Davis v. Howard O. Miller Co. ( 1984 )

ON DENIAL OF PETITION FOR REHEARING

HUNTLEY, Justice.

The Petition for Rehearing seeking reconsideration of the award of attorney fees is supported by an affidavit of counsel reading in part as follows:

2. I am counsel for the Appellant in the above matter. In this opinion on page 1595 I am incorrectly quoted as having stated the following:

I would agree that the sole question is whether there was a deliberate violation of a known rule.

This quotation is a clear misstatement of the record. I have reviewed a copy of the tape of my oral argument from the Court. The actual statement made was:

I would agree if the sole question is whether there was a deliberate violation of a known rule.

Counsel is correct that we inadvertently substituted the word “that” for “if”. Nevertheless the Court remains of the opinion that the appeal presented no meaningful issue on a question of law, that it was brought without foundation, and that the award of attorney fees to the respondent was proper.

Rehearing denied.

DONALDSON, C.J., and SHEPARD and BISTLINE, JJ., concur.

BAKES, Justice:

The appellant employer’s petition for rehearing clearly points out why this Court should either grant a rehearing in this matter or modify its opinion to eliminate the award of attorney fees on appeal.

In its original opinion issued in this matter the majority stated that “if Miller had dismissed Davis [on the basis that Davis had filed a false application by omitting a prior job], he may have had a better case before the Industrial Commission. However, the record shows that Miller fired Davis solely because he feared that Davis would quit without notice.” The majority opinion supported that conclusion by misquoting appellant’s oral argument. The majority’s misquote stated, “In oral argument appellant noted, T would agree that the sole question is whether there was a deliberate violation of a known rule____’” What the appellant actually stated in oral argument was, “I would agree if the sole question is whether there was a deliberate violation of a known rule____” However, appellant’s argument then went on to point out that there was another issue based upon the false application which the employee Davis admittedly filed. That was appellant’s main argument, and as recently as the case of Brown v. Iowa Beef Processors, 107 Idaho 558, 691 P.2d 1173 (1984), we have consistently held that the filing of a false application is grounds for discharge for cause.

The majority of the Court should be commended for apologizing to the appellant employer for misquoting his counsel and substituting the word “that” for the word “if.” However, by calling the misquote to the Court’s attention in his petition for rehearing, appellant was not merely looking for an apology — he was trying to point out that the Court still did not understand his main contention that he was justified in dismissing Davis because of his filing of a false application, in addition to his other contention that Davis had committed a deliberate violation of a known rule. Even after apologizing, the majority still apparently does not understand the point which Miller is attempting to make, and that is that Davis had filed a false application, omitting his prior employment which he had quit without giving any notice to the employer. When appellant Miller discovered this, and also discovered that the employee Davis was out interviewing other employers, he was concerned that Davis would do the same to him, and he testified that he found a replacement and terminated Davis for filing the false application. The Industrial Commission nevertheless found as a fact that the employer’s discharge of the employee was not for misconduct, and awarded the employee his unemployment compensation.

I continue to concur in this Court’s decision to affirm the Industrial Commission. However, even though the appellant employer lost on that issue before the Industrial Commission, this appeal, in which the employer argued that the admittedly false application which the employee filed was grounds for discharge without incurring liability for unemployment compensation, was not pursued frivolously or without foundation, compare Brown v. Iowa Beef Processors, supra, and I would either grant a rehearing on the issue of attorney fees or would modify our prior opinion to eliminate the award of attorney fees.