This appeal arises out of a suit filed by the plaintiff against the defendant seeking to rescind the cash sale of property sold to the defendant. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 12, 2021, The Estate of Ernestine Knox, through Deborah Knox (plaintiff), filed a petition for damages against her brother, Gregory Banks (defendant), related to theft and conversion, including the recission/nullity of a cash sale and of a donation in which there was no capacity. In her petition, the plaintiff alleged that on June 6, 2014, her mother, Ernestine Knox, sold her home located in Baton Rouge, Louisiana to the defendant via cash sale for the sum of $148,000.00. The plaintiff alleged that the purchase price was never tendered to Ernestine Knox by the defendant. The plaintiff further alleged that at the time of the cash sale, Ernestine Knox had a severely diminished mental capacity due to a brain aneurysm, resulting in her becoming bed-bound and non-verbal. On November 14, 2014, the plaintiff alleged that Ernestine Knox donated her property to the defendant in a donation inter vivos. The plaintiff argued that Ernestine Knox did not have the capacity to enter into a cash sale or donate her property inter vivos to the defendant.
On March 12, 2021, the defendant answered the plaintiffs petition for damages generally denying all of the allegations made. The trial court held a bench trial on December 15, 2022.
1
The plaintiff testified at the bench trial and stated that her mother had a stroke and lost her ability to walk and could not talk, speak, or write. Jeanette Washington, one of Ernestine Knoxs daughters, testified at the bench trial and stated that her mother was verbal and that they “had good conversation.” She further testified that her mother was partially paralyzed on one side of her body; however, her mother would get around using a walker or wheelchair. She stated that her mother intended to sell her home to the defendant. The defendant did not testify at the bench trial.
The transcript and minute entry of the bench trial reveals that the defendant introduced several exhibits
2
at the bench trial, including a judgment of possession, a cash sale from Ernestine Knox to the defendant, and a donation inter vivos from Ernestine Knox to the defendant.
3
At the conclusion of the bench trial, the defendant moved for a directed verdict.
4
The trial court granted the motion stating that the plaintiff failed to prove by clear and convincing evidence that Ernestine Knox lacked the capacity or was unduly influenced to transfer her property to the defendant. On May 15, 2023, the trial court signed a judgment in accordance with its oral ruling at the bench trial dismissing the plaintiff s claims with prejudice.
5
The plaintiff filed a motion for new trial and attached several exhibits to her memorandum, including mortgage records and bank account statements for Ernestine Knox, a judgment of possession, and medical records for Ernestine Knox. The trial court denied the plaintiffs motion for new trial. The plaintiff subsequently devolutively appealed.
6
On appeal the plaintiff assigns as error the following: (1) unethical attorney behavior; (2) opposing attorney for the defendant failed to submit evidence of the defendant purchasing the property from Ernestine Knox; and (3) technical difficulties during the zoom trial.
DISCUSSION
Louisiana Code of Civil Procedure article 2164 authorizes an appellate court to “render any judgment which is just, legal, and proper upon the record on appeal.” (Emphasis added.) The transcript of the December 15, 2022 bench trial reveals that the defendant offered and introduced several exhibits that were pertinent to this case. However, the record on appeal does not contain these exhibits. Without these exhibits in the record, this court does not have the sufficient evidence necessary to allow this court to determine the merits of this case. The cash sale is the basis for this entire matter and is absent from the record. Therefore, this court is unable to determine if the cash sale between the defendant and Ernestine Knox occurred, and if so, if it was valid.
Louisiana Code of Civil Procedure article 2132 states that “[a] record on appeal ․ which omits a material part of the trial record ․ may be corrected even after the record is transmitted to the appellate court... by the order of the appellate court.” On December 20, 2023, this court issued an order to the Clerk of Court for the Nineteenth Judicial District Court to supplement the record with the exhibits that were introduced at the bench trial by the defendant. On February 9, 2024, the Clerk of Court responded to this courts order. The Clerk of Court indicated that this bench trial was held via zoom and “[w]here the exhibits were offered and introduced during the bench trial, the actual hard copies of the evidence were never turned in to the [Clerk of Courts Office].”
The appellant bears the burden of furnishing the appellate court with a record of the proceedings below. See Gay v. C & D of Shreveport, 25,319 (La. App. 2 Cir. 10/26/94), 645 So.2d 280, 282. When the record lacks evidence that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant. Id. See also Carter v. Barber Bros. Contracting Co., Inc., 623 So.2d 8, 10 (La. App. 1 Cir.), writ denied, 629 So.2d 1180 (La. 1993). If a transcript, exhibits, or other documentation are missing and the appellant fails to act, there is no basis for the appellate court to determine that the trial court erred and the judgment is affirmed because a judgment is presumed correct. Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1 Cir. 12/22/16), 209 So.3d 192, 196.
