text:
    In the Interest of P.L.O. and S.K.O., Minor Children.
    No. 26582.
    Missouri Court of Appeals, Southern District, Division Two.
    July 7, 2005.
    Motion for Rehearing and Transfer to Supreme Court Denied July 26, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Sherrie L. Hansen, Anderson, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, MO, for respondent Missouri Department of Social Services, Children’s Division.
   JEFFREY W. BATES, Chief Judge.

In November 2002, the juvenile division of the circuit court of Newton County, Missouri, entered a judgment terminating the parental rights of Gloria 0. (“Mother”) and Ray 0. (“Father”) with respect to their two minor daughters, P.L.O. and S.K.O. Mother appealed. The Supreme Court of Missouri affirmed the judgment and remanded the case “for assessment of attorneys’ fees and costs under section 211.462.4.” In re P.L.O., 131 S.W.3d 782, 792 (Mo. banc 2004).

On March 31, 2004, Mother filed a motion asking the trial court to enter an order awarding her attorney $20,547.78 in attorneys’ fees and litigation expenses. The Children’s Division opposed the request and asked the court to limit the award for attorneys’ fees and expenses to $3,500.

On April 22, 2004, the trial court entered an order which states, in pertinent part, as follows:

I have reviewed the briefs and replies filed to date. I acknowledge counsel has split the time billed and expense fronted in this case. I further acknowledge that this case raised issues which needed to be raised regarding the timing of or lack of various hearings as required by law. However, I also know that the facts of this case were not the best ones to go forward on and that counsel on both sides became somewhat personally vested in pursuing this case. I must also consider the availability of funds from which the ordered payment will come from. Accordingly, I certify that $10,000 is necessary to provide fair compensation and said payment is hereby approved and ordered paid by Children’s Division Department of Social Services. The balance of $10,547.78 is ordered paid by the parents of the minor children involved.

On April 26, 2004, Mother filed a motion for reconsideration. The motion asserted that the trial court erred in requiring the parents to pay any part of the attorneys’ fees and expenses. The motion also requested that the trial court order the Children’s Division to pay the $10,547.78 in attorneys’ fees and expenses assessed against the parents.

On May 10, 2004, the trial court entered a “Judgment Order for Attorney Fees and Costs.” This order stated, in pertinent part, as follows:

NOW ON THIS 22nd day of April, 2004, the Court certifies that $10,000 (Ten Thousand Dollars) is necessary to provide fair compensation to attorney Sherrie L. Hansen for representation of the appellant [Mother] on appeal, and that said payment is hereby approved. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that $10,000.00 (Ten Thousand Dollars) is to be paid to Sherrie L. Hansen by the Children’s Division, Department of Social Services. Let execution issue therefor.

As we interpret the May 10th order, the trial judge granted Mother’s motion to reconsider insofar as the motion asked the court to rescind its earlier decision that the parents should pay a portion of the attorneys’ fees and expenses associated with the appeal. The motion to reconsider was overruled insofar as it sought to have the Children’s Division pay Mother’s attorney the entire $20,547.78 in attorneys’ fees and expenses that had been requested.

On May 24, 2004, the Children’s Division filed a motion to set aside the May 10th order on the ground that the $10,000 fee award was excessive. On June 3, 2004, the trial court denied the Children’s Division’s motion to set aside and the Mother’s motion to reconsider. Mother filed her notice of appeal on June 30, 2004.

After the notice of appeal was filed, the Children’s Division paid Mother’s attorney the $10,000 sum that the trial court had assessed as attorneys’ fees and expenses in its order of May 10, 2004. On April 11, 2005, the trial court entered another “Judgment Order for Attorney Fees and Expenses.” This order was entered at Mother’s request. It states, in pertinent part, as follows:

NOW ON THIS 11 day of April, 2005, the Court hereby orders the parents of the minor children involved to pay $10,547.78 (Ten Thousand Five Hundred Forty Seven Dollars and Seventy Eight Cents) to Sherrie L. Hansen for attorney fees and expenses incurred on appeal to the Missouri Supreme Court. Let execution issue therefor.

