                            SECOND DIVISION
                              MILLER, P. J.,
                     ELLINGTON, P. J., and ANDREWS, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 14, 2018




In the Court of Appeals of Georgia
 A18A0445. BROCK et al. v. DAUGHERTY.

      ANDREWS, Judge.

      Gail and James Brock sued Dion Daugherty, an adjoining landowner, for

damages resulting from excavations performed by Bruce Swartley on Daugherty’s

property that impermissibly removed soil from the Brocks’ property.1 The Superior

Court of Crawford County granted Daugherty’s motion for summary judgment, and

the Brocks appeal, contending they are entitled to equitable relief pursuant to OCGA

§ 23-1-14. However, the state of the record on appeal precludes us from properly

reviewing this case de novo. Therefore, we affirm.




      1
          The Brocks also initially sued Peach State Excavation, LLC and H. Alton
Tucker.
      The Brocks alleged that Daugherty allowed Peach State Excavation, LLC and

H. Alton Tucker to remove “approximately 260 loads of soil” that was “uniquely well

suited for use in ground foundation for the construction of buildings and roadbeds.”

Daugherty moved for summary judgment, relying upon the pleadings in the case,

Daugherty’s affidavit and attached exhibits, 12 depositions, “[e]xhibits attached to

the Complaint,” and “[a]ll other material of record.”2 The trial court granted

Daugherty’s motion, noting that it had “carefully considered the entire file in this civil

action including all pleadings, briefs and affidavits, and argument of counsel. . . .”

This appeal followed.

      Among other criteria, OCGA § 5-6-37 mandates that a notice of appeal shall

include “a designation of those portions of the record to be omitted from the record

on appeal” and “shall state whether or not any transcript of evidence and proceedings

is to be transmitted as a part of the record on appeal.” Although the Brocks’ notice

of appeal contains a statement that “[t]he transcript of evidence and proceedings will




      2
        Daugherty’s motion also referenced a brief in support of the motion, which
was not included with the original record on appeal and, despite an order from this
Court, is still not a part of the record.

                                            2
be filed for inclusion in the record on appeal[,]”3 it does not identify those portions

of the record that should be excluded on appeal.4 See OCGA § 5-6-37. And unlike

other cases we have examined, nor does the notice of appeal contain a statement of

what should be included in the record.5 See, e. g., Turner v. National Collegiate

Student Loan Trust 2007-4, 342 Ga. App. 835 (803 SE2d 797) (2017); Redford v.

Collier Heights Apartments, 298 Ga. App. 116, 117 (679 SE2d 120) (2009). To the

contrary, the notice of appeal is completely silent concerning the content of the record

on appeal.6 As a result, the Brocks’ notice of appeal fails its rudimentary function “to


      3
       The transcript that is included in the record on appeal consists of the parties’
arguments on Daugherty’s motion in limine and motion for summary judgment. No
evidence is contained in the transcript.
      4
         For this reason, the Brocks’ argument that Daugherty “was afforded 15 days
after notice of [the Brocks’] brief to supplement the record” is both legally incorrect
and misplaced. OCGA § 5-6-42 provides that “[i]f the appellant designates any matter
to be omitted from the record on appeal as provided in Code Section 5-6-37, the
appellee may, within 15 days of serving of the notice of appeal by appellant, file a
designation of record designating that all or part of the omitted matters be included
in the record on appeal.” (Emphasis supplied.) Because the Brocks did not make any
designations concerning the record on appeal, the remedy codified in OCGA § 5-6-42
was not available to Daugherty.
      5
        We note that such a designation, even if included in the notice of appeal, is
also contrary to OCGA § 5-6-37.
      6
     Briefing by the parties in this Court suggests that counsel for the Brocks
communicated with the clerk of the trial court to complile the record on appeal. While

                                           3
allow [this Court] to determine if the record before [it] contains the same evidence

that was before the trial court at the time it ruled.” (Citation omitted.) Redford, 298

Ga. App. at 117. “Nonetheless, after study of the record sent up . . ., it is apparent that

. . . some portion of the evidence upon which the superior court relied in this case has

been omitted from the record on appeal.” Bennett v. Executive Benefits, Inc., 210 Ga.

