within a year from the date of his determination, for good cause, reconsider the determination and shall promptly notify all interested employing units of his amended determination and the reason for it.
4. The fifteen-day period provided in subsection 3 of this section may, for good cause, be extended.

There is no definition of the term “good cause” provided.

Under the authority of § 288.220.5, which allows the director of the Division to adopt, amend or rescind rules and regulations necessary to implement the law, a definition of “good cause” was adopted and is set out in 8 CSR 10-5.040(4).

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990 S.W.2d 32 (Missouri Court of Appeals, 1999)

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Bluebook (online)
964 S.W.2d 832, 1997 Mo. App. LEXIS 1920, 1997 WL 693713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-division-of-employment-security-moctapp-1997.