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AGNEW v. BAKER ROOFING COMPANY, INC.


AGNEW v. BAKER ROOFING
COMPANY, INC.

(unpublished)


FEBRUARY 10, 1998
Record No. 1004-97-2

MALCOLM A. AGNEW

v.

BAKER ROOFING COMPANY, INC.
AND
VIRGINIA EMPLOYMENT COMMISSION

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE CIRCUIT COURT OF HANOVER COUNTY

Richard H. C. Taylor, Judge
Present: Judges Bray, Annunziata and Overton

(Marian K. Agnew, on briefs), for appellant.

(Robert J. Barry; Kaufman & Canoles, P.C., on brief), for
appellee Baker Roofing Company, Inc.

(Richard Cullen, Attorney General; Lisa J. Rowley, Assistant
Attorney General, on brief), for appellee Virginia Employment
Commission.


Malcolm A. Agnew appeals the decision of the circuit court
dismissing his petition for review of the determination of the
Virginia Employment Commission ("commission") that he
was ineligible for unemployment benefits. Agnew contends that (1)
the commission erred in ruling that he received fair and
reasonable notice of the hearing before the appeals examiner, (2)
the commission erred by endorsing the decision of the appeals
examiner based on testimony given by Baker Roofing Company, Inc.
("Baker") when Agnew was unable to examine and
cross?examine Baker’s witnesses, (3) the commission erred in
endorsing the decision of the special examiner, who violated the
commission’s rule for granting a new evidentiary hearing by
refusing to take Agnew’s proffered evidence of Baker’s intrinsic
and extrinsic fraud, and (4) the circuit court erred in failing
to reverse the commission’s ruling on the basis that Agnew failed
to appear at the appeals examiner’s hearing.

Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule
5A:27.

Facts

Agnew was discharged from his employment with Baker. Agnew
applied for unemployment compensation benefits, and a claims
deputy awarded benefits to Agnew. Baker appealed the award, and
the commission mailed a Notice of Appeal to Agnew on December 7,
1995. By letter dated December 13, 1995, the commission informed
Agnew that the appeals hearing was scheduled for December 28,
1995. Agnew acknowledges that he received the December 7, 1995
Notice of Appeal, but asserts that he was out of town for part of
December 1995, and that when he returned to his residence on
December 27, 1995, he "ignored the mountain of accumulated
mail," including the notice of the December 28, 1995 hearing
date. Agnew neglected to open the notice until December 28, 1995,
after the hearing had already taken place. Therefore, Agnew
failed to appear at the hearing. However, Baker appeared at the
hearing and presented evidence.

By decision dated January 4, 1996, the appeals examiner
reversed the decision of the claims deputy and disqualified Agnew
from benefits due to misconduct connected to his work.

On January 18, 1996, Agnew appealed the appeals examiner’s
decision and, on March 18, 1996, Agnew’s attorney noted her
appearance. On April 9, 1996, the commission issued a Notice of
Commission Hearing. The notice stated "[t]estimony and
evidence is limited to whether the commission should direct the
taking of additional testimony and evidence. Oral argument will
be permitted on all issues."

By letter dated April 9, 1996, the special examiner explained
to Agnew the guidelines for determining whether the commission
would accept additional evidence. She further advised Agnew that,
if she "decide[d] that additional evidence should be taken,
then [she would] set aside the Appeals Examiner’s decision and
remand the case to the Appeals Examiner for that purpose."

On June 5, 1996, the hearing was conducted before the special
examiner, and, by decision dated August 23, 1996, the commission
affirmed the appeals examiner’s disqualification of unemployment
benefits. Agnew filed an Objection and Notice of Appeal, which
the commission treated as a request for reconsideration. In this
document, Agnew alleged that he was denied due process by the
special examiner’s decision not to allow him to present
additional evidence. He further alleged that the findings of fact
by the appeals examiner were "based on extrinsically
fraudulent evidence easily refuted when Mr. Agnew is permitted to
present testimony at a new hearing."

By letter dated September 3, 1996, the commission denied
Agnew’s request for reconsideration, stating that the findings of
fact were supported by the evidence in the record and that the
law was properly applied to the facts. The commission disagreed
that Agnew was denied due process or that the findings of the
appeals examiner were procured by extrinsic fraud.

Agnew next filed a Petition for Judicial Review in the Circuit
Court of Hanover County. Baker filed a demurrer, and the trial
court sustained the demurrer and dismissed the case. Agnew filed
a motion for reconsideration, which the trial court also denied,
holding that no new issues were raised by the motion.

