This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




J M Oil Company, Inc.,



Commissioner of Economic Security,


Filed October 13, 1998

Affirmed in part, reversed in part, and remanded.

Randall, Judge

Department of Economic Security

File No. 181T97

Frank J. Kundrat, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for relator)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.



Relator argues that the commissioner's representative incorrectly interpreted Minn. Stat. chapter 268. Relator argues that its business should not be labeled a "successor employer" and, therefore, should not succeed to the experience rating record of a prior business with an unfavorable rating. We affirm in part, reverse in part, and remand.


In 1992, relator JM Oil, Inc. (JM Oil) leased the Graystone Mini-Mart in Cold Spring from a third-party lessor. JM Oil operated the convenience store until January 4, 1993, when it acquired the property from the lessor by warranty deed. JM Oil then leased the property, including the mini-mart operation, to Witco, Inc. (Witco), effective January 3, 1993. The lease included the real estate, equipment, and fixtures and an option for Witco to purchase the property. Witco obtained its own inventory to stock the mini-mart.

From January 1993 until June 1996, Witco operated the store under the name of Graystone Mini-Mart, using its own employees. The Graystone Mini-Mart was operated under the corporate umbrella of Witco, an umbrella that also included a construction and masonry business. In June 1996, JM Oil informed Witco by letter dated June 25, 1996, that it was in default under the lease for the nonpayment of rent and that if all delinquencies were not paid by July 31, 1996, its tenancy would terminate. Witco abandoned its operation of the mini-mart, laid off its employees, vacated the property, and JM Oil was forced to take the property back.

In August 1996, JM Oil took down the store name "Graystone" and reopened the store under the name JM Mini-Mart. JM Oil did not put up a new sign with the name JM. When it reopened the store, JM Oil hired the former store manager who had managed the store under Witco, along with four or five former cashiers. There was no purchase agreement, assumption of documents, or transfer of any titles to inventory or equipment from Witco to JM Oil.

On March 28, 1997, the Department of Economic Security informed JM Oil that it had transferred the high Witco experience rating record to it. This resulted in JM Oil's tax rate going from 1.7% in 1996 to 2.4% in 1997. JM Oil filed a timely written notice of appeal. On September 11, 1997, a reemployment insurance judge conducted an evidentiary hearing on the issue of whether JM Oil was a "successor employer" and should succeed to Witco's experience rating record. The judge affirmed the initial determination. JM Oil appealed to the Commissioner of Economic Security. A commissioner's representative conducted review proceedings and on January 28, 1998, affirmed the judge's decision holding that JM Oil had succeeded to Witco's experience rating record. This appeal by writ of certiorari follows.


On appeal, this court must view the findings of the commissioner in the light most favorable to the decision, and if there is any evidence reasonably tending to sustain them, they will not be disturbed on appeal. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). This court is not bound by the commissioner's conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Here, the commissioner's representative concluded that, as of August 1, 1996, JM Oil was a successor employer of Witco and that Witco's experience rating record would transfer to JM Oil. Minn. Stat. § 268.06, subd. 22(a) (1996), provides:

When an employing unit succeeds to or acquires the organization, trade or business or substantially all the assets of another employing unit which at the time of the acquisition was an employer subject to this law, and continues such organization, trade or business, the experience rating record of the predecessor employer shall be transferred as of the date of acquisition to the successor employer for the purpose of rate determination.

When examining whether an employer is a successor employer under this section, the court employs a two-tiered analysis. Easy Street West v. Commissioner of Econ. Sec., 345 N.W.2d 250, 254 (Minn. App. 1984). The first tier asks "[i]f one acquires substantially all the assets of a particular business operation." Id. If this inquiry is satisfied, then the court must ask whether the particular business operation is continued. Id. Satisfaction of the second tier "requires that the successor business continue the fundamental character or identity of the predecessor's business." Id. at 255. Because the experience rating record determines an employer's future level of contribution to the reemployment insurance system,

transfer of the predecessor's employment experience rating record to the successor is fair and logical only when the essential character of the business is continued so that the employment experience of the successor is likely to be that of its predecessor.

Id. In determining whether the successor has continued the essential character of a predecessor's business, courts generally look for the carryover of management, employees, and clientele. Id. The "[m]ere purchase of the physical assets of the predecessor and use of the assets in the same kind of business are not sufficient" to satisfy the second tier of the analysis and do not justify the transfer of the predecessor's experience rating to the successor. Id.

JM Oil agrees that it continued a type or line of business of Witco, the Graystone Mini-Mart, but argues that it did not continue the essential character of Witco. JM Oil claims that Witco was primarily a construction company and that the operation of the Graystone Mini-mart was only a small side business operated under the corporate umbrella of Witco. JM Oil insists that it is a completely different business from Witco. JM Oil points out that it is primarily in the oil and fuel wholesale sales and distribution business, along with the operation of some mini-mart stores.

