        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-01868-COA

CHARLES IRVIN BRUTON, JR.                                                  APPELLANT

v.

ALLISON HIPWELL BRUTON                                                       APPELLEE


DATE OF JUDGMENT:                         10/03/2013
TRIAL JUDGE:                              HON. M. RONALD DOLEAC
COURT FROM WHICH APPEALED:                LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   DAVID NEIL MCCARTY
ATTORNEYS FOR APPELLEE:                   AMANDA JANE PROCTOR
                                          W. BENTON GREGG
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                  DENIED MOTION FOR OUT-OF-TIME
                                          APPEAL
DISPOSITION:                              AFFIRMED: 04/28/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ.

       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 judgment, 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, 2013, 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.

¶9.    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



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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



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the chancellor’s decision to deny the motion 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:



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       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).

¶17.   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. Counsel for [Allison] filed a response on Friday advising that the
       matter of a stay and request for supersedeas bond was moot since the appeal
       was not perfected on Monday. Counsel for [Chuck] did not interpret the rules
       to require the filing of the notice of appeal before the trial court decided the
       stay motion. Out of an abundance of caution, Defendant Chuck Bruton filed
       his notice of appeal on Friday, August 30th, 2013[,] and posted all fees and
       costs.

       If in fact counsel for [Chuck] is incorrect in his interpretation of the rule he
       would request pursuant to Rule 4(g) of the Rules of Appellate Procedure that
       the Court extend the time for filing his notice of appeal to Friday August 30th
       nunc pro tune in light of the pending ruling on the request for a stay and
       supersedeas bond.

At the hearing on the motion, Chuck’s counsel made the same argument. The chancellor



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determined that excusable neglect was not shown and denied the motion.

¶19.   Chuck emphasizes that the Comment to Rule 4(g) states: “Rule 4(g) is based on Fed.

R. App. P. 4(a)(5).” Chuck then offers an unpublished per curiam opinion from the Fifth

Circuit. In United States ex rel. King v. University of Texas Health Science Center-Houston,

544 Fed. App’x 490, 493-95 (5th Cir. 2013), a party “filed her notice of appeal, along with

a motion for extension of time pursuant to Federal Rule of Procedure 4(a)(5) . . . thirty-five

days” after entry of the judgment. The claim was brought under the False Claims Act, and

the party’s attorney believed that the United States was a party in interest, which would allow

sixty days to file an appeal. Id. at 493. However, the United States Supreme Court had

decided that the rule was still only thirty days if the government had not formally intervened.

Id. To establish excusable neglect, the party noted that “[h]er attorneys had busy trial dockets

. . . .” Id. The Fifth Circuit concluded that the Supreme Court “did not create rigid rules

forbidding extensions of time based on ignorance of the rules or an attorney’s workload.”

Id. at 494. The court also noted that “[t]he delay here was only five days and did not

prejudice” the appellee. Id. However, the Fifth Circuit concluded: “Given the leeway

granted to district courts when evaluating excusable neglect, we hold that the district court

did not abuse its discretion in granting [the appellant’s] motion for an extension of time to

file her notice of appeal.” Id. (internal citation and quotation marks omitted).

¶20.   While we recognize the Fifth Circuit’s recent decision, we must decide this case based

on existing precedent from the Mississippi Supreme Court. In In re Estate of Ware, 573 So.

2d 773, 774 (Miss. 1990), the supreme court held that the Mississippi Rules of Appellate



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Procedure require the notice of appeal to be filed within thirty days of the judgment appealed

from. The court also held that this rule is “mandatory and jurisdictional, and this court has

no authority to extend the time for filing an appeal.” Id. (quotation marks omitted). Since

then, the supreme court has not wavered from this principle. In fact, the language used in

Estate of Ware was incorporated in the Comment to Mississippi Rule of Appellate Procedure

4. And the Comment specifically states that “[e]xcusable neglect will not be shown by

counsel's busy trial schedule.” Therefore, we find that the chancellor was within his

discretion to deny Chuck’s motion to extend the period for appeal under Rule 4(g).

¶21.   Chuck also asked this Court to consider the chancellor’s determination that the

chancery court lacked jurisdiction due to the first notice of appeal. We decline to address this

issue. The chancellor’s order and his oral ruling from the bench indicated that he first

considered this motion under Rule 4(g) and then considered the jurisdictional issue. While

this may seem backwards, we review the chancellor’s order. We have no reason to believe

that the chancellor would change the outcome of his decision if we found he was in error in

his jurisdiction finding. In fact, the matter would be sent back for the chancellor to consider

the extension under Rule 4(g), which he has already done. Therefore, because we find that

the chancellor considered the motion under Rule 4(g) and this decision was not an abuse of

discretion, we find that Chuck’s jurisdictional argument is moot.

¶22. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

   LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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