IN THE SUPREME COURT OF MISSISSIPPI
N O. 2014-CT-00260-SCT DAV ID GLEN NUNNERY

AND JENE’ NUNNERY

v. PAUL EDWARD NUNNERY AND GLENDA NUNNERY

LORD, AS CO-EXECUTOREXECUTRIX OF THE WILL AND ESTATE OF JOSEPH L. NUNNERY , DECEASED AND ANNIE LOUISE Y

O UNG NUNNERY

ON WRIT OF CERTIORARI DATE OF JUDGMENT: 01/27/2014 TRIAL JUDGE: HON. DEBBRA K. HALFORD TRIAL COURT ATTORNEYS: JAMES FREDERICK AHREND MATTHEW W ARREN KITCHENS GARY L. HONEA ELBERT EARL HALEY, JR. DENNIS L. HORN COURT FROM W HICH APPEALED: PIKE COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: DAVID NEIL MCCARTY JEFFREY A. VARAS ATTORNEYS FOR APPELLEES: DAVID RYAN BRUHL JOSEPH M. STINSON DENNIS L. HORN NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 07/21/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. The i nstant case presents a dif f icult f actual situation a nd outcom e. In t he wake of an
at t o r n e y ’ s f

am ily tragedy , the def

endants m issed their d eadline f or f iling their notice ofappeal. The chancellor d enied the def endants’ request t o extend the tim e to f ile the notice of appeal. W e discern no abuse of discretion by

the chancellor and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Originating in the C hancery Court o f Pike County , the underly ing c ase involves a land dispute am ong f

a m i ly m e m

bers. Af ter s everal y ears of l itigation, the chancellor rendered a f inal judgm ent on June 20, 2012. David and Jené N u nnery then retained Attorney Jef f ery A. Varas, who prom

ptly f i led a m otion f

or new trial. On October 1, 2013—f if teen m onths af

ter the m otion was f

iled—the chancellor entered an order deny ing the m otion. ¶3. On October 22, 2013, Varas learned t hat his brother had been in a serious car accident and was in a com a in the intensive c a r e u n i t ( “ ICU”) at a Greenville, South Carolina, hospital. For the n ext f

our weeks, Varas t raveled back and f orth f rom Mississippi to South Carolina to be w ith h is f

am i ly a nd to deal with what Varas described as “end-of -lif e m edical, f inancial and em otional decisions” concerning his brother’s condition. ¶4. Varas is a solo practitioner whose le g a l s e c r e t ary is his wif e, so when the f

am ily tragedy s truck, Varas was unable to delegate his work responsibilitie s t o any one else. Consequentl y , he m issed f iling the n otice of appeal in t he instant case by the October 31, 2013, deadline. ¶5. Varas and his f

am ily m ade the decision to rem ove his brother f ro m l i f e s u p p o rt on Novem ber 9, 2 013. His brother soon passed away and a f uneral was held on Novem ber 16,
2013.

2¶6. Af

ter his brother’s f

uneral, Varas returned to work and, realizing he had m issed the deadline to f

ile the notice o f appeal, f

iled a m o tion on behalf of his clients f or an extension of tim e to f i le a notice of

appeal. W ithin this m otion, Varas argued as f ollows: During the tim e f

or appeal, a close f

am ily m e m

ber of the u ndersigned attorney was involved in a serious car wreck in South Carolina, was in a com m a [ sic ] in intensive care, u nderwent surgic al procedures, and was placed on l if e support. These u n f

o r t u n a t e events extended f or a period of f

our (4) w eeks requiring the undersigned attorney ’ s regular attendance at the Greenvil l e, S outh Carolina hospital. On Novem ber 9, 2 013, the f

am ily rem o ved l if

e support and on Novem

ber 16[ , 2013] the f

uneral was held. The g ood-cause excusable neglect f or the requested extension is based upon the above stated circum stances w hich kept the undersigned counsel o ut of the of f ice f or extended periods of tim e d uring the p a s t f

o u r weeks. The undersigned is a sole [ sic ] p ractitioner with his wif e as secretary and w ho traveled with the u n d e rsigned. Such excusable n eglect was the result of unf oreseen circum s ta n c e s bey ond h is control a nd which interf ered with the tim ely f iling of a notice of

appeal. ¶7. At the hearing on Varas’s m otion, Varas explained that “every thing went to heck in

a hand basket d

uring that tim e, J udge,” and “I was in a sem i-state of shock.” Varas went on
to adm it “I was not pay ing attention, nor d id I f e e l like I needed to pay attention to the dem ands of the law practice during that t im e.” Varas f u rther characterized the situation as “like being in the twilight zone to be in the intensive care u nit l i k e t h a t f o r t h a t n um

ber of weeks.” Varas additionally described how during this tim e he “becam e the patriarch [ of his f am ily ] and . . . had to m ake the decision whether to let [ his] brother pass away or not.” ¶8. Paul Edward Nunnery a nd Glenda N unnery Lord (“Paul and Glenda ” ) o p p osed the

m otion and argued that t he circum stances surrounding Varas’s brother’s accident, while

3t e r r i ble, did not rise to the l evel o f “excusable neglect.” A t the close of t he hearing, the

chancellor ruled f

r om the bench that she was going to deny Varas’s m otion. In explaining her decision to deny

the m otion, the chancellor reasoned as f ollows:

