GUSTIN v. ROBERTS MORTGAGE INVESTMENT CORP

Citation Codes

Equivalent Citations

citation codes

Docket Number

63952.

Attorney(S)

Morgan M. Robertson, for appellant. Jeffrey R. Sliz, Jr., James L. Kraemer, for appellee.

Judges

BANKE, Judge.

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Smart Summary

Factual and Procedural Background

The plaintiff, Gustin, sued the defendant, Roberts Mortgage Investment Corporation, a resident of Louisiana, on a contract claim in Cobb State Court. The defendant failed to respond, resulting in a default judgment against him. Subsequently, the defendant moved to set aside the default judgment, alleging improper service of process. The trial court, confronted with conflicting evidence, determined that service was properly effected by a deputy sheriff in Louisiana and therefore denied the defendant’s attempt to challenge the court’s jurisdiction.

Legal Issues Presented

Whether the contract’s forum selection clause specifying Georgia as the venue is sufficient to establish personal jurisdiction over the defendant.
Whether service of process under Georgia’s Long Arm Statute was proper.
Whether the defendant waived the defense of lack of personal jurisdiction by failing to timely raise it.

Arguments of the Parties

Defendant's Arguments

The forum selection clause naming Georgia is insufficient alone to confer jurisdiction.
Service of process under the Georgia Long Arm Statute was improper, thereby invalidating the default judgment.

The opinion does not contain a detailed account of the plaintiff’s arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thrift v. Vi-Vin Products, 134 Ga. App. 717, 718 (215 S.E.2d 709) (1975)	Defense of lack of personal jurisdiction is waived if not timely raised by motion or responsive pleading under CPA § 12(h)(1).	The court applied this precedent to hold that the defendant waived the jurisdictional defense by failing to raise it, thereby validating the default judgment.
Hatfield v. Leland, 143 Ga. App. 528 (239 S.E.2d 169) (1977)	Supports waiver of personal jurisdiction defense and proper application of Long Arm Statute.	Cited to reinforce the conclusion that the defendant was properly served and waived the defense by inaction.

Court's Reasoning and Analysis

The court reasoned that under Georgia law, specifically CPA § 12(h)(1), a defendant waives the defense of lack of personal jurisdiction if it is not raised in a motion to dismiss or included in a responsive pleading. The court found that service of process was properly effected under the Georgia Long Arm Statute by a deputy sheriff in Louisiana. Because the defendant neither contested jurisdiction in a timely manner nor responded to the complaint, the defense was waived. Consequently, the trial court acquired personal jurisdiction, and the default judgment entered was conclusive and valid.

Holding and Implications

Judgment affirmed.

The court upheld the default judgment against the defendant, confirming that failure to timely raise a personal jurisdiction defense results in waiver. The decision directly affects the parties by affirming the trial court’s jurisdiction and the validity of the default judgment. No new legal precedent was established beyond the application of existing waiver principles under Georgia law.

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GUSTIN v. ROBERTS MORTGAGE INVESTMENT CORPORATION.

BANKE, Judge.

The plaintiff sued the defendant, a resident of Louisiana, on a contract and obtained a default judgment when the defendant failed to answer. The defendant moved to set aside the default judgment on the ground that he had not been properly served. The trial court, on conflicting evidence, found that the defendant had been properly served by a deputy sheriff in Louisiana and refused to allow the defendant otherwise to contest the court's jurisdiction. The defendant contends that the contract language specifying Georgia as the forum for resolution of disputes is an insufficient basis for jurisdiction and that service under the Georgia "Long Arm Statute" was consequently improper. Held:

"The defense of lack of jurisdiction over the person is waived if no motion to dismiss on this ground has been made nor included in a responsive pleading. CPA § 12 (h) (1) (Code Ann. § 81A-112 (h) (1)). It appears that defendant was properly served with process in accordance with the Long Arm Statute. It was then incumbent on. . . [him]. . . to raise the defense of lack of personal jurisdiction by motion or by answer. Defendant did neither. Therefore, a waiver of this defense resulted. The trial court acquired jurisdiction over defendant's person and the resulting judgment by default was conclusive. [Cit.]" Thrift v. Vi-Vin Products, 134 Ga. App. 717, 718 ( 215 S.E.2d 709) (1975). Also see Hatfield v. Leland, 143 Ga. App. 528 ( 239 S.E.2d 169) (1977).

Judgment affirmed. McMurray, P. J., and Birdsong, J., concur.

DECIDED MAY 20, 1982.