IN THE SUPREME COURT OF MISSISSIPPI NO CT DAVID GLENN NUNNERY, ET AL. V. PAUL EDWARD NUNNERY, ET AL.

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1 E-Filed Document Feb :24: CT SCT Pages: 15 IN THE SUPREME COURT OF MISSISSIPPI NO CT DAVID GLENN NUNNERY, ET AL. V. PAUL EDWARD NUNNERY, ET AL. APPELLANTS APPELLEES ON GRANT OF CERTIORARI FROM THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SUPPLEMENTAL BRIEF ON CERTIORARI OF APPELLEES, PAUL EDWARD NUNNERY, ET AL. JOSEPH M. STINSON (MSB #7925) D. RYAN BRUHL (MSB #103988) ATTORNEYS AT LAW 1108 BEULAH AVENUE P. O. DRAWER 408 TYLERTOWN, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) joe@stinsonlaw.net ryan@stinsonlaw.net DENNIS L. HORN M.B HORN & PAYNE P. O. BOX 2754 MADISON, MS Telephone Fax hornpayne@gmail.com ATTORNEYS FOR APPELLEES

2 IN THE SUPREME COURT OF MISSISSIPPI NO CT DAVID GLEN NUNNERY, JENE` NUNNERY, RAY SPARKS AND BARBARA SPARKS V. PAUL EDWARD NUNNERY, GLENDA N. LORD, THE ESTATE OF JOSEPH L. NUNNERY AND ANNIE LOUISE YOUNG NUNNERY CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies at e following listed persons have an interest in e outcome of is case. These representations are made in order at e justices of e Supreme Court and/or e judges of e Court of Appeals may evaluate possible disqualification or recusal. David Glen Nunnery, Appellant. Jene` Nunnery, Appellant. Ray Sparks, Appellant. Barbara Sparks, Appellant. Paul Edward Nunnery, individually and as Co-Executor of e Estate of Joseph L. Nunnery, Appellee. Glenda N. Lord, individually and as Co-Executrix of e Estate of Joseph L. Nunnery, Appellee. Estate of Joseph L. Nunnery, Deceased, Appellee. i

3 Annie Louise Young Nunnery, Deceased, Appellee. Jeffrey A. Varas, Counsel for Appellants. J. Frederick Ahrend, Counsel for Appellants. David Neil McCarty, Counsel for Appellants Matew Kitchens, Counsel for Appellant, David Nunnery (in related criminal matter). Gary Honea, Former Counsel for Appellant, David Nunnery (in related criminal matter). Elbert Earl Haley, Jr., Former Counsel for Appellant, David Nunnery (in related criminal matter). Joseph M. Stinson, Counsel for Appellee. D. Ryan Bruhl, Counsel for Appellee. Dennis L. Horn, Counsel for Appellee.... So Certified, is e 8 day of February, s/ D. RYAN BRUHL OF COUNSEL FOR APPELLEES... ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES...i TABLE OF CONTENTS...iii TABLE OF AUTHORITIES... iv INTRODUCTION...1 STATEMENT OF THE ISSUES...1 STATEMENT OF THE CASE...1 STANDARD OF REVIEW... 2 SUMMARY OF THE ARGUMENT... 2 ARGUMENT Mississippi s Standard of Reivew Mississippi s Approach to Motions to Extend Time for Filing Appeal Federal Courts Approach to Motions to Extend Time for Filing Appeal Equity to All Parties...8 CONCLUSION...9 CERTIFICATE OF SERVICE...10 iii

