Thompson v. Town of Warsaw

Judge Wynne

concurring in part, dissenting in part.

Because a transcript is not needed to review the subject appeal, I concur with the majority opinion except that part which assesses costs against appellant’s attorney for violating Rule 7.

Rule 7(a)(1) of the Rules of Appellate Procedure provides in pertinent part:

Within 10 days after filing the notice of appeal the appellant shall contract, in writing, with the court reporter for production of a transcript of such parts of the proceedings not already on file as he deems necessary. The appellant shall file a copy of the contract with the clerk of the trial tribunal. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall file with the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be filed, an appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends to file with the record and a statement of the issues he intends to present on the appeal, (emphasis added).

Thus, except where the appellant intends to challenge the evidentiary basis for a finding or conclusion, there is no requirement in the Rules of Appellate Procedure that a transcript be a part of a Record on Appeal. The appellant’s appeal is from a dismissal based on a Rule 12(c) motion on the pleadings. In short, there is no evidence from the trial below to be review by this court. It follows that the mere failure to contract for a transcript is of no consequence in the outcome of this appeal.¹

1 . At most, failing to comply with Rule 7 should result in excluding the transcript from the record. The effect of this exclusion may in many cases have the outcome of a dismissal in that the transcript may be needed to supply the necessary evidentiary support for the appeal.