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Brown v. Fokes Properties 2002 Inc.

In the absence of the trial transcript the record presumably supported the trial court's findings regarding service of process on appellant.

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Appellee Fokes Properties 2002, Inc. brought this quiet title action against F. K. Brown and others. The action was heard by a special master, who submitted a report in favor of Appellee. The trial court adopted the special master’s report and entered a final judgment. Brown appeals pro se. Appellee’s motion to dismiss the appeal or, in the alternative, to strike certain portions of the brief filed by Brown is denied. 1. Brown contends that he was not properly served and notified of the evidentiary hearing, and that these omissions deprived him of the opportunity to present evidence, resulting in erroneous findings of fact.

The record shows that Appellee unsuccessfully attempted personal service on Brown at a Tennessee address. Pursuant to the trial court’s order, Brown was served by publication pursuant to OCGA § 23-3-65 b. In its final order, the trial court found that personal service upon Brown was not possible and that service of process on him was perfected by publication of notice as required by law. In the absence of any transcript of the hearing, we must assume that the evidence, in conjunction with the documents of record relating to service, supported these findings of fact. See In re Ray , 248 Ga. App. 45, 46 1 545 SE2d 617 2001. We cannot “consider factual representations in Brown’s brief which do not appear on record.” Coweta Bonding Co. v. Carter , 230 Ga. 585, 586 1 198 SE2d 281 1973. Likewise, the exhibit attached to Brown’s ” ‘appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and affords no basis for reversal. Cit.’ Cit.” Rivera v. Harris , 259 Ga. 171 1 377 SE2d 844 1989.

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