Nye v. Gable, Nelson & Murphy, Docket No. 98738

• Decision Date: 18 July 1988
• Docket Number: Docket No. 98738
• Court: Court of Appeal of Michigan — District of US
• Parties: James NYE, Plaintiff-Appellant, v. GABLE, NELSON & MURPHY, a professional partnership, Gordon E. Gable, John J. Murphy and James B. Nelson, Defendants-Appellees. 169 Mich.App. 411, 425 N.W.2d 797

Page 797

425 N.W.2d 797

James NYE, Plaintiff-Appellant, v. GABLE, NELSON & MURPHY, a professional partnership, Gordon

E. Gable, John J. Murphy and James B. Nelson,

Defendants-Appellees.

Docket No. 98738.

169 Mich.App. 411, 425 N.W.2d 797

Court of Appeals of Michigan.

Submitted March 2, 1988.

Decided June 20, 1988.

Released for Publication July 18, 1988.

[169 MICHAPP 412] Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. by Ronald A. Weglarz, Detroit, for plaintiff-appellant.

Kerr, Russell & Weber (by James W. Seitz), Detroit, for defendants-appellees.

Before SAWYER, P.J., and KELLY and RASHID, ^* JJ.

SAWYER, Presiding Judge.

Plaintiff appeals from an order of summary disposition entered in favor of defendants on plaintiff's claim for legal malpractice. A number of procedural defects exist in this case, rendering appellate review difficult. However, for the reasons discussed below, we affirm.

Briefly, defendants represented plaintiff in a sale of a business to a former partner of plaintiff. The sale was for the amount of $267,000, to be paid in installments, and involved a transfer of stock in a corporation. The purchaser subsequently went bankrupt prior to full payment of the purchase price, and the purchaser's debt to plaintiff was discharged in bankruptcy. Plaintiff filed the instant malpractice claim, alleging that defendants committed malpractice by failing to properly secure his interest as a creditor in the shares of stock involved in the purchase transaction. Defendants moved for summary disposition pursuant to [169 MICHAPP 413] MCR 2.116(C)(7), arguing that the applicable period of limitation had expired. Following a hearing on the motion, the trial court granted summary disposition because "there is no genuine issue of any material fact." See MCR 2.116(C)(10). Thereafter, plaintiff moved for reconsideration, which was denied on the basis "that there still is no genuine issue of any material fact." Neither the order of summary disposition nor the order denying reconsideration makes any reference to the period of limitation or to the fact that the motion had been brought under MCR 2.116(C)(7) on the basis of the running of the period of limitation. To complicate matters, plaintiff has failed to secure the transcription of the record of the hearing on the motion for summary disposition, thus rendering it impossible for us to determine how the motion for summary disposition based upon the statute of limitations mysteriously turned into a motion for summary disposition for no genuine issue of material fact. We can only speculate that the trial court was of the opinion that there was no genuine issue of material fact relative to the date on which the period of limitation began to run.

Given plaintiff's failure to secure a transcript of the motion hearing, we are unable to review the trial court's decision to determine if it erred in concluding that the applicable period of limitation had run since, without the necessary transcript, we have no way of knowing the basis of the trial court's ruling. We believe it inappropriate to conclude that the trial court was wrong when we do not even know the trial court's reasoning or have benefit of reviewing the arguments made before the trial court at the motion hearing. See Harvey v. Gerber, 153 Mich.App. 528, 530-531, 396 N.W.2d 470 (1986).

Because plaintiff filed with his claim of appeal [169 MICHAPP 414] an affidavit which asserted that a transcript was unnecessary, a brief discussion of plaintiff's obligation to actually secure the transcript is in order. The record on appeal consists of, inter alia, "the transcript of any testimony or other proceedings in the case appealed." MCR 7.210(A)(1). Furthermore, the appellant has a duty to file with the trial court "the full transcript of testimony and other proceedings in the trial court," except as otherwise provided. MCR 7.210(B)(1)(a). In an appeal from an action in circuit court, the production of the full transcript of all proceedings is excused where a motion is brought in the trial court to order that less than a full transcript, or no transcript at all, be included in the record on appeal, ¹ where the parties stipulate that a portion less than the full transcript, or no transcript at all, be filed ² or where the parties agree to submit the appeal on stipulated facts without the procuring of a transcript, with the agreement being signed by both parties and filed in the trial court in lieu of the transcript of testimony. ³ Additionally, there are procedures to settle a record where a proceeding was transcribed by a court reporter, but the parties are unable to obtain a transcript from the reporter. MCR 7.210(B)(2). Notwithstanding these procedures, plaintiff did not employ any of the methods under MCR 7.210(B)(1) to excuse the filing of less than the full record on appeal, nor is there any indication that the transcript of the proceedings on the motion for summary disposition is unavailable. Rather, it appears that plaintiff erroneously believed that he was not obligated to order a transcript of the summary disposition hearing.

The affidavit filed by plaintiff's counsel, although [169 MICHAPP 415] not citing to a court rule, appears to have been filed under the provisions of MCR 7.204(C)(2), which requires the filing of either a copy of the certificate of the court reporter that a transcript has been ordered or a statement by the attorney that there is no record to be transcribed. However, plaintiff's counsel erred, as discussed above, in his determination that there was no transcript to be ordered. The error appears to have arisen from counsel's mistaken belief as to which order was being appealed. The claim of appeal states that the appeal is from the order...