Atlas Mobilfone, Inc. v. Labor and Indus. Relations Com'n, WD
| Decision Date | 14 January 1997 |
| Docket Number | No. WD,WD |
| Citation | 939 S.W.2d 928 |
| Parties | ATLAS MOBILFONE, INC., Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, Respondent. 52901. |
| Court | Missouri Court of Appeals |
Gary A. Powell, Springfield, for appellant.
Ronnae L. Coleman, Kansas City, for respondent.
Before LOWENSTEIN, P.J., and BERREY and EDWIN H. SMITH, JJ.
Atlas Mobilfone (appellant) appeals the decision of the Labor and Industrial Relations Commission (the Commission) affirming the decision of the Division of Employment Security (the Division) classifying appellant as a new employer for purposes of determining appellant's unemployment contribution tax rate, § 288.110. 1 Atlas Security at one time conducted two businesses, a security business and a paging business. The majority shareholder of Atlas Security, Marvin Britton, later incorporated appellant, with Atlas Security retaining the security business and appellant assuming the operations of the paging business. Appellant seeks status as a successor corporation to Atlas Security under § 288.110 in order to succeed to Atlas Security's unemployment contribution tax rate of 0.0% under the Missouri Employment Security Act, rather than the new employer rate of 2.7%. Appellant raises two points on appeal: 1) that the Commission erred in affirming certain critical findings of fact of the appeals referee that were not supported by competent and substantial evidence; and, 2) that the Commission erred in deciding that appellant was not a successor to Atlas Security under § 288.110 but was a new employer, because such a finding is unreasonable and inequitable under the statute and does not further its purpose to stabilize conditions of employment. Because we find the holding in KSD/KSD-TV, Inc. v. Labor & Indust. Rel. Comm'n, 562 S.W.2d 346 (Mo. banc 1978), to be controlling, we reverse.
The facts viewed in a light most favorable to the decision of the Commission are as follows. Atlas Security has been in the business of selling alarm and fire detection systems and electronic surveillance and roving patrol security services since it was incorporated as a Missouri corporation in 1964. Marvin Britton started the company and was its majority shareholder and principal manager until 1992. Within a few years of Atlas Security's inception, Britton expanded it into the paging business. Britton's son-in-law, Steven Powell, was the sales manager for the paging business and the security business. The two businesses shared some employees, including management and bookkeeping personnel and the receptionist, and operated out of the same facility in Springfield. In 1978, Britton incorporated appellant as a Missouri corporation, and it undertook Atlas Security's paging business while Atlas Security continued to operate the security business. The two corporations continued to operate as they had as Atlas Security: Britton still owned both; he continued to manage both along with Powell; there was no change in business operations; and, both corporations continued to operate from the same facility. To limit administrative problems, the two corporations continued to treat employees as employees of Atlas Security for purposes of employment tax reporting and returns. Atlas Security also continued to pay employees of both companies, although appellant did periodically reimburse Atlas Security for the wages paid to its employees, beginning in the mid-1980s.
As part of his retirement, Britton sold the stock of appellant and Atlas Security to his daughters, Patsy Powell (Steven Powell's wife) and Nancy Wade, respectively, on October 1, 1992. Mr. Powell was named president of appellant, and Wade's husband, Jim Wade, was named president of Atlas Security. The two sons-in-law managed the two corporations jointly at first, but they gradually began to manage them independently. The stock sale caused no change to the business operations of either company; no employees were terminated; both businesses continued to operate from the same facility; and, the employees' wages, benefits, duties and responsibilities remained the same.
In 1994, appellant began filing separate employment returns and registered with the Division as a successor to Atlas Security. On June 30, 1994, the Division denied successor status to appellant under § 288.110. This meant that appellant was assigned an unemployment contribution tax rate under the Missouri Employment Security Act of 2.7% as a new employer with no experience, rather than Atlas Security's rate of 0.0% as a successor corporation. Appellant appealed the Division's decision to the Appeals Tribunal July 15, 1994. After a hearing on February 22, 1995, before the Honorable G.W. Redding, Appeals Referee, the Division's declaration was affirmed. On March 14, 1995, appellant filed an application for review of the decision with the respondent Labor and Industrial Relations Commission. The Commission affirmed, and adopted as its own, the Appeals Tribunal's decision. Appellant filed a petition for judicial review in the Circuit Court of Cole County, pursuant to § 288.210. The Circuit Court affirmed the new employer status decision on March 15, 1996. This appeal follows.
