Todd Clinton, 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: Todd Clinton, Claimant/Appellant, v. Division of Employment Security, Respondent. Case Number: ED88683 Handdown Date: 10/17/2006 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Eric Tyrone Tolen Counsel for Respondent: Cynthia A. Quetsch Opinion Summary: Todd Clinton appeals the labor and industrial relations commission's decision dismissing his application for review of the assessment of overpaid unemployment benefits. APPEAL DISMISSED. Division Five holds: Clinton's appeal must be dismissed because the application for review was not filed with the commission in a timely fashion, depriving the Commission and this Court of jurisdiction over the case. Citation: Opinion Author: Booker T. Shaw, Chief Judge Opinion Vote: APPEAL DISMISSED. Norton and Cohen, JJ., concur. Opinion: Claimant Todd Clinton appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing his application for review of the Division of Employment Security's (Division) determination he was overpaid unemployment benefits. We dismiss the appeal. A deputy of the Division determined that Claimant had been overpaid unemployment benefits. Claimant sought review of that decision with the Appeals Tribunal, which affirmed the deputy's determination. Claimant then

filed an application for review with the Commission, which dismissed the application as untimely. Claimant has now appealed to this Court. The Division has filed a motion to dismiss Claimant's appeal. Claimant has filed a response. (FN1) An aggrieved party in an unemployment matter 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. The Appeals Tribunal mailed its decision to Claimant on July 3, 2006. Under section 288.200, the application for review was due thirty days later, on August 2, 2006. In his response, Claimant states that "there are exactly thirty (30) days from the date of July 3, 2006 and the date of August 3, 2006." This is erroneous. Beginning with July 4, 2006 as day number one and counting to thirty, the thirtieth day is August 2, 2006, not August 3, 2006. Claimant mailed his application for review on August 3, 2006. It is deemed filed on that date under section 288.240, RSMo 2000, and was untimely. The unemployment statutes set forth no exceptions to the thirty-day requirement. 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). The lateness of the application for review also deprives this Court of jurisdiction over the merits of his case. Truel v. Division of Employment Security, 166 S.W.3d 131, 132 (Mo. App. E.D. 2005). Our only recourse is to dismiss the appeal. The Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction. Footnotes: FN1. Claimant has also appealed from the related decision that he was discharged from his employment with Laidlaw Transit, Inc. for misconduct connected with his work. That appeal has been given no. ED88684 and our opinion in that case is being handed down simultaneously with this one. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.