CNL Insurance America v. Moreland , 226 Ga. App. 57 ( 1997 )

Blackburn, Judge.

CNL Insurance America appeals the trial court’s denial of its post-judgment motion for offset. The issue in this appeal is whether the non-duplication of benefits provision in CNL’s insurance policy is enforceable and allows CNL the right in this uninsured motorist claim to reduce the jury’s verdict by the amount of payments previously made to the plaintiff. CNL’s insurance policy was not made a part of the record at the trial court and is not in the record before us. There was no appropriate substitution for the policy’s submission made to the trial court.

It is well settled that the burden on appeal is on the appellant to show error by the record. When a portion of the evidence bearing upon the issues before the trial court was not filed in the trial court and not made a part of the record on appeal, this Court may not consider such material. See Burks v. First Union Mtg. Corp., 209 Ga. App. 41, 42 (432 SE2d 822) (1993).

CNL’s attempt to supplement the record by attaching a copy of one and one-half pages of the purported policy in issue to its appellate brief is not sufficient. “[T]he burden is on him who asserts error to show it affirmatively by the record. A brief cannot be used in lieu of the record for adding evidence.” (Citation and punctuation omitted.) Id. See also Graham v. Ault, 266 Ga. 367 (2) (466 SE2d 213) (1996) (appellate court cannot consider facts which do not appear in the record sent from the trial court); Bertone v. Wilkinson, 213 Ga. App. 255, 257 (444 SE2d 576) (1994) (court cannot consider pleading attached to brief); Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga. App. 235, 236 (2) (424 SE2d 807) (1992) (“ £[a] brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party’ ”). Factual assertions in briefs are not evidence and may not support a ruling by this Court. See Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 15 (476 SE2d 797) (1996) (“ £[t]he appellate courts simply cannot, and are not authorized by law, to infer from statements of counsel in their briefs, facts which never managed an introduction into or even a nodding acquaintance with the record’ ”).

The dissent’s reliance on Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466 (367 SE2d 317) (1988) is misplaced as that case is distinguishable. In Bentley-Kessinger, the Court interpreted a provision in a lease document that was not in the record; however, therein the parties agreed as to the wording of the provision in issue and the trial court made specific findings regarding what was authorized by the leasé agreement. In the present case, the trial court made no such findings and, neither its order denying CNL’s motion for set-off nor the policy in question is part of the appellate record.

As the record contains no evidence of the provisions in CNL’s policy, we must affirm the trial court.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Smith, J., concurs specially. Beasley, J., dissents.