Friendly Village Nursing and Rehab, LLC v. State of Wisconsin Department of Workforce Development

2022 WI 4SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP520
COMPLETE TITLE: Friendly Village Nursing and Rehab, LLC and
Friendly Village Healthcare Center,
Plaintiffs-Appellants-Petitioners,
v.
State of Wisconsin Department of Workforce
Development and State of Wisconsin Labor and
Industry Review Commission,
Defendants-Respondents,
v.
Rhinelander Healthcare Operator 150, LLC,
Defendant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 701,954 N.W.2d 392PDC No:2021 WI App 9 - Published
OPINION FILED: January 26, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 25, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Oneida
JUDGE: Michael H. Bloom
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER,
C.J., and REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were briefs
filed by Alon Stein and Stein Law Offices, Des Plaines, Illinois.
There was an oral argument Alon Stein.
For the defendants-respondents, there was a brief filed by
Ryan X. Farrell and The Department of Workforce Development; with
whom on the brief was Kim T. Castelaz and The Labor and Industry
Review Commission. There was oral argument by Ryan X. Farrell.
2
2022 WI 4NOTICE
This opinion is subject
to further editing and
modification. The final
version will appear in
the bound volume of the
official reports.
No. 2020AP520
(L.C. 2019CV121)
No.
STATE OF WISCONSIN : IN SUPREME COURT
Friendly Village Nursing and Rehab, LLC and
Friendly Village Healthcare Center,
Plaintiffs-Appellants-Petitioners,
v. FILED
State of Wisconsin Department of Workforce JAN 26, 2022
Development and State of Wisconsin Labor and
Industry Review Commission, Sheila T. Reiff
Clerk of Supreme
Defendants-Respondents, Court
v.
Rhinelander Healthcare Operator 150, LLC,
Defendant.
DALLET, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
and REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the court of appeals. Affirmed.
No. 2020AP520
¶1 REBECCA FRANK DALLET, J. After purchasing Friendly
Village Nursing and Rehab, Eden Senior Care1 untimely filed its
application with the Department of Workforce Development to
succeed the unemployment insurance account of Friendly Village's
previous owner. This was a potentially costly mistake, because
successors generally pay lower rates for unemployment insurance
than non-successors. See generally Wis. Stat. § 108.18 (2019–
20).2 Eden's mistake was not necessarily fatal if it was "a result
of excusable neglect." See § 108.16(8)(b)4. The Labor and
Industry Review Commission, however, concluded that the record was
insufficient to establish that Eden's application was late because
of excusable neglect. Eden challenges that conclusion and claims
that the Commission also erred by failing to apply the "interests
of justice" factors in its analysis. We disagree. The "interests
of justice" factors are not a necessary component of the excusable-
neglect analysis under § 108.16(8)(b)4., and Eden has failed to
demonstrate excusable neglect for filing its application late.
I
¶2 Eden Senior Care is an Illinois company that purchases
and rehabilitates nursing homes. On September 1, 2017, Eden
1
Eden Senior Care is the parent company of Friendly Village
Nursing and Rehab, LLC. In addition to Friendly Village Nursing
and Rehab being the name of one of Eden's subsidiaries, it is also
the name of the nursing home at issue here. Therefore, to avoid
confusion between Friendly Village the company and Friendly
Village the place, we use "Eden" to refer to the company.
All subsequent statutory references
2 are to the 2019–20
version unless otherwise indicated.
2
No. 2020AP520
purchased its first two nursing homes in Wisconsin, including
Friendly Village Nursing and Rehab.3 The acquisition triggered
several statutory requirements, among them registration and
reporting of a business transfer. Eden could comply with those
two requirements by submitting two Department forms: the Employer
Registration Report and the Report of Business Transfer.
¶3 The Employer Registration Report serves several
purposes. One purpose is that it provides a means for a business
new to Wisconsin to meet the requirement that it register with the
Department of Workforce Development. See Wis. Admin. Code
§ DWD 110.04 (May 2020).4 Another purpose is that it helps the
Department determine whether the business is an "employer" as
defined by Wis. Stat. § 108.02(13). If the business is an
employer, it is required to contribute to the state's unemployment-
insurance fund. See Wis. Stat. §§ 108.16, 108.18.
¶4 Additionally, the Employer Registration Report alerts
the Department that the new business is taking over an already
existing business, in which case the transferee (the new business)
may be eligible to acquire (or succeed) the previous employer's
unemployment-account "experience." See § 108.16(8). If the
previous employer has a high amount of account experience, then
the transferee will likely benefit from succeeding that experience
as, generally, the more account experience a business has, the
3 Eden also purchased Northpoint Nursing and Rehab; that
purchase is not at issue here.
4 All subsequent references to the Wis. Admin. Code § DWD
are to the May 2020 version.
3
No. 2020AP520
lower its contribution to the unemployment-insurance fund. See
§ 108.18. The Employer Registration Report, however, does not
state those implications directly. The closest it gets is a
question that asks whether the new business acquired its "activity
from a previous employer," borrowing from the language of
§ 108.16(8)(a). See § 108.16(8)(a) ("[A] business is deemed
transferred if any asset or any activity of an employer . . . is
transferred in whole or in part . . . ."). In any event, the
Employer Registration Report is not part of the statutory
requirements for succeeding a previous owner's unemployment-
account experience; those requirements are laid out in
§ 108.16(8)(b)4.5
¶5 The second form relevant to Eden's statutory obligations
is the Report of Business Transfer. Any time one business is
transferred to another, the Department must be notified within 30
days of the transfer, even if both the transferee and transferor
have previously operated in the state. See Wis. Stat.
§ 108.16(8)(k); Wis. Admin. Code § DWD 115.03. Completing and
returning the Report of Business Transfer to the Department
satisfies this notice requirement. A transferee who wants to
acquire the previous employer's unemployment-account experience
must file a "written application . . . requesting that it be
deemed a successor." See Wis. Stat. § 108.16(8)(b)4. The Report
All businesses, new to Wisconsin or previously established,
5
are subject to the same requirements for succeeding a prior owner's
unemployment-account experience. The Employer Registration
Report, however, applies only to businesses new to Wisconsin.
