Bryan J. Wells, CONNER & WINTERS, Oklahoma City, Oklahoma, For Appellant

David T. Hopper, Oklahoma City, Oklahoma, For Appellee

OPINION

This is ROC OR International's (ROCOR) appeal to this court from the district court's August 24, 2001, order dismissing ROCOR's appeal to the district court for lack of jurisdiction because the appeal was untimely filed. This appeal was assigned to the accelerated docket pursuant to Okla.Sup.Ct.R. 1.36,12 O.S. Supp.2000, ch. 15, app. 1. Based upon our review of the record and applicable law, we affirm.

FACTS

In a letter dated April 24, 2000, ROCOR, an interstate trucking company, was assessed $37.80 in taxes by the Oklahoma Employment Security Commission (OESC) for misclassifying some of its drivers as independent contractors, rather than employees. ROCOR sought a hearing by the Assessment Board of the OESC, which affirmed OESC's original assessment. The Board's order of decision was mailed to ROCOR March 20, 2001. The mailing date is set out in the order. ROCOR filed an appeal from that order in district court April 23, 2001, thirty-three days later. On May 3, 2001, OESC filed a special appearance objecting to the jurisdiction of the court and sought dismissal of the appeal as untimely. OESC argued the appeal was due no later than thirty days from the date of mailing, pursuant to 40 O.S. 3-305(D) (2000). ROCOR, on the other hand, argued it had three additional days in which to file its appeal, pursuant to 12 O.S. 2006(D) (2000), and this court's decision in K.J. Construction v. Puente, 2000 OK CIV APP 138, 16 P.3d 481.1

The trial court reviewed the briefs of the parties and, without a hearing, entered an order dismissing ROCOR's appeal as untimely. ROCOR appeals. We affirm.

ANALYSIS

OESC cites 40 O.S. 3-305(D) (2000), which states:

"D. The employer or the Commission may appeal the Board's order of decision to the district court by filing a petition for review with the clerk of that court within thirty (30) days after the date the order was mailed to all parties. The mailing date shall be specifically stated in the order." (Emphasis added.)

Additionally, OESC notes that 40 O.S. 3-403 (2000), states, in relevant part:

"Within thirty (30) days after the date of mailing of the order, ruling, or finding complained of, the party desiring to appeal shall file in the office of the clerk of the district court of the county that has the proper jurisdiction, a petition for review specifying the grounds upon which such appeal is based." (Emphasis added.)

ROCOR, on the other hand, while admitting it did not file its appeal within the time specified in those statutes, nevertheless claims it had an additional three days in which to file its appeal, making its appeal timely. ROCOR cites 12 O.S. 2006(D) (2000), which states:

"D. ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three (3) days shall be added to the prescribed period; . . . ." (Emphasis added.)

In Shanbour v. Hollingsworth, 1996 OK 67, 918 P.2d 73, the Oklahoma Supreme Court held that 12 O.S. 2006(B)(2) (1991), which permits a court to extend the time period in which to file a pleading in the event of excusable neglect, in that case an unexpected emergency surgery, did not operate to extend the time in which to file a claim under the Governmental Tort Claims Act. Shanbour stated that the jurisdiction of the GTCA is only triggered by the timely filing of a claim, and the expiration of the GTCA's one hundred eighty day time limit in which to file a claim operated as a bar to relief under the GTCA.

This court visited a similar issue in In re Grand Jury Wilder, 2000 OK CIV APP 7, 996 P.2d 951, in which this court noted that the statutory forty-five day time limit to initiate a grand jury petition cannot be modified by application of 12 O.S. 2006(B) (1991), because: "By its express terms, this statute applies only to time periods specified in title 12 or a notice given thereunder by order of the court." Id. at 11, 996 P.2d at 953-4. In other words, 12 O.S. 2006(B), and by extension, 12 O.S. 2006(D), apply only to "computing any period of time prescribed or allowed by this title, by the rules of any court of this state, or by order of a court of this state." 12 O.S. 2006(A) (emphasis added). Because the jurisdictional prerequisites found in 40 O.S. 3-305 (2000) and 40 O.S. 3-403 are not in Title 12, are not rules of any court, and are not set out in an order of a court, 12 O.S. 2006(D) is inapplicable.

SUMMARY

Timely filing of an appeal from the Board of the Oklahoma Employment Security Commission to the district court is a jurisdictional prerequisite. State ex rel. Oklahoma Employment Sec. Comm'n v. Emergency Physicians, Inc., 1981 OK 82, 631 P.2d 743. We do not interpret 12 O.S. 2006(D) to operate to extend the time in which a party may invoke the jurisdiction of the district court, acting in its appellate capacity. We hold that upon the expiration of the thirtieth day from the date of the mailing of the decision, the district court lost jurisdiction to entertain ROC OR's appeal. The trial court correctly dismissed the appeal. The trial court's August 24, 2001, order dismissing ROCOR's appeal is AFFIRMED.

REIF, V.C.J., and COLBERT, J., concur.

(FOOTNOTES):

1 This case is inapplicable to the case under review because K.J. Construction dealt with the question of whether weekends were to be excluded in the computation of time in which to file an appeal to a Workers' Compensation Court three-judge panel.