YP, LLC Et Al. v. RISTICH , 341 Ga. App. 381 ( 2017 )

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 15, 2017
In the Court of Appeals of Georgia
A17A0213. YP, LLC et al. v. RISTICH.
MILLER, Presiding Judge.
Plaintiffs YP, LLC and YP Advertising & Publishing, LLC (collectively “YP”)
filed suit against Peter Ristich, d/b/a Top Seal Coating (“Ristich”)1 in this contract
dispute arising from advertisements Ristich placed in the Yellow Pages directories.
Ristich did not answer the complaint or respond to discovery requests. Nevertheless,
the trial court sua sponte dismissed the complaint without prejudice for lack of
personal jurisdiction under the Georgia Long Arm Statute, OCGA § 9-10-91, and for
insufficient service of process. YP now appeals. Ristich has not appeared in this
appeal. After a thorough review of the record, we conclude that the trial court erred
in dismissing the complaint for lack of personal jurisdiction under the Long Arm
1
Ristich’s last name also appears as “Rastich” in the record.
Statute. Accordingly, we reverse the trial court’s order of dismissal and remand for
further proceedings consistent with this opinion.
“We review a trial court’s sua sponte order of dismissal de novo.” Haygood v.
Head, 305 Ga. App. 375, 377 (1) (699 SE2d 588) (2010).
1. YP first argues that the trial court erred in dismissing the complaint sua
sponte for lack of personal jurisdiction. We agree.
“Jurisdiction of the person is the power of a court to render a personal
judgment, or to subject the parties in a particular case to the decisions and rulings
made by it in such case[.]” (Citations and punctuation omitted.) Williams v. Fuller,
244 Ga. 846, 849 (3) (262 SE2d 135) (1979). “[A] court has a duty to inquire into its
jurisdiction, upon its own motion where there is doubt, and is authorized to dismiss
a case against a defendant where personal jurisdiction is lacking.” B&D Fabricators
v. D. H. Blair Investment Banking Corp., 220 Ga. App. 373, 375-376 (2) (469 SE2d
683) (1996)
It is well-settled, however, that parties may waive challenges to personal
jurisdiction by contract. OCGA § 9-11-12 (h) (1); C & S Capital Corp. v. Sweetwater
Homes, Inc., 191 Ga. App. 571 (382 SE2d 399) (1989) (trial court erred in sua sponte
dismissing breach-of-contract complaint for lack of personal jurisdiction where
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parties agreed in the very contract at issue to submit to jurisdiction of the court). Such
provisions in contracts are valid and enforceable unless “shown by the resisting party
to be unreasonable under the circumstances.” (Emphasis supplied.) Lease Finance
Group v. Delphi, Inc., 266 Ga. App. 173, 174 (596 SE2d 691) (2004); see also
Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795, 797-798 (1) (b) (692 SE2d
61) (2010) (enforcing forum selection clause in contract where opposing party had
not shown enforcement would be unreasonable).
The trial court here concluded that YP had not established the court’s personal
jurisdiction over Ristich under the Georgia Long Arm Statute. Personal jurisdiction
in this case, however, is not based on the Long Arm Statute, but rather is premised on
Ristich’s waiver of personal jurisdiction in his contract with YP. In particular, in the
forum selection clause in the contract, Ristich specifically consented to personal
jurisdiction in the Superior Court of DeKalb County or the U.S. District Court for the
Northern District of Georgia for any disputes arising out of his contract with YP. See
C & S Capital Corp., supra, 191 Ga. App. at 571-572; cf. Apparel Resources Intl.,
Ltd. v. Amersig Southeast, Inc., 215 Ga. App. 483, 484-485 (1) (451 SE2d 113)
(1994) (nonresident customer waived its challenge to personal jurisdiction through
unambiguous forum selection clause in contract, but waiver did not extend to
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nonresident guarantor whose contract did not contain a forum selection clause and
who otherwise lacked minimum contacts with state to otherwise confer jurisdiction).
The trial court did not consider whether the forum selection clause in Ristich’s
contract was reasonable – presumably because Ristich has not yet appeared in this
action – and it is Ristich’s burden to show that the forum selection clause is
unreasonable. Absent such a showing, we presume the clause is valid. See Equity
Trust Co. v. Jones, 339 Ga. App. 11 (792 SE2d 458) (2016) (“[F]orum selection
clauses are prima facie valid and should be enforced unless the opposing party shows
that enforcement would be unreasonable under the circumstances.”) (citation omitted,
emphasis supplied). Accordingly, because Ristich did not raise an affirmative defense
to jurisdiction, the trial court lacked authority to assert it on his behalf by sua sponte
dismissing the complaint for lack of personal jurisdiction under the Long Arm
Statute. See Focus Healthcare Medical Center v. O’Neal, 253 Ga. App. 298, 299 (a)
(558 SE2d 818) (2002) (“The trial court lacks authority to assert on behalf of a party
affirmative defenses that can be waived.”).
2. YP next argues that the trial court erred by dismissing the complaint for
insufficient service of process because YP served Ristich in accordance with Georgia
law. We agree.
4
OCGA § 9-11-4 (e) (7)2 provides for personal service on a defendant. The
record contains a return of service, which shows that Ristich was personally served
with a copy of the complaint and requests to admit. This return of service is a prima
facie showing of personal service. Yelle v. U.S. Suburban Press, 216 Ga. App. 46, 47
(453 SE2d 108) (1995).
The trial court based its decision on the requirements for service under the
Long Arm Statute. As discussed above, however, the Long Arm Statute was not the
basis for the trial court’s personal jurisdiction over Ristich in this case.3 Moreover,
insufficient service of process is a defense to jurisdiction that also can be waived. See
OCGA § 9-11-12 (h) (1); Merry v. Robinson, 313 Ga. App. 321, 322 (1) (721 SE2d
567) (2011) (defendant waived challenge to service by deputy sheriff by failing to
timely raise the issue); Oasis Goodtime Emporium I, Inc. v. Cambridge Capital
Group, Inc., 234 Ga. App. 641, 642-643 (3) (507 SE2d 823) (1998) (same).
2
OCGA § 9-11-4 (e) sets out the methods for personal service. After listing
specific methods for service that are not applicable here, it states, “[i]n all other cases
to the defendant personally . . . .” OCGA § 9-11-4 (e) (7).
3
Even if service were effected under the Long Arm Statute, OCGA § 9-10-94,
out of state service is proper under the same provisions for service inside the state,
which include personal service. See OCGA §§ 9-10-94; 9-11-4 (e).
5
In this case, Ristich did not appear before the trial court and has not challenged
service of process. YP submitted unrebutted evidence that service was effected on
Ristich personally in Ohio. Thus, YP has made a prima facie showing of service, and
the trial court erred by sua sponte dismissing the complaint for insufficient service.
In reaching this conclusion, we express no opinion as to the merits of any later
challenge that Ristich may raise to the sufficiency of service.
For the foregoing reasons, we reverse the trial court’s order dismissing YP’s
complaint and remand the case for further proceedings.
Judgment reversed and case remanded. Doyle, C. J., and Reese, J., concur.
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