John E. Jaskowiak, Relator, vs. CM Construction Company, Inc., Respondent, Department of Employment and Economic Development, Respondent.

John E. Jaskowiak, Relator, vs. CM Construction Company, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-2248, Court of Appeals Unpublished, February 27, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2248

 

 

John E. Jaskowiak,

Relator,

 

vs.

 

CM Construction Company, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed February 27, 2007

Remanded

Willis, Judge

 

Department of Employment and Economic Development

File No. 1141605

 

 

John E. Jaskowiak, 1005 East Horeshoe Drive Northwest, Backus, MN 56435 (pro se relator)

 

CM Construction Company, Inc., 12215 Nicollet Avenue, Burnsville, MN 55337 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

This matter is before us on remand from the supreme court for reconsideration of this court's decision in Jaskowiak v. CM Constr. Co., 717 N.W.2d 448 (Minn. App. 2006).  Respondent Department of Employment and Economic Development (DEED) asserts that it provided relator John Jaskowiak, who failed to participate in the evidentiary hearing in this matter, with notice of how he could request a new evidentiary hearing and that this court erroneously determined that the notice required by statute should have been contained in the unemployment-law judge's decision.  In response to this court's order for supplemental briefing on remand, DEED appended to its brief a notice that was sent to Jaskowiak.  Although the notice was not formally made a part of the record on appeal, it now appears that notice was given, and we accordingly vacate the instruction to provide notice to Jaskowiak.  But the record is still inadequate to permit us to evaluate the finding by the unemployment-law judge that Jaskowiak failed to establish good cause for missing the evidentiary hearing, and we conclude that a remand to DEED is still required. 

FACTS

Pro se relator John Jaskowiak applied to the Department of Employment and Economic Development (DEED) for unemployment benefits after quitting his employment with respondent CM Construction.  A DEED adjudicator determined that Jaskowiak was qualified to receive benefits because the employment available at CM Construction was not "suitable," as that term is defined by Minn. Stat. § 268.035, subd. 23a (2004).

CM Construction appealed the decision, and DEED notified the parties that a telephone hearing would be held by an unemployment-law judge (ULJ) on August 19, 2005.  When Jaskowiak did not answer the telephone at the scheduled time, the evidentiary hearing proceeded without him.  In a decision dated August 22, 2005, the ULJ determined that Jaskowiak had quit his employment without good reason caused by CM Construction, that the work available at CM Construction was suitable, and that Jaskowiak was disqualified from receiving benefits.  The written decision informed the parties that they could seek reconsideration within 30 days.

On September 16, 2005, Jaskowiak made a written request for reconsideration of the ULJ's decision.  On September 20, 2005, DEED issued a document entitled "Notice of a Request for Reconsideration to the Unemployment Law Judge."  That notice, directed to Jaskowiak, indicated that DEED had received Jaskowiak's September 16 request for reconsideration, that the issue to be determined was whether Jaskowiak had good cause for his failure to participate in the August 19 hearing, and that Jaskowiak should submit a written statement by September 30 "setting out the reason" that he "did not participate" in the hearing before the ULJ.  In an order dated October 6, 2005, the ULJ determined that relator had "not shown ‘good cause' for missing [the August 19] hearing," that an additional evidentiary hearing was not required, and that the August 22 decision was "factually and legally correct."

Jaskowiak filed a certiorari appeal of the ULJ's decision.  In his brief to this court, Jaskowiak argued that he had good cause for not participating in the evidentiary hearing and that he was entitled to benefits because the work available to him at CM Construction was not suitable.  Jaskowiak supported his arguments with factual assertions that do not appear in the record provided to this court by DEED.  In its responsive brief, DEED addressed the merits of the disqualification decision and argued that no additional evidentiary hearing was required because Jaskowiak had not shown good cause for missing the evidentiary hearing. 

As this court noted in the previous opinion, a 2005 statutory amendment requires DEED to inform a party who has failed to participate in an evidentiary hearing of the opportunity to show good cause for that failure and to obtain an additional evidentiary hearing.   See Jaskowiak v. CM Constr. Co., 717 N.W.2d 448, 451 (Minn. App. 2006) (quoting Minn. Stat. § 268.105, subd. 2(d) (Supp. 2005)).  Because the only notice regarding reconsideration that appeared in the record provided to this court by DEED did not contain the information required by the 2005 amendment, this court remanded for DEED to provide proper notice to Jaskowiak.  Id. 