. . . the Court is indeed sy m pathetic t o Mr

. V aras a nd his p ersonal situation. Likewise, the Court i s indeed sy m pathetic to h is client who is involved in a very distastef

ul, contentious f

am ily l itigation which has prolonged t h r o u g h t h is Court f or several y ears. And having stated that sy m pathy f or b oth counse l a n d h i s client, the Court m ust go f orward to relate that there are o ther parties’ interest t o be c onsidered. The Court takes note that so long as litigation is pending it is a chief detractor f rom the sanity , the peace that a f am ily should be entitled to.
T h e plaintif

f s in this case, which this Court has tried, were other f am i ly m em bers o f the proposed appellant. Two of w hich were his extrem ely elderly parents. This Court went to great lengths to allow t h e l i t i gants t o p resent t heir cases. There were num erous m otions, hearings, and a very extended trial, af ter which the Court diligently undertook t o render a very detailed ruling, and that ruling was entered by

the Court on June the 20th of 2012. . . . And whereas t he C ourt has the m ost extrem e sy m p athy f or counsel and f

o r his personal lif

e situation which occurred in the w aning day s t hat t his case could have been appealed to t he Suprem e Court , this C ourt does not f ind, considering a ll things, that t his i s an appropriate case f or extending the tim e f

or leave to appeal the case. ¶9. Follo w i n g t

h is hearing, the c hancellor entered an order on January 30, 2014, ref lecting her ruling f

rom the bench. In that order, the chancellor specif i cally f ound: The Def endants have not m et their b urden o f showing that their f a ilure to f ile a notice o f appeal w ithin the tim e perm itted by Rule 4 o f the M ississippi Rules of Appellate Procedure was the result of excusable neglect.

4¶10. Varas a ppealed the chancellor’s order and t he Court o f Appeals af f irm ed with sharp division as to the reasoning. N u n n ery v. N

u n n ery , 2 0 1 5 W L 4 4 8 5 6 4 8 (M iss. C t. A p p . Ju ly
2 1 , 2 0 1 5 ). Presiding Judge Irving, joined by three judges, determ ined that David and Jené had f ailed to dem onstrate excusable neglect. Id. a t * 4

. Judge Maxwell, joined by three judges, c oncurred in p a rt and result with the m ajority but reasoned t hat, while D avid and
Jené h a d me t t h eir burden in showing excusable n eglect, h e could not conclude that the chancellor had abused h er discretion in deny ing the m otion because Varas’s “ circum stances

were outweighed by t he prejudice to t h e o t h e r side that would have arisen i f the requested extension had been granted.” ¶11. W e granted David a nd Jené’s p etition f or a writ of certiorari to address whether the chancellor erred in f

i nding that Varas had f

ailed to show “excusable neglect,” and whether,

as a result, the chancellor e rred i n deny i ng t heir m otion f or an extension of tim e to f ile their notice of appeal. W e af

f irm

. STANDARD OF REVIEW ¶12. W e review excusable-neglect determ inations f r om our trial courts with a bif urcated standard. The Court has set f orth the applicable standard of review as f

ollows: The Court applies an abuse of discretion standard to a trial court’s f indings of f act concerning the existence or lack o f good cause or excusable neglect. Long v. Mem ’l Hosp. at Gulfport , 969 So. 2d 35, 38 ( ¶ 5) (Miss. 2007). W e will reverse the trial court’s f act ual determination only when it is not supported by substantial evidence

. Id. T o the ext e n t t h a t t h e trial court’s excusable neglect determ ination involves t he interpretation o f legal principles, we will conduct a de novo review. I d .

5Clark v. Knesal , 113 So. 3d 531, 539 (¶ 28) ( Miss. 2013) ( e mp h asis added). W e 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 o r excusable neglect f or delay in serving process u n d e r Rule 4(h). W here such discretion is abused or is not support e d b y substantial evidence, this court will r everse. However, where the trial court’s judgm ent involves t he interpretation of legal p rinciples, this court will conduct a de novo, or plenary , r eview of its interpretation, and reverse where it f inds the trial court in error. Bennett v. McCaffrey , 937 So. 2 d 11, 14 (Miss. 2006). See also Montgom ery v. Sm ithKline B eecham , 910 So. 2d 541, 544–45 (Miss. 2005); Holm es 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) (em phasis added).
Two potentially applicable standards of revie w exist – abuse of discretion and plenary

. W h en the trial court’s decision rests on “precepts of law,” the standard is plenary

. Bennett

v. McCaffrey , 937 S o. 2 d 11, 14 (¶ 8) (Miss. 2006). On t he other hand, when – as is the case today – the trial judge’s decision r ests upon an exam ination o f f a cts, we review f

or abuse of discretion and to ensure the decision is supported by substanti a l e v i d ence. Id. “W hich standard to apply i s a decision to be m ade on a n ad hoc basis.” Id. (citing Rains v. Gardner , 731 So. 2 d 1192, 1198 (Miss. 1999)). The dissent’s insistence that what “constitutes ‘excusable neglect’ is a question of law, which we r eview de novo ,” (Dis. Op. at ¶ 24), is an oversim plif ication and not accurate. ¶13. Black’s L a w Dictionary def ines “ab u s e o f d i s c r e t i o n ” a s “ A n a p pellate court’s standard f or reviewing a decision that is a sserted to b e g r o ssly unsound, unreasonable, illegal,

or unsupported by the evidence.” Abuse of Discretion , B lack’s L aw Dictionary ( 1 0 t h ed.

