Schmitt v. Capers

573 So. 2d 773, 1990 Miss. LEXIS 777
CourtMississippi Supreme Court
DecidedDecember 19, 1990
DocketNo. 90-CA-0345
StatusPublished
Cited by2 cases

This text of 573 So. 2d 773 (Schmitt v. Capers) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schmitt v. Capers, 573 So. 2d 773, 1990 Miss. LEXIS 777 (Mich. 1990).

Opinion

PRATHER, Justice,

for the Court:

I. INTRODUCTION

This case involves an appeal of a chancellor’s rejection of a request to file an out-of-[774]*774time appeal. Deborah J. Schmitt, adminis-tratix of James W. Ware’s estate, made the request and cited “excusable neglect” as her basis, which the chancellor rejected after holding an evidentiary hearing. In determining whether excusable neglect was evidenced, this Court construed Miss.Sup. Ct.R. 4(g), which permits a chancellor to extend the appellant’s time for filing a notice of appeal.

This Court affirms.

A. Statement of the Case

The facts are undisputed. Following the death of James W. Ware, an order was entered January 9, 1987, appointing Deborah J. Schmitt as administratrix of his estate. On April 9, 1987, Jeraldine Capers, appellee herein, filed a claim against the estate in the amount of $46,147.87, plus interest. On July 26, 1989, Harrison County Chancellor Jason Floyd, Jr. held a trial and then ruled from the bench in favor of Capers. Chancellor Floyd issued a written final judgment on August 15, 1989.

On October 12, 1989, Schmitt filed a motion through which she requested permission to file an out-of-time appeal from the chancellor’s August 15 judgment. At an evidentiary hearing held on December 6, 1989, Schmitt claimed that her failure to file a timely appeal stemmed from “excusable neglect.” She testified that after the July 26 trial, she called her attorney’s home daily for a period of two weeks, trying several times each day to reach him and leaving messages with his sister. She further testified that the attorney never returned her calls and that she finally reached him on the morning of October 9 by telephone. It was at that time when her attorney advised her that the chancellor had ruled in favor of Capers and that it was too late to appeal. Schmitt then hired a new attorney and filed the motion for permission to appeal out of time.

The chancellor concluded that, under these facts, excusable neglect was not evidenced and that an out-of-time appeal was not justified. Schmitt appealed.

B. The Issue

The sole issue in this case is whether the chancellor erred by refusing to permit Schmitt to file an out-of-time appeal.

II. ANALYSIS

A. Relevant Law

Pursuant to Supreme Court Rule 4(a), a notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” See also Landrum v. Bailey, 475 So.2d 140 (Miss.1985). This rule is “mandatory and jurisdictional,” and this Court has no authority to extend the time for filing an appeal. See Miss.Sup.Ct.R. 2(c) & 26(b); see also L. MUNFORD, MISSISSIPPI SUPREME COURT PRACTICE §§ 6-6 & 6-7 (1989). Only trial judges may grant an extension, and their discretionary decisions are limited by Rule 4(g). This rule provides:

(g) 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.

(emphasis added). The comment to this rule explains:

Rule 4(g) is new and is based on Fed.R. App.P. 4(a)(5). Rule 4(g) has been drafted to cure ambiguities in the federal rule. A motion filed before expiration of the 30 day period may be ex parte and may be' granted for any “good cause.” This standard is identical to that found in Rule 26. The extension may not go beyond 30 days after the time prescribed in Rule 4(a).
[775]*775If 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. Counsel in a case taken under advisement has a duty to check the docket regularly. But see City of Gulfport v. Saxon [Saxton], 437 So.2d 1215, 1217 (Miss.1983) (when trial court sits as an appellate court, parties may reasonably expect notification from the court or clerk when a ruling is made). 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. Counsel’s failure to read published rules of court and counsel’s reliance on mistaken legal advice from a trial court clerk will not show excusable neglect. Campbell v. Bowlin, 724 F.2d 484, 488 (5th Cir.1984); Reed v. Kroger Co., 478 F.2d 1268 (T.E.C.A.1973). Excusable neglect will not be shown by counsel’s busy trial schedule. Pinero Schroeder v. Fed. Nat’l Ass’n, 574 F.2d 1117 (1st Cir.1978).
On the other hand, a party misled by actions of the court can establish excusable neglect. See Chipser v. Kohlmeyer & Co., 600 F.2d 1061 (5th Cir.1979); In re Morrow, 502 F.2d 520, 522 (5th Cir.1974) (dictum). Excusable neglect may be shown where a timely mailed notice was late because of unanticipated and uncontrollable delays in the mail. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). See generally 9 W. Moore, Federal Practice.
An excusable neglect motion must be filed within the 30 day extension period. The extension will be limited to that period or to a period ending 10 days after the entry of an order granting the motion, whichever occurs later.

This Court has declared unequivocally that the “mandatory” 30-day rule will be “strictly enforced” — i.e., “appeals not perfected within thirty days will be dismissed, period." And “[ljitigants are entitled to expect that we will do what we say.” Tan-dy Electronics, Inc. v. Fletcher, 554 So.2d 308, 310 (Miss.1989). In Tandy Electronics, Inc., this Court refused to provide the appellant, Tandy, with relief after it filed an appeal one day past the 30-day time limit. 554 So.2d at 312 (Tandy did not explain why it filed late); see also Telford v. Aloway, 530 So.2d 179, 180-81 (Miss.1988); Landrum v. Bailey, 475 So.2d 140, 141 (Miss.1985); Clark v. City of Pascagoula, 473 So.2d 477, 478 (Miss.1985).

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Related

Edwards v. Roberts
771 So. 2d 378 (Court of Appeals of Mississippi, 2000)
Matter of Estate of Ware
573 So. 2d 773 (Mississippi Supreme Court, 1990)

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Bluebook (online)
573 So. 2d 773, 1990 Miss. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmitt-v-capers-miss-1990.