                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   July 10, 2012 Session

WESTGATE RESORTS v. JAMES G. NEELEY, COMMISSIONER ET. AL.

                  Appeal from the Chancery Court for Sevier County
                  No. 1011462 Hon. Telford E. Forgety, Jr., Judge




                 No. E2011-02538-COA-R3-CV - Filed August 3, 2012




This is an unemployment compensation case. Cynthia L. Vukich-Daw filed a claim for
unemployment compensation following her termination from Westgate Resorts. The claim
was originally granted by the Tennessee Department of Labor and Workforce Development
and subsequently upheld by the Appeals Tribunal and the Board of Review. Westgate
Resorts filed a petition for judicial review, and the trial court reversed the Board of Review’s
decision, finding that Cynthia L. Vukich-Daw was ineligible to receive unemployment
compensation benefits because she was a qualified real estate agent pursuant to Tennessee
Code Annotated section 50-7-207. Cynthia L. Vukich-Daw and the Tennessee Department
of Labor and Workforce Development appeal. We reverse the decision of the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J, and D. M ICHAEL S WINEY, J., joined.

Gregory F. Coleman and Mark E. Silvey, Knoxville, Tennessee, for the appellant, Cynthia
L. Vukich-Daw.

Robert E. Cooper, Jr., Attorney General and Reporter, and Lindsey O. Appiah, Assistant
Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, Tennessee
Department of Labor and Workforce Development.

Gregory C. Logue and J. Keith Coates, Jr., Knoxville, Tennessee, for the appellee, Westgate
Resorts.
                                         OPINION

                                    I. BACKGROUND

       In June 2003, Cynthia L. Vukich-Daw (“Claimant”) was hired by Westgate Resorts
(“WR”) to sell time-shares in Tennessee. Claimant obtained the requisite license and signed
numerous documents relating to her employment. One document, entitled Independent
Contractor Agreement, provided that WR would not “control the mode, manner, or means
by which [Claimant] perform[ed her duties]” but that she was required to “use certain
approved marketing, advertising, and other sales materials and literature” when performing
the services required of her. Another document, entitled Affidavit, declared, in pertinent
part,

       I have not been required by the Broker to maintain any specific schedule or
       attend any mandatory sales meetings, nor am I required to follow special
       procedures.

       I may work as I see fi[t] or not work if I choose. I am not obligated to have set
       office or working hours.

       I may schedule vacations as I please and be off work as I see fit.

       I have not been required to meet any sales quotas.

       I have not received [any] minimum salary, sick pay or other fringe benefits.

       I do not receive instructions from the Broker as to which customers or property
       I am to sell.

       I pay my own income and FICA taxes.

       I am not required to file reports with the Broker concerning my business
       conduct or status of sale.

In contrast, Claimant was also given other documents informing her that she was to attend
a three-week mandatory sales training, that she was to memorize WR’s sales presentation
“word for word,” that she would be assigned “2 days off” during the week, that she could be
“required” to work six days per week during the “peak season,” and that she was to maintain
a certain sales percentage or risk the loss of her position. She was also provided with a dress
and grooming policy and an employee conduct policy, advising her that she could be

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terminated for “frequent or unexcused absenteeism or lateness,” working overtime without
permission, and eating at times other than assigned meal periods. Pursuant to these
documents, Claimant was paid a commission for each sale and $60 per day.

        On November 7, 2009, WR terminated Claimant’s employment. Five days later, she
filed a claim for unemployment compensation with the Tennessee Department of Labor and
Workforce Development (“the Agency”). The Agency determined that she was eligible for
unemployment compensation, providing, in pertinent part,

      The tax auditor has determined [Claimant] was an employee and that the
      wages are reportable for unemployment insurance purposes. A [time-share]
      license is different than a regular real estate license because an individual
      cannot have both at the same time.

WR appealed the decision, arguing that Claimant was not entitled to unemployment
compensation because she was an independent contractor. Following a hearing, the Appeals
Tribunal made the following findings of fact:

      FINDINGS OF FACT: [Claimant’s] most recent employment prior to filing
      this claim was with [WR] as a [time-share] salesperson. [WR] is engaged in
      the sale of [time-shares] to prospective purchasers. On June 4, 2003,
      [Claimant] entered into an Independent Contractor Agreement with [WR]. She
      was required to have a [time-share] salesperson license issued by the State of
      Tennessee in order to perform her job duties. [Claimant] received her license.

