I THE SUPREME COURT OF MISSISSIPPI. CHARLES IRVI BRUTO, Jr. v. o CA ALLISO HIPWELL BRUTO PRI CIPAL BRIEF OF APPELLA T

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1 E-Filed Document Jun :54: CA Pages: 19 I THE SUPREME COURT OF MISSISSIPPI CHARLES IRVI BRUTO, Jr. APPELLA T v. o CA ALLISO HIPWELL BRUTO APPELLEE PRI CIPAL BRIEF OF APPELLA T ORAL ARGUME T REQUESTED On Appeal from the Chancery Court of Lamar County, Mississippi No GN-G David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: dnmlaw@gmail.com W: McCartyAppeals.com Attorney for Appellant

2 I THE SUPREME COURT OF MISSISSIPPI CHARLES IRVI BRUTO, Jr. APPELLA T v. o CA ALLISO HIPWELL BRUTO APPELLEE CERTIFICATE OF I TERESTED PERSO S Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Charles Irvin Bruton, Jr., Appellant 2. David Neil McCarty, Appellate Counsel for Appellant 3. S. Christopher Farris, Trial Counsel for Appellant 4. Allison Hipwell Bruton, Appellee 5. Amanda Jane Proctor & Willard Benton Greg, Appellate Counsel for Appellee 6. S. Rhea Hudson Sheldon, Trial Counsel for Appellee 7. The Honorable M. Ronald Doleac, of the Chancery Court of Lamar County So CERTIFIED, this the 16th day of June, Respectfully submitted, s/ David eil McCarty David Neil McCarty Miss. Bar No Attorney for Appellant i

3 Table of Contents Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Statement of the Issues... 1 Statement of the Case... 1 Statement Regarding Oral Argument... 1 Relevant Facts and Course of Proceedings... 2 Summary of the Argument... 5 Standard of Review... 6 Argument... 6 Issue I Issue II Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Cases Busby v. Anderson, 978 So.2d 637, 639 (Miss. 2008)... 6 Clark v. Knesal, 113 So. 3d 531, 539 (Miss. 2013)... 6 Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (Miss. 2009)... 9 Locke v. SunTrust Bank, 484 F.3d 1343, 1346 (11th Cir. 2007) Matter of Estate of Ware, 573 So. 2d 773, 774 (Miss. 1990)... 7, 10 Mc eese v. Mc eese, 129 So. 3d 125, 128 (Miss. 2013)... 9 Parke-Chapley Const. Co. v. Cherrington, 865 F.2d 907, 911 (7th Cir. 1989) Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004)... 13, 14 Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993)... 10, 11 Rigdon v. Miss. Farm Bureau Fedn., 22 So. 3d 321, 325 (Miss. Ct. App. 2009)... 8 Stotter v. University of Texas at San Antonio, 508 F.3d 812, 820 (5th Cir. 2007) Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust v. Goding, 692 F.3d 888, 893 (8th Cir. 2012) U.S. ex rel. King v. University of Texas Health Science Center-Houston, 544 Fed.Appx. 490, (5th Cir. 2013) Rules FRAP , 10 MRAP MRAP , 7, 10 MRAP Other Sources Hon. Larry Primeaux, The Better Chancery Practice Blog, Relief Pending An Appeal, (accessed June 12, 2014)... 9 James L. Robertson, Concurrent Jurisdiction, 1 MS Prac. Civil Proc. 1:5 (Jeffrey Jackson ed., 2014)... 9 iii

