                                                                                      March 12 2013


                                     DA 12-0384

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2013 MT 64N



IN THE MATTER OF THE WAGE CLAIM OF
CHARLOTTE C. EASON, Claimant.

M. DAVIDENE TAIT d/b/a TRIPLE CROWN
MOTOR INN,

         Petitioner and Appellant,

    v.

STATE OF MONTANA, COMMISSIONER OF THE
DEPARTMENT OF LABOR AND INDUSTRY,
EMPLOYMENT RELATIONS DIVISION,

         Respondent and Appellee.



APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and For the County of Cascade, Cause No. DDV-09-921
                  Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Mary Davidene Tait (Self-Represented), Great Falls, Montana

           For Appellee Eason:

                  Joseph Hardgrave, D. Michael Eakin, Montana Legal Services
                  Association, Billings, Montana

           For Appellee Department of Labor and Industry:

                  Joseph Nevin, Special Assistant Attorney General, Helena, Montana



                                              Submitted on Briefs: January 16, 2013

                                                            Decided: March 12, 2013
Filed:

         __________________________________________
                           Clerk




                             2
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Mary Davidene Tait (Tait) appeals from the order entered in this matter by the

Eighth Judicial District Court on April 27, 2012. The District Court affirmed the Hearing

Officer’s dismissal of Tait’s administrative appeal of a wage claim determination entered

against her by the Wage and Hour Unit of the Department of Labor. The wage claim

determination was entered in favor of Appellee Charlotte C. Eason (Eason). Eason and

the Department of Labor (Department) have filed briefs in opposition to Tait’s appeal.

¶3     Eason filed a claim for wages with the Department in December 2008, naming

Tait as her employer. Eason was employed as a housekeeper and worked at the Triple

Crown Motor Inn in Great Falls. The Department’s Wage and Hour Unit sent a letter to

Tait requesting a response to the claim. Tait requested additional time to respond, which

was granted. On January 2, 2009, the Wage and Hour Unit, noting that Tait had failed to

respond by the extended deadline, issued a Determination finding that Tait owed Eason

$869.85 in wages and a penalty in the amount of $956.84. The Determination notified

the parties of their appeal rights.

¶4     On January 26, 2009, a default order was issued stating that neither party had

appealed from the Determination. Tait contested the default order, and it was set aside by
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the Department. Additional information was received from both parties. The Wage and

Hour Unit then issued a Redetermination on March 19, 2009, finding that Tait owed

Eason the adjusted amounts of $741.13 in wages and $430.24 in penalties. Tait appealed

the Redetermination and the case was transferred from the Wage and Hour Unit to the

Department’s Hearings Bureau. The appointed Hearing Officer conducted a scheduling

conference with the parties, setting dates for submission of contentions, lists of witnesses

and exhibits, and stipulated facts; for a prehearing conference; and for an in-person

hearing.   The scheduling order stated that “[a] party’s failure to appear for any

conference, and/or failure to obey orders issued by the Hearing Officer, may result in . . .

dismissal of the appeal.”

¶5     Tait did not submit contentions or exhibit and witness lists. She was not available

by telephone at the time scheduled for the pre-trial conference. A message was left with

the hotel staff at Tait’s listed place of employment for Tait to contact the Hearings

Bureau so that the conference could be reconvened. Tait did not contact the Hearings

Bureau that day. She did not further advise the Hearings Bureau of her intentions. On

August 7, 2009, the Hearing Officer issued an order dismissing Tait’s appeal and

declaring that the Redetermination was final.

¶6     Tait filed a petition for judicial review before the District Court. After briefing by

the parties, the District Court entered an order affirming the Hearing Officer’s dismissal

of Tait’s administrative appeal. The District Court concluded that Tait had “made no

showing by affidavit, citation to legal authority, or other legal or credible means that the

agency findings of fact and conclusions of law underlying the 03-19-09 wage claim
                                             4
Redetermination or the subsequent MDOL Dismissal Order are erroneous as a matter of

fact or law under the applicable standard of review for district court review of final

agency decisions under § 2-4-702, MCA.” The District Court further held that Tait had

failed to make any credible showing “that the interests of justice warrant excuse of her

blatant failure to timely participate in and exhaust her administrative remedy for appeal

of the 3-19-09 MDOL Redetermination.” Tait made an unsubstantiated claim that she

was available for the pre-hearing conference but an error by the hotel’s front desk kept

her from participating. The District Court reasoned that, even if this explanation was

taken as true, it did not explain Tait’s further failure to participate. As to Tait’s argument

that Eason’s actual employer was a non-party corporate entity, the District Court

reasoned that Tait had failed to make a “factual showing . . . of new evidence discovered

upon reasonable diligence to warrant reversal and remand or a supplementary evidentiary

proceeding on judicial review.”

¶7     On appeal from the District Court’s order, Tait asserts that she is only an

employee of Triple Crown Inn and has no ownership interest. She insinuates that Triple

Crown Inn is the party responsible for the wage claim, but further asserts that the

ownership of Triple Crown Inn has been long disputed and that the real property has been

foreclosed upon in other legal proceedings. She argues the case has been mooted because

any corporate owner has ceased to exist. Tait states that she forwarded Eason’s wage

claim to a principal or former principal of Triple Crown Inn and requested documentation

to defend the claim, but none was provided to her, arguing “it was and is virtually


                                              5
impossible to mount a credible defense against Eason’s spurious claim without any

records!” She also argues that the wage claim is fraudulent.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by substantial evidence and the legal issues

are controlled by settled Montana law, which the District Court correctly interpreted.

Tait’s arguments regarding the party properly responsible for the wage claim do not

demonstrate error by the District Court in concluding that Tait had failed to pursue and

exhaust the administrative remedies available to raise and prove these issues.

¶9     Affirmed.


                                                        /S/ JIM RICE


We Concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




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