DEED petitioned the Minnesota Supreme Court for further review, asserting that "the court of appeals, in identifying and then deciding the notice issue, either inadvertently misread the statutory rules or misidentified the documents to which the statutory rules apply."  The supreme court remanded the matter to this court for reconsideration.

This court ordered supplemental briefs addressing the issue of notice.  The appendix to DEED's supplemental brief includes the notice dated September 20, 2005.    Jaskowiak did not file a supplemental brief.

D E C I S I O N

Respondent DEED acknowledges in its supplemental brief that the September 20, 2005 notice regarding reconsideration "was not part of the record in this case" and was not provided to this court in response to the writ of certiorari.  DEED included the notice in the appendix to its supplemental brief. 

The Minnesota Rules of Civil Appellate Procedure specify the procedure for correcting omissions from the record:

If anything material to either party is omitted from the record by error or accident or is misstated in it, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be approved and transmitted.  All other questions as to the form and content of the record shall be presented to the appellate court.

 

Minn. R. Civ. App. P. 110.05; see also Minn. R. Civ. App. P. 101.02, subd. 4 (stating that "trial court" includes the agency whose decision is sought to be reviewed).

DEED did not forward a supplemental record to this court, obtain a stipulation from the parties, or move this court to correct the record.  Nonetheless, because Jaskowiak has not objected and it appears that the notice was omitted from the record by accident, we will, on our own initiative, consider the notice provided by DEED to be a part of the record on appeal.  See Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn. App. 1991) (declining to strike documents from a party's brief, despite the absence of those documents from the official record, based on the conclusion that the documents were actually presented to the district court), review denied (Minn. Oct. 31, 1991). 

We conclude that the September 20 notice satisfies the statute requiring DEED to advise a party who seeks reconsideration, after the party has failed to participate in the evidentiary hearing before the ULJ, of the standard for obtaining a new evidentiary hearing.[1]  See Minn. Stat. § 268.105, subd. 2(d) (Supp. 2005) (setting out the requisite content of the notice).  The September 20 notice informed Jaskowiak that the issue "to be decided" by the ULJ was whether Jaskowiak had good cause for his failure to participate in the evidentiary hearing.  The notice also included the statutory definition of "good cause" and instructed Jaskowiak to "submit a written statement setting out the reason [he] did not participate" by September 30, 2005. 

We turn next to the ULJ 's determination that Jaskowiak did not show good cause for his failure to participate in the August 19 evidentiary hearing.  In his brief to this court, Jaskowiak argued at length that he had good cause for his failure to participate.  In the statement of facts in DEED's supplemental brief to this court, after describing the September 20 notice sent to Jaskowiak, counsel indicates that "Jaskowiak attempted in a written statement to establish that he had good cause for missing the hearing."  But the reference to Jaskowiak's statement alleging good cause is not accompanied by any citation to the record.  See Hecker v. Hecker, 543 N.W.2d 678, 681-82 n.2 (Minn. App. 1996) (citing Minn. R. Civ. App. P. 128.02, subd. 2; 128.03 and stating that material assertions of fact in a brief must be supported by a citation to record), aff'd, 568 N.W.2d 705 (Minn. 1997).  And the record provided to this court does not contain any written statement from Jaskowiak that could have been submitted after the September 20 notice.  The ULJ's decision on reconsideration contains neither a finding that Jaskowiak failed to provide a written statement nor a reference to any such statement.  Because we are unable to determine whether the ULJ based the finding of failure to show good cause on a written statement by Jaskowiak that was omitted from the record provided to this court, we remand for the ULJ to make specific findings on good cause.

Remanded.

                       

 

[1] On remand, respondent alleges as error this court's "holding that the department violated the statutory notice requirements by failing to include certain information in the ULJ's decision."  This court's published opinion does not require that "certain information [be included] in the ULJ's decision"; it stated that the only notice in the record that pertained to "reconsideration" did not satisfy the statute.  Jaskowiak, 717 N.W.2d at 451.  As this unpublished opinion makes clear, DEED's separate notice, mailed after Jaskowiak's request for reconsideration, did satisfy the statutory requirements.