                    NOTICE: NOT FOR OFFICIAL PUBLICATION.
       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
            ARIZONA COURT OF APPEALS
                                DIVISION ONE


                           DAVIDSONLAW, P.C.,
                             Plaintiff/Appellant,

                                       v.

   STATE OF ARIZONA DEPARTMENT OF ECONOMIC SECURITY,
                     Defendant/Appellee.

                            No. 1 CA-TX 15-0002
                              FILED 5-19-2016


           Appeal from the Maricopa County Superior Court
                         No. TX 2012-000139
            The Honorable Christopher T. Whitten, Judge

                      VACATED AND REMANDED


                                  COUNSEL

Davidson & Kaffer PLLC, Scottsdale
By Frederick E. Davidson, Chad R. Kaffer
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Carol A. Salvati
Counsel for Defendant/Appellee
                        DAVIDSONLAW v. ADES
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1            DavidsonLaw, P.C. appeals the tax court’s judgment
affirming the decision of the Appeals Board (Board) of the Arizona
Department of Economic Security (DES), finding that DavidsonLaw did not
establish good cause to reopen a hearing. For the following reasons, we
vacate the tax court’s judgment and remand to the Board.

             FACTS AND PROCEDURAL BACKGROUND

¶2            This case began when DES sent DavidsonLaw a formal
determination of unemployment insurance liability concluding that
DavidsonLaw was a successor employer to the Davidson Law Firm, P.C.
As a result of this determination, DavidsonLaw’s unemployment tax rate
would be based on its “predecessor’s experience rating account.”1 See
A.R.S. §§ 23-613.A.3 and -733.A (West 2016).2 In addition, DavidsonLaw
became liable for “any taxes, penalties or interest due and unpaid by the
predecessor” and any “benefits awarded based on wages paid by [the]
predecessor” could be charged to DavidsonLaw.

¶3             After an unsuccessful request for reconsideration,
DavidsonLaw contested DES’s determination by filing a petition for
hearing. See A.R.S. § 23-733.B. Acting on behalf of the Board, an
administrative law judge (ALJ) held a hearing. See id. DavidsonLaw failed
to appear at the hearing. Nevertheless, the ALJ proceeded with the hearing,


1      Pursuant to Arizona Revised Statute (A.R.S.) section 23-733.A, the
account of a predecessor employer is transferred to the successor employer
in order to establish the successor’s unemployment tax rate. In this case,
the transfer resulted in DavidsonLaw being attributed an unemployment
tax rate of 5.25%. Absent the determination, DavidsonLaw would have
paid tax at a rate of 2%.

2      Absent a change material to our decision, we cite to a statute’s most
recent version.


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                         DAVIDSONLAW v. ADES
                           Decision of the Court

and heard evidence from DES in support of its determination. Thereafter,
the Board issued a decision on the merits affirming DES’s determination
that DavidsonLaw was a successor employer.

¶4           After receiving the ALJ’s decision, DavidsonLaw filed a
timely request for review that (1) challenged the merits of the successor
employer determination, and (2) requested a re-hearing on the basis that it
had not received notice of the hearing. See A.R.S. § 23-672.F.

¶5           The Board held a second hearing to determine “[w]hether
[Davidsonlaw had] good cause for failure to appear at the . . . hearing.” As
evidence of good cause, attorney Frederick Davidson testified on behalf of
DavidsonLaw that he had not received notice of the hearing. The Board
admitted DES’s notice of hearing into evidence. The notice of hearing
included DavidsonLaw’s firm name and address on the first page, but
DavidsonLaw’s address did not appear on the mailing certificate on the last
page. The Board found that because the notice of hearing was mailed to
DavidsonLaw and not returned undelivered, there was an unrebutted
presumption that DavidsonLaw had received it, and denied
DavidsonLaw’s request to reopen the hearing for failure to establish good
cause.

¶6            DavidsonLaw timely appealed the Board’s decision to the tax
court pursuant to A.R.S. § 41-1993.C. The tax court affirmed the Board’s
decision not to reopen the hearing and entered judgment in favor of DES.
This timely appeal followed.3 We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-170.C and
41-1993.D.3.

                               DISCUSSION

¶7            We will not disturb the tax court’s affirmation of the Board’s
findings of fact “unless they are arbitrary, capricious, or demonstrate an
abuse of discretion.” Sunpower of Ariz., Inc. v. Ariz. Dep’t of Econ. Sec., 175
Ariz. 109, 111 (App. 1993). We are not so constrained, however, by its legal


3       Because the tax court’s judgment did not contain the necessary
certification pursuant to Rule 54(c), Arizona Rules of Civil Procedure, this
court stayed the appeal to allow DavidsonLaw to apply to the tax court for
a signed order with the necessary certification. Thereafter, the tax court
issued a signed order with Rule 54(c) certification, and the appeal was
reinstated.



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                          DAVIDSONLAW v. ADES
                            Decision of the Court

conclusions. See Conference Res. Specialists of Ariz., Inc. v. Dep’t of Econ. Sec.
Appeals Bd., 199 Ariz. 314, 316, ¶ 8 (App. 2001). Rather, we determine de
novo whether the Board and the tax court properly applied the law to the
facts before them. See Bowman v. Ariz. Dep’t of Econ. Sec., 182 Ariz. 543, 545
(App. 1995); Home Depot USA, Inc. v. Ariz. Dep’t of Revenue, 230 Ariz. 498,
500, ¶ 7 (App. 2012).          Applying these standards, we address
DavidsonLaw’s argument that both the Board and the tax court abused
their discretion by denying the request to re-open the administrative
proceedings in light of DavidsonLaw’s contention it did not receive notice
of the hearing.

