Gaylon Frazier, Claimant/Appellant v. Laidlaw Transit, 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: Gaylon Frazier, Claimant/Appellant v. Laidlaw Transit, Inc., and Division of Employment Security, Respondents. Case Number: ED88831 Handdown Date: 12/26/2006 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Gaylon Frazier, Pro Se Counsel for Respondent: Cynthia Ann Quetsch Opinion Summary: Gaylon Frazier appeals from the decision of the Labor and Industrial Relations Commission dismissing his application for review regarding his claim for unemployment compensation. APPEAL DISMISSED. Division Five holds: This Court lacks jurisdiction to consider the appeal where the notice of appeal to this Court was untimely and there is no mechanism for a late notice of appeal. Citation: Opinion Author: Booker T. Shaw, Chief Judge Opinion Vote: DISMISSED. Norton, J., and Cohen, J., concur. Opinion: Gaylon Frazier (Claimant) appeals from the Labor and Industrial Relations Commission's decision dismissing his

application for review regarding his claim for unemployment benefits.(FN1) The Commission dismissed his application for review because it was untimely. The Division of Employment Security (Division) has filed a motion to dismiss Claimant's appeal because his notice of appeal to this Court is untimely. Claimant has not filed a response to the motion. In unemployment cases, an aggrieved party may file a notice of appeal to this Court within twenty days of the Commission's decision becoming final. Section 288.210, RSMo 2000. The Commission's decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on September 15, 2006. Therefore, the notice of appeal was due on Monday, October 16, 2006. Sections 288.200.2, 288.210; Section 288.240, RSMo 2000 (if the twentieth day falls on a weekend or holiday, then the filing is deemed timely if filed on the next day that is neither a weekend or holiday). The Commission received Claimant's notice of appeal in an envelope postmarked October 23, 2006. Under section 288.240, Claimant's notice of appeal is deemed filed on that date. Therefore, Claimant's notice of appeal is untimely. The unemployment statutes make no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo. App. E.D. 2000). As a result, an untimely notice of appeal deprives this Court of jurisdiction to entertain the appeal and we must dismiss it. See, Nienke v. Division of Employment Sec., 182 S.W.3d 726, 727 (Mo. App. E.D. 2006). The Division's motion to dismiss is granted. Claimant's appeal is dismissed for lack of jurisdiction. Footnotes: FN1.Claimant had a prior appeal in this matter in which this Court reversed and remanded his claim to the Commission with directions to set aside its decision and remand the case to the Appeals Tribunal for a hearing on the merits. Frazier v. Laidlaw Transit, Inc., 192 S.W.3d 717, 718-19 (Mo. App. E.D. 2006). After the matter was remanded to the Appeals Tribunal, Claimant failed to appear for a hearing and his claim was dismissed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.