Accordingly, because an appellate court renders its judgment based upon the record filed on appeal, we are bound to presume that the May 15, 2023 judgment of the trial court was correct and was supported by sufficient competent evidence. La. C.C.P. art. 2164; Alexander v. Par. Of St. John The Baptist, 2009-840 (La. App. 5 Cir. 3/23/10), 33 So.3d 999, 1005, writ denied, 2010-1289 (La. 9/17/10), 45 So.3d 1056. The inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee. Willis v. Letulle, 597 So.2d 456, 475 (La. App. 1 Cir. 1992). Thus, the fault is attributable to the appellant. Alexander, 33 So.3d at 1005. Accordingly, based on the record before us on appeal, we affirm the trial courts judgment.
CONCLUSION
For the foregoing reasons, the May 15, 2023 trial court judgment is affirmed. Costs of this appeal are assessed against the appellant, The Estate of Ernestine Knox, through Deborah Knox.
AFFIRMED.
I respectfully dissent from the majoritys opinion. The appellate record is deficient through no fault of the appellant, plaintiff Deborah Knox. This bench trial was held via Zoom video teleconference by the trial court. All of the exhibits that were introduced during the bench trial were introduced by the defendant, Mr. Gregory Banks. Ms. Knox did not have actual possession of any of those exhibits. Based on written communication sent by the Clerk of Courts Office to this court, the defense never forwarded those exhibits to the Clerk of Courts Office to be filed into the record. In an order dated January 10, 2024, this court ordered the Clerk of Court to supplement the record on appeal with the exhibits introduced at trial, or if in this instance those exhibits could not be located, to notify this court in writing. The missing bench trial exhibits included: Exhibit A, judgment of possession; Exhibit B, cash sale from Ernestine Knox; Exhibit C, cash sale from Ernestine Knox to Sharlene; Exhibit D, cash sale from Sharlene to Ernestine Knox; Exhibit E, case sale from Ernestine Knox to Gregory Banks; Exhibit F, donation inter vivos from Ernestine Knox to Gregory Banks. On February 9, 2024, the Clerk of Court responded to this courts order, indicating that this bench trial was held via Zoom and “[w]here the exhibits were offered and introduced during the bench trial, the actual hard copies of the evidence were never turned in to the [Clerk of Courts Office].”
There is no question that the appellant, Ms. Knox, is charged with the responsibility of completeness of the record for appellate review, and the inadequacy of the record is imputable to them. Niemann v. Crosby Dev. Co., 2011-1337 (La. App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044. However, in this particular instance, the inadequacy of the record cannot be imputable to Ms. Knox as she was not the party in possession of the exhibits that were introduced during the Zoom bench trial. The party that did introduce those exhibits—the defendant, Mr. Banks—did not forward those exhibits to the Clerk of Courts Office to be filed into the record. Louisiana Code of Civil Procedure article 2164 orders that appellate courts “shall render any judgment which is just, legal, and proper upon the record on appeal.” Due to the fact that the bench trial exhibits are missing from the record on appeal, which is inadequate through no fault of Ms. Knox, under the mandate of La. C.C.P. art. 2164, I would vacate and remand for a new trial so that the evidence may be properly offered, filed, and introduced into the record. For these reasons, I must respectfully dissent.
FOOTNOTES
1
. Judge Trudy White, now retired, conducted the bench trial.
2
. The defendant also introduced into evidence a cash sale, a cash sale from Ernestine Knox to Sharlene, one of her daughters, and a cash sale from Sharlene back to Ernestine Knox.
3
. The record reveals that no evidence was filed with the Nineteenth Judicial District Courts Clerk of Court office as of February 9, 2024.
4
. Although counsel for the defendant moved for a directed verdict, being a bench trial, we treat the defendants motion as request for involuntary dismissal. See La. C.C.P. art. 1672(B); State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 809 n.5. Motions for directed verdicts are utilized in trials before a jury. See La. C.C.P. art. 1810. Louisiana Code of Civil Procedure article 1672(B) provides the basis for an involuntary dismissal at the close of a plaintiffs case in an action tried by the court without a jury.
5
. Judge Tobias signed the May 15, 2023 judgment in accordance with La. R.S. 13:4209(B)(1), since that judgment conformed with Judge Whites judgment rendered orally at the close of the bench trial.
6
. On December 20, 2023, this court issued an order to the Clerk of Court for the Nineteenth Judicial District Court to supplement the record with the following exhibits introduced at trial: Exhibit A, Judgment of Possession; Exhibit B, Cash Sale, a Cash Sale from Ms. Ernestine, Exhibit C, Cash Sale from Ernestine to Sharlene, Exhibit D, Cash Sale from Sharlene to Ms. Ernestine, Exhibit E, Cash Sale from Ms. Ernestine to Gregory Banks, Exhibit F, Donation Inter Vivos from Ms. Ernestine to Gregory Banks.
STROMBERG, J.
Welch, J. dissents and assigns reasons.
Wolfe, J. concurs without reasons.