¶8            Pursuant to Arizona Administrative Code (A.A.C.)
R6-3-1503.B.3.b, a party who fails to appear may request a hearing “to
determine whether good cause exists to reopen the [unattended] hearing.”
See also A.R.S. § 23-681.C (authorizing DES to adopt rules allowing a party
who failed to attend a hearing to request reopening). Good cause exists
when a party shows its failure to appear was either “beyond the reasonable
control of the nonappearing party or due to excusable neglect.”
A.A.C. R6-3-1503.B.3.d. In support of its determination DavidsonLaw
failed to show good cause for its failure to appear, the Board cited the “mail
delivery rule,” as endorsed by our supreme court more than fifty years ago
in State v. Mays, 96 Ariz. 366 (1964). Under the mail delivery rule, “there is
a strong presumption that a letter properly addressed, stamped and
deposited in the United States mail will reach the addressee.” Id. at 367-68.

¶9            Although the Board references the mail delivery rule as its
basis for determining that DavidsonLaw failed to show good cause for its
absence at the hearing, in our review of the application of the rule, we find
unresolved facts in the record on appeal.

¶10           Recently, our supreme court explained how the presumption
created by the mail delivery rule can be rebutted:

       [P]roof of the fact of mailing will, absent any contrary
       evidence, establish that delivery occurred. If, however, the
       addressee denies receipt, the presumption of delivery
       disappears, but the fact of mailing still has evidentiary force.
       The denial of receipt creates an issue of fact that the factfinder
       must resolve to determine if delivery actually occurred.

Lee v. State, 218 Ariz. 235, 237, ¶ 8 (2008) (emphasis added) (citations
omitted); accord Andrews v. Blake, 205 Ariz. 236, 242, ¶ 22, n.3 (2003) (“The
presumption is rebutted . . . when the addressee denies receipt.”).



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                        DAVIDSONLAW v. ADES
                          Decision of the Court

¶11            Both parties agree Lee applies to this case. Relying on Lee,
DavidsonLaw argues that it overcame the presumption of delivery when
Mr. Davidson denied receipt of the notice at the second hearing. See 218
Ariz. at 237, ¶ 8. DES agrees DavidsonLaw overcame the presumption, but
argues that evidence in the record supports a finding DavidsonLaw did
receive the notice of hearing.

¶12           In rendering its decision, however, the Board relied solely on
Mays and A.A.C. R6-3-14044 in applying the mail delivery rule. In doing so,
the Board concluded that DavidsonLaw had “not overcome the
presumption that the hearing notice was served.” The tax court affirmed
the findings of the Board, holding that the Board was correct in concluding
DavidsonLaw had not rebutted the presumption of mailing.

¶13           Both the Board and the tax court erred, however, in two
respects. First, the mail delivery rule only applies when a notice is
“properly addressed.” The notice submitted into evidence was missing
DavidsonLaw’s address on its mailing certificate, and the Board made no
factual finding regarding the notice having been mailed to the proper
address. On remand, the Board must determine whether the notice was
“properly addressed” before the presumption of receipt pursuant to the
mail delivery rule arises.

¶14           Second, if the presumption of mailing arose, by denying
receipt of the notice, DavidsonLaw rebutted the presumption of delivery.
At that point, the Board was obligated to determine whether “delivery
actually occurred.” See Lee, 218 Ariz. at 237, ¶ 8. This it did not do.

¶15          Accordingly, we remand to the Board to first determine
whether the notice was mailed to the proper address. If the notice was
properly addressed and mailed, then DavidsonLaw rebutted the resulting
presumption of delivery and the Board must determine whether delivery
actually occurred and whether DavidsonLaw had good cause for not
appearing.    If the Board determines the notice was delivered to

4     In relevant part, A.A.C. R6-3-1404.C provides:

      Any notice, report form, determination, decision, assessment,
      or other document mailed by the Department shall be
      considered as having been served on the addressee on the
      date it is mailed to the addressee’s last known address if not
      served in person.




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                         DAVIDSONLAW v. ADES
                           Decision of the Court

DavidsonLaw and that DavidsonLaw lacked good cause for failing to
appear, the matter is concluded. If the Board determines that delivery did
not occur or that DavidsonLaw had good cause for failing to appear, then
DavidsonLaw is entitled to a hearing on the merits.

¶16            To the extent that DavidsonLaw has not had an opportunity
to present an argument on the merits, consideration of the merits will arise
if the Board, on remand, finds good cause for DavidsonLaw’s absence from
the hearing or that the notice was not properly addressed. Compare A.A.C.
R6-3-1503.B.3.c-d, j, with A.A.C. R6-3-1502.A.4. We express no opinion
whether the Board must conduct another hearing or can make these
findings based solely from the record.

¶17            We deny DavidsonLaw’s request for attorney fees on appeal
because it failed to provide a statutory basis for the request. See ARCAP
21(a)(2); Roubos v. Miller, 214 Ariz. 416, 420, ¶ 21 (2007) (explaining that
“[w]hen a party requests fees, it . . . must state the statutory or contractual
basis for the award”). As the prevailing party on appeal, DavidsonLaw is
entitled to recover its taxable costs upon compliance with Rule 21, Arizona
Rules of Civil Appellate Procedure.

                              CONCLUSION

¶18          For the foregoing reasons, we vacate the decision of the tax
court and remand to the Board to determine whether the presumption of
delivery pursuant to the mail delivery rule arose and if so, to make factual
findings associated with DavidsonLaw’s rebuttal therefrom.




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