DELTA ALIRAQ, INC.
ARCTURUS INTERNATIONAL, LLC et al.
MILLER, P. J., ANDREWS, J., and SENIOR APPELLATE JUDGE
Beasley, Senior Appellate Judge.
Delta Aliraq, Inc. ("Delta") appeals the trial
court's order granting the motion filed by defendants
Arcturus International, LLC ("Arcturus") and Delta
Alpha X-Ray, LLC ("DAX") to set aside a default
judgment previously entered against the defendants. The trial
court granted the motion on three independent grounds, each
of which Delta challenges. We conclude that the trial court
did not err when it aside the default judgment on grounds
that it lacked personal jurisdiction over DAX and that Delta
failed to prove damages as to Arcturus. We therefore affirm
the trial court's judgment.
2015, Delta obtained a judgment against DAX and two other
parties (neither of whom is a party to this action), jointly
and severally, in the amount of $1, 000, 000, in a California
court. In June 2016, Delta filed the instant complaint in
Fulton County against Arcturus and DAX. In its complaint,
Delta (i) sought to domesticate the California judgment
against DAX and (ii) asserted a fraudulent conveyance claim
against both defendants. In its fraudulent conveyance claim,
Delta alleged that Arcturus had acquired real property in
Roswell with funds supplied by DAX as part of a scheme to
shelter DAX's assets from Delta. As relief, Delta asked
the trial court, in relevant part, to enter the $1, 000, 000
California judgment against DAX as a judgment of the Fulton
County trial court and to grant Delta a lien against the
Roswell property in the amount of all sums allegedly
transferred by DAX. In September 2016, Delta moved for a
default judgment on the ground that neither defendant had
filed a responsive pleading. Later that month, the trial
court granted Delta's motion, entered a $1, 000, 000
judgment against DAX, and granted Delta a lien against
Arcturus's property in Roswell "to secure
[Delta]'s judgment lien."
January 2017, Arcturus filed a motion to open default under
OCGA § 9-11-55 (b). The trial court denied the motion, and
we subsequently denied Arcturus's application for
discretionary appeal from that ruling. See Arcturus Intl.
LLC v. Delta Aliraq, Inc. et al., No. A17D0362 (Apr. 13,
March 2017, the defendants moved to set aside the default
judgment under OCGA § 9-11-60 (d) on multiple grounds.
The trial court granted the defendants' motion,
concluding that: (i) Delta had assigned to a third party its
interest in the California judgment, as a result of which it
lacked standing to bring the instant action; (ii) Delta
failed to perfect service on DAX, as a result of which the
trial court could not exercise personal jurisdiction over DAX
in this action; and (iii) Delta failed to prove damages in
the amount of the lien against Arcturus, which, the court
found, constitutes a nonamendable defect on the face of the
record. The trial court subsequently certified its order for
immediate review, and we granted Delta's application for
interlocutory appeal. See OCGA § 5-6-34 (b).
§ 9-11-60 (d) authorizes a trial court to set aside its
judgment on certain limited bases:
(1) Lack of jurisdiction over the person or the subject
(2) Fraud, accident, or mistake or the acts of the adverse
party unmixed with the negligence or fault of the movant; or
(3) A nonamendable defect which appears upon the face of the
record or pleadings. Under this paragraph, it is not
sufficient that the complaint or other pleading fails to
state a claim upon which relief can be granted, but the
pleadings must affirmatively show no claim in fact existed.
judgment is a drastic sanction that should be invoked only in
extreme situations. Whenever possible, cases should be
decided on their merits, for default judgment is not favored
in law." (Citation and punctuation omitted.) Feazell
v. Gregg, 270 Ga.App. 651, 653 (1) (b) (607 S.E.2d 253)
(2004). "We review a ruling on a motion to set aside for
abuse of discretion and affirm if there is any evidence to
support it. Factual disputes regarding service are to be
resolved by the trial court, and the court's findings
will be upheld if there is any evidence to support
them." (Citations and punctuation omitted; emphasis in
original.) Vasile v. Addo, 341 Ga.App. 236, 240 (2)
(800 S.E.2d 1) (2017). We review questions of law de novo.
Delta raises several challenges to the trial court's
conclusion that it lacked personal jurisdiction over DAX due
to deficient service of process. The trial court ruled that
Delta's purported service on "a defunct registered
agent [of DAX] in North Carolina, " a "state
unconnected to the nexus of the claims" in this action,
was insufficient for the court to exercise personal
jurisdiction over DAX. We affirm the trial court's ruling
that Delta failed to properly serve DAX, although not for the
explicit reason stated in the trial court's
complaint, Delta alleged that DAX, a nonresident, is subject
to the trial court's jurisdiction under OCGA §
9-10-91 - Georgia's long-arm statute - on grounds that
DAX is a "joint tortfeasor" and possesses an
interest in real estate in Fulton County. See OCGA §
9-10-91 (2), (4). Under OCGA § 9-10-94, a party subject
to the jurisdiction of Georgia courts pursuant to OCGA §
9-10-91 "may be served with a summons outside the state
in the same manner as service is made within the state. . .
." Foreign limited liability companies, such as DAX,
generally are governed by OCGA § 14-11-701 et seq.
However, because the record appears to contain no indication
that DAX is authorized to transact business in Georgia, none
of the service provisions in OCGA § 14-11-701 et seq.
apply. Service in this case thus is governed by the catchall
provision in OCGA § 9-11-4 (e) (7), under which service
may be made by delivering a copy of the summons attached to a
copy of the complaint "to an agent authorized by
appointment or by law to receive service of process."
sought to establish service upon DAX by submitting a
"Sheriff's Entry of Service" form dated July
20, 2016, identifying the name and ...