IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01048-COA
SHOWANDA PALMER, ON BEHALF OF THE APPELLANT
WRONGFUL DEATH BENEFICIARIES AND
ESTATE OF NATHANIEL MOORE
v.
CLARK CLINIC, INC., SCOTT REGIONAL APPELLEES
MEDICAL CENTER, INC. AND DR. GEORGIOS
ZIAKAS
DATE OF JUDGMENT: 06/30/2017
TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAVID NEIL MCCARTY
GREGORY JOHN BOSSELER
ATTORNEYS FOR APPELLEES: MILDRED M. MORRIS
WILLIAM T. MAY
KACEY GUY BAILEY
TIMOTHY LEE SENSING
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 12/04/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
IRVING, P.J., FOR THE COURT:
¶1. In this appeal, we are tasked with deciding whether the Scott County Circuit Court
abused its discretion in denying Showanda Palmer’s motion for an extension of time to file
her notice of appeal. After a thorough consideration of the facts, we find no abuse of
discretion. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Palmer filed a medical malpractice suit as the executrix of the estate of her deceased
father, Nathaniel Moore, against defendants Dr. Georgios Ziakas, Scott Regional Medical
Center Inc., and Clark Clinic Inc.1 She alleged that the medical providers were negligent in
the care of her father.
¶3. On January 3, 2017, the circuit court, finding that the statute of limitations had run,
dismissed Palmer’s suit. On January 13, 2017, Palmer filed a Rule 59 motion to amend the
judgment, which the circuit court denied on April 11, 2017. Neither side contests that the
deadline to file the notice of appeal was May 11, 2017.
¶4. According to Palmer, her counsel unexpectedly left his firm without filing the notice
of appeal in her case. On May 17, 2017, six days after the limitations period had expired,
another attorney, in her previous counsel’s firm, filed a motion for an extension of time to
file a notice of appeal pursuant to Rule 4(g) of the Mississippi Rules of Appellate Procedure.2
On June 5, 2017, as an alternative to the Rule 4(g) motion, her new counsel filed a second
motion—a motion to reopen time to appeal—under Rule 4(h) of the Mississippi Rules of
1
Palmer also brought suit against Dr. Lepercival Griffin and Rush Health Systems,
Inc., but those defendants were dismissed from the suit.
2
Rule 4(g) 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. 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.
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Appellate Procedure.3 On June 30, 2017, the circuit court denied both motions. It is from
these two judgments that Palmer now appeals.4
DISCUSSION
¶5. Excusable-neglect determinations are reviewed with a bifurcated standard. Nunnery
v. Nunnery, 195 So. 3d 747, 751 (¶12) (Miss. 2016). Abuse of discretion is applied to
“findings of fact concerning the existence or lack of good cause or excusable neglect.” Id.
(citing Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (¶5) (Miss. 2007)). Abuse of
discretion means that the court has a “limited right to be wrong.” Burkett v. Burkett, 537 So.
2d 443, 446 (Miss. 1989). A reversal of the circuit court’s factual determination will only
occur if the determination is not supported by substantial evidence. Nunnery, 195 So. 3d at
751 (¶12). However, this Court will conduct a de novo review if the circuit court’s
determination involves the interpretation of legal principles. Id.
¶6. In the instant case, the proper standard of review is abuse of discretion. Therefore,
if the circuit court’s findings are supported by substantial evidence, we must affirm.
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Rule 4(h) provides:
The trial court, if it finds (a) that a party entitled to notice of the entry of a
judgment or order did not receive such notice from the clerk or any party
within 21 days of its entry and (b) that no party would be prejudiced, may,
upon motion filed within 180 days of entry of the judgment or order or within
7 days of receipt of such notice, whichever is earlier, reopen the time for
appeal for a period of 14 days from the date of entry of the order reopening the
time for appeal.
4
Neither of Palmer’s attorneys on appeal was her trial attorney. However, Mr.
Bosseler entered his appearance on the same date that the Rule 4(g) motion was filed.
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DISCUSSION
¶7. “[A] trial court may, in its discretion, extend the time for filing a notice of appeal upon
a showing of excusable neglect.” Odom v. Pub. Emps. Ret. Sys. of Miss., 906 So. 2d 797,
798 (¶4) (Miss. Ct. App. 2004). As noted, a notice of appeal “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). “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. . . .” M.R.A.P. 4(g)
(emphasis added). “[T]he motion shall be granted only upon a showing of excusable
neglect.” Id. (emphasis added).
¶8. We now turn to Nunnery v. Nunnery to determine if the circuit court’s decision was
supported by substantial evidence. In Nunnery, the Mississippi Supreme Court addressed the
excusable-neglect standard in some detail, which provides guidance for its application.
Nunnery, 195 So. 3d at 752 (¶15). “An excusable-neglect determination is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” Id. (internal quotation mark omitted). The excusable-neglect factors to be
considered are:
(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. (alterations and internal quotation marks omitted) (citing Pioneer Inv. Serv. Co. v.
Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
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¶9. In the current case, Palmer maintains that the circuit court erred in denying her motion
for an extension of time to file her notice of appeal because the court made no “reference to
equity and no reference to the four factors [discussed in] Nunnery[.]” She argues that her
failure to timely file a notice to appeal was due to excusable neglect.
¶10. We reject Palmer’s argument that the circuit court was required to address the
Nunnery factors in its judgment. The circuit court is not required to delineate in detail the
reasons for denying the motion. This Court has previously held that the circuit court does
not abuse its discretion when it fails to specifically delineate its reasons for denying an
applicant’s motion to extend time to file a notice of appeal. Odom, 906 So. 2d at 798. For
example, in Odom, “[t]he parties were aware of the issues the trial judge was ruling on as
they had previously argued the issues before the trial judge.” Id. This Court found no merit
to the issue of delineating its reasons for denial. Id.
¶11. In the instant case, the parties knew of the argued issues, and the circuit court denied
the motion after having “considered the Plaintiff’s [m]otion and submissions and the
responses thereto[.]” Palmer claims that the circuit court did not reference Nunnery in its
decision, but neither Nunnery nor Odom requires a trial court to delineate its reasons for
denying a motion for extension of time. We find this issue without merit.
¶12. In Nunnery, the Mississippi Supreme Court did not find excusable neglect after
considering all aspects of the case. The supreme court noted that equity helps those who are
vigilant, but it does not help those who sleep on their rights. Nunnery, 195 So. 3d at 753.
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Specifically, the appellant’s attorney failed to timely appeal due to the impending death of
his brother. Id. at 749. The attorney learned of his brother’s impending death twenty-one
days into the thirty-day deadline to appeal. Id. He also slept on his rights for fifteen months
when he failed to request a hearing on his motion for a new trial. Id. at 753.
¶13. First, Palmer argues that the defendants have suffered no prejudice because they have
“never claimed anything more than a generic opposition to having to deal with the appeal.”
We note that the defendants claimed as an affirmative defense that the statute of limitations
had run on the underlying medical-malpractice suit. Based on the facts as pleaded, we cannot
say that such defense is clearly without merit. Moreover, there exists a risk that evidence and
witnesses may not be available. See Miss. Dep’t of Pub. Safety v. Stringer, 748 So. 2d 662,
665 (¶13) (Miss. 1999) (noting that the statutory-time-limitation statutes were designed to
suppress stale claims).
¶14. Palmer also argues that the length of the delay was minimal. She claimed her motion
was only six days late, and noted “[t]he minor delay had no potential impact on judicial
proceedings.” We agree that the length of delay is minimal, but we cannot agree that judicial
proceedings will not be impacted. In this regard, we point out that the underlying medical-
malpractice claim is over four years old. Memories fade, and facts become incapable of
being produced. Id.
¶15. Palmer further argues that the reason for the delay was out of her control. She points
out that the delay occurred because her previous counsel quit his firm twenty-eight days into
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the thirty-day deadline for executing the appeal, that counsel’s exit was “wholly unexpected,”
and that he failed to notify the firm’s leadership of the pending deadlines in her case.
¶16. As noted, in Nunnery, the attorney failed to meet his deadline because of the
impending death of his brother. The attorney was a solo practitioner whose legal secretary
was his wife, and when tragedy struck, he was unable to delegate duties to another.
¶17. In the instant case, Palmer’s counsel was part of a large firm, and it remains
unexplained why the task was not delegated to another in order to avoid the delay.
Furthermore, it remains unexplained why her previous counsel did not file for an extension
during the twenty-eight days that he remained with the firm following the dismissal of
Palmer’s complaint. See Almasri v. Hyde-Smith, 2017-CA-00163-COA, 2018 WL 2929810
at (¶19) (Miss. Ct. App. June 12, 2018) (finding no excusable neglect; the appellant did not
offer evidence to show why he was unable to file within the thirty-day period following
judgment). Filing a motion is a simple act. Byrd v. Biloxi Reg’l Med. Ctr., 722 So. 2d 166,
169 (¶13) (Miss. Ct. App. 1998). “[A] party must do all it could reasonably be expected to
do to perfect the appeal in a timely fashion.” Id.
¶18. Finally, Palmer argues that she acted in good faith because her new counsel entered
his appearance on the same day the delay was discovered. We agree, but it remains
unexplained why the simple act of filing the motion was not delegated to another attorney
sooner, in order to avoid such a misfortunate delay. The firm handling Palmer’s case
certainly had the resources available to it as it is a large firm.
¶19. For the reasons discussed, and based on our supreme court’s holding in Nunnery, we
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can find no abuse of discretion on the part of the circuit court in denying Palmer’s motion
for an extension of time to file her appeal. Therefore, the judgment appealed from is
AFFIRMED.
LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, GREENLEE AND TINDELL,
JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.
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