Classic Commercial Servs., Inc. v. Baldwin

• Decision Date: 14 March 2016
• Docket Number: No. A15A2185.,A15A2185.
• Citation: 784 S.E.2d 44,336 Ga.App. 183
• Parties: CLASSIC COMMERCIAL SERVICES, INC. v. BALDWIN.
• Court: Georgia Court of Appeals

336 Ga.App. 183

784 S.E.2d 44

CLASSIC COMMERCIAL SERVICES, INC.

v.BALDWIN.

No. A15A2185.

Court of Appeals of Georgia.

March 14, 2016.

David Jason Merbaum, Alpharetta, Katherine Noel Willett, for Appellant.

James William Martin, for Appellee.

ELLINGTON, Presiding Judge.

Classic Commercial Services, Inc. sued defendant Robert Baldwin in the Superior Court of Gwinnett County and later served Baldwin with the summons and complaint at his residence in North Carolina. Baldwin moved to dismiss the complaint on the grounds that the superior court lacked personal jurisdiction. The trial court granted Baldwin's motion to dismiss, and Classic Commercial appeals. For the reasons set forth below, we vacate the trial court's order and remand the case with direction.

A defendant moving to dismiss for lack of personal jurisdiction bears the burden of proving the absence of jurisdiction. To meet that burden, the defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. Further, 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. When examining and deciding jurisdictional issues on a motion to dismiss, a trial court has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9–11–43(b).

(Citation and punctuation omitted.) General Pump & Well, Inc. v. Miller, 326 Ga.App. 546, 546–547, 757 S.E.2d 161 (2014).

We review the trial court's decision de novo. American College Connection, Inc. v. Berkowitz, 332 Ga.App. 867, 867, 775 S.E.2d 226 (2015).

This court is in an equal position with the trial court to determine and examine the facts where, as here, the trial court ruled on the motion to dismiss solely on written evidentiary submissions.¹ Id. at 547, 757 S.E.2d 161. Accordingly, on appellate review, we "examine [ ] the facts under a non-deferential standard, [and] we resolve all disputed issues of fact in favor of the party asserting the existence of personal jurisdiction." (Citation and punctuation omitted.) Lima Delta Co. v. Global Aerospace, Inc., 325 Ga.App. 76, 752 S.E.2d 135 (2013). See Beasley v. Beasley, 260 Ga. 419, 420, 396 S.E.2d 222 (1990).

So viewed, the evidence shows that on December 27, 2013, Classic Commercial filed a complaint against Baldwin in the Superior Court of Gwinnett County seeking to hold Baldwin liable for an unpaid default judgment that it had obtained against Piedmont Hotel Group, Inc. Classic Commercial sought to recover from Baldwin, the sole shareholder, director, and officer of Piedmont Hotel, under theories of piercing the corporate veil and fraudulent transfer.

On January 2, 2014, a sheriff's deputy unsuccessfully attempted to serve the complaint on Baldwin at his house in Suwanee, Georgia, which was then occupied by a tenant. A deputy was again unsuccessful in attempting service on Baldwin on April 29, 2014, at a house in Braselton, Georgia. The deputy spoke to a woman who represented that she and her husband owned the house, that "it was a short sale," and Baldwin did not live there. Baldwin was personally served in North Carolina on November 26, 2014.

In his answer and subsequent motion to dismiss, Baldwin contended that the complaint should be dismissed for lack of personal jurisdiction and that venue was also improper in Gwinnett County. Baldwin argued that the superior court lacked personal jurisdiction over him because he had been a resident of North Carolina since January 2014, he owned no property in Georgia, he conducted no business in Georgia, and he had not been served with the summons and complaint in Georgia. These factual assertions were supported by Baldwin's first affidavit.

In his motion to dismiss, Baldwin asserted that the complaint was filed on April 14, 2014. In its response to the motion, Classic Commercial pointed out that the complaint was filed on December 27, 2013, and contended that, inasmuch as Baldwin's affidavit established that he moved to North Carolina from Georgia in 2014, the court necessarily had personal jurisdiction over Baldwin. Alternatively, Classic Commercial argued that Baldwin was subject to the court's jurisdiction under Georgia's Long–Arm Statute, OCGA § 9–10–91.

