Opinion
DOCKET NO. A-4962-13T4
11-28-2016
AGOSTINHO LIVRES, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and L&L CONSULTING SERVICES, LLC, Respondents.
Agostinho Livres, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent L&L Consulting Services, LLC, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Currier. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 444,305. Agostinho Livres, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent L&L Consulting Services, LLC, has not filed a brief. PER CURIAM
Claimant Agostinho Livres was employed as a consultant for an LLC solely owned by his wife from October 2009 to July 2012. When the LLC ceased operations and was dissolved, claimant applied for and was denied unemployment benefits. In a prior opinion, we affirmed the Board of Review's (Board) decision finding claimant ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-19(i)(7)(C) and 43:21-4(e). Livres v. Bd. of Review, No. A-0980-13 (App. Div. May 14, 2015).
As we noted in our prior opinion, N.J.S.A. 43:21-19(i)(7)(C) provides that employment shall not include "[s]ervice performed by an individual in the employ of his son, daughter or spouse." Claimant's wife was the sole member of the LLC, and as the single member of an LLC she is considered the employer. Therefore, his services for the LLC were exempt employment and he was not entitled to unemployment benefits.
While claimant's appeal of the Board's first decision was pending with this court, he filed a second application for unemployment benefits. His claim established a base period of January 1, 2012 through December 31, 2012. Claimant again was found ineligible for benefits because he was employed by his spouse during the base year, which constituted exempt employment. The Board affirmed the Appeal Tribunal's decision.
Claimant's base period for the first claim was January 1, 2011 through December 31, 2011. As a result of the Board's finding that claimant's employment for the LLC was exempt employment, he was also found to not have enough base weeks of covered employment to be entitled to benefits. N.J.S.A. 43:21-4(e). --------
Our review of the Board's most recent decision concerning claimant is a limited one. "Judicial review of an agency's final decision is generally limited to a determination of whether the decision is arbitrary, capricious, or unreasonable or lacks fair support in the record." Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223-24 (2009)).
Claimant presents many of the same issues for our consideration in this subsequent appeal as he did in the first appeal. The failed argument that claimant was wrongly denied benefits as a result of his employment with the LLC has already been adjudicated, and is therefore barred under the doctrine of res judicata. Where a cause of action between the parties "has been finally determined on the merits by a tribunal having jurisdiction [it] cannot be relitigated by those parties or their privies in a new proceeding." Velasquez v. Franz, 123 N.J. 498, 505 (1991) (citing Roberts v. Goldner, 79 N.J. 82, 85 (1979)).
In support of a new argument asserted in this appeal, claimant presents case law and statutory citations pertaining to former officers and employees of corporations, arguing he is entitled to benefits as a former officer of a corporation that ceased operations. We find these citations inapposite. Claimant's employer was his spouse in her capacity as the sole member of the LLC, not a corporation.
Finally, we address claimant's argument that he is entitled to unemployment benefits because unemployment taxes were deducted from his salary; consequently, to deny him benefits allegedly results in an unjust enrichment to the State and an injustice to himself. This contention is without merit. We have previously found the Board's determination of claimant's status under the applicable statutes to be supported by the law and the credible evidence in the record. Furthermore, claimant was advised by the Board in its June 2, 2014 decision that "[a]ny contributions paid into the [unemployment] Fund for an exempt individual may be reimbursed to the employer for a period of up to two years from the date of payment." See N.J.S.A. 43:21-14(f).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION