Record on Appeal in Minnesota: What to Include

What is the record on appeal in a Minnesota civil case?

The record on appeal is the trial court file, the exhibits, and any transcript. Rule 110.01 states it in one sentence: “The documents filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”

That sentence carries three practical points:

1. Filed papers are already in. Pleadings, motions, affidavits, briefs, and orders that were filed with the district court are part of the record without any extra step. You do not order them.
2. Exhibits must have been received or offered below. An exhibit is in the record because it was part of the trial court proceeding. If your case turned on business documents, the work of getting business records admitted as exhibits happened at trial, not on appeal.
3. Spoken proceedings need a transcript. Testimony, oral rulings, and objections made in the courtroom reach the appellate court through a transcript, or through an approved statement of the proceedings when no transcript is available.

Under Rule 130.01, subd. 1, “The parties shall have regard for the fact that the entire record is always available to the appellate court for reference or examination.” If your case is in federal court in Minnesota, the federal counterpart is Fed. R. App. P. 10(a), which lists “the original papers and exhibits filed in the district court” along with the transcript and the docket entries.

Why does the appellant carry the burden of an adequate record?

The party asking for reversal has to show the error, and the record is the only place the court will look for it. In Marriage of Mesenbourg v. Mesenbourg, 538 N.W.2d 489 (Minn. App. 1995), the Court of Appeals stated the rule plainly: “An appellant has the burden to provide an adequate record.”

A missing transcript narrows what the court can decide. In Duluth Herald & News Tribune v. Plymouth Optical Co., 176 N.W.2d 552 (Minn. 1970), a business sued a franchisor over unpaid advertising, won a bench trial, and the franchisor appealed without a transcript. The Minnesota Supreme Court wrote that “this court is not cognizant of the evidence upon which the trial court based its findings of fact.” It limited its review to whether the trial court’s findings supported its conclusions of law, and it affirmed.

For a company weighing an appeal, the cost of the transcript belongs in the decision from the start. If the error you want reviewed lives in testimony, an oral ruling, or an objection, the transcript of that part of the case is how the court sees it.

How do you order the transcript for a Minnesota appeal?

The appellant must choose one of three steps soon after filing the notice of appeal. Rule 110.02, subd. 1 opens with “Within 14 days after filing the notice of appeal, the appellant shall” and then lists the choices. I suggest checking the current rule text for that number, because it controls your calendar:

1. “order from the reporter a transcript of those parts of the proceedings not already part of the record which are deemed necessary for inclusion in the record”; or
2. “file a notice of intent to proceed pursuant to Rule 110.03 or Rule 110.04” (a statement of the proceedings or an agreed statement, covered in the next section); or
3. “notify the respondent in writing that no transcript or statement will be ordered or prepared.”

Rule 110.02, subd. 1, adds a step: “If the entire transcript is not to be included, the appellant, within the 14 days, shall file and serve on the respondent a description of the parts of the transcript which appellant intends to include in the record and a statement of the issues intended to be presented on appeal.” A partial transcript carries a risk. In Wanglie v. Wanglie, 356 N.W.2d 850 (Minn. App. 1984), a dissolution appeal, the appellant supplied only part of the transcript, and the court wrote: “In the absence of relevant portions of the transcript, this court cannot consider the claim.”

Under Rule 110.02, subd. 2, “a certificate as to transcript signed by the designating counsel and by the court reporter shall be filed with the clerk of the appellate courts, with a copy to the trial court and all counsel of record within 14 days of the date the transcript was ordered.” I suggest checking the current rule text for that number as well. The certificate includes “a statement that satisfactory financial arrangements have been made for the transcription.” Recorded evidence has its own rule: “If a transcript of an audio or video exhibit is made part of the district court record, it becomes part of the record on appeal.”

How can an appeal proceed without a transcript?

An appeal can go forward without a transcript in three ways: on the filed papers alone, on a statement of the proceedings, or on an agreed statement. Each one limits what the Court of Appeals can review, so the choice should follow the issues you plan to raise.

