Sol Melia, Sa v. Brown

• Decision Date: 18 December 2009
• Docket Number: No. A09A2337.,No. A09A2336.,No. A09A2338.,A09A2336.,A09A2337.,A09A2338.
• Citation: 688 S.E.2d 675,301 Ga. App. 760
• Parties: SOL MELIA, SA et al. v. BROWN et al. Sol Melia, SA et al. v. Gil. Sol Melia, SA et al. v. Smaha et al.
• Court: Georgia Court of Appeals

688 S.E.2d 675

301 Ga. App. 760

SOL MELIA, SA et al. v. BROWN et al.

Sol Melia, SA et al. v. Gil.

Sol Melia, SA et al. v. Smaha et al.

No. A09A2336.

No. A09A2337.

No. A09A2338.

Court of Appeals of Georgia.

December 18, 2009.

Moore, Ingram, Johnson & Steele, G. Phillip Beggs, Marietta, for appellants.

Locke, Lord, Bissell & Liddell, Nigel J.D. Wright, Elizabeth J. Campbell, Atlanta, for appellees.

MIKELL, Judge.

Sol Melia, SA d/b/a Sol Melia Hotels & Resorts ("Sol Melia"), and the Sol Group Corporation ("Sol Group") were sued in Georgia by Georgia residents¹ who were injured in an automobile accident in the Dominican Republic. Sol Melia filed a motion to dismiss the complaint for lack of personal jurisdiction. The trial court denied the motion, and we granted Sol Melia's application for interlocutory appeal. Because the exercise of jurisdiction over Sol Melia would offend due process, we reverse the trial court's judgment.

As the defendant moving to dismiss, Sol Melia bears the burden of proving lack of jurisdiction.² A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that the defendant can be subjected to the court's jurisdiction.³

[W]hen 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.⁴

We owe no deference to the trial court's judgment because the motion was decided on the basis of the written submissions.⁵ Any factual disputes raised by the evidence must be resolved in the plaintiffs' favor.⁶

Thus viewed, the record shows that Sol Melia is a Spanish corporation and its principal place of business is in Spain. Sol Group, which is not a party to this appeal, is a Delaware corporation with its principal place of business in Florida. Sol Group is registered to do business in Georgia and has a registered agent for service of process in this state. Through a subsidiary, Sol Melia owns a majority interest in the parent company of Inversiones Areito ("Areito"), which in turn owns and operates the Paradisus Palma Real Resort (the "Resort"), a hotel in Punta Cana, Dominican Republic. The plaintiffs vacationed at the Resort in April of 2006. They purchased from Areito a "Royal Service Package" (the "Package"), which included meals, club-level rooms, and upgraded concierge services. The package did not include the cost of airfare or transportation from the airport to the Resort. However, an Areito employee at the Resort reserved a taxi for the plaintiffs when they checked out. The taxi was owned and operated by Taxi Vernon, a Dominican entity, and the driver was employed by Taxi Vernon. On the way to the airport, the taxi was involved in a collision in which the plaintiffs were injured.

In their complaints, which were not verified, the plaintiffs alleged that the taxi driver's negligence and recklessness caused their injuries; that the driver was Sol Melia and/or Sol Group's agent; that Sol Melia and/or Sol Group agreed to provide their transportation to the airport and breached a duty-owed to the plaintiffs to exercise ordinary care "in the safe operation of the vehicle and in arranging for [their] airport transfer"; that Sol Group was Sol Melia's agent, servant, and representative and that Sol Group procured business and accepted payments for Sol Melia. In addition to counts of direct and vicarious liability, plaintiffs alleged counts of breach of contract and fraudulent representation.

Sol Melia tendered two affidavits in support of its motion to dismiss. Christelle Luchini, the Resort's Royal Service manager at the time of the underlying incident, averred that the Package, which plaintiffs purchased from Areito, included premium resort services, such as personalized assistance in planning tours and excursions, preferential spa, dinner, golf, and tennis reservations, and daily mail and newspaper delivery. Luchini further averred that the Package did not include airfare or the cost of transportation between the Punta Cana airport and the Resort; that Areito did not provide such transportation; but that an Areito employee working at the Resort arranged the plaintiffs' transfer to the airport by calling a taxi for them. The taxi was owned by Taxi Vernon and operated by a Taxi Vernon employee.

