THIRD DIVISION

DILLARD, P. J.,

GOBEIL and HODGES, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 24, 2019

In the Court of Appeals of Georgia

A19A0826. WARD v. MARRIOTT INTERNATIONAL, INC.

HODGES, Judge.

Plaintiff 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.

The 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 alleged that

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.

An affidavit of service indicates that Marriott was personally served through an

authorized agent at that address on August 30, 2017. 

Marriott 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 “withoutsufficient information to forma 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. 

On 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

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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.

This case presentsthe 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. 

1. Georgia default law. Under 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

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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 asif every item and

paragraph of her complaint were supported by proper evidence.1 See Sidwell v.

Sidwell, 237 Ga. App. 716, 717 (1) (515 SE2d 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.” 

1 Marriott correctly points out that “while a default operates as an admission

of the well-pled factual allegations in a complaint, it does not admit the legal

conclusions contained therein.” (Citation omitted.) Fink v. Dodd, 286 Ga. App. 363,

365 (1) (649 SE2d 359) (2007). Using this principle, Marriott argues that Ward’s

assertion in her complaint regarding jurisdiction is a legal conclusion and, therefore,

Ward was not entitled to default on the jurisdictional issue. However, as will be more

thoroughly explained in Division 2 (a),Ward’s complaint included the following facts

sufficient to support jurisdiction and Ward’s request for default: Marriott is a

corporation duly registered to conduct business in the State of Georgia and could be

served through its registered agent in Georgia. See, e.g., Allen v. Allston, 141 Ga.

App. 572, 574 (2) (234 SE2d 152) (1977) (“Here the defendant was personally served

in Fulton County; the complaint alleged that he was a resident of Fulton County and

hisfailure to file responsive pleadings admitted all well pleaded allegationsincluding

this one.”).

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“After 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 SE2d 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 SE2d 482) (1976) (reversing

trial court, which allowed a defaulting defendant to present evidence regarding the

right of recovery). 

That being said, default may be opened at the discretion of the trial court if

certain requirements are met:

At any time before final judgment, the court, in its discretion, upon

payment of costs, may allow the default to be opened for providential

cause preventing the filing of required pleadings or for excusable

neglect or where the judge, from all the facts, shall determine that a

proper case has been made for the default to be opened, on terms to be

fixed by the court. In order to allow the default to be thus opened, the

showing shall be made under oath, shall set up a meritorious defense,

shall offer to plead instanter, and shall announce ready to proceed with

the trial.

OCGA § 9-11-55 (b).

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Here, Marriott filed an answer, amended answer, discovery requests, demand

for jury trial, and a motion to dismiss. In its request for discovery, Marriott alleged

it filed a motion to open default, but it is undisputed that no such motion was ever

filed. In fact, the trial court’s order indicates that Marriott “has repeatedly stated that

they do not need to open Default because there is no jurisdiction.” We thus turn to an

overview of Georgia’s personal jurisdiction law. 

2. Georgia personal jurisdiction law. In Georgia, “[a]llowing a case to go to

default judgment is no better than allowing a case to be tried on the merits before

coming in with a technical defense.” (Citation omitted.) Cotton v. Ruck, 157 Ga. App.

824 (278 SE2d 693) (1981). Thus, a properly served defendant who wishesto rely on

an affirmative defense, such aslack of personal jurisdiction or venue,2 must assert the

defense in a timely filed answer or in a motion to dismiss prior to default. See id.

“When the party hasreceived actual notice of the suit there is no due process problem

in requiring him to object to the improper [jurisdiction or] venue within the period

2

“Jurisdiction of the person is the power of a court to render a personal

judgment, or to subject the parties in a particular case to the decisions and rulings

made by it in such a case, and is obtained by serving the proper process in the manner

required by law on persons or parties subject to be sued in a particular action. . . .

Venue means the place of trial.” (Citations and punctuation omitted.) Euler-Siac

S.P.A. (Creamar Spa) v. Drama Marble Co., 274 Ga. App. 252, 255 (1), n. 5 (617

SE2d 203) (2005).

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prescribed[.]” (Citation and punctuation omitted.) Williams v. Mells, 138 Ga. App. 60

(225 SE2d 501) (1976) (physical precedent only); Aiken v. Bynum, 128 Ga. App. 212,

213 (2) (196 SE2d 180) (1973) (physical precedent only); cf. United Grocery Outlet

v. Bennett, 292 Ga. App. 363, 365 (665 SE2d 27) (2008) (citing principle from

Williams).

a. Resident defendants. To circumvent Georgia default and personal

jurisdiction law, including its failure to request that default be opened and comply

with the requirements of OCGA § 9-11-55 (b), Marriott argues that the law stated

above does not apply to foreign, nonresident corporations. First of all, contrary to

Marriott’s assertion in this case, Marriott is considered a resident corporate defendant,

as opposed to a nonresident corporate defendant, under existing Georgia law. A

nonresident corporation is defined, in part, under the Georgia Long Arm Statute as

