IN THE SUPREME COURT OF MISSISSIPPI NO CT DAVID GLENN NUNNERY, ET AL. V. ON APPEAL FROM THE CHANCERY COURT OF PIKE COUNTY, MISSISSIPPI

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1 E-Filed Document Jan :30: CT SCT Pages: 15 IN THE SUPREME COURT OF MISSISSIPPI NO CT DAVID GLENN NUNNERY, ET AL. V. PAUL EDWARD NUNNERY, ET AL. PETITIONERS RESPONDENTS ON APPEAL FROM THE CHANCERY COURT OF PIKE COUNTY, MISSISSIPPI RESPONSE TO PETITION FOR CERTIORARI JOSEPH M. STINSON (MSB #7925) D. RYAN BRUHL (MSB #103988) ATTORNEY AT LAW 1108 BEULAH AVENUE P. O. DRAWER 408 TYLERTOWN, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) DENNIS L. HORN M.B HORN & PAYNE P. O. BOX 2754 MADISON, MS Telephone Fax 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 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. David Glen Nunnery, Petitioner. Jene` Nunnery, Petitioner. Ray Sparks, Petitioner. Barbara Sparks, Petitioner. Paul Edward Nunnery, individually and as Co-Executor of the Estate of Joseph L. Nunnery, Respondent. Glenda N. Lord, individually and as Co-Executrix of the Estate of Joseph L. Nunnery, Respondent. i

3 Estate of Joseph L. Nunnery, Deceased, Respondent. Annie Louise Young Nunnery, Respondent. Jeffrey A. Varas, Counsel for Appellants/Petitioners. J. Frederick Ahrend, Counsel for Appellants/Petitioners. Matthew Kitchens, Counsel for Appellant/Petitioner, David Nunnery (in related criminal matter). Gary Honea, Former Counsel for Appellant/Petitioner, David Nunnery (in related criminal matter). Elbert Earl Haley, Jr., Former Counsel for Appellant/Petitioner, David Nunnery (in related criminal matter). Joseph M. Stinson, Counsel for Respondents. D. Ryan Bruhl, Counsel for Respondents. Dennis L. Horn, Counsel for Respondents.... th So Certified, this the 12 day of January, s/ JOSEPH M. STINSON JOSEPH M. STINSON, M.B OF COUNSEL FOR RESPONDENTS... 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...3 ARGUMENT MRAP Rule 17 Factors Mississippi s Standard of Review and the Court of Appeals Application of It Equity to All Parties The Gravity of a Decision of the Court of Appeals...8 CONCLUSION...9 CERTIFICATE OF SERVICE...10 iii

5 TABLE OF AUTHORITIES Page(s) State Cases Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166 (Miss. Ct. App. 1998)...7 Harris v. State, 704 So.2d 1286 (Miss. 1997)...8 Jackson v. State, 732 So.2d 187 (Miss. 1999)...8 Matter of Estate of Ware, 573 So. 2d 773 (Miss. Ct. App. 1990)...5, 7 Federal Cases th Pincay v. Andrews, 389 F.3d 853 (9 Cir. 2004)...7 Pioneer Investment Services Co. v. Brunswick Associated Limited Partnership, et. al., 507 U.S. 380 (1993)... 5, 7, 8 th Stotter v. Univ. of Texas at San Antonio, 508 F. 3d 812 (5 Cir. 2007)...5 State Statutes MISS. CODE ANN., 9-4-3(1) (1972)...8 Rules Rule 3, Mississippi Rules of Appellate Procedure...5 Rule 4, Mississippi Rules of Appellate Procedure...5 Rule 17, Mississippi Rules of Appellate Procedure...2, 3, 4, 8, 9 iv

6 INTRODUCTION Paul Edward Nunnery, Individually and as Co-Executor of the Will and Estate of Joseph L. Nunnery, Glenda N. Lord, Individually and as Co-Executrix of the Will and Estate of Joseph L. Nunnery, the Estate of Joseph L. Nunnery, and Annie Louise Young Nunnery file this response to the Petition for a Writ of Certiorari. STATEMENT OF THE ISSUES The issue is not, as the Petitioners claim, whether an equitable standard should be applied in determining excusable neglect. That standard is established in our law and was applied and followed by the trial court and the Court of Appeals. Rather, the question here is a different one: Should the Supreme Court exercise its discretion and review on writ of certiorari the decision made by the Court of Appeals that the trial court did not abuse its discretion when it considered all the factors and the potential impact on all the parties of applying the alternatives available, found the neglect of the Petitioners not excusable, and declined to extend their time for filing an appeal? STATEMENT OF THE CASE A final Order was entered in the trial court and the 30 days within which MRAP Rules 3 and 4 say the Petitioners could file a notice of appeal passed without any action being taken on their part. Then, 18 days after that deadline passed, the Petitioners filed a motion for an extension of time to file a notice of appeal. The trial court held a hearing on the motion and, from the 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 the unfortunate circumstances of one of the Petitioners attorneys of record, but also the impact that further delay and prolonged litigation would have on the other parties, including two elderly Respondents. The trial court was sympathetic with the 1

