Shark Bros., Inc. v. Peterson, 10544

Citation345 N.W.2d 376
Decision Date23 February 1984
Docket NumberNo. 10544,10544
PartiesSHARK BROTHERS, INC., a North Dakota Corporation, Petitioner and Appellant, v. Shirley V. PETERSON, as Executive Director of Job Service North Dakota, Anthony B. Schneider, doing business as Schneider's Men's Store, and Job Service North Dakota, Respondents and Appellees. Civ.
CourtUnited States State Supreme Court of North Dakota

Myer Shark, Fargo, for petitioner and appellant.

Michael J. Wilma, Asst. Atty. Gen., Bismarck, for respondent and appellee Job Service North Dakota.

Pringle & Herigstad, Minot, for Anthony B. Schneider, d.b.a. Schneider's Men's Store; on briefs only.

SAND, Justice.

Shark Brothers, Inc. (Shark, Inc.), 1 appealed from a district court judgment affirming the order of Job Service of North Dakota transferring Shark, Inc.'s, unemployment compensation tax "experience rating" to Anthony Schneider on the basis that Schneider purchased Shark, Inc.'s, clothing business at Minot.

Shark, Inc., sold its clothing store at Minot on 31 December 1981 to Anthony Schneider, now d.b.a. Schneider's Men's Store. Two weeks before the sale was completed, Schneider filed an application with Job Service of North Dakota for the unemployment compensation fund experience rating (i.e., tax rate) of "Saul Shark, dba Shark's Men's Store." The law governing acquisition of an experience rating is contained in North Dakota Century Code Sec. 52-04-08. That section provides:

"For the purpose of establishing benefit experience and fixing contributions to be paid, an employing unit which in any manner succeeds to or acquired substantially all of the organization, trade, business, or the assets thereof, of any employing unit shall upon request be substituted to the position and all rights of the predecessor employing unit with respect to such predecessor employing unit's separate account, actual contributions and benefit experience, annual payroll, or otherwise, as if no change with respect to such separate account, contributions, and benefit experience, payrolls or otherwise, had occurred. The bureau upon notification thereof shall forthwith transfer to such succeeding employing unit all rights, accounts, contributions, benefit experience, and all ratings of such predecessor employing unit in accordance with such regulations as the bureau may prescribe; provided, that if good cause can be shown to the bureau why such transfer would be inequitable, the bureau may refuse the same." [Emphasis supplied.]

In response to an inquiry by Shark, Inc., about its experience rating, Job Service stated in a letter dated 4 December 1981 that Shark, Inc., had an experience rating of 0.5%, the lowest obtainable in 1981. The letter also stated that the experience rating for a new business in 1981 was 5%. This most likely prompted Schneider to seek this lower rate.

Job Service notified Shark, Inc., of Schneider's application. In response Shark, Inc., opposed the transfer because it was not a part of the sale agreement and because Shark, Inc., intended to use the experience rating in their Fargo real estate operations. Job Service, however, granted Schneider's request for transfer of the rating.

Shark, Inc., subsequently requested and received an administrative hearing before Job Service on 24 June 1982. Shark, Inc., contended that "Shark's Men's Store" and "Shark Bros., Inc.," were not the same, that Shark, Inc., was the only legal entity that filed the quarterly employer's tax reports, paid the taxes, and established the experience rating over the years with Job Service. The only evidence Shark, Inc., made part of the hearing record, however, was a "Report to Determine Liability" and an "Application for Predecessor's Experience Rating Account," both filed by "Shark's, Inc.," in 1957, the year Shark, Inc., sought the Shark partnership experience rating. Shark, Inc., did not introduce any subsequent documents, such as quarterly employer's contribution reports, which might have substantiated its claim that the corporation established the experience rating. 2

The record contains no evidence establishing that "Saul Shark dba Shark's Men's Store" was an employing unit or a legal entity. On this vital point the record is seriously lacking. Neither does the record disclose that Schneider received notice of the hearing.

At the conclusion of the hearing, Job Service affirmed its earlier decision. It found as follows:

"Effective January 1, 1982, the entire retail clothing business at ... Minot ... known as 'Shark's,' 'Shark's Clothier's,' and 'Shark's Men's Store' was sold by Shark Brothers Inc. to Anthony B. Schneider, as evidenced by the Agreement For Sale of Business and Bill of Sale contained in the record. Information in the Agreement For Sale of Business and Bill of Sale indicates that Anthony B. Schneider did acquire substantially all the organization, trade, business, and assets of Shark's Men's Store."

The agency decision concluded that Shark, Inc., failed to show good cause why a transfer would have been inequitable.

Shark, Inc., appealed the agency's decision to the district court of Cass County. The district court affirmed Job Service's decision and Shark, Inc., appealed to this Court.

In an appeal of a district court's judgment involving an administrative agency's decision, we review the agency's decision and not the district court judgment. Perske v. Job Service North Dakota, 336 N.W.2d 146, 148 (N.D.1983).

On appeal to this Court Shark, Inc., raised several issues; however, the overriding issue is whether or not the agency's findings of fact are supported by the preponderance of the evidence and the appropriate law.

Our review of an administrative agency's decision or order is governed by North Dakota Century Code Sec. 28-32-19. It, in pertinent part, provides as follows:

"... [T]he evidence considered by the court shall be confined to the record filed with the court.... After such hearing, the court shall affirm the decision of the agency unless it shall find that any of the following are present:

1. The decision or determination is not in accordance with the law.

2. The decision is in violation of the constitutional rights of the appellant.

3. Provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules of procedure of the agency have not...

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2 cases
  • Dodds v. North Dakota State Highway Com'r, 10623
    • United States
    • United States State Supreme Court of North Dakota
    • July 27, 1984
    ...we look to the record compiled before the administrative agency and not to the findings of the district court. Shark Brothers, Inc. v. Peterson, 345 N.W.2d 376, 379 (N.D.1984); Hammeren v. North Dakota State Highway Com'r, supra; Asbridge, Our role in reviewing the factual basis of an admin......
  • Belgarde v. Rosenau, 11116
    • United States
    • United States State Supreme Court of North Dakota
    • June 6, 1986

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