      [Claimant] was required to complete an employment application before she
      began work. She was hired by the trainer. [She] was required to comply with
      [WR’s] policies and procedures. She could be disciplined for failure to
      comply. [WR] mandated the clothing [Claimant] wore and her grooming.

      [Claimant] received on-the-job training. She was required to memorize and
      cite a sales presentation. She received information to assist with making a
      sale. She was instructed to involve the sales manager if she was unable to
      close a sale.

      [WR] determined the days [Claimant] was scheduled to work. [She] was
      required to attend mandatory meetings. [She] was issued a company [time
      card] and an employee number. Prior to receiving a time card, she was
      required to sign in and out when she worked. [She] was required to complete



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      a form when she failed to sign out. [WR] corrected her time once the form
      was completed.

      [Claimant] was paid a sixty dollar per day draw. She was paid in regular
      intervals. Her pay was directly deposited into her bank account. [She] was
      issued 1099s during her tenure. She was responsible for paying her own
      income and FICA taxes.

      On November 17, 2009, the trainer presented [Claimant] with a letter of
      separation. [She] was advised that she was terminated as an employee of
      [WR]. She was separated because she was not meeting her sales quota. The
      separation was effective November 7, 2009.

In so finding, the Appeals Tribunal affirmed the Agency’s decision.

      WR appealed the decision to the Board of Review. The Board of Review adopted the
Appeals Tribunal’s findings of fact and conclusions of law but stated,

      The Appeals Tribunal correctly held that [WR’s] wages were reportable to and
      taxable by the Agency. [Claimant] was an employee of [WR]. The Appeals
      Tribunal correctly found that [WR] had almost complete control over
      [Claimant’s] activities. [WR] did not satisfy the first prong of the “ABC” test
      in [Tennessee Code Annotated section 50-7-207(E)]. However, the Appeals
      Tribunal did not address the more vigorously contested issue, whether
      [Claimant] was in “excluded service” under subsection (c)(11), which excludes
      from Unemployment Insurance coverage “[s]ervice performed by a qualified
      real estate agent.” The question is whether [Claimant], a [time-share]
      salesperson, was a “qualified real estate agent.” She was licensed by the
      Tennessee Real Estate Commission – but only to sell [time-shares], not other
      categories of real estate. The requirements to obtain a [time-share] license are
      much less stringent than those for a full “real estate agent” license. The
      exclusions from coverage under the Unemployment Insurance Act should be
      construed narrowly in order to further the Act’s purpose – compensating
      claimants for losing their jobs for reasons not within their control. The
      Agency was therefore correct in finding [Claimant] to be an employee of
      [WR].

In so finding, the Board of Review affirmed the decision of the Appeals Tribunal.

      WR then filed a petition to rehear. The Board of Review denied the request, finding

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      [T]he Board specifically addressed the issue of whether [Claimant] was a
      “qualified real estate agent.” [WR] now argues that the Board of Review
      failed to consider its argument that a [time-share] salesperson comes under the
      jurisdiction of the Tennessee Real Estate Commission and that a [time-share]
      license can be excluded by statute.

      [WR] is correct that a [time-share] salesperson does come within the
      jurisdiction of the Tennessee Real Estate Commission and that a [time-share]
      license can be excluded by statute from the provision of the Employment
      Security Act. However, the answer to these questions is not dispositive of the
      real issue which is whether the General Assembly passed legislation exempting
      [time-share] salespersons from the provisions of the Employment Security Act.
      The issue is one of statutory construction. In general, a statute which is not
      ambiguous is to be construed based upon its plain language. Here the statute
      states that excluded service means

             11) Service performed by a qualified real estate agent if:

                    (A) The individual is a licensed real estate agent.

