Gorham v. TIHEN COMMUNICATIONS, INC.

233 S.W.3d 794 (2007)

Michael J. GORHAM, Jr., Claimant/Appellant, v. TIHEN COMMUNICATIONS, INC., and Division of Employment Security, Respondents.

No. ED 90097.

Missouri Court of Appeals, Eastern District, Division Five.

September 25, 2007.

Michael J. Gorham, Jr., St. Peters, MO, pro se.

Tihen Communications, Inc., Fenton, MO, pro se.

Matthew R. Heeren, Jefferson City, MO, for respondents.

PATRICIA L. COHEN, Chief Judge.

Michael Gorham, Jr. (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing his application for review regarding his unemployment benefits. We dismiss the appeal for lack of jurisdiction.

Claimant applied for unemployment benefits after his job at Tihen Communications, Inc. was terminated. A deputy of the Division of Employment Security (Division) concluded that he was disqualified from receiving them. He 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 was dismissed as untimely under section 288.200, RSMo 2000. Claimant has now appealed to this Court. The Division has filed a motion to dismiss Claimant's appeal. The Division asserts that Claimant's application for review to the Commission was untimely and thus, the Commission and this Court are without jurisdiction to review his case. Claimant has not filed a response to the motion.

In an unemployment compensation matter, a party has thirty (30) days from the mailing of the Appeals Tribunal decision to file an application to have the decision reviewed by the Commission. Section 288.200.1. In this case, the Appeals Tribunal issued and mailed its decision to Claimant on March 30, 2007. Claimant filed his application for review by the Commission by facsimile on May 16, 2007, forty-seven days later. The application for review was due within thirty days, on Monday, April 30, 2007. Section 288.200.1; Section 288.240, RSMo 2000 (if the thirtieth day falls on a weekend or holiday, the deadline is extended to the next week day). Therefore, Claimant's application for review was untimely under section 288.200.1.

The timely filing of an application for review is jurisdictional and the failure to comply with the statutory time limit for appeal results in a lapse of jurisdiction and loss of the right to appeal. Blanchard v. Shurn & Associates, Inc., 209 S.W.3d 22, 24 (Mo.App. E.D.2006). Any failure to file a timely application for review divests both the Commission and this Court of jurisdiction. Clinton v. Division of Employment Sec., 203 S.W.3d 779, 780 (Mo.App. E.D. 2006).

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

BOOKER T. SHAW, J., and NANNETTE A. BAKER, J., Concur.