Memphis Mobile Telephone, Inc. v. Atkins

OPINION DROWOTA, Judge. Appellant, Memphis Mobile Telephone, Inc., appeals from the decree of the Chancery Court of Davidson County dismissing its Petition for Review and affirming the action of the Public Service Commission in rescinding the certificate of public convenience and necessity which had previously been issued to appellant. The threshold question for determination by this Court is whether the record before us is adequate for appellate review. Appel-lees aver that the record is inadequate since it fails to contain the transcript of the proceedings before the Public Service Commission. On January 16, 1979, appellee, Mahaffee Message Relay, Inc., filed its motion to dismiss Memphis Mobile Telephone’s appeal. Appellee avers that appellant failed to file a bill of exceptions and that the very nature of appellant’s three assignments of error [800] requires a review of the transcript before the Commission. On January 22, the date set for oral argument, appellee renewed its motion to dismiss. Appellant failed to appear, however it did file a reply to appel-lee’s motion to dismiss and later on February 2 filed a “first supplement” and on February 23, over a month after oral arguments, filed a “motion to compel” directed at the Public Service Commission. Appellant states in its “motion to compel” that the nature of its appeal is such that an appropriate review of the Commission’s decision cannot be obtained without the entire record being before this Court. However, appellant takes the position that no bill of exceptions is necessary and that under T.C.A. § 4-523(d) of the Administrative Procedures Act, the Commission is required to transmit the record to this Court, thus the motion to compel. T.C.A. § 4-523(d) does state that “the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review.” The reviewing court referred to in this section is the trial court and has no application to the Court of Appeals. Appellant also apparently relies upon T.C.A. § 4-524 as authority for no longer requiring a bill of exceptions and placing the burden on the Commission and the Clerk of the Chancery Court to assemble and transmit the transcript of the proceedings before the Commission. T.C.A. § 4-524 captioned “Appeals to Court of Appeals” states that: An aggrieved party may obtain a review of any final judgment of the chancery court under §§ 4-507—4-527 by appeal to the Court of Appeals of Tennessee as in chancery cases. The record certified to the chancery court by the agency and the record in the court shall constitute the record in an appeal. Evidence taken in court pursuant to subsection (g) of § 4-523 shall become a part of the record upon authentication thereof by the chancellor. (emphasis added) The above language does not indicate to us that the burden is upon the agency to get a proper record for the Court of Appeals. Once the agency complies with T.C.A. § 4—523(d) and transmits the record to the reviewing (trial) court it has no further duties with respect to the record. It is well established that the appellant has the sole duty to prepare and present the record in its proper form. Appellant avers that a bill of exceptions is not required to be filed in an appeal of this nature, that the Administrative Procedures Act supersedes the prior requirement that a bill of exceptions be filed, and that the Act supersedes the holding of the Supreme Court in Lindsey v. Fowler, 516 S.W.2d 88 (Tenn.1974), requiring a bill of exceptions. We do not feel that the Administrative Procedures Act has in any way overruled Lindsey v. Fowler. Appellant in this cause is proceeding upon the assumption that the record of the proceedings before the Commission would be transmitted to this Court as part of the technical record. In Lindsey v. Fowler the Chancellor refused to sign the bill of exceptions because it was not timely filed, however the clerk transmitted to the Supreme Court the conventional transcript and also a large envelope which contained a label “Transcript from the Tennessee Public Service Commission.” Inside the envelope were a two (2) volume transcript and thirty-three (33) documents, certified collectively by the Public Service Commission as a transcript of the proceedings before the Commission. Each document and the transcripts were marked “Filed” by the Deputy Clerk and Master. Appellant argued in Lindsey v. Fowler, as appellant argues in this cause, that the transcript of the proceedings before the Commission was filed in the Chancery Court and thus comes to the appellate court as part of the technical record. In Lindsey v. Fowler the Court held that the transcript before the Commission can come before the appellate courts in one of two ways, it “may either be made a part of the bill of exceptions, or, in proper cases, converted into a bill of exceptions by the simple expedient of having the trial judge sign a directing order that the original tran [801] script be sent up as a part of the record and reciting affirmatively that such transcript contains all the evidence heard in the lower court. In either event the transcript must be properly authenticated by the Trial Judge.” 516 S.W.2d at 91. The obvious purpose of the above procedural requirements is to afford the appellate courts reasonable assurance of the integrity of the record to be reviewed. The appellant was in error in assuming that the transcript before the Commission would be sent to this Court as part of the technical record. Appellant is before this Court on the technical record alone, which contains only the pleadings and orders of the trial court. Appellant infers that the Chancellor may not have had the entire transcript to review. If appellant had any question concerning the transcript of the proceedings before the Commission and whether the entire record was before the Chancellor, the time to raise such objection was in the Chancery Court, not the appellate court. Appellant’s three assignments of error require a review by this Court of the evidence submitted to the Commission and without a transcript of those proceedings it must be presumed that every fact admissible under the pleadings was found or should have been found favorable to appellees. Wilson v. Hafley, 189 Tenn. 598, 605, 226 S.W.2d 308 (1950). The assignments of error must therefore be overruled for lack of an adequate supporting record, and the judgment of the Chancellor is affirmed. The costs of this appeal are taxed to appellant. Affirmed. SHRIVER, P. J., and TODD, J., concur.