      Based upon the plain language of the statute the question is whether the
      claimant is a “licensed real estate agent.” The records before the Board of
      Review show[] that [Claimant] was licensed as a [time-share salesperson] not
      a “licensed real estate agent.” The General Assembly is presumed to know the
      law when it enacts legislation and therefore would have understood that the
      licensing board has different categories of licensure. We must assume that
      since the General Assembly did not designate a [time-share salesperson] as
      exempt from the provisions of the Employment Security Law that i[t] did not
      intend to do so. [WR’s] argument is found to be without merit.

      WR appealed the Board of Review’s decision to the trial court. The court held that
Claimant was a qualified real estate agent because she

      (1) was a licensed [time-share salesperson] as established by the Tennessee
      Real Estate Commission during the relevant time period;

      (2) was paid on a commission basis directly related to her sales production and
      not on the number of hours she worked; and




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       (3) performed services for [WR] pursuant to a written contract which
       specifically stated that she was not [WR’s] employee and that she would be
       responsible for paying all of her own Federal income taxes.

In so finding, the court reversed the Board of Review’s decision that Claimant “did not
perform excluded services for [WR] because she worked as a [time-share salesperson] and
not a licensed real estate agent” because it was “contrary to [Tennessee Code Annotated
section 50-7-207(c)(11)] and [Tennessee Code Annotated section 62-13-101] and, therefore,
[wa]s clearly erroneous as a matter of law.” This timely appeal followed.

                                         II. ISSUE

       We consolidate and restate the issue raised on appeal as follows:

       Whether there is substantial and material evidence in the administrative record,
       and a reasonable basis in law, to support the Board of Review’s decision that
       Claimant was not disqualified from receiving unemployment compensation
       benefits pursuant to Tennessee Code Annotated section 50-7-207(c).

                             III. STANDARD OF REVIEW

        In an appeal from an agency decision concerning unemployment compensation, both
the trial court and this court are obligated to apply the same standard. Ford v. Traughber,
813 S.W.2d 141, 144 (Tenn. Ct. App. 1991). The standard of review is set forth by
Tennessee Code Annotated section 50-7-304(i)(2) and reads, in pertinent part,

       (2) The chancellor may affirm the decision of the commissioner or the
       chancellor may reverse, remand or modify the decision if the rights of the
       petitioner have been prejudiced because the administrative findings,
       inferences, conclusions or decisions are:

              (A) In violation of constitutional or statutory provisions;

              (B) In excess of the statutory authority of the agency;

              (C) Made upon unlawful procedure;

              (D) Arbitrary or capricious or characterized by abuse of
              discretion or clearly unwarranted exercise of discretion; or



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              (E) Unsupported by evidence that is both substantial and
              material in the light of the entire record.

The statute directs that the court shall not substitute its “judgment for that of the
commissioner’s designee as to the weight of the evidence on questions of fact.” Tenn. Code
Ann. § 50-7-304(i)(3). The statute further provides that “[n]o decision of the commissioner’s
designee shall be reversed, remanded or modified . . . unless for errors that affect the merits
of the final decision of the commissioner’s designee.” Id.

       Substantial and material evidence is defined as “‘such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration.’” Sweet v. State Tech. Inst. at
Memphis, 617 S.W.2d 158, 161 (Tenn. Ct. App. 1981) (quoting Pace v. Garbage Disposal
Dist. of Washington Cnty., 390 S.W.2d 461, 463 (Tenn. Ct. App. 1965)). If the record
contains such evidence, we must affirm the Board of Review’s decision unless it is contrary
to law. Perryman v. Bible, 653 S.W.2d 424, 429 (Tenn. Ct. App. 1983). The Board of
Review’s conclusions of law are subject to a de novo review with no presumption of
correctness. Wallace v. Sullivan, 561 S.W.2d 452, 453 (Tenn. 1978).

                                     IV. DISCUSSION

       The facts in this case are not in dispute. Accordingly, we must simply apply the law
to those facts without affording the Board of Review’s decision any presumption of
correctness. Id. In order to be eligible for unemployment compensation, Claimant’s service
must be characterized as employment pursuant to the Tennessee Code, which provides,

       (a) DEFINITION OF “EMPLOYMENT.” For purposes of this chapter and
       subject to the special rules contained in subsection (e), and the definitions
       contained in subsection (f), “employment” means service that meets all of the
       following conditions:

              (1) It is within any category of “included service” as listed in
              subsection (b);

              (2) It is not within any category of “excluded service” as listed
              in subsection (c); and

              (3) It is within any category of “Tennessee service” as listed in
              subsection (d).



