Bredemann v. DWS

IN THE UTAH COURT OF APPEALS

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Judy H. Bredemann,
Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030234-CA
 

F I L E D
(July 31, 2003)
 

2003 UT App 278

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Original Proceeding in this Court

Attorneys:
Judy H. Bredemann, Murray, Petitioner Pro Se
Michael R. Medley, Salt Lake City, for Respondent

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

Petitioner Judy H. Bredemann seeks judicial review of a decision of the Workforce Appeals Board that (1) denied a request to reopen her claim for benefits; (2) found that her original appeal of the department decision, filed in August of 2000, was untimely without good cause; and (3) affirmed the two-year-old decision assessing a fraud overpayment.

Bredemann waited over two years before challenging the decision entered by the Administrative Law Judge (ALJ) following her failure to attend the hearing on her untimely appeal of the decision disqualifying her from benefits and assessing a fraud overpayment. Rule 60(b) of the Utah Rules of Civil Procedure requires a motion to set aside a default to be made "in a reasonable time," and where the defaulted party claims "mistake, inadvertence, surprise, or excusable neglect," the motion must be made within three months. Utah R. Civ. P. 60(b); see also Utah Code Ann. § 63-46b-11(3)(a) (1997) ("A defaulted party may seek to have the agency decision set aside the default order . . . by following the procedures in the Utah Rules of Civil Procedure."). Bredemann did not provide any evidence or testimony at the hearing on her motion to reopen the claim that established any grounds to set aside the decision; therefore, the motion was correctly denied.

The Workforce Appeals Board adopted the ALJ's reasoning, but also stated that the appeal of the departmental decision was itself untimely, and the Board lacked jurisdiction to consider the appeal. Bredemann demonstrated no basis at the second hearing that established good cause for the late filing of her original appeal.

Finally, although the ALJ was actually not required to consider the underlying challenge to the fraud overpayment assessed in 2000, Bredemann admitted the material facts necessary to support that decision.

We affirm the decision of the Workforce Appeals Board and dismiss the petition for review.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge