Diane J. Hanson v. Forsyth County

Court of Appeals of the State of Georgia

ATLANTA,____________________

May 31, 2017 The Court of Appeals hereby passes the following order:

A17A1736. HANSON, et al v. FORSYTH COUNTY

Diane and Henry Hanson, the appellants in the above-styled case, have filed a motion to supplement the record with documents that they contend the trial court omitted when transferring the record to this Court by “ministerial error” as well as other documents or evidence that they allege were relied upon by the appellee, Forsyth County; the trial court; or both, but were never filed with the trial court for whatever reason. Specifically, the Hansons seek to supplement the record with (1) a copy of the trial court’s docket showing that the Hansons filed a trial brief that was not sent to this Court with the record; (2) the Hansons’ trial brief; (3) the Hansons’ proposed order denying Forsyth County’s motion for summary judgment, received by the trial court on October 21, 2016; (4) evidence of the dismissal of the criminal charges against Henry Hanson; and (5) Forsyth County building permit applications showing a residential and commercial mixed-use building that Forsyth County has contended does not exist.

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

Nevertheless, this Court cannot consider evidence that was not part of the trial court’s record prior to appeal.5 However, the Hansons contend that certain documents 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.”). or evidence that was before the trial court was erroneously omitted from the record on appeal. But although the Hansons contend that the trial court considered all of the evidence or documents at issue, they admit that at least some of them were never filed with the trial court, and as such, the trial court could not forward such evidence to be included in the appellate record even if we ordered it to do so.

But given that parties must be provided a fair and equal opportunity to present key evidence considered by the trial court, we hereby DENY the Hansons’s motion to supplement the record, remove this appeal from our docket, and remand the case for the trial court to give the parties the opportunity to supplement the trial court record with any evidence identified by the Hansons that was either inadvertently omitted from the record on appeal or that was considered by the trial court in deciding the case but never filed with the trial court.6 and made part of the record on appeal).

We acknowledge that Forsyth County has filed a response, arguing that the OCGA § 5-6-41 (f), the statute cited in the Hansons’s motion, only applies to motions filed in the trial court, that the Hansons failed to follow the statutory procedures required in the trial court to supplement the record, and that this Court should not consider factual assertions appearing in the parties’ motions or briefs when the evidence does not appear in the record.7 But we have not considered the substance of any of the documents or exhibits referenced in or attached to the Hansons’s motion, and as explained supra, OCGA § 5-6-48 (d) and our Supreme Court of Georgia authorizes this Court to remand a case to the trial court for further proceedings as may be necessary to complete the record.8 “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). Cf. 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”).

Given Forsyth County’s argument that the Hansons seek to supplement the record with evidence or documents that were not filed in or considered by the trial court, the trial court is directed to issue an order confirming which of the documents or exhibits identified by the Hansons, if any, were inadvertently omitted from the record or that it considered in deciding this case and supplementing the record accordingly. Upon entry of such order, the Hansons 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.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

05/31/2017 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.