Quick v. Burton
Citation | 960 So.2d 678 |
Decision Date | 22 November 2006 |
Docket Number | 2050408. |
Parties | Jerry N. QUICK v. Paula BURTON. |
Court | Alabama Court of Civil Appeals |
Jerry N. Quick, Birmingham, for appellant.
Paula Burton, pro se.
On Application for Rehearing
This court's no-opinion affirmance issued on August 25, 2006, is withdrawn, and the following is substituted therefor.
This is an appeal from a judgment in breach-of-contract action; we must affirm the trial court's judgment because of a lack of either a transcript or a statement of facts in compliance with the Rules of Appellate Procedure.
Jerry N. Quick sued Paula Burton in 2003, alleging that Burton was in breach of her contract with him to purchase his vehicle and that Burton owed him approximately $19,000, plus accrued interest. Burton answered, denying Quick's claims. Eventually a trial was held, at which oral testimony was received by the trial court. The trial court then entered a judgment, which provided:
(Emphasis added.)
Quick did not request a transcript of the trial. Instead, pursuant to Rule 10(d), Ala. R.App. P., Quick allegedly sent a proposed statement of facts to Burton, who did not respond. Then, on March 28, 2006, Quick moved the trial court to adopt a proposed statement of facts and to supplement the record with that proposed statement of facts.
On March 30, 2006, the trial court denied Quick's motion to supplement the record with a Rule 10(d), Ala. R.App. P., statement of facts. In fact, in regard to Quick's proposed statement of facts, the trial court wrote on the motion Quick submitted: "Denied, does not accurately state facts and testimony established at trial."1 Rule 10(d), Ala. R.App. P., provides, in part:
(Emphasis added.)
Circuit courts in our state have long been viewed as courts of record. E.g., Berry v. State, 65 Ala. 117, 121 (1880) ( ), and Ex parte Burnsed, 844 So.2d 526, 528 (Ala.2001)(circuit courts and district courts, municipal courts are not courts of record) that, unlike .
The designation of circuit courts as "courts of record" has a basis not only in our state's common law but in the acts of our state's legislature. As stated in Denson v. Stanley, 17 Ala.App. 198, 200-01, 84 So. 770, 772 (1918):
(Emphasis added.) The act of our legislature referenced in Denson was succeeded by what is now codified as § 12-11-1, Ala. Code 1975. That section states that "[t]here is provided in every county in the state a circuit court with all the jurisdiction and powers that are conferred on the circuit court by the Constitution and laws of this state."
Critically, a "court of record" is a "court that is required to keep a record of its proceedings." Black's Law Dictionary 380 (8th ed.2004). Therefore, it is generally safe to presume that a transcript of the oral testimony given in a circuit court is available.
Furthermore, in Hill v. Hill, 607 So.2d 278 (Ala.Civ.App.1992), this court addressed Rule 10(d), Ala. R.App. P., and indicated that the term "unavailable" in that rule pertains to situations in which the court reporter is "unable to transcribe the evidence," as in cases when, for example, the court reporter may be deceased. Hill, 607 So.2d at 279 (citing Wheeler v. Alabama Nat'l Bank of Montgomery, 262 Ala. 36, 76 So.2d 679 (1954)). However, "unavailable" does not include situations when the appellant simply decides to not pay for a transcript — even if the reason is that he or she cannot afford to pay. Hill, 607 So.2d at 279.
In this case, the trial court denied the Rule 10(d), Ala. R.App. P., motion by Quick. Therefore, absent any evidence indicating otherwise, we must necessarily infer that the trial court concluded as a matter of fact that the court reporter was able to transcribe the record but did not do...
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...of the record, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel." Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006)(citing Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000), and Gotlieb v. Collat, 567 So.2d 1302, 1304 (A......
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