Word to the Wise

The late summer lull in appellate decisions is upon us, but in the absence of particularly interesting decisions on issues of Georgia or federal law, it's worth reminding the Georgia appellate lawyers out there of the importance of making sure that all of the documents that bear on your appeal are included in the record on appeal.

In Hattaway v. Conner, 2006 WL 2255830, 06 FCDR 2583 (Aug. 8, 2006), a negligent misrepresentation action based on the defendant insurance agent's allegedly faulty advice to an insured on responding to questions on an insurance application, the Georgia Court of Appeals affirmed a grant of summary judgment for the defendant. At issue in the case was whether the language on the insurance application clearly sought information about previous partial losses in addition to complete losses -- the insured was later denied coverage for a loss because he stated, based on what the plaintiff contended was the defendant's faulty advice, that he had no prior losses, when in fact he'd previously suffered a partial loss. The defendant argued that the application clearly called for information about partial losses, and the plaintiff had a duty to read the application and the responses recorded on it.

The Georgia Court of Appeals affirmed the grant of summary judgment -- but not because the trial court's evaluation of the record was necessarily correct. Rather, the record on appeal did not contain the insurance application at issue. Where the proof necessary to the decision is omitted from the record, Georgia law requires the reviewing court to "assume the judgment below was correct and affirm."

Moral of the story: Mistakes do happen when the record is compiled and transmitted. Check the appellate record as it is received in the Court of Appeals to make sure the documents you need are contained in it; if they're not, promptly move to supplement the record before the case comes to decision. See OCGA sec. 5-6-41(f).