Charles Irvin Bruton, Jr. v. Allison Hipwell Bruton

162 So. 3d 872, 2015 Miss. App. LEXIS 237, 2015 WL 1898262
CourtCourt of Appeals of Mississippi
DecidedApril 28, 2015
Docket2013-CA-01868-COA
StatusPublished

This text of 162 So. 3d 872 (Charles Irvin Bruton, Jr. v. Allison Hipwell Bruton) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles Irvin Bruton, Jr. v. Allison Hipwell Bruton, 162 So. 3d 872, 2015 Miss. App. LEXIS 237, 2015 WL 1898262 (Mich. Ct. App. 2015).

Opinion

GRIFFIS, P. J.,

for the Court:

¶ 1. This appeal considers the effect of an untimely notice of appeal.

¶ 2. Allison Hipwell Bruton and Charles Irvin Bruton Jr. (“Chuck”) were married on August 3, 2002. Allison filed a complaint for divorce on April 24, 2012, and she was granted a divorce by a judgment entered on May 9, 2013.

¶ 3. By order dated May 22, 2013, Chuck was granted an extension, through May 31, 2013, to file a post-trial motion. On May 31, 2013, Chuck filed his motion for a new trial, amendment of the judg *873 ment, and/or clarification of the judgment. By order dated July 22, 2013, the chancellor granted a clarification, as to the payment of school tuition, and denied the remainder of Chuck’s motion.

¶ 4. On August 22, 2018, Chuck filed a motion for a stay of the judgment of divorce pending appeal.

¶ 5. On August 30, 2013, Chuck filed a notice of appeal. The Clerk of the Mississippi Supreme Court docketed the case as 2013-CA-01488.

¶ 6. On September 4, 2013, in the chancery court, Chuck filed a motion for additional time to file a notice of appeal nunc pro tunc.

¶ 7. The chancellor considered the outstanding motions. By order dated September 4, 2013, and filed September 5, 2013, the chancellor denied Chuck’s motion for a stay of the judgment of divorce pending appeal. Then, by order dated October 3, 2013, the chancellor denied Chuck’s motion for additional time to file a notice of appeal nunc pro tunc.

¶ 8. On November 1, 2013, Chuck filed a second notice of appeal. The notice stated that the appeal was from the chancellor’s “order entered on October 3rd, 2013.” The Clerk of the Mississippi Supreme Court docketed the case as 2013-CA-01868. The notice was filed by different counsel.

119. On February 6, 2014, the Mississippi Supreme Court entered an order that dismissed the appeal in case number 2013-CA-01488. The court determined the appeal was untimely.

¶ 10. By the clerk’s notice dated September 15, 2014, the supreme court deflected this case (no. 2013-CA-01868) to the Court of Appeals. As a result, we have before us the appeal of the chancellor’s October 3, 2013 order that denied

Chuck’s motion for additional time to file a notice of appeal nunc pro tunc.

STANDARD OF REVIEW

¶ 11. This Court employs a limited standard of review on appeals from chancery court. Corp. Mgmt., Inc. v. Greene Cnty., 23 So.3d 454, 459 (¶ 11) (Miss.2009). As such, this Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous!,] or applied an erroneous legal standard.” Id. Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 12. There is no doubt that Chuck’s notice of appeal was filed late. The Mississippi Rules of Appellate Procedure “govern procedure in appeals.” M.R.A.P. 1. “[T]he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). Here, the first notice of appeal in this case was filed after the thirty-day deadline. Allison filed a motion to dismiss with the supreme court. Chuck responded to the motion and made many of the arguments he makes before this Court. The supreme court dismissed the appeal as untimely.

¶ 13. In this second appeal, Chuck’s appellate counsel makes an attempt to get an extension of time. We note that counsel advised the supreme court of the related case that was then pending, but there was no effort to consolidate the appeals by counsel or the supreme court. The speedy and efficient resolution of this controversy would have been through the consolidation of these cases. Here, we only consider whether there was reversible error in the chancellor’s decision to deny the motion *874 for additional time to file a notice of appeal nunc pro tunc filed by Chuck on September 4, 2013.

¶ 14. By order dated October 3, 2013, the chancellor denied Chuck’s motion for additional time to file a notice of appeal nunc pro tunc. Specifically, the chancellor ordered:

1. The time period for filing a motion under [Mississippi Rule of Appellate Procedure] 4(g) has expired;
2. Defendant offered no excusable neglect;
3. That the Motion was filed after Defendant had filed his Notice of Appeal, thus, this Court is without jurisdiction to proceed on this specific request[;]
4. That the Defendant’s Motion for Additional Time to File Notice of Appeal Nunc Pro Tunc is denied.

¶ 15. In his brief, Chuck makes two arguments. First, he claims the chancellor was in error to decide that there was no jurisdiction. Second, he claims that the chancellor was in error to find no excusable neglect,

¶ 16. Mississippi Rule of Appellate Procedure 4(g) gives a trial court the authority to extend the thirty-day period to file a notice of appeal. Rule 4(g) reads:

Extensions. 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. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, • whichever occurs later.

The Comment provides further guidance:

If the motion is not filed until the extension period has begun to run, the burden rests on the appellant to show the failure to file a timely notice was a result of “excusable neglect.” Mere failure to learn of entry of the judgment is generally not a ground for showing excusable neglect.... 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- Excusable neglect will not be shown by counsel’s busy trial schedule.

(Internal citations omitted).

1117. Here, Chuck filed his motion for an extension within “30 days after the expiration of the time otherwise prescribed by this rule.” M.R.A.P. 4(g). Thus, the chancellor had the authority to grant an extension. Id. However, since the motion was filed “after expiration of the prescribed time,” the chancellor’s discretion to grant the extension was “only upon a showing of excusable neglect.”

¶ 18. To support the motion for additional time to file a notice of appeal nunc pro tunc, Chuck stated:

Counsel for [Chuck] was in trial all week on other matters including a two day hotly contested custody trial on Thursday and Friday of the week of the motion hearing.

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Related

Matter of Estate of Ware
573 So. 2d 773 (Mississippi Supreme Court, 1990)
Corporate Management, Inc. v. Greene County
23 So. 3d 454 (Mississippi Supreme Court, 2009)

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Bluebook (online)
162 So. 3d 872, 2015 Miss. App. LEXIS 237, 2015 WL 1898262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-irvin-bruton-jr-v-allison-hipwell-bruton-missctapp-2015.