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Palmer v. Clark Clinic, Inc.

Court of Appeals of Mississippi

December 4, 2018

SHOWANDA PALMER, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES AND ESTATE OF NATHANIEL MOORE APPELLANT
v.
CLARK CLINIC, INC., SCOTT REGIONAL MEDICAL CENTER, INC. AND DR. GEORGIOS ZIAKAS APPELLEES

          DATE OF JUDGMENT: 06/30/2017

          SCOTT COUNTY CIRCUIT COURT HON. CHRISTOPHER A. COLLINS JUDGE

          ATTORNEYS FOR APPELLANT: DAVID NEIL MCCARTY GREGORY JOHN BOSSELER

          ATTORNEYS FOR APPELLEES: MILDRED M. MORRIS WILLIAM T. MAY KACEY GUY BAILEY TIMOTHY LEE SENSING

          BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.

          IRVING, P.J.

         ¶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 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 ...


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