Hipple v. Simpson Paper Co.

507 S.E.2d 156, 234 Ga. App. 516, 98 Fulton County D. Rep. 3483, 1998 Ga. App. LEXIS 1219
CourtCourt of Appeals of Georgia
DecidedSeptember 11, 1998
DocketA98A1416, A98A1417
StatusPublished
Cited by17 cases

This text of 507 S.E.2d 156 (Hipple v. Simpson Paper Co.) 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.

Bluebook
Hipple v. Simpson Paper Co., 507 S.E.2d 156, 234 Ga. App. 516, 98 Fulton County D. Rep. 3483, 1998 Ga. App. LEXIS 1219 (Ga. Ct. App. 1998).

Opinion

Johnson, Presiding Judge.

Simpson Paper Company sued Robert J. Hippie, Robert J. Hippie & Associates, L.L.C., and Corporate Counsel, Inc. for rent due and trespass. Following a bench trial, the trial court awarded Simpson Paper Company judgment in the amount of $18,000. Subsequently, the trial court awarded Simpson Paper Company attorney fees in the amount of $8,530. Robert J. Hippie appeals the trial court’s judgments. For reasons which follow, we affirm.

Case No. A98A1416

1. Simpson Paper Company’s motion to dismiss based on Hippie’s failure to file his brief and enumerations of error is hereby denied. Hippie contends that he did not receive notice of docketing in Case No. A98A1416 and assumed the two cases were consolidated by *517 the Court of Appeals. We note initially that Hippie filed two separate notices of appeal from two separate trial court orders and that the Court of Appeals’ file shows notices of docketing in both cases were sent to the address indicated. We further note that the Court of Appeals does not sua sponte consolidate cases when they are filed and send only one docketing notice. “ ‘It is fundamental that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of the cases so that they may take whatever actions may be necessary to protect the interests of their clients. [Cit.]” Hipple v. Brick, 202 Ga. App. 571, 573 (3) (415 SE2d 182) (1992). Likewise, it is the responsibility of the attorney filing a notice of appeal to keep himself apprised of the status of his appeal.

Nevertheless, we are constrained by the language of OCGA § 5-6-48 as well as the mandate of OCGA § 5-6-30 that the appellate practice provisions be liberally construed “so as to bring about a decision on the merits of every case appealed.” Hippie did, in fact, file enumerations of error and a brief outlining all of his issues in both cases in Case No. A98A1417. We therefore will address Hippie’s enumerations of error.

2. In his first three enumerations of error, Hippie contends the trial court erred in refusing to grant his motion for judgment on the pleadings, to dismiss or, in the alternative, for summary judgment. The record shows that Hippie filed the motion at issue 12 days before trial. Uniform Superior Court Rule 6.6 specifies that “[mjotions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.” Hippie’s motion was not timely filed. 1 Moreover, the trial court did not rule on the motion. “Without an order of the trial judge ruling either for or against [Hippie’s] motion, there is nothing for this court to pass on in that respect.” Quigley v. Quigley, 239 Ga. 250, 251 (1) (236 SE2d 603) (1977); Community Ed. Ctr. v. Cohen, 158 Ga. App. 456, 457 (2) (280 SE2d 839) (1981). We may not address issues on appeal which were not addressed by the trial court. White v. KFC Nat. Mgmt. Co., 229 Ga. App. 73, 74 (1) (493 SE2d 244) (1997); Security Mgmt. Co. v. King, 132 Ga. App. 618, 619 (1) (a) (208 SE2d 576) (1974).

3. Hippie also alleges as error the trial court’s grant of judgment in favor of Simpson Paper Company for trespass damages, claiming there was no evidence to support the judgment. However, Hippie has failed to provide this Court with a transcript of the evidence presented at the trial. In fact, his notice of appeal specifically states *518 that “[a] transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” Since the resolution of Hippie’s enumeration of error requires this Court to have before it the evidence presented during the trial, we cannot determine whether Hippie’s enumeration of error has merit.

It is the appellant’s duty to provide this Court with a record sufficient to enable us to review his enumerations of error. In the absence of a transcript of the evidence, we must presume that the evidence authorized the judgment of the trial court. See Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990); McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990). While Hippie cites facts from an affidavit he filed prior to trial in support of his motion to dismiss, these facts may not be used in lieu of a transcript. “The affidavit, deposition and oral testimony provisions of OCGA § 9-11-43 (b), pertaining to the hearing of motions based on facts not appearing of record, cannot be used to cure the absence of a transcript of proceedings for post-trial motions or for appellate review.” (Citation and punctuation omitted.) Beech Aircraft Corp. v. Jackson, 199 Ga. App. 627 (405 SE2d 518) (1991).

Case No. A98A1417

4. Simpson Paper Company’s motion to dismiss based on Hippie’s failure to timely file his amended brief is hereby denied. Hippie was granted an extension of time in which to file his amended brief and did so -within the time permitted in the extension order.

5. The only issue remaining in this case is whether the trial court erred in granting attorney fees to Simpson Paper Company pursuant to OCGA § 9-15-14 (b). That statute allows the trial court to assess reasonable and necessary legal fees and expenses when a party has defended a claim without substantial justification or has “unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery.” OCGA § 9-15-14 (b). Hippie contends the evidence does not support the award of attorney fees against him. We review the grant of attorney fees under OCGA § 9-15-14 (b) only for abuse of discretion. Santora v. American Combustion, 225 Ga. App. 771, 774 (2) (485 SE2d 34) (1997).

Hippie has failed to show that the trial court abused its discretion in awarding attorney fees to Simpson Paper Company. Despite Hippie’s claim that the trial court found “without explanation” that he had unnecessarily expanded the scope of the litigation, the trial court’s order clearly sets forth the grounds upon which it entered the award of attorney fees: “Among other things, the Court finds that Mr. Hippie was responsible for both Plaintiff’s and the Court’s difficulties in locating him for service of process and notice to him of hearings *519 and other proceedings. Moreover, because Mr.

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Bluebook (online)
507 S.E.2d 156, 234 Ga. App. 516, 98 Fulton County D. Rep. 3483, 1998 Ga. App. LEXIS 1219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hipple-v-simpson-paper-co-gactapp-1998.