Porter v. Emerson Elec. Co., s. 19512

• Decision Date: 07 February 1995
• Docket Number: 19535,Nos. 19512,s. 19512
• Citation: 895 S.W.2d 155
• Parties: Louise PORTER, Employee/Respondent/Appellant, v. EMERSON ELECTRIC COMPANY, Employer/Appellant/Respondent.
• Court: Missouri Court of Appeals

Page 155

895 S.W.2d 155

Louise PORTER, Employee/Respondent/Appellant, v. EMERSON ELECTRIC COMPANY, Employer/Appellant/Respondent.

Nos. 19512, 19535.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 7, 1995.

Motion for Rehearing or Transfer to

Supreme Court Denied March 1, 1995.

Application to Transfer Denied

April 25, 1995.

Steven E. Marsh, Hulston, Jones, Gammon & Marsh, Springfield, for employee/respondent/appellant.

Carl E. Smith, Curry & Smith, Ava, for employer/appellant/respondent.

CROW, Judge.

Louise Porter ("Claimant") filed a claim for compensation against her employer, Emerson Electric Company ("Emerson"), under The Workers' Compensation Law, chapter 287, RSMo 1986, as amended. Claimant pled she was injured at work September 14, 1990.

After an evidentiary hearing, an administrative law judge ("ALJ") of the Division of Workers' Compensation found Claimant, on the date in question, had no accident arising out of and in the course of her employment. Accordingly, the ALJ denied the claim.

Upon Claimant's application for review, the Labor and Industrial Relations Commission ("Commission"), by a two-to-one decision, reversed the ALJ and entered a "Final Award Allowing Compensation" on March 17, 1994.

On April 14, 1994, Emerson filed with the Commission a notice of appeal to this Court. Emerson's appeal is number 19512.

On April 26, 1994, Claimant filed with the Commission a notice of appeal to this Court. Claimant's appeal is number 19535.

We address both appeals in this opinion, taking Claimant's first.

Appeal 19535

Claimant maintains the Commission failed to award all the compensation to which she is entitled. We need not decide whether she is correct because, as explained infra, we hold her notice of appeal was untimely.

The right to appeal is statutory; without underlying statutory authority, there is no right to appeal. United Labor Committee, Inc. v. Ashcroft, 572 S.W.2d 446, 447 (Mo. banc 1978). Consequently, an appeal must be taken in accordance with the statute authorizing it. Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 53 (Mo. banc 1981).

Section 287.495.1, RSMo 1986, reads, in pertinent part:

"The final award of the commission shall be conclusive and binding unless either party ... shall, within thirty days from the date of the final award, appeal the award to the appellate court having jurisdiction in the area in which the accident occurred.... Such appeal may be taken by filing notice of appeal with the commission...."

As reported earlier, Claimant's notice of appeal was filed with the Commission April 26, 1994, 40 days after the date of the Commission's final award. Obviously, that was past the deadline fixed by § 287.495.1.

Mindful of that, Claimant cites Rule 81.04(b), ¹ which reads:

"If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed."

Claimant argues that although the record shows her notice of appeal was filed with the Commission on April 26, 1994 (12 days after Emerson's notice of appeal), her notice of appeal was mailed to the Commission on April 22, 1994, and should have been postmarked that date, hence it was timely per § 287.480. ²

Rule 81.04(b), quoted above, must be read in conjunction with Rule 81.04(a), which reads:

"When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final."

Because Rule 81.04(a) mentions only an appeal from a trial court, says nothing about an appeal from an administrative agency, directs that the notice of appeal be filed with the clerk of the trial court, does not authorize the filing of a notice of appeal with an administrative agency, and requires that the notice of appeal be filed not later than 10 days after the judgment or order appealed from becomes final, it is evident that Rule 81.04 governs only appeals from trial courts to appellate courts, and does not apply to appeals from the Commission to an appellate court.

That conclusion is consistent with Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311 (Mo.App.1972), decided under statutes and rules in effect in 1971. There, the Commission entered a workers' compensation award in favor of an employee against his employer. The statute then in effect provided that (a) an appeal from the Commission went to the circuit court, and (b) the notice of appeal had to be filed with the Commission within 30 days from the date of the final award.