“a corporation which is not organized or existing under the laws of this state and is

not authorized to do or transact business in this state at the time a claim or cause of

action under Code Section 9-10-91 arises.” OCGA § 9-10-90. Both the Georgia

Supreme Court and this Court previously have held that the Georgia Long Arm

Statute does not apply to corporations authorized to do business in Georgia. See

Allstate Ins. Co. v. Klein, 262 Ga. 599, 600-601 (422 SE2d 863) (1992) (foreign

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corporation authorized to do businessin this State is not a “nonresident” for purposes

of personal jurisdiction as that term is defined in the Long Arm Statute); Cherokee

Warehouses v. Babb Lumber Co., 244 Ga. App. 197, 199 (535 SE2d 254) (2000)

(same; case involved a Tennessee corporation that was registered to do business in

Georgia and maintained a registered agent in Georgia for service of process);see also

Innovative Clinical & Consulting Servs. v. First Nat. Bank of Ames, Iowa, 279 Ga.

672, 674, n. 2 (620 SE2d 352) (2005) (noting that the Klein case involved

“jurisdiction over a defendant who was a Georgia resident so that OCGA § 9-10-91

was wholly inapplicable”). 

As a resident, such a foreign corporation may sue or be sued to the same

extent as a domestic corporation. Therefore, a plaintiff wishing to sue in

Georgia a corporation authorized to do business in Georgia is not

restricted by the personal jurisdiction parameters of § 9-10-91, including

the requirement that a cause of action arise out of a defendant’s

activities within the state.

Klein, 262 Ga. at 601. 

Asthe Georgia Supreme Court noted, this conclusion is consistent with OCGA

§ 14-2-1505, which sets forth the statutory effect of a certificate of authority to do

business in Georgia:

A foreign corporation with a valid certificate of authority has the same

but no greater rights under this chapter and has the same but no greater

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privileges under this chapter as, and except as otherwise provided by

this chapter is subject to the same duties, restrictions, penalties, and

liabilities now or later imposed on, a domestic corporation of like

character. [§ 14-2-1505 (b).]

Klein, 262 Ga. at 601, n. 2. It also comports with the requirements of federal

procedural due process:

[I]f an authorized representative of a foreign corporation be physically

present in the state of the forum and be there engaged in activities

appropriate to accepting service or receiving notice on its behalf, we

recognize that there is no unfairnessin subjecting that corporation to the

jurisdiction of the courts of that state through such service of process

upon that representative. We find no requirement of federal due process

that either prohibits a state from opening its courts to a cause of action

not arising out of the corporation’s activities in the state or compels a

state to do so. 

(Punctuation omitted; emphasisin original.) Id. at 601, n. 3 (citing Perkins v. Benguet

Consolidated Mining Co., 342 U. S. 437, 444, 446 (72 SCt 413, 96 LEd 485) (1952)).

Marriott cites a number of United States Supreme Court cases and federal cases

to support its argument that a foreign corporation registered and authorized to do

business in a state is not a resident for purposes of analyzing jurisdiction. However,

the federal cases cited by Marriott are nonbinding on this Court. The Georgia

Supreme Court has held that

the [federal courts’] interpretation of [a statute] is not binding on this

Court and it is not necessary for this Court to correct erroneous Federal

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interpretations of our State’s statutes for the precedential value of our

opinionsto remain the controlling authority on the proper interpretation

of those statutes.

Innovative Clinical & Consulting Servs., 279 Ga. at 674, n. 2. 

Moreover, as an intermediate appellate court, we are bound by Georgia statutes

and Georgia Supreme Court decisions. “When the Supreme Court has addressed an

issue in clear terms, this court is not at liberty to decline to follow the established rule

of law.” State v. Benton, 168 Ga. App. 665, 667 (2) (310 SE2d 243) (1983); see also

Thomason v. Harper, 162 Ga. App. 441, 444-445 (2) (289 SE2d 773) (1982) (“This

court is not at liberty to decline to follow this rule of law in Georgia because our

Supreme Court has addressed the issue in clear terms.”). Article VI, Section VI,

Paragraph VI of the Georgia Constitution of 1983 specifically commands, “[t]he

decisions of the Supreme Court shall bind all other courts as precedents.” This

“principle has even greater weight where the precedent relates to interpretation of a

statute. Once the [Supreme] court interpretsthe statute, the interpretation has become

an integral part of the statute.” (Citations and punctuation omitted.) Benton, 168 Ga.

