Behar v. Aero Med Intern., Inc.

• Decision Date: 16 February 1988
• Docket Number: No. 75721,75721
• Citation: 366 S.E.2d 223,185 Ga.App. 845
• Parties: BEHAR v. AERO MED INTERNATIONAL, INC.
• Court: Georgia Court of Appeals

Page 223

366 S.E.2d 223

185 Ga.App. 845

BEHAR v. AERO MED INTERNATIONAL, INC.

No. 75721.

Court of Appeals of Georgia.

Feb. 16, 1988.

George L. Lewis, Savannah, for appellant.

George M. Hubbard III, Savannah, for appellee.

BIRDSONG, Chief Judge.

This is an interlocutory appeal from an order of the State Court of Chatham County denying appellant's motion to dismiss on the grounds of lack of personal jurisdiction of appellant. Held:

1. In this appeal certain allegations of fact are found only in the briefs of the respective parties or in their unverified pleadings. In determining whether this court should consider the factual allegations contained in the briefs and pleadings of the parties, which are not otherwise supported by the trial record, the following principles apply.

A motion to dismiss for lack of personal jurisdiction is a motion in abatement and not a motion in bar. Hemphill v. Con-Chem, 128 Ga.App. 590, 591-592, 197 S.E.2d 457; see Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 208 S.E.2d 459; Myers v. McLarty, 150 Ga.App. 432, 433, 258 S.E.2d 56. Thus, motions to dismiss for lack of personal jurisdiction cannot be disposed of as motions for summary judgment. Id. The proper procedure in disposing of matters in ABATEMENT before trial is found in OCGA §§ 9-11-12 and 9-11-43. Ogden Equip., supra, 232 Ga. at 615, 208 S.E.2d 459. Motions to dismiss for lack of jurisdiction over the person, OCGA § 9-11-12(b)(2), when tried on affidavits pursuant to OCGA § 9-11-43(b), do not become motions for summary judgment. See McPherson v. McPherson, 238 Ga. 271(1), 232 S.E.2d 552. However, affidavits made in support of OCGA § 9-11-12(b) motions must conform to the requirements of OCGA § 9-11-56(e). Although the requirements of OCGA § 9-11-56(e) are not expressly applicable to affidavits in general, those requirements stand as a codification of the common law requirements as to affidavits and hence are applicable as such. Id. In addition to the use of affidavits, a matter admitted under OCGA § 9-11-36, unless duly withdrawn or amended, conclusively establishes such matter. OCGA § 9-11-36(b). These admissions, being in the nature of evidence and relating to the proof, can be considered by the factfinder upon being introduced in evidence. Brooks v. Roley & Roley Engineers, 144 Ga.App. 101(1), 240 S.E.2d 596; Warner Robins Tree Surgeons v. Kolb & Co., 181 Ga.App. 20(1), 351 S.E.2d 486.

Regarding factual representations contained in the briefs of parties which are not supported by evidence of record, the appellate courts of this state have consistently held that such unsupported factual assertions cannot be considered in the appellate process. See Coweta Bonding Co. v. Carter, 230 Ga. 585(1), 198 S.E.2d 281 (appeal from the denial of a motion to set aside the forfeiture of a criminal appeal bond and a restraining injunction); Coopers & Lybrand v. Cocklereece, 157 Ga.App. 240(2), 276 S.E.2d 845 (jurisdiction--long arm statute); Konscol v. Konscol, 151 Ga.App. 696(1), 261 S.E.2d 438 (appeal from a support order). This rule clearly applies to the unsupported assertions of fact contained in the briefs of these parties. Id.

As a general rule, allegations contained in pleadings do not constitute evidence nor are they to be accepted as true except to the extent they are admitted by the opposite party to be true. Crane v. Doolittle, 116 Ga.App. 572(2), 158 S.E.2d 426. Thus, in Coopers & Lybrand v. Cocklereece, supra, 157 Ga.App. at 245, 276 S.E.2d 845, this court held that personal jurisdiction over the defendant Coopers & Lybrand was not established by the evidence of record, noting that the plaintiff, Cocklereece, "[a]t best ... has made allegations in his pleadings and arguments in his briefs...." (Emphasis supplied.)

