This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1014

Sharon Bellanger Bishop,

Respondent,

vs.

L.B. Sales, Inc., d/b/a Continental Motors,

Appellant.

Filed December 10, 1996

Dismissed

Randall, Judge

Ramsey County District Court

File No. C9-95-8260

David R. Marshall, Terri A. Georgen, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellant).

Pro Se, 11200 Wren Street, Coon Rapids, MN 55433 (for respondent).

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges the district court's judgment awarding respondent $5,963.50, arguing that the evidence presented at trial was insufficient to support respondent's claims of breach of warranty, breach of contract, fraud, and revocation of acceptance of a car she purchased from appellant. Because of the lack of a record, we dismiss the appeal.

FACTS

Although appellant failed to provide a transcript of the district court proceedings, from the parties's briefs it appears the facts are essentially as follows: on September 5, 1994, respondent Sharon Bishop purchased a 1988 Chevrolet Corsica from appellant L.B. Sales, Inc., d/b/a Continental Motors (Continental). Apparently, the next day Bishop, having taken the car to her mechanic and another auto body shop, attempted to return the car because it was unsafe to drive. The manager told Bishop to give him a few days to find a replacement for her. Bishop maintains that Continental never contacted her regarding a replacement vehicle.

On September 24, 1994, Bishop sent Continental a notarized, certified letter detailing her problems with the Corsica and the lack of action on the part of Continental in resolving the matter. In the letter, Bishop stated that on September 6, 1994, she had taken the Corsica to her mechanic and a body shop and was informed that the car had extensive damages of at least 70% of its market value. Bishop also outlined how Continental's manager failed to find her a replacement vehicle and how he never got back to her despite her repeated attempts to reach him between September 8 and 10, and continuing through September 24, 1994. It appears from the letter that on September 12, 1994, Continental towed the car from Bishop's residence. By a letter signed on October 1, 1994, and sent certified mail to Continental, Bishop stated she was relinquishing ownership of the Corsica.

On May 5, 1995, Bishop commenced a lawsuit in Ramsey County Conciliation Court against L.B. Sales, Inc., d/b/a Continental Motors. She asserted claims that appellant sold her an automobile that was unsafe to drive and was damaged in the amount of at least 70% of its market value. The conciliation court ruled in favor of Bishop and awarded her $5,963.50, plus $50. On August 9, 1995, Continental filed a demand to remove the matter to Ramsey County District Court. A trial was held on November 13, 1995. On December 11, 1995, the trial court ruled in Bishop's favor, ordering Continental to provide Bishop with title to the car in question, and awarded her $500. On January 17, 1996, the trial court amended its judgment and awarded Bishop $5,963.50, plus $50 pursuant to Rule 524 of the General Rules of Practice for the District Court. Continental now appeals.

D E C I S I O N

On appeal, Continental argues the evidence was insufficient as a matter of law to support respondent's claims. Continental argues that pursuant to Article 2 of the Minnesota Commercial Code, the burden was on Bishop to prove any breach with respect to the sale of the Corsica. Namely, Continental argues Bishop failed to present any competent evidence regarding the quality and condition of the Corsica and that she failed to present any competent evidence to establish that there was a non-conformity with the car and that any alleged non-conformity "substantially impaired the value" of the Corsica. Continental also claims that the evidence does not support a finding that Bishop established the elements necessary to prove fraud. Finally, Continental argues that Bishop's claims must fail as a matter of law because she failed to present any evidence regarding damages.

Despite arguing insufficiency of the evidence, Continental failed to provide a transcript of the trial court proceedings. Appellant has the burden and duty to provide the appellate court with a record sufficient to show the alleged errors and all matters necessary to consider the issues. Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964); Wicker v. City of Maplewood, 378 N.W.2d 138, 139 (Minn. App. 1985). "Error cannot be presumed." Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968). It is firmly established that "a reviewing court cannot consider a sufficiency-of-evidence issue unless provided with a trial transcript." Godbout v. Norton, 262 N.W.2d 374, 376 (Minn. 1977); Custom Farm Servs. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976) (citation omitted). Thus, where a reviewing court

cannot determine from the record * * * whether the court acted arbitrarily or whether the determination of the court is supported by the evidence, [the reviewing court is] compelled to hold that the appeal must be dismissed.

Noltimier, 280 Minn. at 29, 157 N.W.2d at 531.

On the record submitted by Continental we are unable to determine on what grounds the trial court based its decision. Except for Continental's post-trial memorandum, there are no affidavits, memoranda, or other items in the trial court record to indicate the basis for the trial court's decision. The case law is clear that where appellant argues sufficiency of the evidence and fails to provide a transcript, the appeal is dismissed. We know simply that respondent won in conciliation court, appellant removed the matter to district court, and that after a trial de novo, the trial court again ruled in respondent's favor. Beyond these

basic facts, there is nothing in the record as submitted to allow meaningful review of the issues presented by Continental. The appeal is dismissed. From what bare facts the record did bring to our attention, nothing about the conciliation court award, and then later the trial court award to respondent on the merits, appears unseemly. The judgment awarded respondent stands.

Dismissed.