Summary
holding that an appellant has the duty to provide a transcript for appellate review because the appellant bears the burden of showing error by reference to matters in the record
Summary of this case from Rizzo-Lortz v. Erie Ins. Grp.Opinion
No. 79-310
Decided February 13, 1980.
Appeal — Transcript of proceedings — Appellant's burden to supply — Not satisfied, when — Options available — New trial appropriate, when.
APPEAL from the Court of Appeals for Richland County.
Plaintiffs-appellees, Thomas P. Knapp and Carol Knapp, instituted this action against the defendants-appellants, Edwards Laboratories, University Hospitals of Cleveland and Dr. Jay L. Ankeney, for problems arising from a heart valve implanted in Mr. Knapp. All the defendants received favorable verdicts at trial, and judgment was entered on the verdicts. Subsequently, plaintiffs' motion for new trial was overruled. Plaintiffs appealed these judgments, filing their notice of appeal with the Court of Appeals on December 29, 1977.
Incident to their appeal, plaintiffs sought to have a transcript of the trial prepared for appellate review. Because one of the court reporters from the trial became ill, however, testimony from the first four days of the thirteen-day trial could not be transcribed. Thereafter, plaintiffs were granted numerous leaves by order of the trial court to prepare and file the transcript with the Court of Appeals. The leaves extended continuously to February 2, 1979. At no time were the plaintiffs out of order by their failure to file such transcript.
On March 28, 1978, the plaintiffs moved for a hearing on the transcript or for a new trial upon a finding that the reporter could not provide such a transcript. The motion was not ruled upon until November 1, 1978.
On September 5, 1978, the defendants moved the trial court for an order requiring plaintiffs to file a narrative transcript pursuant to App. R. 9(C) on the basis that the reporter could not provide a transcript. On September 25, 1978, the plaintiffs moved for relief from judgment, in accordance with Civ. R. 60(B). These motions were never ruled upon.
On November 1, 1978, the trial court, ruling on plaintiffs' March 28, 1978, motion, appointed a referee for the purpose of obtaining evidence to ascertain why a transcript could not be "reconstructed, created or transcribed for the purposes of any appeal of this cause."
On December 15, 1978, the referee filed his report, stating that a deposition of the reporter had been taken pertaining to her ability to transcribe the testimony taken at the trial. The referee found that the reporter was "currently" able to dictate into a recording device, from her shorthand notes, provided she was given assistance with respect to technical terms and furnished copies of any written materials which were read into the record or from which testimony had been obtained. In addition, the referee found that because of the reporter's "current medical condition, six months would be a reasonable time in which to expect completion" of her dictation, provided she had the proper assistance, described above. The referee's report was never acted upon by the trial court.
Proceedings contemporaneous to those herein dictated the removal from office of the trial judge who had presided over the instant controversy. See Ohio State Bar Assn. v. Mayer (1980), 54 Ohio St.2d 431. On December 12, 1978, the judge was replaced in office.
On January 16, 1979, the Court of Appeals vacated the judgments of the lower court on the basis that appellants had been "effectively denied their right of appeal by reason of failure of the trial court to produce a transcript of the proceedings or other document in lieu thereof***."
The cause is now before this court upon allowance of a motion to certify the record.
Messrs. Inscore, Rinehardt Whitney and Mr. Larry L. Inscore, for appellees.
Messrs. McNeal, Schick Archibald and Mr. Harley J. McNeal, for appellant Edwards Laboratories.
Messrs. Arter Hadden and Mr. Robert C. McFadden, for appellant University Hospitals. Messrs. Weldon, Huston Keyser and Mr. George Hall, for appellant Ankeney.
The question now before this court is whether plaintiffs are entitled to a new trial, as the Court of Appeals determined, because a court reporter is unable to transcribe portions of trial testimony necessary to the proper presentation of assigned errors on appeal. Plaintiffs, of course, adopt this position. Conversely, defendants contend that, instead of granting a new trial, the Court of Appeals should have affirmed the judgments of the trial court on the basis that plaintiffs failed to provide a transcript of the trial proceedings for appellate review. For the following reasons we find that neither contention is entirely sound.
The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized in App. R. 9(B), which provides, in part, that "***the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record***." When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.
It is also true that the appellee must bear some burden for providing an adequate transcript under App. R. 9(B). The relevant portion of that rule states that "[i]f the appellee deems a transcript of other parts of the proceedings to be necessary he shall***file and serve on the appellant a designation of additional parts to be included." However, this does not relieve an appellant from the primary burden of providing a transcript.
The plaintiffs in this action did not meet their burden to supply a transcript of the trial proceedings. Admittedly, it was through no fault of their own that plaintiffs were unable to supply a verbatim trial transcript. However, other options were available, specifically App. R. 9(C) and (D). App. R. 9(C) permits an appellant to submit a narrative transcript of the proceedings when a verbatim transcript is unavailable, subject to objections from the appellee and approval from the trial court. App. R. 9(D) authorizes parties to submit an agreed statement of the case in lieu of the record. There is nothing in the record indicating that plaintiffs even attempted to avail themselves of these alternatives. Accordingly, as to those assignments of error dependent for their resolution upon a trial transcript, the judgment of the lower court would ordinarily be affirmed in a case such as this.
One fact, however, precludes such a result in this cause — plaintiffs were never out of order during the entire pendency of the appeal. At all times plaintiffs acted with the permission of the court in waiting for the court reporter to regain her health so that she could transcribe her notes. While we do not condone the long delays involved here, particularly those caused by the removed trial judge's lackadaisical behavior, we find no legal impropriety on plaintiffs' behalf. Under such circumstances we believe it would be inappropriate to affirm the judgments of the trial court, as defendants urge.
This does not mean, however, that plaintiffs are entitled to a new trial. Rather, the cause should be remanded to the trial court, where, pursuant to Civ. R. 63(B), a judge shall be appointed to complete the unfulfilled duties of the removed trial judge in this cause. Several options are then available to the appointed judge. We suggest that an inquiry be made as to the current health status of the court reporter. Indeed, it would not be surprising to find that she is now quite able to transcribe her notes. If not, plaintiffs should be given the opportunity to provide the court with an App. R. 9(C) narrative transcript. The parties might even reach an agreed statement of the case pursuant to App. R. 9(D). But, the appointed judge should consider granting plaintiffs a new trial, in accordance with Civ. R. 63(B), only after all reasonable solutions to this problem are exhausted.
For the aforementioned reasons the judgment of the Court of Appeals is reversed and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
I am in agreement with the majority opinion, but would like to point out that in addition to the avenues open to the parties, as suggested in the opinion, the Appellate Rules, by way of App. R. 9(E), provide that the Court of Appeals may correct or modify the record to reflect that which occurred in the trial court. The following pertinent language is to be found within App. R. 9(E):
"* * *If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted."