No Transcript, No Worry. But Lack Of Exhibits Kills Appeal.

Midwest Builder Distributing, supplied cabinets and appliances to Lord and Essex, a homebuilder. Midwest sued Lord and Essex for nonpayment of goods delivered. The case was tried, and Midwest got a judgment against Lord and Essex.

Lord and Essex appealed, but there was a big procedural problem in the appellate court. The transcript of testimony for the first day of trial was unavailable. The parties were unable to stipulate to a bystander’s report. Neither party could get certification from the trial judge, who retired after the judgment was rendered. To boot, the related trial exhibits had been discarded.

Relying on the general law that requires appellant to provide a complete record, Midwest argued that the appellate court “lack[ed] the ability to meaningfully assess the merits of the case and therefore [has] no choice but to affirm [Midwest’s judgment].” Lord and Essex argued that the appellate court only needed to decide questions of law, which did not require the testimony or exhibits. The First District Illinois Appellate Court ruled that “to the extent that the decision may be impacted by testimony or documentary exhibits that have not been brought before us, the contents of such omitted portions of the record will be presumed to favor Midwest.”

Lord and Essex blamed Midwest’s failure to negotiate for the absence of a stipulated bystander’s report. But the appellate court said that didn’t matter because, “Even if this contention were true, it would have no effect on our ruling. Diligence and lack of fault are not excuses for an appellant’s failure to present an adequate record on appeal.”

Despite no certification or stipulation, the appellate court accepted Midwest’s bystander’s report to the extent it established facts contrary to Midwest’s position. “Therefore, we shall feel free to use Midwest’s account of the first day’s events to the extent that it assures us that the issues are sufficiently preserved in the remaining record for us to reach the merits of the case without necessitating any reference to the first day’s proceedings … In this case, Midwest’s bystander’s report contains the testimony of its own president … [T]hat testimony, even if taken as true, would not have any bearing upon our ultimate determination … We are persuaded based on Midwest’s own bystander’s report that the first day’s proceeding, as described by Midwest, would have no bearing upon this court’s resolution of the issues raised in this appeal.”

Nonetheless, the appellate court found that the missing trial exhibits did in the appeal. “[T]hese exhibits might have been quite significant to our decision, because they could very well have shed light on the course of performance between the parties, which is crucial to the ultimate issue of liability … [T]he gap in the documentary record is sufficiently serious that we cannot fully reach the merits of the case, and thus our only proper course is to affirm on the issue of liability.”

The whole opinion, Midwest Builder Distributing v. Lord and Essex, No. 1-06-1233 (11/9/07), is available by clicking here.