REGENCY EXECUTIVE PLAZA v. Wilmock, Inc., A98A1746.

• Decision Date: 11 March 1999
• Docket Number: No. A98A1746.,A98A1746.
• Parties: REGENCY EXECUTIVE PLAZA UNIT OWNER'S ASSOCIATION, INC. et al. v. WILMOCK, INC. et al.
• Court: Georgia Court of Appeals

514 S.E.2d 446

237 Ga. App. 193

REGENCY EXECUTIVE PLAZA UNIT OWNER'S ASSOCIATION, INC. et al. v. WILMOCK, INC. et al.

No. A98A1746.

Court of Appeals of Georgia.

March 11, 1999.

Reconsideration Denied March 22, 1999.

Certiorari Denied July 2, 1999.

Eugene C. Brooks IV, Savannah, for appellants.

Brannen, Searcy & Smith, Daniel C. Cohen, Savannah, McLain & Merritt, William S. Sutton, Atlanta, Henderson & Henderson, Devaul L. Henderson, Jr., Richmond Hill, Beckmann & Pinson, Walter W. Ballew III, Savannah, for appellees.

McMURRAY, Presiding Judge.

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, 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 ...