5 Statement of the Issues Presented for Review I. A Trial Court Has Jurisdiction to Extend Time to File a Notice of Appeal. II. It Is Excusable Neglect for An Attorney to Fail to Calculate the Correct Due Date for a Notice of Appeal. Statement of the Case This case is about a man and woman who were divorced, and the husband sought to appeal the final judgment. However, his lawyer miscalculated the time the Notice of Appeal was due, and filed it four days late. Even though the Rules of Appellate Procedure explicitly allow for an extension of time to file a Notice of Appeal, the trial court did not believe that it had jurisdiction to grant more time. The trial court also ruled that the lawyer s error was not excusable neglect. The husband appealed the denial of his request to file his Notice of Appeal out of time. Statement Regarding Oral Argument Pursuant to MRAP 34(b), oral argument would assist the Court in resolving this case. The trial court refused to grant an extension of time to file a Notice of Appeal even though the appealing party s lawyer admitted he had miscalculated the time for appeal, and that it was not the fault of the client, only the lawyer. Although the Rules of Appellate Procedure and decades of case law allow this relief, the trial court did not believe it had jurisdiction, or that the lawyer s failure was excusable neglect. Oral argument will clarify that only trial courts have the power to grant more time, and that there is a substantial body of persuasive federal law finding excusable neglect in similar situations. 1

6 Relevant Facts and Procedural History The facts and procedural history of this case are undisputed. Allison Bruton filed for divorce against her husband Charles. [1:3]. 1 The trial court entered an Opinion and Final Judgment finalizing the divorce. [1:8]. Among other things, the trial court ordered Charles to pay 60% of parochial school tuitions and fees for the couple s two children. [1:27]. After the Final Judgment, Charles, through his lawyer, requested more time to file a motion for new trial, and all parties agreed to the extension, and the trial court granted it. [1:53]. Afterwards, Charles filed a motion asking the trial court to modify its opinion. [1:51]. The trial court denied the motion for a new trial in a new Order. [1:102]. In doing so, the trial court reaffirmed that the Final Judgment was now truly final for appeal purposes. [1:102]. Therefore under MRAP 4(a) Charles would have 30 days to file an appeal. This is all very routine in many civil and criminal cases, and there is nothing unusual about this process. However, after the Order reaffirming the Final Judgment, counsel for Charles did not file a Notice of Appeal. The Order was docketed July 25, 2013 so under the Rules Charles would have until August 26 to file his appeal (because the thirtieth day actually fell on a Saturday). Time bled off the clock for filing of a Notice of Appeal. Instead of filing the Notice, the lawyer filed a Motion for Stay of Judgment Pending Appeal. [1:103]. The motion was filed August 22, the Thursday before time ran out to file the Notice. [1:103]. The thirtieth day, August 26, came and went without a Notice of Appeal. Then, on August 30, 2013 four days after the thirtieth day the lawyer finally filed a Notice of Appeal. [1:110]. That same day, the lawyer filed the Designation of Record and 1 This citation indicates [volume of the Record:page number]. 2

7 Certificate of Compliance, and deposited over $1, towards the cost of appeal and preparation of the transcript. [1:111-14]. A few days later, the lawyer for Charles also filed a Motion for Additional Time to File Notice of Appeal Nunc Pro Tunc, relief explicitly authorized under MRAP 4(g). [1:117]. In this motion, the lawyer set out that since the Motion to Stay was filed, Counsel for Defendant did not interpret the rules to require the filing of the notice of appeal before the trial court decided the stay motion. [1:117-18]. In other words, the lawyer for Charles believed he had more time than the 30 days. Nonetheless, he filed the Motion for Additional Time as a safeguard, If in fact counsel for Defendant is incorrect in his interpretation of the rule.... [1:118]. Charles lawyer also offered that he had been in trial all week on other matters including a two day hotly contested custody trial on Thursday and Friday of the week of the motion hearing, further burdening his ability to determine when the appeal was due. [1:117]. In the rebuttal brief, counsel for Charles admitted any mistake was his and should not be imputed to his client. The Defendant filed his request for an extension of time and his notice of appeal four days after the expiration. [2:165]. For his failures and misinterpretation of the Rules, Charles lawyer pleaded for more time for his client to file the Notice of Appeal. [2:165]. The blame should be placed only on the lawyer, he admitted, and not Charles: Counsel for Defendant takes full responsibility for this error and does not seek to place blame on anyone else. [2:166]. The trial court conducted a hearing on the Motion for Additional Time. [3:13]. Charles lawyer again admitted he failed to calculate the time correctly: As I stated in my motion, I misinterpreted the rule. I assumed as long as I had a pending request of relief for you, that would have stayed the appeal time. When that issue was brought to my attention, I immediately filed the notice of appeal four days later and then filed this motion 3

