Walker v. McLarty

McMurray, Presiding Judge,

dissenting.

The exhibit to defendants’ supplemental brief to the superior court, which purports to be an order in a previous case in the Superior Court of Paulding County, appears to be the prior denial of summary judgment described in the superior court’s order granting summary judgment to defendants in the case sub judice. Nonetheless, the exhibits attached to defendants’ briefs in the superior court are not evidence or a proper predicate for a grant of summary judgment. OCGA § 9-11-56 (c); Butterworth v. Pettitt, 223 Ga. 355, 357 (155 SE2d 20). Indeed, while plaintiff has requested that the clerk omit nothing from the record, the record contains no evidence submitted in support of either party. The allegations of plaintiff’s complaint state a proper claim and have not been pierced by evidence presented in support of defendants’ motion for summary judgment. Thus, I would hold that the superior court’s grant of defendants’ motion for summary judgment was error. Boss v. Food Giant, 193 Ga. App. 434 (388 SE2d 37).

The majority predicates its conclusion, that the superior court judicially noticed the prior denial of summary judgment, upon the premise that “in the face of a silent record the presumption of the regularity of all proceedings in courts of competent jurisdiction [cit.] requires that we assume that the evidence before the trial court in this case sufficed to support its grant of summary judgment to appel-lees [cit.].” This premise is false in that the record in the case sub judice is not silent. The supposedly silent order being appealed states that the superior court “reviewed the file herein, including the briefs of the parties and the accompanying exhibits, the Court finds. . . .” (Emphasis supplied.) It is thus explicitly stated on the record that the ruling of the superior court is predicated upon the non-evidentiary exhibits to defendants’ brief. Furthermore, the superior court having undertaken to set out in its order the materials reviewed in reaching its decision, it may not be reasonably presumed that the superior court’s list is not complete. In my view, the presumption of the majority that the superior court took judicial notice of the prior summary judgment is unfounded and conflicts with the record on appeal. Therefore, I respectfully dissent.

Furthermore, this case is an excellent demonstration of the need for a requirement that where a trial court takes judicial notice of a prior record or portion thereof, such should be explicitly stated on the record. We should not be required to determine from an ambiguous record, such as in the case sub judice, whether judicial notice of a *463prior record was taken. Additionally, in the absence of an explicit statement that the evidence has been expanded by judicial notice of a prior record, an appellant may not be placed on reasonable notice of a need to designate the prior record in order to complete the record sent up to an appellate court. Compare Acker v. Jenkins, 178 Ga. App. 393 (1), 394 (343 SE2d 160).

Decided March 15, 1991 Rehearing denied March 29, 1991 Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geof-froy, for appellant. Clifford, H. Hardwick, for appellees.