4
No. 2020AP520
of Business Transfer also satisfies this requirement if the
transferee checks a box on the form indicating that "[t]his is
[its] application to acquire the account experience of the former
owner."6 The Report of Business Transfer is available online as
part of the Department's "Handbook for Employers,"7 which includes
detailed instructions for how to fill out the form, as well as how
to contact the Department with any questions.
¶6 Although the Employer Registration Report and the Report
of Business Transfer serve different purposes, there is one
relevant connection between them. In the Employer Registration
Report, when a new business answers "yes" to the question "Did you
acquire this activity from a previous employer?," the Department
typically contacts the business and alerts it to the Report of
Business Transfer. There is no statutory requirement, however,
that the Department do so. See generally Wis. Stat. § 108.16(8);
Wis. Admin. Code § DWD ch. 115. Rather, the statutes place
compliance with all registration and application requirements
squarely on businesses. See Wis. Stat. § 108.16(8)(b)4., (k);
Wis. Admin. Code § DWD 115.03.
6Although reporting a transfer is required——both generally
and to acquire the previous employer's unemployment-account
experience——using the Report of Business Transfer is not. Under
Wis. Stat. § 108.16(8)(k) and Wis. Admin. Code § DWD 115.03,
parties are required only to "notify the [D]epartment in writing."
As for applying to acquire a previous employer's unemployment-
account experience, Wis. Stat. § 108.16(8)(b)4. similarly requires
transferees to submit only a "written application."
7 https://dwd.wisconsin.gov/ui201/t6201.htm.
5
No. 2020AP520
¶7 Here, Eden directed its Senior Business Analyst——
a 22-year-old with bachelor's degrees in communications and
biology——to complete the Employer Registration Report in early
August 2017. In response to the question "Did you acquire this
activity from a previous employer?" the analyst answered "no."
That response meant that the Department did not contact Eden
regarding the Report of Business Transfer since, as far as the
Department knew, Eden was not involved in a business transfer.8
¶8 Eden filed its Report of Business Transfer on
March 13, 2018,9 and indicated that it was using that form as its
application to succeed the previous employer's unemployment-
account experience. The application was roughly six weeks late,
as Eden's September 1, 2017 acquisition date set its application
due date as January 31, 2018. Eden traces its untimely application
to the Department's failure to contact it regarding the Report of
Business Transfer. That failure, Eden says, was caused by its
analyst's "misunderstanding" of the question on the Employer
Registration Report regarding whether it had acquired an
"activity" from a previous employer.
8 The dissent asserts that Eden notified the Department of
the business transfer in August 2017 via the Employer Registration
Report. But by answering "no" to whether it acquired a previous
employer's activity, Eden notified the Department that there was
no transfer.
9 Both Eden and Friendly Village's previous owner signed the
Report of Business Transfer, thereby notifying the Department of
the transfer. Both were late in doing so, however, because the
notice was due no later than October 1, 2017. See Wis. Stat.
§ 108.16(8)(k) (requiring notice to the Department within 30 days
of the transfer).
6
No. 2020AP520
¶9 According to Eden, it was not until February 2018 that
it learned it even had the option to acquire the prior owner's
unemployment-account experience. After filing its successorship
application in mid-March, Eden emailed the Department, explaining
that its application was late due to an "error in completing our
initial DWD account application," adding that it was "new to the
Wisconsin operations space and [was] not familiar with how the
[unemployment-insurance] process worked." The Department found
that Eden's explanation did not amount to excusable neglect and
therefore it rejected the application.10
¶10 Eden appealed to an administrative law judge. After a
hearing at which only the Department employee who handled Eden's
application and Eden's corporate manager testified, the ALJ
reversed the Department's determination. The ALJ concluded that
Eden had moved quickly to remedy its mistake and that Eden had not
acted in bad faith. The ALJ also noted that accepting Eden's
untimely application "served the interests of justice."
¶11 The Department appealed that decision to the Commission,
which reversed. The Commission concluded that the record contained
insufficient evidence to warrant a finding of excusable neglect.
Specifically, it noted that the analyst who filled out the Employer
Registration Report did not testify, so there was "no competent
10The Department accepted Eden's untimely successorship
application related to Northpoint Nursing and Rehab after
determining that certain registration forms were mistakenly mailed
to Eden's power of attorney's address rather than its corporate
address. The record contains no evidence of a similar problem
regarding Friendly Village Nursing and Rehab.
7
No. 2020AP520
evidence establishing the nature of his error." It explained that,
because Eden's central business is acquiring and rehabilitating
nursing homes, Eden's failing to be aware of the law regarding
registering such business transfers was "less excusable than it
otherwise might be," even accounting for the analyst's
inexperience. The Commission also concluded that Eden's prompt
remedy did "not eliminate the requirement that a dilatory party
demonstrate excusable neglect for its initial failure to meet the
statutory deadline."
¶12 Eden appealed to the circuit court,11 arguing that the
Commission erred because it failed to consider whether the
"interests-of-justice factors"12 supported a finding of excusable
neglect. Eden asserted that in Casper v. American International
Southern Insurance Co., 2011 WI 81, 336 Wis. 2d 267, 800
N.W.2d 880, we held that analyzing those factors is a necessary
part of every excusable-neglect analysis. The circuit court
rejected that argument and affirmed the Commission's
determination, as did the court of appeals.
II
¶13 Our review is limited to the Commission's decision, not
the circuit court's or the court of appeals'. Operton v. LIRC,
2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426. We defer to the
11The Honorable Michael H. Bloom of the Oneida County Circuit
Court presided.
12See Connor v. Connor, 2001 WI 49, ¶41, 243 Wis. 2d 279, 627
N.W.2d 182.
8
No. 2020AP520
Commission's findings of fact so long as there is "substantial and
credible evidence" to support them, id., but we review its legal
conclusions de novo, Wis. Bell, Inc. v. LIRC, 2018 WI 76, ¶29, 382
Wis. 2d 624, 914 N.W.2d 1.
