Bradley v. Hazard Technology Co., Inc., 30

• Decision Date: 01 September 1995
• Docket Number: No. 30,30
• Citation: 340 Md. 202,665 A.2d 1050
• Parties: Kathy BRADLEY v. HAZARD TECHNOLOGY CO., INC. ,
• Court: Maryland Court of Appeals

Page 202

340 Md. 202

665 A.2d 1050

Kathy BRADLEY v. HAZARD TECHNOLOGY CO., INC.

No. 30, Sept. Term, 1995.

Court of Appeals of Maryland.

Oct. 12, 1995.

Nancy E. Leibowitz (C. Edward Hartman, III, Hartman and Parrott, on brief), Annapolis, for petitioner.

No brief filed on behalf of respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

The question presented in this case is whether a party appealing the judgment of the district court in a civil action is entitled to a new trial when a complete trial transcript is unavailable on appeal due to a failure of the court's recording equipment. We hold that the unavailability of a full transcript does not automatically entitle a party to a new trial, but that retrial may be appropriate if the appellant can demonstrate that the missing portion of the transcript is relevant to consideration of a specific allegation of error, and that no sufficient substitute for the missing transcript can be reconstructed.

I.

This case grew out of a dispute over certain payments made to the Petitioner, Kathy Bradley, by the Respondent, Hazard Technology Co., Inc. (Hazard). In early 1992, Hazard's president, David Levinson, hired Ms. Bradley to work as a sales representative for his company. Ms. Bradley was expected to generate sales of Hazard's industrial health and safety equipment in a territory that included parts of Connecticut, New York, New Jersey and Eastern Pennsylvania. She was to be paid on a commission basis. In July of 1992, Mr. Levinson became dissatisfied with Ms. Bradley's efforts and terminated the arrangement.

Hazard filed suit on April 19, 1993 in the District Court of Maryland sitting in Anne Arundel County seeking to recover $8,592.88 in payments that Hazard made to Ms. Bradley during the time she worked for the company. Hazard alleged that the payments were "advances" on commissions that Ms. Bradley never earned. Ms. Bradley maintained the payments were compensation for work performed. On May 5, 1994, after a one-day bench trial, the district court entered judgment in favor of Ms. Bradley.

Hazard filed a timely notice of appeal with the clerk of the district court, pursuant to Maryland Rule 7-103(a), and requested that a transcript be prepared for appellate review in the Circuit Court for Anne Arundel County, pursuant to Maryland Code (1974, 1995 Repl.Vol., 1995 Supp.), Courts and Judicial Proceedings Article, §§ 12-401 and 12-403. ¹ On September 22, 1994, counsel for Hazard was informed that, due to a faulty audio tape, a full transcript of the district court trial could not be provided. ² A truncated 80-page transcript containing opening statements, the plaintiff's entire case, and a portion of the defendant's case was produced. On the final page of the transcript, the court reporter indicated "tape will no longer run ... we cannot complete this transcript." Missing from the transcript were the remaining portions of the defendant's case and the announcement of the district court's judgment.

On November 28, 1994, Hazard moved to have the circuit court remand the case for a new trial on the ground that in the absence of a complete transcript it was "unable to adequately prepare for and prosecute its appeal." The circuit court granted the motion without a hearing. Ms. Bradley filed a petition for certiorari in this court. We granted certiorari to consider her assertion that the circuit court erred in remanding the case without first requiring Hazard to submit a memorandum outlining the basis for its appeal, and then determining whether a record sufficient for appellate review could have been reconstructed from the partial transcript, supplemented with stipulations of the parties.

II.

It is well-settled that, on appeal, the burden of establishing error in the lower court rests squarely on the appellant. Wooddy v. Mudd, 258 Md. 234, 237, 265 A.2d 458, 460 (1970) (quoting Rippon v. Mercantile-Safe Dep., 213 Md. 215, 222, 131 A.2d 695, 698 (1957)). This rule reflects a general presumption of regularity in the proceedings below. See Hagerstown Trust Co., Ex. of Mealey, 119 Md. 224, 230, 86 A. 982, 984 (1913) ("[T]he presumption is that the ruling of the lower Court was correct, until the contrary appears."). Unless an appellant can demonstrate that a prejudicial error occurred below, reversal is not warranted. See Wooddy, 258 Md. at 237, 265 A.2d at 460.

