When Excusable Neglect Isn’t
August 8, 2016 § Leave a comment
We discussed here before the concept of excusable neglect and how it can be a trap for the unwary. You can read about it at this link.
In that case, Nunnery v. Nunnery, the COA upheld a chancellor’s decision that the concept of excusable neglect did not excuse an untimely appeal and other actions that could have kept the case viable, even in the face of some extreme, and emotional, facts.
Later, in early 2016, we noted here that the MSSC had granted cert.
Now the MSSC has spoken, and its decision in Nunnery v. Nunnery, handed down July 21, 2016, affirms the COA and the trial court in a 4-3-2 decision. The gist of the majority decision, written by Justice Coleman, is this:
¶15. An excusable-neglect determination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). The Pioneer Court then adopted the following four-part, excusable-neglect test: (1) “the danger of prejudice to the [non movant],” (2) “the length of the delay and its potential impact on judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, and” (4) “whether the movant acted in good faith.” Pioneer Inv. Serv. Co., 507 U.S. at 395.
The decision goes on to note the many cases in which the 4-prong Pioneer test has been applied in the federal courts, and concludes, ” … and we hold that it is an appropriate guide for our courts.”
The court went on to analyze the chancellor’s ruling and concluded that she had considered the four Pioneer factors, that her findings were supported by the evidence in the record, and that there was no abuse of discretion. Thus, affirmance.
The dissent did its own analysis of the record and reached a contrary result, essentially substituting its judgment for the trial judge’s.
One aspect of the case at the trial level was that there was a 15-month delay between the filing of a R59 motion and its disposal by the court. The delay was due to the fact that the defendants-movants never called it for hearing. The dissent blamed the plaintiffs, charging that they should have called it up themselves to mitigate the delay. The majority addressed that this way:
¶20. We pause before closing to address the dissent’s striking assertion that the fifteen month delay caused by the defendants’ failure to seek a ruling on their motion for a new trial should actually be weighed against the plaintiffs. (Dis. Op. at ¶ 37). The dissent would hold that the delay shows the plaintiffs were not prejudiced because, if they were being prejudiced, surely they would have sought a ruling on the motion themselves. Mississippi law and practice clearly put the onus on the movant to obtain a ruling on a pending motion. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984). We cannot effectively agree to penalize parties who had no reason to know they were responsible for calling up the opposing party’s motion and, that because they did not do so, will face the Court using against them a failure that belongs squarely at the feet of their opponents.
The cautionary tale here is that “Excusable neglect” can be a velvet trap: attractive yet fraught with peril. You mustn’t view it as the one-size-fits-all escape hatch whereby your local chancellor will save you from your oversights. On the contrary, when applied properly, it is an equitable analysis in which the court must weigh the prejudice to and interest of the opposing party, judicial economy and delay, the reasons for the delay, and the operation of good faith.