Notice of Hearing

Agnew first challenges the sufficiency of the notice of the
appeals examiner’s December 28, 1995 hearing. Code ? 60.2?620 provides
that an appeal tribunal, "after affording the claimant and
any other parties reasonable opportunity for a fair hearing,
shall have jurisdiction to consider all issues with respect to
the claim . . . ." Agnew admits that he
received the December 7, 1995 Notice of Appeal from the
commission when Baker appealed the claims deputy’s award for
benefits. This notice advised Agnew that "in the near
future" he would receive notice of a hearing before an
appeals examiner and that the purpose of the hearing was to
"receive evidence from the parties to make a decision with
respect to the issues involved in the appeal." The notice
further provided that "[t]his may be the only hearing at
which you can give evidence. If there are further appeals those
appeals may only be a review of the evidence given at this
hearing."

Despite receiving this notice, Agnew left his residence for
several weeks without advising the commission of where he could
be reached and without having someone monitor his mail. When he
returned to his residence on December 27, 1995, he "ignored
the mountain of accumulated mail," which included a notice
from the commission, dated December 13, 1995, advising him that
the hearing before the appeals examiner would be held on December
28, 1995.

Agnew asserts that he expected to be notified by registered
mail or personally served with a notice of the hearing date and
that he did not receive reasonable notice of the December 28,
1995 hearing. However, there is no statutory or regulatory
requirement that such notice must be provided by registered mail
or personal service. Code ? 60.2?620
requires only a "reasonable opportunity for a fair
hearing." Further, the regulations of the commission provide
that "[t]he Office of First Level Appeals shall endeavor to
schedule hearings as soon as possible in the order in which
appeals are received. Special requests regarding dates or times
of hearings will be given consideration; however, they need not
always be honored." 16 VAC 5?80?20(C). Nothing in the
record intimates that Agnew advised the commission of his
impending absence during mid?December or that he made any
special requests regarding hearing dates that accommodated his
travel or work schedule.

Further, when the commission mailed the notice fifteen days
before the date of the hearing, Agnew received the notice, yet he
declined to read the notice until December 28, 1995. Therefore,
nothing in the record indicates that the commission failed to
give Agnew a reasonable opportunity for a fair hearing. Instead,
the record indicates that Agnew did not timely learn of the
hearing date through his own negligence in disregarding his mail.
Therefore, on these facts, we cannot say that the commission
failed to provide Agnew with reasonable notice of the hearing.

Agnew’s Ability to Examine and
Cross?Examine Witnesses

Agnew next alleges that the commission erred in endorsing the
decision of the appeals examiner based on hearsay testimony
presented by Baker when Agnew was "unable to examine and
cross?examine Baker’s witnesses."

The regulations for the commission provide that, at the
appeals examiner’s hearing, "the parties, counsel, or duly
authorized representatives shall be given an opportunity to
cross?examine witnesses, to inspect documents, and to offer
evidence in explanation and rebuttal." 16 VAC
5?80?20(F)(4). However, Agnew failed to appear at the appeals
examiner’s hearing. Agnew’s failure to appear at the appeals
examiner’s hearing was the result of his own failure to read his
mail. And, as discussed above, the December 7, 1995 Notice of
Appeal from the commission advised Agnew that the appeals
examiner’s hearing "may be the only hearing at which [he
could] give evidence." Therefore, because Agnew was at fault
for failing to appear at the appeals examiner’s hearing, he
cannot now complain that he was "unable to examine and
cross?examine Baker’s witnesses."

Further, 16 VAC 5?80?20(F) provides that "[t]he appeals
examiner shall conduct the hearing in such a manner as to
ascertain the substantive rights of the parties without having to
be bound by common law, statutory rules of evidence, or technical
rules of procedure." Therefore, Baker’s evidence, even if
hearsay, as Agnew alleges, was admissible into evidence at the
appeals examiner’s hearing. Moreover, it was within the appeals
examiner’s discretion to determine the probative weight, if any,
to be given to hearsay evidence. See American Furniture
Co. v. Graves
, 141 Va. 1, 16, 126 S.E. 213, 217 (1925). We
cannot say that the commission erred in endorsing the decision of
the appeals examiner for this reason.

Commission’s Refusal to Accept Agnew’s
Proffered Evidence

Agnew contends that the commission erred by endorsing the
decision of the special examiner, who, Agnew alleges, violated
the commission’s rules for granting a new evidentiary hearing by
refusing to accept Agnew’s proffered evidence of "Baker’s
intrinsic and extrinsic fraud." Essentially, Agnew argues
that Baker’s witnesses perjured themselves at the appeals
examiner’s hearing and that, when Agnew appealed to the
commission, the commission erred in refusing to accept Agnew’s
evidence as proof that these witnesses testified falsely.

The commission’s regulations provide that the commission, in
its discretion, may direct the taking of additional evidence
provided:

1. It is shown that the additional evidence is material
and not merely cumulative, corroborative or collateral, could
not have been presented at the prior hearing through the
exercise of due diligence, and is likely to produce a
different result at a new hearing; or

2. The record of the proceedings before the appeals
examiner is insufficient to enable the commission to make
proper, accurate, or complete findings of fact and
conclusions of law.