7 Petitioners and their counsel, but balanced that sympathy with the impact that extending the appeal time would have on the Respondents and found that the Petitioners did not meet their burden of showing that their failure to file a notice of appeal within the time permitted by the rules was the result of excusable neglect. The Court of Appeals acknowledged that the decision to grant or deny a motion for an extension of time is one for the sound discretion of the trial court and that, when an appellate court reviews a trial court s decision on such a motion, the proper standard of review is abuse of discretion. The Court of Appeals found there was no abuse of discretion and affirmed the decision of the trial court. STANDARD OF REVIEW MRAP Rule 17 sets the framework for potential review by the Supreme Court of a decision of the Court of Appeals. The rule first confirms that a decision of the Court of Appeals is a final decision that is not reviewable except on a writ of certiorari, and that such review is not a matter of right but of judicial discretion. Then, with the cautionary note that such review... will ordinarily be granted only for the purpose of resolving substantial questions of law of general significance..., the Rule provides: (a)... Review will ordinarily be limited to: (1) cases in which it appears that the Court of Appeals has rendered a decision which is in conflict with a prior decision of the Court of Appeals or published Supreme Court decision; (2) cases in which it appears that the Court of Appeals has not considered a controlling constitutional provision; (3) cases which should have been decided by the Supreme Court because: (i) the statute or these rules require decision by the Supreme Court, 2

8 or (ii) they involve fundamental issues of broad public importance requiring determination by the Supreme Court. Notwithstanding the presence of one or more of these factors, the Supreme Court may decline to grant a petition for certiorari for review of the decision of the Court of Appeals. The Court may, in the absence of these factors, grant a writ of certiorari. MRAP Rule 17. In the end, certiorari will or will not be granted in the discretion of the Supreme Court. However, the factors in Rule 17 provide guidance for the decision how that discretion should be exercised. SUMMARY OF THE ARGUMENT An equitable standard already exists in Mississippi law for determining whether the cause of a litigant s failure to timely file a notice of appeal was excusable neglect, and the Court of Appeals found that the trial Court applied that standard. Through the prism of the MRAP Rule 17 factors, the decision by the Court of Appeals does not conflict with prior decisions of the Court of Appeals or published decisions of the Supreme Court; the Court of Appeals did not fail to consider any controlling constitutional provision; this is not a case that should have been decided by the Supreme Court on account of any statute or the Rules of Appellate Procedure, and this case does not involve fundamental issues of broad public importance requiring determination by the Supreme Court. As evidenced by their respective decisions, the trial court and the Court of Appeals recognize that equity does not just look at the circumstances of, or protect, only one party, but considers the impact on, and protects all the parties. 3

9 The decisions of the trial court and the Court of Appeals are consistent with established Mississippi law, and there is no reason for the Supreme Court to exercise its discretion to review this case. ARGUMENT MRAP Rule 17 Factors While the Supreme Court s decision whether or not to grant a writ of certiorari is one of discretion, MRAP 17 provides factors for the Court to consider when deciding whether to exercise that discretion and grant certiorari. The Petitioners have not cited Rule 17 or shown any connection of this case to any Rule 17 factor. In one wild shot at the conclusion of the Introduction section of the Petition, they come close to the MRAP Rule 17(a)(1) factor when they say that the decision of the Court of Appeals is, in conflict with a prior Supreme Court decision or decisions, but they didn t prove the point or even mention it again. Mississippi s Standard of Review and the Court of Appeals Application of It It is not clear to the Respondents whether the Petitioners are arguing that Mississippi does not follow the approach of applying equitable factors in the determination of excusable neglect, or that the appellate review standard of abuse of discretion is not applicable when reviewing a trial court s decision to extend or decline to extend the time for appeal on the basis of excusable neglect. The facts do not bear out either claim. Mississippi has clear standards and, throughout the majority and concurring opinions, the Court of Appeals, cites and follows Mississippi Supreme Court and Court of Appeals decisions that provide clear guidance. The decision of the Court of Appeals should not be disturbed because it is based solidly on opinions of the Supreme Court. 4