III
¶14 To qualify as a successor to an acquired business's
"unemployment account experience," the transferee must meet two
statutory requirements. First, it must establish that a business
was, in fact, transferred. Under Wis. Stat. § 108.16(8)(a), a
transfer occurs when a business's "asset or activity" is conveyed
to another business "by any means, other than in the ordinary
course of business." Second, the transferee must satisfy the
Department that it meets all four successorship conditions in
§ 108.16(8)(b): the transferee must continue the transferor's
business with generally the same employees, the transfer must have
included at least 25 percent of the transferor's total business,
the transferee must be subject to certain statutory financing
provisions, and it must file a timely successorship application.
There is no dispute that Eden is a transferee or that it meets the
first three successorship conditions. Our focus is therefore on
only the timeliness of Eden's successorship application.
¶15 A timely successorship application is one that the
Department receives no later than "the contribution payment due
date for the first full quarter following the date of the
transfer." § 108.16(8)(b)4. Up to 90 days after that deadline,
however, the Department may accept a late application, but only if
9
No. 2020AP520
"the transferee satisfies the [D]epartment that the application
was late as a result of excusable neglect." Id.13 Here, Eden
submitted its application late but within the 90-day post-deadline
window. The question is whether its application was late due to
excusable neglect.
¶16 The Commission concluded that it was not, and Eden
challenges that conclusion on two grounds. It first argues that
the Commission applied the wrong law by failing to include the
"interests of justice factors" in its excusable-neglect analysis.
Eden then argues that the Commission erred in concluding that, as
a matter of law, the record evidence was insufficient to show
excusable neglect. We address each argument in turn.
A
¶17 Eden argues that the Commission applied the incorrect
standard for excusable neglect because the Commission did not
consider the "interests-of-justice factors." Eden asserts that
our holding in Casper makes those factors part of every excusable-
neglect analysis. But this reads too much into Casper and ignores
key differences between the text of the statute at issue there
(§ 801.15(2)(a)) and the one at issue here (§ 108.16(8)(b)4.).
¶18 In Casper, we considered what a party must show for a
circuit court to grant a motion to extend certain filing deadlines
13
The legislature added the excusable-neglect provision
in 2013. See 2013 Wis. Act 36, § 99. Prior to that amendment,
the Department was required to deny all late successorship
applications, no matter why they were late. See Wis. Stat.
§ 108.16(8)(b)4. (2011–12).
10
No. 2020AP520
under § 801.15(2)(a). 336 Wis. 2d 267, ¶¶34–49. That statute
provides that a court may grant such an extension "only on motion
for cause shown and upon just terms." § 801.15(2)(a) (emphasis
added). When a party moves for an extension after the original
deadline has already passed, the court may grant the extension
only if it makes the additional finding that the party's "failure
to act [before the deadline] was the result of excusable neglect."
Id. Therefore, § 801.15(2)(a), by its plain terms, permits a court
to grant a motion for an extension that is made after the original
filing deadline passes only if it makes two separate findings: (1)
granting the extension is "just"; and (2) the party's neglect in
failing to file earlier is excusable. See id.; Casper, 336
Wis. 2d 267, ¶¶37–38. Nowhere in Casper did we hold that the
interests of justice are part of the excusable-neglect analysis.
Rather, we reiterated that they guide part one of the two-part
analysis required by the explicit language of § 801.15(2)(a).
Casper, 336 Wis. 2d 267, ¶¶35–38; Miller v. Hanover Ins. Co., 2010
WI 75, ¶43, 326 Wis. 2d 640, 785 N.W.2d 493 (explaining that a
court may grant a motion to enlarge time under § 801.15(2)(a) "if
the circuit court makes a finding of excusable neglect 'and if the
interests of justice would be served by the enlargement of time'")
(quoting Estate of Otto v. Physicians Ins. Co. of Wis., Inc., 2008
WI 78, ¶114, 311 Wis. 2d 84, 751 N.W.2d 805 (emphasis added)).
¶19 Our analysis of the interests of justice in Casper was
rooted in the text of § 801.15(2)(a), which explicitly allows a
court to grant relief on "just terms." Other statutes similarly
pair "excusable neglect" with notions of justice or equity. For
11
No. 2020AP520
example, § 806.07(1) allows a court to grant a party relief from
judgment "upon such terms as are just" and for reasons including
excusable neglect or a finding that applying the judgment is "no
longer equitable," as well as "[a]ny other reason[] justifying
relief." But § 108.16(8)(b)4. contains no similar language
directing the Department to consider just terms, equity, or "other
reasons" for relief. Rather, "excusable neglect" is the only
justification for the Department's accepting a late successorship
application. See § 108.16(8)(b)4. (limiting even this exception
to applications submitted fewer than 90 days late).
¶20 Given these differences in the statutory text, we cannot
read "excusable neglect" as encompassing other interests-of-
justice considerations. See Miller, 326 Wis. 2d 640, ¶¶43–44
(declining to extend to another statute the excusable-neglect
requirement in § 801.15(2)(a) because the other statute "does not
by its plain language require" such a finding); Village of Elm
Grove v. Brefka, 2013 WI 54, ¶¶35–40, 348 Wis. 2d 282, 832
N.W.2d 121. The Commission therefore applied the correct legal
standard for excusable neglect.14
B
¶21 Eden's other claim is that the Commission erred in
concluding that the record does not demonstrate excusable neglect.
We have defined "excusable neglect" as an error that "a reasonably
Because the interests-of-justice factors are not part of
14
the excusable-neglect analysis under Wis. Stat. § 108.16(8)(b)4.,
we deny as moot the Commission's motion to strike.
12
No. 2020AP520
prudent person" would have committed "under the same
circumstances." E.g., Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461,
468, 326 N.W.2d 727 (1982).15 The inquiry is context dependent and
requires a showing of something more than ordinary neglect or
carelessness. E.g., id.; Casper, 336 Wis. 2d 267, ¶37. A party
seeking relief under an excusable-neglect provision must offer a
"persuasive explanation" for its mistake by pointing to "specific
incidents" that occurred at the time of the mistake. See Hedtcke,
109 Wis. 2d at 473. In assessing a party's explanation, courts
may consider the negligent actor's familiarity with the subject
matter, as well as the actor's "age, education and experience."