Juan Ignacio Pardo, Sol Melia's general counsel, averred that Sol Melia neither owns nor operates any hotel in the United States; is not authorized to do business in Georgia; conducts no sales, marketing, or promotional activities in Georgia; does not target Georgia residents, who represent less than 0.1% of the company's revenue; and does not advertise in Georgia newspapers or publications. Pardo averred that Sol Melia does operate an Internet web site that can be accessed by Georgians and through which customers can purchase vacation packages directly from the hotels that Sol Melia manages or owns in other countries. The plaintiffs, however, did not book their trips through the web site; instead, they called a toll-free 800 number managed by a third party, who sent their reservation information directly to Resort personnel in the Dominican Republic. Pardo also averred that Sol Melia never entered into any contract with the plaintiffs, never received any payment from them, and never paid anyone a fee or commission in connection with their booking. Finally, Pardo averred that Sol Melia does not own, operate or control the premises at the Resort and does not employ any of its employees; did not own, operate or control the taxi in which the plaintiffs were injured; and did not arrange for their transportation by taxi.

Plaintiffs submitted no affidavits in response to Sol Melia's affidavits. Instead, they submitted printouts of Sol Melia's web site and its annual reports showing that it owns Sol Group. Sol Melia's 2006 annual report calls its web site an "essential distribution channel for hotels." The site has a phone number for making reservations that includes "MELIA" and the copyright states "2008 resorts by Sol Melia."

1. Sol Melia argues that its contacts with Georgia are insufficient for a Georgia court to exercise jurisdiction over it under the long-arm statute, OCGA § 9-10-91. We conclude that the constraints of constitutional due process preclude the exercise of personal jurisdiction over Sol Melia under the facts of this case.

The Georgia long-arm statute pertinently provides that

[a] court of this state may exercise personal jurisdiction over any nonresident . . ., as to a cause of action arising from any of the acts . . . enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) Transacts any business within this state.⁷

In Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames, Iowa ("Innovative"),⁸ our Supreme Court concluded that OCGA § 9-10-91(1) "grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this [s]tate."⁹ Recognizing that "this statutory language would expand the personal jurisdiction of Georgia courts beyond that permitted by constitutional due process," the Court "construe[d] subsection (1) as reaching only to the maximum extent permitted by procedural due process."¹⁰ "Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign."¹¹ The question is "whether a defendant could reasonably expect to be haled into court in a particular forum,"¹² based on its contacts with the state. The inquiry consists of a three-part test: "Jurisdiction exists if (1) the nonresident defendant has purposefully done an act or consummated a transaction in Georgia, (2) the cause of action arises from or is connected with the act or transaction, and (3) the Georgia court's exercise of jurisdiction does not offend traditional fairness and substantial justice."¹³ In other words, before a nonresident may be sued in Georgia, such nonresident "must have purposefully directed [its] activities at residents of the forum, and the litigation must result from alleged injuries that arise out of or relate to those activities."¹⁴ The first two elements are used to determine whether the nonresident defendant has established the minimum contacts necessary for a Georgia court to exercise personal jurisdiction.¹⁵

We find in this case that Sol Melia has demonstrated the absence of the second requirement. In other words, the evidence shows that plaintiffs' claims of direct and vicarious liability for the taxi driver's negligence breach of contract, and fraudulent misrepresentation do not arise out of and are not related to Sol Melia's alleged contacts with Georgia. We are unable to locate a Georgia case precisely on point. Oldfield v. Pueblo De Bahia Lora, S.A.,¹⁶ a factually similar case recently decided by the Eleventh Circuit Court of Appeals, is instructive, however. In Oldfield, the plaintiff, a Florida resident, found an Internet web site for "Parrot Bay Village," which was owned by defendant Pueblo De Bahia Lora, S.A. ("Pueblo"), a Costa Rican corporation. The web site described the Village as a "unique sport fishing and rainforest eco-lodge."¹⁷ Pueblo did not own or operate any fishing boats, although it represented that the fishing boats it chartered were operated by "U.S. licensed" captains.¹⁸ The plaintiff booked a reservation through the web site and also made arrangements with a charter service for a fishing trip.¹⁹ He was injured on the fishing trip and sued Pueblo, alleging that the boat captain's negligence caused his injury and that Pueblo was legally responsible for the...