10 The Petitioners cite the cases of Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partn., 507 U.S. 380 (1993) and Matter of Estate of Ware, 573 So. 2d 773 (Miss. 1990). They say that, in Ware, the Supreme Court adopted the equitable approach applied by federal courts when deciding whether an out-of-time appeal should or should not be granted on the basis of excusable neglect. Ware at 775. They correctly note that the standard followed in the Fifth Circuit, when considering excusable neglect, is one based on a set of factors based in equity. Stotter v. Univ. of Texas at San Antonio, 508 F. 3d 812, th 820 (5 Cir. 2007). With this, the Respondents have no quarrel. Having laid out the principles of Pioneer and the practices of Ware, the Petitioners leave us in suspense. They do not tell us how they claim the trial court deviated from or wrongly applied those principles or failed to follow those practices, or how the Court of Appeals failed to follow them. They do not show us any single decision of the Court of Appeals or the Supreme Court in conflict with the decision of the Court of Appeals, and they do not show one fact that supports any claim that the trial court abused its discretion - and abuse of discretion is the standard under which both the Mississippi state courts and the Fifth Circuit reviews lower court decisions of this type. Stotter at 820. Equity to All Parties When the Petitioners argue for the application of an equitable standard, they really mean that they want the Supreme Court to relieve them of the consequences of their failure to follow and comply with MRAP Rules 3 and 4, and transfer those consequences to the Respondents. Such has never been a rule of equity. Equity itself requires a balancing of interests, a two way street of sorts, and while the events faced by counsel for the Petitioners in his personal life are truly tragic, in the end, a rule-established deadline was missed, a notice of appeal was not timely filed, and there are consequences for 5

11 someone to bear - either the Petitioners who missed the deadline, or the Respondents who had no part in it. The trial court recognized all that, and the bench ruling shows the things considered in formulating the decision. There was an expression of extreme sympathy for counsel s family tragedy, but then, as the court was obligated to do, consideration was had of the potential consequences to all the parties of any action the court might take. From the unique position of having been the judge on this case from the beginning, the trial court knew and said in the bench opinion that this litigation has gone on for many years through many hearings and many trial days. The trial court knew and said that the Petitioner s Motion for New Trial had been filed nine days after the entry of the final judgment but that the Petitioners did not bring it on for hearing in the ensuing 15 months. The court blamed the litigation and uncertainty created thereby for a lack of peace in the families involved, noting the age of two of the Respondents (one of whom has since passed away). The trial court properly considered not only the misfortune of one of the attorneys for the Petitioners, but also the potential impact the decision to be made would have on the other parties. The Court of Appeals noticed and addressed the same facts as the trial court. Appearing in the majority opinion are the Court s notice of the passage of 15 months without the Petitioners calling up their motion for a new trial, sympathy for Petitioners counsel situation, the simplicity of the process of filing a notice of appeal, the unexplained delay in failing to file a notice of appeal in the time between the entry of final judgment and counsel s brother s accident, and the statement of Petitioner s counsel at the hearing that he was not paying attention to his law practice and did not feel like he needed to pay attention to it. The majority said that those statements are very telling, and reinforces this 6

12 Court s position announced in Ware, Filing a notice is a simple act, and a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion. Byrd v. Biloxi Reg l Med. Ctr., 722 So. 2d 166, 169 (Miss. Ct. App. 1998) quoting In re the Estate of Ware, 573 So. 2d 773, 775 (Miss. 1990). Throughout the Petition, the Petitioners focus on the occurrence of tragic events in the life of attorneys that prevent compliance with the rules and argue that the excusable neglect standard should be lenient and flexible described as a...rare valve to release th pressure... all based on the case of Pincay v. Andrews, 389 F.3d 853 (9 Cir. 2004). They seem to say that, if this type of tragedy happens in a lawyer s life then excusable neglect should be found because equity requires it. This argument/position: If circumstances experienced by the attorney in this case do not rise to the level of excusable neglect, then what does? does not take into account any other factor when making the finding of excusable neglect. Petition for Certiorari at 5. And that is not equity or the law. It is in direct conflict with Pincay and Pioneer. In Pincay, the court points out that any per se rule that does not fully consider and apply factors of equity similar to those in Pioneer is contrary to the ruling in Pioneer. Id. at 860. Importantly too, the Pincay court says that appellate courts should leave the weighing of equitable factors to the discretion of the trial courts and review their decisions under an abuse of discretion standard because Pioneer instructs courts to determine excusable neglect within the context of the particular case, a context with which the trial court is most familiar. Id. All this means that the proposed approaches that are advocated by the Petitioners are not supported by, but are instead refuted by, the cases cited in their Petition. The Court of Appeals decided that the trial court did not abuse its discretion and backed its decision up with cases decided in both the Supreme Court and the Court of 7

