Bye v. Elvick, 10290

• Decision Date: 24 June 1983
• Docket Number: No. 10290,10290
• Citation: 336 N.W.2d 106
• Parties: Duane BYE and Marjorie Bye, Plaintiffs and Appellees, v. Roger N. ELVICK and Roger N. Elvick 1978 Trust, John Doe, Trustee, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 106

336 N.W.2d 106

Duane BYE and Marjorie Bye, Plaintiffs and Appellees, v. Roger N. ELVICK and Roger N. Elvick 1978 Trust, John Doe Trustee, Defendants and Appellants.

Civ. No. 10290.

Supreme Court of North Dakota.

June 24, 1983.

Tenneson, Serkland, Lundberg, Erickson & Marcil, Fargo, for plaintiffs and appellees; argued by Ronald McLean, Fargo.

Mabley, Manske & Wall, Roseville, Minn., and Stefanson, Landberg & Alm, Moorhead, Minn., for defendants and appellants Roger N. Elvick and Roger N. Elvick 1978 Trust; argued by Frank Mabley, Roseville, Minn.

Williamson, Bains, Moore & Hansen, Minneapolis, Minn., and Van Osdel, Foss & Miller, Fargo, for Roger N. Elvick 1978 Trust.

PEDERSON, Justice.

MOTION TO DISMISS APPEAL.

Before we reveal the facts in this case and consider the substance of the appeal, we must first consider the motion by the Byes to dismiss the appeal because of Elvick's alleged failure to comply with the North Dakota Rules of Appellate Procedure.

The trial of this action consumed twenty days and involved a difficult and confusing factual situation which presented complex legal issues. The action was tried without a jury. In its eighty-six findings of fact and thirteen conclusions of law, the court found in favor of the Byes and awarded them $304,338.60 for money it determined Elvick owed to them. Elvick filed a notice of appeal from the judgment, but because he could not pay for a full transcript, he ordered a partial transcript of the proceedings be transmitted to this court. The Byes objected to an appeal based upon a partial transcript and refused to stipulate as to which portions of the record were necessary. The Byes maintain that Elvick violated Rule 10(b), NDRAppP by failing to transmit a full and complete transcript and seek dismissal of the appeal.

Our initial consideration is whether the appellant must transmit a full and complete transcript of the proceedings if the parties cannot stipulate as to which portions of the transcript are necessary for our review. Rule 10(b), NDRAppP provides, in pertinent part, that:

"If an appeal is taken in a case in which any evidentiary hearing was held, it is The appellate rules concerning the record on appeal were changed substantially in 1978. Prior to 1978, Rule 10(b) provided, in part, that:

the duty of the appellant to order a transcript of the proceedings.... The order must be served on the reporter and must be for a complete transcript of the proceedings, unless a stipulation is obtained from all affected parties specifying portions which are not required for the purposes of the appeal. If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of issues raised by the appellant, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application."

"If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion."

This court interpreted the original version of Rule 10(b) as placing the burden of furnishing a suitable record on appeal upon the appellant. In Interest of R.H., 262 N.W.2d 719, 721 (N.D.1978); Starr v. Morsette, 236 N.W.2d 183, 186 (N.D.1975); State ex rel. Olson v. Nelson, 222 N.W.2d 383, 387 (N.D.1974). See also 9 Moore's Federal Practice p 210.05 (2d ed. 1948). We also noted that the appellant's position is "more subject to damage by the transcript's absence since he has the burden on appeal. If ... [the appellant] wishes to rely only upon the motion and affidavits that we have before us, we will hear the appeal on that record unless the ... [appellee] makes timely application for transmittal of additional parts of the record." State v. Stokes, 240 N.W.2d 867, 871 (N.D.1976).

Thus, Rule 10(b) allowed the appellant to proceed on less than a full transcript even though the appellee objected. The appellee who objected to a partial transcript "should provide any additional parts of the transcript that he believes necessary." State ex rel. Olson, supra, 222 N.W.2d at 387. In those appeals where the record did not allow for a meaningful and intelligent review of the error alleged to have occurred in the lower court, we held that the appellants "have not borne the burden of proof of showing error" and declined review of the issue. Starr v. Morsette, supra, 236 N.W.2d at 186.

Since Rule 10(b), NDRAppP was changed in 1978, the issue now under consideration has not been before this court. We must therefore determine the proper construction and application of Rule 10(b), NDRAppP.

