Company v. Review Bd., Court of Appeals Case No. 21A-EX-124

• Docket Nº: Court of Appeals Case No. 21A-EX-124
• Citation: 175 N.E.3d 342
• Case Date: September 07, 2021
• Court: Court of Appeals of Indiana

175 N.E.3d 342 (Table)

COMPANY, Appellant,
v.
REVIEW BOARD, Appellee-Plaintiff.

Court of Appeals Case No. 21A-EX-124

Court of Appeals of Indiana.

FILED September 7, 2021

Attorneys for Appellant: Gerald J. Fankhauser, Brian M. Smith, Merrillville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Aaron T. Craft, Deputy Attorney General, Benjamin M. L. Jones, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Altice, Judge.

Case Summary

[1] In November 2019, Company protested the results of an unemployment insurance contribution audit and resulting adjustments by the Indiana Department of Workforce Development (the Department). While the matter was before the liability administrative law judge (the ALJ), the Department filed a motion for summary judgment, which the ALJ granted on December 18, 2020. Company filed its notice of appeal of the ALJ's decision on January 21, 2021.

[2] Because Company untimely initiated the appeal under Ind. Appellate Rule (9)(3), its appeal has been forfeited pursuant to subsection (5) of that same rule. Further, Company has not shown, or even alleged, extraordinarily compelling reasons why its forfeited right to appeal should be restored. Accordingly, we do not reach the merits of Company's appeal.

[3] We dismiss.

Facts & Procedural History

[4] Company owns and operates a pizza restaurant in Crown Point, Indiana. Pizza delivery is a part of Company's normal course of business, and it engaged delivery drivers to provide delivery services to its customers. Company required the delivery drivers to execute independent contractor agreements. Having designated them as independent contractors, Company did not remit to the State unemployment insurance taxes for these individuals during the years in question, 2017 and 2018.

[5] On November 12, 2019, following a compliance audit, the Department notified Company that its delivery drivers had been misclassified as independent contractors and that Company was liable for additional unemployment insurance contributions in the amount of $6,267.23. Company timely filed a written protest of the audit results, asserting that the delivery drivers were independent contractors for whom Company did not owe unemployment taxes. The unemployment insurance appeal was referred to the ALJ.

[6] After a prehearing conference and the exchange of discovery, the Department filed a motion for summary judgment in September 2020. The Department's argument in support of summary judgment was rather brief. It set out the elements of Ind. Code § 22-4-8-1(b), which provides:

Services performed by an individual for remuneration shall be deemed to be employment subject to this article irrespective of whether the common-law relationship of master and servant exists, unless and until all the following conditions are shown to the satisfaction of the department:

(1) The individual has been and will continue to be free from control and direction in connection with the performance of such service, both under the individual's contract of service and in fact.

(2) The service is performed outside the usual course of the business for which the service is performed.

(3) The individual:

(A) is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed; or

(B) is a sales agent who receives remuneration solely upon a commission basis and who is the master of the individual's own time and effort.

The Department argued that Company could not establish the second element in light of the following admission of fact by Company: "Pizza delivery is part of the normal course of Your business." Appellant's Appendix Vol. II at 43. Company responded in opposition and argued that although it regularly offered such services, as was customary in the pizza restaurant industry, Company "left all pizza delivery services to its independent contract drivers exclusively." Id. at 56-57. Therefore, Company argued that pizza delivery services were not part of its usual course of business.

[7] On December 18, 2020, the ALJ granted summary judgment in favor of the Department. The ALJ mailed the decision to the parties by certified mail, which Company received on December 21, 2020. Company initiated the instant appeal of the ALJ's decision on January 21, 2021.

Discussion & Decision

[8] The Department argues that Company forfeited its right to appeal when it failed to file a timely notice of appeal from the ALJ's decision. In light of the Martin Luther King, Jr. Day holiday, the Department notes that Company had until the end of January 19 to file but did not do so until...