In Mother’s sole point relied on, she contends the trial court erred in ordering Mother and Father to pay a portion of the attorneys’ fees and expenses incurred in connection with their appeal from the judgment terminating their parental rights. We are constrained to dismiss Mother’s appeal as moot.

“The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.” Duffe v. Zych, 676 S.W.2d 70, 72 (Mo.App.1984). Therefore, mootness is a threshold question in any appellate review of a controversy. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). “A question presented to the court for decision which will have no practical effect upon any then existing controversy is moot.” In Interest of N.D., 857 S.W.2d 835, 843 (Mo.App.1993). Absent an existing controversy, we should decline to retain jurisdiction and dismiss the appeal. Brock v. Brock, 142 S.W.3d 204, 207 (Mo.App.2004); Promotional Consultants, Inc. v. Logsdon, 25 S.W.3d 501, 506 (Mo.App.2000). Since mootness implicates the jus-ticiability of a case, an appellate court may dismiss an appeal for mootness sua sponte. Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999).

The underlying action was brought pursuant to the provisions of §§ 211.442-.487, which govern actions to terminate parental rights. The practice and procedure for cases brought in juvenile court pursuant to Chapter 211 is governed by Rules 110 through 128. Rule 110.01. Rule 120.01.a states that “[a]n appeal shall be allowed as provided by statute.” Mother’s right to appeal arises from § 211.261, which authorizes a parent to appeal “from any final judgment, order or decree made under the provisions of this chapter which adversely affects him.” (Underlining added.) Although the trial court’s order of May 10, 2004, assessing attorneys’ fees and expenses was entered pursuant to § 211.462.4, the problem is that the order did not adversely affect Mother.

Mother’s sole complaint on appeal is that the trial court erred in ordering Mother to pay a portion of her own attorneys’ fees and expenses arising from the first appeal in this case. While the order of April 22, 2004 initially imposed that obligation upon Mother, the judge changed his mind — presumably in response to Mother’s motion to reconsider— in the subsequent order entered on May 10, 2004. The only party ordered to pay any attorneys’ fees and expenses by the May 10th order was the Children’s Division. It did not appeal from the order, and it has already paid the $10,000 due Mother’s attorney. In Mother’s brief, she acknowledges that “[a] formal order for $10,000 was entered against [Children’s Division] and is not a subject of this appeal.” Thus, it appears to us as though Mother is attempting to appeal from a nonexistent obligation in order to create a controversy where none exists. Since Children’s Division has fully paid the only existing obligation to pay attorneys’ fees and expenses in this case, we conclude that Mother’s appeal is moot. Consequently, we dismiss her appeal.

PARRISH, P.J., and SHRUM, J., concur.

      . All references to statutes are to RSMo (2000). Section 211.462.4 states that ”[c]ourt costs shall be paid by the county in which the proceeding is initiated, except that the court may require the agency or person having or receiving legal or actual custody to pay the costs.” This statute impliedly authorizes a trial court to award attorneys’ fees for appointed counsel as part of the court costs assessed in the case. In Interest of M.V., 775 S.W.2d 262, 265 (Mo.App.1989).

      . All references to rules are to the Missouri Court Rules (2005).

      . Our impression was strongly reinforced by the fact that the trial court entered another "Judgment Order” on April 11, 2005 requiring Mother and Father to pay $10,547.78 in attorneys’ fees and expenses to their attorney. This order was entered at the request of Mother’s attorney while the case was on appeal. Once Mother’s notice of appeal was filed, however, jurisdiction vested in this Court, and the trial court lost jurisdiction to exercise any judicial function in the case. State ex rel. Harper v. Goeke, 12 S.W.3d 717, 720 (Mo.App.1999); Jordan v. City of Kansas City, 972 S.W.2d 319, 323 (Mo.App.1998). Accordingly, the April 2005 order was a nullity since the trial court lacked jurisdiction to enter such an order at that time. See Rodman v. Schrimpf, 18 S.W.3d 570, 572 (Mo.App.2000) (holding that the trial court lacked jurisdiction to enter an amended judgment after notice of appeal was filed).