Hansher v. Kaishian, 79 Wis. 2d 374, 391–92, 255 N.W.2d 564(1977). Ultimately, "the analysis in each case is fact specific,"
with the inquiry turning on a party's reasons or justifications
for its negligent conduct as reflected in the record. See Casper,
336 Wis. 2d 267, ¶39.
¶22 In cases where we have held that a party's mistake was
due to excusable neglect, the record contained some concrete, non-
speculative evidence for why the mistake occurred. For example,
excusable neglect includes a foreign corporation untimely filing
its answer to a complaint due to reasonable "confusion created by
15
Black's Law Dictionary contains a definition of "excusable
neglect" that largely mirrors ours. See Neglect-excusable
neglect, Black's Law Dictionary (11th ed. 2019) ("A failure——which
the law will excuse——to take some proper step at the proper
time . . . not because of the party's own carelessness,
inattention, or willful disregard . . . but because of some
unexpected or unavoidable hindrance or accident . . . .").
13
No. 2020AP520
the interplay between the summons and the notice of service," each
of which seemingly set a different date for when the answer was
due. See Shirk v. Bowling, Inc., 2001 WI 36, ¶21, 242 Wis. 2d 153,
624 N.W.2d 375. We have also excused a corporation's untimely
answer when the record demonstrated that the company had developed
certain procedures for handling lawsuits, had followed those
procedures, and, "despite its best efforts," its claims specialist
had never received the complaint. See Casper, 336 Wis. 2d 267,
¶¶44–45.
¶23 But when the record is silent, or contains only
speculation about the reasons for a party's mistake or its failure
to take reasonably prudent precautions, there is no basis for the
Commission or the court to excuse the party's neglect. For
instance, we declined to excuse a defendant's untimely filing of
its answer when it claimed it had misunderstood the terms of a
"courtesy extension agreement," but the record contained "no
notes, confirmation letters, or other documentation" reflecting
the alleged misunderstanding. See Connor v. Connor, 2001 WI 49,
¶22, 243 Wis. 2d 279, 627 N.W.2d 182. We have also held that when
a party attempts to justify its neglect by pointing to other
typical work circumstances, such as the "press of other legal
business" or "summer vacations," those reasons are insufficient,
absent some additional "extraordinary explanation." See, e.g.,
Giese v. Giese, 43 Wis. 2d 456, 461–62, 168 N.W.2d 832 (1969);
Cruis Along Boats, Inc. v. Standard Steel Prods. Mfg. Co., 22
Wis. 2d 403, 409, 126 N.W.2d 85 (1964). And when a defendant
missed a 20-day deadline to file its answer but offered no
14
No. 2020AP520
explanation for why it took 19 days to send the complaint from its
office in Waukesha to its claims manager in California, the court
of appeals declined to excuse the late filing because, "in the era
of overnight express mail" and fax machines, a reasonably prudent
person in the party's shoes would have ensured the complaint made
it to California sooner. See Gerth v. Am. Star Ins. Co., 166
Wis. 2d 1000, 1008, 480 N.W.2d 836 (Ct. App. 1992); see also
Dugenske v. Dugenske, 80 Wis. 2d 64, 70, 257 N.W.2d 865 (1977)
(declining to reverse the circuit court's finding of no excusable
neglect because the record "shed[] little light" on whether a
reasonably prudent person would have acted as the negligent party
did).
¶24 Here, Eden traces its untimely application to an
employee mistakenly answering "no" to the question on the Employer
Registration Report asking if Eden had "acquired an activity from
a previous employer." According to Eden, its employee
misunderstood the question——due to his young age, inexperience,
and lack of legal training——and therefore answered it incorrectly.
Because of that mistake, the Department did not contact Eden
regarding the Report of Business Transfer. And because the
Department did not alert it to that form, Eden did not return the
form as its successorship application prior to the application
deadline. There are two problems with Eden's argument.
¶25 First, the record contains only speculation about why
Eden incorrectly answered the question of whether it acquired an
activity from a previous employer. Eden's owner——who was not the
person who filled out the Employer Registration Report——testified
15
No. 2020AP520
that there "might have been [a] misunderstanding or mistake on one
of the questions" (emphasis added). The record, however, contains
no evidence that the employee who completed the form in fact
misunderstood the question. That employee did not testify, and
the record contains no other evidence explaining why he answered
the question "no." See Connor, 243 Wis. 2d 279, ¶22.
¶26 In the absence of the employee's direct testimony, Eden
points to the employee's relatively young age, inexperience, and
lack of legal training as sufficiently justifying his mistake. To
the extent that the employee's youth and inexperience contributed
to his supposed confusion, a reasonably prudent person in the same
situation——having no unemployment-insurance experience and not
fully understanding the consequences of certain responses on the
Employer Registration Report——would ask for help before submitting
the document, or at least do additional research. See Hansher, 79
Wis. 2d at 391–92; Maier Constr., Inc. v. Ryan, 81
Wis. 2d 463, 474, 260 N.W.2d 700 (1978), overruled on other
grounds by J.L. Phillips & Assocs., Inc. v. E & H Plastic Corp.,
217 Wis. 2d 348, 577 N.W.2d 13 (1998). There is no evidence that
Eden's employee did so. Moreover, Eden has offered no explanation
for why it directed someone so inexperienced and unfamiliar with
Wisconsin's business-registration procedures to complete the
Employer Registration Report. See Carmain v. Affiliated Cap.
Corp., 2002 WI App 271, ¶27, 258 Wis. 2d 378, 654 N.W.2d 265.
¶27 Second, no matter how Eden completed the Employer
Registration Report, it was still obligated to fulfill the
successorship requirements under Wis. Stat. § 108.16(8)(b) and
16
No. 2020AP520
Wis. Admin. Code § DWD 115.03. It is true that had Eden answered
"yes" to the question of whether it acquired a previous employer's
activity, the Department likely would have contacted Eden and
notified Eden of its obligation to file the Report of Business
Transfer. But the Department has no statutory duty to contact the
employer. Eden, on the other hand, has a statutory obligation to
"notify the [D]epartment in writing" of both its business
acquisition, Wis. Stat. § 108.16(8)(b)(k); Wis. Admin. Code
§ DWD 115.03, and that it was applying to succeed the previous
employer's unemployment-account experience, Wis. Stat.
