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FOR PUBLICATION
ATTORNEY FOR APPELLANT: L. ALEXANDER WOLOSHANSKY Merrillville, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana

FILED
Dec 18 2008, 9:10 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
ART HILL, INC., Appellant-Petitioner, vs. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, and TERRENCE HORAN Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 93A02-0801-EX-34

APPEAL FROM THE REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELPMENT Cause No. 07-R-02778

December 18, 2008

OPINION -FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Art Hill, Inc. ("Art Hill") appeals from a decision by the Unemployment Insurance Review Board ("Review Board") affirming the findings and conclusions of an Administrative Law Judge ("ALJ"), which granted Terence Horan's application for unemployment benefits. On appeal, Art Hill raises a single issue, which we restate as whether the Review Board erred when it affirmed the ALJ's decision granting Horan unemployment benefits where Art Hill did not participate in the hearing conducted by the ALJ. Concluding that Art Hill had an opportunity to be heard but voluntarily failed to participate, we affirm. Facts and Procedural History Art Hill discharged Horan from employment on July 24, 2007. On August 7, 2007, the Department of Workforce Development denied Horan's claim for unemployment benefits finding that Art Hill discharged Horan for just cause. Horan filed a notice of appeal of the denial of benefits on August 13, 2007. On October 3, 2007, the ALJ mailed Art Hill and Horan a notice of hearing to be held on October 25, 2007 at 2:15 p.m. (Gary, Indiana time).1 The notice stated that the hearing would be held telephonically and instructed both parties to submit one telephone number where they could be contacted by the ALJ at the time of hearing. 2 The notice of hearing provided a telephone and fax number for the ALJ in Lafayette, Indiana. Horan
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To avoid confusion, all times will be given in reference to Gary, Indiana local time (Central Time Zone).

The ALJ also attached telephone hearing instructions to the notice of hearing. The instructions again required both parties to submit one telephone number where they could be contacted by the ALJ at the time of hearing. The instructions also included a return slip on which the party should indicate participation in the hearing and provide the telephone number. Both the notice of hearing and the instructions stated that a party should call in or fax a contact telephone number to the ALJ if there was insufficient time for the return slip to be received by mail prior to the hearing.

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filed a return slip indicating a telephone number where he could be reached for the hearing; Art Hill did not file a return slip, but telephoned the ALJ's office two days prior to the hearing and provided a telephone number ending with extension 5353. On October 25, 2007, the ALJ contacted Horan at the telephone number he provided. However, the ALJ was unable to contact Art Hill at the number it provided. The ALJ attempted to reach Art Hill three times. Twice, the ALJ dialed the telephone number ending with extension 5353 and reached a voicemail recording. Once, the ALJ dialed the telephone number without the extension and reached an automated menu. After failing to contact Art Hill at the telephone number it provided, the ALJ found that Art Hill had failed to participate in the hearing and conducted the hearing without Art Hill's participation. The ALJ concluded the hearing at 2:33 p.m. Subsequent to the hearing, the ALJ reached Art Hill at extension 5353 and informed Art Hill that the hearing had been held without its participation. The ALJ issued the following findings of fact and conclusions of law: FINDINGS OF FACT: The employer was called at the number provided by the employer, ... ext. 5353, at [2]:20 p.m. and [2]:25 p.m. but the employer was not available. The following findings are based upon the evidence presented: The employer, Art Hill, operates an automobile dealership located in Merrillville, Indiana. The claimant, Terance Horan, worked for the employer as a salesperson, and began work for the employer in 1987, and last worked for the employer July 24, 2007. The claimant was discharged from the employment, and the employer informed the claimant that he was discharged. The employer did not participate in the hearing and
present evidence, and there is no evidence as to the employer's reason for discharging the claimant from employment.

Conclusions of Law: The burden of proof is on the employer to present evidence at the hearing indicating that the claimant was discharged for just cause as provided in I.C. 22-4-15-1. The employer did not participate in the hearing, and the employer failed to satisfy the burden of proof. The
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claimant was discharged but not for just cause, as provided in I.C. 22-4-151. Appellant's Appendix at 1. On appeal of the ALJ's decision to the Review Board, Art Hill explained that the telephone at extension 5353 did not have a working speakerphone. Therefore, Art Hill moved to another telephone at extension 5331. Beginning at 2:30 p.m., Art Hill placed several calls to the ALJ's administrative assistant in Indianapolis and the ALJ's phone number listed on the notice of hearing but reached voicemail recordings on each attempt. The Review Board affirmed the decision of the ALJ on December 4, 2007. 3 Art Hill now brings this appeal. Discussion and Decision Art Hill argues that it was denied due process of law when the ALJ conducted the hearing without Art Hill's participation.4 I. Standard of Review On review of an unemployment compensation proceeding, we determine whether the decision of the Review Board is reasonable in light of its findings. Scott v. Review Bd. of the Ind. Dep't of Workforce Dev., 725 N.E.2d 993, 995 (Ind. Ct. App. 2000). When the Review Board's decision is challenged as being contrary to law, we consider

Art Hill has not attached a copy of the Review Board's decision to its brief. We remin d counsel of Indiana Appellate Rule 46(A)(10), which states, "The brief shall include any written opinion, memorandum of decision[,] or findings of fact and conclusions thereon relating to the issues raised on appeal." Other than quoting portions of the Indiana and United States Constitutions, Art Hill failed to provide any citations to authority to support its argument. Indiana Appellate Rule 46(A)(8)(a) requires that all arguments be supported by cogent reasoning and citations to authority. Ordinarily, "a party waives any issue for which it fails to develop a cogent argument or support with adequate citation to authority and portions of the record." Romine v. Gagle, 782 N.E.2d 369, 386 (Ind. Ct. App. 2003). Nonetheless, because of our preference to decide cases that come before us on their merits, we proceed to decide this appeal. See Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App. 2006).
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whether the evidence is sufficient to sustain its findings of fact and whether the findings are sufficient to sustain the decision. NOW Courier, Inc. v. Review Bd. of Ind. Dep't of Workforce Dev., 871 N.E.2d 384, 387 (Ind. Ct. App. 2007). The Review Board's

findings of fact are generally conclusive and binding. Id. However, when an appeal involves a question of law, we are not bound by the Review Board's interpretation of the law. Id. II. Denial of Due Process An individual denied unemployment benefits may seek a hearing on the issue before an ALJ. Ind. Code

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