5 TABLE OF AUTHORITIES State Cases: Estate of Carter v. Shackelford, et al, 912 So.2d 138, 143 (Miss 2005)... 2 Matter of Estate of Ware, 573 So. 2d 773 (Miss. 1990)... 3, 4, 5 Pinkston ex rel. Pinkston v. Mississippi Dept. Of Transp.,757 So.2d 1071 (Miss 2002)...3. Federal Cases: Active Glass Corp. v. Architectural and Ornamental Iron Workers Loc. Union 580, 899 F. Supp (S.D.N.Y. 1995)...6 In re Schultz, 254 B.R. 149 (Bankr. App. 6 Cir. 2000)...6 Loc. Union No , United Steelworkers of Am. v. Massachusetts, st 377 F. 3d 64, 72 (1 Cir. 2004)...3 Locke v. Suntrust Bank, 484 F. 3d 1343 (11 Cir. 2007)...7 Pincay v. Andrews, 389 F.3d 853 (9 Cir. 2004)... 7, 9 Pioneer Investment Services Co. v. Brunswick Associated Limited Partnership, et. al., 507 U.S. 380 (1993)... 4, 5, 8 San Juan City College, Inc. v. U.S., 75 Fed Cl. 540 (Fed. Cl. 2007)...7 Stotter v. Univ. of Texas at San Antonio, 508 F. 3d 812 (5 Cir. 2007)... 5 Treasurer, Trustees of Drury Industries, Inc. Heal Care Plan and Trust v. Goding, 692 F. 3d 888 (8 Cir. 2012)...8 U.S. ex rel. King v. University of Texas Heal Science Center-Houston, 544 Fed. Appx. 490 (5 Cir. 2013)...8 Rules: Rule 3, Mississippi Rules of Appellate Procedure...1, 8 Rule 4, Mississippi Rules of Appellate Procedure...1, 8 iv

6 INTRODUCTION Paul Edward Nunnery, Individually and as Co-Executor of e Will and Estate of Joseph L. Nunnery, Glenda N. Lord, Individually and as Co-Executrix of e Will and Estate of Joseph L. Nunnery, and e Estate of Joseph L. Nunnery, file is eir Supplemental Brief. During e pendency of is appeal, Annie Louise Young Nunnery departed is life, having died on January 24, STATEMENT OF THE ISSUES The Appellants claim at ey showed excusable neglect in Counsel Varas circumstances surrounding his broer s tragic accident and subsequent dea, and at consequently, an out of time appeal should have been granted. However, e Appellants continue to overlook or ignore e application of multiple principles of equity at courts consider when deciding to grant or deny an out of time appeal. A standard is established in our law and was applied and followed by e Chancery Court. The Chancery Court considered factors of equity and e potential impact on all e parties of applying each alternative available and did not abuse its discretion finding e neglect of e Appellants not excusable, and consequently, declined to extend e time for filing an appeal. STATEMENT OF THE CASE A final Order was entered in e trial court and e 30 days wiin which MRAP Rules 3 and 4 say e Appellants could file a notice of appeal passed wiout any action being taken on eir part. Then, 48 days after e entry of at order, 18 days after e 30 day deadline for appeal passed, e Appellants filed a motion for an extension of time to file a notice of appeal. The trial court held a hearing on e motion and, from e unique perspective of a trial judge who has seen and presided over a years-long lawsuit and a multi-days-long trial between warring family members, considered not only e unfortunate circumstances of Mr. Varas, one of e Appellants attorneys of record, but 1

7 also e impact at furer delay and prolonged litigation, which has been ongoing since 2010, would have on e oer parties, including two elderly Appellees, bo of whom have died in e now nearly 4 years since e trial court ruled in eir favor on e merits. The trial court was sympaetic wi e Appellants and Mr. Varas, but balanced at sympay wi e impact at extending e appeal time would have on e Appellees and found at e Appellants did not meet eir burden of showing at eir failure to file a notice of appeal wiin e time permitted by e rules was e result of excusable neglect. STANDARD OF REVIEW Any argument on an appeal from e decision of a Chancellor should begin wi e recognition of e appropriate standard of review. The Supreme Court s standard of review of an appeal from a Chancery Court is deferential. If substantial credible evidence supports e Chancellor s decision, e decision should be affirmed and is not to be reversed unless e Chancellor abused her discretion, was manifestly wrong or clearly erroneous, or applied e wrong legal standard. The Supreme Court will not undermine e Chancellor s auority by substituting its judgment for e Chancellor s. Estate of Carter v. Shackelford, et al, 912 So.2d 138, 143 (Miss 2005). SUMMARY OF THE ARGUMENT The rules give 30 days to appeal and allow an extension of at time when a trial court decides at e failure to timely file a notice of appeal is on account of excusable neglect. An equitable standard guides e courts in deciding wheer a missed deadline is because of excusable neglect. Their opinions indicate at e Mississippi Supreme Court and Court of Appeals show less leniency for missed appeal deadlines an do many federal courts. The trial court in is case measured e circumstances of all e parties, Appellants and Appellees, under not only e state 2

