BROCK et al.
MILLER, P. J., ELLINGTON, P. J., and ANDREWS, J.
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. 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.
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." 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.
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 be filed for inclusion in the record on
appeal[, ]" it does not identify those portions of the
record that should be excluded on appeal. 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. See, e. g., Turner v. National
Collegiate Student Loan Trust 2007-4, 342 Ga.App. 835
(803 S.E.2d 797) (2017); Redford v. Collier Heights
Apartments, 298 Ga.App. 116, 117 (679 S.E.2d 120)
(2009). To the contrary, the notice of appeal is completely
silent concerning the content of the record on
appeal. As a result, the Brocks' notice of
appeal fails its rudimentary function "to 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 S.E.2d
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 S.E.2d 915) (2009). See also Turner,
342 Ga.App. at 835; Curry v. Miller, 328 Ga.App.
564, 565 (763 S.E.2d 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 from the
record, an appellate court must assume that the judgment
below was correct and affirm." Armstrong, 299
Ga.App. at 885. 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.
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 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.
Miller, P J, and Ellington, P J, concur.
 The Brocks also initially sued Peach
State Excavation, LLC and H. Alton ...