Tahamtan v. Sawnee Elec. Membership Corp.

• Decision Date: 11 September 1997
• Docket Number: No. A97A1287,A97A1287
• Parties: , 97 FCDR 3443 TAHAMTAN v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION et al.
• Court: Georgia Court of Appeals

Page 918

491 S.E.2d 918

228 Ga.App. 485, 97 FCDR 3443

TAHAMTAN v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION et al.

No. A97A1287.

Court of Appeals of Georgia.

Sept. 11, 1997.

Amir A. Tahamtam, pro se.

Hicks, Casey, Young & Barber, William T. Casey, Jr., Marietta, Timothy K. Hall, Macon, for appellees.

BLACKBURN, Judge.

Amir Tahamtan appeals the trial court's grant of summary judgment to defendants Sawnee Electric Membership Corporation and Mike Goodroe on Tahamtan's claim for damages arising out of the defendants' alleged provision of false credit information to a credit reporting agency. For the reasons set forth below, we affirm.

Tahamtan filed his complaint on March 29, 1994, alleging that the defendants erroneously reported an outstanding debt to a credit reporting agency. Tahamtan apparently amended his complaint at some point, although this amendment is not contained in the record. On January 8, 1997, the trial court granted the defendants' supplemental motion for summary judgment on the grounds that all of Tahamtan's claims were barred by the statute of limitation. ¹ It is from this order that Tahamtan appeals.

Other than Tahamtan's original complaint and the defendants' answer, the record on appeal does not contain any evidence considered by the trial court. In his amended notices of appeal, Tahamtan directed the clerk to forward only the complaint and answer, the defendants' supplemental motion for summary judgment and statement of material facts, Tahamtan's brief in response to the motion, and the trial court's order. Tahamtan did not request that the clerk forward a copy of his deposition testimony, which was expressly relied upon by the defendants in their motion.

"It is well established that the burden is on the party alleging error to show it affirmatively by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm." Transport Indem. Co. v. Hartford Ins. Co., 198 Ga.App. 265, 266, 401 S.E.2d 294 (1990). "Assertions of evidence in briefs or enumerations of error cannot satisfy this duty," (punctuation omitted) Arnold v. Brundidge Banking Co., 209 Ga.App. 278, 279, 433 S.E.2d 388 (1993), overruled on other grounds, Okekpe v. Commerce Funding Corp., 218 Ga.App. 705, 706, 463 S.E.2d 23 (1995), and factual assertions contained in the parties' briefs to the lower court are not evidence. Transport, supra.

"[O]missions 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." Dillman v. Kahres, 201 Ga.App. 210, 211, 411 S.E.2d 43 (1991). "[W]hen a portion of the evidence bearing upon the issue raised by the enumeration of errors is not...