DILLARD, P. J., GOBEIL and HODGES, JJ.
Thelma Ward ("Ward"), on behalf of her decedent
spouse, Jimmie Ward, appeals from a trial court order
granting Marriott International, Inc.'s
("Marriott") motion to dismiss for lack of personal
jurisdiction and effectively denying her motion for default
judgment. Because the trial court improperly applied existing
law governing personal jurisdiction in Georgia and allowed
Marriott to circumvent the strict requirements to open
default, we reverse the dismissal of this case and remand to
the trial court to proceed with Ward's motion for entry
of default judgment.
record shows that on August 29, 2017, Ward, a Georgia
resident, sued Marriott in Cobb County State Court for simple
negligence and negligence per se after a handicap shower seat
broke, causing Jimmie to suffer injuries. The injuries were
sustained at a Marriott hotel in Texas. Ward's complaint
Defendant Marriott . . . is a corporation duly registered to
conduct business in the State of Georgia. It is subject to
the jurisdiction of this Court and may be served through its
registered agent, Corporate Creations Network Inc. at 2985
Gordy Parkway, 1st Floor, Cobb, Marietta, Georgia 30066, USA.
affidavit of service indicates that Marriott was personally
served through an authorized agent at that address on August
failed to answer the complaint, and on November 1, 2017, Ward
moved for the entry of default judgment. The following day,
Marriott answered the complaint and asserted a number of
defenses, including lack of personal jurisdiction. The answer
claimed that Marriott was "without sufficient
information to form a belief as to the truthfulness of the
allegations contained in" many paragraphs of the
complaint. Marriott also served Ward with interrogatories and
requests for the production of documents.
November 21, 2017, three weeks after Ward moved for the entry
of default, Marriott filed a number of documents: an amended
answer, a demand for jury trial, a request for discovery that
admitted Marriott was in default for failing to timely file
an answer, and, most importantly for purposes of this appeal,
a motion to dismiss for lack of personal jurisdiction. Ward
opposed the motion to dismiss and moved to strike
Marriott's answer. Following oral argument on the pending
motions, the trial court granted Marriott's motion to
dismiss for lack of personal jurisdiction, effectively
denying Ward's motion for default judgment. In three
related enumerations, Ward challenges the propriety of the
trial court's grant of Marriott's motion to dismiss
and denial of her motion for default judgment.
case presents the following jurisdictional issue: Can a
foreign corporation registered and authorized to do business
in Georgia avoid default by filing a motion to dismiss for
lack of personal jurisdiction after its time to open default
as a matter of right has passed? A thorough analysis of
existing Georgia default and personal jurisdiction law
mandates that we answer the question in the negative.
Georgia default law.
Georgia law, a defendant must answer a complaint within 30
days after service of the summons and complaint upon it,
unless otherwise provided by statue. OCGA § 9-11-12 (a).
Failure to do so results in an automatic default:
If in any case an answer has not been filed within the time
required by this chapter, the case shall automatically become
in default unless the time for filing the answer has been
extended as provided by law. The default may be opened as a
matter of right by the filing of such defenses within 15 days
of the day of default, upon the payment of costs. If the case
is still in default after the expiration of the period of 15
days, the plaintiff at any time thereafter shall be entitled
to verdict and judgment by default, in open court or in
chambers, as if every item and paragraph of the complaint or
other original pleading were supported by proper evidence[.]
OCGA § 9-11-55 (a). Accordingly, because Marriott failed
to answer the complaint for 64 days, Ward was automatically
entitled to default judgment as if every item and paragraph
of her complaint were supported by proper
evidence. See Sidwell v. Sidwell,
237 Ga.App. 716, 717 (1) (515 S.E.2d 634) (1999). In fact,
Marriott admitted in its subsequently filed request for
discovery that "[t]he above-styled case is in default as
[Marriott] failed to file a timely Answer."
the 15-day grace period for opening default as a matter of
right under OCGA § 9-11-55 (a), a trial court has no
discretion to open default" unless the defendant
complies with the conditions of OCGA § 9-11-55 (b).
(Citation omitted.) Samadi v. Fed. Home Mortgage
Loan, 344 Ga.App. 111, 115 (1) (809 S.E.2d 69) (2017).
In addition, if default is not opened, the issue of liability
is concluded, and the only issue a defendant can defend
against is the amount of damages. Flanders v. Hill
Aircraft & Leasing Corp., 137 Ga.App. 286, 287 (223