16 VAC 5?80?30(B).

The special examiner held a hearing to consider whether
Agnew’s evidence would be accepted, and she heard Agnew’s
arguments for presenting additional evidence. The special
examiner found that Agnew received the notice of the appeals
examiner’s hearing prior to December 28, 1995; however, he did
not open the notice to determine the time and date of the hearing
until the date of the hearing. At the special examiner’s hearing,
Agnew also contended that, although he received the notice and
returned to his residence prior to December 28, 1995, "he
was preoccupied with a project on which he was working." The
commission did not find that this explanation was sufficient to
allow the admission of additional evidence, "particularly in
light of the fact that [Agnew] could have retained counsel
earlier than March 18, 1996, in order to receive notice of the
hearing and coordinate an appearance on his behalf." The
commission was also satisfied that the record was sufficient to
allow it to make accurate findings of fact and conclusions of
law.

On this record, we cannot say that the commission abused its
discretion in refusing to direct the taking of Agnew’s evidence.
Agnew failed to show that the evidence could not have been
presented at the prior hearing through the exercise of due
diligence. Some of the evidence Agnew sought to admit was
information from his own computer and personal files. This
material was available to Agnew and could have been presented at
the December 28, 1995 hearing. Agnew also asserts that he could
not obtain pertinent information from one of his roofing projects
involving Mary Washington College because the college was closed
for the Christmas holidays. However, Agnew did not show that he
even attempted to obtain this information prior to the December
28, 1995 hearing. In fact, it is unlikely that he did attempt to
do so given the fact that he was unaware of the December 28, 1995
hearing until after it occurred. Because the evidence supports
the commission’s findings, we hold that the commission did not
abuse its discretion in refusing to accept additional evidence.

Extrinsic Fraud Claim

Agnew next argues that the trial court erred in denying Agnew
due process when it affirmed the commission’s decision
"based on improper testimony and facts not in evidence
solely . . . because Agnew had not appeared at the
December 28, 1995 hearing . . . ." Agnew
alleges that the trial court erred in refusing to remand the case
to the commission for a hearing on his claim of extrinsic fraud.
Agnew’s basis for the extrinsic fraud claim is that the
commission failed to afford him a fair hearing by denying him a
new hearing and opportunity to present his evidence. He further
asserts that the commission’s decision was procured by extrinsic
fraud based on a record that was "replete with Baker’s
uncontested contentions and allegations taken as fact by the
Appeals Examiner . . . ."

"Extrinsic fraud is ‘conduct which prevents a fair
submission of the controversy to the court.’" Wells Fargo
Alarm Servs., Inc. v. Virginia Employment Comm’n
, 24 Va. App.
377, 386, 482 S.E.2d 841, 846 (1997) (quoting Jones v. Willard,
224 Va. 602, 607, 299 S.E.2d 504, 508 (1983)).

In Jones, the Court held that

when a party aggrieved by a decision of the Virginia
Employment Commission alleges in his petition for review that
the decision was procured by extrinsic fraud committed by the
successful party and submits with the petition a proffer of
proof, verified by affidavits of witnesses, the circuit court
shall remand the cause to the Commission for a hearing on the
issue if, upon review of the proffer and argument by counsel,
the court finds the proffer sufficient as a matter of law to
establish a prima facie case of such fraud.

Jones, 224 Va. at 608, 299 S.E.2d at 508.

In Jones, the alleged extrinsic fraud involved the
petitioner’s belief that she was threatened by her former
employer regarding her unemployment compensation claim, causing
her to "avoid" the appeals examiner’s hearing. Id.
at 605, 299 S.E.2d at 506?07. In Wells Fargo, the alleged
extrinsic fraud involved the concealment of records by the
discharged employee in an alleged plan to deceive corporate
officials. Wells Fargo, 24 Va. App. at 386, 482 S.E.2d at
846. Thus, extrinsic fraud involves behavior or actions committed
by a party that prevents "a fair resolution of the
case." Id. at 387, 482 S.E.2d at 846.

Agnew’s affidavits merely allege facts rebutting the evidence
presented by Baker. Thus, Agnew failed to establish a prima
facie case of extrinsic fraud. Rather, Agnew’s proffered
evidence went to the issue of witness credibility or whether
Baker’s witnesses committed perjury. Such allegations constitute
a claim of intrinsic fraud, not extrinsic fraud. See Jones,
224 Va. at 607, 299 S.E.2d at 508 (Intrinsic fraud involves
"perjury, forged documents, or other incidents of trial
related to issues material to the judgment."). Therefore,
Agnew’s affidavits failed to show that Baker engaged in conduct
that prevented "a fair resolution of the case." Id.
Accordingly, because Agnew’s proffer to the trial court was
insufficient to establish a prima facie case of
extrinsic fraud, the trial court did not err in refusing to
remand the case to the commission.

For the foregoing reasons, the opinion of the trial court is
affirmed.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17?116.010 this
opinion is not designated for publication.

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