IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2014-CA COA

Transcription

1 E-Filed Document Jan :06: CT SCT Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2014-CA COA DAVID GLEN NUNNERY, ET AL. v. V. PAULEDWARDNUNNERY,ET AL. APPELLAL"ITS APPELLAj'lTS APPELLEE ON APPEAL FROM THE CHANCERY COURT OF PIKE COUNTY, MISSISSIPPI PETITION FOR CERTIORARI JEFFREY A. V ARAS(MSB #6592) ATTORNEY AT LAW 119 Caldwell Drive Post Office Box 886 Hazlehurst, Mississippi (601)

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA DAVID GLEN NUNNERY, ET AL. APPELLANTS V. PAUL EDWARD NUNNERY, ET AL. APPELLEE 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. Pike County Chancery Court Judge 1. Hon. Debbie Halford P. 0. Box 575 Meadville, MS For the Appellant: 2. Mr. and Mrs. David Glen Nunnery Appellants. 3. Jeffrey A. Varas, Attorney at Appellant. 119 Caldwell Drive P. 0. Box 886 Hazlehurst, MS J. Frederick Ahrend, Esq. Frascogna Courtney, PLLC P.O.Box23126 Jackson, MS For the Appellees: 5. Joseph M. Stinson, Esq. Attorney at Law P. 0. Drawer4Q8 Tylertown, MS i-

3 6. Dennis Horn, Esq. Horn&Payne P. 0. Box 2754 Madison, MS Respectfully submitted this 5th day of Januaiy, s!jeffrey A. Varas JEFFREY A. VARAS (MSB #6592) Attorney for Appellants -ii-

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... -i- TABLE OF CONTENTS... -iii- TABLE OF AUTHORITIES... -iv- INTRODUCTION ISSUE PRESENTED FOR REVIEW STATEMENT OF THE CASE REASON FOR GRANTING REVIEW THIS COURT SHOULD RULE THAT AN EQUITABLE STANDARD IS TO BE APPLIED AS THE STANDARD IN THE STATE OF MISSISSIPPI IN A DETERMINATION OF AN ATTORNEY'S EXCUSABLE NEGLECT WHEN FILING FOR AN OUT OF TIME APPEAL. CONCLUSION APPENDICES: 1. Judgment of the Court of Appeals 2. Appellants' Motion for Rehearing CERTIFICATE OF SERVICE iii-

5 TABLE OF AUTHORITIES CASE LAW: United States Supreme Court: Pioneer Investment Service Company. v. Brunswick Associated Limited Partnership, 507 U.S. 380, 395 (1993)... 3, 4, 5 Federal Court: Pincay v. Andrews, 389 F.3d 853, 859 (9'h Cir. 2004)... 3 Stotler v. University of Texas at San Antonio, 508 F3d 812, 820 (5 1 h Cir. 2007)... 5 State Court: In Re: Estate of Ware, 573 So.2d 773, 774, 775 (Miss. 1990)... 3, 4, 5 RULES: Mississippi Rule of Appellate Procedure 4(g)... 2, 3, 4 -iv-

6 INTRODUCTION This is an appeal fi'om the Pike County Chancellor's Order dated January 27,2014, denying the Appellants' Motion for Extension of Time to File Notice of Appeal. The Appellants did not file a notice of appeal within thirty (30) days after the entiy of the trial court's Order denying the Appellants' Motion for anew TriaL The undersigned asserts that prior to the expiration of the thirty (30) days in which to file the notice of appeal, a family emergency arose creating circumstances beyond the undersigned's control which prevented him from timely filing the notice of appeal. The Appellants requested an extension of time on the grounds of excusable neglect. The trial COUlt had a hearing and on Janumy 27, 2014, entered an order denying the Appellant's motion for extension of time. Appellant filed this appeal and the Court of Appeals affinned the Chancellor's decision and a Motion for rehearing was filed and denied. This Petition for Writ ofceltiorari seeks review of the luling on the basis that the decision rendered by the COUlt of Appeals is in conflict with a prior Supreme COUlt decision or decisions. ISSUES PRESENTED FOR REVIEW The Appellants seek a luling that an equitable standard is to be applied as the standard in the State of Mississippi in making a determination as to an attorney's excusable neglect when filing for an out of time appeal. STATEMENT OF THE CASE The underlying case involves a controversy over the ownership of land located in Pike County, Mississippi, between Joseph Nunnety, Paul Edward NunnelY and Glenda Lord, and David and Jene Nunnery. Hearings were held on September 28 and 29, 2011, December 13,2011, and March 22 and 23, On June 19,2012, the ChancelY Court issued a 26-page Findings of Fact -1-

7 and Conclusions of Law finding against Appellants David Glenn Nunne1y and Jene Nunnery. On June 29, 2012, the undersigned, who was not involved in the trial of this case, filed a Motion for New Trial, to Alter or Amend Judgment and to Stay Proceedings. No responsive pleading was filed by Appellee. The Chancellor denied the Appellant's Motion for New Trial. The deadline for filing the Notice of Appeal was October 30, Prior to the running of the thirty (30) days to file the appeal, on October 22, 2013, the undersigned was notified that his brother had been in a serious car wreck and was in a comma at the Greenville, South Carolina Hospital Intensive Care Unit. The undersigned spent the next three weeks traveling to Greenville, South Carolina, spending extended periods of time by his brother's hospital bed, and dealing with end-of-life medical, financial and emotional decisions. On November 9, 2013, the family consented to undersigned's brother being disconnected from life supp01i. He died and his funeral was held on November 16, On November 18, 2013, the undersigned forwarded to the Clerk the Motion for Extension of Time to File Notice of Appeal pursuant to M.R.A.P. 4(g) requesting time due to excusable neglect. On Januaiy 27, 2014, the Court denied the Appellant's Motion for Extension of Time to File Notice of Appeal for not meeting the burden of showing that the failure to file the notice within the time permitted by Rule 4 was the result of excusable neglect. But for the traumatic events in the undersigned's life, an appeal would have been filed within the original time allowed. An appeal was taken and on July 21, 2015, the Comi of Appeals affomed the Chancellor by not finding an abuse of discretion in the Chancellor's decision. On July 31, 2015, a Motion for Rehearing was filed and subsequently denied. The undersigned asserts that the Cami should define the standard for -2-