source: Caselaw Access Project

author: NANCY STEFFEN RAHMEYER, Judge. PHILLIP R. GARRISON, Presiding Judge,

license: Public Domain

text:
    FIVE STAR MANUFACTURING, INC., Employer-Appellant, v. David TANKSLEY, Claimant-Respondent, and Division of Employment Security, Respondent.
    No. 26590.
    Missouri Court of Appeals, Southern District, Division One.
    July 13, 2005.
    Motion for Rehearing or Transfer Denied July 26, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Phillip R. Garrison, P.J., filed a dissenting opinion.
    Aaron D. Jones, Donald W. Jones, Ernesto C. Gapasin, Springfield, MO, for appellant.
    Larry R. Ruhmann, St. Louis, MO, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Five Star Manufacturing, Inc. (“Appellant”) appeals from the Labor & Industrial Relations Commission’s finding that David Tanksley (“Claimant”) was not discharged from his job for misconduct, and therefore was entitled to unemployment benefits without penalty. We affirm.

The standard of review in unemployment compensation cases is determined by section 288.210. It states, in pertinent part,

Upon appeal no additional evidence shall be heard. The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) The commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

We give deference to the Commission’s findings of fact and its determinations of witness credibility. CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102 (Mo.App.S.D.2004). We will consider the whole record when deciding whether the Commission’s decision is supported by competent and substantial evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-223 (Mo. banc 2003). “In determining whether the decision is authorized by law, we are not bound by the Commission’s conclusions of law or its application of law to facts. We review questions of law independently without any deference to the Commission’s findings.” Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 165-66 (Mo.App. S.D.2004) (citations omitted). Whether or not the Commission’s findings support the determination of misconduct connected with work is a question of law. Rapid Roberts, Inc. v. Potter, 125 S.W.3d 395, 397 (Mo.App. S.D.2004).

The Commission found in pertinent part:
FINDINGS OF FACT:
The claimant worked for the employer for about twelve years as a welder. He last worked for the employer on February 11, 2004.
On February 11, 2004, the claimant was discharged because the employer was dissatisfied with his behavior at work. The employer eventually offered the claimant his job back, and the claimant returned to work for the employer on April 5, 2004.
On February 11, 2004, an election was held in which a collective bargaining unit was approved by the employer’s employees. Although the employer’s president had decided to discharge the claimant prior to the election, he waited until the election was over. He then told the claimant he was discharged, but did not give him a reason for the discharge. The claimant testified he had never received any warnings.
The “last straw” occurred on February 11, 2004, when the claimant went to the secretary’s desk to get his check. The secretary was on the phone, so the claimant had to wait a short time. The secretary credibly testified that claimant seemed impatient while she was on the phone and, after he received his check, made some rude comments about being cheated on his pay, stamped his feet, and slammed the door when he was leaving. After the election was over on February 11, 2004, the claimant was discharged because of his behavior. According to the employer, the claimant had engaged in similar behavior for several months.
CONCLUSIONS OF LAW:
“Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” Ritch v. Industrial Commission, 271 S.W.2d 791, 793 (Mo.App.1954).
The claimant was discharged on February 11, 2004, because of his behavior. The “last straw” occurred on February 11, 2004. The claimant had never received any warnings about his behavior. Although the claimant’s behavior on that date may have been rude, it does not rise to the level of misconduct connected with work, as defined in Ritch. If the claimant’s on-going behavior was so inappropriate or offensive, the employer could have warned him about his behavior thereby affording the claimant an opportunity to correct the problem. Additionally, the claimant had apparently engaged in similar behavior for several months before he was discharged. While this does not excuse his behavior, he had not been warned that his behavior was unacceptable. The employer bears the burden of presenting evidence sufficient to establish misconduct connected with work. The employer has failed to meet this burden. It is concluded that the claimant was discharged on February 11, 2004, but not for misconduct connected with work.

Appellant presents one point on appeal. It contends that the Commission’s determination that Claimant was not disqualified from receiving benefits is erroneous and not supported by competent and substantial evidence. It argues that the evidence, taken as a whole, shows that Claimant engaged in “willful and deliberate defiance of [Appellant’s] policies and instructions and was guilty of misconduct.”

Claimant was discharged by Appellant on February 11, 2004, after an incident involving Nicole Newberry (“Newberry”), a secretary employed by Appellant. Claimant had worked for Appellant, a manufacturing company, for about twelve years before his discharge, was rehired by Appellant on April 5, 2005, and was still employed by Appellant on the date of the hearing for this claim.

Newberry testified that on February 11, 2004, she was on the phone with a customer when Claimant entered her office. Before she could conclude that conversation, she said that she “could hear him over the customer. He was sitting there breathing heavily up front and getting antsy with me because I wasn’t helping him.” As she was hanging up the phone, another employee walked into the office. Both requested their checks. After she gave them their checks, she said, “they was [sic] making comments about being ripped off and cheated, was [sic] laughing obnoxiously, walked out the door in the hallway there, stomped — one of them stomped their foot and they both started laughing, went out the front door, slammed it and it upset me.” Newberry began to cry following this incident, and stated that “everything had piled up together for months” and that Claimant glared at her and was just hateful when he would see her in the hall. Newberry then informed her parents, who owned part of and worked at the company, about what happened. Claimant was discharged later that day.

Nancy Woodward (“Woodward”), Appellant’s office manager, testified on behalf of Appellant, giving additional reasons for Claimant’s termination. She stated that he failed to keep his work area clean, and when told to do so, he did it in a defiant manner. She also testified that Appellant had a posted policy stating that if an employee was going to be absent, they were to call ahead of time, otherwise the absence was unexcused. Despite that policy, Claimant was absent on Saturday, January 3, 2004, without calling in, even though it was posted in the building as a scheduled workday. She stated that Appellant did not terminate Claimant following this absence because they thought they would give him another chance and because of a pending election to determine whether Appellant would be unionized. They consulted an attorney who told them it would be unwise to terminate him before the election because it might look like they were firing him for union activity.

Woodward also testified that Claimant left work on January 12, 2004, after working only one and one-half hours, without informing Appellant as to why he was leaving. Later that same week, Claimant arrived at work on time but there was no product for him to work on. One of the owners told him that there would be product in five or ten minutes, but Claimant left without waiting.

Woodward also discussed Claimant’s attitude at work, describing how he would walk down the hall and act as though he would walk into someone walking in the other direction, if that other person did not move. She stated, “I mean he walks straight towards us with a glare on his face like he’s trying to antagonize us to fire him or something. I don’t know what his reasoning is.” The evidence was that although this behavior took place prior to his discharge, Claimant was never warned about it.

Claimant testified that he received no warnings regarding his behavior while he was employed by Appellant, and that he never got along with Jim Woodward, one of the owners. He understood that he was to be at work when scheduled, work efficiently, and keep his work area clean and tidy. He knew that he was scheduled to work on January 3, 2004, but he stayed home without calling in because he believed that he had already worked forty hours that week. The records showed, however, that he only worked thirty-two hours that week. Claimant admitted that he knew staying home was wrong and that he could be discharged for misconduct. He also stated that on January 12, 2004, he left work after one and one-half hours because he was sick, and that he told a supervisor that he was leaving. As to the incident on January 15, 2004, he stated that there were no parts available for him to work on when he arrived. He stated that as he arrived at 5:30 a.m., and the workers who would supply him with parts did not arrive until 7:00 a.m., he would have to wait one and one-half hours before he could do anything. He said that, as far as he knew, if someone came to work and there was nothing to work on, that person would not stick around. However, he said that no one told him whether parts were going to be available for him to work on soon or not, and he did not ask anyone before leaving. As regards keeping his work area clean, Claimant admitted that it was important to keep it clean and that it was part of his job, and that when told to clean up by an owner, he did it reluctantly.

It is the employer’s burden to show that an employee was discharged for misconduct connected with work. Rapid Roberts, Inc. at 397. Although there was evidence which would have supported a determination that Claimant was terminated for misconduct connected with his work, the Commission was free to reject the Appellant’s contentions, given the facts that this was a twelve-year employee who was given no warnings about his alleged prior “misconduct,” a union election was taking place, and Newberry’s statements lacked particularity of the alleged misconduct of Claimant on February 11, 2004. As noted under our standard of review, the findings of the Commission, if supported by competent and substantial evidence, shall be conclusive and we are confined to questions of law. The Commission properly considered the totality of Claimant’s prior conduct. We, therefore, affirm the Commission’s findings.

PREWITT, J., concurs.