§ 108.16(8)(b)4. Those obligations apply regardless of how an
employer answers the questions in the Employer Registration Report
or whether the Department alerts the employer to the Report of
Business Transfer.16 Not to mention, anyone can find the Report
of Business Transfer on the Department's public website.
16For this same reason, the dissent's focus on the mechanism
by which the Department contacts businesses who may be involved in
a transfer is misplaced. The Department could eliminate that
voluntary process and Eden's statutory obligations would remain.
Moreover, the dissent's argument that Eden was disadvantaged
because it didn't know how the Department's process worked is self-
defeating. If Eden had no idea that certain answers on the
Employer Registration Report would have generated an alert from
the Department, then it had no reason to wait for the Department
to contact it before fulfilling its statutory requirements.
The dissent also confusingly suggests that because Eden and
Friendly Village's previous owner failed to comply with their joint
requirement to notify the Department of the business transfer under
§ 108.16(8)(k), the court should excuse Eden's failure to comply
with the separate successorship-application requirements under
§ 108.16(8)(b)4. We fail to see why the previous owner's failure
under para. (8)(k) is relevant or how Eden's two wrongs make a
right.
17
No. 2020AP520
¶28 Eden makes no specific argument for why, independent of
its mistake on the Employer Registration Report, it failed to
timely file its successorship application. Rather, Eden urges
generally that we should excuse its neglect because it was "not
familiar with how the [unemployment-insurance] process worked" in
Wisconsin. But mere ignorance of the law, particularly in the
area of one's business expertise, is not excusable neglect. See
Putnam v. Time Warner Cable, 2002 WI 108, ¶13 n.4, 255 Wis. 2d 447,
649 N.W.2d 626 ("[E]very person is presumed to know the law and
cannot claim ignorance of the law as a defense."). Eden's owner
testified that he was aware Wisconsin's laws may differ from
Minnesota's (where Eden had exclusively conducted its previous
business), but he "d[id]n't recall" speaking to anyone regarding
what those differences might be. A reasonably prudent business in
these circumstances would have at least attempted to familiarize
itself with Wisconsin's requirements before submitting official
documentation to the Department. See Edwards v. Kotlarek,
No. 2009AP123, unpublished op., ¶¶8–10 (Wis. Ct. App.
Aug. 31, 2010) (holding that a party's unfamiliarity with the law,
without more, is not excusable neglect). Eden could have contacted
the Department directly for guidance or taken advantage of the
Department's publicly available resources regarding new employers'
unemployment-insurance responsibilities. Indeed, Eden reached out
to the Department after its deadline passed, but offers no reason
for why it did not do so earlier.
¶29 In sum, focusing on the Employer Registration Report
distracts from the real issue——that Eden failed to timely file a
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No. 2020AP520
successorship application under § 108.16(8)(b)4. As the
Commission correctly concluded, nowhere does the record contain
evidence of a reason for that failure that rises to the level of
excusable neglect.
IV
¶30 We conclude that the Commission applied the correct
legal standard. The interests-of-justice factors are not part of
the excusable-neglect analysis under Wis. Stat. § 108.16(8)(b)4.
We further conclude that there is no basis in the record on which
to excuse Eden's neglect in filing its successorship application
after the statutory deadline. The Department thus correctly
rejected Eden's successorship application.
By the Court.—The court of appeals' decision is affirmed.
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No. 2020AP520.pdr
¶31 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The Labor
Industry Review Commission (LIRC) denied Friendly Village Nursing
and Rehab, LLC (Friendly Village) successor status for the
Department of Workforce Development (DWD) unemployment account
experience of the business Friendly Village purchased because LIRC
concluded that Friendly Village's untimely request to become a
successor was not excusable. Wis. Stat. § 108.16(8)(b)4. Late
filings that occur within 90 days of the DWD deadline are accepted
if the totality of circumstances relative to the late filing meet
the legal standard of excusable neglect. Wis. Stat.
§ 108.16(8)(b)4; Wis. Admin. Code § DWD 115.07(2)(a).
¶32 In the case before us, the manner in which DWD programmed
its response to answers to its online questions denied Friendly
Village effective communication that would have facilitated
Friendly Village's timely filing as a successor business.1 Stated
otherwise, DWD's programming was a reasonable factual cause that
contributed to Friendly Village's late filing. In addition,
Friendly Village's seller did not notify DWD of its sale as Wis.
Stat. § 108.16(8)(k) required. And finally, Friendly Village
promptly filed corrected information with DWD. Therefore, under
the totality of circumstances, I conclude that Friendly Village
proved excusable neglect. Because the majority opinion follows
LIRC's erroneous lead and does not review the totality of
circumstances as is required, I respectfully dissent.
1Program: "to work out a sequence of operations to be
performed by (a mechanism, such as a computer)." Merriam Webster.
Merriam-Webster.com/dictionary/program (last visited Jan. 19,
2022).
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No. 2020AP520.pdr
I. BACKGROUND
¶33 On September 1, 2017, Friendly Village purchased a
business from Rhinelander Healthcare Operator 150, and Northpoint
Nursing and Rehab, LLC (Northpoint) purchased a business from Simon
Oshkosh Properties, LLC. Friendly Village and Northpoint are both
operated by Eden Senior Care (Eden), whose nursing home
rehabilitation business is new to Wisconsin. As employers new to
Wisconsin, both were required to register with DWD. Wis. Stat.
§ 108.16(8)(k). This can be accomplished with DWD's "Internet
Employer Registration Report," also referred to herein as DWD's
online report.2
¶34 On August 9, 2017, in anticipation of closing on
purchases of Friendly Village and Northpoint, an Eden employee
completed the DWD online report for each facility. The report had
numerous questions. The first question asked, "Did you acquire
this activity from a previous employer?" That question was
answered "No" for both Friendly Village and Northpoint. The second
question on the report was, "Have you paid employees for work
performed in Wisconsin?" That question was answered "No," as well,
for both facilities. The third question asked, "Do you expect to
pay wages for work performed in Wisconsin in the future?" Both
facilities answered "Yes" to this online report question.
