On Thursday a divided Mississippi Supreme Court affirmed the trial court’s refusal to grant an extension to file a notice of appeal in Nunnery v. Nunnery. Here is the Court’s opinion.

Justice Coleman’s majority opinion has the perfect opening for the case:

The instant case presents a difficult factual situation and outcome. In the wake of an attorney’s family tragedy, the defendants missed their deadline for filing their notice of appeal. The chancellor denied the defendants’ request to extend the time to file the notice of appeal.

The attorney was a solo practitioner. The family tragedy was that the attorney’s brother was critically injured in a car wreck in South Carolina and died after an extended stay in an ICU. The deadline for filing the notice of appeal expired between the date of the accident and the date of the funeral.

The majority found no abuse of discretion and affirmed. Joining Justice Coleman in the majority were Justices Randolph, Lamar and Beam.

Justice Dickinson wrote a dissenting opinion joined by Justices Waller and King. Justices Maxwell and Kitchens did not participate. Miss. Supreme Court

The decision turned on whether the trial court’s decision was based on a question of fact or law. The majority deemed it a fact question–the minority a legal question.

From the dissent:

Simply put, [defendants’] counsel clearly found himself in extraordinary circumstances which were completely beyond his control. This Court sometimes forgets that our extremely high expectations for attorneys do not comport with reality–the reality that attorneys are humans and will sometimes, on rare occasion, be overwhelmed by extraordinary personal or familial circumstances which understandably take precedence over court-imposed deadlines.

But since the majority determined this was a fact question subject to the abuse of discretion standard, it affirmed.

My Take:

I hate that the Court had to decide this case. The Appellees not agreeing to the extension was a dick move. If I was in that position, I would have agreed to an Agreed Order granting the extension. I believe that most lawyers that I have litigated against would also agree to an extension in that scenario.

As for the Court’s decision itself, my life and career experience put me in the dissent’s camp. In my opinion the attorney did the right thing by dropping everything at work and putting family first in a time of crisis. I’ve been there–more than once. And if you practice law long enough, chances are, you are going to find yourself in that situation.

When a loved one is suddenly stricken by accident or injury, everything else goes by the wayside. One night you are awakened by the phone ringing. The next night you sit all night in the ICU waiting room praying to God that the phone from the unit does not ring for you. Even if you could practice law in those circumstances, you shouldn’t.

And extended illnesses are much more disruptive to practices than sudden deaths. I’ve had family members in ICU. Every patient in that unit is exceptionally sick.

One of the great things about being an attorney is that you can be a solo practitioner. But solo practitioners have no one to fall back on when tragedy strikes. It’s either pause the practice or neglect the family. It’s scary for solos like me.

If you have a terminally ill loved one and you don’t drop everything and do whatever you can for your family, you will regret it for the rest of your life. Trust me. I’ve done it the wrong way and the right way. I will not do it the wrong way again.

So I commend the Appellants’ attorney for putting family first. You did the right thing.