62014). The reviewing court should not reverse a discretionary f inding by the lower court unless it com es to a “def inite and f

irm convic t i o n t h at the court below c o m m itted a clear

error of judgm ent in the conclusion it reached upon w eighing o f relevant f actors.” Plaxico

v. Michael , 735 So. 2d 1036, 1039 (¶ 11) (Miss. 1999) (quoting Cooper v. State Farm Fire
& Cas. Co. , 568 So. 2d 687, 692 (Miss. 1990)).
W h en we s ay that the trial court has discretion in a m atter, we i m p ly that there is a lim ited right to be wrong. At the very least the statem ent im ports a view that t here a re at least two dif f erent decisions that the trial c ourt could have m ade each of which on a ppeal m ust be a f f ir me d

. I n d e ed, if there are not at least two possible af

f irm able decisions, by def

inition t he trial c o urt is without discretion.
Burkett v. Burkett , 537 So. 2d 443, 446 (Miss. 1989). In a r eview f or abuse of

discretion, the appellate court w ill “consider whether the d ecision w as one of those several r easonable

ones w hich could have been m ade.” Id. “A f inding of abuse of discretion absent a def inite and f irm identif

ication of clear error violates tim e -honored standard-of -review principles.” Ferguson v. Univ. of Miss. Med. Ctr. , 179 So. 3d 1060, 1067 (¶ 31) (Miss. 2015).
ANALYSIS ¶14. Our appellate p rocedural rules require that a “ n otice of appeal

. . . s hall be f iled with the clerk of the trial co u r t w i t h in 30 day s a f t er the d ate of entry of the judgm ent or order appealed f

rom .” M .R .A .P

. 4 ( a). And a p arty in need of additional tim e to f ile t he notice of appeal m ust turn to Rule 4 ( g) of the Mississippi Rules of Appellate Procedure, which allows additional tim e upon a f

i nding of “excusable neglect.”

7¶15. An excusable-neglect determ ination “is at b ottom an equitable one, taking account of

all relevant circum stances surrounding the party ’s om ission.” P i o n e e r Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 3 97 (1993). The Pioneer Court then adopted the f ollowing f

our-part, excusable-neglect test: (1) “the danger of p r e j u d i c e to the [ nonm ovant],” (2) “the length of the delay and its potential im pact on judicial p roceedings,” (3) “the reason f

or the delay , incl u d i n g whether it w as within the reasonable control of the

m ovant, and” (4) “ whether the m ovant acted in good f a i th.” Pioneer Inv. Serv. C o. , 507 U.S.

at 395. T he f

our-prong Pioneer test has been appl i e d b y many o ther courts in analy zing sim ilar m otions ( see, e.g ., U . S . ex rel. K in g v. U n iv. o f T ex . , 5 4 4 F ed

. A p p ’ x 4 9 0 (5 th C ir.
2 0 1 3 ); T rea su rer, T

ru stees o f D ru ry In d

u s . I n c. H ea l th C a re P la n & T ru st v. G o d

in g , 6 9 2
F .3 d 8 8 8 (8 th C ir. 2 0 1 2 ); S to tter v. U

n iv . o f T ex . a t S a n A n to n io , 5 0 8 F .3 d 8 1 2 (5 th C ir.
2 0 0 7 ); L o ck e v. S u n T

ru st B a n k , 4 8 4 F .3 d 1 3 4 3 (1 1 th C ir. 2 0 0 7 ); P in ca y v . A n d r ew s , 3 8 9
F .3 d 8 5 3 (9 t h C ir. 2 0 0 4 ); L o c a l U n io n N o . 1 2 0 0 4 , U n ited S teelw o rk e rs o

f A m . v. M

a ss. , 3 7 7 F

. 3 d 6 4 (1 st C i r. 2 0 0 4 ); In re S ch u ltz , 2 5 4 B

. R

. 1 4 9 (B .A .P

. 6 th C ir. 2 0 0 0 ); S a n J u a n C i ty C o lleg e, In c. v. U

.S . , 7 5 F ed

. C l. 5 4 0 (F ed

. C l. 2 0 0 7 ); A c t i v e G la ss C

o rp . v. A r ch itectu ra l & O r

n a m en ta l Iro n W

o rk er s L o c a l U

n io n 5 8 0 , 8 9 9 F

. S u p p . 1 2 2 8 (S .D

. N

. Y ., 1 9 9 5 )) and we hold that it is an appropriate guide f o r our courts. ¶16. In the case sub judice , the c h a n c e r y court entered the order f or which an appeal is sought, an order deny i ng a m otion f or a new trial, on October 1, 2 013. The thirty -day appeal period theref

o re e nded o n O c t o b e r 31, 2013. The def endants b elow, appellees here, f iled

8their m otion f or an extension of tim e to f i l e their notice of appeal on Novem ber 1 8, 2013.
From her bench ruling, it is clear that the c hancellor rendered a f actually driven decision that addressed at least three of the Pioneer f actors – danger of prejudice, length of delay and its im p act on the p r oceedings, and the reason f or the delay

