69 So. 3d 71
Miss. Ct. App.2011Background
- Freddie Dabney Hataway appeals in a chancery-court estate matter that closed Eloise W. Dabney's estate and discharged co-executors David H. Dabney and Freddie Dabney Hataway.
- The appellate record is incomplete: Freddie failed to provide transcripts of the chancery proceedings and only incorporated a partial five-page excerpt.
- Freddie’s brother David died after Freddie filed her notice of appeal; a Mississippi Supreme Court stay was granted and later extended for substitution and briefing matters.
- Supreme Court orders permitted continuation of the case with no appellee brief ever filed in the matter.
- The Mississippi Court of Appeals held it cannot address Freddie’s eleven assignments due to the inadequate record and lack of proper briefing, and affirmed the chancery court.
- All costs of the appeal were assessed to Freddie.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of the appellate record | Freddie argues for review of assignments based on the record. | Record is insufficient; transcripts not provided. | Record deficiencies bar review of assignments. |
| Effect of appellee's failure to file a brief | Freddie relies on the absence of an appellee brief to challenge the judgment. | Court treats failure to file as confession of error unless record shows otherwise. | Appellee's failure to brief supports affirming the judgment. |
| Reliability of findings lacking transcripts | Freddie contends the chancery findings are supported by hearings and evidence. | Without transcripts, appellate review cannot assess the findings. | Cannot address the issues due to missing transcripts. |
| Standard of review and final disposition | Freddie seeks reversal or modification of estate orders. | Record precludes meaningful review; final judgment should stand. | Judgment affirmed; no reversal based on the record before us. |
| Overall sufficiency of appellate record to support assignments | Freddie asserts error on multiple estate-issues. | Record omissions prevent review of all issues. | All issues deemed meritless due to defective record. |
Key Cases Cited
- Taylor v. Kennedy, 914 So.2d 1260 (Miss. Ct. App. 2005) (failure to file brief treated as confession of error absent contrary record)
- Varvaris v. Perreault, 813 So.2d 750 (Miss. Ct. App. 2001) (cited with Taylor for briefing implications)
- Oakwood Homes Corp. v. Randall, 824 So.2d 1292 (Miss. 2002) (appellate-record-presumption of correctness; need adequate record)
- Burney v. State, 515 So.2d 1154 (Miss. 1987) (duty to present sufficient record to support assignments)
- Shelton v. Kindred, 279 So.2d 642 (Miss. 1973) (preserves need for adequate record on appeal)
- Willenbrock v. Brown, 239 So.2d 922 (Miss. 1970) (presumption of correctness of lower court findings with adequate record)
- Redhead v. Redhead, 109 Miss. 648, 68 So. 923 (Miss. 1915) (historical standard for reviewing trial findings)