Mason v. Alta Indus.

IN THE UTAH COURT OF APPEALS

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Larry Mason,
Petitioner,

v.

Alta Industries, Inc., and Wasatch Crest Insurance,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010154-CA

F I L E D
(December 6, 2001)

2001 UT App 379

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Original Proceeding in this Court

Attorneys:
David K. Smith, Midvale, for Petitioner
Brad C. Betebenner and Ramona E. Garcia, Salt Lake City, for Respondents

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Petitioner Larry Mason seeks judicial review of an order dismissing as untimely his motion for review of an Administrative Law Judge's order. This case is before the court on a sua sponte motion for summary disposition.

The sole issue before the court is whether the Utah Labor Commission erred in concluding that the motion for review was untimely and dismissing the motion. The ALJ's order was issued on July 19, 2000, and a motion for review must have been filed no later than August 18, 2000. The Commission found that it had received one copy of the motion for review on August 21, 2000, and a second copy on August 22, 2000, as indicated by the date stamps and entries in the Commission's docket. Mason sought reconsideration of the Commission's order dismissing the motion for review. The request for reconsideration was supported by affidavits from Mason and his counsel. Counsel attested that "to the best of his recollection," he hand-delivered the motion for review on August 18. Mason attested that, based on his contemporaneous notes, he called the Commission on August 18 and confirmed its timely receipt of the motion for review. The Commission found that the contemporaneous notes did not support this assertion.

The petition for judicial review is a challenge to the Commission's factual findings on the filing date of the motion for review. Those findings of fact will be affirmed if they are "supported by substantial evidence when viewed in light of the whole record before the court." Nelson v. Dep't of Employment Sec., 801 P.2d 158, 161 (Utah Ct. App. 1990). It is the petitioner's burden to demonstrate that the Commission's findings of fact concerning the filing date are not supported by sufficient evidence in the record and should be set aside on that basis. Based upon our review of the evidence before the Commission and the analysis in the order denying reconsideration, we conclude that the findings are supported by sufficient evidence in the record. Thus, the Commission correctly concluded that it lacked jurisdiction to consider the motion for review.

Mason contends that this court may not determine the case on a motion for summary disposition because it is like a summary judgment motion and the existence of a factual dispute between Mason and the Commission prevents summary disposition. This claim is without merit and misconstrues the role of a motion under Rule 10 of the Utah Rules of Appellate Procedure. A petitioner responding to a motion for summary affirmance is called upon to demonstrate that the case presents substantial questions that merit further consideration by the appellate court. Summary affirmance is, accordingly, a determination of the appeal on its merits after the parties have been afforded an adequate opportunity to present relevant argument and authorities. See, e.g., Hernandez v. Hayward, 764 P.2d 993, 996 (Utah Ct. App. 1988).

We affirm the order of the Commission, and dismiss the petition for review.

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Pamela T. Greenwood, Presiding Judge

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Norman H. Jackson, Associate Presiding Judge

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James Z. Davis, Judge