YP, LLC et al.
C. J., MILLER, P. J., and REESE, J.
Miller, Presiding Judge.
YP, LLC and YP Advertising & Publishing, LLC
(collectively "YP") filed suit against Peter
Ristich, d/b/a Top Seal Coating
("Ristich") 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 Statute.
Accordingly, we reverse the trial court's order of
dismissal and remand for further proceedings consistent with
review a trial court's sua sponte order of dismissal de
novo." Haygood v. Head, 305 Ga.App. 375, 377
(1) (699 S.E.2d 588) (2010).
first argues that the trial court erred in dismissing the
complaint sua sponte for lack of personal jurisdiction. We
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 S.E.2d 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 S.E.2d 683) (1996)
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 S.E.2d 399) (1989) (trial
court erred in sua sponte dismissing breach-of-contract
complaint for lack of personal jurisdiction where 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 S.E.2d 691) (2004); see
also Houseboat Store v. Chris-Craft Corp., 302
Ga.App. 795, 797-798 (1) (b) (692 S.E.2d 61) (2010)
(enforcing forum selection clause in contract where opposing
party had not shown enforcement would be unreasonable).
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
S.E.2d 113) (1994) (nonresident customer waived its challenge
to personal jurisdiction through unambiguous forum selection
clause in contract, but waiver did not extend to nonresident
guarantor whose contract did not contain a forum selection
clause and who otherwise lacked minimum contacts with state
to otherwise confer jurisdiction).
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 S.E.2d 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 S.E.2d 818) (2002) ("The trial court
lacks authority to assert on behalf of a party affirmative
defenses that can be waived.").
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.
§ 9-11-4 (e) (7) 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 S.E.2d 108)
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. 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 S.E.2d 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 S.E.2d 823) (1998) (same).
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.
foregoing reasons, we reverse the trial court's order
dismissing YP's complaint and remand ...