After receiving the response, Baldwin amended his motion to dismiss to acknowledge that the complaint was filed on December 27, 2013. He then supplemented his motion to dismiss with a second affidavit for the purpose of, as he explained in his supplemental brief, "clarifying the dates during which he was transitioning from the State of Georgia to the State of North Carolina." Baldwin averred in his second affidavit that his residential address was in North Carolina and that he acquired the property in February 2013, began paying utilities on the property that same month, and began moving his belongings to North Carolina in May 2013. According to Baldwin, he had previously resided in Gwinnett County, Georgia in his home in Braselton, listed the house for sale in May 2013, and sold the house in March 2014. He owned a second Georgia property that was sold in June 2014. He "irregularly" returned from North Carolina to Georgia to check on the condition of the two properties while they were on sale. Further, according to Baldwin, Piedmont Hotels ceased operating in March 2013, and he was not employed by any business in Georgia after March 2013.

Upon consideration of the parties' written submissions, the trial court granted Baldwin's motion to dismiss. The trial court found that Baldwin was not a resident of the State of Georgia on the date that the action was filed. Alternatively, the trial court concluded that even if Baldwin were a resident of the State of Georgia when the complaint was filed, service of the complaint was not completed with reasonable diligence and within a reasonable time after the filing of suit.

1. Classic Commercial contends that the trial court erred in finding that Baldwin was not a resident of the State of Georgia on the date the complaint was filed. We agree. Whether Baldwin was a resident of the State of Georgia on the date the complaint was filed is material to determining whether the Georgia courts had personal jurisdiction over Baldwin. For purposes of resolving "jurisdictional questions, a person's residence at the time of filing of suit is the determining factor ... [if] followed by service within a reasonable time...." Franek v. Ray, 239 Ga. 282, 285, 236 S.E.2d 629 (1977). See also OCGA § 9–11–3(a) ("A civil action is commenced by filing a complaint with the court."); Williams–East, Inc. v. Weeks, 156 Ga.App. 861, 863(4), 275 S.E.2d 801 (1981) ("The Georgia courts have repeatedly held that service or waiver is essential, but that when made it relates back to the date of filing, which establishes the date the action is commenced.") (citations and punctuation omitted). See generally Watts v. Allstate Ins. Co., 214 Ga.App. 462, 463, 448 S.E.2d 55 (1994)("Georgia courts may exercise jurisdiction over Georgia residents[.]"). Baldwin, who had the burden of showing that the court lacked personal jurisdiction over him, failed to show that he was not a resident of the State of Georgia at the time of the filing of the complaint.

The undisputed evidence, as shown by Baldwin's first affidavit, is that he lived "continuously" at his North Carolina residence "since January 2014," which fairly infers that he could not have then resided in Georgia. But January 2014 was after the filing of the complaint, and Baldwin's first affidavit says nothing about whether he was a resident of Georgia on December 27, 2013. And Baldwin's second affidavit does not answer that question. According to his testimony, after Baldwin acquired his North Carolina property in February 2013 he "began" moving his belongings, but he does not say when the move was completed. He avers that he listed his Georgia residence for sale in May 2013 and that the property was sold in March 2014, but not when he ceased to reside therein. And the wording of his first affidavit suggests that, as he continuously lived in North Carolina "since" January 2014, he did not continuously live in North Carolina before January 2014.

As a rule, "the testimony of a party who offers [himself] as a witness in [his] own behalf at trial is to be construed most strongly against [him] when it is self-contradictory, vague or equivocal." (Citation and punctuation omitted.) Conrad v. Conrad, 278 Ga. 107, 110, 597 S.E.2d 369 (2004) (citations and punctuation omitted). This principle applies in the context of a motion to dismiss on jurisdictional grounds. Id. While Baldwin's second affidavit appears to be carefully crafted not to be patently inconsistent with his first affidavit, it is vague and equivocal as to whether he remained a resident of Georgia when the complaint was filed. See Chandler v. Gately, 119 Ga.App. 513, 520(3), 167 S.E.2d 697 (1969) ("Being peculiarly in a position to state fairly and definitely the facts which he professes to know, [a party testifying in his own favor] is under a duty of so stating them as to give a candid and intelligible account of what occurred."). Baldwin did not show that he had left his residence in Georgia and completed his move to North Carolina before 2014, and he "retained his domicile and legal residence in [Gwinnett County] until he succeeded in acquiring residence and domicile in [North Carolina]." Shirley v. State, 1 Ga.App. 143, 145, 57 S.E. 912 (1907) (where grand juror had sold his lands in Rabun County where he had resided, with the intent of moving to Habersham County, and he had loaded his household goods on a train with the intent of sending them there, but remained in Rabun County to look after a sawmill...