Extending the Time to File an Out-of-Time Appeal

August 1, 2018 § 1 Comment

Ordinarily, one must file an appeal to the MSSC from a final judgment within 30 days of the date of entry of that judgment. MRAP 4(g), however, allows the trial judge to extend the time within which to appeal.

After the State of Mississippi had obtained an injunction against him for selling watered-down gasoline at his convenience store, Ali Almasri contested the action in chancery court proceedings. The chancellor entered a permanent injunction on November 23, 2016. On January 17, 2017, Almasri filed a motion to extend the time to appeal stating that he had been unable to “complete a personal analysis of his business” within the 30-day appeal time. On February 2, 2017, the chancellor signed the order extending the appeal time to February 6, 2017. Almasri filed his notice of appeal on January 30, 2017.

On appeal, the State argued that Almasri had failed to demonstrate excusable neglect that would justify extension of the appeal time after the time for appeal had elapsed.

In Almasri v. Hyde-Smith, decided June 12, 2018, the COA agreed and dismissed the appeal. Judge Greenlee’s opinion for a unanimous court explained:

¶13. Our appellate procedural rules require that a notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). Should a party need additional time to file a notice of appeal, the trial court may grant an extension under Rule 4(g), which provides:

The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. (Emphasis added).

¶14. In the instant case, the chancery court entered the judgment appealed from on November 23, 2016. The thirty-day appeal period therefore ended on December 23, 2016. Almasri filed his motion to file an out-of-time appeal on January 17, 2017, fifty-five days after the judgment was entered. Therefore, in order to receive additional time to file his notice of appeal, Almasri had the burden of showing that his failure to file a timely notice was a result of “excusable neglect.” Id.; Schmitt v. Capers (In re Estate of Ware), 573 So. 2d 773, 775 (Miss. 1990).

¶15. We review a trial court’s excusable-neglect determination with a bifurcated standard. Nunnery v. Nunnery, 195 So. 3d 747, 751 (¶12) (Miss. 2016). To the extent that the trial court’s excusable-neglect determination involves the determination of legal principles, we will conduct a de novo review. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (¶5) (Miss. 2007). “[W]hen . . . 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.” Nunnery, 195 So. 3d at 751 (¶12). “Which standard to apply is a decision to be made on an ad hoc basis.” Id. (citing Bennett v. McCaffrey, 937 So. 2d 11, 14 (¶8) (Miss. 2006)).

¶16. “An excusable-neglect determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 752 (¶15) (internal quotation mark omitted). The Mississippi Supreme Court has adopted the following four-part test for excusable-neglect: “(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.” Id. (internal quotation marks omitted) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993)).

¶17. “[E]xcusable neglect is a very strict standard.” Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002) (internal quotation mark omitted). “[S]imple inadvertence or mistake of counsel or ignorance of the rules usually does not” constitute excusable neglect. Stutts v. Miller, 37 So. 3d 1, 4 (¶9) (Miss. 2010); Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (¶11) (Miss. 2002). “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 (¶13) (Miss. Ct. App. 1998).

¶18. In his motion for an extension of time, Almasri stated that “his decision [to appeal] was based upon his own personal business analysis that was not completed until after the [thirty][-]day [filing] period . . . had expired.” Further, he argued that “he at all times acted in good faith” and “his considered decision should amount to good cause . . . to grant his requested extension.” Again, a motion for an extension filed after expiration of the thirty-day filing period requires a showing of excusable neglect, rather than good cause. In re Estate of Ware, 573 So. 2d at 775.

¶19. From the record, it is unclear whether the chancellor granted Almasri’s motion based on good cause or excusable neglect. However, even assuming the chancellor used the correct standard in making his decision, we find that Almasri did not demonstrate excusable neglect. Almasri knew the entry date of the final judgment against him, and there is no assertion that he was unaware of his deadline to file a notice of appeal. Further, Almasri offers no evidence of why he was unable to complete his business analysis within the thirty-day period following final judgment or why such would be excusable neglect. We thus find Almasri’s reason for delay was within his reasonable control. And although Almasri may have acted in good faith, “[e]quity aids the vigilant and not those who slumber on their rights.” In re Estate of Winding, 783 So. 2d 707, 711 (¶15) (Miss. 2001).

