Knapp v. Edwards Laboratories, 79-310

• Decision Date: 13 February 1980
• Docket Number: No. 79-310,79-310
• Citation: 400 N.E.2d 384,15 O.O.3d 218,61 Ohio St.2d 197
• Parties: , 15 O.O.3d 218 KNAPP et al., Appellees, v. EDWARDS LABORATORIES et al., Appellants.
• Court: Ohio Supreme Court

Page 197

61 Ohio St.2d 197

400 N.E.2d 384, 15 O.O.3d 218

KNAPP et al., Appellees, v. EDWARDS LABORATORIES et al., Appellants.

No. 79-310.

Supreme Court of Ohio.

Feb. 13, 1980.

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, 377 N.E.2d 770. 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.

Inscore, Rinehardt & Whitney and Larry L. Inscore, Mansfield, for appellees.

McNeal, Schick & Archibald and Harley J. McNeal, Cleveland, for appellant Edwards Laboratories.

Arter & Hadden and Robert C. McFadden, Cleveland, for appellant University Hospitals.

Weldon, Huston & Keyser and George Hall, Mansfield, for appellant ankeney.

PER CURIAM.

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, 372 N.E.2d 1355. 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...