. She noted her sy m pathy f or Varas, the attorney f

or the def endants who had suf

f ered a death in the f

am ily , but she also weighed the interests of t h e o t h e r parties to the litigation. She noted t hat two of the p laintif f s are

e l d erly and rem arked o n the l ength of the trial and pretrial proceedings. S he n o t e d t h a t another attorney had tried the case f o r V a r as’s c lients. She n oted that Varas had f iled a

m otion f or a new trial o n June 29, 2012, but did not c all up t he m otion f o r a h earing. Af

ter the m otion f

or a new trial stay e d o pen f or f if teen m onths, and Varas f

ailed to obtain or take
any steps to obtain a hearing on the m oti on, t he chancellor e ntered an order deny ing it, as noted above, on October 1, 2013. ¶17. Wi t h o u t c i t a t i o n t o a u t h o r i t y , t he dissent contends that the trial judge erred by considering the f

if teen-m onth delay caused by the def endants’ f ailure t o obtain a hearing on their m otion f

or new trial, rather t han considering only the shorter tim e period between the expiration of the a

ppeal deadline a nd the f

iling of the m otion f

or an extension of tim e. (Dis. Op. at ¶¶ 36-37). Equity is not so tightly constrained. A gain, a n e x c u s a b l e - neglect determ ination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the p arty ’s om i ssion.” Pioneer I n v . Serv. Co. , 507 U.S. at 395 (em phasis added). W e have noted, “ A court of equity considers results rather than the m eans by which

9they are obtained.” Hall v. Bowm an , 749 So. 2d 182, 1 84 (¶ 10) (Miss. 1999). Also, “One

of the proc e d ural m axim s of equity is that equity looks to the i ntent, and will regard substance rather than f

orm .” K e m p v . Atlas Fertilizer & Chem . Co. , 199 So. 2 d 52, 57 (Miss. 1 967). The def

e ndant in the i nstant case d id nothing f or f if t e e n m onths to call his

m otion f or a new trial f

or a hearing. The chancellor indicated in her order that she had ruled

on the m otion only because the c lerk of the court h ad inf orm e d her t he m o tion was still open. Given the chancellor’s f

i ndings regarding the dif

f i cult and straining nature of the litigation below, s he did not err in consideri n g o t her delay caused by the def endants’ inaction. “[ E]quity aids the v igilant and not those who s lum ber on their rights.” Matter o f Last Will
and Testam ent of Winding v. Estate of Winding , 783 So. 2d 707, 711 (¶ 15) (Miss. 2001) (citing In re Estate of Davis , 510 So. 2d 798, 800 (Miss.1987)). ¶18. W e again note the equitable nature of an excusable n eglect determ ination, and we will
not f a ult the chancellor f

or considering the deleterious ef f ect on the parties of a ll of the delay

– including the f

if teen-m onth delay caused b y the def endants’ earlier, unexplained inaction.
In In re Schultz , 254 B .R. 149 (6th Cir. 2000), t h e c a s e t h e dissent considers “the m ost persuasive and directly a

pplicable,” (Dis. Op. at ¶ 30), t he Sixth Circuit f ocused h eavily on the reason f

or delay prong. Schultz , 2 54 B.R. at 153. W ith respect, we f i nd l ittle of

use in Schultz , because it does not contem plate t he cir c u ms t a nces f aced by the chancellor in the

case sub judice , e.g. , the ef f ects on the parties caused by a long delay that resulted squarely f rom a l ack of diligence that predated any even t s t h a t f o r m the b asis f

or the a ssertion of

1 0excusable neglect. In other w ords, we cannot k now what the Schultz Court would have held had t he party attem

pting to show excusable neglect there also c a u sed well over a y ear of delay in litigation with elderly

litigants who had borne the weight of try ing litigation. ¶19. In short, the c hancellor in the case sub judice rendered a decision f rom the bench that considered at least three of the Pioneer f actors. I n t r u t h , t he chancellor’s expression of
sy m p athy f or Varas could be read as a f inding that t he def

e ndants did not act in b ad f aith. If so, she considered all f

our of the f

actors. In h is dissent, P residing Justice Dickinson touts his own, certainly lengthier and m ore detailed analy sis as better than that of the trial judge, and he goes through great lengths to explain w h y he would reach a dif f e rent result. As explained above, s uch i s n o t our task when w e review f or an a buse of discretion. There was

no e r ror of law, and the chancellor’ s f act-based determ ination does not leave u s with the def inite and f

i r m conviction that she erred. ¶20. W e pause bef

o re closing to address the d i s s e n t ’ s s t r iking assertion that the f ifteenm onth delay caused by the def endants’ f ailure to seek a r

uling on t heir m otion f

or a new trial should actually be weighed against the plaintif f s. (Dis. O p. at ¶ 37). The dissent w ould hold

t h a t the delay s h ows the plaintif f s were not p rejudiced because, if t hey were be i n g prejudiced, surely

they would have sought a ruling on the m otion them selves. Mississippi law and practice clearly put t he o n us on the m ovant to obtain a r uling on a pending m otion.
Billiot v. State , 4 5 4 So. 2d 445, 456 ( M iss. 1984). W e cannot ef f e ctively agree to penalize parties who had no reason t o know they were responsible f o r calling u

p the opposing party ’s

1 1m otion and, that because they did not do so, will f ace the Court using against t hem a f ailure that belongs squarely at the f eet of their opponents. ¶21. W e af

f irm the judgm ents of the Pike C ou n t y C h a n c e r y C o u r t and the Court of Appeals. ¶22. AFFIRMED