GARRISON, P. J., dissents in separate opinion.

PHILLIP R. GARRISON, Presiding Judge,

dissenting.

I respectfully dissent. I believe that the opinion of the appeals tribunal, adopted by the Commission, indicates that it held as it did because of the failure of Appellant to first warn Claimant that his behavior was unacceptable, and not because his conduct failed to qualify as misconduct connected with work. Its conclusions of law include the following: “[Claimant] had never received any warnings about his behavior”; “[i]f [Claimant’s] on-going behavior was so inappropriate or offensive, the employer could have warned him about his behavior thereby affording [Claimant] an opportunity to correct the problem”; and it recited that Claimant had engaged in similar behavior for several months before being discharged, noting that “while this does not excuse his behavior, he had not been warned that his behavior was unacceptable.”

An employee may be disqualified from receiving unemployment benefits if that employee was discharged for “misconduct connected with the claimant’s work.” Section 288.050.2. The statute does not define “misconduct connected with work,” but, as acknowledged by the Commission, the courts have defined it as:

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Ritch v. Industrial Comm’n, 271 S.W.2d 791, 793 (Mo.App.1954); see also City of Branson v. Santo, 111 S.W.3d 910, 913 (Mo.App. S.D.2003).

Under that definition, this court has held that misconduct is established when action or inaction by the claimant amounts to a conscious disregard of the interests of the employer or constitutes behavior contrary to that which an employer has a right to expect from an employee. Hurlhut v. Labor & Indus. Rel. Comm’n., 761 S.W.2d 282, 285 (Mo.App. S.D.1988). In Hurlbut, the claimant failed to follow the employer’s communicated policy regarding accounting procedures of cash receipts. Id. at 284-85. In affirming claimant’s five-week disqualification from receiving unemployment benefits, we held that a violation of a reasonable work rule can constitute misconduct. Id. at 285.

In the instant case, Claimant admitted violating the known policy regarding absences from work without calling in. In fact, he admitted that to do so was wrong and that he could be discharged for misconduct. He also admitted to “reluctantly” cleaning his work area when told to do so by the owner of the company, although he acknowledged that it was an important part of his job. These incidents, together with the other testimony about his defiant attitude would not only qualify as violations of reasonable work rules, but also as a conscious disregard of the interests of the employer as well as behavior contrary to that which the employer has a right to expect from an employee.

I believe that it is significant that the accepted definition of misconduct connected with work does not condition application of the disqualification under Section 288.050.2 on the existence of a prior warning. I have not been directed to, nor have I found, authority in Missouri holding that a prior warning is necessary before an employee discharged for what would otherwise be misconduct connected with work is disqualified from unemployment benefits. At least one other state expressly recognizes that a prior warning is not necessary. See Peluso v. Commonwealth of Pa.,—Unemployment Comp. Bd. of Review, 12 Pa.Cmwlth. 250, 315 A.2d 340, 342 (1974).

Appellant cites a line of cases from Michigan describing a “last straw” doctrine, which hold, basically, that an employee can be discharged for misconduct on the basis of a series of events, which when considered together, “evince a wilful disregard of the employer’s interests.” Christophersen v. City of Menominee, 137 Mich.App. 776, 359 N.W.2d 563, 566 (1984); see also Giddens v. Employment Sec. Comm’n, 4 Mich.App. 526, 145 N.W.2d 294, 298 (1966). Neither case has been cited in Missouri, nor are we able to find that the Missouri courts have expressly adopted a similar doctrine. However, it seems reasonable to me, given the accepted definition of misconduct under Section 288.050.2, that prior conduct by an employee could be considered in determining whether his discharge was for misconduct connected with work.

I would conclude in this case that Claimant’s prior behavior constituted misconduct connected with his work under Section 288.050.2. As indicated, however, it appears to me that the Commission held as it did because of the failure to warn him that his conduct could result in a discharge. As such, I believe that was a misstatement and misapplication of the law requiring a reversal and remand for further proceedings.

      . All statutory references are to RSMo (2000) unless otherwise specified.

      . Claimant testified that he went to the office to get his check when he got off work that day. He said that his check did not look right, and that it was in fact incorrect.

      . This testimony actually could be considered as acknowledging a warning concerning the failure to comply with attendance rules.