8 dete1mining excusable neglect as an equitable standard and applying this standard, grant the Appellants their out of time appeal. REASON FOR GRANTING REVIEW THIS COURT SHOULD RULE THAT AN EQUITABLE STANDARD IS TO BE APPLIED AS THE STANDARD IN THE STATE OF MISSISSIPPI IN A DETERMINATION OF AN ATTORNEY'S EXCUSABLE NEGLECT WHEN FILING FOR AN OUT OF TIME APPEAL. The Petition for Certiorari should be granted in that the lower Court applied a draconian standard that is contrmy to the intent of Mississippi Rule of Appellate Procedure 4(g) providing for excusable neglect. There are life and death circumstances in a lawyer's life which will impact his or her practice. The Court should grant certiorari so that the Court can set in place, once and for all, that an "equitable standard" is to be used to dete1mine excusable neglect. A review under "abuse of discretion" should not apply in affinning the lower court's decision. The case ofln Re: Estate of Ware, 573 So.2d 773, 774, 775 (Miss. 1990) cited in the Court of Appeals' opinion states that the cou1i should look to the standard(s) of the Fifth Circuit Court of Appeals and as set out in Pioneer Investment Service Company. v. Brunswick Associated Limited Pminership, 507 U.S. 380, 395 (1993). The Mississippi case direct us to the Federal Court's equitable standard approach to a review of what is excusable neglect. The Ninth Circuit has recognized that there is a notable reason to allow extensions of 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 FJd 853, 859 (9'h 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. Our Rules of Appellate -3-

9 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 deadlines. The Comment to Rule 4 makes clear that we patterned our extension of time rule after the Federal Rules of Appellate Procedure. See Comment, M.R.A.P. 4(g) ("rule 4(g) is based on Fed. R. App. P. 4(a)(5)"); see also, In Re Estate of Ware, 573 So.2d at 775 (noting that our Rule is based on its Federal counterpmi). As a result, our Supreme Cami 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). In Re Estate of Ware, 573 So.2d at 775. In Re Estate of Ware, 573 So.2d at 775, directs us to the Federal Comis' treatment of requests for out-of-time appeals which use an approach based on equity, and which is an approach that gives the Cami the authority to co1tect injustices that will have been born out of an unforeseen life and death event in a lawyer's life. It is impo1iant then to dete1mine how cases like this one have been treated in the federal comis. As pointed out by Justice Maxwell in the Court of Appeals Final Judgment, "While the Mississippi Supreme Cami has not addressed whether the illness of a pmiicipating lawyer's family member could lead to 'excusable neglect,' other jurisdictions have." He goes on to cite cases with similar fact patterns to this case, which, under the federal approach, should have resulted in granting on an out of time appeal on the grounds of excusable neglect. The United States Supreme Cami recognized that it is a matter of equity as to what might be "excusable neglect." Pioneer Investment Service Company. v. Brunswick Associated Limited Pminership, 507 U.S. 380, 395 (1993). The Supreme Court ruled "that the dete1mination [of what is 'excusable neglect'] is at bottom an equitable one, taking account of all relevant circumstances surrounding the pmiy's omission," such as "the danger of prejudice... the length of the delay and -4-

10 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 has adopted the Pioneer standard for extensions of time in appeal cases. See Stotler v. University of Texas at San Antonio, 508 F3d 812, 820 (S'h Cir. 2007) and as this State has ruled, and as referenced in In Re Estate of Ware, 573 So.2d at 775, this should be the applicable standard used in determining this case and all cases in the State of Mississippi on the issue of excusable neglect. CONCLUSION Appellants asse1t that the CoUJt of Appeals erred in its application of the standard to be used in determining excusable neglect. The equities of the situation should have been weighed. In cases involving excusable neglect, the equitable standard(s) refened to herein should be controlling Extraordinary personal circumstances for an attorney will sometimes arise and when the circumstances arise, the equities of the situation should control whether the clients rights should be forfeit. Fallowing the equitable standard, Appellants should have been allowed to file an out of time appeal. If circumstances such as experienced by the attorney in this case do not rise to the level of excusable neglect, then what does? What standard should be applied? For the reasons set out herein this case should be granted certiorari for this Comt to define the standard for excusable neglect as advocated herein and grant the Appellants an out of time appeal. Respectfully submitted, this the 5th day of Januaiy, s/je[frey A. Varas JEFFREY A. VARAS (MSB #6592) Allorney for Appellants -5-

11 CERTIFICATE OF SERVICE I, Jeffrey A. Varas, certify that I have this day served United States Mail, postage prepaid, a true and c01tect copy of the above and foregoing document on the following: Hon. Debbra K. Halford Pike County Chancery Judge P. 0. Box 575 Meadville, MS J. Frederick Ahrend, Esq. Frascogna Courtney, PLLC P. 0. Box Jackson, MS Joseph M. Stinson, Esq. Attorney at Law P. 0. Drawer408 Tylertown, MS Dennis Horn, Esq. Horn&Payne P. 0. Box 2754 Madison, MS THIS, the 5th day of January, s/jeffrey A. Varas JEFFREY A. VARAS (MSB #6592) Attorney for Appellant -6-