Sutton v. Vee Jay Cement Contracting Co.

Missouri Court of Appeals

Sutton v. Vee Jay Cement Contracting Co.

161 S.W.3d 893, 2005 Mo. App. LEXIS 579, 2005 WL 895743

CourtMissouri Court of Appeals

DecidedApril 19, 2005

DocketNo. ED 85689

StatusPublished

Cited by1 cases

This text of 161 S.W.3d 893 (Sutton v. Vee Jay Cement Contracting Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sutton v. Vee Jay Cement Contracting Co., 161 S.W.3d 893, 2005 Mo. App. LEXIS 579, 2005 WL 895743 (Mo. Ct. App. 2005).

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Opinion

GEORGE W. DRAPER III, Chief Judge.

Vee Jay Cement Contracting Company (Employer) appeals the Labor and Industrial Relations Commission’s award of [894]*894workers’ compensation benefits to employee Larry Sutton. Because. Employer’s notice of appeal was untimely, we dismiss the appeal.

Under section 287.495, RSMo 2000, Employer’s notice of appeal was due within thirty (30) days of the date of the final award of the Commission. Here, the date of the Commission’s award was December 7, 2004. Therefore, Employer’s notice of appeal was due thirty (30) days later on January 6, 2005. Section 287.495.

Employer sent a notice of appeal, which the Commission received on January 7, 2005. The notice of appeal was sent by Federal Express on January 5, 2005. The only exception for filing outside the thirty days is if the notice of appeal is endorsed by the United States post office. Section 287.480, RSMo 2000. However, this exception does not apply when the notice is sent by a private dispatching service and not the United States post office. Mansfield v. TG Missouri Corp., 149 S.W.3d 895, 896 (Mo.App. E.D.2004); See also, Patterson v. St. Louis University Hosp., 780 S.W.2d 106, 108 (Mo.App. E.D.1989), partially overruled on other grounds Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991); Grice v. City of St. Robert, 824 S.W.2d 470 (Mo.App. S.D.1992). Therefore, Employer’s notice of appeal was considered filed the date it was received, January 7, 2005.

We issued an order directing Employer to show cause why its appeal should not be dismissed as untimely. Employer agrees its notice of appeal was sent by Federal Express on January 5, 2005 and should have been delivered on the due date of January 6, 2005. However, due to a routing error committed by Federal Express, the package was not delivered to the Commission in Jefferson City until January 7, 2005, one day out of time. Employer asks us to consider this as good cause, because the circumstances for late filing were beyond its control. However, there is no exception to section 287.495 for late filing for “good cause.” Compare, Grice, 824 S.W.2d at 472 (no provision for filing out of time for good cause or ignorance of law under section 287.480). Although we can sympathize with Employer’s plight, we are bound by the fact there is no statutory exception for late filing based on “good cause” in section 287.495. Because no exception applies, the filing date is considered the date the notice of appeal was received on January 7, 2005, which was untimely. Our only recourse is to dismiss the Employer’s appeal. Miller v. Missouri Highway and Transp. Com’n, 84 S.W.3d 133, 134 (Mo.App. E.D.2002).

The appeal is dismissed.

LAWRENCE G. CRAHAN, J„ and GLENN A. NORTON, J., concur.

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GEORGE W. DRAPER III, Chief Judge.

Vee Jay Cement Contracting Company (Employer) appeals the Labor and Industrial Relations Commission’s award of [894]*894workers’ compensation benefits to employee Larry Sutton. Because. Employer’s notice of appeal was untimely, we dismiss the appeal.

Under section 287.495, RSMo 2000, Employer’s notice of appeal was due within thirty (30) days of the date of the final award of the Commission. Here, the date of the Commission’s award was December 7, 2004. Therefore, Employer’s notice of appeal was due thirty (30) days later on January 6, 2005. Section 287.495.

Employer sent a notice of appeal, which the Commission received on January 7, 2005. The notice of appeal was sent by Federal Express on January 5, 2005. The only exception for filing outside the thirty days is if the notice of appeal is endorsed by the United States post office. Section 287.480, RSMo 2000. However, this exception does not apply when the notice is sent by a private dispatching service and not the United States post office. Mansfield v. TG Missouri Corp., 149 S.W.3d 895, 896 (Mo.App. E.D.2004); See also, Patterson v. St. Louis University Hosp., 780 S.W.2d 106, 108 (Mo.App. E.D.1989), partially overruled on other grounds Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991); Grice v. City of St. Robert, 824 S.W.2d 470 (Mo.App. S.D.1992). Therefore, Employer’s notice of appeal was considered filed the date it was received, January 7, 2005.

We issued an order directing Employer to show cause why its appeal should not be dismissed as untimely. Employer agrees its notice of appeal was sent by Federal Express on January 5, 2005 and should have been delivered on the due date of January 6, 2005. However, due to a routing error committed by Federal Express, the package was not delivered to the Commission in Jefferson City until January 7, 2005, one day out of time. Employer asks us to consider this as good cause, because the circumstances for late filing were beyond its control. However, there is no exception to section 287.495 for late filing for “good cause.” Compare, Grice, 824 S.W.2d at 472 (no provision for filing out of time for good cause or ignorance of law under section 287.480). Although we can sympathize with Employer’s plight, we are bound by the fact there is no statutory exception for late filing based on “good cause” in section 287.495. Because no exception applies, the filing date is considered the date the notice of appeal was received on January 7, 2005, which was untimely. Our only recourse is to dismiss the Employer’s appeal. Miller v. Missouri Highway and Transp. Com’n, 84 S.W.3d 133, 134 (Mo.App. E.D.2002).

The appeal is dismissed.

LAWRENCE G. CRAHAN, J„ and GLENN A. NORTON, J., concur.

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161 S.W.3d 893, 2005 Mo. App. LEXIS 579, 2005 WL 895743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-vee-jay-cement-contracting-co-moctapp-2005.

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