Ike Fortenberry, Claimant/Appellant, v. Division of Employment Security, Respondent

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: Ike Fortenberry, Claimant/Appellant, v. Division of Employment Security, Respondent Case Number: ED91718 Handdown Date: 09/30/2008 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Ike Fortenberry (pro se) Counsel for Respondent: Matthew Murphy Opinion Summary: Ike Fortenberry appeals the decision of the Labor and Industrial Relations Commission dismissing his application for review of the Appeals Tribunal's decision to deny him unemployment benefits. DISMISSED. Division Five holds: Fortenberry's appeal must be dismissed because the application for review to the commission was untimely, which deprives the commission and this court of jurisdiction over the case. Citation: Opinion Author: Nannette A. Baker, Chief Judge Opinion Vote: DISMISSED. Cohen and Romines, JJ., concur. Opinion: Ike Fortenberry (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission)

dismissing his application for review of the Appeals Tribunal's decision to deny him unemployment benefits. We dismiss the appeal. A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible to receive unemployment benefits, because he left work voluntarily without good cause attributable to his work or employer. Claimant filed an appeal with the Appeals Tribunal of the Division, which affirmed the deputy's determination. Claimant then filed an application for review with the Commission, which dismissed it as untimely. Claimant now appeals to this Court. The Division has filed a motion to dismiss Claimant's appeal. The Division asserts that Claimant's late application for review to the Commission deprived both the Commission and this Court of jurisdiction. Claimant has not filed a response. 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 June 4, 2008. The application for review was due thirty days later, on Monday, July 7, 2008. Section 288.200.1; Section 288.240, RSMo 2000. Claimant faxed the application for review to the Commission on July 11, 2008, which was untimely under section 288.200.1. There are no exceptions in the unemployment statutes to the thirty-day filing requirement. Filing a timely application for review, therefore, is a jurisdictional requirement in both the Commission and this Court. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo. App. E.D. 2003). Without jurisdiction over the appeal, we must dismiss it. 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.