Maria M. Rossi, Appellant v. James D. Stephens 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: Maria M. Rossi, Appellant v. James D. Stephens and Division of Employment Security, Respondents. Case Number: ED85435 Handdown Date: 02/22/2005 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Maria M. Rossi Counsel for Respondent: James P. Stephens and Cynthia A. Quetsch Opinion Summary: Maria Rossi appeals the labor and industrial relations commission's decision regarding her unemployment benefits. APPEAL DISMISSED. Division Five holds: This Court lacks jurisdiction to consider Rossi's appeal where her notice of appeal to this Court was untimely and there is no mechanism for a late notice of appeal in the unemployment statutes. Citation: Opinion Author: George W. Draper III, Chief Judge Opinion Vote: DISMISSED. Crahan, J., and Norton, J., concur. Opinion:

Maria Rossi (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding her unemployment benefits. The appeal is dismissed. A deputy with the Division of Employment Security concluded that Claimant had been overpaid $2,155 in unemployment benefits, because she had received benefits during a period she earned wages. The deputy also concluded that Claimant's failure to report her earnings was willful and canceled her wage credits prior to January 6, 2004.

Claimant filed an appeal to the Appeals Tribunal, which dismissed her appeal after she failed to participate in a telephone conference hearing. She then filed an application for review with the Commission, which affirmed the Tribunal's dismissal. The Commission mailed its decision to Claimant on August 13, 2004. Claimant filed a notice of appeal to this Court on November 9, 2004. A claimant has twenty days to file an appeal from a final decision of the Commission. Section 288.210, RSMo 2000. The Commission's decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2, RSMo

1. Here, the Secretary for the Commission mailed its decision to Claimant on August 13, 2004. The decision became

final ten days later and the notice of appeal was due twenty days thereafter on Monday, September 13, 2004. Sections 288.200, 288.210, 288.240, RSMo 2000. The Secretary to the Commission has certified that Claimant filed her notice of appeal on November 9, 2004, well after the notice of appeal was due. This Court has a duty to determine sua sponte whether it has jurisdiction. Rissman v. V S M Abrasives Corp., 136 S.W.3d 851 (Mo. App. E.D. 2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has failed to file a response. Section 288.210 sets forth stringent guidelines for the filing of the notice of appeal and fails to make any provision for late filing. 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. Thomas v. St. Martin's Childcare Center, 127 S.W.3d 704, 705 (Mo. App. E.D. 2004). 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.