Pursuant to this principle, Maryland Rule 7-113(d)(2) requires a party appealing a judgment of the district court to file with the circuit court an appeal memorandum containing "(A) a statement of the questions presented for review, (B) a concise statement of the facts material to a determination of the questions presented, and (C) argument in support of the appellant's position, stating the grounds for the relief sought and the authorities in support of each ground." ³

In the instant case, Respondent Hazard never filed its appeal memorandum, as required by Md.Rule 7-113(d)(2). Instead, Respondent moved to have the circuit court remand the case for a new trial because a full transcript of the trial was unavailable. Hazard also moved to extend the time to file its appeal memorandum until after the circuit court ruled on the motion to remand. The court granted Hazard's "Motion to Extend Time" on December 5, 1994, and then, on December 29, 1994, granted Hazard's "Motion to Remand Case to District Court for Trial." Consequently, the circuit court remanded the case for a new trial without even requiring Hazard to file a memorandum outlining the basis for its appeal.

We hold that the circuit court erred in remanding the case before Hazard filed the appeal memorandum required by Md.Rule 7-113(d)(2). In so doing, the court granted appellate relief before Hazard had presented any specific allegation of error, posed any questions for appellate review, or provided an argument in support of its position. The mere absence of a full transcript does not relieve an appellant of its burden to assert error. Moreover, the circuit court awarded Hazard a new trial even though a substantial portion of the trial testimony, including Hazard's entire case-in-chief, had been transcribed and was available for review on appeal.

We believe it is unfair to the prevailing party and the witnesses, as well as a waste of judicial resources, to automatically grant the losing party a new trial in cases where a full trial transcript is unavailable due to no fault of the litigants. ⁴ In addition to enduring the added time and expense associated with retrial, a party may encounter problems procuring the presence of vital witnesses at a second trial. This Court has consistently held, in both the civil and criminal contexts, that the unavailability of a complete transcript does not by itself warrant a new trial. Smith v. State, 291 Md. 125, 136, 433 A.2d 1143, 1147 (1981); State v. Long, 235 Md. 125, 127-28, 200 A.2d 641, 642-43, cert. denied, Long v. Maryland, 379 U.S. 917, 85 S.Ct. 268, 13 L.Ed.2d 187 (1964); Michigan Nat. Bank v. Racine, 234 Md. 250, 253, 198 A.2d 898, 899 (1964).

We faced this issue in the criminal context in Smith, supra, where the appellant argued he was denied his right of appeal because portions of testimony by two state's witnesses were not preserved due to technical problems with the trial court's tape recording system. Smith, 291 Md. at 126, 433 A.2d at 1144. We made clear that the omissions in the trial transcript do not entitle an appellant in a criminal case to automatic reversal and a new trial:

"We do not believe, therefore, that every inadvertent omission in the record would call for reversal or would justify the time and expense incident to a new trial.

It would wreak havoc on the administration of justice to require reversal in each and every case in which it is alleged by an appellant that portions of trial testimony have not been preserved verbatim for review. As anyone familiar with appellate review can attest, transcripts are seldom perfect. Mistakes inevitably occur.... Electronic recording or stenographic equipment will occasionally fail....

Understandably, therefore, it has been necessary for courts to proceed on a case-by-case basis."

Smith, 291 Md. at 133-34, 433 A.2d at 1147.

Rather than automatically ordering a new trial, we noted that generally courts have placed the "onus upon the appellant to show that the omissions are not merely inconsequential, but are in some manner relevant on appeal," 291 Md. at 136, 433 A.2d at 1149. Further, we found that "[s]ometimes substitute statements or affidavits can be prepared to replace or to supplement the record, thus providing an appellant with adequate material for the court to review." Id. Finally, we noted that "only when an adequate substitute cannot be made" need we consider an appellant's contention that he has been deprived of meaningful appellate review. 291 Md. at 137, 433 A.2d at 1149. We believe this reasoning applies with equal weight in the context of a civil action. See Michigan Nat. Bank, 234 Md. at 253, 198 A.2d at 899 ("[T]he mere fact that the stenographer's notes were lost does not automatically call for a new trial."). In Burroughs v. Milligan, 199 Md. 78, 85 A.2d 775 (1952), we indicated:

"[T]he court stenographer, who took down the testimony, died ... and her notes on the testimony cannot be located. Under these circumstances, we have no testimony in the record and must decide the case, therefore, upon the statements of fact contained in the court's opinion, and any other facts we may find are agreed upon by the parties."

199 Md. at 81, 85 A.2d at 777. We believe deciding an appeal on the merits where possible, even if a full transcript is unavailable, serves the interests of justice and judicial economy.

Furthermore, the entire record is not always necessary for an appeal. Under Md.Rule 7-113(b)(1)(A), parties may stipulate to proceed on appeal in ...