Guyre v. DWS

IN THE UTAH COURT OF APPEALS

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Michael Guyre,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030730-CA
 

F I L E D
(February 26, 2004)
 

2004 UT App 41

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Original Proceeding in this Court

Attorneys: Michael Guyre, Salt Lake City, Petitioner Pro Se

Suzan Pixton, Salt Lake City, for Respondent

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

This case is before the court on its own motion for consideration for summary disposition due to lack of jurisdiction resulting from an untimely petition for review, and, alternatively, on the basis that the issues presented on appeal are so insubstantial as to not merit further consideration. Respondent filed a response to the court's motion, Petitioner did not. Respondent argues that the petition was timely filed and, therefore, this court has jurisdiction, but that the issues presented are so insubstantial as to not merit further consideration.(1)

This court grants great deference to an agency's findings, and will uphold them if they are "supported by substantial evidence when viewed in light of the whole record before the court." Albertson's, Inc. v. Department of Employment Sec., 854 P.2d 570, 573 (Utah Ct. App. 1993). Further, a finding of fraud will not be upset by the reviewing court unless there is a "lack of sufficient evidence in support thereof." Taylor v. Department of Employment Sec., 647 P.2d 1, 1 (Utah 1982); see also, Millet v. Industrial Comm'n, 609 P.2d 946, 947 (Utah 1980).

The evidence reasonably supported the factual determination of fraud. A handwriting analysis was completed which indicated that Petitioner was probably the party who endorsed the unemployment checks, despite the fact that Petitioner was working and earning wages. The finding was only qualified in that the expert analyzed copies of the checks, rather than the checks themselves, because the actual checks had been destroyed. This evidence was sufficient to meet the required burden of proof of fraud and to justify the findings that Petitioner's version of events was not credible.

The decision of the Board is summarily affirmed.

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. Respondent argues the petition was timely filed because the decision of the Workforce Appeals Board (Board) issued August 21, 2003, and the petition for review was filed on September 10, 2003, within thirty days of the issuance of the Board's decision. The filing on September 10, 2003, was, however, a letter addressed to the Board which, arguably, did not meet the requirements of a petition for review. The letter more closely met the requirements for a timely request for reconsideration by the Board. An actual petition for review was filed on September 30, 2003, beyond thirty days from issuance of the Board's decision. However, in a letter to Petitioner from this court, dated September 11, 2003, a deputy clerk of this court notified Petitioner that this court had construed the September 10, 2003, letter as a petition for review. Therefore, we deem the letter of September 10, 2003, to be a timely petition for review and consider whether the issues presented for review are so insubstantial as to not merit further consideration.