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Tyad, Inc. v. Independent Contractor Central Unit

Court of Workers Compensation of Montana

August 10, 2005

TYAD, INCORPORATED, A MONTANA CORPORATION, d/b/a THE PLAYGROUND LOUNGE AND CASINO Petitioner
v.
INDEPENDENT CONTRACTOR CENTRAL UNIT Respondent.

          Submitted: May 5, 2005

          ORDERDENYING MOTION FOR RECONSIDERATION

          MIKE MCCARTER, JUDGE

         Summary: Following a decision determining that exotic dancers at The Playground Lounge and Casino in Great Falls were employees, TYAD, Incorporated, which owns and operates the Playground, moved for reconsideration and to amend the Court's Findings of Fact, Conclusions of Law and Judgment. It urges that the Court misapprehended both the evidence and the law and should have found that the dancers were independent contractors.

         Held: The motion was timely; however, none of the grounds advanced by the petitioner are meritorious.

         ¶1 The petitioner, TYAD, Incorporated (TYAD), moves the Court to reconsider and amend its Findings of Fact, Conclusions of Law and Judgment entered April 8, 2005. The motion was mailed on May 2, 2005, and deemed filed on that date. ARM 24.5.303(5).

         ¶2 The Independent Contract Central Unit (ICCU) initially urges that the motion is untimely since it was not filed within twenty days after issuance of the decision. Rule 24.5.344 requires that a request for a new trial or for amendment of the Court's findings of fact and conclusions of law be filed "within 20 days after the order or judgment is served." However, under Rule 24.5.303(3), three days are added:

24.5.303 SERVICE AND COMPUTATION OF TIME
(3) Whenever a party has the right or is required to do some act within a prescribed period of time after the service of a notice or other paper upon the party and the notice or paper is served by mail, three days shall be added to the prescribed period.

ARM 24.5.303. The Court's Findings of Fact, Conclusions of Law and Judgment were entered and served on April 8, 2005. Since three days must be added to the twenty days permitted for a request to amend, the petitioner had until May 1, 2005, to file its motion. However, since May 1 was a Sunday, the time for filing the motion was extended to Monday, May 2, 2005. ARM 24.5.303(4). It is therefore timely.

         ¶3 However, the motion is without merit. I address each of the petitioner's arguments in order.

         ARGUMENT 1:

Finding of Fact ¶ 15 fails to address the ICCU's determination as to dancers Ms. Campbell and Ms. Hamilton contained in Combined Exhibits 39-49.

         RESPONSE: The Court's decision makes it clear that its determination applies to all similarly situated dancers, which includes both Ms. Campbell and Ms. Hamilton.

         ARGUMENT 2:

Finding of Fact ¶ 20 states Lori Niendorf worked exclusively for the Playground for two years. Niendorf's wage claim documents establish that Niendorf performed at the Playground for 8 months, from March, 2003, to October, 2003. Exhibit 36 at 32.

         RESPONSE: The finding is inaccurate in that it states that Ms. Niendorf "worked exclusively for the Playground for two years." Rather, as shown in Ex. 36 at 18, The Playground Lounge and Casino (Playground) was the only employment she had during the previous two years. The error is immaterial. The point is that the Playground was her ...


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