Caseflicks

Ohio Supreme Court • 1980

Knapp v. Edwards Laboratories

61 Ohio St. 2d 197 | 400 N.E.2d 384 | 15 Ohio Op. 3d 218 | 1980 Ohio LEXIS 636

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Takeaway

In short, this case makes the appellant responsible for an adequate appellate record, but it requires courts to pursue available methods of reconstructing an unavailable transcript before either affirming by default or ordering a new trial.

Background

After an adverse trial-court judgment, the plaintiffs appealed but could not obtain a verbatim transcript of portions of the trial testimony needed to present their claimed errors. The court reporter was unable to transcribe her notes because of her health, and delays were compounded by the conduct of the trial judge, who was later removed from the case.

The plaintiffs waited with the court's permission for the reporter to recover and prepare the transcript. The Court of Appeals concluded that the missing transcript entitled the plaintiffs to a new trial. The defendants argued instead that the appellate court should have affirmed because the plaintiffs had not supplied an adequate record. The Ohio Supreme Court rejected both proposed dispositions and remanded for further proceedings.

Issues

Issue #1

Whether an appellant's inability to provide a verbatim transcript ordinarily permits review of assignments of error that depend on the missing testimony.

Holding

No. The appellant bears the primary burden to provide a record adequate for appellate review; absent a necessary transcript or permissible substitute, the reviewing court ordinarily must presume the trial court acted correctly and affirm as to transcript-dependent errors.

Reasoning

Appellate review depends on the record, and the appellant bears the burden of showing error from that record. Appellate Rule 9(B) therefore requires an appellant to order the portions of the transcript necessary to present the appeal. Although an appellee may designate additional portions it considers necessary, that limited obligation does not displace the appellant's primary responsibility.

When testimony necessary to resolve an assigned error is missing, an appellate court has no basis for evaluating the claim. Ordinarily, it must presume the regularity and validity of the trial proceedings and affirm the judgment on any issue that cannot be decided without the omitted material.

A missing verbatim transcript does not end the appellant's options. Under Appellate Rule 9(C), an appellant may prepare a narrative statement of the proceedings when a transcript is unavailable, subject to the appellee's objections and the trial court's approval. Under Appellate Rule 9(D), the parties may submit an agreed statement of the case instead. The plaintiffs had not attempted either alternative.

Issue #2

Whether the plaintiffs were entitled to a new trial, or instead to an affirmance against them, because the reporter could not prepare the transcript during the appeal.

Holding

Neither result was immediately warranted. Because the plaintiffs remained in compliance with court-approved appellate procedures and were not responsible for the delay, the case had to be remanded to explore reasonable ways to reconstruct the record; a new trial could be considered only as a last resort.

Reasoning

The plaintiffs' failure to supply a transcript was not the usual failure to create an adequate record. They had acted with the court's permission throughout the appeal while waiting for the reporter's health to improve, and the Court found no legal impropriety by the plaintiffs. It would therefore be unfair to affirm solely because the transcript had not been produced.

At the same time, the absence of a transcript did not automatically establish a right to retry the case. A new trial is an extraordinary remedy when other procedures may still permit an adequate appellate record to be made.

On remand, a judge appointed under Civil Rule 63(B) was to complete the duties left unfulfilled by the removed trial judge. That judge should first determine whether the reporter had regained the ability to transcribe her notes. If not, the judge should give the plaintiffs an opportunity to proceed through an Appellate Rule 9(C) narrative statement or an Appellate Rule 9(D) agreed statement. Only after reasonable alternatives are exhausted should the judge consider granting a new trial under Civil Rule 63(B).

Concurrences

Justice Holmes

Reasoning

Justice Holmes agreed with the disposition but emphasized an additional means of addressing the incomplete record. Under Appellate Rule 9(E), the parties by stipulation, the trial court, or the court of appeals may correct an omission or misstatement in the record and, if needed, direct that a supplemental record be certified and transmitted. This rule supplied another route for reconstructing or completing the record before resorting to a new trial.