Patricia Creech v. Surgery South, P.C. ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 13, 2017
The Court of Appeals hereby passes the following order:
A17A1476. CREECH et al. v. SURGERY SOUTH, P.C. et al.
The Appellees in the above-styled appeal have moved this Court to supplement
the record on appeal with the portion of the trial court record that the Appellants
indicated in their notice of appeal should be omitted, including exhibits that were sent
out with the jury and deposition transcripts. Additionally, both parties agree that
certain relevant evidence is included on a digital compact disc that has been damaged
and that it is unclear how long that it will take for the trial court to make that evidence
available. Accordingly, the Appellees request that the case be removed from the
docket and remanded to the trial court for the complete record to be compiled and
sent to this Court to be considered on appeal.
In their response to the Appellees’ motion and in a separate motion for an
extension of time to file their brief, the Appellants do not dispute that the Appellees
are entitled to have the requested materials included in the appellate record, they
agree that the trial court’s clerk’s office has failed to comply with the Appellees’
request in the trial court to supplement the record, and given the damaged computer
disc, they express concern that the length of time that it will take to complete the
record is uncertain. In light of these concerns (as well as certain upcoming travel
plans of their attorney), the Appellants request that they be given an extension of time
to file their appellate brief until June 12, 2017, if this Court denies Appellees request
to remand this case to the trial court for completion of the record.
In this regard, our Supreme Court has explained that
[w]hile invoking OCGA § 5–6–48 (d)[1] to supplement a record is
within the appellate court’s discretion, there are two goals to consider
in determining whether to exercise such discretion: (1) that cases be
decided according to true and complete facts as they occurred in the trial
court and (2) that cases on appeal not be further delayed by proceedings
in the trial court.2
And “[t]he first goal prevails over the second up to the point the appellate court
renders its decision.”3 Indeed, “[o]n appeal, parties must also be provided a fair and
equal opportunity to present key evidence that was considered by the trial court.”4
1
See OCGA § 5-6-48 (d) (“At any stage of the proceedings, either before or
after argument, the court shall by order, either with or without motion, provide for all
necessary amendments, require the trial court to make corrections in the record or
transcript or certify what transpired below which does not appear from the record on
appeal, require that additional portions of the record or transcript of proceedings be
sent up, or require that a complete transcript of evidence and proceedings be prepared
and sent up, or take any other action to perfect the appeal and record so that the
appellate court can and will pass upon the appeal and not dismiss it. If an error
appears in the notice of appeal, the court shall allow the notice of appeal to be
amended at any time prior to judgment to perfect the appeal so that the appellate court
can and will pass upon the appeal and not dismiss it.”).
2
Damani v. State, 284 Ga. 372, 374 (2) (667 SE2d 372) (2008).
3
Id.
4
Id.
 Because both parties are entitled to a fair and equal opportunity to present key
evidence, they agree that the Appellees are entitled to have the appellate record
supplemented, and that it is unclear how long it will take the trial court to do so, we
hereby GRANT the Appellees’ motion to supplement the record, remove this appeal
from our docket, and remand the case to the trial court to give the parties the
opportunity to supplement the trial-court record with any evidence that was filed with
and considered by the trial court, but not included in the record on appeal.5 To this
5
See Damani v. State, 284 Ga. at 374 (2) (holding that the Court of Appeals
erred in denying a motion to supplement the record with an expert report that was
relied upon by the trial court because, absent the report, the record “did not reflect the
true and complete facts as they occurred in the trial court and did not give the parties
a fair and equal opportunity to present key trial evidence on appeal”); Peterson v.
Beasley, 274 Ga. 882, 882 (561 SE2d 429) (2002) (remanding a case to the trial court
for, inter alia, further proceedings as may be necessary to complete the record when
the Supreme Court could not determine whether certain exhibits were admitted into
evidence); Ga. Messenger Serv., Inc. v. Bradley, 302 Ga. App. 247, 249 (1) (690
SE2d 888) (2010) (“Although the burden of timely filing depositions and other
discovery material with the trial court lies with the party which intends to rely upon
it, . . . the parties before the trial court relied upon the depositions in their briefs in the
trial court, [ ] it must be inferred that the trial court relied upon such citation to such
depositions made either by brief or oral argument as if the depositions were filed and
opened in deciding such motions.” (punctuation and citation omitted)); Snipes v.
Hous. Auth. of DeKalb Cty., 250 Ga. App. 771, 772 (552 SE2d 133) (2001) (vacating
a summary-judgment order and remanding for the trial court to reconsider the
summary-judgment motion with depositions that were relied upon by the trial court
but never filed with the clerk’s office as if they were filed at the time of the motion);
Custom Lighting & Decorating, Ltd. v. Hampshire Co., 204 Ga. App. 293, 295 (1)
(418 SE2d 811) (1992) (allowing the trial court to supplement the record with
depositions that were given to the judge but not filed with the clerk’s office); Galardi
v. Steele-Inman, 259 Ga. App. 249, 249-50 (576 SE2d 555) (2002) (removing the
case from the appeal docket and remanding it to the trial court for “completion of the
record without delay”); Slaughter v. State, 199 Ga. App. 695, 695 (405 SE2d 897)
(1991) (remanding the case to the trial court to afford both parties the equal
opportunity to supplement the record on a particular issue).
end, the trial court is directed to issue an order detailing which of the materials
identified by Appellees were considered in the trial court, but omitted from the
appellate record, and supplementing the record accordingly. Upon entry of such
order, the Appellants shall have 30 days from that date to re-file a notice of appeal,
and after the filing of such notice of appeal the case with the complete record may be
transmitted to the Court of Appeals for redocketing. Thus, Appellant’s motion for
extension of time is denied as moot.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/13/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.