Chickasaw Chemical Company v. Thom E. Beasley, Administrator et al.

CHICKASAW CHEMICAL COMPANY v. Thom E.
BEASLEY, Administrator of the Estate of Harry
Beasley, Deceased, Vance Beasley, D/B/A
Beasley & Son, a Partnership

97-375                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 5, 1997


1.   Appeal & error -- notice of appeal not timely filed --
     judgment was nullity. -- The notice of appeal was not timely
     filed in this matter; the first notice of appeal was filed on
     October 2, 1996, before judgment was entered and, thus, was a
     nullity; a notice of appeal was required to be filed within
     thirty days from the date the order was entered on October 8,
     1996, and was not done. 

2.   Appeal & error -- neither notice of appeal nor motion for
     extension timely filed -- motion to dismiss appeal granted. --
     Where appellant should have been aware of the deemed-denied
     date for its posttrial motions and the fact that a notice of
     appeal was required to be filed within thirty days from that
     date, yet neither a notice of appeal nor a motion for
     extension of time was timely filed, the narrow exception set
     out in Ark. R. App. P.--Civ. 4(a) did not apply; the motion to
     dismiss was granted.

     
     Motion to dismiss appeal; granted.
     William P. Rainey, for appellant.
     Easley, Hicky, Cline & Hudson, by:  Preston G. Hicky, for
appellees.
     
     Per Curiam.
     Appellees, Tom E. Beasley, Executor of the Estate of Harry
Beasley, Deceased, and Vance Beasley, d/b/a Beasley & Son, a
Partnership (Beasley), move the court for a dismissal of the appeal
filed by appellant, Chickasaw Chemical Company.  The motion is
premised on the fact that the first notice of appeal filed by
Chickasaw Chemical was not timely and that the motion for extension
of time was also untimely.  We agree with Beasley on both counts
and grant the motion.
     On September 6, 1996, judgment was entered in this matter in
favor of Beasley.  On September 16, 1996, Chickasaw Chemical filed
motions for a new trial and for a judgment notwithstanding the
verdict.  On September 30, 1996, the motions were denied by the
trial court in open court.  On October 2, 1996, Chickasaw Chemical
filed its notice of appeal.
     On October 8, 1996, the order denying Chickasaw Chemical's
motions for new trial and for judgment notwithstanding the verdict
was entered by the trial court.  On November 18, 1996, Chickasaw
Chemical moved for an extension of time to file a notice of appeal. 
The motion for an extension was heard by the trial court, and on
December 2, 1996, an order was entered by the trial court denying
the motion.  On December 3, 1996, Chickasaw Chemical filed a second
notice of appeal from the original judgment, the order denying the
post-judgment motions, and the order denying the extension of time
in which to file an appeal.
     The notice of appeal was not timely filed in this matter.  The
first notice of appeal was filed on October 2, 1996, before
judgment was entered and, thus, was a nullity.  Kimble v. Gray, 313
Ark. 373, 853 S.W.2d 890 (1993).  See also Ark. R. App. P.--Civ. 4. 
A notice of appeal was required to be filed within 30 days from the
date the order was entered on October 8, 1996, and this was not
done.  Ordinarily, the trial court would have lost jurisdiction of
this matter when a notice of appeal was not filed.  Phillips v.
Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991).  See also Deason v.
Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). 
However, under Ark. R. App. P.--Civ. 4(a), upon a showing of
failure to receive a judgment, a party may move for an extension of
time to file the notice of appeal:
     Upon a showing of failure to receive notice of the
     judgment, decree or order from which appeal is sought,
     the trial court may extend the time for filing the notice
     of appeal by any party for a period not to exceed sixty
     (60) days from the expiration of the time otherwise
     prescribed by these rules.  Such an extension may be
     granted before or after the time otherwise prescribed by
     these rules has expired; but if a request for an
     extension is made after such time has expired, it shall
     be made by motion with such notice as the court shall
     deem appropriate.  (Emphasis added.)
As Chickasaw Chemical points out, Rule 4(a) permits a request for
an extension of time even after the time for a notice of appeal has
expired.  But that is conditioned upon failure to receive notice of
the order from which the appeal is sought.  Chickasaw Chemical
maintains that it did not receive a copy of the order denying the
motions.  Beasley disagrees.  Nevertheless, Chickasaw Chemical
should have been aware of the deemed-denied date for its posttrial
motions and the fact that a notice of appeal was required to be
filed within 30 days from that date, which was by November 15,
1996.  Neither a notice of appeal nor a motion for extension of
time was filed by that date.  Under these facts, we conclude that
the narrow exception set out in Rule 4(a) does not apply.
     Motion granted.