Alamo v. Coie

Tony ALAMO v. Christiaon Susan COIE

CA 96-3                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
               Opinion delivered February 19, 1997


1.   Appeal & error -- timely appeal -- failure to file timely
     appeal deprives appellate court of jurisdiction. -- The
     failure to file a timely notice of appeal deprives the
     appellate court of jurisdiction. 

2.   Appeal & error -- notice of appeal not timely filed -- appeal
     dismissed. -- Where appellant filed a notice of appeal and
     shortly thereafter filed a motion for a new trial, yet failed
     to file a new notice of appeal within the prescribed time
     measured from the expiration of the thirty-day period, his
     appeal was dismissed as untimely; the time to appeal ran from
     the entry of an order on the motion or from the thirtieth day
     after the filing of the motion, whichever came first; even
     when an appealable order has been entered and a notice of
     appeal has been filed within thirty days thereafter, the
     filing of a motion provided for in Ark. R. App. P. -- Civil 4
     will extend the time for filing the notice of appeal, and the
     notice of appeal filed before the time is extended will be
     ineffective.


     Appeal from Crawford Chancery Court; Jim Spears, Chancellor;
appeal dismissed.
     Appellant, Pro Se.
     Karr & Hutchinson, by:  Charles Carr, for appellee.

     Per Curiam.
     This case must be dismissed under Ark. R. App. P. -- Civil 4
(formerly Ark. R. App. P. 4) because the appellant did not file a
timely notice of appeal. 
     Appellee, Christhiaon Susan Coie, Susan Alamoþs daughter, sued
appellant, Tony Alamo, in the Crawford County Chancery Court in
September 1991, alleging that appellant had violated a temporary
restraining order prohibiting him and members of the Tony and Susan
Alamo Foundation from removing Susanþs body from its mausoleum.  In
her complaint, appellee stated that appellant had caused the
removal of her motherþs body from the mausoleum and had concealed
its location.  Appellee also alleged that appellantþs outrageous
actions had caused her to suffer emotional distress.  She sought
damages and an order requiring appellant to deliver the body.  On
September 14, 1995, the chancellor entered an order directing
appellant to produce Susanþs body and awarded appellee damages in
the amount of $100,000.00 for the tort of outrage.  On September
20, 1995, at 4:26 p.m., appellant filed his notice of appeal.  At
4:29 p.m., on September 20, 1995, appellant filed a motion for new
trial.  There is nothing in the record to indicate that the
chancellor ruled on appellantþs motion for new trial. 
Additionally, appellant did not file a new notice of appeal.
     Arkansas Rule of Appellate Procedure -- Civil 4(a) provides
that, except as otherwise provided in subsequent sections of this
rule, a notice of appeal shall be filed within thirty days from the
entry of the judgment, decree, or order appealed from.  Arkansas
Rule of Appellate Procedure -- Civil 4(b) provides that, upon the
timely filing in the trial court of a motion for new trial under
Ark. R. Civ. P. 59(b), the time for filing the notice of appeal
shall be extended as provided in this rule.  Arkansas Rule of
Appellate Procedure -- Civil 4(c) provides:
     If a timely motion listed in section (b) of this rule
     [such as a motion to amend the courtþs findings of fact
     under Ark. R. Civ. P. 52(b), or a motion for new trial
     under Rule 59(b)] is filed in the trial court by any
     party, the time for appeal for all parties shall run from
     the entry of the order granting or denying a new trial or
     granting or denying any other such motion.  Provided,
     that if the trial court neither grants nor denies the
     motion within thirty (30) days of its filing, the motion
     will be deemed denied as of the 30th day.  A notice of
     appeal filed before the disposition of any such motion
     or, if no order is entered, prior to the expiration of
     the 30-day period shall have no effect.  A new notice of
     appeal must be filed within the prescribed time measured
     from the entry of the order disposing of the motion or
     from the expiration of the 30-day period.  No additional
     fees shall be required for such filing.

     The failure to file a timely notice of appeal deprives this
court of jurisdiction.  Williams v. Hudson, 320 Ark. 635, 638, 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373, 374, 892 S.W.2d 246 (1995).  Here, appellant failed to file a new notice of appeal
within the prescribed time measured from the expiration of the
thirty-day period. 
     In Mitchell v. Mitchell, 40 Ark. App. 81, 842 S.W.2d 66
(1992), we were presented with a similar situation.  In that case,
the appellant filed the notice of appeal on September 4, 1991; on
September 5, the appellant filed motions for findings of fact and
conclusions of law and for relief from the supplement to the
decree.  The court orally denied the motions at a  hearing  held on
October 14, 1991.  We found it necessary to dismiss the appeal and
stated:  
          Therefore, under either motion filed by appellant on
     September 5, 1991, the time to appeal would run from the
     entry of an order on the motion or from the thirtieth day
     after the filing of the motion, whichever came first.  
     See Ferguson v. Sunbay Lodge, Ltd., 301 Ark. 87, 781 S.W.2d 491 (1989); Jasper v. Johnnyþs Pizza, 305 Ark.
     318, 807 S.W.2d 664 (1991); Phillips Construction Co. v.
     Cook, 34  Ark. App. 224, 808 S.W.2d 792 (1991).  These
     cases also make it clear that even when an appealable
     order has been entered and a notice of appeal has been
     filed within 30 days thereafter, the filing of a motion
     provided for in Appellate Procedure Rule 4(b) will extend
     the time for filing the notice of appeal, and the notice
     of appeal filed before the time is extended will be
     ineffective.

          In the instant case, the notice of appeal filed on
     September 4, 1991, was ineffective because of the motions
     filed on September 5, 1991.  Moreover, those motions were
     deemed denied at the end of 30 days after they were filed
     -- unless the trial court ruled on them before that time. 
     Although the trial court orally denied the motions at a
     hearing on October 14, 1991, this was more than 30 days
     after they were filed and they were already deemed
     denied; therefore, it was necessary to file a new notice
     of appeal within 30 days after the motions were deemed
     denied.  Because this was not done, no appeal has been
     perfected.  While this issue was not raised by the
     appellee, it is jurisdictional and we must raise it even
     if the parties do not.  Eddings v. Lippe, 304 Ark. 309,
     802 S.W.2d 139 (1991).

40 Ark. App. at 85.  See also Schaeffer v. City of Russellville, 52
Ark. App. 184, 186, 916 S.W.2d 134 (1996); Snowden v. Benton, 49
Ark. App. 75, 76, 896 S.W.2d 451 (1995); Glover v. Langford, 49
Ark. App. 30, 31, 894 S.W.2d 959 (1995).
     We therefore dismiss this appeal as untimely.
     Dismissed.