(251) 299-0101

BURDEN OF SHOWING ERROR & INJURY ON APPEAL - ROBINSON V. ARNOLD

Robinson v. Arnold, [Ms. 2160238, June 23, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The court affirms the Macon Circuit Court's judgment in a protection-from-abuse action upon concluding the appellant, by not complying with the procedure set forth in Rules 10(d) and 10(f), Ala. R. App. P. (establishing procedure for providing a statement of the evidence when no transcript is available), failed to meet his burden of showing error on the record and injury from that error.

It is well established that "the party claiming error has the burden of showing error on the record and resulting injury." Dale Cty. Dep't of Pensions & Sec. v. Robles, 368 So. 2d 39, 43 (Ala. Civ. App. 1979); see also Watson v. McGee, 348 So. 2d 461, 463 (Ala. 1977) ("The appellant must not only establish error but also must show that he was probably prejudiced by the error.").

" ' " 'This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent.' The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal." ' White v. Riley Constr., Inc., 745 So. 2d 877, 879 (Ala. Civ. App. 1999) (quoting Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So. 2d 938, 942 (Ala. 1997)); see also Martin v. Martin, 656 So. 2d 846, 848 (Ala. Civ. App. 1995) ('An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.')."

Kimbrough v. Kimbrough, 963 So. 2d 662, 665–66 (Ala. Civ. App. 2007).

Ms. *5-6. The court then adopted Judge Crawley's dissent in Gibert v. Gibert, 709 So. 2d 1257 (Ala. Civ. App. 1998), setting forth the burden on an appellant to demonstrate error on the record:

"... [an appellant] has the duty of seeing that any error asserted on appeal is affirmatively demonstrated by the record. See Perkins v. Perkins, 465 So. 2d 414 (Ala. Civ. App. 1984). If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So. 2d 988 (Ala. Civ. App. 1981). Evidence presented to the trial court but not preserved in the record on appeal is conclusively presumed to support the trial court's judgment. English v. English, 352 So. 2d 454 (Ala. Civ. App. 1977). See generally Greer v. Greer, 624 So. 2d 1076 (Ala. Civ. App. 1993). I would affirm the trial court's denial, without a hearing, of the wife's post-judgment motion."

Ms. *7 (quoting Gibert, 709 So. 2d at 1259 (Crawley, J., dissenting)). Because the appellant failed to comply with Rules 10(d) and (f), and the record failed to contain a transcript or a statement of the evidence, the Court could not find that the appellant met his burden of proof on appeal.

Categories: