Brenda Miller, Claimant/Appellant, v. The Pasta House Company 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: Brenda Miller, Claimant/Appellant, v. The Pasta House Company and Division of Employment Security, Respondents. Case Number: ED90280 Handdown Date: 11/06/2007 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Party Acting Pro Se Counsel for Respondent: Matthew J. Sauter and Matthew R. Heeren Opinion Summary: Brenda Miller appeals the decision of the Labor and Industrial Relations Commission denying her claim for unemployment benefits. DISMISSED. Division Five holds: Miller'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 the case. Citation: Opinion Author: Patricia L. Cohen, Chief Judge Opinion Vote: APPEAL DISMISSED. Shaw and Baker, JJ., concur. Opinion: Brenda Miller (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying her claim for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was disqualified from receiving unemployment benefits, because she was discharged from her employment for misconduct connected with her work. She appealed to the Appeals Tribunal of the Division. On July 2, 2007, the Appeals Tribunal issued a decision affirming the deputy's determination. On August 7, 2007, Claimant filed an application for review with the Commission. The Commission denied her application for review, affirming the Appeals Tribunal's decision. Claimant appeals to this Court. The Division has filed a motion to dismiss Claimant's appeal. The Division asserts that Claimant's application for review to the Commission was untimely and thus, the Commission and this Court are without jurisdiction to review her case. Claimant has not filed a response to the motion. In an unemployment case, a claimant has 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. Here, the Appeals Tribunal mailed its decision to Claimant on July 2, 2007. The application for review was due thirty days later, on August 1, 2007. Section 288.200.1. Claimant filed her application for review by sending it by facsimile on August 7, 2007, and it was untimely under section 288.200.1. The unemployment statutes fail to provide any exception to the thirty-day requirement. Without any provision for a late application for review, 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). This Court's jurisdiction is derived from that of the Commission, and if it lacks jurisdiction, then so do we. Clinton v. Laidlaw Transit, Inc., 203 S.W.3d 780, 781 (Mo.App.E.D. 2006). Therefore, we must dismiss Claimant's 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.