8 court decisions, but also under e factors of equity followed by e more lenient federal courts and reached a decision consistent wi equity at e appeal time should not be extended. That was a decision made wiin e sound discretion of e Chancellor and ere is no reason for e Supreme Court to overturn it. ARGUMENT Mississippi s Standard of Review - Mississippi Appellate Courts review a decision of e trial court using an abuse of discretion standard at recognizes at e trial court, having heard e entire case, and being most familiar wi e parties, counsel, and e effects of litigation on e parties, is in e best position to consider e factors and determine wheer an extension should be granted. Even if excusable neglect had been shown, e rules of procedure do not mandate an extension of time, but raer leave it to e trial court s discretion. Pinkston ex rel. Pinkston v. Mississippi Dept. Of Transp.,757 So.2d 1071, 1073 (Miss 2002). Federal cases cited by e Appellants all apply e same approach. Some, citing eir impression of a factor, even go so far as to clearly indicate at even if e lower court had reached e opposite result, from at reached,...it would not have abused its discretion... Loc. Union No , United Steelworkers of Am. v. st Massachusetts, 377 F. 3d 64, 72 (1 Cir. 2004) (The Court noting at if e District Court had denied e motion because e moving party was represented by multiple attorneys it would not have been an abuse of discretion.) In Matter of e Estate of Ware, is Court, reviewing a decision by e Chancery Court of Harrison County not to grant an out-of-time appeal, applied e abuse of discretion standard, finding e court had not abused its discretion when denying e motion. 573 So. 2d 773, 776 (Miss. 1990). Therefore, is Court should not overturn a decision of e Chancery Court, even if is Court may have reached a different result. 3

9 Mississippi s Approach to Rule 4(g) Motions to Extend Time for Filing Appeal - In e Appellees Brief to e Court of Appeals, a very detailed analysis of Mississippi law on e subject of e appeals process and e effects of noncompliance wi ose laws is provided. This Court has declared unequivocally at e mandatory 30-day rule will be strictly enforced. Matter of e Estate of Ware, 573 So. 2d 773, 775 (Miss. 1990). The Ware court stressed, Time prescriptions at pace e initiation and prosecution of litigation vary in elasticity. Some time lines are flexible; oers-- like Rule 4(g)--are unyielding. Under e facts of e case sub judice, is Court concludes at Rule 4(g) s time limit will remain strictly construed. Id. at 776. This Court does not have to look to federal case law in determining what acts or omissions merit excusable neglect, but can rely on its own already firmly established rulings. However, a review of federal case law on e subject will yield e same result. Federal Courts Approach to Motions to Extend Time for Filing Appeal - The excusable neglect factors cited by e Appellants come from e U.S. Supreme Court case, Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partn., 507 U.S. 380 (1993). In Pioneer, e court s formulation of factors for consideration surrounded Rule 9006(b)(1) which empowers a bankruptcy court to permit a late filing if e movant s failure to comply wi an earlier deadline was e result of excusable neglect. Id. at 383. The court adopted e following as factors or considerations when deciding if excusable neglect has been shown: 1. The danger of prejudice to e [nonmoving party]; 2. The leng of e delay and its potential impact on judicial proceedings; and 3. The reason for delay, including wheer it was wiin e reasonable control of e movant and wheer e movant acted in good fai. Id. at 395. Before e Pioneer court formulated e considerations, e court considered e spirit of Chapter 11 Bankruptcy(Chapter 11 providing for reorganization wi e aim of rehabilitating e 4

10 debtor and avoiding forfeitures versus a Chapter 9 liquidation), but noted at a party can be made to suffer e consequences of dismissal because of its attorney s failures. Id. at 395. After applying e factors to e facts as applied by e lower courts, e U. S. Supreme Court was not able to say at e district court abused its discretion. Id. at 398. Therefore, someone always suffers e consequences of is type of decision, and an approach based on factors of equity considers bo parties in e decision. The Appellants cite e Matter of Estate of Ware, in an effort to encourage e adoption of e equitable approach applied by federal courts when deciding wheer an out of time appeal should or should not be granted on e basis of excusable neglect. Id. at 775. They correctly note at e standard followed in e Fif Circuit, when considering excusable neglect, is one based on a set of equitable factors. Stotter v. Univ. of Texas at San Antonio, 508 F. 3d 812, 820 (5 Cir. 2007). Wi is, e Apellees have no quarrel. Having laid out e principles of Pioneer and e position taken by e Court in Ware, e Appellants once again have omitted to explain how e Chancery Court failed to apply e ose principles. They do not discuss how e trial court deviated from or wrongly applied principles of equity or failed to follow ose practices. They do not show us any single decision of e Court of Appeals or e Supreme Court of Mississippi in conflict wi e decision reached by e Chancery Court, and ey do not show one fact at supports any claim at e Chancellor abused her discretion. The Appellants do solely focus on one factor,...e reason for delay, including wheer it was wiin e reasonable control of e movant, and wheer e movant acted in good fai. Pioneer Inv. Services Co. V. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993). While e Appellants new counsel cites numerous federal cases where excusable neglect has been found and 5

