SECOND DIVISION

MILLER, P. J.,

ANDREWS, J., and SENIOR APPELLATE JUDGE BEASLEY

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

May 16, 2018

In the Court of Appeals of Georgia

A18A0672. DELTA ALIRAQ, INC. v. ARCTURUS

INTERNATIONAL, LLC et al.

BEASLEY, Senior Appellate Judge.

Plaintiff Delta Aliraq, Inc. (“Delta”) appeals the trial court’s order granting the

motion filed by defendants ArcturusInternational, LLC (“Arcturus”) and Delta Alpha

X-Ray, LLC (“DAX”) to set aside a default judgment previously entered against the

defendants. The trial court granted the motion on three independent grounds, each of

which Delta challenges. We conclude that the trial court did not err when it aside the

default judgment on grounds that it lacked personal jurisdiction over DAX and that

Delta failed to prove damages as to Arcturus. We therefore affirm the trial court’s

judgment.
In 2015, Delta obtained a judgment against DAX and two other parties(neither

of whom is a party to this action), jointly and severally, in the amount of $1,000,000,

in a California court. In June 2016, Delta filed the instant complaint in Fulton County

against Arcturus and DAX. In its complaint, Delta (i) sought to domesticate the

California judgment against DAX and (ii) asserted a fraudulent conveyance claim

against both defendants. In its fraudulent conveyance claim, Delta alleged that

Arcturus had acquired real property in Roswell with funds supplied by DAX as part

of a scheme to shelter DAX’s assets from Delta. As relief, Delta asked the trial court,

in relevant part, to enter the $1,000,000 California judgment against DAX as a

judgment of the Fulton County trial court and to grant Delta a lien against the

Roswell property in the amount of all sums allegedly transferred by DAX. In

September 2016, Delta moved for a default judgment on the ground that neither

defendant had filed a responsive pleading. Later that month, the trial court granted

Delta’s motion, entered a $1,000,000 judgment against DAX, and granted Delta a lien

against Arcturus’s property in Roswell “to secure [Delta]’s judgment lien.” 

2
In January 2017, Arcturus filed a motion to open default under OCGA § 9-11-

55 (b).1 The trial court denied the motion, and we subsequently denied Arcturus’s

application for discretionary appeal from that ruling. See Arcturus Intl. LLC v. Delta

Aliraq, Inc. et al., No. A17D0362 (Apr. 13, 2017). 

In March 2017, the defendants moved to set aside the default judgment under

OCGA § 9-11-60 (d) on multiple grounds. The trial court granted the defendants’

motion, concluding that: (i) Delta had assigned to a third party its interest in the

California judgment, as a result of which it lacked standing to bring the instant action;

(ii) Delta failed to perfect service on DAX, as a result of which the trial court could

not exercise personal jurisdiction over DAX in this action; and (iii) Delta failed to

prove damages in the amount of the lien against Arcturus, which, the court found,

constitutes a nonamendable defect on the face of the record. The trial court

subsequently certified its order for immediate review, and we granted Delta’s

application for interlocutory appeal. See OCGA § 5-6-34 (b).

1 Although styled as a “Motion to Set Aside DefaultJudgment,” the arguments

raised in Arcturus’s January 2017 motion pertained only to opening default under

OCGA § 9-11-55 (b), and not to setting aside a judgment under OCGA § 9-11-60 (d).

See Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266 (491 SE2d 471) (1997)

(“[P]leadings, motions and orders are to be construed according to their substance and

function and not merely as to their nomenclature. . . .”).

3
OCGA § 9-11-60 (d) authorizes a trial court to set aside itsjudgment on certain

limited bases:

(1) Lack of jurisdiction over the person or the subject matter;

(2) Fraud, accident, or mistake or the acts of the adverse party unmixed

with the negligence or fault of the movant; or

(3) A nonamendable defect which appears upon the face of the record

or pleadings. Under this paragraph, it is notsufficient that the complaint

or other pleading fails to state a claim upon which relief can be granted,

but the pleadings must affirmatively show no claim in fact existed.

“Default judgment is a drastic sanction that should be invoked only in extreme

situations. Whenever possible, cases should be decided on their merits, for default

judgment is notfavored in law.” (Citation and punctuation omitted.) Feazell v. Gregg,

270 Ga. App. 651, 653 (1) (b) (607 SE2d 253) (2004). “We review a ruling on a

motion to set aside for abuse of discretion and affirm if there is any evidence to

support it. Factual disputes regarding service are to be resolved by the trial court, and

the court’s findings will be upheld if there is any evidence to support them.”

(Citations and punctuation omitted; emphasis in original.) Vasile v. Addo, 341 Ga.

App. 236, 240 (2) (800 SE2d 1) (2017). We review questions of law de novo. Id.