. RANDOLPH, P.J., LAMAR AND BEAM, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION J OINED BY W ALLER, C.J., AND KING, J. KITCHENS AND MAX W ELL, JJ., NOT PARTICIPATING. DICKINSON, PRESIDING JUSTICE, DISSENTING: ¶23. I believe that Varas s u f f iciently dem onstrated t hat the f ailure to f ile his c lients’ notice of appeal within the proscribed tim e was due to “excusable neglect,” and I a l so believe the

t r i a l c o u r t erred when it denied Varas’s m otion f o r an extension of tim e to f ile a notice o f appeal. Because the m ajority holds otherwise, I respectf ully dissent. ¶24. As the m ajority correctly notes, we generally review a trial court’s grant o r denial of

a m otion f

or an extension o f

tim e to f ile a notice of a

ppeal f or an abuse of discretion. 1 But what the m ajority f

ails adequately to acknowl edge is that, when such decisions are based
upon a q u e s t i o n of law, we review de novo . 2 And because in this case we m ust determ ine the legal m eaning of “ excusable neglect,” we a re not bound to af f i r m t he trial court’s decision if “we are lef

t with t he def

inite and f irm c o nviction that the lower court com m itted

1 In re E sta t e o f W a r e , 5 7 3 S o . 2 d 7 7 3 , 7 7 6 (M iss. 1 9 9 0 ).

2 S e e In re S ch u ltz , 2 5 4 B .R

. 1 4 9 , 1 5 1 ( 6 th C ir. B A P 2 0 0 0 ) (citin g In re H ess , 2 0 9 B

. R . 7 9 , 8 0 (6 th C ir. B A P 1 9 9 7 )). 1 2a clear error of j udgm ent in the conclusion it reached.” 3 Based on the discussion that is to

f ollow, I am convinced that the court below com m itted a clear error of j udgm ent by f inding that Varas had f

ailed to dem onstrate excusable neglect, and by deny ing his request f or an extension of

tim e. ¶25. First, I believe t he trial judg e a n d t h e C o u r t o f A ppeals m ajority w ere m istakenly
pe r s u a d e d t h a t V aras’s neglect was n ot excusable because, as the Court of Appeals put it,
Varas’s circum stances “were o utweighed by the prejudice to the other side that would have arisen if the requested extension h ad been granted.” 4 So, basically both the trial judge and the Court of

Appeals balanced Varas’s circum stances against prejudice to the other side. ¶26. I note that R

ule 4( g ) o f t h e M i s s i s s i p p i R u l e s o f A p p e l l a t e P r o c e d ure m akes no

m ention o f p rejudice, nor does it specif ically require or a

uthorize a trial judge to apply any balancing test. 5 That said, the m ajority —correctly in m y opinion—directs our trial courts to utilize t he balancing test articulated by the United States Suprem e Court in its interpretation of the corresponding f

ederal rule when determ ining what a m ounts to “excusable n eglect.” 6

3 S ee P in ca y v. A n d r ew s , 3 8 9 F .3 d 8 5 3 , 8 5 8 (9 th C i r. 2 0 0 4 ).

4 N u n n ery v. N

u n n ery , 2 0 1 5 WL 4 4 8 5 6 4 8 (M i ss. C t. A p p . Ju ly 2 1 , 2 0 1 5 ).

5 S ee M .R .A .P . 4 (g ).

6 S e e P i o n eer In v. S ervs. C

o . v. B ru n sw ich A sso cs. L td . P ’sh i p , 5 0 7 U .S

. 3 8 0 , 1 1 3 S

. C t. 1 4 8 9 , 1 2 3 L

. E d

. 2 d 7 4 (1 9 9 3 ). O u r R u le 4 ( g ) is m o d e led af ter R u le 4 (a )(5 ) o f th e F ed eral R u les o f

A p p ellate P ro ced u re. S

ee M .R .A .P

. 4 cm t s. 1 3¶27. On that note, I em phasiz e t h a t , i n P i o n e e r I n v estm e n t S ervices C

o . , 7 the Suprem e Court approved t he Sixth Circuit Court of Appeals’ f our-prong test: ( 1) “the d anger of prejudice t o the [ nonm o vant],” (2) “the length of t he d elay and its potential im pact on judicial proceedings,” (3) “the reason f or the delay , including whether it was within the reasonable control of the m ovant, and” (4) “whether the m ovant acted in good f aith.” 8 ¶28. Until now, t h i s C o u r t h a s not had the opportunity to address whether the illness or death of a n attorney ’ s f

a m i ly m em

ber constitutes “excusable neglect” within the m eaning of Rule 4(g). Federal courts, however, have been conf ronted with this par t i c u l a r issue, and those courts have held that—under such circum s t ances—the “excusable neglect” standard was satisf ied, and that an extension of tim e was warranted. ¶29. In Local Union N o. 12004 , t h e F i r s t C i r c u i t C o u r t o f A p p e a l s af f irm ed a district
court’s grant of a R

ule 4(a)(5) m otion f

or an extension of tim e to f ile a notice of appeal. 9 In that case, the appellant’s attorney f ailed to f ile a t i me l y n o t ice o f appeal because he “was preoccupied by t he n e ed to care f or his inf ant son, who was severely ill.” 10 The appellant’s attorney f i led the m otion f

or an extension f

ourteen day s af

ter t he thirty -day t im e period had

7 P io n eer In v. S ervs. C

o . , 5 0 7 U

. S

. 3 8 0 (1 9 9 3 ).

8 Id . 9 L o ca l U n io n N o . 1 2 0 0 4 , U n ited S teel W o rk ers o f A m erica v. M

a ssa ch u s etts , 3 7 7 F .3 d 6 4 , 7 2 (1 st C ir. 2 0 0 4 ).

