Harry Watkins, Claimant/Appellant v. Kings Food Philips 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: Harry Watkins, Claimant/Appellant v. Kings Food Philips Inc., and Division of Employment Security, Respondents. Case Number: ED85692 Handdown Date: 04/12/2005 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Barry Watkins Counsel for Respondent: Cynthia A. Quetsch Opinion Summary: Harry Watkins appeals the decision of the Labor and Industrial Relations Commission affirming the denial of unemployment benefits. APPEAL DISMISSED. Division Five holds: This Court lacks jurisdiction to consider Watkins' 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: George W. Draper III, Chief Judge Opinion Vote: DISMISSED. Crahan, J., and Norton, J., concur Opinion: In this unemployment case, Barry Watkins (Claimant) appeals the Labor and Industrial Relations Commission's (Commission) decision affirming the Appeals Tribunal's dismissal of his appeal. Claimant's notice of appeal to this Court is untimely. As a result, we have no jurisdiction and dismiss Claimant's appeal.

A deputy for the Division of Employment Security (Division) denied Claimant's request for unemployment and concluded he had voluntarily quit his job without good cause attributable to his work or employer. Claimant appealed to the Appeals Tribunal, which dismissed his appeal after he failed to participate in a telephone hearing. Claimant filed an application for review with the Commission. The Commission affirmed the Appeals Tribunal's dismissal. The Secretary of the Commission certified that she mailed a copy of the Commission's decision to Claimant on December 8, 2004. Claimant appealed to this Court by filing a notice of appeal with the Commission by facsimile on January 9, 2004. Once the Commission's decision is mailed to the parties, it becomes final ten days thereafter. Section 288.200.2, RSMo 2000. A claimant then 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 December 8, 2004. The decision became final ten days later and the notice of appeal was due on January 7, 2005. Section 288.200; Section 288.210. Claimant sent his notice of appeal by facsimile on January 9, 2005. If a notice of appeal is faxed, it is deemed filed on the date the Division's fax machine receives it. 8 C.S.R. 20-2.010(4). Claimant's notice of appeal, filed on January 9, 2005, was untimely. This Court has a duty to determine sua sponte whether it has jurisdiction. Williams v. ESI Mail Pharmacy Service, Inc., 103 S.W.3d 848 (Mo. App. E.D. 2003). After reviewing our jurisdiction, we issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant filed a response addressing only the merits of his appeal. He did not address the timeliness of his notice of appeal. Section 288.210 makes 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). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.2d 261, 261 (Mo. App. E.D. 2003). 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.