Nunnery v. Nunnery

• Decision Date: 21 July 2016
• Docket Number: No. 2014–CT–00260–SCT.,2014–CT–00260–SCT.
• Parties: David Glen NUNNERY and Jené Nunnery v. Paul Edward NUNNERY and Glenda Nunnery Lord, as Co–Executor–Executrix of the Will and Estate of Joseph L. Nunnery, Deceased and Annie Louise Young Nunnery.
• Court: Mississippi Supreme Court

195 So.3d 747

David Glen NUNNERY and Jené Nunnery

v.Paul Edward NUNNERY and Glenda Nunnery Lord, as Co–Executor–Executrix of the Will and Estate of Joseph L. Nunnery, Deceased and Annie Louise Young Nunnery.

No. 2014–CT–00260–SCT.

Supreme Court of Mississippi.

July 21, 2016.

Jeffrey A. Varas, Hazlehurst, David Neil McCarty, attorneys for appellants.

Joseph M. Stinson, Tylertown, Dennis L. Horn, Madison, David Ryan Bruhl, attorneys for appellees.

EN BANC.

COLEMAN

, Justice, for the Court:

¶ 1. The instant case presents a difficult factual situation and outcome. In the wake of an attorney's family tragedy, the defendants missed their deadline for filing their notice of appeal. The chancellor denied the defendants' request to extend the time to file the notice of appeal. We discern no abuse of discretion by the chancellor and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Originating in the Chancery Court of Pike County, the underlying case involves a land dispute among family members. After several years of litigation, the chancellor rendered a final judgment on June 20, 2012. David and Jené Nunnery then retained Attorney Jeffrey A. Varas, who promptly filed a motion for new trial. On October 1, 2013—fifteen months after the motion was filed—the chancellor entered an order denying the motion.

¶ 3. On October 22, 2013, Varas learned that his brother had been in a serious car accident and was in a coma in the intensive care unit (“ICU”) at a Greenville, South Carolina, hospital. For the next four weeks, Varas traveled back and forth from Mississippi to South Carolina to be with his family and to deal with what Varas described as “end-of-life medical, financial and emotional decisions” concerning his brother's condition.

¶ 4. Varas is a solo practitioner whose legal secretary is his wife, so when the family tragedy struck, Varas was unable to delegate his work responsibilities to anyone else. Consequently, he missed filing the notice of appeal in the instant case by the October 31, 2013, deadline.

¶ 5. Varas and his family made the decision to remove his brother from life support on November 9, 2013. His brother soon passed away and a funeral was held on November 16, 2013.

¶ 6. After his brother's funeral, Varas returned to work and, realizing he had missed the deadline to file the notice of appeal, filed a motion on behalf of his clients for an extension of time to file a notice of appeal. Within this motion, Varas argued as follows:

During the time for appeal, a close family member of the undersigned attorney was involved in a serious car wreck in South Carolina, was in a comma [sic ] in intensive care, underwent surgical procedures, and was placed on life support. These unfortunate events extended for a period of four (4) weeks requiring the undersigned attorney's regular attendance at the Greenville, South Carolina hospital. On November 9, 2013, the family removed life support and on November 16[, 2013] the funeral was held.

The good-cause excusable neglect for the requested extension is based upon the above stated circumstances which kept the undersigned counsel out of the office for extended periods of time during the past four weeks. The undersigned is a sole [sic ] practitioner with his wife as secretary and who traveled with the undersigned. Such excusable neglect was the result of unforeseen circumstances beyond his control and which interfered with the timely filing of a notice of appeal.

¶ 7. At the hearing on Varas's motion, Varas explained that “everything went to heck in a hand basket during that time, Judge,” and “I was in a semi-state of shock.” Varas went on to admit “I was not paying attention, nor did I feel like I needed to pay attention to the demands of the law practice during that time.” Varas further characterized the situation as “like being in the twilight zone to be in the intensive care unit like that for that number of weeks.” Varas additionally described how during this time he “became the patriarch [of his family] and ... had to make the decision whether to let [his] brother pass away or not.”

¶ 8. Paul Edward Nunnery and Glenda Nunnery Lord (“Paul and Glenda”) opposed the motion and argued that the circumstances surrounding Varas's brother's accident, while terrible, did not rise to the level of “excusable neglect.” At the close of the hearing, the chancellor ruled from the bench that she was going to deny Varas's motion. In explaining her decision to deny the motion, the chancellor reasoned as follows:

... the Court is indeed sympathetic to Mr. Varas and his personal situation. Likewise, the Court is indeed sympathetic to his client who is involved in a very distasteful, contentious family litigation which has prolonged through this Court for several years.