In Easy Street this court stated that

[t]here is no rationale supporting transfer of employment experience rating record just because an employer remains in the same line of business as the employer whose physical assets it has purchased. * * * Transfer of a predecessor's employment experience rating record for purposes of determining the successor's contribution makes sense only where the essential character of the predecessor's particular operation - not just the type or line of business-is continued by the successor. It is only under these circumstances that the employment experience of the predecessor is likely to continue and transfer of the employment experience rating record is justified.

Id. (citations omitted). Likewise,

[t]he logic of the [reemployment] statute is "that an employer's contribution is measured by his experience and, when his experience is likely to be that of his predecessor, his contributions should be that of his predecessor."

CRE Restaurant Co. v. State, Dep't of Econ. Sec., 353 N.W.2d 231, 232 (Minn. App. 1984) (quoting Easy Street, 345 N.W.2d at 253.).

Here, JM Oil's experience rating is based primarily on its years of operating convenience stores. This is in contrast to Witco, which the record shows was mainly in the construction and masonry business. The Graystone Mini-Mart was only a small side business operated under the Witco corporate umbrella. Thus, although JM Oil acquired all the assets of the Graystone Mini-Mart, it is questionable whether JM Oil acquired and continued the fundamental or essential character of Witco's business. It is more likely than not that the traditionally high employee turnover rate in the construction business explains Witco's high unemployment experience rating. There is nothing in the record to indicate that Witco's unfavorable rating came from the operation of the Graystone Mini-Mart alone. If Witco's rating did not come from the Graystone Mini-Mart alone, it would not be fair or logical to transfer the experience rating of Witco to JM Oil.

The commissioner states that although Witco at one time operated several businesses under the umbrella of one employer account, it ceased operation of those businesses and by June 1996, the Graystone Mini-Mart was the only business operating under the Witco, Inc., employer account. However, there is little record evidence to support this assertion. We reverse and remand to the commissioner for specific findings on whether the Witco rating was based solely on its operation of the Graystone Mini-Mart or whether Witco's high rating was attributable in whole or in part to its construction business. In addition, the commissioner should consider these findings in the context of recently enacted Minn. Stat. § 268.051, subd. 4(b) (Supp. 1997). This section provides that when an employing unit succeeds or acquires a distinct severable portion of a business that is less than substantially all the assets of another employing unit, the successor employing unit shall acquire the experience rating record attributable to that portion to which it has succeeded. Minn. Stat. § 268.051, subd. 4(b).

JM Oil also argues that its reopening of the Graystone Mini-Mart was not a voluntary succession because it was forced to do so when Witco abandoned the mini-mart operation. We rejected a similar argument in CRE Restaurant. In CRE Restaurant, the relator argued that it had involuntarily acquired the assets of a predecessor only to protect its position as creditor and that it should not be assessed the predecessor's experience rating. 353 N.W.2d at 232. This court rejected the relator's argument that the statute contained a "voluntary acquisition requirement," holding that "[t]he statute does not require voluntary acquisition" and the relator's behavior in trying to protect his interest was not "involuntary." Id.

Here, JM Oil's actions in acquiring the Graystone Mini-Mart operation were voluntary. In a letter dated June 25, 1996, counsel for JM Oil informed Witco that it was in default of its lease, that all delinquent amounts needed to be paid on or before July 31, 1996, and that "[i]f all delinquencies are not paid by that date, your tenancy shall terminate and * * * [JM Oil] will commence an action to recover possession of the premises * * *." JM Oil did not formally foreclose on the Graystone Mini-Mart. Witco vacated the premises in response to JM Oil's letter, meaning, in essence, that Witco agreed that it was in default and that JM Oil had the right to enter and take possession. We affirm the commissioner's representative's determination that JM Oil's acquisition was voluntary for the purpose of the reemployment successorship statute.

Finally, JM Oil argues that the commissioner's representative erroneously applied the provisions of Minn. Stat. § 268.06, subd. 22 (1996), because it was repealed and replaced by Minn. Stat. § 268.051, subd. 4 (Supp. 1997). JM Oil failed to cite any authority, beyond its assertion, that it was improper for the commissioner's representative to apply the successor employer statute in effect at the time the acquisition took place. Thus, the issue is waived on appeal. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (Minn. 1971) (holding assignment of error based on mere assertion not supported by any argument or authorities is waived, and reviewing court will not consider issue unless prejudicial error is obvious on mere inspection). However, if we consider the issue, arguendo, the statute to be applied in this case is the statute in effect at the time of the acquisition. The commissioner got it right. Both Minn. Stat. § 268.06, subd. 22(a), and Minn. Stat. § 268.051, subd. 4(a), provide that "the experience rating record of the predecessor employer shall be transferred as of the date of acquisition to the successor employer." Thus, the commissioner's representative properly applied section 268.06, subd. 22, because it was the law at the time of the acquisition.

Affirmed in part, reversed in part, and remanded.