Guebert v. Professional Installers, Inc.

128 S.W.3d 615 (2004)

Chris GUEBERT, Claimant/Appellant, v. PROFESSIONAL INSTALLERS, INC. and Division of Employment Security, Respondents.

No. ED 83899.

Missouri Court of Appeals, Eastern District, Division Five.

February 24, 2004.

Frank Robin Ledbetter, St. Louis, MO, for Appellant.

Cynthia Ann Quetsch, Jefferson City, MO, for Respondent.

Professional Installers, Inc., Earth City, pro se.

SHERRI B. SULLIVAN, Chief Judge.

Chris Guebert (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) denying his application for review as untimely. We dismiss the appeal for lack of jurisdiction.

After Claimant applied for unemployment benefits, a deputy of the Division of Employment Security (Division) approved Claimant's application. Claimant's employer appealed to the Appeals Tribunal. After a telephone hearing, the Appeals Tribunal denied Claimant unemployment benefits and concluded he had voluntarily left his work without good cause attributable to his work or his employer. The Appeals Tribunal mailed its decision to Claimant on August 21, 2003. Claimant filed an application for review with the Commission on November 3, 2003. The Commission denied the application for review, concluding it was untimely under Section 288.200.[1] Claimant now appeals to this Court.

The Division has filed a motion to dismiss the appeal, arguing that Claimant's untimely appeal to the Commission divested this Court of jurisdiction to consider his appeal. Claimant has not filed a response to the motion.

Section 288.200.1 provides a claimant with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on August 21, 2003. Thus, Claimant's application for review to the Commission was due on September 22, 2003. Claimant mailed his application for review to the Commission on November 3, 2003. When an application for review is mailed, it is "deemed to be filed as of the date endorsed by the United States post office on the envelope or container in which such paper is received." Section 288.240. Therefore, Claimant's application for review was untimely.

In explaining the lateness of his application for review, Claimant stated he had been busy. Unfortunately, Section 288.200 provides no mechanism for filing a late application for review with the Commission and the procedures are mandatory. Eggering v. Delmar Gardens Enterprises, Inc., 105 S.W.3d 853, 854 (Mo.App. E.D. 2003). Claimant's failure to file a timely application for review divests the Commission of jurisdiction. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D. 2003). Our jurisdiction is derived from that of the Commission and, if it does not have jurisdiction, then neither do we. Id.

*616 The Division's motion to dismiss is granted and Claimant's appeal is dismissed for lack of jurisdiction.

LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J., concur.

[1] All statutory references are to RSMo 2000, unless otherwise indicated.