Opinion
A96A0304
DECIDED APRIL 19, 1996
Dismissal; pendency of former action. Fulton Superior Court. Before Judge Eldridge.
Otis Johnson, Jr., pro se. Michael J. Bowers, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Barbara E. Nelan, Assistant Attorney General, for appellees.
Otis Johnson, Jr., pro se, appeals the trial court's order dismissing his complaint. In the underlying action, Johnson and his wife alleged that Marcus Collins, Sr., the State Revenue Commissioner; Donald Steele, the Director of the Income Tax Division of the Georgia Department of Revenue; Michael Bowers, the Attorney General of the State of Georgia; and Barbara Nelan and Warren Calvert, both Assistant Attorneys General violated Georgia's Open Records Act by failing to make requested records available to him. The trial court determined that the complaint failed to state a claim upon which relief could be granted, that the action was barred under the doctrine of sovereign immunity and official immunity, and that plaintiffs' prior pending action on the same subject matter abated the present complaint.
Based on the record on appeal, we must affirm the trial court's order dismissing Johnson's complaint based on the pendency of a former action. See OCGA § 9-2-5 (a). Although the record before us does not contain a copy of the prior pending action, such action is referred to in Johnson's deposition as a companion case. Apparently the companion case involves the Johnsons' tax refund claims. However, we are unable to ascertain from the record the extent of the claims made in the Johnsons' previously filed action.
"The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where evidence is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm." (Citations and punctuation omitted.) White v. Arthur Enterprises, 219 Ga. App. 124 (2) ( 464 S.E.2d 225) (1995). Based on the record before us, we cannot say that the trial court erred in finding that the Johnsons' prior pending action abated the present action.
Judgment affirmed. Beasley, C.J., and Birdsong, P.J., concur.