PASCARELLI et al.
MILLER, P. J., ANDREWS and BROWN, JJ.
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.
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
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
(Citations omitted.) Crossing Park Properties v. JDI Fort
Lauderdale, 316 Ga.App. 471 (729 S.E.2d 605) (2012).
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.
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.
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.
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
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
[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
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 ...