8 nunc pro tunc for authority to extend the period of time by four days. [3:15]. The lawyer again admitted that the mistake was not one Charles committed, and that his client should not be punished for his error: I m not here to point fingers at anyone but myself and [I] take full responsibility for it. [3:15]. The trial court was reluctant to rule on the issue due to a concern that jurisdiction had transferred to the Supreme Court once the Notice of Appeal was filed. [3:17]. The lawyer for Charles urged that Rule 4(g) allowed the trial court to grant an extension of time. [3:15]. Ultimately, the trial court ruled that the thirty days to appeal ran on Monday, August 26. [3:19]. The trial court determined that it did not have jurisdiction to extend the time to file the Notice of Appeal once it was already filed, believing that it removed jurisdiction from the trial court. [3:20]. The trial court also ruled that despite admitting he failed his client, the lawyer had not shown some excusable neglect justifying an extension of time. [3:20]. The trial court then entered an Order denying the Motion for Additional Time, setting out three findings: first, The time period for filing a motion under Miss R App Pro 4(g) has expired. [R.E. 6, 2:168]. Second, that Defendant offered no excusable neglect. [R.E. 6, 2:168]. Third, That the Motion was filed after the Defendant had filed his Notice of Appeal, thus, this Court is without jurisdiction to proceed on this specific request. [R.E. 6, 2:168]. As a result, the Defendant s Motion for Additional Time to File Notice of Appeal Nunc Pro Tunc is denied. [R.E. 6, 2:168]. Through new counsel, the undersigned, Charles then timely filed a Notice of Appeal of that Order. [2:173]. 4

9 As to the original appeal filed by Charles lawyer, the late-filed Notice of Appeal traveled its way to Jackson, where the Supreme Court analyzed whether it was untimely. 2 Allison filed a mammoth Motion to Dismiss, while Charles lawyer filed a Motion to Withdraw. See Docket for Bruton v. Bruton, No CA In his Amended Motion to Withdraw, the lawyer again took full blame for the belayed appeal: The appeal was filed four days beyond the deadline as the result of no fault on the part of the Appellant. The Supreme Court ruled that the Notice of Appeal was untimely and the appeal should be dismissed with cost assessed to the appellant. Feb. 6, 2014 Order, No CA-01488; mandate issued February 27, Summary of the Argument For two core reasons the order of the trial court denying the extension of time to file a Notice of Appeal must be reversed, and this case remanded to allow Charles to docket his appeal. First, trial courts are explicitly granted the jurisdiction to extend the time to file a Notice of Appeal. The Rules of Appellate Procedure empower them to do so, and indeed our appellate courts have ruled that only a trial court has this power. Therefore it was reversible error for the trial court to determine that it did not have jurisdiction over the Motion for Additional Time. Second, an attorney s miscalculation of the deadline to file a Notice of Appeal can constitute excusable neglect warranting an extension of time to file the Notice. Charles former lawyer admitted he failed to properly determine the due date for filing, and also noted he had a busy trial week before the Notice of Appeal was due. A growing body of law has recognized the failures of attorneys and their staff in calendaring an appeal deadline can meet the 2 This patch of the procedural history is not within the pages of the Record of this appeal, but is open upon the docket of the Court. As it is illustrative to the history of this appeal, Mr. Bruton respectfully requests that the Court take judicial notice of it, as it has done in other matters. For [t]his Court takes judicial notice of its files. In re Dunn, --- So.3d ----, 2013 WL , *6 n.6 (Miss. Feb. 21, 2013). 5