¶20. Under Rule 4(g), the chancellor’s discretion to grant Almasri’s motion for an extension was limited; he only had authority to grant the motion upon a showing of excusable neglect. Almasri made no such showing to the trial court. Therefore, we hold that the chancellor abused his discretion in granting Almasri’s motion to extend the time in which to file a notice of appeal.

¶21. This appeal is dismissed for lack of jurisdiction.

I am willing to bet that, had the chancellor said something like, “This isn’t enough; you have to make a record on the elements of excusable neglect,” he would have been accused of nitpicking and met with a whining plea just to sign the order and get it over with. Sometimes, especially when the judge has many other things to tend to, it’s easier for the judge just to shrug his shoulders and say, “Okay, I’ll do it your way.”

The Excusable Neglect Trap

July 30, 2015 § 2 Comments

I think it’s fair to say that it’s unwise for an attorney to place much reliance on the concept of excusable neglect to extract himself or herself from the trouble one encounters due to failure to act.

MRAP 4 provides that notice of an appeal must be filed within thirty days of entry of the order or judgment appealed from. The trial judge, however, may extend that time, even ex parte, for good cause if the motion is filed within the 30-day time limit. MRAP 4(a) also provides that “Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall only be granted upon a showing of excusable neglect.” [Emphasis added]

That rule came into play in a recent COA case.

An emotional family land dispute that had taken years to litigate finally resulted in a judgment against David and Jené Nunnery on June 20, 2012. Their attorney at trial withdrew after the trial ended, but before entry of the judgment. A replacement attorney filed a R59 motion on June 29, 2012, but did not set it for hearing. More than a year later, the chancery clerk brought it to the attention of the chancellor that the motion was pending and unresolved, and the chancellor overruled the motion sua sponte by order entered October 1, 2013. On November 9, 2013, the Nunnerys’ attorney filed a motion to extend the time to appeal. His motion spelled out his rationale:

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 attorney explained at hearing that the relative was his brother, and he was required to spend many hours at the young man’s bedside and in counselling family members about end-of-life decisions.

In overruling the motion, the chancellor noted that the brother’s accident happened when there were still eight days remaining within which to file an appeal. She found it more significant that the R59 motion had never been prosecuted, and that the failure of the Nunnerys to move forward with their post-trial motion and appeal had already unduly delayed the finality of the judgment, and further delay would only prejudice the prevailing parties.

In Estate of Nunnery: Nunnery v. Nunnery, handed down by the COA July 21, 2015, the COA affirmed, finding that the chancellor did not abuse her discretion in denying the request for the extension. The majority opinion emphasized that the attorney could have filed the notice of appeal in the 22 days that had elapsed before the accident. Judge Maxwell’s specially concurring opinion made the valid point that the attorney may have had good reason for not filing the notice within the 22 days; it may have been that he could not get authorization from his clients, or maybe he had not yet been paid to file the appeal. Judge Maxwell pointed out that an appeal filed on the 30th day is as legitimate as one filed earlier. He would have relied more on the prejudice to the opposing party that, as he put it, trumped the unfortunate circumstances that prompted the motion.

As an aside, what should you do if the deadline is about to expire and you still have no retainer and no clear instructions from your client? One possibility is to ask the court for an extension within the 30-day window, which will likely be easily granted. Another is to file a notice of appeal without your client’s blessing. You will have to front the filing fee, but you will have bought some more time. It’s a strategy that can backfire, though, because your client can argue that you are now in the case to the end, paid or not. I did that once for a client who was having trouble gathering the money to cover court and transcription costs and attorney fees. It turned out okay, though, when the client did retain me shortly thereafter.

The Nunnery case seems like a harsh outcome, but the concept of excusable neglect is not all about the lawyer claiming it. It’s also about the others who will be affected by the court’s ruling. A lawyer asked me to “be fair” to his client in a case recently, and I assured him that I would, but that I also had to be fair to the other side at the same time. Sometimes the result of being fair can cut like a knife.

I call the concept of excusable neglect a “trap,” because it can lull you into a false sense of security that if you don’t tend to your business the court will rescue you. It should go without saying that asking the court to excuse your neglect should only be a last-ditch tactic. Better to watch those deadlines and act promptly.



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