Opinion
A98A1746.
DECIDED: MARCH 11, 1999.
Action for damages. Chatham Superior Court. Before Judge Freesemann.
Eugene C. Brooks IV, for appellants.
Brannen, Searcy Smith, Daniel C. Cohen, McLain Merritt, William S. Sutton, Henderson Henderson, Devaul L. Henderson, Jr., Beckman Pinson, Walter W. Ballew III, for appellees.
This is an action for damages arising from moisture retention problems and resultant termite problems in the structure of a condominium office building complex. The plaintiffs are Regency Executive Plaza Unit Owner's Association, Inc., the association organized for the operation of the condominium, along with a number of representatives of unit owners and tenants. Numerous corporate and individual defendants were involved in the testing, manufacture, sale, installation, or inspection of the exterior insulation and finishing system, a synthetic stucco exterior with foam insulation backing, which was placed on the buildings in the complex, or provided pesticide treatment and related services for the buildings. The present appeal is taken by plaintiffs from the grant of summary judgment in favor of defendants Edward D. Garvin, Joy Garvin, and Daniel J. Sheehan Company, as well as the grant of partial summary judgment in favor of defendants Dryvit Systems, Inc., Wilmock, Inc., Marvin Dickey, d/b/a Southern Tile and Carpet Company, and Astro Pest Control Services of Savannah, Inc. Held:
The notice of appeal filed by [plaintiffs] is not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, [plaintiffs have] instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. Nonetheless, after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the superior court relied in this case has been omitted from the record on appeal.
It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463 ( 277 S.E.2d 16); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 ( 412 S.E.2d 847); Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 ( 401 S.E.2d 294); Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309(1) ( 395 S.E.2d 898); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 ( 370 S.E.2d 520).
Bennett v. Executive Benefits, Inc., 210 Ga. App. 429 ( 436 S.E.2d 544).
"`On consideration of summary judgments we and the trial court must look at the entire record.'" Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 ( 270 S.E.2d 898) (1980)." MacKinnon v. Hodge, 204 Ga. App. 539 ( 420 S.E.2d 341). Consequently, appellants who omit portions of the record which they view as not pertaining to any issue on appeal create a probably fatal defect in their appeals. "Such omissions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court's grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266(, supra)." Dillman v. Kahres, 201 Ga. App. 210, 211 ( 411 S.E.2d 43).
Peacock v. Campbell, 223 Ga. App. 620 ( 478 S.E.2d 409).
The appellate record designated by plaintiffs omits portions of a dozen or more depositions which were included in their entirety in the record below and were presumably considered by the superior court in reaching its decision. Some parts of this evidence is included in the record on appeal because it was designated by one or more of the defendants. However, the defendants as appellees do not share the appellants' responsibility to show error affirmatively by the record, a record which continues to omit some portion of no less than eight depositions. The missing portions of the depositions must be presumed to contain evidence authorizing the judgment of the superior court. Since plaintiff has omitted some portion of the evidence upon which the superior court relied, we must affirm. Tahamtan v. Sawnee Electric Membership Corporation, 228 Ga. App. 485, 486 ( 491 S.E.2d 918); Ferros v. Georgia State Patrol, 211 Ga. App. 50, 51(2) ( 438 S.E.2d 163).
Judgment affirmed. Blackburn and Eldridge, JJ., concur.