Clements v. Hendi

Court of Appeals of Georgia

Clements v. Hendi

354 S.E.2d 700, 182 Ga. App. 118, 1987 Ga. App. LEXIS 1606

CourtCourt of Appeals of Georgia

DecidedMarch 11, 1987

Docket73770

StatusPublished

Cited by8 cases

This text of 354 S.E.2d 700 (Clements v. Hendi) 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

Clements v. Hendi, 354 S.E.2d 700, 182 Ga. App. 118, 1987 Ga. App. LEXIS 1606 (Ga. Ct. App. 1987).

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Opinions

Sognier, Judge.

Shirley Clements brought suit against Dr. Samir Hendi in the Superior Court of Irwin County alleging negligent abandonment in moving his medical office without notice to her and in failing to complete a necessary insurance form. Dr. Hendi moved the court to dismiss for improper venue. The Irwin County Superior Court agreed that venue was improper; the motion was treated as one to transfer, and the action was transferred to Mitchell County Superior Court. The Mitchell County Superior Court granted Dr. Hendi’s motion for summary judgment, and Clements appeals.

1. Appellant contends the Irwin County Superior Court erred by transferring the case to Mitchell County. Appellant argues that venue is a question of fact for a jury, and therefore should not have been determined by the court as a matter of law. The record reveals that at a preliminary hearing pursuant to OCGA § 9-11-12 (d), the trial court, in its capacity as trier of fact, found appellee was a resident of Mitchell County at the time of service. The record further shows no [119]*119demand for jury trial was made, nor was there objection to the judge trying the issue without a jury. The trial judge was therefore authorized to determine the question of jurisdiction without a jury. Hatcher v. Hatcher, 229 Ga. 249, 251 (190 SE2d 533) (1972).

Decided March 11, 1987. Ben B. Mills, Jr., for appellant. Hoyt H. Whelchel, Jr., for appellee.

2. Appellant contends the trial court erred by granting summary judgment to appellee because there exists a genuine issue of fact whether appellee abandoned appellant. We agree with appellee, however, that even assuming appellee’s conduct amounted to abandonment, as a matter of law appellant could not recover because she has shown no injury. “It is well settled as a general rule that before an action for a tort will lie, there must be an injury accompanying such tort.” Carroll v. Griffin, 96 Ga. App. 826, 828-9 (101 SE2d 764) (1958). See OCGA § 51-1-8. Appellant argues that the bare allegation in her complaint that she has suffered $1,000 in actual damages is sufficient. This argument is unpersuasive. First, the complaint is not evidence and thus may not be considered in deciding a motion for summary judgment. OCGA § 9-11-56 (e). In addition, appellant admitted in her deposition testimony that she suffered no actual damages and this evidence was uncontroverted. Thus, “since the essential tort element of injury was lacking, [appellee was] entitled to summary judgment in [his] favor on the issue of abandonment.” Meeks v. Coan, 165 Ga. App. 731, 734 (2) (302 SE2d 418) (1983).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

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Sognier, Judge.

Shirley Clements brought suit against Dr. Samir Hendi in the Superior Court of Irwin County alleging negligent abandonment in moving his medical office without notice to her and in failing to complete a necessary insurance form. Dr. Hendi moved the court to dismiss for improper venue. The Irwin County Superior Court agreed that venue was improper; the motion was treated as one to transfer, and the action was transferred to Mitchell County Superior Court. The Mitchell County Superior Court granted Dr. Hendi’s motion for summary judgment, and Clements appeals.

1. Appellant contends the Irwin County Superior Court erred by transferring the case to Mitchell County. Appellant argues that venue is a question of fact for a jury, and therefore should not have been determined by the court as a matter of law. The record reveals that at a preliminary hearing pursuant to OCGA § 9-11-12 (d), the trial court, in its capacity as trier of fact, found appellee was a resident of Mitchell County at the time of service. The record further shows no [119]*119demand for jury trial was made, nor was there objection to the judge trying the issue without a jury. The trial judge was therefore authorized to determine the question of jurisdiction without a jury. Hatcher v. Hatcher, 229 Ga. 249, 251 (190 SE2d 533) (1972).

Decided March 11, 1987. Ben B. Mills, Jr., for appellant. Hoyt H. Whelchel, Jr., for appellee.

2. Appellant contends the trial court erred by granting summary judgment to appellee because there exists a genuine issue of fact whether appellee abandoned appellant. We agree with appellee, however, that even assuming appellee’s conduct amounted to abandonment, as a matter of law appellant could not recover because she has shown no injury. “It is well settled as a general rule that before an action for a tort will lie, there must be an injury accompanying such tort.” Carroll v. Griffin, 96 Ga. App. 826, 828-9 (101 SE2d 764) (1958). See OCGA § 51-1-8. Appellant argues that the bare allegation in her complaint that she has suffered $1,000 in actual damages is sufficient. This argument is unpersuasive. First, the complaint is not evidence and thus may not be considered in deciding a motion for summary judgment. OCGA § 9-11-56 (e). In addition, appellant admitted in her deposition testimony that she suffered no actual damages and this evidence was uncontroverted. Thus, “since the essential tort element of injury was lacking, [appellee was] entitled to summary judgment in [his] favor on the issue of abandonment.” Meeks v. Coan, 165 Ga. App. 731, 734 (2) (302 SE2d 418) (1983).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

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Bluebook (online)

354 S.E.2d 700, 182 Ga. App. 118, 1987 Ga. App. LEXIS 1606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clements-v-hendi-gactapp-1987.

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