Flemings v. Littles

Gina Felicia FLEMINGS (Foster) v. Darryl A.
LITTLES

96-293                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 1, 1996


1.   Appeal & error -- cross-appeal defined -- appellee's appeal
     was cross-appeal -- notice had to be filed within ten days
     after receipt of notice of appeal. -- A cross-appeal is an
     appeal by an appellee who seeks something more than was
     received in the trial court; appellee's appeal was a cross-
     appeal, and his notice had to be filed within ten days after
     December 13, 1995, the date of receipt of appellant's notice
     of appeal.

2.   Appeal & error -- appellee's notice of cross-appeal was timely
     filed with chancery clerk. -- Where appellee's "notice of
     appeal" filed on December 22, 1995, was not filed with the
     clerk of the court that entered the judgment, it had no
     effect; where, however, appellee's notice of cross-appeal was
     filed with the chancery clerk on December 27, 1995, the tenth
     business day after receipt of appellant's notice of appeal,
     the notice was timely filed with the clerk of the court that
     entered the judgment.


     Motion to Dismiss Appeal; denied.
     Pulaski County Child Support Enforcement Unit, by: Kimberly D.
Burnette, for appellant.
     No response.

     Per Curiam.April 1, 1996.   *ADVREP11*








GINA FELICIA FLEMINGS (FOSTER),
                    APPELLANT,

V.

DARRYL A. LITTLES,
                    APPELLEE.
96-293





MOTION TO DISMISS APPEAL,





DENIED.




                           Per Curiam


     Appellant Gina Felicia Flemings (Foster), by the Pulaski
County Child Support Enforcement Unit, has filed a motion to
dismiss the appeal of Darryl A. Littles.  The basis for the motion
is that Littles did not timely file a notice of appeal; therefore,
this Court is without jurisdiction.  We deny the motion to dismiss.
     The order being appealed was entered in Pulaski County
Chancery Court on November 14, 1995.  On December 8, 1995,
appellant Flemings filed a notice of appeal; appellee Littles was
served with the notice of appeal on December 13, 1995.  Littles
filed a document styled "notice of appeal" on December 22, 1995;
however, the notice was filed in circuit court.  The "notice of
appeal" was not filed in chancery court until December 27, 1995.
     Ms. Flemings contends that if Littles' appeal is designated a
direct appeal, then the notice of appeal was thirteen days late
pursuant to Rule 4(a) of the Rules of Appellate Procedure.  If
Littles' appeal is designated a cross-appeal, Flemings submits it
was filed two days late under Rule 4(a).  Rule 4(a) provides that
a notice of appeal must be filed within thirty days from entry of
the judgment.  However, a notice of cross-appeal must only be filed
within ten days after receipt of the notice of appeal.
     Although Littles' notice is styled "notice of appeal," we have
recognized that a cross-appeal is an appeal by an appellee who
seeks something more than was received in the trial court.  Boyle
v. A.W.A., Inc., 319 Ark. 390, 892 S.W.2d 242 (1995).  Thus,
Littles' appeal is a cross-appeal, and his notice had to be filed
within ten days after December 13, 1995, the date of receipt of
Flemings' notice of appeal.
     The notice of appeal which Littles filed on December 22, 1995,
was not filed with the clerk of the court that entered the
judgment; therefore, it had no effect.  See Rossi v. Rossi, 319
Ark. 373, 892 S.W.2d 246 (1995).  However, the notice of appeal
which was filed December 27, 1995, was timely filed with the clerk
of the court that entered the judgment.  December 23, 1995, was the
tenth day after receipt of Flemings' notice of appeal, but it was
a Saturday.  Rule 9 of the Rules of Appellate Procedure provides
that whenever the last day for taking action falls on a Saturday,
Sunday, or legal holiday, the time for such action shall be
extended to the next business day.  December 23 was a Saturday,
December 24 was a Sunday, and December 25 and 26 were legal
holidays; therefore, December 27 was the next business day.
     Motion denied.