      . Section 288.050.3 RSMo (Cum.Supp.2004), states,
      Absenteeism or tardiness may constitute misconduct regardless of whether the last incident alone constitutes misconduct. In determining whether the degree of absenteeism or tardiness constitutes a pattern for which misconduct may be found, the division shall consider whether the discharge was the result of a violation of the employer’s attendance policy, provided the employee had received knowledge of such policy prior to the occurrence of any absence or tardy upon which the discharge is based.
      This subsection appears to allow for consideration of a pattern of conduct in the determination of whether misconduct occurred, at least as regards absenteeism. Furthermore, this court appears to have considered multiple acts over a period of time in finding that an employee engaged in misconduct. See Koret of California, Inc. v. Zimmerman, 941 S.W.2d 886, 889 (Mo.App. S.D.1997).


author: PER CURIAM.

text:
    ARTISAN MARBLE & GRANITE, L.L.C., Appellant, v. Joseph C. BURRIS, Respondent.
    No. ED 84576.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 9, 2005.
    Thomas G. Bearden, Clayton, MO, for appellant.
    Alan G. Gerson, Clayton, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., ROBERT G. DOWD, JR., J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Artisan Marble and Granite, LLC, appeals from a Judgment entered by the Associate Circuit Division of St. Louis County Circuit Court dissolving an injunction that had been imposed on Joseph C. Burris in response to Mr. Burris’s alleged breach of the terms his employment agreement.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Steven PHILLIPS, Respondent, v. Patricia PHILLIPS, Appellant.
    No. ED 85411.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 9, 2005.
    William J. O’Herin, Florissant, MO, for appellant.
    Steven Phillips, Florissant, MO, pro se.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Patricia Phillips appeals from a Circuit Court of St. Louis County judgment in favor of Stephen Phillips denying Wife’s Motion to Quash Execution of a small claims judgment.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Donald CAPLAN, et al., Plaintiffs/Appellants, v. ST. LOUIS AVIATION MUSEUM, Defendant/Respondent.
    No. ED 85220.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 9, 2005.
    Danna McKitrick, P.C., Michael J. McKitrick and Eric C. Mueller, St. Louis, MO, for appellant.
    Paule, Camazine & Blumenthal, P.C., Peter A. Gianino, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Donald Caplan (Caplan) and the Nikki Caplan Memorial Fund Committee (Committee) appeals from the trial court’s judgment in favor of the St. Louis Aviation Museum on Caplan’s and Committee’s petition requesting accounting, injunction, and specific performance.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum, for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Brenda MILES, Claimant/Appellant, v. URBAN INVESTIGATIONS, INC., and Division of Employment Security, Respondents.
    No. ED 86308.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 9, 2005.

      Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Brenda L. Miles, Ferguson, MO, Appellant acting pro se.
    Urban Investigations, Ferguson, MO, Respondent acting pro se.
   GLENN A. NORTON, Chief Judge.

Brenda Miles (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her unemployment benefits. Claimant’s notice of appeal to this Court is untimely. As a result, we have no jurisdiction and dismiss Claimant’s appeal.

After Claimant applied for unemployment benefits, a deputy determined that she was eligible for benefits and was not disqualified for her discharge at work. Claimant’s employer, Urban Investigations, Inc. (Employer), appealed the deputy’s determination to the Appeals Tribunal. The Appeals Tribunal reversed the deputy’s determination and concluded Claimant was disqualified from receiving unemployment because she quit her work without good cause attributable to her work or to her employer. Claimant then filed an application for review with the Commission, who affirmed the Appeals Tribunal’s decision. Claimant filed a notice of appeal to this Court.

Once the Commission’s decision is mailed to the parties, it becomes final ten days thereafter. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal a final decision of the Commission. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on April 19, 2005. The decision became final ten days later on April 29, 2005. Section 288.200.2. Her notice of appeal was due on May 19, 2005. Section 288.210. Claimant’s notice of appeal was filed on May 21, 2005, which is untimely.

