Larry D. Vaught, Judge, Div. I

Arkansas Court of Appeals

Not Designated for Publication

CINDY D. BENNETT

APPELLANT

V.

DIRECTOR, EMPLOYMENT SECURITY DEPARTMENT, and NORTH ARKANSAS HUMAN SERVICES SYSTEM INC.

APPELLEES

E00-255

MARCH 7, 2001

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

(00-BR-00812)

REMANDED TO SUPPLEMENT RECORD

Appellant, Cindy D. Bennett, appeals an adverse ruling of the Board of Review denying her unemployment benefits. There were three telephonic hearings held in this case. The first was on March 29, 2000, before the Appeal Tribunal, which resulted in a favorable decision for appellant. The second was on July 18, 2000, before the Board of Review on the timeliness of the employer's appeal. And, the third on September 27, 2000, from which this appeal is taken. The July 18^th hearing is not a part of the record, but is referred to in the final decision finding the appeal of the employer from the March 29^th hearing to be timely, and reversing the Appeal Tribunal's earlier decision.

The March 29^th decision of the Appeal Tribunal was mailed to the parties on March 30, 2000, and the employer had twenty days from that date to file a notice of appeal. Ark. Code Ann. §11-10 524 (a)(1). The notice is timely filed if it is postmarked by the twentieth day. However, if the appeal is not filed within twenty days and the Board of Review finds that the late filing is "beyond the control" of the appealing party the filing may be deemed timely. Ark. Code Ann. §11-10-524 (a)(2).

In this case the appeal of the employer to the Board of Review was postmarked June 27, 2000, which is eighty-eight days from the date of mailing of the decision. The Board found that the filing was timely because the delay was beyond the control of the party. The timely filing of a notice of appeal is necessary for the appellate court to have jurisdiction of a case on appeal. Cockrell v. Director, Ark. Employment Sec. Dept., 67 Ark. App. 132, 992 S.W.2d 181 (1999). This court's jurisdiction is derived from the appeal to the Board of Review, and we may not render any judgment that the Board of Review could not have rendered. See Markham v. Evans, 239 Ark. 1154, 397 S.W.2d 365 (1965). Without the transcript of the July 18, 2000, hearing, this court cannot review the issue of timeliness to determine whether the Board of Review had jurisdiction over the appeal.

This case is therefore remanded to the Board of Review to supplement the record to include the transcript of the July 18, 2000, hearing.

Remanded to supplement record.

Pittman and Hart, JJ, agree.