The employer in Holmes filed a late notice of appeal with the Commission. Nonetheless, the Commission sent the file to the circuit court. The employee promptly filed a motion in the circuit court to dismiss the appeal. Attempting to avert dismissal, the employer filed a motion in the circuit court for a special order under Rule 81.07(a) as it then existed. ³

The circuit court denied the employer's motion and dismissed the appeal. The employer thereupon appealed from the circuit court, contending that court could have granted a special order extending the time for filing the notice of appeal. The Court of Appeals was thus presented the issue of whether Rule 81.07(a) authorized a circuit court to grant such an order.

The Court of Appeals pointed out that Rule 81.04 and § 512.050 then read, in pertinent part:

"When an appeal is permitted by law from a trial court and within the time prescribed, a party or his agent may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. * * * " (Emphasis in 488 S.W.2d at 314.)

The Court of Appeals held:

"It is obvious that neither the Supreme Court under its rule-making powers, Article V, Section 5, Constitution of Missouri, V.A.M.S., nor the Legislature intended the statutory provisions for a special order permitting notice of appeal out of time to apply to special statutory proceedings, such as, workmen's compensation claims. Only those classes of appeals, wherein the notice of appeal is required to be filed within 10 days after the judgment or order of a trial court, are modified by the 'special appeal' provision. Workmen's Compensation proceedings are basically administrative in nature; are governed by special laws; and Rule 81.07 and Section 512.060 V.A.M.S. cannot be made to apply in such proceedings without specific legislative authority. Such has not been given. However harsh this result may be in a given case, we cannot change the law as clearly stated by the Legislature.

By reason of our conclusion, it is not necessary nor appropriate that we decide whether the court below abused his discretion because he was afforded no area for its exercise under the admitted facts...." ⁴

488 S.W.2d at 314-15.

The analysis in Holmes is persuasive. Because Rule 81.04, as it read when Holmes was decided, mentioned only appeals from trial courts and required the notice of appeal to be filed not later than 10 days after the judgment or order appealed from became final, Holmes held Rule 81.07(a), which specifically referred to the deadline in Rule 81.04, did not apply to any appeals except those from trial courts. Consequently, Rule 81.07(a) did not authorize the trial court in Holmes to extend the time fixed by statute for filing a notice of appeal from the Commission's award.

The 1994 version of Rule 81.04(a) is set forth earlier in this opinion. So is the version of Rule 81.04 on which Holmes was based. Although the first sentence of the former differs slightly from the first sentence of the latter, there is no difference in substance. The second sentences are identical. Applying the rationale of Holmes, we hold Rule 81.04(a) applies to only appeals from judgments or orders of trial courts, not to appeals from awards by the Commission in workers' compensation claims.

Rule 81.04(b) refers to a "timely notice of appeal." We hold this means an appeal filed within the 10-day period fixed by Rule 81.04(a). We are persuaded of this by Rule 81.04(c), which requires a $50 docket fee to be deposited with the clerk of the trial court at the time of filing the notice of appeal. Reading paragraphs "(a)," "(b)" and "(c)" of Rule 81.04 together, it is manifest that Rule 81.04 applies to only appeals from trial courts, not to appeals from the Commission.

That conclusion is confirmed by Rule 100.02, captioned "Review in Appellate Courts." Rule 100.02 is part of Rule 100, captioned "Judicial Review of Administrative Decisions."

Among other things, Rule 100.02 specifies how the parties shall be designated on appeal, requires a $50 docket fee to be deposited with the Commission at the time of filing a notice of appeal under § 287.495 (quoted in part earlier in this opinion), sets forth what the record shall include, fixes the deadline for filing the record in the appellate court, and provides that the form, contents, filing and service of briefs and motions shall be as provided in Rule 84.

If the Rules of Civil Procedure governing appeals from judgments and orders of trial courts applied generally to appeals from the Commission, Rule 100 would be unnecessary. Therefore, the presence of Rule 100 is additional evidence that Rule 81.04 does not apply to appeals from the Commission to an appellate court.

That factor, together with Holmes, convinces us that Claimant cannot invoke Rule 81.04(b) to salvage her appeal. Consequently, we do not reach her contention that the envelope carrying her notice of appeal should have been postmarked April 22, 1994.

Crist v. Director of Division of Family Services, 775 S.W.2d 266 (Mo.App.W.D.1989), cited by Claim...