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Pascarelli v. Koehler

Court of Appeals of Georgia, Second Division

June 27, 2018

PASCARELLI et al.
v.
KOEHLER.

          MILLER, P. J., ANDREWS and BROWN, JJ.

          BROWN, JUDGE.

         We granted the application for interlocutory review filed by Frank and Marina Pascarelli following the trial court's grant of James Koehler d/b/a TKO d/b/a Courtyard Casper's ("Koehler") motion to dismiss. They contend that the trial court should have concluded it had personal jurisdiction over Koehler, who independently owns and operates a Marriott International, Inc. franchise located in Casper, Wyoming. For the reasons explained below, we affirm.

         In Georgia, a defendant filing a motion to dismiss based upon a lack of personal jurisdiction bears the burden of proof. Home Depot Supply v. Hunter Mgmt., 289 Ga.App. 286 (656 S.E.2d 898) (2008). And "to the extent that defendant's evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence." (Citations and punctuation omitted.) Drumm Corp. v. Wright, 326 Ga.App. 41 (755 S.E.2d 850) (2014).

Where as here, the motion was decided on the basis of written submissions alone, any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction, and the appellate standard of review is nondeferential.

(Citations omitted.) Crossing Park Properties v. JDI Fort Lauderdale, 316 Ga.App. 471 (729 S.E.2d 605) (2012).

         So construed, the record reflects that in April 2012, Frank Pascarelli, who resides in Marietta, Georgia, was traveling to Casper, Wyoming on business for his employer, the Centers for Disease Control ("CDC"). While making arrangements for this trip, Pascarelli found the Marriott franchise owned by Koehler and made online reservations for his stay. According to Pascarelli, he selected the Marriott franchise owned by Koehler based on its status as a "preferred hotel" with the CDC and the amenities offered that were apparent from the website.

         After checking into and spending the first night in the hotel, Pascarelli woke up to find "an enormous amount" of bed bug bites. Pascarelli sought treatment at an urgent care facility on two occasions while in Wyoming. Upon returning to Georgia, Pascarelli went to the hospital because his wounds had become infected with MRSA, requiring surgery and a two-week hospital stay.

         On March 24, 2014, Pascarelli and his wife filed the current negligence action in Cobb County Superior Court against Marriott International, Inc., Koehler, and various other entities associated with Koehler's hotel. All defendants collectively moved to dismiss on the ground of lack of personal jurisdiction. The trial court granted the motion as to all defendants except franchisor Marriott International, finding that Marriott International's continuous and systematic contacts in Georgia warranted the exercise of jurisdiction. The trial court concluded that Koehler's Internet activity in Georgia did not create the necessary minimum contacts to impose personal jurisdiction. Alternatively, the trial court concluded that even if Koehler's Internet activity amounted to sufficient contacts, it would offend the constitutional guarantee of due process to allow the Pascarellis to bring suit against Koehler in Georgia. The trial court certified its order for immediate review, and we granted the Pascarellis' application for interlocutory review.[1]

         On appeal, the Pascarellis assert that the trial court erred by concluding it lacked personal jurisdiction over Koehler and by making negative inferences adverse to the finding of personal jurisdiction.

         1. Georgia's Long Arm Statute, OCGA § 9-10-91, "delineate[s] the circumstances in which a court of this state may exercise personal jurisdiction over a nonresident. Paragraph (1) authorizes the exercise of such jurisdiction where the nonresident 'transacts any business within this state.'" (Punctuation omitted.) Aero Toy Store v. Grieves, 279 Ga.App. 515, 517 (1) (631 S.E.2d 734) (2006). The Supreme Court of Georgia has construed subsection (1) "as reaching only to the maximum extent permitted by procedural due process." (Citations and punctuation omitted.) Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames, Iowa, 279 Ga. 672, 675 (620 S.E.2d 352) (2005). In determining the boundaries of due process, we must apply the following three-part test:

[J]urisdiction exists on the basis of transacting business in this state if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.

(Citations and punctuation omitted.) Amerireach.com v. Walker, 290 Ga. 261, 269 (719 S.E.2d 489) (2011). We look to

the first two factors to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. If such minimum contacts are found, we move to the third prong of the test to consider whether the exercise of jurisdiction is reasonable - that is, to ensure ...

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