11 champions e idea at Mississippi should follow federal courts applications of what merits excusable neglect, if followed, is Court would be doing noing more at making an exception for one lawyer, while ignoring e Court s previous decisions, converting e 30-day period for appeal into a 60-day one, a result not favored by is Court before and even inconsistent wi e full principles announced in e federal cases cited. Furer, what counsel for e Appellants does not express to e Court is at in each of e cases cited, e courts note and consider, not just one, but all e factors listed hereinabove. In most of e decisions cited on is point, e reviewing courts note two important points: 1. e remaining two factors were considered and eier found not to be contrary to granting an extension or had little to no consequence, and 2. at e reviewing court applied an abuse of discretion standard when reviewing e lower courts decision. In Active Glass Corp. v. Architectural and Ornamental Iron Workers Loc. Union 580, e attorney handling e case was diagnosed wi cancer and was hospitalized immediately. 899 F. Supp. 1228, 1230 (S.D.N.Y. 1995). While undergoing treatment, e attorney s secretary was advised by e trial court clerk at e order entered was not appealable. The court s analysis was factor by factor, weighing first, e prejudice to e nonmoving party, finding some; second, e leng of delay and its impact on judicial proceedings, finding is factor to favor an extension; and ird, e reason for delay, ultimately finding it to be controlling since his sickness and a trial court clerk caused his delay. Id. at The court in In re Schultz, recognized a difference in law office upheaval and serious illness of a spouse and e demands of being e primary caregiver which cannot be easily delegated to anoer person due to e attorney s wife being hospitalized and having serious illnesses requiring him to be away from work. 254 B.R. 149, 154 (Bankr. App. 6 Cir. 2000). Interestingly, when considering e lower courts consideration of e factors, e court noted at noing in e record 6

12 indicated at e movant or e attorney had a history or pattern of delay. Id. at 154. The record herein clearly indicates delay, Mr. Varas motion went unnoticed for hearing for over a year. The Appellants correctly note at e court in Locke v. Suntrust Bank, upheld an extension of time to file an out-of-time appeal on e basis of a paralegal s failure to correctly calender e expiration of e time to appeal. 484 F. 3d 1343, (11 Cir. 2007). Once again, e Appellants forget to mention at e court gave a orough analysis of all e factors including, e fact at e nonmoving party objected but provided no reason or evidence of any prejudice or effect e extension would have on em. Id. Consequently, e reviewing court decided e lower court did not abuse its discretion in granting e extension. Id. In Pincay v. Andrews, a decision of e district court granting an extension based on excusable neglect was affirmed by e court en banc. 389 F.3d 853 (9 Cir. 2004). This case also involved a missed deadline resulting from a paralegal s mistake. The court after considering e Pioneer decision and approaches taken by oer circuits, provides an analysis of why per se rules are inconsistent wi e principles of equity found in e Pioneer opinion. Id. at 859 The court stresses e importance of considering all e factors in every case no matter how strong one factor may be. Id. Not mentioned by e Appellants when citing points from Pincay is e importance e court placed on equitable determinations being made by e trial court. Id. Likewise, e remaining cases cited by e Appellants all follow e same pattern. They may allow or affirm e granting of an extension to file an appeal based on circumstances at fall under e factor dealing wi e reason for delay, but consistently, e courts have noted at eier e oer factors did not conflict wi granting e extension or e prejudice was minimum, and agree at an abuse of discretion standard is applicable when reviewing a decision by e trial court. In San Juan City College, Inc. v. U.S., e court took note of e lawyer s aggressive prosecution of e case 7