10 excusable neglect standard and warrant an extension of time. The trial court should have determined that the attorney s miscalculation fell under just such an exception allowing more time. STA DARD OF REVIEW This case presents two main issues whether the trial court had jurisdiction to extend time to file a Notice of Appeal, and whether there was excusable neglect. Both should be reviewed de novo. Jurisdiction is a question of law which this Court reviews de novo. Busby v. Anderson, 978 So.2d 637, 639 (Miss. 2008). While normally there is an abuse of discretion standard to a trial court s findings of fact concerning the existence or lack of good cause or excusable neglect, this changes when there is a legal issue in play. Clark v. Knesal, 113 So. 3d 531, 539 (Miss. 2013). To the extent that the trial court s excusable neglect determination involves the interpretation of legal principles, we will conduct a de novo review. Id. ARGUME T I. A Trial Court Has Jurisdiction to Extend Time to File a otice of Appeal. Because the trial court was vested with jurisdiction to consider the request for more time to file the Notice of Appeal, it was reversible error to refuse to consider the motion. The explicit language of Rule 4 allows an extension of time, and longstanding case law gives the trial court the sole power to extend time. Rule 4 of our Rules of Appellate Procedure generally grants 30 days to file a Notice of Appeal from an adverse order. See MRAP 4(a). Under its corollary Rule 4(g), the thirty days can be extended for thirty more. MRAP 4(g). The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time 6

11 otherwise prescribed by this rule. MRAP 4(g). There are two ways more time can be obtained: by asking before the thirty days runs out, and asking afterwards. MRAP 4(g). The requirements for the first route are so low that the other parties do not even have to be noticed: Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. MRAP 4(g). However, that is not the path involved in this case. The second route is more difficult, and other parties have to be noticed. MRAP 4(g). The burden to receive time also increases from good cause : the motion shall be granted only upon a showing of excusable neglect. MRAP 4(g). Like many of our Rules, the Comment to Rule 4 explains that it flowed from federal law: Rule 4(g) is based on Fed. R. App. P. 4(a)(5). The Comment further explains that [a]n excusable neglect motion must be filed within the 30 day extension period. Under the plain language of the Rule, the trial court has power to grant the extension of time. Indeed, it is the first sentence in the subsection: The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. MRAP 4(g) (emphasis added). Indeed, decades ago our Supreme Court held that the power to grant an extension is explicitly granted to trial courts. Only trial judges may grant an extension, and their discretionary decisions are limited by Rule 4(g). Matter of Estate of Ware, 573 So. 2d 773, 774 (Miss. 1990) (emphasis added). More recently the Court of Appeals has again reaffirmed that that only a trial court has such the power to grant more time: That rule allows the trial court to grant an extension of time for filing a notice of appeal if the appellant files a motion for extension within thirty days after the time for filing the notice of appeal otherwise expires. 7

12 Rigdon v. Miss. Farm Bureau Fedn., 22 So. 3d 321, 325 (Miss. Ct. App. 2009) (emphasis by the Court). The appeals courts do not have a corresponding power to grant more time. Id. Therefore the language of Rule 4(g) explicitly confers jurisdiction on the trial court, as does longstanding precedent. Yet in this case the trial court ruled That the Motion [for an extension of time] was filed after the Defendant had filed his Notice of Appeal, thus, this Court is without jurisdiction to proceed on this specific request. Under the plain language of Rule 4(g), Estate of Ware, and Rigdon, the trial court never loses jurisdiction over an extension of time to file a notice of appeal. Because the trial court had jurisdiction over this matter, its ruling that it did not have jurisdiction must be reversed, and this case remanded to the trial court to allow Charles to file his notice of appeal. Further, the trial court was also incorrect to the extent it believed it had lost jurisdiction simply because a Notice of Appeal had been filed. First, the Notice was ultimately ruled deficient by the Supreme Court and dismissed as untimely. Second, the trial court does not automatically lose jurisdiction simply because a Notice of Appeal was filed. In many instances there is concurrent jurisdiction between the appellate and trial courts. For instance, under the Rules several types of jurisdiction remain with the trial court during the appeal process. Stays of judgment must first be sought in the trial court, even after an appeal has been filed. See MRAP 8(b). Likewise, the trial court retains jurisdiction to determine the content of a Record on appeal. See MRAP 10(b)(4) The clerk and reporter shall prepare the additional parts [of the Record] at the expense of the appellant unless the appellant obtains from the trial court an order requiring the appellee to pay the expense ); MRAP 10(b)(5) ( The trial judge shall promptly determine which corrections, if any, are proper and enter an order ). 8