An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Rossi v. Division of Employment Sec., 157 S.W.3d 341, 342 (Mo.App.E.D.2005). This Court has a duty to examine its jurisdiction sua sponte. Frenchie v. Division of Employment Sec., 156 S.W.3d 437 (Mo. App.E.D.2005). We issued an order directing Claimant to show cause why this appeal should not be dismissed. Claimant has failed to file a response. The unemployment statutes, however, fail to make a provision for the late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App.E.D.2000).

The Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    Relique DORCIS, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 86324.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 9, 2005.

      Relique Doréis, St. Louis, MO, appellant acting pro se.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
   GLENN A. NORTON, Chief Judge.

Relique Doréis (Claimant) appeals from two decisions of the Labor and Industrial Relations Commission (Commission) regarding overpaid unemployment benefits. The appeal is dismissed.

On October 5, 2004, a deputy determined that Claimant had been overpaid unemployment benefits because he had been paid benefits during a time he earned wages. In addition, the deputy concluded Claimant had willfully failed to report earnings and cancelled his wage credits prior to August 24, 2004. On January 11, 2005, the Division of Employment Security issued an order of assessment pursuant to section 288.380.12, RSMo Cum.Supp.2004, and section 288.160, RSMo 2000. On February 17, 2005, Claimant filed an appeal of the deputy’s determination and the order of assessment with the Appeals Tribunal. The Appeals Tribunal dismissed Claimant’s appeals on March 15, 2005. Claimant then sought review in the Commission, which affirmed the Appeals Tribunal’s decisions on April 14, 2005. Claimant filed his notice of appeal to this Court on May 20, 2005.

The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal the Commission’s final decision. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decisions to Claimant on April 14, 2005. The decisions became final ten days later and Claimant’s notice of appeal was due on Monday, May 16, 2005. Section 288.200.2; Section 288.210; Section 288.240, RSMo 2000. Claimant filed his notices of appeal on May 20, 2005, which is untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 138 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. Claimant has not filed a response to the order. Section 288.210 makes no provision for late filing of a notice of appeal. 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. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

The Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    Kenneth BEVINEAU, Claimant/Appellant, v. ABM CO. OF KENTUCKY, and Division of Employment Security, Respondents.
    No. ED 86426.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 9, 2005.

      Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Kenneth Bevineau, St. Louis, MO, appellant acting pro se.
    Arthur J. Neuhedel, Overland Park, KS, for respondent ABM Co.
   GLENN A. NORTON, Chief Judge.

Kenneth Bevineau (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) disqualifying him from unemployment benefits. We dismiss the appeal as moot.

After Claimant lost his job with ABM Co. of Kentucky (Employer), he applied for unemployment benefits. A deputy with the Division of Employment Security (Division) initially determined that Claimant was entitled to unemployment benefits. Claimant began receiving unemployment benefits. Employer appealed to the Appeals Tribunal. The Appeals Tribunal reversed the deputy’s determination and concluded that Claimant had been discharged from his job for misconduct connected with his work. The Appeals Tribunal concluded that Claimant was disqualified for waiting week credit and benefits for five weeks. At this time, Claimant’s unemployment benefits were stopped until he served his period of disqualification, then the benefits were started again until June 28, 2005. In the meantime, Claimant filed an application for review with the Labor and Industrial Relations Commission, which affirmed the Appeals Tribunal’s decision. Claimant appealed to this Court.

The Division has filed a motion to dismiss Claimant’s appeal. The Division contends that Claimant’s appeal is moot because Claimant has received all of his unemployment benefits. Therefore, even if Claimant prevailed in his appeal, he could not receive any additional money. Claimant has not filed a response to the motion to dismiss.'

The Division has included an affidavit from the chief of benefits. He states that Claimant has been paid the maximum amount of unemployment benefits. The record shows that Claimant received ten weeks of benefits, and after serving his disqualification period, Claimant received the remainder of his benefits. He exhausted his maximum benefit amount for the benefit year on June 28, 2005. Claimant cannot receive any additional unemployment benefits. If the claimant has received all of his entitled unemployment benefits, then the case is moot. Hill v. Venator Group Retail, Inc., 138 S.W.3d 746, 747 (Mo.App.E.D.2003); Rockett v. Radar, Inc., 97 S.W.3d 535, 537 (Mo.App.E.D.2003).

The Division’s motion to dismiss is granted. Claimant’s appeal is dismissed.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.