"Activity" was not defined in the online report, nor was there a
statutory reference to Wis. Stat. § 108.16(8) that might link
"activity" to a business purchase.
2 Transcript of Administrative Hearing Department of
Workforce Development, Exhibit 5 (Oct. 3, 2018).
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¶35 The Report of Business Transfer (ROBT) form differs from
the online report and provides significant communication about
options that a business new to Wisconsin should know.3 To explain
further, the ROBT requires that each "Former Owner/Operator" and
each "New Owner/Operator" sign a joint ROBT for each business
transfer. Wisconsin Stat. § 108.16(8)(k) also provides that "both
the transferor and the transferee shall notify the department in
writing of the transfer, within 30 days after the date of
transfer." In the matter before us, Friendly Village complied
when it completed the online report, but the transferor to Friendly
Village did not notify DWD of the transfer within 30 days.4
¶36 ROBT provision 5, contains "Options for New
Owner/Operator," which instructs, "You may have an option to
acquire the Unemployment Insurance experience of the former owner.
An application to acquire this experience must be filed by the
appropriate date. See chart at right." The ROBT permits a new
owner to choose, "This is my application to acquire the account
experience of the former owner." The ROBT communicates that if
the change of business ownership or operation occurs during the
period of "July 1 to Sept. 30," the new owner should apply to
transfer the account experience by January 31.
3 The ROBT form references Wis. Stat. § 108.16(8), which
provides additional business-transfer information.
4 It is possible, although the record is not clear, that the
transferor to Northpoint did notify DWD of the transfer because
DWD knew Northpoint was a new employer and tried to send Northpoint
forms relative to becoming a successor to account experience.
Transcript of Administrative Hearing Department of Workforce
Development, Exhibit 6 (Oct. 3, 2018).
3
No. 2020AP520.pdr
¶37 And finally, ROBT provision 8 is labeled "Continuation
of Business" and it asks, "Has the new owner/operator continued to
operate the same business activity without interruption?" To
which, the Eden employee answered, "Yes" for Friendly Village.
Provision 8 also asks, "Has the new owner/operator continued to
operate the same business activity in the same location?" Again,
the query was answered, "Yes." The questions and answers provide
the necessary factual foundation for Friendly Village and
Northpoint to succeed to the prior owners/operators unemployment
account experiences.
¶38 DWD rejected Friendly Village's ROBT, but it accepted
Northpoint's ROBT, which also was filed late but reviewed by a
different DWD employee.5 Friendly Village asked for an
administrative review, which DWD provided.
¶39 Chelsea Church, the DWD employee who reviewed Friendly
Village's request to conclude that its late filing was due to
excusable neglect, testified at the administrative hearing. She
explained how the DWD online report operated as part of DWD's
5Initially, DWD rejected Northpoint's request to become a
successor for its seller's unemployment account experience. On
February 27, 2018, Northpoint appealed stating, "I am writing to
appeal the initial determination made that Northpoint Nursing and
Rehab LLC . . . is not the successor to the Wisconsin Unemployment
Reserve account of Simon Oshkosh Properties LLC." The Eden
employee said that his requests for information had been sent to
the former management company on 11/06/2017 and 12/06/2017, rather
than Eden Senior Care. Daniel McHugh of DWD responded to
Northpoint, saying that "I should be able to process this without
processing the appeal. It was late, but this seems to be
'excusable neglect' and I should be able to approve it."
Transcript of Administrative Hearing Department of Workforce
Development, Exhibit 6 (Oct. 3, 2018).
4
No. 2020AP520.pdr
"system." She explained that if the first question of the report
had been answered yes, "then after they submitted this registration
online, they'll receive a notification from our system that they
need to complete their Report of Business Transfer form."6 She
also explained that with a "yes" answer to the first online report
question, "our department receives notification that we need start
a transfer investigation, and they would start contacting them for
that."7 On cross-examination, she also explained that there was
nothing in the online report that directed the person completing
it to the ROBT.8 She explained, "It only does that if the employer
answers yes to that question, the --– did you acquire this activity
from a previously employer question, otherwise, it does not."9
¶40 Rostislav Pukshansky, an owner of Friendly Village, also
testified. He said that Jesse Pukshansky completed the online
report for Friendly Village. He explained that Jesse is 22 years
old and had no legal education or experience with DWD. As part of
his testimony, Mr. Pukshansky also presented a communication that
concluded that Northpoint's late filing was accepted based on a
determination that the lateness was due to excusable neglect.
¶41 Mr. Pukshansky never received any communication from DWD
or from the seller, Rhinelander Healthcare Operator, regarding
successor status or an ROBT application. He was provided with a
6 Transcript of Administrative Hearing, Department of
Workforce Development, at 21 (Oct. 3, 2018).
7 Id.8 Id. at 24.
9 Id.5
No. 2020AP520.pdr
ROBT form in early March of 2018 after he reached out to DWD with
questions about what he had heard about Northpoint's experience.
He was told he could still apply to become a successor to the
seller's account experience and to write a letter, as Northpoint
had, explaining why the ROBT filing was late. He testified that
he called the contact for the seller that same day and asked him
to complete the seller's part of the ROBT.10 The seller did so.11
It was that joint ROBT that Friendly Village filed with DWD on
March 13, 2018.
¶42 Mr Pukshansky also testified about his call with
Ms. Church. "I remember she confirmed that there hadn't been any
forms sent by the unemployment office for the Rhinelander/Friendly
Village sale. We both figured out maybe because of the way the
registration was filled out by Jesse initially, there might have
been misunderstanding or mistake on one of the questions."12 After
their discussion, he submitted a letter explaining why the ROBT
10 Id. at 36.
11 Id. at 38.
12Id. at 40. Later, on redirect, Ms. Church confirmed that
Northpoint's answer to the first report question had been, "no,"
just as Friendly Village had answered its first report question.
She also explained that a second report had been submitted for
Northpoint on March 8, 2018, and in that report, Northpoint
answered the first question, "yes." Ms. Church explained that
March 8th "was about the same time as [her] activity with, uh,
Mr. [Pukshansky] was going on regarding Friendly Village." She
further explained that March 8, 2018 was after DWD's March 6, 2018
grant of successorship to Northpoint. Transcript of
Administrative Hearing Department of Workforce Development, at 53-
54 (Oct. 3, 2018).