4
1. Delta raises several challenges to the trial court’s conclusion that it lacked

personal jurisdiction over DAX due to deficient service of process. The trial court

ruled that Delta’s purported service on “a defunct registered agent [of DAX] in North

Carolina,” a “state unconnected to the nexus of the claims” in this action, was

insufficient for the court to exercise personal jurisdiction over DAX. We affirm the

trial court’s ruling that Delta failed to properly serve DAX, although not for the

explicit reason stated in the trial court’s order.2

In its complaint, Delta alleged that DAX, a nonresident, is subject to the trial

court’s jurisdiction under OCGA § 9-10-91 – Georgia’s long-arm statute – on

grounds that DAX is a “joint tortfeasor” and possesses an interest in real estate in

Fulton County. See OCGA § 9-10-91 (2), (4). Under OCGA § 9-10-94, a party

subject to the jurisdiction of Georgia courts pursuant to OCGA § 9-10-91 “may be

2

In a footnote, and without citation to either the record or legal authority, Delta

briefly challenges the trial court’s judgment to the effect that the court may have set

aside the default judgment against Arcturus on the ground that the court lacked

jurisdiction over DAX. Pretermitting whether the trial court made such a ruling, we

deem Delta’s claim on this issue abandoned. See Court of Appeals Rule 25 (c) (2);

Evans v. State, 330 Ga. App. 241, 246 (5) (766 SE2d 821) (2014). Regardless, for the

reasons discussed infra in Division 2, the trial court did not abuse its discretion when

it set aside the default judgment as to Arcturus on the ground that Delta’s failure to

prove damages as to Arcturus constitutes a nonamendable defect on the face of the

record.

5
served with a summons outside the state in the same manner asservice is made within

the state. . . .” Foreign limited liability companies, such as DAX, generally are

governed by OCGA § 14-11-701 et seq. However, because the record appears to

contain no indication that DAX is authorized to transact business in Georgia, none

of the service provisionsin OCGA § 14-11-701 etseq. apply. Service in this case thus

is governed by the catchall provision in OCGA § 9-11-4 (e) (7), under which service

may be made by delivering a copy of the summons attached to a copy of the

complaint “to an agent authorized by appointment or by law to receive service of

process.”

Delta sought to establish service upon DAX by submitting a “Sheriff’s Entry

of Service” form dated July 20, 2016, identifying the name and address of the party

to be served as:

Delta Alpha X-Ray LLC

Neighborhood Homes & Realty, Inc.

737 Chadwick Shores Drive

Sneads Ferry, NC 28460

The form includes several pre-printed options for identifying the manner of service,

including “Personal” and “Corporation.” Only the checkbox for “Personal” ismarked.

The entry for personalservice includesthe following pre-printed text: “I have this day

6
served the defendant __________ personally with a copy of the within action and

summons.” The name “William Treweek” is handwritten on the blank line provided

for identifying the “defendant” upon whom“Personal” service was made. The service

form contains no additional information identifying William Treweek. 

Although DAX claims that Neighborhood Homes & Realty was its “previous

registered agent in North Carolina,” it identifies no record evidence supporting its

inference that Neighborhood Homes & Realty no longer was authorized to accept

service on its behalf in July 2016. The 2013 revocation of DAX’s authority to transact

business in North Carolina did not, standing alone, terminate the authority of DAX’s

registered agent in North Carolina. See N. C. Gen. Stat. § 57D-7-31 (e) (“Revocation

of a foreign LLC’s certificate of authority does not terminate the authority of the

registered agent of the foreign LLC.”); accord OCGA § 14-11-709 (e) (“Revocation

of a foreign limited liability company’s certificate of authority does not terminate the

authority of the registered agent of the foreign limited liability company.”).

Nevertheless, pretermitting whether Neighborhood Homes & Realty was

authorized to accept service on DAX’s behalf on July 20, 2016, the entry of service

form contains no indication that the individual who was served – William Treweek

– was authorized to accept service on behalf of either DAX or Neighborhood Homes

7
& Realty. On its face, the form identifies Treweek as an individual defendant, which

undisputably is not the case. Under these circumstances, the form at best identifies

Treweek as a person who was present at Neighborhood Homes & Realty’s address

on July 20, 2016. Absent some indication in the record that Treweek was an agent of

either DAX or Neighborhood Homes & Realty, this is insufficient to show that

service was perfected on DAX through Neighborhood Homes & Realty. See Bowers

v. Economation, Inc., 208 Ga. App. 661, 663 (431 SE2d 420) (1993) (“To perfect

service, a copy of the complaint and summons must be delivered to a person whose

position issuch asto afford reasonable assurance that he will informhis principal that

such process has been served upon him.”) (citation and punctuation omitted); accord

Scott v. Atlanta Dairies Coop., 239 Ga. 721, 724 (2) (238 SE2d 340) (1977) (the

object of service of process is to give notice of suit to the defendant). The trial court

therefore did not abuse its discretion when it set aside the default judgment for lack

of personal jurisdiction over DAX due to insufficient service of process. See Rozier

v. Berto, 230 Ga. App. 427, 430 (496 SE2d 544) (1998) (this Court will affirm a trial

court’s ruling that is right for any reason).