App. at 667 (2). “Thus, notwithstanding the possible desirability of the rule urged by

[Marriott], we are foreclosed from consideration of it at this time.” Id.; see also A &

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A Heating & Air Conditioning Co. v. Burgess, 148 Ga. App. 859, 860 (1) (253 SE2d

246) (1978).3

Because existing Georgia law leads us to conclude that Marriott is a resident

defendant corporation for default and personal jurisdiction purposes, see Klein, 262

Ga. at 601, Marriott was required to comply with Georgia default and personal

jurisdiction law. This included an obligation to assert its affirmative defenses, such

as lack of personal jurisdiction, in a timely filed answer or in a motion to dismiss

prior to default. See Cotton, 157 Ga. App. at 824. In the alternative, Marriott could

have moved to open default and complied with the strict requirements of OCGA § 9-

11-55 (b). Marriott did none of these. “By erroneously dismissing [Ward’s]

complaint, the trial court enabled [Marriott] to circumvent the strict requirements for

opening default.” Sidwell, 237 Ga. App. at 717-718 (1). 

b. Nonresident defendants. Moreover, even if Marriott were considered a

foreign, nonresident corporation, this Court has previously held that, in Georgia, even

3

 To the extent Marriott challenges the constitutionality of Georgia’s statutes

or case law, its failure to raise this issue below precludes our review of any

constitutional claim. See In the Interest of A. A., 253 Ga. App. 858, 862 (3) (560 SE2d

763) (2002) (“A constitutional issue cannot be considered when asserted for the first

time on appeal but must be clearly raised in the trial court and distinctly ruled upon

there.”) (citation omitted). 

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a nonresident defendant waives his right to assert defenses, including the defense of

lack of personal jurisdiction, by failing to timely respond to the complaint or move

to open default. See Stout v. Signate Holding, 184 Ga. App. 154, 155 (3) (361 SE2d

36) (1987) (California resident served under the long-arm statute waived right to

contest Georgia court’s jurisdiction by failing to timely answer complaint or move to

open default). Likewise, in Chen v. Alexander Terry Assocs., 228 Ga. App. 345, 346-

347 (491 SE2d 834) (1997), we specifically noted that a nonresident defendant cannot

assert a lack of jurisdiction while in default; the defendant must file a timely motion

to dismiss or assert a lack of personal jurisdiction defense by moving to open default,

moving to set aside the judgment, or filing a subsequent collateral attack. While

Marriott argues that requiring a defendant to move to open default or file a motion to

set aside after a default judgment has been awarded in order to assert a lack of

jurisdiction, rather than simply allowing it to raise the issue via an untimely motion

to dismiss after it already is in default, “puts form over substance[,]” that, in fact, is

the law in Georgia.

The cases cited by Marriott and the trial court are inapposite. In Hoesch

America, Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, 845-848 (1) (459 SE2d 187)

(1995), this Court found that a nonresident served in an action brought under

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Georgia’s Long Arm Statute did not waive his lack of personal jurisdiction defense

by not answering the complaint. However, that case differed from the one at issue in

two key respects: (1) the nonresident defendant in Hoesch moved to open default and

the trial court granted that motion, and (2) the nonresident defendant was a foreign

corporation who was not transacting business in Georgia and who was never

informed its goods would be used or delivered in Georgia. Id. at 845 (1). These

differences were also present in B &D Fabricators v. D. H. BlairInvestment Banking

Corp., 220 Ga. App. 373 (1) (a) (469 SE2d 683) (1996), where a foreign corporation

not transacting business in this State moved to open default, and the trial court

granted the motion to open default and then granted the corporation’s motion to

dismiss. In both cases, this Courtspecifically noted that “a foreign corporation which

is not transacting business within this state cannot be forced to come into the state to

defend against a claim or to contest jurisdiction.” B & D Fabricators, 220 Ga. App.

at 373 (1) (a); Hoesch, 217 Ga. App. at 847 (1). 

Unlike the defendantsin Hoesch and B &D Fabricators, Marriott never moved

to open default, which it was required to do under Stout, 184 Ga. App. at 155 (3), and

Chen, 228 Ga. App. at 346-347. In addition, Marriott admittedly is a foreign

corporation authorized to do business in Georgia, with a registered agent to receive

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service of process here in Georgia. Under Georgia law, the only methods for such a

foreign corporation, even if considered a nonresident corporation, to assert a lack of

personal jurisdiction once the case isin default include moving to open default, which

Marriott did not do, or waiting until default judgment has been awarded and then

moving to set aside the judgment under OCGA § 9-11-60 (d). See Chen, 228 Ga.

App. at 346-347; Stout, 184 Ga. App. at 155 (3). Marriott’s untimely motion to

dismiss was not the proper vehicle to assert this defense and revive a case in default.

See Chen, 228 Ga. App. at 346-347; Stout, 184 Ga. App. at 155 (3). 

In this case, the trial court failed to properly apply existing Georgia law and

recognize that “[b]y being in default, [Marriott] waived [its] right to contest the trial

court’s jurisdiction over [its] person.” Stout, 184 Ga. App. at 155 (3). We, therefore,

reverse the dismissal of Ward’s complaint and remand to the trial court to proceed

with Ward’s motion for default judgment. 

Judgmentreversed and remandedwith direction. Dillard, P. J., and Gobeil, J.,

concur.

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