13 As one commentator has termed it, Many civil matters lie within the original subject matter jurisdiction of more than one court... In such cases, the jurisdiction of the one court is said to be concurrent with that of the other. James L. Robertson, Concurrent Jurisdiction, 1 MS Prac. Civil Proc. 1:5 (Jeffrey Jackson ed., 2014). The Rules of Appellate Procedure reflect just this type of concurrent jurisdiction when a request has been made for more time to file a Notice of Appeal. There is only one place a trial court loses jurisdiction, and that is over the judgment being appealed itself. Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court s authority to amend, modify, or reconsider its judgment. Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (Miss. 2009). Yet as one commentator has put it, That rule, however, is not absolute. Hon. Larry Primeaux, The Better Chancery Practice Blog, Relief Pending An Appeal, (accessed June 12, 2014). For MRCP 60, as in the Rules listed above, continue to allow a trial court some limited jurisdiction. See Mc eese v. Mc eese, 129 So. 3d 125, 128 (Miss. 2013). Charles was not asking the trial court to amend, modify, or reconsider its judgment his lawyer was only pleading for more time to file a Notice of Appeal. The Rules of Appellate Procedure explicitly vest the power to grant more time with the trial court. Because the trial court ruled that it did not have jurisdiction, its order denying Charles more time must be reversed, and this matter remanded. II. It Is Excusable eglect for An Attorney to Fail to Calculate the Correct Due Date for a otice of Appeal. The lawyer s failure to correctly calculate the time to file Charles Notice of Appeal constituted excusable neglect, and as a result the order denying more time to file the Notice must be reversed and this case remanded. 9

14 The Comment to Rule 4 makes clear that we patterned our extension of time rule after the Federal Rules of Appellate Procedure. See Comment, MRAP 4(g) ( Rule 4(g) is based on Fed. R. App. P. 4(a)(5) ); see also Estate of Ware, 573 So.2d at 775 (noting that our Rule is based on its Federal counterpart). As a result, our Supreme Court has ruled that perusal of federal treatment of requests for an out-of-time appeal is persuasive and instrumental in the disposition of extension of time cases under Rule 4(g). Estate of Ware, 573 So.2d at 775. It is important then to determine how cases like this one have been treated in the federal courts. Excusable neglect is limited to an occurrence of unusual circumstances in which failure to grant an extension would result in injustice, such as the failure to learn of the entry of judgment. Parke-Chapley Const. Co. v. Cherrington, 865 F.2d 907, 911 (7th Cir. 1989) (cited by Estate of Ware for the proposition that the standard is not meant to grant automatic extensions to 60 days, 573 So.2d at 775). Over the years, the federal circuits have begun to accept that an attorney s failure to calculate when a Notice of Appeal is due can constitute excusable neglect. This is due in large part to the United States Supreme Court recognizing that it is a matter of equity as to what might be excusable neglect. Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993). In that bankruptcy case, the Supreme Court ruled that the determination [of what is excusable neglect ] is at bottom an equitable one, taking account of all relevant circumstances surrounding the party s omission, such as the danger of prejudice... the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Id. The Fifth Circuit Court of Appeals, which covers federal cases from Mississippi, Texas, and Louisiana, has adopted the Pioneer standard for extensions of time in appeal cases. See Stotter v. University of Texas at San Antonio, 508 F.3d 812, 820 (5th Cir. 2007). In that case, the 10

