Empire West Companies, Inc. v. Arizona Dept. of Economic Sec.
| Decision Date | 13 April 1995 |
| Docket Number | CA-UB,No. 1,1 |
| Citation | 893 P.2d 746,182 Ariz. 95 |
| Parties | EMPIRE WEST COMPANIES, INC., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency, Appellee. 94-0046. . Filed |
| Court | Arizona Court of Appeals |
This is an appeal from the decision of the Arizona Department of Economic Security Appeals Board ("Appeals Board"). We reverse the decision of the Appeals Board and remand.
Appellant Empire West Companies, Inc. ("Empire") is a general contractor involved in the development and construction of apartment units and commercial buildings. This appeal concerns Empire's SunBay Apartments ("SunBay") development in Fort Ord, California.
Empire subcontracted with A & H Fabricators, Inc. ("A & H"), a cabinet manufacturer and installer, for the fabrication and installation of cabinets at SunBay. A & H had been in business for thirty years and had worked with Empire on numerous projects over a fifteen-year period. A & H, however, experienced financial difficulties and had to liquidate its business prior to the completion of the SunBay job.
The owner of A & H formed a new corporation, HST Cabinets, Inc. ("HST"), which took over A & H's contracts, including the completion of the SunBay job. Four of HST's eleven employees worked at SunBay. Shortly after HST was formed, however, it informed Empire that it could not finish the project--the only remaining job that had not been completed--and it terminated all of its employees.
Empire hired the four HST employees who had been installing cabinets at SunBay. Empire already had purchased the materials, which were fabricated and at the job site. After the four workers finished installing the cabinets in approximately two months, their employment with Empire ended.
As a result of Empire's brief employment of the four former HST employees, the Arizona Department of Economic Security ("ADES") concluded that Empire had acquired and continued the business of HST. ADES assigned Empire the experience rating of HST and issued a determination of unemployment insurance liability against Empire. Empire appealed, but ADES issued a Reconsidered Determination affirming its prior determination. Empire then took the matter to the Appeals Board, which affirmed the determination of liability. Empire requested review of the Appeals Board decision, but again, the decision was affirmed. Finally, Empire filed an application for appeal to this court, which was granted.
Empire contends that the Appeals Board decision is not supported by a reasonable interpretation of the record because it neither acquired nor continued the business of HST pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 23-733(A) (1995). Because we agree with Empire that it did not succeed to nor acquire the business of HST, we need not address whether Empire continued the business of HST.
On appeal, this court considers the evidence in the light most favorable to upholding the decision of the Appeals Board and will affirm the Board's decision if it is supported by any reasonable interpretation of the record. Warehouse Indem. v. Arizona Dept. of Economic Sec., 128 Ariz. 504, 505, 627 P.2d 235, 236 (App.1981). The Board's legal conclusions are not binding on this court and we are free to review such determinations de novo. Id.
A.R.S. section 23-733(A) provides:
When any employing unit in any manner succeeds to or acquires the organization, trade[,] or business, or substantially all of the assets thereof, ... and continues such organization, trade[,] or business, the account of the predecessor employer shall be...
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