10 Id . 1 4expired. 11 The Court of Appeals, af ter reasoning that “ g iven the relative brevity o f delay , the attorney ’s plausible and uncontested explanation f o r i t, [ and] the absence o f any discernible prejudice,” concluded that the trial court had n ot erred in granting the appellant’s m otion f or an extension of

tim e. 12 ¶30. Sim ilarly , in San Juan City College , t h e U n i t e d S t a t e s C o u r t f or Federal Claim s granted a m otion f

or an extension of tim e to f ile a notice of a

ppeal, which the appellant f iled thirteen day s a f

ter the appeal period had expired. 13 There, the appellant’s attorney “becam e overwhelm ed by

the illness of

her f ather, the r equirem ents as a care taker, and t he death of her f ather.” 14 In granting the m otion, the court reasoned that the “danger of prejudice

. . . is

m inim al,” and that the “delay is unlikely to be excessive since plaintif f ’s counsel h as stated that she is prepared to proceed virtually im m ediately .” 15 ¶31. Considering the f

actual circum stances and p rocedural p o s t u r e i n the instant case, I f ind In re Sch u l

t z 1 6 t o b e the m ost persuasive and directly applicable. In Schultz , the debtor’s counsel f

il e d a m otion f

or an extension seven day s af ter the appeal period had

11 Id .
12 Id .
13 S a n J u a n C ity C o lleg e, In c. v. U

. S . , 7 5 F ed

. C l. 5 4 0 , 5 4 3 (2 0 0 7 ).

14 Id .
15 Id .
16 In re S ch u ltz , 2 5 4 B .R . at 1 4 9

. 1 5expired and argued that he could dem onstrate “excusable neglect” because his wif e had been “diagnosed f

or the second tim e with ovarian cancer and was u ndergoing chem otherapy .” 17
T h e a t torney had struggled t o help his wif e cope with “severe side ef f e cts f r o m chem otherapy ” as she had been “hospitalized several time s . . . and suf f ered extrem e
psy c h ological and e m otional d istress.” 18 Additionally , he “ was the sole care g i v e r f or his wif e, accom pany ing her to m edical appointm ents a nd chem otherapy treatm ents

. . . [ and] was responsible f

or adm inistering her m edication,” and a s a result, he could devote “only parttim e hours to h is solo law practice during the appeal period.” 19 The bankruptcy court denied the d eb t o r ’s m otion f

or an extension, f

inding that such circum stances d id not c onstitute excusable neglect. 20 ¶32. The debtor’s attorney appealed to a panel f or the Sixth Circuit Court of Appeals. 21 In analy zing the issue, t he C ourt reasoned that the a ttorney “was suddenly a n d u n e xpectedly preoccupied with the phy s ical and psy chological care of his extrem ely ill wif e during the period in question,” a nd noted that “other c ourts have d e t e r mi n e d that e xcusable neglect

17 Id . at 1 5 2

. 18 Id . 19 Id . (em p h a sis ad d ed )

. 20 Id .
21 Id . at 1 5 3

. 1 6includes sudden death, d i sability or illness of counsel or the party .” 22 According t o the Court,

“because of the s everity of the illness at issue and the close f am i lial relationship

. . . the f acts

o f t h i s case are analogous to a situation in which the attorney i s the one who i s seri o u s l y ill.” 23 The Court also em

phasized that “there is certainly no f inding that the circum stances

were ‘within the reasonable c ontrol of t h e movant.’” 24 Ultim ately , the appellate court reversed the denial of the m otion f or an extension of tim e and s pecif i cally held that “we are

. . . lef t with a ‘ d ef

inite and f

irm conviction t h a t t h e [ b a n k r uptcy court] com m itted a clear

error of judgm ent,’” and that “ the bankruptcy court abused its discretion i n determ ining that the Debtor’s f

ailure t o t im e ly f

ile the request f

or an extension of tim e to appeal was not attributable to excusable neglect.” 25 ¶33. I f ind com p elling the f

act that the m a

j ority cites the Pioneer test but f ails to conduct

a thorough analy sis, actually apply ing the f actors t o t he f

acts of the instant c ase. Instead, the

m ajority m erely points to som e concerns espoused by the chancellor that could indicate that she was considering these f actors. I am

unconvinced.

22 Id . at 1 5 4 ( c itin g I

n r e M i zisin , 1 6 5 B .R

. 8 3 4 ( B an k r. N .D

. O h io 1 9 9 4 ) (citin g E v a n s v. J

o n es , 3 6 6 F

. 2 d 7 7 2 (4 th C ir. 1 9 6 6 ))).

23 Id .
24 Id .
25 Id . at 1 5 5

. 1 7¶34. W i th the above-discussed c ases in m ind, and in actually apply ing the af orem entioned f our-prong b a lancing test to t he instant c a se, it seem s clear to m e that Varas suf f iciently dem onstrated that his f

ailure to f ile a tim ely notice o f appeal w a s due to “excusable neglect.”
A. Danger of Prejudice to the Nonmovant ¶35. Bot h t h e t r i a l court and the Court o f Appeals w e n t astray in their consideration of
pre judice. The Court of Appeals erroneously considered the duration of the underly ing litigation, noting that i t had b een going on f or y ears. The p rejudice f actor r e q u i res an analy sis of no m ore than the p r ejudice occasioned b y granting the exten s i o n of tim e. Sim ilarly , the chancellor noted that t he litigation “ h as p r o l o n ged through this Court f or several y ears,” and reasoned that she “went to great l engths to allow the litigants t o present their cases . . . [ and she ruled on] num erous m otions, hearings, and a very extended trial.” ¶36. Prejudice resulting f rom t he duration of the underly ing litigation is n o t what this f actor
contem plates. Instead, the danger of prejudice t o t he nonm ovant in this context ref ers only
to the potential prejudice that w ould be caused by the delay of f iling the notice of appeal. For

exam ple, a p revailing def

endant, rely ing on an appellant’s f ailure to f ile a notice of appeal,

m ight com m it to other purposes the resources that were available to satisf y a judgm ent. ¶37. But here, when c onsidering this f actor in the appropriate m anner, I a m unable to f ind
any d iscernible prejudice to Paul and Glenda. Nothing i ndicates that they relied in any way

on an assum

ption that David a nd Jené would not pursue an appeal. In f a ct, it appears to be quite t he contrary

