Lost in the Fifties, LLC v. Meece
| Decision Date | 10 April 2002 |
| Docket Number | No. 24393.,24393. |
| Citation | 71 S.W.3d 273 |
| Parties | LOST IN THE FIFTIES, LLC, Appellant, v. Matthew MEECE and Missouri Division of Employment Security, Respondents. |
| Court | Missouri Court of Appeals |
Robert C. Johnson, Husch & Eppenberger, LLC, Kansas City, for appellant.
Ronald J. Miller, Ninion S. Riley, Cynthia Quetsch, Jefferson City, for Div. of Emp. Security.
Lost in the Fifties, LLC, (employer) appeals an award by the Labor and Industrial Relations Commission (the commission) of unemployment benefits to Matthew Meece (employee). Employer contends the record before the commission did not provide sufficient competent evidence to support the award. This court affirms.
Appellate review of the commission's decisions in unemployment compensation cases is undertaken pursuant to § 288.2101 that 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 powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.
Employee is a musician. He performed in a show produced by employer pursuant to a written contract. The contract was dated January 7, 2000 (the first contract). It is entitled "ARTIST AGREEMENT." Its provisions include:
2. Term: The term of this Agreement is February 1, 2000, through January 1, 2001.
...
10. Termination: [Employer] shall have the right to immediately terminate the Agreement for the failure of [employee] to perform the terms of this agreement.
...
18. Other Employment: [Employee] agrees that [employee] will not perform other performance engagements during the term of this agreement.
Employee was paid a set amount per performance. The final performance under the first contract was December 16, 2000. After that performance, employer offered employee a new contract (the second contract) for the next season. The term of the second contract would have commenced February 15, 2001. It would have ended January 1, 2002. Some of its provisions differed from those in the first contract. The compensation per performance was increased. There were changes to paragraphs 10 and 18 from the corresponding paragraphs of the first contract. Paragraphs 10 and 18 of the second contract state:
10. Termination: [Employer] shall have the right to immediately terminate the Agreement for the failure of [employee] to perform the terms of this Agreement or for the failure of [employee] to adequately perform his/her portion of the Show, or in the event the Show closes.
...
18. Other Employment: [Employer] retains exclusive right to present [employee] within a sixty (60) mile radius of Branson, Missouri until January 1, 2002. Exceptions to be made with the written consent of Management only.
Employee had until January 10, 2001, to sign and return the second contract. Employee's brother is an attorney. Employee asked him to review the second contract. The attorney expressed concern about paragraphs 10 and 18 of the contract. He expressed the opinion that paragraph 10, the termination clause, made it easier and more subjective for employer to terminate the agreement. He was also concerned that the covenant not to compete, paragraph 18, forbade employee from performing within 60 miles of Branson, Missouri, until January 1, 2002, even if employer terminated employee's employment. Employee was told this was "unconscionable"; that he should not sign the agreement. Employer was asked, but refused, to remove the changes that had been made in paragraphs 10 and 18 of the second contract. Employee did not sign the second contract. He sought unemployment compensation.
The commission found employee was entitled to receive unemployment compensation benefits. It addressed two issues, (1) whether claimant's separation from work would be characterized "as a quit or a discharge" and (2) if a discharge, whether it was due to misconduct by employee that was connected with his work.
The commission found employee was discharged. It held the period of employment was controlled by written contract that had made work available "only through, at most, January 1, 2001." The commission added, "In fact, [employee] last performed services for pay on December 16, 2000." The commission concluded that employee completed the terms of his employment agreement with employer; that "[s]ince the employer had limited the contract to a set term that ended January 1, 2001, and did not by its terms automatically renew ... [employee's] job ended on that day by the employer's contractual choice." The commission noted that the second contract, if accepted by employee, would not have begun immediately; that "[i]t was to start on February 15, 2001." The commission concluded, therefore, "that it was the employer who severed the employment relationship effective January 1, 2001."
Relying on the definition of misconduct in Ritch v. Industrial Commission, 271 S.W.2d 791, 793 (Mo.App.1954), the commission found that employee had satisfactorily completed the first contract; that employer presented no evidence that employee had engaged in unacceptable acts or omissions that led to his discharge. The commission concluded employee's employment contract "ended of its own terms on a date of the employer's choice"; that employee was not disqualified for benefits by reason of § 288.050.2.
Employer's first point on appeal argues the commission erred in finding employee was terminated from employment, but not for misconduct related to his work. Employer contends the commission erroneously applied the law; that one who voluntarily and knowingly engages in employment for a fixed term, as employer asserts employee did in this case, is deemed to have voluntarily quit at the end of that term.
Whether an employee leaves his or her employment voluntarily or is discharged is, generally, a factual determination. Bunch v. Division of Employment Security, 965 S.W.2d 874, 877 (Mo.App. 1998). So long as the commission's determination that employee was discharged is supported by competent and substantial evidence and was not procured by fraud, that determination is conclusive. Burns v. Labor & Industrial Relations Com'n, 845 S.W.2d 553, 554-55 (Mo. banc 1993); see § 288.210.
Review of Point I is undertaken first to ascertain whether the record, viewed in the light most favorable to the decision, contains sufficient competent and substantial evidence to support the commission's decision. Bunch, supra. If it does, a further determination regarding whether the commission's decision is against the overwhelming weight of the evidence is required. Id.
The commission found employee did not quit his job; that he was not offered continued employment on the same terms and conditions as those specified in the first contract. The commission acknowledged the concern that "the non-competition clause could arguably survive through January 1, 2002, regardless of whether or not the employer and [employee] had a parting of ways under the [second] contract." The commission found that "[employee], thus discussed his concerns with a member of the employer with whom [employee] reasonably believed he could communicate concerning such matters and problems"; that employee "received the response that the employer was unwilling to change any of the terms within the [s]econd [contract]." The commission observed that paragraph 10 of the second contract provided "looser grounds" on which employer could dismiss employee; that this "heightened" employee's concern that the non-competition clause would survive early termination of the second contract by employer. The commission noted there was no dispute but that employee satisfactorily completed the first contract.
The record before the commission, considered in its entirety and viewed in the light most favorable to the decision, contains sufficient competent and substantial evidence to support the commission's decision. Its determination is not against the overwhelming weight of the evidence. Employer argues, however, that because the first contract had a definite termination date, employee is deemed, as a matter of law, to have voluntarily quit as of that date. "Where the Commission's decision involves a question of law, we review the issue independently." City of Kansas City v. Arthur, 998 S.W.2d 870, 873 (Mo. App.1999).
Employer contends the commission erroneously applied the law; that one who voluntarily and knowingly engages in employment for a fixed term is, as a matter of law, deemed to have voluntarily quit at the end of that term; that, therefore, employee was ineligible for unemployment benefits at the end of the term of the first contract. Employer cites two cases in support of its argument, Dubinsky Brothers, Inc. v. Industrial Com'n. of Mo., 373 S.W.2d 9 (Mo. banc 1963), and Board of Education of the City of St. Louis v. Labor & Industrial Relations Com'n, et al., 633 S.W.2d 126 (Mo.App.1982).
The cases on which employer relies are distinguishable from the circumstances of the present case. In Dubinsky, the court concluded the claimant was not discharged by the employer; that his loss of employment occurred because of a decision made by his union, not because of a decision of the employer. The claimant in Dubinsky worked as a movie theater projectionist. The union to which the claimant belonged provided projectionists for the theater. The theater management determined the number of projectionists needed based on the number...
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