App. 429 (436 SE2d 544) (1993).

       “It is well established that the burden is on the party alleging error to show it

affirmatively by the record. . . .” (Citation omitted.) Armstrong v. Rapson, 299 Ga.

App. 884, 885 (683 SE2d 915) (2009). See also Turner, 342 Ga. App. at 835; Curry

v. Miller, 328 Ga. App. 564, 565 (763 SE2d 489) (2014). To that end, “[w]hen this

court reviews the grant of summary judgment, we must look at the entire record

before the trial court.” (Citation omitted.) Armstrong, 299 Ga. App. at 885. See also

Redford, 298 Ga. App. at 117 (“In considering the grant of summary judgment, we

and the trial court must look at the entire record.”) (citation and punctuation omitted).

“[A]nd where the proof necessary for determination of the issues on appeal is omitted

counsel for appellants are free to engage in such communications with the clerks of
the trial courts to prepare the record on appeal and to confirm that the record is
correct, appropriately inclusive, and properly transmitted to the appellate courts, the
results of those communications should be memorialized in a notice of appeal that
comports with the requirements of OCGA § 5-6-37. That was not done in this case.

                                            4
from the record, an appellate court must assume that the judgment below was correct

and affirm.” Armstrong, 299 Ga. App. at 885.7 See also Turner, 342 Ga. App. at 835;

Curry, 328 Ga. App. at 565. As a result,

       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.


Redford, 298 Ga. App. at 117.

       “[W]e have consistently affirmed the trial court’s summary judgment order

where the appellant has omitted a deposition or other evidence from the appellate

record, especially where, as here, the trial court stated in its order that it has relied on

‘the entire record’ in reaching its decision.” Armstrong, 299 Ga. App. at 885. In this

case, the record does not contain Daugherty’s brief in support of his motion for

       7
       It is true that “it is permissible for an appellant to submit only a portion of the
record below to this [C]ourt. . . .” (Citation and punctuation omitted.) Hospital
Authority of Valdosta/Lowndes County v. Brinson, 330 Ga. App. 212, 214 (1) (767
SE2d 811) (2014). However, such designations are governed by the requirements of
OCGA § 5-6-37, which the Brocks neglected to follow.

                                             5
summary judgment or ten of the twelve depositions upon which Daugherty relied in

support of his motion. While portions of the record may well be irrelevant to the

narrow issue from which the Brocks appeal, the absence of these documents generally

and Daugherty’s brief in support of his motion for summary judgment specifically,

coupled with the failure to identify any contents of the record on appeal in the

Brocks’ notice of appeal, precludes our de novo review of this case. Accordingly,

“[a]s appellants have omitted from the record some portion of the evidence upon

which the [trial] court relied, we must affirm.” (Citations omitted.) Armstrong, 299

Ga. App. at 885.8

      Judgment affirmed. Miller, P. J., and Ellington, P. J., concur.




      8
         The Brocks are not rescued by their reliance upon Court of Appeals Rule 20,
which provides, in relevant part, that “Appellee shall be deemed to have waived any
failure of the appellant to comply with the provisions of the Appellate Practice Act
relating to . . . transmittal of the record to this Court, unless objection thereto was
made and ruled upon in the trial court before transmittal. . . .” Rule 20 addresses the
failure to timely supply a record or transcript for appeal and not the content of the
record itself, and it is therefore inapplicable here. See, e. g., Chandler v. Liberty Mut.
Fire Ins. Co., 333 Ga. App. 595, n. 1 (773 SE2d 876) (2015); Lipsteuer v. CSX
Transp., 236 Ga. App. 806, n. 1 (513 SE2d 532) (1999).

                                            6
