Bobby Pennington v. Dillard Supply, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01687-COA
BOBBY PENNINGTON, INDIVIDUALLY
APPELLANT
v.
DILLARD SUPPLY, INC.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
4/15/2002
HON. PAUL S. FUNDERBURK
PONTOTOC COUNTY CIRCUIT COURT
ANNE E. PITTS
STEPHAN L. MCDAVID
ROGER M. TUBBS
CIVIL
FOUND PONTOTOC BUILDING MATERIALS,
INC. AND BOBBY PENNINGTON,
INDIVIDUALLY LIABLE FOR DEBT OWED TO
DILLARD SUPPLY, INC.
AFFIRMED: 11/04/2003
BEFORE MCMILLIN, C.J., MYERS AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Dillard Supply, Inc. filed a collection action against Pontotoc Building Materials, Inc. and, its sole
shareholder, Bobby Pennington. After a trial on the merits, the Circuit Court of Pontotoc County entered
a judgment against Pontotoc Building Materials, Inc. and Bobby Pennington, finding Pennington personally
liable for the debt. On appeal, Pennington admits that Pontotoc Building Materials, Inc. owes Dillard
Supply, Inc. the amount awarded in the judgment, but claims that the trial court erred in finding him
personally liable for the debt. Finding the record insufficient, we must affirm.
¶2.
Pontotoc Building Materials, Inc. was administratively dissolved by the Mississippi Secretary of
State for failing to file an annual report. During the period of administrative dissolution, Pennington
continued to operate the business and purchased supplies from Dillard Supply, Inc. After the account
became delinquent, Dillard Supply, Inc. brought this collection action against the corporation and,
individually, against its sole shareholder. The basis for Pennington’s individual liability was that the debt was
incurred while Pontotoc Building Materials, Inc was administratively dissolved. Subsequently, Pontotoc
Building Materials, Inc. was reinstated by the Mississippi Secretary of State. The court entered a final
judgment against Pontotoc Building Materials, Inc. and Pennington, individually, awarding Dillard the
amount of the debt, prejudgment interest and attorney's fees, for a total judgment of $13,110.65.
¶3.
In this appeal, Pennington contends that the reinstatement of the corporation, pursuant to
Mississippi Code Annotated Section 79-4-14.22(c) (Rev. 2001), relieves him of any personal liability.
Section 79-4-14.22(c) provides, “when reinstatement is effective, it relates back to and takes effect as of
the effective date of the administrative dissolution and the corporation resumes carrying on its business as
if the administrative dissolution had never occurred.” Pennington argues that the debt was an act of the
corporation and assumed by the corporation upon its reinstatement. ¶4.
Dillard Supply, Inc. argues
that Pennington has failed to provide this Court with a complete record and that the trial court properly
found Pennington individually liable. Because we find the absence of the record to be determinative, we
do not address the merits of Pennington’s assignment of error.
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¶5.
"It is a well settled rule that this Court will only consider facts found within the trial record. This
Court does not rely on assertions made in briefs, but only on facts preserved within a record certified by
law." McLee v. Simmons, 834 So.2d 61, 64-65 (¶12) (Miss. Ct. App. 2002). It is an appellant's duty
to justify his arguments of error with a proper record or the trial court will be considered correct. Am. Fire
Prot., Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss. 1995). The record on appeal must show such portions
of the record of the trial court as are necessary for a consideration of the questions presented. 4 C.J.S.
Appeal and Error § 440 (1993). The absence of an adequate record may result in affirmance or
dismissal. Id. Therefore, before we can address the merits of an appeal, we must have a complete record
of the evidence presented, the rulings made, and the basis for the trial court's decision.
¶6.
Here, the record consists of a final judgment, Pennington's motion for reconsideration with attached
exhibits, Dillard Supply, Inc.’s response, Pennington's rebuttal, and the court’s order denying the motion
for reconsideration. In the final judgment, the court ruled against Pennington without elaboration. The final
judgment was entered after a trial; however, the record does not contain a transcript of the trial. No
documentary evidence, such as a promissory note, invoices, account information or pertinent documents,
was presented in the record for our review. Without a complete record and transcript, we are not able to
review the evidence presented at trial. The record on appeal must affirmatively show that the point
complained of was presented to and determined by the trial court's ruling to be adverse to the appellant.
4 Am Jur 2d Appeal and Error § 491 (1962).
¶7.
"The appellant has the duty of insuring that the record contains sufficient evidence to support his
assignments of error on appeal." Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (¶4) (Miss.
2002). "Facts asserted to exist must and ought to be definitely proved and placed before us by a record,
certified by law; otherwise, we cannot know them." Id. In this case, it was incumbent upon Pennington
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to include the necessary information in the record. Pennington has failed to place the necessary record
pertaining to his assignment of error before us, and we are therefore unable to consider his assignment of
error. Therefore, the trial court's judgment is affirmed.
¶8.
THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT IS AFFIRMED.
STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS ARE ASSESSED TO
THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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