13 Appeals. The Petitioners mentioned one portion of the concurring opinion where there is discussion that personal issues arising in the life of an attorney may create a situation that should result in a finding of excusable neglect when an attorney fails to meet a deadline. But the Petitioners did not acknowledge the remainder of the concurring opinion that recognizes other equitable factors that should bear on the Court s decision as established by Pioneer. The concurring opinion says, the trial court correctly applied equitable factors in determining whether excusable neglect had been shown, noting the trial court was...quite sympathetic to the family situation thrust upon the Nunnery s counsel. But she balanced this circumstance with the impact her extending the time to appeal would have on the other side. The concurring opinion, like the trial court s bench ruling and the majority opinion, noted there were other delays by the Petitioners during the years long litigation. And, most importantly, those joining the concurring opinion concluded on the ultimate question that, considering all the factors, they cannot say that the trial court abused its discretion. The Gravity of a Decision of the Court of Appeals The decisions of the Court of Appeals are final decisions subject only to review by writ of certiorari. The Court of Appeals considers and disposes of cases assigned to it, not by way of a preliminary review but as a fully empowered appellate court whose decisions should be treated with the same authority and power as decisions of the Supreme Court. Harris v. State, 704 So.2d 1286, 1288 (Miss. 1997), abrogated on other grounds, Jackson v. State, 732 So.2d 187 (Miss. 1999). It has the statutory power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court. Miss. Code Ann (1) (1972). 8

14 Without a showing that the Court of Appeals decision is in conflict with prior decisions of the Court of Appeals or published Supreme Court decisions, this Court should not disturb the decision. MRAP Rule 17. CONCLUSION Principles of equity rightfully govern the granting of an out-of-time appeal. Mississippi and Federal Courts apply an approach based on the weighing of factors of equity in determining whether excusable neglect has been shown when a deadline is missed. The Petitioners argument that circumstances relevant to one factor will, if shown, always amount to the finding of excusable neglect flies in the face of the established approach of showing excusable neglect and of equity. Cases like this one should always be considered as this one was, by a trial court weighing all the factors affecting all parties as only a trial court familiar with the case can do, realizing all the time that one side or the other will bear the burden of the omission. It would not be appropriate or consistent with any principle of equity to saddle one side with the consequences of the other side s failure without a thorough consideration of those consequences and a clear reason. Both the trial court and the Court of Appeals adopted this approach, an approach consistent with Mississippi jurisprudence. The Chancellor applied principles of equity consistent with factors established in Mississippi law. The Court of Appeals correctly applied an abuse of discretion standard of review and found the trial court s decision to be consistent with Mississippi jurisprudence. Therefore, the Petition for Certiorari should be denied. th Respectfully submitted this 12 day of January,

15 Respectfully submitted, PAUL EDWARD NUNNERY, GLENDA N. LORD, ANNIE LOUISE YOUNG NUNNERY, AND PAUL EDWARD NUNNERY AND GLENDA N. LORD, CO- EXECUTOR-EXECUTRIX OF THE ESTATE OF JOSEPH L. NUNNERY, DECEASED BY: s/ JOSEPH M. STINSON JOSEPH M. STINSON OF COUNSEL JOSEPH M. STINSON M.B DENNIS L. HORN M.B D. RYAN BRUHL M.B HORN & PAYNE P. O. DRAWER 408 P. O. BOX 2754 TYLERTOWN, MS MADISON, MS Phone: Telephone Fax: Fax CERTIFICATE OF FILING AND SERVICE The undersigned certifies that on January 12, 2016, at the time hereinafter related, he filed and served electronically and/or by U. S. Mail, postage prepaid, the above and foregoing Response to Petition for Certiorari on the following and further certifies that all persons required to be served have been served: Served Electronically: Dennis Horn, Esq J. Frederick Ahrend, Esq. Jeffrey A. Varas, Esq. Horn and Payne Frascogna Courtney, PLLC Attorney at Law P. O. Box 2754 P. O. Box P. O. Box 886 Madison, MS Jackson, MS Hazlehurst, MS Served by Mail: Hon. Debbra K. Halford, Chancellor P. O. Box 575 Meadville, MS th THIS, the 12 day of January, s/ JOSEPH M. STINSON OF COUNSEL 10