6
No. 2020AP520.pdr
was late, and he asked her "to grant the excusable neglect
exception in a similar basis as the North Point facility."13
¶43 After a full evidentiary hearing, the Administrative Law
Judge determined that Friendly Village's late filing was due to
excusable neglect; and therefore, its ROBT should be accepted.
LIRC reversed the Administrative Law Judge's decision, without
taking any additional testimony and without conferring with the
Administrative Law Judge.14
¶44 LIRC concluded that because the Eden employee who
completed the online report did not appear to testify, "[t]here
thus is no competent evidence establishing the nature of his error,
such that a finder of fact could conclude that the error was
excusable."15 The issue, however, is whether the totality of
circumstances relative to the late filing fulfilled the legal
standard for excusable neglect pursuant to Wis. Stat.
§ 108.16(8)(b)4. This includes the factual background for the
late filing and subsequent actions taken by Friendly Village in
regard to becoming the successor of its seller's unemployment
account experience. As I explain below, it is the undisputed facts
applied to the statutory standard that drives the question of law
that controls this case. LIRC did not apply the correct standard
of review because it thought excusable neglect was a finding of
13 Id. at 41.
Rhinelander
14 Healthcare Operator 150, LLC
Employer/Transferor Friendly Village Nursing and Rehab, LLC,
Employer/Transferee, No. S1800077MD, slip op. at 2 (April 24,
2019).
15 Id. at 3.
7
No. 2020AP520.pdr
fact and that it could be shown only by testimony from Jesse
Pukshansky that relayed what he was thinking when he completed
DWD's online report.
¶45 Friendly Village appealed LIRC's determination. The
circuit court affirmed LIRC, as did the court of appeals.
II. DISCUSSION
A. Standard of Review
¶46 The Administrative Law Judge concluded that excusable
neglect had been shown for Friendly Village's late ROBT filing.
LIRC concluded the opposite.16 Whether excusable neglect has been
shown requires us to determine whether the uncontested facts
fulfill the statutory standard set out in Wis. Stat.
§ 108.16(8)(b)4. This determination presents a question of law,
Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671 N.W.2d 279;
Johns v. County of Oneida, 201 Wis. 2d 600, 605, 549 N.W.2d 269(Ct. App. 1996), which we review independently. Tetra Tech EC,
Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21.
B. Excusable Neglect
¶47 Excusable neglect is not an easy legal principle to
apply. It appears in a number of different statutes to be used in
a number of different contexts. For example, Wis. Stat.
§ 801.15(2)(a), which employs excusable neglect, often is
discussed in opinions involving default judgments when a filing
deadline has been missed. See e.g., Hedtcke v. Sentry Ins. Co.,
109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982).
We review LIRC's decision not that of the circuit court or
16
the court of appeals. Operton v. LIRC, 2017 WI 46, ¶18, 375
Wis. 2d 1, 894 N.W.2d 426.
8
No. 2020AP520.pdr
¶48 In regard to LIRC's decision on a transferee's successor
status when the transferee's application is received late,
excusable neglect is driven by Wis. Stat. § 108.16(8), which
provides in relevant part:
(b) If the business of any employer is
transferred, the transferee is deemed a successor for
purposes of this chapter if the department determines
that all of the following conditions have been
satisfied:
. . . .
4. The department has received a written
application from the transferee requesting that it be
deemed a successor. Unless the transferee satisfies the
department that the application was late as a result of
excusable neglect, the application must be received by
the department on or before the contribution payment due
date for the first full quarter following the date of
the transfer. The department shall not accept a late
application under this subdivision more than 90 days
after its due date.[17]
§ 108.16(8)(b). All agree that Friendly Village met all the
criteria to become a successor to Rhinelander Healthcare Operator
150's unemployment account experience, except for its tardy filing
of the ROBT.
¶49 Whether the undisputed facts fulfill "excusable neglect"
for the late filing of Friendly Village's ROBT pursuant to Wis.
Stat. § 108.16(8)(b)4. is central to this controversy. The
majority opinion does not cite a decision interpreting
§ 108.16(8)(b)4., and I could find none. The majority opinion
17Wisconsin Admin. Code § DWD 115.07(2)(a) contains a similar
directive: "The department shall accept a late application
received no more than 90 days after its due date if the transferee
satisfies the department that the application was late as a result
of excusable neglect."
9
No. 2020AP520.pdr
simply concludes Friendly Village had an obligation to timely file
a ROBT and it did not meet it.18
¶50 I conclude that a plain reading of Wis. Stat.
§ 108.16(8)(b)4. requires that a reasonable factual cause must
contribute to filing the ROBT late in order to constitute excusable
neglect. This conclusion is consistent with employing a reasonable
factual cause as a contributing factor for excusable neglect in
other contexts.
¶51 For example, applying Wis. Stat. § 801.15(2)(a), we
concluded in Hedtcke that "the first step is to determine if there
are reasonable grounds for the noncompliance with the statutory
time period (excusable neglect)." Id. We also reasoned that a
court must "be aware of the effects of an order denying or granting
relief." Id. at 469. That is, what effect would the court's
decision have on both parties.
¶52 Wisconsin courts have defined excusable neglect as
"conduct that 'might have been the act of a reasonably prudent
person under the same circumstances.'" Binsfeld v. Conrad, 2004
WI App 77, ¶23, 272 Wis. 2d 341, 679 N.W.2d 851. In Binsfeld where
a motion for default judgment was lodged against Conrad, Conrad
responded that he should not be subject to a default judgment
because confusion was caused, in part, by Binsfeld's counsel.
Conrad relayed that when the insurance company's representative
asked counsel for Binsfeld for the answer's due date, he said that
he would get back to him but never did. Id., ¶27. In considering
the totality of circumstances that bear on excusable neglect, the
18 Majority op., ¶¶27, 28.
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No. 2020AP520.pdr
court concluded that "ineffective communication" had occurred
thereby supporting the legal conclusion of excusable neglect. Id.,
¶30.
¶53 In the matter before us, I consider the totality of
circumstances that contributed to Friendly Village's late filing.
