Davis v. ABM COMPANY OF KENTUCKY

285 S.W.3d 802 (2009)

Tommy DAVIS, Claimant/Appellant,
v.
ABM COMPANY OF KENTUCKY and Division of Employment Security, Respondents.

No. ED 92607.

Missouri Court of Appeals, Eastern District, Division Five.

May 19, 2009.

Tommy Davis, St. Louis, MO, pro se.

Michael Pritchett, Division of Employment Security, Jefferson City, ABM Company of Kentucky, c/o AJ Burkhardt, St. Louis, MO, for respondents.

NANNETTE A. BAKER, Chief Judge.

Tommy Davis (Claimant) appeals the Labor and Industrial Relations Commission's (Commission) decision concerning his application for unemployment benefits. We dismiss the appeal.

The Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. Claimant appealed to the Appeals Tribunal, which also concluded he was ineligible for benefits.^[1] He then appealed to the Commission, which affirmed the Appeals Tribunal's decision. Claimant has now filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant's appeal, asserting it is untimely. Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, provides that the notice of appeal to this Court from the Commission's decision must be filed within twenty days of the decision becoming final. The Commission's decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on January 5, 2009. Therefore, the notice of appeal to this Court was due on or before February 4, 2009. Sections 288.200.2, 288.210. Claimant mailed his notice of appeal to the Commission in an envelope postmarked February 13, 2009, which is deemed the filing date. Section 288.240, RSMo 2000; Alfred v. Delmar Gardens of Creve Coeur, 257 S.W.3d 185, 185 (Mo.App. E.D.2008). Claimant's notice of appeal is untimely under section 288.210.

"The right of appeal is purely statutory[,] and where statutes do not give such a right, no appeal exists." Hooker v. City of University City, 91 S.W.3d 675, 675 (Mo.App. E.D.2002). Chapter 288 governing unemployment cases fails to provide for the filing of a late notice of appeal to this Court. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D. 2000). In addition, "[a]n untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal." Dorcis v. Div. of Empl. Sec., 168 S.W.3d 728, 729 (Mo.App. E.D. 2005).

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

PATRICIA L. COHEN, J. and KENNETH M. ROMINES, J., concur.

NOTES

[1] The Appeals Tribunal initially dismissed Claimant's appeal as untimely. On application to the Labor and Industrial Relations Commission, his case was remanded for a determination if he had good cause for an untimely appeal. The Tribunal concluded Claimant had good cause for an untimely appeal, but concluded he was ineligible for unemployment benefits.