Further, OCGA § 9-11-56(e) contains the following requirement regarding forms of proof in resolving summary judgment issues, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial." (Emphasis supplied.) We believe that this statutory requirement is no less applicable to motions to dismiss on the grounds of lack of personal jurisdiction than are the affidavit requirements also found in this subsection. See generally, McPherson v. McPherson, supra, regarding the applicability of Rule 56(e) affidavit requirements to affidavits used in support of Rule 12(b) motions.

We are aware of no sound reason for not applying the same rule applicable to unsupported factual allegations in briefs to the mere allegations of facts contained in unverified pleadings but not otherwise supported in the record. Factual assertions contained in unverified pleadings, which do not require a responsive pleading, remain mere allegations of fact, unless they are duly admitted by the opposing party. But, factual assertions contained in unverified pleadings, which do require a responsive pleading, are admitted when not denied in the responsive pleading. See generally OCGA § 9-11-8(d). Accordingly, this court will not consider mere allegations of fact found in the parties' pleadings. However, we believe that it is in the interests of judicial economy to consider as evidence in resolving motions in abatement those factual matters duly admitted during pleadings under the above procedures. We are satisfied that this rule will insure that evidence of such character is equal in quality as to truth as is that evidence expressly referred to in OCGA § 9-11-43. We need not resolve at this time the evidentiary value of facts asserted in a verified pleading which either are not admitted or are denied by the opposing party. We will apply these principles to aid us in the proper disposition of this case.

2. Appellant enumerates as error that the trial court erred in denying appellant's motion to dismiss based on lack of personal jurisdiction.

The record establishes the following facts. Appellant is 77 years of age, has an eighth grade education, is retired, and resides in the state of Pennsylvania. In July 1986, appellant took a cruise aboard the Carnival Cruise Lines, MS Holiday. During the voyage, appellant suffered a stroke. Initially, he was treated by the ship's doctor who advised the appellant that his medical condition was serious, that nothing could be done for him aboard ship, and recommended medical evacuation by plane. The doctor advised appellant and his traveling companion (an attorney from Israel) that the cost of medical evacuation would be between $8,000 and $10,000. The doctor also advised the appellant that the latter would be billed at home for the medical evacuation and that a doctor would be aboard the plane to accompany appellant on the flight home. As a result of the stroke, appellant was suffering from "complete left lower extremity paralysis." It was under these circumstances that appellant agreed to the doctor's recommendation for medical evacuation by air. Thereafter the ship's doctor apparently contacted appellee and arranged for appellant's medical transport home. The ship's medical log contains the following confirming entry, "[p]lan: [t]o be flow via AeroMed to Allentown, Pa. tomorrow on arrival at St. Maarten."

When the ship anchored at St. Maarten, appellant and his traveling companion were taken to the airfield. At the airfield, a plane and two pilots (one of whom apparently was a co-pilot) and a nurse were waiting. Apparently, this plane and crew had been arranged by the appellee based upon phone negotiations conducted by an agent of the appellee and the ship's doctor or some person on the ship other than appellant and his traveling companion. Appellee is a Georgia corporation and it may be inferred from the trial record that the phone conversation resulted from a call being initiated aboard the ship to the appellee's agents in Georgia.

Upon appellant's arrival at the airfield, by ambulance and on a stretcher, the pilot presented appellant's traveling companion and apparently the appellant with a bill for the medical evacuation in the amount of $15,560. Both appellant and his traveling companion informed the pilot what the ship's doctor had said about the cost of the flight. The cost of the services was still being disputed when appellant's traveling companion informed the pilot that the crew would be responsible for the health of appellant and for any delay caused by their argument about costs. The pilot then took appellant airborne but once in the air continued to argue about the flight costs. Apparently no satisfactory resolution of the costs was reached as the pilot landed the airplane at Nassau, and stated that the plane would not proceed further unless appellant agreed to pay them the amount of $15,560. Subsequently, the pilot said that he had been in contact with his supervisor who agreed that the plane should not proceed with the flight. Appellant became very excited and his blood pressure rose. At some point the nurse spoke with the pilots when he was talking on the phone with his office. The pilot then stated that they would continue the flight provided that payment was received within 24 hours. Thereafter, either appellant or his traveling companion replied that they would report the matter to the public health authorities; in any event following a one-hour delay in Nassau, the plane proceeded to fly appellant to Pennsylvania. Throughout the entire flight, appellant was never physically present in the state of Georgia. At the conclusion of the flight, a $5,000 check was tendered on behalf of the appellant allegedly in payment for the flight costs.

The appellee brought suit against appellant based on theories of both breach of contract and...