Opinion
Civ. 6372.
June 15, 1988. Rehearing Denied August 3, 1988.
Appeal from the Circuit Court, Jefferson County, Joseph A. Colquitt, J.
Gregory J. McKay of Vowell, Meelheim McKay, Birmingham, for appellant.
George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State of Ala. Dept. of Indus. Relations, for appellee.
The claimant, Lawrence Doty, appealed to the trial court from an adverse decision by the Board of Appeals which precluded him from unemployment compensation benefits. This appeal was subsequently dismissed by the trial court for failure to comply with the jurisdictional requirements of § 25-4-95, Code of Alabama 1975 (1986 Repl.Vol.). This section provides that any party aggrieved by the decision of the Board of Appeals may secure judicial review by filing notice of appeal in the circuit court. Such notice of appeal must be filed within ten days after the Board of Appeals' decision becomes final. The section further requires that a copy of the notice of appeal shall be served upon the director of the Alabama Department of Industrial Relations (director) by registered or certified mail within the same ten-day period. There is no evidence that the notice was mailed. The director did not receive the notice required by § 25-4-95, supra. The consequence of this failure of notice authorized the trial court to dismiss the appeal for lack of jurisdiction. The sole issue before us is whether the trial court erred when it dismissed the appeal.
The statute does not designate, and our case law has not determined, that the court clerk is required to mail a copy of the notice of appeal to the director; therefore we must conclude that it was the obligation of the claimant to see that the notice was timely mailed, thereby preserving his opportunity for review in the circuit court. See § 25-4-95, supra, and Taylor v. Department of Industrial Relations, 409 So.2d 447 (Ala.Civ.App. 1982).
We are unable to hold, as claimant insists here, that the filing of a notice of appeal with the circuit clerk is a valid alternative for service on the director, even in view of the claimant's leaving instructions in the clerk's office regarding mailing the notice.
The record reveals that the Department of Industrial Relations never received a copy of the notice of appeal and the director had no knowledge of this "purported appeal" until July 1987, some two and one-half years later.
It is well recognized that § 25-4-95 sets forth the exclusive method of perfecting an appeal from an unfavorable decision by the Board of Appeals. Craig v. Department of Industrial Relations, 470 So.2d 1278 (Ala.Civ.App. 1985); Payne v. Department of Industrial Relations, 423 So.2d 231 (Ala.Civ.App. 1982); Quick v. Utotem of Alabama, Inc., 365 So.2d 1245 (Ala.Civ.App. 1979). In Craig, supra, at 1279-80, this court held: "[T]he employee's failure to serve the director of the Department with a copy of her complaint was a jurisdictional defect requiring the dismissal of her appeal." Accordingly, we conclude that the trial court properly dismissed claimant's appeal.
This case is due to be affirmed.
AFFIRMED.
BRADLEY, P.J., and HOLMES, J., concur.
ON APPLICATION FOR REHEARING
We have entertained an amicus curiae brief and reply thereto aimed at certain language in Taylor v. Department of Industrial Relations, 409 So.2d 447 (Ala.Civ.App. 1982). The pertinent part of Taylor is stated below:
"Generally, we find no requirement in section 25-4-95 that the director be served within the ten day period. It appears to this court that the timely filing in circuit court, providing a means of service of process upon the director by certified mail, and the actual mailing of the notice of appeal to the director and his apparent receipt thereof operated in this case to invoke the jurisdiction of the circuit court under section 25-4-95.
"The trial court should not have, in this instance under these circumstances, dismissed the claimant's action for failure to serve notice of appeal upon the director within ten days after the decision became final.
"We should not be understood by our decision today to be requiring or not to be requiring the circuit court clerk to mail a notice of appeal to the director. In this instance, though, the circuit court clerk did send the notice to the director by certified mail, and under the circumstances as indicated above, the claimant satisfied the procedural requirements of section 25-4-95."
We think the import of the above language when coupled with the plain meaning of § 25-4-95, Code of Alabama 1975 (1986 Repl. Vol.), simply requires that notice of appeal be mailed to the director by registered mail or certified mail within the ten-day period. This was done in Taylor, even though the director did not receive the notice there until after the ten-day period had expired.
In the instant case, the notice of appeal was never mailed to the director.
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
BRADLEY, P.J., and HOLMES, J., concur.