13 up until e events causing e missed filing. 75 Fed Cl. 540, 543 (Fed. Cl. 2007). In Treasurer, Trustees of Drury Industries, Inc. Heal Care Plan and Trust v. Goding, e court notes at e reason for delay is critical in e inquiry, but still does a full analysis of all e factors before deciding wheer e lower court abused its discretion. 692 F. 3d 888, 893 (8 Cir. 2012). Finally, an analysis of equitable factors is present in U.S. ex rel. King v. University of Texas Heal Science Center-Houston. 544 Fed. Appx. 490, (5 Cir. 2013) Throughout e Appellants argument ey solely focus on one factor,...e reason for delay, including wheer it was wiin e reasonable control of e movant, and wheer e movant acted in good fai. Pioneer Inv. Services Co. V. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993). An exception made based on one factor while not considering e remaining factors, e prejudice to oer parties and e effects on judicial proceedings, would be e creation of a per se rule. This type of ruling would be completely inconsistent wi every federal case cited by e Appellants, particularly, Pioneer and Pincay, and would not be equitable. Equity to All Parties - When e Appellants argue for e application of an equitable standard, ey really just want is Court to relieve em of e consequences of eir failure to follow and comply wi MRAP Rules 3 and 4, and transfer ose consequences to e Appellants. Such has never been a rule of equity. Equity itself requires a balancing of interests, a two way street of sorts, and while e events faced by Mr. Varas in his personal life are truly tragic, in e end, a ruleestablished deadline was missed, a notice of appeal was not timely filed, and ere are consequences for someone to bear - eier e Appellants who missed e deadline, or e Appellees, and e trial court recognized all at. The trial court knew and said at e Appellants Motion for New Trial had been filed nine days after e entry of e final judgment but at e Appellants did not bring it on for hearing in e 8

14 ensuing 15 mons. The court blamed e litigation and uncertainty created ereby for a lack of peace in e families involved, noting e age of two of e Appellees, bo of whom have since died. This litigation has been pending or under review by appellate courts for nearly six years. The underlying litigation involves e ownership of substantial real property and e use, possession and enjoyment of at property has been unsettled for at period of time. The effects of continued litigation and prejudice to e nonmoving party are bo great in is case. The trial court properly considered not only e misfortune of one of e attorneys for e Appellants, e only factor discussed by e Appellants, but also e potential impact e decision to be made would have on e oer parties and furer proceedings and made a decision wiin e discretion of a Chancellor. In e Supplemental Brief filed by e Appellants, ere is a focus on e occurrence of tragic events in e life of attorneys at prevent compliance wi e rules and argue at e excusable neglect standard should be lenient and flexible described as a...rare valve to release pressure... all based on Pincay v. Andrews, 389 F.3d 853 (9 Cir. 2004). They seem to say at, if is type of tragedy happens in a lawyer s life en excusable neglect should be found because equity requires it. This position: If circumstances experienced by e attorney in is case do not rise to e level of excusable neglect, en what does? does not consider any oer factor when determining excusable neglect, and at is not equity or e law. Therefore, e proposed approaches advocated by e Appellants are not supported by, but are instead refuted by, e cases cited in eir brief. CONCLUSION Principles of equity are rightfully considered in e granting or refusal of an out-of-time appeal, as applied by bo Mississippi and federal courts. The Appellants argument at circumstances relevant to one factor will, if shown, always amount to e finding of excusable neglect flies in e face of e established approach of showing excusable neglect and of equity. 9

15 Cases like is one should always be considered as is one was, by a trial court weighing all e factors affecting all parties as only a trial court familiar wi e case can do, realizing all e time at one side or e oer will bear e burden of e omission. It would not be appropriate or consistent wi any principle of equity to saddle one side wi e consequences of e oer side s failure wiout a orough consideration of ose consequences and a clear reason. Bo e trial court and e Court of Appeals adopted is approach, an approach consistent wi Mississippi and persuasive federal jurisprudence. Therefore, e decision of e Chancellor should be affirmed. Respectfully submitted is 8 day of February, Respectfully submitted, PAUL EDWARD NUNNERY, ET AL. BY: s/ D. RYAN BRUHL OF COUNSEL CERTIFICATE OF FILING AND SERVICE The undersigned certifies at, at e time hereinafter related, he filed and served electronically and/or by U. S. Mail, postage prepaid, e above and foregoing Supplemental Brief on e following and furer certifies at all persons required to be served have been served: Served Electronically: Hon.Dennis Horn Hon. J. Frederick Ahrend Hon. Jeffrey A. Varas Hon.David N. McCarty hornpayne@gmail.com fahrend@frascourtlaw.com varasj@bellsou.net dnmlaw@gmail.com Served by Mail: Hon. Debbra K. Halford, Chancellor THIS, e 8 day of February, s/ D. RYAN BRUHL OF COUNSEL 10