Sivulich v. Department of Workforce Services

2015 UT App 101THE UTAH COURT OF APPEALS
JAMISON SIVULICH,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES; WORKFORCE APPEALS
BOARD; AND AAA OF CALIFORNIA, NEVADA, AND UTAH,
Respondents.
Memorandum Decision
No. 20140015-CA
Filed April 23, 2015
Original Proceeding in this Court
Jamison Sivulich, Petitioner Pro Se
Amanda B. McPeck, Attorney for Respondent
Department of Workforce Services
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE concurred.
TOOMEY, Judge:
¶1 Jamison Sivulich challenges the Workforce Appeals
Board’s (the Board) decision affirming the Administrative Law
Judge’s (the ALJ) judgment denying his claim for unemployment
benefits. AAA of California, Nevada, and Utah (Employer)
terminated Sivulich’s employment after discovering that he
violated its credit card policies by purchasing several high-priced
non-business items with company credit cards. The Board found
that because Employer discharged Sivulich for just cause, Sivulich
was not entitled to unemployment benefits and Employer was
relieved from benefit charges associated with Sivulich’s claim. We
decline to disturb the Board’s decision.
¶2 ‚‘Whether the [Board] correctly or incorrectly denied
benefits is a traditional mixed question of law and fact.’‛ Jex v.
Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (citation and internal
quotation marks omitted). We review the Board’s conclusions of
Sivulich v. Department of Workforce Services
law for correctness. Drake v. Industrial Comm’n, 939 P.2d 177, 181
(Utah 1997). But we defer to the Board’s factual findings ‚if they
are supported by substantial evidence when viewed in light of the
whole record before the court.‛ Uintah County v. Department of
Workforce Servs., 2014 UT App 44, ¶ 5, 320 P.3d 1103 (citation and
internal quotation marks omitted). ‚*A+ party challenging the
Board’s findings of fact 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.‛ Id.(alterations in original) (citation and internal quotation marks
omitted); cf. State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645 (the
Utah Supreme Court reiterating ‚that a party challenging a
factual finding or sufficiency of the evidence . . . will almost
certainly fail to carry its burden of persuasion on appeal if it fails
to marshal‛).
¶3 Sivulich seems to argue that the Board misinterpreted
Employer’s ‚Travel & Entertainment‛ and ‚American Express
Card‛ policies, erroneously found that Employer terminated
Sivulich’s employment with just cause, and inappropriately
refused to allow Sivulich to submit new information and
documents for consideration.1 In his petition for judicial review,
1. On appeal from the ALJ’s decision, Sivulich presented several
pages of new evidence and several new allegations to the Board.
The new evidence included a spreadsheet of Sivulich’s approved
expense reports, an email from a human resources employee, a
letter he wrote to a coworker, and notes from a March 2013
meeting. Among other things, Sivulich alleged that his supervisor
accused him of inappropriate expenses to cover the supervisor’s
own mistakes. Because the new evidence was available to Sivulich
at the time of his hearing before the ALJ and he did not provide
any explanation for failing to present this evidence before, the
Board did not consider the new evidence on appeal, concluding
that doing so ‚would be unfair to the other party if *it+ accepted
such new evidence, except under unusual or extraordinary
circumstances.‛
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he simply reargues his position that the Board’s findings were
wrong but does not identify how the evidence does not support
the Board’s findings. Moreover, Sivulich fails to carry his burden
of persuasion on appeal because he inadequately briefs his
arguments. Thus, we decline to address the merits of Sivulich’s
arguments.2
¶4 ‚If an appellant fails to adequately brief an issue on appeal,
the appellate court may decline to consider the argument.‛ Jacob v.
Cross, 2012 UT App 190, ¶ 2, 283 P.3d 539 (per curiam). Rule 24 of
the Utah Rules of Appellate Procedure requires that an
appellant’s brief include a table of authorities, Utah R. App. P.
24(a)(3); a ‚statement of the issues presented for review,‛ id. R.
24(a)(5); a ‚citation to the record showing that the issue was
preserved,‛ id. R. 24(a)(5)(A); a ‚statement of the facts relevant to
the issues presented for review . . . . supported by citations to the
record,‛ id. R. 24(a)(7); and an addendum with, among other
things, ‚those parts of the record on appeal that are of central
importance . . . , such as the . . . findings of fact and conclusions of
law . . . or the contract or document subject to construction,‛ id. R.
24(a)(11). Most importantly, rule 24(a)(9) requires an appellant to
support the argument with the ‚authorities, statutes, and parts of
the record relied on‛ including ‚all record evidence that supports
the challenged finding*s+.‛ Id. R. 24(a)(9). Sivulich did not comply
with any of these requirements.
¶5 First, Sivulich failed to identify where in the record the
issues presented on appeal were preserved for review. This is
2. Even if we were to address the merits of Sivulich’s arguments,
based on the record, the Board’s findings and conclusions of law
are supported by substantial evidence. The evidence establishes
that Sivulich made numerous non-business purchases using
company credit cards, knowing he was not authorized to do so,
and thereby jeopardized Employer’s interests. Moreover, Sivulich
had a full and fair opportunity to provide his evidence to the ALJ,
and the Board did not abuse its discretion in refusing to consider
new evidence.
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especially important because ‚*i+t is well settled that issues not
raised before the *forum below+ are waived on appeal.‛ Whitear v.
Labor Comm’n, 973 P.2d 982, 985 (Utah Ct. App. 1998). Second,
although Sivulich repeatedly referred to Employer’s ‚Travel
& Entertainment‛ and ‚American Express Card‛ policies, he did
not attach the documents in an addendum and largely failed to
cite the record as the rule requires. By not citing the record, the
task of combing through the record is improperly left to this
court. Finally, Sivulich failed to cite any legal authority to support
his argument. ‚As a result, the issues are inadequately briefed
because he has completely shifted the burden of researching the
record and applicable law to the court.‛ Jacob, 2012 UT App 190,
¶ 3; see also Phillips v. Hatfield, 904 P.2d 1108, 1109–10 (Utah Ct.
App. 1995). ‚An appellate court is not a depository in which [a
party+ may dump the burden of argument and research.‛ Allen v.
Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (alteration in original) (citation
and internal quotation marks omitted).
¶6 We recognize that Sivulich is a self-represented party and
is therefore ‚entitled to ‘every consideration that may reasonably
be indulged.’‛ Id. ¶ 11 (quoting Nelson v. Jacobsen, 669 P.2d 1207,
1213 (Utah 1983)). But ‚reasonable indulgence is not unlimited
indulgence‛ and does not require this court ‚to redress the
ongoing consequences of the party’s decision to function in a
capacity for which he is not trained.‛ Id. (internal quotation marks
omitted). Moreover, ‚a party who represents himself will be held
to the same standard of knowledge and practice as any qualified
member of the bar.‛ Id. (citation and internal quotation marks
omitted). Therefore, even considering Sivulich has appeared pro
se, he fails to meet his burden of demonstrating error because he
provided too little information for the court to analyze the issues
raised on appeal.
¶7 We decline to disturb the Board’s decision.
20140015-CA 4 2015 UT App 101