American Empire General Contracting Corp. & Pro Claims, Inc. v. Department of Labor (Kayla Herrick) ( 2023 )

VERMONT SUPREME COURT Case No. 23-AP-145
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
OCTOBER TERM, 2023
American Empire General Contracting } APPEALED FROM:
Corp.* & Pro Claims, Inc.* v. Department }
of Labor (Kayla Herrick) } Employment Security Board
} CASE NO. WH22906
In the above-entitled cause, the Clerk will enter:
Employers appeal the Employment Security Board’s decision upholding the dismissal of
their administrative appeal as untimely. We affirm.
The administrative law judge made the following findings, which were adopted by the
Board. In December 2018, claimant Kayla Herrick filed a claim with the Wage and Hour
Program of the Department of Labor for unpaid wages against employers American Empire
General Contracting Corp. and a related entity, Pro Claims, Inc. The Vermont Secretary of State
lists Brian Horton as the sole principal of both entities and as the registered agent of Pro Claims.
In turn, Pro Claims is the registered agent for American Empire. The Secretary of State lists a
Colchester address as the physical address of both employers.
In January 2019, Horton acknowledged receipt of Herrick’s claim on behalf of Pro
Claims. In September 2019, Horton acknowledged receipt of the claim on behalf of American
Empire. The American Empire claim was sent to a different address in Milton. Horton
subsequently advocated on behalf of employers regarding the claim and provided documents to
the Department.
In January 2022, the Department issued a determination and order for collections finding
that American Empire owed claimant $66,580.31 in unpaid wages. The Department mailed the
determination to the Colchester address. The determination was returned to the Department with
the notation, “Return to Sender/Unclaimed/Unable to Forward.”
In March 2022, the Department issued a second, identical determination and order for
collections and mailed it to employers by certified mail at the Milton address where it had
previously mailed notice of the claim. The certified mail receipt for employers’ copy shows that
the mailing was received on March 5, 2022, by “S. Abney,” with the box for “agent” checked.
In late April 2022, the Department sent a collection notice to American Empire stating
that the March determination was final because more than thirty days had passed since it was
issued. A month later, Horton wrote to the Department’s general counsel that neither he nor any
authorized agent of American Empire was ever properly served with the March determination
and therefore the collection notice was invalid.
On June 3, 2022, the Department issued a third, identical determination and order for
collections and sent it by certified mail to the Colchester address. The return receipt indicates
that the mailing was received on June 6, 2022. On July 6, 2022, employers filed a notice of
appeal to the administrative law judge (ALJ).
Claimant moved to dismiss the appeal as untimely, arguing that Horton had received the
March 2022 determination at the Milton address, which was his home address, and that the “S.
Abney” who signed for it was Horton’s wife Shaurice Abney. Employers did not respond to the
motion to dismiss.
Because employers had not denied that the Milton address was Horton’s home address or
that the “S. Abney” who signed for the determination was his wife, the ALJ treated these facts as
admitted. The ALJ concluded that the Department had provided effective notice to American
Empire in March 2022 under 21 V.S.A. § 342a by mailing the determination to its last-known
address, which was the Milton address. The ALJ found that the determination became final
thirty days after American Empire received effective notice, and the June determination did not
extend the appeal time. The ALJ therefore concluded that employers’ July notice of appeal was
untimely and dismissed the appeal. Employers appealed to the Employment Security Board,
which affirmed the ALJ’s decision.
On appeal to this Court, employers argue that the ALJ erred in concluding that the
Department provided effective notice of the March 2022 determination by sending it to the
Milton address, because this was not employers’ last-known address. Employers argue that the
Department was required to send the determination to the address on file with the Secretary of
State, and that the Department acknowledged this by re-sending the determination to the
Colchester address in June 2022.*
We agree with the Department that employers waived these claims by failing to respond
to claimant’s motion to dismiss. When a party has the opportunity but does not respond to a
motion to dismiss, the “failure to oppose the motion effectively waive[s] the claims.”
Pharmacists Mut. Ins. Co. v. Myer, 2010 VT 10, ¶ 18, 187 Vt. 323 (citing Progressive Ins. Co. v.
Brown ex rel. Brown, 2008 VT 103, ¶¶ 8-9, 184 Vt. 388 (holding that where plaintiff had
opportunity to raise arguments in opposition to summary judgment and failed to do so, plaintiff
waived those arguments on appeal)). The ALJ’s decision states that Horton participated on
behalf of employers in a pretrial conference before the ALJ at which claimant orally objected to
the timeliness of the appeal. The ALJ directed claimant, both orally and in writing, to file a
written motion to dismiss and gave employers fourteen days to respond to the motion. As
ordered by the ALJ, claimant sent the motion to employers’ email address, which Horton
provided at the pretrial conference at the ALJ’s request. Employers did not file any response.
Employers do not challenge these findings, which demonstrate that they were provided with
notice and an opportunity to respond to the motion to dismiss but failed to do so. They did not
* The Department moved to strike employers’ supplemental printed case and portions of
their reply brief as containing records or information outside the record on appeal. Because we
conclude that the challenged documents and information are irrelevant to our decision, we deny
the motion as moot.
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seek an extension of time or explain their failure to respond. Under these circumstances, we
conclude that they have waived their claims.
Affirmed.
BY THE COURT:
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
Nancy J. Waples, Associate Justice
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