Andrea Murphy, Claimant/Appellant, v. Just Roy, Inc., and Division of Employment Security, Respondents

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Andrea Murphy, Claimant/Appellant, v. Just Roy, Inc., and Division of Employment Security, Respondents Case Number: ED87641 Handdown Date: 04/25/2006 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Andrea Murphy, Pro Se Counsel for Respondent: Cynthia A. Quetsch Opinion Summary: Andrea Murphy appeals the labor and industrial relations commission's decision dismissing her application for review regarding her unemployment benefits. DISMISSED. Division Five holds: Murphy's appeal must be dismissed because she did not file her application for review with the commission in a timely fashion, depriving the commission and this Court of jurisdiction over her case. Citation: Opinion Author: Glenn A. Norton, C.J. Opinion Vote: DISMISSED. Crane and Shaw, JJ., concur Opinion: Claimant Andrea Murphy appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing her application for review regarding her unemployment benefits. We dismiss her appeal. A deputy of the Division of Employment Security denied Claimant's application for unemployment benefits, concluding she had left work voluntarily without good cause attributable to her work or employer. Claimant sought review of that decision with the Appeals Tribunal, which dismissed her appeal after she twice failed to participate in a scheduled

telephone hearing. Claimant filed an application for review with the Commission, which dismissed her application as untimely. Claimant has now appealed to this Court. In unemployment matters, the statute provides an aggrieved party with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. The statute sets forth no exceptions to the thirty-day requirement. As a result, the failure to file a timely application for review divests the Commission of jurisdiction and it can only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo. App. E.D. 2003). The Appeals Tribunal mailed its decision to Claimant on August 1, 2005. Her application for review was due thirty days later, on August 31, 2005. Section 288.200.1. Claimant filed her application for review by fax on December 16, 2005, almost four months past the deadline, and it was untimely. Without a timely application for review, the Commission had no jurisdiction over Claimant's case. In addition, this Court's jurisdiction is derived from that of the Commission, and if it does not have jurisdiction, then neither do we. Brown, 105 S.W.3d at 855. We issued an order directing Claimant to show cause why her appeal should not be dismissed for lack of jurisdiction. In addition, the Division has filed a motion to dismiss her appeal. Claimant has not filed a response, but she did file a brief. In her brief, she acknowledges the motion to dismiss, but asks this Court to address the merits of her appeal. However, no matter the reasons for the lateness of her application for review, its lateness automatically deprives the Commission, and ultimately this Court, of jurisdiction over the merits of her case. Id. The statutes fail to provide any mechanism for allowing an untimely application for review in an unemployment case. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D. 2000). Our only recourse is to dismiss the appeal. The Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.