. W hile i t i s t r u e that Varas did not request a hearing f or f if teen m onths

1 8af

ter he f iled t he m otion f

or a new t rial, it is noteworthy that Paul a n d G l e n d a m ade no
attem pt to have the m otion resolved. And while it is also true that Paul and Glenda had no duty to do so, still, the obvious m ust be considered: If Paul and Glenda truly f elt they were being prejudiced by the delay , they certainly c o u l d h a v e t a ken som e step to m itigate the prejudice. Instead, as the tim e passed, they sat silently

by without protest. ¶38. Furtherm ore, the r ecord ref lects that Varas inf

orm ed Paul’s and Glenda’s counsel that he “had a tragedy i n t h e f a m ily

. . . and [ was] unable to address any circum stances [ of the appeal at that tim e],” s o Paul and G lenda certainly were aware that David and Jené intended
to p ursue the appeal. Based o n these undisputed f acts, any p rejudice to Paul and G lenda f or the delay ed n otice of a

ppeal was m inim al, if at all. A nd apply i ng the correct analy sis, lim ited
to prejudice associated w ith the del a y in f iling the notice o f appeal, any f inding to the contrary would be m anif

est error, so this f

actor weighs in f

a vor of a f

i nding of excusable neglect.
B. The Length of the Delay and Its Potential Impact on Judicial Proceedings ¶39. This f

actor also weighs in f

avor of perm itting Da v i d a n d J e n é an extension. Varas f iled the m ot i on f

or an e xtension of tim e a m ere two day s af ter his brother’s f

uneral, and approxim a tely nineteen day s a f ter the appeal period had expired—ver y s i m i l a r to Local
Union No. 12004 , in which the m otion was f iled f ourteen day s af

ter the appeal period had expired, and S

an Juan City College , i n w h ich the m otion was f iled thirteen d ay s af

ter the tim e f o r a p p e al had expired. And as Varas m ade clear at the hearing, David and Jené are

1 9ready to proceed w ith the appeal im m ediately

. The record suggests no adverse im pact on judicial proceedings.
C. The Reason for the Delay ¶40. F e d e r a l c o u rts agree that “‘the f our Pioneer f

actors do not carry e qual weight; t h e

excuse given f

or the late f

iling m ust have the g

reatest import .’” 26 Af

ter caref ul consideration of this f a ctor, I am of

the opinion that it weighs quite heavily in f a vor of David and Jené. ¶41. Varas’s brother w as i nvolved in a tragic car a ccident which lef t him in a com a in the
ICU a t a hospital i n Gre e n v i lle, South Carolina—a long way f r om Varas’s practice in Mississippi. And, l ike the m ovant in Local Union N o. 1 2004 , Varas was “preoccupied by the need” to be with, and care f o r, his brother, “who was s e v e r e ly ill.” As Varas adm itted

a t the hearing, during this tim e h e “was n ot pay ing attention, nor did [ he] f eel li k e [ h e ] needed to pay

attention to the dem ands of the law practice during that tim e . ” ¶42. Sim ilar l y , l i ke the m ovant in San Juan C ity College , V aras “becam e overwhelm ed by the illness of [ his b rother], the requirem e nts as a c aretaker [ f or his brother], and the death of [ his brother ]

. ” V a r a s traveled f rom Mississippi to South Carolina and f rom South Carolina back to M ississippi f or several weeks. D uring t hat tim e, acc o r d i n g to Varas, he

26 S a n J u a n C ity C o lleg e , 7 5 F ed

. C l. at 5 4 2 (citin g G r a p h ic C o m m c’n s In t’l U

n io n , L o ca l 1 2 -N v. Q u e b eco r P r in t in g P ro vid en ce, In c. , 2 7 0 F .3 d 1 , 5

– 6 ( 1 st C ir. 2 0 0 1 ) (q u o tin g H o sp . d el M a estro v. N

a t’l L a b o r R ela tio n s B d

. , 2 6 3 F .3 d 1 7 3 , 1 7 5 (1 st C ir. 2 0 0 1 ) (q u o tin g L o w r y v. M c D o n n ell D o u

g la s C o rp . , 2 1 1 F

. 3 d 4 5 7 , 4 6 3 (8 th C ir. 2 0 0 0 )); see a lso T r ea su rer, T

ru stees o f D ru ry In d

u s., In c., H

ea lth C a re P la n & T ru st v. G o d

in g , 6 9 2 F .3 d 8 8 8 , 8 9 3 (8 t h C i r. 2 0 1 2 ) ; S iliva n ch v. C eleb rity C r u i ses, In c. , 3 3 3 F

. 3 d 3 5 5 , 3 6 6

– 6 7 (2 n d C i r. 2 0 0 3 )

. 2 0“becam e the patriarch [ of h is f am i ly ] and was t here [ i n South Carolina] t o actually