I.
We review the Commission's decision, not the judgment of the circuit court. Div. of Emp. Sec. v. Taney Cty. Dist. R-III, 922 S.W.2d 391, 393 (Mo. banc 1996). Section 288.210, RSMo Supp.1995, limits our review to questions of law unless the facts found by the Commission are not supported by competent and substantial evidence or were procured by fraud. Id. at 393; Custom Furs v. Hopper Furs, Ltd., 923 S.W.2d 505, 506 (Mo.App.1996). Div. of Emp. Sec., 922 S.W.2d at 393. We review the evidence in the light most favorable to the decision of respondent and disregard all unfavorable evidence. Custom Furs, 923 S.W.2d at 506.
In Point I, appellant claims that the Commission erred in affirming certain of the appeals referee's findings of fact because they were unsupported by competent and substantial evidence. The findings in question are that after the stock sales in 1992, the two corporations had different management personnel; that the equipment used by appellant after it was incorporated in 1978 was owned by Marvin Britton; and, that it was Britton who sold the assets of appellant and Atlas Security to his daughters in 1992.
Appellant's first point is not properly characterized as a point relied on under Rule 84.04(d). This rule provides, in pertinent part, that:
The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder....
Rule 84.04(d) (emphasis added). The Missouri Supreme Court interpreted this rule in Thummel v. King, stating:
[C]ompliance with these requirements is a matter of common sense if counsel bear in mind the informational purpose of the brief. After stating the ruling the trial court actually made, it stands to reason that the point should then specify why the ruling was erroneous. This requirement essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court's conclusion of law on the point being addressed. After stating why the ruling was erroneous, the court then must be informed wherein the testimony or evidence gives rise to the ruling for which appellant contends.
Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978) (emphasis supplied); Meadows v. Jeffreys, 929 S.W.2d 746, 749-50 (Mo.App.1996); Hubbs v. Hubbs, 870 S.W.2d 901, 908 (Mo.App.1994).
In its first point, appellant does not challenge the decision of the Commission that appellant was not a successor under § 288.110; rather, it challenges certain of respondent's findings of fact that it claims are in error and critical to the Commission's decision that it seeks to reverse. Thus, appellant's claim in Point I is not, practically speaking, a point relied on, but is part and parcel of its claim and argument in Point II that the Commission erred in deciding appellant was not a successor corporation to Atlas Security pursuant to § 288.110. Thus, we will treat appellant's two points as one for discussion purposes.
Appellant claims that the respondent erred in deciding that appellant is not a successor corporation to Atlas Security under § 288.110, but rather was a new employer subject to the Employment Security Law effective January 1, 1992. As a result of the Commission's decision, appellant would be required to pay the unemployment contribution tax rate under the Missouri Employment Security Law at the new employer rate of 2.7%, rather than succeeding to Atlas Security's much lower rate of 0.0%. Appellant claims in this decision that the Commission erroneously decided and applied the law as found in § 288.110.
The parties agree that this case turns on whether the second sentence of § 288.110 has any application here. The second sentence of § 288.110 provides that:
If two or more individuals, organizations, or employing units acquired at approximately the same time substantially all of the business of an employer (excepting in any such case any assets retained by such employer incident to the liquidation of his obligations) and in respect to which the division finds that immediately after such change all portions of such business of the predecessor are continued without interruption solely by such successors, each such individual, organization, or employing unit shall stand in the position of such predecessor with respect to the proportionate share of the predecessor's separate account, actual contribution and benefit experience and annual payroll as determined by the portion of the predecessor's taxable...
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Mertens Constr. Co. v. Div. of Emp't Sec.
...is treated as the successor of the predecessor employer for employment purposes. See e.g., Atlas Mobilfone, Inc. v. Labor and Indus. Relations Comm'n , 939 S.W.2d 928 (Mo.App. W.D. 1997). As recognized by Mertens, the purpose of the statute is employment stabilization. This Court has charac......