15 district court found that a party met established excusable neglect based on the fact that his counsel accidentally entered the incorrect year into her new computer-based calendar. Id. The Court determined that any notice of appeal was due on January 26, 2006, and noted that the party had filed a motion for an extension of time [o]n February 27, 2006 the day after the Notice was due. Id. Yet looking at the Pioneer standard, and in light of counsel s failure to enter to the correct year into the computer calendar, the Fifth Circuit determined that there was minimal delay and prejudice involved, and upheld the grant of more time. Id. The Fifth Circuit has recently decided a case similar to the one at hand, and found that the extension was warranted. Relying on Pioneer and Stotter, just last year that Court found excusable neglect when an attorney miscalculated the time to appeal as 60 days, rather than 30. U.S. ex rel. King v. University of Texas Health Science Center-Houston, 544 Fed.Appx. 490, (5th Cir. 2013). In this unpublished per curiam decision, a party filed her notice of appeal, along with a motion for extension of time pursuant to Federal Rule of Procedure 4(a)(5)... thirty-five days later after entry of judgment. Id. at 493. The case was brought under the False Claims Act, and the party s attorney believed that the United States was a party in interest, which would allow 60 days to file an appeal. Id. However, under recent Supreme Court case law, if the Government had not formally intervened, the rule was still that there was only 30 days. Id. The party also noted that [h]er attorneys had busy trial dockets.... Id. The Fifth Circuit noted that the Supreme Court did not create rigid rules forbidding extensions of time based on ignorance of the rules or an attorney s workload. Id. at 494 (citing to Pioneer, at ). The Court noted that the party in that case at hand [t]he delay here was only five days and did not prejudice the appellee. Id. 11

16 In the case at hand, Charles lawyer admitted to the trial court that he had a hectic week of trial before the due date for the Notice of Appeal. He also noted that he had misinterpreted Rule 4, apparently believing that his filing of the Motion to Stay had delayed or moved the time to file the Notice of Appeal. The lawyer had also pleaded with both the trial court and Mississippi Supreme Court that any error should not be imputed to his client, Charles, but rested with him alone: I m not here to point fingers at anyone but myself, the lawyer admitted, and he would take full responsibility for it. Even after his lawyer s admitted miscalculation and untimely filing, the Notice of Appeal was only four days late. This is exactly the type of excusable neglect the U.S. Supreme Court discussed in Pioneer, and that the Fifth Circuit addressed in Stotter and King. In last year s King, the Fifth Circuit reasoned that the delay of 5 days, busy trial dockets, and a lack of prejudice would allow an out of time appeal. The same result should be reached here. Charles lawyer misinterpreted the rule, had a busy trial docket, and admitted his mistake to the trial court and the Mississippi Supreme Court. Charles should not be punished for his lawyer s misinterpretation of the Rules. This meets the excusable neglect test as applied by the federal courts, which are persuasive in our interpretation of Rule 4(g). Several other federal circuit courts would also find excusable neglect in this situation. In a recent case from the Eighth Circuit, an attorney filed a notice of appeal late due to computer error; the lawyer used a calendaring application to calculate the date thirty days from the entry of final judgment, but that application produced an output that was one day later than the actual deadline. Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust v. Goding, 692 F.3d 888, 893 (8th Cir. 2012). Even though untimely, the filing was only one day late, [so] both the danger to the non-moving party and the length of delay were minimal. Id. There was also no indication that [the] tardy filing was in any way motivated by 12

