Coleman v. Missouri Professional Staffing Service Home Health Inc.

144 S.W.3d 862, 2004 Mo. App. LEXIS 1356, 2004 WL 2093507

• Court: Missouri Court of Appeals
• Decided: September 21, 2004
• Docket: No. ED 84710
• Status: Published

Opinion

GEORGE W. DRAPER III, Chief Judge.

Victoria Coleman (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying her claim for unemployment benefits. Because we find the Claimant’s notice of appeal is untimely, we dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded Claimant was disqualified from receiving unemployment benefits because she left her job voluntarily without good cause attributable to her work or the employer. Claimant filed an appeal with the Appeals Tribunal. After a telephone hearing, the Appeals Tribunal also concluded Claimant was disqualified from receiving unemployment benefits. Claimant filed an application for review by the Commission, which affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified that she mailed a copy of the Commission’s decision to Claimant on May 14, 2004. Claimant filed a notice of appeal to this Court on June 15, 2004.

The Commission’s decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2, RSMo 2000. Claimant has twenty days to appeal a final decision of the Commission. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on May 14, 2004. The decision became final ten days later and the notice of appeal was due on Monday, June 14, 2004. Sections 288.200, 288.210 and 288.240. Claimant mailed her notice of appeal to the Commission and her letter was postmarked on June 15, 2004. Claimant’s notice of appeal, therefore, was untimely under section 288.210.

This Court has a duty to determine sua sponte whether it has jurisdiction. Gray v. Botkin Lumber Co., 135 S.W.3d 519, 520 (Mo.App. E.D.2004). After reviewing our jurisdiction, we issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has failed to file a response.

An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Zahradka v. Northwest Chrysler-Plymouth, Inc., 122 S.W.3d 729, 730 (Mo.App.E.D. 2003). Even though Claimant’s notice of appeal was filed one day out of time, section 288.210 fails to make any provision for late filing and does not recognize any exceptions for filing out of time. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App.E.D.2000). Our only recourse is to dismiss her appeal.

The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ., concur.