Bhatia v. WEST CASH & CARRY BUILDING MATERIALS OF SAVANNAH, INC. , 157 Ga. App. 145 ( 1981 )

157 Ga. App. 145 (1981) 276 S.E.2d 656

BHATIA
v.
WEST CASH & CARRY BUILDING MATERIALS OF SAVANNAH, INC.

60710.

Court of Appeals of Georgia.

Decided January 15, 1981.

Sarvan Bhatia, pro se.

Robert M. Ray, Jr., for appellee.

BIRDSONG, Judge.

Open account. The appellee West Cash & Carry Building Materials of Savannah ("West") sold building materials to the appellant Sarvan Bhatia over a period of several months for the construction of several apartments or similar type construction. A dispute arose as to whether Bhatia had been improperly charged for certain material that he asserted had been returned and for an alleged overcharge for some windows. West brought this suit on the open account seeking the sum of $227.63 as the amount owing, plus costs. The suit was tried before a judge alone, both parties having waived a jury. No transcript was requested or made of the trial proceedings. The trial court entered judgment for West in the full amount of the claim. Bhatia brings this appeal pro se complaining that the trial court erred in its findings of material facts and in failing to provide a written transcript of the proceedings. In his brief Bhatia sets forth much of the examination and cross examination conducted on the specific issue, but there is no supportive testimony in a record or transcript. Held:

In its judgment the trial court concluded that the appellee West had shown by adequate proof the indebtedness claimed but Bhatia had submitted inadequate proof in support of his defenses sufficient to overcome the preponderance of evidence offered by West. Thus the trial court entered judgment for the full amount of the open account plus costs in favor of West.

Where, as here, there is no transcript (none having been requested) and no agreed statement of the facts are furnished (Code Ann. § 6-805 (g)), the appellate court is bound to assume that the trial court's findings are supported by sufficient competent evidence (Nalley v. State, 147 Ga. App. 634, 635 (249 SE2d 685)) for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction. Bible v. Marra, 226 Ga. 154, 159 (173 SE 2d 346). Thus an appeal with enumerations dependent upon a consideration of the evidence heard by the trial court will, absent a transcript, be affirmed. Jackson v. Jackson, 235 Ga. 656 (221 SE2d 427); Chapman v. Conner, 138 Ga. App. 518 (226 SE2d 625). The burden of showing harmful error is on the appellant, and this he must do by the record; it may not be done by assertions appearing only in his brief or in his enumerations of error. Airport Assoc. v. Audioptic Instructional Devices, 125 Ga. App. 325 (2) (187 SE2d 567); Jenkins v. Board of Zoning Appeals, 122 Ga. App. 412 (2) (177 SE2d 204). Based upon the record before us, we affirm the judgment of the trial court.

Appellee West has moved this court not only to affirm the judgment but to award attorney fees based upon a frivolous appeal. However, this we decline to do. Appellant has appealed pro se and it is apparent that at least Bhatia is convinced of the merits of his appeal. Although we have found the appeal not to be meritorious in the absence of a transcript, we do not find it frivolous within the meaning of Code Ann. § 6-1002 (Ga. L. 1965, pp. 18, 22) or Code Ann. § 6-1801. Brown v. Rooks, 139 Ga. App. 770 (1) (229 SE2d 548).

Judgment affirmed. Deen, P. J., and Sognier, J., concur.