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Trucking v. Division of Employment Security

Court of Appeals of Missouri, Western District, Second Division

September 5, 2017

HAWKS BLUFF TRUCKING, Appellant,
v.
DIVISION OF EMPLOYMENT SECURITY, Respondent.

         Appeal from the Labor and Industrial Relations Commission

          Before: Edward R. Ardini, Jr., Presiding Judge, Anthony Rex Gabbert, Judge, Karen King Mitchell, Judge

          Anthony Rex Gabbert, Judge

         Hawks Bluff Trucking, Inc. (Hawks Bluff) appeals the determination of the Labor and Industrial Relations Commission (Commission) that Hawks Bluff demonstrated no good cause for failing to timely file its appeal of a decision of the Division of Employment Security Appeals Tribunal (Appeals Tribunal). Hawks Bluff raises three points. First, Hawks Bluff contends that the Commission erred in upholding the decision of the Appeals Tribunal because the Appeals Tribunal referee made no conclusion of law as to when the determination letter was mailed, which was an issue before the referee because Hawks Bluff introduced evidence to rebut the prima facie presumption of Section 288.245, RSMo 2000. Second, Hawks Bluff contends that the Commission erred in upholding the decision of the Appeals Tribunal because the determination letter does not comply with Section 288.130.4, RSMo 2000, because as a matter of law it is not calculated to give notice of the deputy's determination and a right to an appeal and was not promptly mailed by the deputy making the determination. Third, Hawks Bluff contends that the Commission erred in upholding the decision of the Appeals Tribunal because the finding of law by the referee, that Hawks Bluff's president's failure to read the determination letter delivered to her business was not reasonable and not done in good faith, is not supported by any facts and is a material misstatement of the law. We affirm.

         Elizabeth Sayre has been the president of Hawks Bluff Trucking since 2007. Sayre is Hawks Bluff's only officer, manager, and board of director member. The business has at least ten workers. The business's address is 10346 Murphy Road, Box 268, Tiff, Missouri 63674. Sayre worked in Chicago during the week and Sayre's employee, Michelle McGlothilin, handled office matters in Tiff while Sayre worked in Chicago. The two communicated via telephone during the week and Sayre generally came back to Tiff on the weekends. Typically, McGlothilin picked up business mail at the Tiff post office, which was open from 10:15 a.m. until 12:00 p.m. every day. Sayre had friends who would pick up the mail if McGlothilin was unable. Sayre had additional businesses she ran from Tiff besides Hawks Bluff Trucking, and substantially all of the mail that came to the Tiff post office was for her.

         In 2014 the Division of Employment Security (DES) commenced an investigation into the working relationship of individuals Sayre did not consider to be employees of Hawks Bluff Trucking to determine if the wages of those individuals were reportable and taxable pursuant to Missouri's Employment Security Law. Sayre began communicating with DES in July of 2014 regarding this matter. DES's auditor, Maryetta Eaton, testified that when the investigation was complete in February 2015, Eaton informed Sayre via email of the results of the investigation and Sayre called her the following day. Eaton informed Sayre that an official determination would arrive in a few weeks from Jefferson City in the form of a computerized letter and that Sayre would have the right to appeal that determination.

         The DES issued the determination letter dated March 4, 2015. Sayre testified that, at some point McGlothilin opened the envelope containing the determination letter from the DES but Sayre does not know when it was opened or when it was read. McGlothilin did not testify. Sayre testified that McGlothilin did not notify Sayre of mail that was received at Tiff during the week but separated out what she considered to be important mail and put the other mail in a junk mail pile; McGlothilin did not read mail considered unimportant.[1] When Sayre was in Tiff on weekends she handled Hawks Bluff's business matters, attending to accounting matters first and mail last.

         Sayre testified that she did not know exactly when she personally realized that Hawks Bluff had received the determination letter but thought it was sometime around April 12, 2015, as she knew when she sent it to her attorney. Hawks Bluff's appeal was filed on April 23, 2015. The Appeals Tribunal dismissed Hawks Bluff's appeal as untimely filed pursuant to Section 288.130.4. Hawks Bluff requested reconsideration. The Appeals Tribunal granted reconsideration and set the matter for hearing as to timeliness and the merits.

         After reconsideration, the Appeals Tribunal determined that the appeal was untimely and that good cause did not exist to extend the filing deadline. The Tribunal found that the determination was mailed on March 4, 2015. The Tribunal concluded that Sayre was in regular contact with the DES auditor prior to March 4, 2015, and that Sayre's clerical worker, McGlothilin, was also aware of the investigation. The Appeals Tribunal found that Eaton had informed Sayre of the preliminary determination and the timeline for a final written determination, as well as appeal rights. Ultimately, the Tribunal concluded that Sayre could have read her mail and discovered the written determination and that "[f]ailing to read correspondence delivered to her business was not reasonable under the circumstances, and demonstrates an absence of good faith." Having found no good cause for the untimeliness of Hawks Bluff's appeal, the Tribunal did not address the merits of the appeal.

         Hawks Bluff filed an Application for Review to the Commission. The Commission affirmed and adopted the decision of the Appeals Tribunal. This appeal follows.

         Our review[2] of the Commission's decision is governed by Section 288.210, RSMo 2000, 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 ...

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