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Record on Appeal

The “record on appeal,” consists of the materials which the trial court is required to transmit to the reviewing court.[i]  Generally, the record on appeal must contain everything necessary to the resolution of the issues presented to the appellate court including:

  • facts establishing personal jurisdiction,
  • evidence,
  • statutes or ordinances on which the parties are relying,
  • local rules of court on which the parties rely, and
  • written memorials of any judicial action which triggered the appeal or which is necessary for the resolution of the appeal.[ii]

The contents of the record on appeal may be specified by statute or rule.  The documents which are not filed with the district court are not part of the record.[iii]

If the record is deemed to consist of all papers and exhibits filed with the trial court, all such materials constitute a part of the record on appeal which the reviewing court may consider.[iv]

Generally, the appellate court will not take into account evidence presented for the first time on appeal.[v]  Moreover, the court will not consider references in the parties’ briefs to matters not in the record, or not cited to the record.[vi]  The appellate court will remand the case rather than decide the effect of subsequent events on the issues presented for appeal, if it takes notice of subsequent events.[vii]

A duly certified record on appeal is conclusive upon the reviewing court.[viii]  The certified record is controlling on appeal, when a trial court’s opinion conflicts with the certified record.[ix]  If the record does not accurately reflect proceedings in the trial court, procedures established by rule for the correction or amendment of the record must be followed.[x]

The burden of presenting to the appellate court a record that is sufficient to show error on the part of the court below, is upon the appellant.[xi]  If the appellant fails to meet that burden the trial court will be affirmed.[xii]  When an appellant does not provide the list of points as required by an appellate rule governing a partial reporter’s record, the appellate court may apply a presumption that the omitted portions support the trial court’s findings.[xiii]  Normally, after the appellant’s preliminary statement of issues has been filed, and oral argument has taken place, a case will not be remanded in order to correct a deficiency in the record which the appellant should have remedied.[xiv]

The record on appeal may be required to be abridged to exclude unnecessary material.  The appellant may be required to present an abstract from which the reviewing court can determine whether error has occurred, under the rules of appellate procedure.[xv]  An appellant’s abstract or abridgment of the record should consist of an impartial condensation of the material parts of the pleadings, proceedings, facts, documents, and such other matters in the record as are necessary to an understanding of all questions presented to the court for decision.[xvi]  However, a narrative statement which merely recites the general question for review does not constitute an abstract.[xvii]

A formal written statement of exceptions taken to the decisions, rulings, instructions, or opinion of the trial court, setting forth the proceedings on the trial, the acts of the trial court alleged to be erroneous, the objections and exceptions to such acts, and the grounds for such objections and exceptions, all authenticated by the trial court is termed as “a bill of exceptions”.[xviii]  The bill of exceptions bring matters which otherwise would not appear in the record, into the record.[xix]

The federal Constitution’s 14th Amendment entitles an indigent criminal defendant who appeals his/her conviction, to the use of a transcript or other record of his/her trial which is sufficiently complete to allow consideration of the errors assigned.[xx]  A state is required to furnish to the defendant a verbatim transcript, only when it is necessary to assure him/her as effective an appeal as would be available to a defendant with financial resources.[xxi]

[i] Sharman v. Huot, 20 Mont. 555, 52 P. 558 (1898).

[ii] Coulter v. Michelin Tire Corp., 622 S.W.2d 421 (Mo. Ct. App. S.D. 1981); In re Income Tax Protest of Alani, 2006 OK CIV APP 54, 135 P.3d 828 (Div. 2 2005); Matson v. Wilco Office Supply and Equipment Co., 541 So. 2d 767 (Fla. Dist. Ct. App. 1st Dist. 1989); City of Eunice v. CLM Equipment Co., Inc., 505 So. 2d 976 (La. Ct. App. 3d Cir. 1987); Lewis v. Modular Quarters, 508 So. 2d 975 (La. Ct. App. 3d Cir. 1987); Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 (Okla. 1989).

[iii] U.S. v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989); Cosco v. Uphoff, 195 F.3d 1221 (10th Cir. 1999).

[iv] Mungin v. Florida East Coast Ry. Co., 416 F.2d 1169 (5th Cir. 1969).

[v] Oien v. Oien, 2005 ND 205, 706 N.W.2d 81 (N.D. 2005).

[vi] Admiral Ins. Co. v. Columbia Cas. Ins. Co., 194 Mich. App. 300, 486 N.W.2d 351 (1992); Starczewski v. Unigard Ins. Group, 61 Wash. App. 267, 810 P.2d 58 (Div. 1 1991).

[vii] Landy v. Federal Deposit Ins. Corp., 486 F.2d 139, 17 Fed. R. Serv. 2d 769 (3d Cir. 1973).

[viii] Rizzo v. New York State Div. of Housing and Community Renewal, 16 A.D.3d 72, 789 N.Y.S.2d 139

[ix] Com. v. Martinez, 2007 PA Super 33, 917 A.2d 856 (2007).

[x] Clements v. Webster, 425 So. 2d 1058 (Ala. 1982)

[xi] Reddin v. Robinson Property Group Ltd. Partnership, 239 F.3d 756, 56 Fed. R. Evid. Serv. 496 (5th Cir. 2001);

[xii]Troutt v. Matchett, 305 Ark. 474, 808 S.W.2d 777 (1991); McNair v. Pavlakos/McNair Development Co., 576 So. 2d 933 (Fla. Dist. Ct. App. 5th Dist. 1991).

[xiii] Richards v. Schion, 969 S.W.2d 131 (Tex. App. Houston 1st Dist. 1998).

[xiv] Holmes v. Holmes, 2 Conn. App. 380, 478 A.2d 1046 (1984); Economy Sales and Service Co. v. Family Center Pharmacy, Inc., 33 Conn. App. 822, 639 A.2d 1042 (1994).

[xv] Beef N’ Bird of America, Inc. for Use and Benefit of Galbreath v. Continental Cas. Co., 803 S.W.2d 234 (Tenn. Ct. App. 1990); Middleton v. Lockhart, 364 Ark. 32, 216 S.W.3d 98 (2005).

[xvi] Davis v. Peebles, 313 Ark. 654, 857 S.W.2d 825 (1993).

[xvii] D.J. v. State, 308 Ark. 37, 821 S.W.2d 782 (1992).

[xviii] Everman v. Hyman, 26 Ind. App. 165, 28 N.E. 1022 (1891).

[xix] Aetna Ins. Co. v. Boon, 95 U.S. 117, 24 L. Ed. 395, 1877 WL 18585 (1877)

[xx] Draper v. State of Wash., 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963).

[xxi] State v. DePastino, 228 Conn. 552, 638 A.2d 578 (1994); Farbotnik v. State, 850 P.2d 594 (Wyo. 1993).

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