And having stated that sympathy for both counsel and his client, the Court must go forward to relate that there are other parties' interest to be considered.

The Court takes note that so long as litigation is pending it is a chief detractor from the sanity, the peace that a family should be entitled to.

The plaintiffs in this case, which this Court has tried, were other family members of the proposed appellant. Two of which were his extremely elderly parents.

This Court went to great lengths to allow the litigants to present their cases. There were numerous motions, hearings, and a very extended trial, after which the Court diligently undertook to render a very detailed ruling, and that ruling was entered by the Court on June the 20th of 2012....

And whereas the Court has the most extreme sympathy for counsel and for his personal life situation which occurred in the waning days that this case could have been appealed to the Supreme Court, this Court does not find, considering all things, that this is an appropriate case for extending the time for leave to appeal the case.

¶ 9. Following this hearing, the chancellor entered an order on January 30, 2014, reflecting her ruling from the bench. In that order, the chancellor specifically found:

The Defendants have not met their burden of showing that their failure to file a notice of appeal within the time permitted by Rule 4 of the Mississippi Rules of Appellate Procedure

was the result of excusable neglect.

¶ 10. Varas appealed the chancellor's order and the Court of Appeals affirmed with sharp division as to the reasoning. Nunnery v. Nunnery, 195 So.3d 809, 2015 WL 4485648 (Miss.Ct.App. July 21, 2015)

. Presiding Judge Irving, joined by three judges, determined that David and Jené had failed to demonstrate excusable neglect. Id. at 813–14, 2015 WL 4485648 at *4. Judge Maxwell, joined by three judges, concurred in part and result with the majority but reasoned that, while David and Jené had met their burden in showing excusable neglect, he could not conclude that the chancellor had abused her discretion in denying the motion because Varas's “circumstances were outweighed by the prejudice to the other side that would have arisen if the requested extension had been granted.”

¶ 11. We granted David and Jené's petition for a writ of certiorari to address whether the chancellor erred in finding that Varas had failed to show “excusable neglect,” and whether, as a result, the chancellor erred in denying their motion for an extension of time to file their notice of appeal. We affirm.

STANDARD OF REVIEW

¶ 12. We review excusable-neglect determinations from our trial courts with a bifurcated standard. The Court has set forth the applicable standard of review as follows:

The Court applies an abuse of discretion standard to a trial court's findings of fact concerning the existence or lack of good cause or excusable neglect. Long v. Mem'l Hosp. at Gulfport, 969 So.2d 35, 38 (¶ 5) (Miss.2007)

. We will reverse the trial court's factual determination only when it is not supported by substantial evidence.

Id. 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.

Clark v. Knesal, 113 So.3d 531, 539 (¶ 28) (Miss.2013)

(emphasis added). We have elsewhere described the standard of review:

This Court leaves to the discretion of the trial court the finding of fact on the existence of good cause or excusable neglect for delay in serving process under Rule 4(h)

. Where such discretion is abused or is not supported by substantial evidence, this court will reverse. However, where the trial court's judgment involves the interpretation of legal principles, this court will conduct a de novo, or plenary, review of its interpretation, and reverse where it finds the trial court in error. Bennett v. McCaffrey, 937 So.2d 11, 14 (Miss.2006). See also

Montgomery v. SmithKline Beecham, 910 So.2d 541, 544–45 (Miss.2005) ; Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002).

Long v. Mem'l Hosp. at Gulfport, 969 So.2d 35, 38 (¶ 5) (Miss.2007)

(emphasis added). Two potentially applicable standards of review exist—abuse of discretion and plenary. When the trial court's decision rests on “precepts of law,” the standard is plenary. Bennett v. McCaffrey, 937 So.2d 11, 14 (¶ 8) (Miss.2006). On the other hand, when—as is the case today—the trial judge's decision rests upon an examination of facts, we review for abuse of discretion and to ensure the decision is supported by substantial evidence. Id. “Which standard to apply is a decision to be made on an ad hoc basis.” Id. (citing Rains v. Gardner, 731 So.2d 1192, 1198 (Miss.1999) ). The dissent's insistence that what “constitutes ‘excusable neglect’ is a question of law, which we review de novo, ” (Dis. Op. at ¶ 24), is an oversimplification and not accurate.

¶ 13. Black's Law Dictionary defines “abuse of discretion” as “An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.” Abuse of Discretion, Black's Law Dictionary (10th ed.2014). The reviewing court should not reverse a discretionary finding by the...