Durham v. Winn-Dixie Stores, Inc.

Court of Appeals of Georgia

Durham v. Winn-Dixie Stores, Inc.

450 S.E.2d 257, 215 Ga. App. 209, 94 Fulton County D. Rep. 3508, 1994 Ga. App. LEXIS 1168

CourtCourt of Appeals of Georgia

DecidedOctober 24, 1994

DocketA94A1827

StatusPublished

Cited by1 cases

This text of 450 S.E.2d 257 (Durham v. Winn-Dixie Stores, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Durham v. Winn-Dixie Stores, Inc., 450 S.E.2d 257, 215 Ga. App. 209, 94 Fulton County D. Rep. 3508, 1994 Ga. App. LEXIS 1168 (Ga. Ct. App. 1994).

Pincite

Opinion

Smith, Judge.

Rebecca Ann and James Durham brought this action seeking damages for injuries incurred when Rebecca slipped and fell while shopping at a Winn-Dixie Store. The case was tried before a jury, which returned a verdict in favor of Winn-Dixie. Judgment was entered on the verdict, and the Durhams’ motion for new trial was denied.

On appeal, the Durhams present eight enumerations of error, all of which involve either the trial court’s charges or the sufficiency of the evidence to support the verdict. We cannot address these enumerations of error without review and consideration of the trial transcript.

OCGA § 5-6-37 directs that the notice of appeal shall set forth a designation of those portions of the record to be omitted from the record on appeal. It also specifically directs that in addition to that information, the notice of appeal “shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” (Emphasis supplied.) Id. The statute clearly places the burden on the appellant to direct transmittal of the trial transcript.

Although the notice of appeal filed by the Durhams directs the clerk to omit nothing from the record and recites that the entire record shall be filed for inclusion in the record on appeal, no mention is [210]*210made of a transcript. Appellants failed to carry their burden of having the transcript transmitted to this court.

Decided October 24, 1994 Reconsideration denied November 14, 1994 Joseph M. Todd, for appellants. Fain, Major & Wiley, Thomas E. Brennan, for appellee.

Lacking a transcript of the evidence and proceedings, we must assume that the proceedings, the jury’s verdict, and the judgment entered upon that verdict, were correct. Spires v. Glencastle, Inc., 208 Ga. App. 901, 902 (432 SE2d 567) (1993).

Judgment affirmed.

Pope, C. J., concurs. McMurray, P. J., concurs in the judgment only.

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