8
2. Delta challenges the trial court’s determination that it failed to prove

damages as to Arcturus, which, the court found, constitutes a nonamendable defect

on the face of the record. We discern no error.

To obtain a default judgment in an action sounding in tort, a plaintiff must

introduce evidence establishing the amount of damages. See BellSouth Advertising

& Publishing Corp. v. Kingdom Adventures, LLC, 277 Ga. App. 495, 495 (1) (627

SE2d 125) (2006) (citing OCGA § 9-11-55 (a)); accord Taylor v. Stapp, 134 Ga. App.

468, 469 (2) (215 SE2d 23) (1975) (the statutory phrase “ex delicto” describes a tort).

The failure to prove such damages constitutes a nonamendable defect under OCGA

§ 9-11-60 (d) (3). GMC Group, Inc. v. Harsco Corp., 304 Ga. App. 182, 183-184 (2)

(695 SE2d 702) (2010).

In its order granting a default judgment as relief with respect to Delta’s

fraudulent transfer (i.e., tort) claim against Arcturus, the trial court awarded Delta a

lien against the Roswell property “to secure [Delta]’s judgment lien, plus all costs in

this case.” It is undisputed that the Roswell property currently is held by Arcturus.

Nevertheless, the judgment does not limit the lien to amounts in which Delta

allegedly has been damaged by Arcturus. The lien rather extends to (and beyond) the

full amount of Delta’s $1,000,000 judgment against DAX. The record, however,

9
contains no evidence establishing that Arcturus is liable for $1,000,000 or more in

damages. At most, the record evidence suggeststhat any possible liability on the part

of Arcturus is limited to $344,860, the total of all amounts that Delta alleges DAX

supplied for the purchase of and improvements to the Roswell property.

3 Even

accepting these amounts asthe outer limits of Arcturus’s potential liability, however,

the record contains no evidence establishing that Delta in fact has been damaged by

Arcturus in this or any other amount. 

On the facts of this case, the absence of such evidence constitutes a

nonamendable defect on the face of the record. See GMC Group, 304 Ga. App. at

183-184 (2). The trial court therefore did not abuse its discretion when itset aside the

default judgment against Arcturus on this ground.

3. Delta also challenges the trial court’s ruling that it lacks standing in this

case, contending that (i) there is no record evidence that it assigned its rights under

the California judgment; and (ii) regardless, the defendants’ claim in this regard calls

into question onlywhether Delta isthe real party-in-interest,which does not implicate

the validity of the action. The defendants respond, in relevant part, that they properly

3 The parties have identified no evidence of the value of the Roswell property. 

10
introduced evidence of Delta’s assignment, which establishesitslack of standing and

which, in turn, deprives the trial court of jurisdiction over this case. 

The current record contains no clear indication that the trial court has squarely

addressed whether (a) admissible evidence of Delta’s purported lack of standing was

properly before the court or (b) Delta has waived any challenge it may have to the

admissibility of any such evidence. Given our rulings above in Divisions 1 and 2, we

need not address – and we express no opinion on – either issue. We similarly express

no opinion on whether, assuming any such evidence was properly before the trial

court, the court was authorized to set aside the default judgment due to Delta’s

purported lack of standing. Compare Blackmon v. Tenet Healthsystem Spalding, Inc.,

284 Ga. 369, 371 (667 SE2d 348) (2008) (“[A] plaintiff with standing is a

prerequisite for the existence of subject matter jurisdiction.”), with Lewis v. Van

Anda, 282 Ga. 763, 765 (1) & n. 2 (653 SE2d 708) (2007) (holding that the trial court

did not err when it denied the defendant’s motion to set aside a judgment due to the

plaintiff’s purported lack of standing, on grounds that (i) the defendant had waived

her challenge to the plaintiff’sstanding, and (ii) the purported lack of standing did not

affect the trial court’s subject matter jurisdiction), Fulton County Bd. of Assessors v.

Calliope Properties, LLC, 312 Ga. App. 875, 878-879 (1) (720 SE2d 312) (2011) (a

11
challenge to a party’s standing to invoke the powers of the court can be waived), and

Snyder v. Carter, 276 Ga. App. 426, 427 (623 SE2d 241) (2005) (a court’s lack of

subject matter jurisdiction cannot be waived). For each of the above reasons, we

affirm the judgment of the trial court.

Judgment affirmed. Miller, P. J., and Andrews, J., concur.

12