When no court reporter recorded a hearing, Rule 110.03 applies: “If no report of all or any part of the proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the proceedings from the best available means, including recollection.” The rule adds that “The statement is not intended to be a complete re-creation of testimony or arguments.” The appellant files first: “Appellant shall file the original proposed statement with the trial court administrator and the clerk of the appellate courts, and serve a copy on respondent, within 14 days after filing the notice of appeal.” The respondent’s step comes next: “Within 14 days after service of appellant’s statement, respondent may file with the trial court administrator and the clerk of the appellate courts objections or proposed amendments, and serve a copy on appellant.” Then “The trial court may approve the statement submitted by appellant, or modify the statement based on respondent’s submissions or the court’s own recollection of the proceedings,” and “Within 60 days of the filing of the notice of appeal, the original trial court approval of the statement shall be filed with the trial court administrator and copies of the approval shall be served on counsel for the parties and filed with the clerk of the appellate court.”

Under Rule 110.04, both sides may instead sign an agreed statement, limited to the facts “essential to a decision of the issues presented.” Under Rule 110.04, “The agreed statement shall be approved by the trial court with any additions the trial court may consider necessary to present the issues raised by the appeal and shall be the record on appeal.” The rule also provides: “The trial court’s approval of the statement shall be filed with the clerk of the appellate courts within 60 days of the filing of the notice of appeal.” I suggest checking the current text of Rules 110.03 and 110.04 for those numbers.

The papers alone can be enough when the issues are legal. In Mesenbourg, the appellant ordered no transcripts, and the Court of Appeals held the record adequate because “The issues on appeal are legal.” An appeal from summary judgment in Minnesota is decided largely on the filed motion papers for the same reason. In one appeal I advised on, the transcripts were already filed below, and the party filed a certificate as to transcript that the clerk’s office rejected more than once. That certificate is the form for a transcript being ordered from a reporter. Because nothing needed ordering, the step the rule called for was the written notice to the other side that no transcript would be ordered.

How should an appellate brief cite the record?

An appellate brief should tie each material fact and each preserved issue to a specific place in the record. Rule 128.02, subd. 1 requires, for each issue, “a description of how the issue was raised in the trial court, including citations to the record” and “a description of how the issue was subsequently preserved for appeal, including citations to the record.” It also requires that “Each statement of a material fact shall be accompanied by a reference to the record, as provided in Rule 128.03.”

Rule 128.03 sets the format. Under Rule 128.03(a), “Whenever a reference is made in the briefs to any part of the record that is reproduced in the addendum of any party, the reference shall be made to the specific pages of the addendum where the particular part of the record is reproduced.” For a filed document, “the reference should be made to the particular part of the record using the Document Index Number from the trial court Register of Actions, if available, and to the specific pages of it.” The Register of Actions is the district court’s docket list, and each filing on it carries an index number. The rule’s advisory committee comment gives examples such as “Doc. 50 at 3” and “Tr. 135” for transcript page 135.

These citations matter when the brief is written, but they depend on choices made earlier. A fact you cannot cite to a document, exhibit, or transcript page cannot appear in your statement of facts. I suggest building a record index from the Register of Actions while the transcript is being prepared, because that index becomes a citation key for the brief.

What goes in the addendum to a Minnesota appellate brief?

The addendum is a short packet of the key trial court rulings filed with the brief, and it replaced the old appendix. Rule 130.01, subd. 1 provides: “The record shall not be printed. No party may submit an appendix to its brief.”

Under Rule 130.02, “Appellant must prepare an addendum and file it with the opening brief or petition.” It must include a table of contents, any agreed statement of the record, proof of compliance with Rule 144 when a statute’s constitutionality is challenged, and “a copy of any order, judgment, findings, or trial court memorandum in the action directly relating to or affecting the issues on appeal.” Under the page limit, “The addendum must not exceed 50 pages,” not counting the required orders and the other items the rule excludes. Under Rule 130.01, subd. 2, “If the record includes a statement of the proceedings made pursuant to Rule 110.03 or an agreed statement made pursuant to Rule 110.04, the statement shall be included in the addendum prepared as prescribed by Rule 130.02.” On the other side, “The respondent’s brief or response to a petition may include an addendum not to exceed 50 pages”.

The addendum reproduces parts of the record; it does not add to it. In one appeal I advised on, a party wanted to re-file a motion to supplement the record with a transcript, and I suggested not re-filing it because the transcript pages one of the brief’s issues relied on were already reproduced in the addendum the court had accepted.

How do you correct a mistake or gap in the record?