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Tenn. Code Ann. § 50-7-207(a). The parties agree that Claimant’s service was within the
categories of subsections (1) and (3). However, WR maintains that Claimant is not entitled
to unemployment compensation because her service was within a category of an excluded
service. The relevant category provides, in pertinent part,

           (c) “EXCLUDED SERVICE.”                 For purposes of this section, “excluded
           service” means . . . :

                                                        ***

                   (11) Service performed by a qualified real estate agent if:

                           (A) The individual is a licensed real estate agent;

                           (B) Substantially all of the remuneration for the
                           services performed as a real estate agent is
                           directly related to sales or other output, including
                           the performance of services, rather than the
                           number of hours worked; and

                           (C) The services performed by the individual are
                           performed pursuant to a written contract between
                           the individual and the person for whom the
                           services are performed, and the contract provides
                           that the individual will not be treated as an
                           employee with respect to the services for federal
                           tax (FUTA)1 purposes[.]

Tenn. Code Ann. § 50-7-207(c)(11).

        The parties agree that substantially all of Claimant’s remuneration for her services was
directly related to her sales and that she signed an agreement providing that she would not
be treated as an employee with respect to the services for federal tax purposes. However, the
parties disagree as to whether Claimant was a licensed real estate agent for purposes of the
exclusion and whether subsection (C) applies when Claimant was actually treated as an
employee. To resolve these issues our task is to interpret Tennessee Code Annotated section
50-7-207(c)(11). The Supreme Court of Tennessee has recapitulated the primary principles
of statutory construction as follows:


1
    FUTA stands for the Federal Unemployment Tax Act.
                                                        -8-
       [T]here are a number of principles of statutory construction, among which is
       the most basic rule of statutory construction: to ascertain and give effect to the
       intention and purpose of the legislature. However, the court must ascertain the
       intent without unduly restricting or expanding the statute’s coverage beyond
       its intended scope. The legislative intent and purpose are to be ascertained
       primarily from the natural and ordinary meaning of the statutory language,
       without a forced or subtle interpretation that would limit or extend the statutes
       application.

Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000) (citations and internal quotation marks
omitted).

        This court is not permitted “to alter or amend a statute.” Gleaves v. Checker Cab
Transit Corp., Inc., 15 S.W.3d 799, 803 (Tenn. 2000). “The reasonableness of a statute may
not be questioned by a court, and a court may not substitute its own policy judgments for
those of the legislature.” Mooney, 30 S.W.3d at 306 (citing Gleaves, 15 S.W.3d at 803). “It
is presumed that the Legislature in enacting [a] statute did not intend an absurdity, and such
a result will be avoided if the terms of the statute admit of it by a reasonable construction.”
Epstein v. State, 366 S.W.2d 914, 918 (Tenn. 1963). “[C]ourts must ‘presume that the
legislature says in a statute what it means and means in a statute what it says there.’”
Gleaves, 15 S.W.3d at 803 (quoting BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663,
673 (Tenn. Ct. App. 1997)). Finally, “[t]he unemployment compensation statutes were
enacted for the benefit of unemployed workmen and are to receive a liberal interpretation by
the courts.” Weaver v. Wallace, 565 S.W.2d 867, 869 (Tenn. 1978).

       Relative to whether a time-share salesperson is a licensed real estate agent, neither the
Tennessee Employment Security Law nor the Tennessee Real Estate Broker License Act
(“TREBLA”) define the term licensed real estate agent. TREBLA identifies several different
types of agents with varying requirements and qualifications, namely a broker, an affiliate
broker, a time-share salesperson, and an acquisition agent. Tenn. Code Ann. § 62-13-102.
A time-share salesperson is defined as

       any person acting as a seller of any time-share interval under contract with or
       control of a licensed real estate broker pursuant to a registered time-share
       program.

