YP, LLC Et Al. v. RISTICH
341 Ga. App. 381
| Ga. Ct. App. | 2017Background
- YP, LLC and YP Advertising & Publishing, LLC sued Peter Ristich (d/b/a Top Seal Coating) for breach arising from Yellow Pages advertising; Ristich did not answer or participate in discovery.
- The trial court sua sponte dismissed the complaint without prejudice for lack of personal jurisdiction under Georgia’s Long Arm Statute and for insufficient service of process.
- YP appealed the dismissal; Ristich did not appear in the appeal.
- The contract between the parties contained a forum-selection clause consenting to personal jurisdiction in DeKalb County Superior Court or the U.S. District Court for the Northern District of Georgia.
- YP produced a return of personal service showing Ristich was personally served in Ohio.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court had personal jurisdiction over Ristich | Forum-selection clause in the parties’ contract waived any jurisdictional objection | (No active argument below; trial court treated jurisdiction as lacking under Long Arm) | Court reversed: jurisdiction is premised on Ristich’s contractual waiver; trial court erred to dismiss sua sponte under Long Arm statute |
| Whether forum-selection clause is enforceable | Clause is prima facie valid and enforceable | (Burden on Ristich to show clause unreasonable; he did not) | Enforcement presumed; Ristich must show unreasonableness, which he did not; court could not assert that defense sua sponte |
| Whether service of process was insufficient | Return of service is prima facie proof of personal service in Ohio | Trial court evaluated service under Long Arm requirements and found deficient | Court held YP made unrebutted prima facie showing of personal service; dismissal for insufficient service was error |
| Whether trial court may sua sponte raise affirmative defenses (jurisdiction/service) on defendant’s behalf | Such defenses can be waived and are defendant’s to raise | Trial court raised them sua sponte | Court held trial court lacked authority to assert on defendant affirmative defenses that defendant could waive; reversal and remand |
Key Cases Cited
- Haygood v. Head, 305 Ga. App. 375 (review of sua sponte dismissal de novo)
- Williams v. Fuller, 244 Ga. 846 (definition of personal jurisdiction)
- B&D Fabricators v. D. H. Blair Investment Banking Corp., 220 Ga. App. 373 (court may dismiss if personal jurisdiction lacking)
- C & S Capital Corp. v. Sweetwater Homes, Inc., 191 Ga. App. 571 (contractual waiver of jurisdiction via forum clause)
- Lease Finance Group v. Delphi, Inc., 266 Ga. App. 173 (forum clauses enforceable unless shown unreasonable)
- Equity Trust Co. v. Jones, 339 Ga. App. 11 (forum-selection clauses prima facie valid)
- Focus Healthcare Medical Center v. O’Neal, 253 Ga. App. 298 (trial court lacks authority to assert waived affirmative defenses)
- Yelle v. U.S. Suburban Press, 216 Ga. App. 46 (return of service is prima facie proof of personal service)
- Merry v. Robinson, 313 Ga. App. 321 (challenge to service can be waived by defendant)
- Oasis Goodtime Emporium I, Inc. v. Cambridge Capital Group, Inc., 234 Ga. App. 641 (same)