Rule 110.05 gives three routes, depending on the problem. A dispute about accuracy goes to the trial court: “If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and determined by the trial court and the record made to conform.”

An omission or misstatement can be fixed by agreement or order. The rule covers a situation where “anything material to either party is omitted from the record by error or accident or is misstated in it.” In that case, “the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected.” Everything else goes to the appellate court: “All other questions as to the form and content of the record shall be presented to the appellate court by motion.”

Rule 110.05 reaches material omitted from or misstated in the record, so it corrects the record to match what happened below. I suggest raising a gap with opposing counsel first, because a stipulation is the fastest of the routes the rule lists.

What limits new evidence and new arguments on appeal?

The Court of Appeals reviews the decision the district court made, on the material that court had. In Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988), the Minnesota Supreme Court held that an appellate court “may not consider matters not produced and received in evidence below.” It also restated that a reviewing court generally considers “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”

Thiele shows both limits at once. A former client who sued her divorce attorney for malpractice lost on summary judgment, then argued a new theory of when her claim arose for the first time on appeal. The Court of Appeals accepted the theory using facts drawn from her appellate brief. The Supreme Court reversed, writing: “It clearly erred in so reaching beyond the trial court record.”

The same rule applies to a brief’s statements of fact. In Mesenbourg, the respondent’s brief asserted a fact with no support in the record, and the Court of Appeals wrote: “Therefore this statement is stricken from the record.” For a business, this means the evidence and the arguments should be in the district court file before judgment, not saved for the appeal.

When must a motion for a new trial come before the appeal?

After a trial, errors in trial procedure, evidentiary rulings made during trial, and jury instructions generally need a motion for a new trial before they can be reviewed. Rule 103.04 warns that “The scope of review afforded may be affected by whether proper steps have been taken to preserve issues for review on appeal, including the existence of timely and proper post-trial motions.”

In Sauter v. Wasemiller, 389 N.W.2d 200 (Minn. 1986), a negligence case tried to a jury, the Minnesota Supreme Court reaffirmed that “matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.” Two later decisions narrowed that rule:

• In Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minnesota, 664 N.W.2d 303 (Minn. 2003), a commercial lease dispute decided after a bench trial, the court held that “while permissive, motions for a new trial pursuant to Minn. R. Civ. P. 59.01 are not a prerequisite for appellate review of substantive questions of law when a genuine issue of law is properly raised and considered at the district court level”.
• In County of Hennepin v. Bhakta, 922 N.W.2d 194 (Minn. 2019), the court held that “pretrial orders on motions in limine are appealable regardless of whether those orders have been assigned as error in a motion for a new trial.” The same opinion states: “The Sauter rule continues to apply to motions brought or decided during trial.”

A motion for a new trial under Minn. R. Civ. P. 59.01 has its own clock. Under Minn. R. Civ. P. 59.03, “A notice of motion for a new trial shall be served within 30 days after a general verdict or service of notice by a party of the filing of the decision or order; and the motion shall be heard within 60 days after such general verdict or notice of filing,” so I suggest checking the current rule text for those numbers.

The new-trial motion also builds the record. Under Minn. R. Civ. P. 59.02, “A full or partial transcript of the court reporter’s notes may be used on the hearing of the motion.” Preserving an error starts earlier still, with making an objection at trial and objecting to a jury instruction on the record. Other post-trial motions such as JNOV follow their own rules. The time to appeal runs under Rule 104.01, and under subd. 2 a new-trial motion changes when that time runs only if a party “serves and files a proper and timely motion,” so I suggest reading that rule against your judgment date before deciding on post-trial motions.

Building a Record the Court Can Review

An appeal in Minnesota is decided on the district court file, the exhibits, and whatever transcript the parties order, so the record is built twice: once at trial, and again in the first steps after the notice of appeal. The appellant carries the burden of an adequate record, and a missing transcript can leave the court able to review only whether the findings support the conclusions. An appellate court may not consider a new fact that was not produced and received in evidence below, and it generally considers only the issues the record shows were presented to and considered by the trial court.

For more on how disputes move through Minnesota courts, see my overview of Minnesota business litigation. If your company is deciding whether to appeal a district court judgment, email me at [email protected] with the judgment, the Register of Actions, and the issues you want reviewed, and I can tell you which parts of the transcript the appeal would need.