Rule 10(b) is derived from Rule 3.03 of the Kansas Rules of the Supreme Court. Rule 3.03 provides, in part, that:

"When an appeal is taken in a case in which any evidentiary hearing was held, it shall be the duty of the appellant to order a transcript.... The order shall be served on the reporter and all parties and shall be for a complete transcript of any such hearing, unless there be obtained a stipulation of all affected parties specifying portions which are not required for the purposes of the appeal...."

Rule 3.03 has no provision detailing the procedure to be followed should one party unreasonably refuse to stipulate to a partial transcript as does Rule 10(b), NDRAppP.

The Supreme Court of Kansas has considered Rule 3.03 on one occasion. In State v. Cuezze, 225 Kan. 274, 589 P.2d 626 (1979), the appellant, the State of Kansas, argued that a transcript of the evidentiary proceedings was not required because the appeal involved "purely questions of law." 225 Kan. at 282, 589 P.2d at 633. Two of the defendants-appellees insisted that a full transcript was required. After numerous motions before the Supreme Court of Kansas, the parties were ordered to agree upon which portions of the record were required and, if no agreement could be reached, the appellant was directed to order a complete transcript. The court reserved the question of assessing costs of the transcript until a "[I]t is obvious that the major portion of the transcript was unnecessary and much of it could have been avoided if the parties had stipulated as to the portions actually necessary as contemplated by our rule 3.03. Under the circumstances, the costs of the transcript are assessed one-half to appellant and one-half to appellees ...." Id.

final determination of the appeal. When the parties could not stipulate as to which portions of the record were required, the entire transcript was transmitted. The court, in assessing costs, noted that:

The Supreme Court of Kansas thus interpreted Rule 3.03 as requiring a complete transcript on appeal unless the parties can stipulate otherwise.

State v. Cuezze, however, is distinguishable from the instant case in one important aspect. The appellant in Cuezze did not claim that it was unable to pay for a complete transcript as in the case at bar. If we were to remand this case for a complete transcript and reserve the question of assessing costs, Elvick still could not pay for a full transcript in advance. His right to appeal would in effect be extinguished by the reporter's refusal to prepare the transcript without advance payment. Rule 10(c), NDRAppP. Our rules of construction militate against such "absurd" results. State v. Jelliff, 251 N.W.2d 1, 7 (N.D.1977).

Securing an adequate basis for allowing meaningful and intelligent appellate review underlies the procedural requirements of Rule 10, NDRAppP. Rules 10(f) and (g), NDRAppP, further illustrate that there are occasions where the absence of a complete transcript is specifically provided for. See Durham v. Jones, 698 F.2d 1179, 1180 (11th Cir.1983). We conclude that Elvick may proceed upon a partial transcript without violating Rule 10(b), NDRAppP. ¹ We note, however, that unless the record on appeal allows for a meaningful and intelligent review of the alleged error, we will decline review of the issue.

FACTS ²

Duane Bye has farmed in North Dakota for over 30 years. Bye also operated a "custom combine business" that contracted with farmers to harvest their crops. When Bye decided to retire from farming, Roger Elvick contacted him and expressed interest in purchasing Bye's combining equipment.

Elvick, another potential purchaser, Marvin Arlien, and Bye soon began to negotiate the sale of Bye's equipment. Elvick and Arlien tried unsuccessfully to obtain their own financing for the purchase. The parties eventually agreed that Elvick and Arlien would be able to purchase the equipment only with Bye's help. The three formed a corporation called "Custom Farm Services, Inc." (CFS). Bye believed that he would be involved in the corporation for one year, until Elvick and Arlien could take over financially.

Bye then sold his combining equipment to Muscatell Leasing of Fargo, North Dakota. Muscatell agreed to lease the equipment back to CFS for approximately $74,000. per year. The lease called for semi-annual payments and required a $50,000.00 down payment from CFS. Bye, Elvick and Arlien personally guaranteed the lease. Each CFS investor, Elvick, Arlien, and Bye, contributed $17,000.00 toward the down payment. Neither Bye nor Elvick needed a loan to finance the investment. Arlien, however, borrowed the money from a bank in Sheyenne, North Dakota and signed two promissory notes, each for $8,500.00. Elvick guaranteed The corporation was not a financial success and when the initial lease payment was due, the parties were forced to sign another promissory note. Bye personally guaranteed the note. CFS eventually borrowed over $49,000 that Elvick and Bye personally guaranteed.

one note and Bye guaranteed the other. To purchase supplemental equipment CFS required, the...