Lake Ozark Const. Industries, Inc. v. Labor and Indus. Relations Com'n, WD
| Decision Date | 23 November 1993 |
| Docket Number | No. WD,WD |
| Citation | 869 S.W.2d 136 |
| Parties | LAKE OZARK CONSTRUCTION INDUSTRIES, INC., Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, and Division of Employment Security, Respondents. 47196. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied Feb. 22, 1994.
John D. Dunbar, Kansas City, Thomas D. Vaughn, Jefferson City, for appellant.
Victorine Robben Mahon, Jefferson City, For Labor & Indus. Relations Com'n.
Ninion S. Riley, Jefferson City, for Division of Employment Sec.
Before BRECKENRIDGE, P.J., and KENNEDY and LOWENSTEIN, JJ.
Lake Ozark Construction Industries, Inc., appeals the trial court's dismissal of its appeal from a determination of the Labor and Industrial Relations Commission that it was the successor in business to Oursbourn Enterprises, Inc. For reasons herein explained, we affirm.
The Commission determined that Lake Ozark was the successor in business to Oursbourn. Lake Ozark had purchased a substantial part of the assets and good will of the asphalt paving business of Oursbourn. 1 The effect of the Commission's decision that Lake Ozark was the successor in business to Oursbourn, under the provisions of section 288.110, RSMo 1986 2, was that the purchasing Lake Ozark succeeded to the selling Oursbourn's employment security account. Taking over the Oursbourn account was disadvantageous to Lake Ozark, because of a large ($143,034.55) deficit in the Oursbourn account, and because of Oursbourn's 5.58 percent contribution rate for 1990. If Lake Ozark was not required to make employment security contributions at Oursbourn's 5.6 percent rate, its contribution rate would be a much lower 2.6 percent.
Through the administrative appeal route of sections 288.130.3 and 288.200, Lake Ozark resisted the determination that it was Oursbourn's successor in business. When the Commission finally decided the issue adversely to it, Lake Ozark Construction sought judicial review of the Commission's decision. Section 288.210.
The Circuit Court of Cole County, upon the Commission's motion, dismissed Lake Ozark's appeal. The court's ground for dismissing the appeal was that the selling Oursbourn had not been made a party to the appeal, and, since Oursbourn was an essential party, the court had no jurisdiction of the appeal.
Was the selling Oursbourn a necessary party to the appeal, as the trial court held? The controlling statute says that, in a judicial review proceeding (which it describes as an "action ... against the commission"), there shall be joined as a defendant "any other party to or having been notified of the proceeding before the commission...." Section 288.210.
If Oursbourn is a necessary party to the appeal, then the joinder of Oursbourn is mandatory and jurisdictional, and the failure to join it as a party to the appeal is fatal to Lake Ozark's appeal. Duzer v. Industrial Comm'n, 402 S.W.2d 616, 618 (Mo.App.1966); Section 288.210.
Did Oursbourn have such an interest in the case as would sustain its interest as a party to the Commission proceeding? Lake Ozark claims it did not, and that it was, therefore, not a necessary party to the appeal. Lake Ozark argues that the deputy's original decision that Lake Ozark was successor in business to Oursbourn, was actually two separate decisions--one decision in Lake Ozark's case, that it had succeeded to the Oursbourn employment security account, and one decision in Oursbourn's case, that it had been relieved of the same account. Lake Ozark then reasons that the Oursbourn decision--i.e., that Lake Ozark had succeeded to its account, and Oursbourn had been relieved of it--became final when Oursbourn did not appeal therefrom within the 15-day appeal period. Since Oursbourn could no longer be held to retain the account, the argument runs, Oursbourn had nothing to gain or lose from the decision in the judicial review proceeding in the Lake Ozark case. If Lake Ozark were to be held on appeal not to be Oursbourn's successor in business, Lake Ozark argues, still the account could not be returned to Oursbourn. The general employment security account, in that case, would simply have to absorb the loss. Oursbourn, in other words, lost its status as a party 15 days after the deputy's initial determination when it, Oursbourn, did not appeal the determination.
We have concluded, however, that the Commission is correct when it argues, to the contrary, that the decision that Lake Ozark was the successor in business to Oursbourn, and had succeeded to the Oursbourn account, was a single non-severable decision, affecting both Lake Ozark and Oursbourn. The finality of the decision could be postponed by an appeal taken by either of the parties, or both.
Section 288.130.3 reads, in part, as follows:
A deputy shall make an ex parte determination after investigation but without hearing with respect to any matter pertaining to the liability of an...
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