In re the EState W. Dabney, 2009–CP–01923–COA.

• Decision Date: 30 August 2011
• Docket Number: No. 2009–CP–01923–COA.,2009–CP–01923–COA.
• Citation: 69 So.3d 71
• Parties: In re the ESTATE OF Eloise W. DABNEY, Deceased, and The Estate of Mary Dabney Nicholls, Deceased.Freddie Dabney Hataway, Appellantv.David H. Dabney, Dabney Nicholls Haugh, Kristi Tedder, Wendy Nicholls Wilhoit, Robert Richmond, Matt Richmond, Dana S. Ellis, Douglas Sevier, William M. Bost Jr., The Dabney Company, L.P. and The Dabney Company L.L.C., Appellees.
• Court: Mississippi Court of Appeals

69 So.3d 71

In re the ESTATE OF Eloise W. DABNEY, Deceased, and The Estate of Mary Dabney Nicholls, Deceased.Freddie Dabney Hataway, Appellant

v.David H. Dabney, Dabney Nicholls Haugh, Kristi Tedder, Wendy Nicholls Wilhoit, Robert Richmond, Matt Richmond, Dana S. Ellis, Douglas Sevier, William M. Bost Jr., The Dabney Company, L.P. and The Dabney Company L.L.C., Appellees.

No. 2009–CP–01923–COA.

Court of Appeals of Mississippi.

Aug. 30, 2011.

Freddie Dabney Hataway, appellant, pro se).David H. Dabney, appellees, pro se.Before LEE, C.J., MYERS and MAXWELL, JJ.MYERS, J., for the Court:

¶ 1. On November 3, 2009, the Warren County Chancery Court entered an order and opinion, with factual findings and conclusions of law incorporated therein, closing the Estate of Eloise W. Dabney, deceased, and discharging David H. Dabney and Freddie Dabney Hataway as the Estate's co-executors. Freddie appeals from that order.

¶ 2. Because Freddie has failed to provide this Court with an adequate record of the proceedings in the chancery court and does not make out an apparent case of error in her brief, we affirm the chancery court's ruling.

DECISION

¶ 3. At the outset, we point out that Freddie's brother, David, died shortly after Freddie had filed her notice of appeal in this matter. David's attorney, Marcie Southerland, thereafter filed a motion for stay of appeal with Mississippi Supreme Court so that an executor could be appointed for David's estate. On July 29, 2010, the supreme court entered an order granting the motion. On October 14, 2010, the supreme court entered another order granting Southerland's motion for an extension of the stay of appeal; the supreme court dismissed without prejudice a motion for substitution of parties and suggestion of death filed by Freddie which asked that the “Estate of David H. Dabney be substituted for David H. Dabney.” On December 21, 2010, the supreme court entered an order granting Southerland's motion to withdraw as David's counsel and to extend the briefing deadline to January 10, 2011. The supreme court thereafter assigned the case to this Court. No appellee's brief was ever filed in this matter.

¶ 4. Generally, an appellee's failure to file a brief with the appellate court “is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error.” Taylor v. Kennedy, 914 So.2d 1260, 1261–62 (¶ 2) (Miss.Ct.App.2005) (citing Varvaris v. Perreault, 813 So.2d 750, 752 (¶ 5) (Miss.Ct.App.2001)). “In order to merit reversal, the appellant's argument should at least create enough doubt in the judiciousness of the trial court's judgment that this Court cannot say with confidence that the case should be affirmed.” Id. at 1262 (¶ 3) (citation and quotations omitted).

¶ 5. In her brief, Freddie asserts the following eleven assignments of error: (1) whether all matters regarding personal property of the Estate were settled at the property distribution ordered by the chancery court in 1996; (2) whether the chancery court's denial of allegations of missing estate property is manifestly wrong; (3) whether David had a right to the proceeds from the sale of the real property at 1714 Cherry Street, Vicksburg, Mississippi; (4) whether the proceeds of the sale of 1714 Cherry Street should have been released to David; (5) whether the chancery court's finding that Freddie is entitled to receive $2,143.75 from the sale of Eloise's Cadillac and that such sum should be paid from the estate, is correct; (6) whether Eloise's last will and testament provides that David may have use of the sterling silver flatware for as long as he has ownership of the house at 1300 Grove, Vicksburg, Mississippi; (7) whether transfer of title to the cemetery plots by Eloise to David prior to Eloise's death was unlawful; (8) whether a silver tray reported stolen by David was property of the Estate; (9) whether the Estate's insurance paid David $6,000 for the loss of the silver tray he had reported stolen; (10) whether the chancery court's decision to deny all other proposed findings of fact and conclusions of law submitted by the parties and not specifically listed in the chancery court's order, is error or manifestly wrong; and (11) whether with a gift inter vivos there is an automatic presumption of undue influence even without abuse of the confidential relationship.

¶ 6. We cannot address any one of these...