Tenn. Code Ann. § 62-13-102(15). Those desiring to become a time-share salesperson must
submit an application accompanied by:

       (1) The fees specified in § 62-13-308 for examination and license;

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       (2) Satisfactory proof that the applicant is:

              (A) At least eighteen (18) years of age; and

              (B) A resident of this state;

       (3) A sworn statement that the broker with whom the applicant desires to be
       affiliated certifying that, in the broker’s opinion, the applicant is honest and
       trustworthy and that the broker will actively supervise and train the applicant
       during the period the license remains in effect; and

       (4) Certification, by the broker with whom the applicant desires to be
       affiliated, stating that the applicant has completed a thirty (30) hour training
       program consisting of instruction in the fundamentals of the Tennessee Time-
       Share Act[.]

Tenn. Code Ann. § 62-13-303(j) (emphasis added).

        The requirements for obtaining and maintaining a time-share salesperson license are
less onerous than the requirements for obtaining and maintaining a broker’s license or an
affiliate broker’s license. See generally Tenn. Code Ann. § 62-13-303. Moreover, a time-
share salesperson is limited in terms of employment because he or she must be in contract
with or under the control of a broker. Tenn. Code Ann. § 62-13-102(15). The broker must
also agree to actively supervise and train the time-share salesperson. Tenn. Code Ann. § 62-
13-303(j)(3). It is these distinctions that we believe distinguish a licensed time-share
salesperson from the licensed real estate agent mentioned in the exclusion. The two
remaining requirements of the exclusion, remuneration based upon sales as opposed to hourly
wages and a contract providing that the agent will not be treated as an employee, further
support this distinguishment. When reading the real estate agent exclusion as a whole, it is
apparent that the legislature intended to differentiate between an agent that was essentially
a supervised employee and one that was an independent contractor with the freedom to work
as he or she saw fit. The very definition of a licensed time-share salesperson belies any
assertion that he or she is free to work without guidance. With these considerations in mind,
we hold that a licensed time-share salesperson is not a licensed real estate agent for purposes
of the exclusion. Having found that one of the three elements of the real estate exclusion is
not present, we also hold that there was substantial and material evidence in the record and
a reasonable basis in the law to support the Board of Review’s decision that Claimant was
not disqualified from receiving unemployment compensation.




                                              -10-
        In the event of further appellate review, we will also address whether subsection (C)
applies when Claimant was actually treated as an employee. Overwhelming evidence was
introduced concerning Claimant’s status as an employee. WR does not argue that Claimant
was not treated as an employee as the agreement declared. Instead, WR asks this court to
ignore Claimant’s actual status as an employee and focus upon the wording in the agreement,
namely that she would not be treated as an employee for federal tax purposes. WR asserts
that subsection (C) does not require that the service actually be performed pursuant to the
terms of the agreement but merely requires the existence of a written agreement. We
disagree. First, the interpretation WR suggests would run counter to the intent of the
legislature in enacting the real estate agent exclusion, namely to exclude only those agents
who operate without guidance or control. Second, subsection (C) provides,

       The services performed by the individual are performed pursuant to a written
       contract between the individual and the person for whom the services are
       performed, and the contract provides that the individual will not be treated as
       an employee with respect to the services for federal tax (FUTA) purposes[.]

Tenn. Code Ann. § 50-7-207(c)(11)(C) (emphasis added). The requirement that a contract
is in existence providing that the individual will not be treated as an employee is secondary
to the requirement that the services are performed pursuant to that contract. While one of
the agreements in this case specifically provided that Claimant would not be treated as an
employee, the services actually performed by Claimant were not performed pursuant to that
agreement. The services were performed pursuant to other documents that Claimant was
required to follow or risk termination. Accordingly, we conclude that the trial court erred in
holding that subsection (C) was fulfilled by the wording of the agreement.

                                    V. CONCLUSION

        The judgment of the trial court is reversed, and decision of the Board of Review
holding that Claimant is entitled to unemployment compensation is hereby reinstated. The
case is remanded for such further proceedings as may be necessary. Costs of the appeal are
taxed to the appellee, Westgate Resorts.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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