17 bad faith. As a result, the Eighth Circuit affirmed the district court s approval of an extension of time to seek the untimely appeal. Id. at In addition to the Fifth and Eighth Circuits, the Eleventh Circuit has also allowed an out of time appeal where a party s counsel asserted that a legal assistant at his firm had miscalculated the thirty-day deadline. Locke v. SunTrust Bank, 484 F.3d 1343, 1346 (11th Cir. 2007). The federal appeals court noted that it previously has recognized that the phrase excusable neglect may include, when appropriate, late filings caused by inadvertence, mistake, or carelessness under certain circumstances. Id. Accordingly, it approved the district court s grant of more time to file the appeal. Id. at The Ninth Circuit has recognized that there is a notable reason to allow extensions for out of time appeals: the Rules are actually built to allow for failures just like the one in this case. See Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004). We are also mindful that Rule 4 itself provides for leniency in limited circumstances, the Ninth Circuit explained It could have been written more rigidly, allowing for no window of opportunity once the deadline was missed. Id. Yet the Federal Rule 4, just as with our state Rule, allow for flexibility. Id. In that case, just as with the Fifth Circuit s King case, a paralegal charged with calendaring filing deadlines misread the rule and advised Andrews's attorney that the notice was not due for 60 days, the time allowed when the government is a party to the case. Id. at 855. The court looked harshly on the error: Everyone involved should have been well aware that the government was not a party to the case, and any lawyer or paralegal should have been able to read the rule correctly. Id. Nonetheless, looking to the Supreme Court s guidance in Pioneer, the Ninth Circuit concluded that there should not be a rigid rule forbidding extensions simply because lawyers 13

18 or their staff failed a client. Id. at 859. Just as the Fifth, Eighth, and Eleventh Circuits have, the Ninth Circuit affirmed an extension of time to file an out-of-time Notice of Appeal. Id. at 860. Our Rules of Appellate Procedure were promulgated for a reason, and should be followed. Rule 4(g) is a rare valve to release pressure in a complex system of procedures and dates. Charles lawyer misinterpreted the Rules in the midst of a hectic trial week. He admitted this failure to the trial court and sought for more time to file a Notice of Appeal for Charles. At the end of it all, he was four days late. This constitutes excusable neglect. The lawyer s failure should not damage Charles or his appeal. The four days also does not prejudice the adverse party. Many federal courts have held that it can be excusable neglect when attorneys or their staff fail to properly calculate the deadline for filing a Notice of Appeal. That is what happened in this case. In accord with that wide body of law, the trial court should have determined that the lawyer s failure should not destroy Charles right to appeal. Therefore the order denying the Motion for Extension of Time to file the Notice of Appeal should be reversed, and this matter remanded, so that Charles can file his Notice. CO CLUSIO There are two paramount grounds why the order denying an extension of time to file the Notice of Appeal must be reversed. First, the trial court absolutely had jurisdiction to grant an extension of time to file the Notice of Appeal. MRAP 4(g) explicitly invests this power with trial courts, and trial courts alone. Second, an attorney s miscalculation of the deadline to file a Notice of Appeal constitutes excusable neglect warranting an out-of-time appeal. 14

19 As a result of these two paramount errors, the order must be REVERSED and this case REMANDED to allow Charles to file a Notice of Appeal. Respectfully submitted, this the 16th day of June, CERTIFICATE OF SERVICE s/ David eil McCarty David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: dnmlaw@gmail.com W: I, David McCarty, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Kathy Gillis, Clerk MISSISSIPPI SUPREME COURT Attorneys for Appellee Amanda Jane Proctor & Willard Benton Gregg WRIGHT LAW FIRM, P.A. And that I have further served a paper copy via first class U.S. Mail on the following: The Trial Court Honorable M. Ronald Doleac LAMAR COUNTY CHANCERY COURT P.O. Box 872 Hattiesburg, Miss On June 16, s/ David eil McCarty David Neil McCarty 15