Appeal from Calhoun Circuit Court. (CV-94-192).
Robertson, Presiding Judge, Thigpen, Yates, Monroe, and Crawley, JJ., concur.
The opinion of the court was delivered by: Robertson
ROBERTSON, Presiding Judge
Billy Pelfrey was denied unemployment compensation benefits after his employment ended with Coldwater Casket Company. Following an adverse decision by the Board of Appeals for the Department of Industrial Relations (DIR), Pelfrey filed a timely notice of appeal in the Calhoun County Circuit Court.
Pursuant to DIR's motion to dismiss, the trial court entered a judgment which states:
"Upon consideration of [DIR's] Motion to Dismiss [Pelfrey's] appeal, the Court notes that [Pelfrey] did not comply with the requirement of § 25-4-95 of the Code of Alabama (1975) of timely filed notice of appeal with the director of . [Pelfrey's] failure to serve the director of with a copy of his complaint is a jurisdictional defect and requires dismissal of [his] appeal. Craig v. Department of Industrial Relations, 470 So. 2d 1278 (Ala. Civ. App. 1985)."
Pelfrey filed a timely Rule 59(e), A.R.Civ.P., motion *fn1 and a brief in support of his motion, alleging that service of the notice of appeal on the director of DIR was a procedural requirement and not a jurisdictional requirement, citing Ex parte Doty, 564 So. 2d 443 (Ala. 1989). The trial court denied Pelfrey's motion.
Pelfrey contends on appeal that the timely service of the notice of appeal pursuant to § 25-4-95, Ala. Code 1975, in unemployment compensation cases is not a jurisdictional requirement.
Our supreme court, in Ex parte Doty, has overturned that part of Craig which the trial court relied on in this case. The court held that the timely filing of a notice of appeal with DIR "is not a prerequisite to the circuit court's jurisdiction," but that, in determining whether the appeal should be dismissed, "the only factors to be considered [by the trial court] ... are prejudice to the department and any inexcusable neglect by [the appellant]." Ex parte Doty at 446.
Consequently, we are compelled to reverse the judgment of dismissal and remand this case for the trial court to make a determination in accordance with the factors set out in Ex parte Doty.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thigpen, Yates, Monroe, and Crawley, ...