First, when Friendly Village attempted to register as an employer
with DWD by completing DWD's online report, the first question did
not ask about the purchase of a business. Instead it asked, "Did
you acquire this activity from a previous employer?" Because
Friendly Village answered that question, "No," DWD's report was
programmed not to communicate with Friendly Village about
successor status, as it would have if the answer to that question
had been "Yes."19
¶54 If DWD had contacted Friendly Village as a new employer,
effective communication would have facilitated Friendly Village's
timely filing. Also, Friendly Village's seller did not report the
sale of its business to DWD within 30 days of the September 1,
2017 sale as Wis. Stat. § 108.16(8)(k) required. If it had done
so, DWD would have known about Friendly Village as a new employer,
as apparently DWD did with Northpoint. Therefore, ineffective
communications from DWD due to DWD's programming of the online
report and the seller, who did not comply with § 108.16(8)(k) were
contributing causes of Friendly Village's late filing because both
resulted in limiting DWD's communication of necessary information
to Friendly Village. Id.
Transcript of Administrating Hearing,
19 Department of
Workforce Development, at 21 (Oct. 3, 2018).
11
No. 2020AP520.pdr
¶55 Second, Friendly Village corrected its late filing as
soon as it learned what it should do. Mr. Pukshansky explained
that he learned about successor status in late February 2018 when
he heard about Northport's experience.20 He testified that he
called DWD and learned of the ROBT and that both Friendly Village
and its seller had to sign it. He called his contact with the
seller that same day, asked him to sign the ROBT, and sent him the
form.21 When the seller returned the signed ROBT, Mr. Pukshansky
promptly filed it with DWD.22 Prompt corrective action is
supportive of concluding that excusable neglect has been shown.
Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 512,
285 N.W.2d 720 (1979) (directing that in "determining whether the
'reasonably prudent person' standard has been met, the trial court
should consider whether the person has acted promptly to remedy
his situation").
¶56 The majority opinion quotes excerpts from Black's Law
Dictionary that defines excusable neglect as, "A failure——which
the law will excuse——to take some proper step at the proper
time . . . not because of the party's own carelessness,
inattention, or willful disregard . . . but because of some
unexpected or unavoidable hindrance or accident."23 Although I do
Transcript of Administrative Hearing,
20 Department of
Workforce Development, at 50 (Oct. 3, 2018).
21 Id. at 36.
22 Id. at 38.
23 Majority op., ¶21 n.15; Black's Law Dictionary, 1133 (9th
ed).
12
No. 2020AP520.pdr
not agree with the majority opinion's ultimate conclusion, I have
no problem with Black's definition.
¶57 In the matter before us, the majority opinion does not
seem to have a clue about why Friendly Village was a victim of
DWD's computer program that underlies its online report. This is
surprising because as explained by Ms. Church in her testimony at
the administrative hearing, the report controls whether
communication about filing a ROBT will be sent from DWD's "system"
to a new Wisconsin employer. It also controls whether DWD will
receive notice so that it will begin contacting the new employer.
¶58 Friendly Village had no knowledge of DWD's programming
and how it impacted effective communication between DWD and
Friendly Village, nor is it reasonable to expect that as a new
employer it should have had such knowledge. Accordingly, the
reason for Jesse Pukshansky's answering the first question "No"
does not matter. Whatever his reason, communication from DWD to
Friendly Village would be the same: no communication because of
the program's response to a "No" answer.24
¶59 The Administrative Law Judge who heard Ms. Church's
testimony concluded that given an employee inexperienced with DWD
completed the online report, excusable neglect for the late filing
had been shown. LIRC reversed.25
I hope that DWD reads this dissent and revises its program
24
for the online report so that sending ROBT filing information and
departmental-successor contacts occur for all new employers who
complete DWD's online report.
25 LIRC decision at 3.
13
No. 2020AP520.pdr
¶60 Although LIRC's opinion shows it likely knew how the
online report program functioned, its decision ignores how
critical that knowledge was to effectively completing the online
report. Its decision also seems to presume that the employee who
completed Friendly Village's online report should have known what
results would be generated by DWD's system if question one were
answered "Yes." The record contains nothing to support such a
presumption.
¶61 DWD set up the online report through its Bureau of Tax
and Accounting – Tax Unit. How the report is programmed and
functions is beyond the control and knowledge of those who complete
the report for the first time. Ms. Church may not have understood
the underlying programming, but she knew how the online program
worked, as her testimony showed.
¶62 There is no way that the Eden employee who was new to
Wisconsin and completed DWD's online report would know, or should
know, that a "No" answer to the first online report question would
deny Friendly Village communications from DWD that would
facilitate its registration as an employer with successor status.
Rather, the failures of DWD to send necessary information and to
begin its business transfer investigation resulted from the way in
which DWD's online report is programmed. The resulting
"ineffective communication" from DWD was a contributing cause of
Friendly Village's late filing, just as "ineffective
communication" contributed to the court of appeals' conclusion of
excusable neglect in Binsfeld.
14
No. 2020AP520.pdr
¶63 Accordingly, because the programming of DWD's online
report set up the chain of events that resulted in Friendly
Village's tardy filing of its ROBT, together with the seller's
failing to register the business sale and Friendly Village's prompt
efforts at correcting its tardy filing, I conclude that the
statutory standard for excusable neglect has been met. Friendly
Village was not careless. Rather, the online report created an
unexpected hindrance to an employer who did not know that the
report provided differing assistance to the employer as the result
of differing answers to the first report question.
III. CONCLUSION
¶64 In the case before us, the manner in which DWD programmed
its response to answers to its online questions denied Friendly
Village effective communication that would have facilitated
Friendly Village's timely filing as a successor business. Stated
otherwise, DWD's programming was a reasonable factual cause that
contributed to Friendly Village's late filing. In addition,
Friendly Village's seller did not notify DWD as Wis. Stat.
§ 108.16(8)(k) required. And finally, Friendly Village promptly
filed corrected information with DWD. Therefore, under the
totality of circumstances, I conclude that Friendly Village proved
excusable neglect. Because the majority opinion follows LIRC's
erroneous lead and does not review the totality of circumstances
as is required, I respectfully dissent.
¶65 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this
dissent.
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