Hurd v. DWS

Hurd v. DWS

IN THE UTAH COURT OF APPEALS

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Mark S. Hurd,
Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020890-CA

F I L E D
(November 28, 2003)

2003 UT App 413

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Original Proceeding in this Court

Attorneys: Mark S. Hurd, Park City, Petitioner Pro Se

Michael R. Medley, Salt Lake City, for Respondent

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Before Judges Jackson, Orme, and Thorne.

THORNE, Judge:

Mark S. Hurd appeals the Workforce Appeals Board's (Board) denial of his request for unemployment benefits. After a hearing, the Board found that Hurd was ineligible for unemployment benefits. In support of this conclusion, the Board found that Hurd, along with his wife and children, owned The Gift Program Corporation, where Hurd acted as president and marketing manager. The Board also found that Hurd determined that the corporation could no longer afford to pay him and "laid himself off." Hurd then obtained a "work search deferral" because he planned to return to work at the corporation. Subsequently, Hurd filed for unemployment benefits. The Administrative Law Judge denied benefits because Hurd had not been actively seeking work and because "his pending responsibilities with his corporation . . . rendered him ineligible for unemployment." This decision was affirmed on administrative appeal.

Utah Code Annotated section 35A-4-508(8)(e) (2001) provides that "the findings of the Workforce Appeals Board, if supported by evidence . . . , are conclusive and the jurisdiction of this

court is confined to questions of law." If Hurd desires to challenge the factual findings, he "'must marshal all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence.'" Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 394,¶5, 38 P.3d 993 (quoting Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989)). Hurd has failed to marshal the evidence to show that the Board's factual findings are "'not supported by substantial evidence.'" Id. (citations omitted). Hurd does not challenge the Board's findings that he "chose to lay himself off work," that he was not involved in an "active work search," or that he continued to have "pending responsibilities with his corporation." Accordingly, we accept these factual finding as true.

Utah Code Annotated section 35A-4-403(1)(c) states that an unemployed individual is eligible to receive benefits only if "the individual . . . acted in good faith in an active effort to secure employment." Utah Code Ann. § 35A-4-403(1)(c) (2001). Section 35A-4-405(1)(a) states that an individual is ineligible for unemployment benefits if "the claimant left work voluntarily without good cause." Id. § 35A-4-405(1)(a) (2001). Section 35A-4-207(1)(a) notes that

[a]n individual is considered "unemployed" [for the purposes of recovering benefits] in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full-time work if the wages payable to him with respect to that week are less than his weekly benefit amount.

Id. § 35A-4-207(1)(a) (2001) (emphasis added).

Here, the Board found that Hurd was not looking actively for work, that he left work "voluntarily," and that he continued to provide "services" to the corporation after he was purportedly
"laid off." In light of these factual findings, we affirm the Board's denial of unemployment benefits.

We affirm.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Gregory K. Orme, Judge