. . . m ake the decision whether to let [ his] brother pass away or not.” ¶43. And like the m ovant in Schultz , Varas is a solo pra c t i t i o n er, unable to delegate his work responsibilities to others d uring this dif

f icult t i me . V a r a s was “ suddenly and unexpectedly preoccupied” with the tragic circum stan c e s s u r r o u n d i n g h i s b r o t

h e r’s car wreck and m edical condition. And “ because of the severity of t he ill n e s s and the close f am ilial relationship,” as V aras’s brother w as in a coma in the ICU, I am persuaded by Schultz that “the f a cts of this c ase ar e a n a l o g o u s t o a situation in which the attorney [ Varas] is the one who is seriously ill.” 27 Further, no one asserts that t he circum stances in w hich Varas f ound him self were within his control. ¶44. S i m

ply put, David’s and Jené’s counsel c l e a r l y f o u n d h i ms e l f i n e x t r a o r d i n a r y circum stances which were com pletely bey ond his control. This Court som etim es f orgets that

our extrem ely

high expectations f

or attorney s do not c om

port with reality

—the reality that attorney s are hum ans a nd will s om etim es, o n r a r e o c c a s i o n , b e overwhelm ed by extraordinary personal o r f

am ilial circum stances which unders t andably will take precedence over courtim p osed deadlines. I note b r ief ly that the m ajority takes issue w ith o ur reliance on Schultz , contending that this case is not helpf ul b ecause it did “not contem plate the circum stances f aced by t he chancellor in the case s ub judice .” 28 W hile this is technically correct, the

27 S ee I n re S ch u ltz , 2 5 4 B .R . at 1 5 4

. 28 M a j . O p . at ¶ 1 8

. 2 1m ajority

sim ply m isses the point. It baf

f les m e how the m ajority takes issue with the court in S chultz rely ing heavily on this prong when t hat is exactly what courts have been directed to do—as “the excuse given f o r the late f

iling must have the greatest import .’” 2 9 Based on the f oregoing discussion, I believe that Varas’s reason f or the delay was m o re than suf f icient, and consequently , this f

actor weighs in f

avor of perm itting David and Jené an extension.
D. W hether the movant acted in good faith. ¶45. Lastly , I c onsider w hether David and Jené a cted in good f aith. Nothing in the record indicates any

thing to the contrary

. Neither Paul and Glenda nor the trial c ourt disputed the f actual circum stances propounded by V a r a s . I c an hardly conclude that Varas acted in
any thing b ut g o od f

a ith in requesting an e xtension given the undisputed extraordinary circum stances in which he f ound him s e l f

. S o this f

actor too, w eighs in f

a v or of allowing David and Jené additional tim e. ¶46. Af ter apply ing the Pioneer balancing test to the f actual c i rcum stances in the instant

case, I a m convinced that V aras’s f ailure to f ile a tim ely n otice of appeal f or his clients was due to “excusable neglect,” and that a f inding to t h e c o n t r a r y , under the particular f acts of this case, was m anif

est error. I h ave no doubt that there will b e cases in which the Pioneer

29 S ee S a n J u a n C ity C o lleg e , 7 5 F ed

. C l. at 5 4 2 (citin g G ra p h ic C o m m c’n s In t’l U n io n , L o ca l 1 2 -N

, 2 7 0 F .3 d at 5

– 6 ( q u o tin g H o sp . d el M a e stro , 2 6 3 F

. 3 d a t 1 7 5 (q u o tin g L o w r y , 2 1 1 F .3 d at 4 6 3 )); see a lso D ru ry In d u s . , 6 9 2 F .3 d at 8 9 3 ; S iliva n ch , 3 3 3 F

. 3 d at 3 6 6

– 6 7 (em

p h asis ad d ed ). 2 2f

actors weigh a gainst a f

inding of “excusable neglect,” but, in m y m ind, the instant case is sim ply not one of

those cases. ¶47. I note brie f

l y h o w t h e ma

j o r i t y a t tem

pts to support its decision on the grounds of “equity .” Though I do not quibble with the m ajority ’s reliance on the principle of equity , I seriously question whether the r esult it reaches is actually a n “equitable” one. The m ajority
states that “a c ourt of equity c o n s i d e r s r esults rather than the m eans by which they are obtained.” 30 Though I f

irm ly believe in this statem ent o f the law, I f ail to see how i t supports the m ajority ’s conclusio n . The m ajority ’s result h ere is to deny David and Jené an opportunity to appeal m erely because their counsel acted with sim ple negligence. How can this result be an “equitable” o ne, especially w hen that sim ple negligence was due to a horrif ic f am ily tragedy which—no one can reasonably dispute—consum ed Varas’s world during that tim e? ¶48. Moreover, I want to em phasize again that the m a j ority , i n m y o p i n i o n , a p p l i e s an incorrect standard o f r eview. The m ajority sim ply f inds that the chancellor did not abuse her discretion. I f a b use of discretion were truly the applicable standard of review, I m ight be constrained t o agree—but it is not. W hat constitutes “excusable neglect” i s a question of law, which we review de novo

.

30 M aj

. O p . ¶1 7 ( c i t in g H a ll v. B o w m a n , 7 4 9 S o . 2 d 1 8 2 , 1 8 4 (M iss. 1 9 9 9 )) (em p h asis ad d ed )

. 2 3¶49. Based on the f oregoing discussion, I would hold that Varas s atisf ied the “excusable neglect” standard f

ound in Rule 4(g) of

our Rules of

Appellate Procedure and that the trial
court e rred i n f

inding otherwise. C onsequently , I w ould reverse the j udgm ents of the Court

o f A p p e a ls and t he trial c ourt a nd would rem and the case to t he c h ancery court w i t h directions that it allow David and Jené additional tim e to f i le their notice of

appeal. WALLER, C.J., AND KING, J., JOIN THIS OPINION

.

2 4