Latium U.S.A. Trading v. Smith

899 S.E.2d 324

LATIUM USA TRADING, LLC

v.SMITH.

A23A1262

Court of Appeals of Georgia.

March 1, 2024

Reconsideration Denied March 28, 2024

Charles Hale Van Horn, Atlanta, Jeremy Leonard Kahn; for Appellant.

Catherine Gibson, Atlanta, for Appellee.

Miller, Presiding Judge.

In this contract case involving the sale of allegedly defectively installed windows, the seller, Latium USA Trading, LLC ("Latium USA") seeks review of the trial court’s entry of a default judgment in favor of the buyer, Janay Smith. On appeal, Latium USA argues that (1) the judgment is void for lack of personal jurisdiction; (2) the trial court erred by denying its motion to open the default; (3) the trial court awarded speculative damages unsupported by the evidence; and (4) the trial court erred by failing to apportion fault and damages. Upon a thorough review of the record, we reverse the trial court’s award of loss of use damages because the method used to calculate them was improper. We reject the remainder of Latium USA’s arguments and otherwise affirm the trial court’s, judgment.

According to Smith’s complaint, Latium USA is a Delaware limited liability company that also goes by the name "All Seasons" or "Four Seasons." In August 2020, Smith contacted Four Seasons to purchase specialty windows for sunrooms that she, was building at her house in Atlanta, Georgia, in the place of two existing decks. Four Seasons referred Smith to their installer, 2HIRE US, LLC ("2HIRE"), and 2HIRE came to Smith’s house to assess the work and issue an invoice. Smith entered into a contract with 2HIRE, wherein various construction and installation work was supposed to be completed on the sunrooms using windows provided by Four Seasons, and Smith received invoices from 2HIRE to complete such work. By 2022, after Smith paid the full amount due of $85,365.20, however, her decks had been demolished without work on the sunrooms being substantially near completion, no windows had been delivered to her house, and 2HIRE and Latium USA failed to respond to her subsequent notice of construction defects.

Smith filed the instant complaint, alleging claims of breach of contract and negligence against Latium USA and 2HIRE as well as a claim for fraud against Latium USA, 2HIRE, and 2HIRE’s manager Keith Kelchner, and she also sought attorney fees. Smith served Kelchner and 2HIRE, but they failed to timely respond to the complaint. Smith also served Latium USA via its registered agent in Wilmington, Delaware, and it also failed to timely respond to the complaint. Smith therefore moved for a default judgment against all defendants. In January 2023, two months after the time to file the answer had lapsed, Latium USA filed a motion to open default, arguing that the trial court lacked personal jurisdiction over it because it did not conduct any business in the state of Georgia and did not have the requisite minimum contacts with Georgia. Following a hearing, the trial court denied Latium USA’s motion to open default and granted Smith’s motion for a default judgment against all defendants. The trial court first concluded that jurisdiction was proper over Latium USA and that Latium USA was a proper party to the suit. The trial court then entered judgment in the amount of $209,793.23, jointly and severally against 2HIRE, Latium USA, and Kelchner, with said damages consisting of the $85,365.20 that Smith had paid, $11,100 in damages to her property, $599 in expert fees, $12,947.75 in attorney fees, and $110,784.23 for the loss of use of her property, This appeal followed.¹

1. Latium USA first argues that the default judgment against it must be set aside because it is void on its face for lack of personal jurisdiction. Latium USA argues that it is not a resident of Georgia and that none of the provisions of Georgia’s long-arm statute apply to give the trial court jurisdiction over it. We determine that the trial court properly exercised personal jurisdiction over Latium USA.

[1] "A judgment void on its face may be attacked in any court by any person." OCGA § 9-11-60 (a). "The Supreme Court of Georgia has defined the term ‘void on its face,’ as used in this subsection to mean Those judgments which lack either personal or subject matter jurisdiction.’ Therefore, collateral attacks on judgments are limited to circumstances where the trial court lacks either subject matter or personal jurisdiction." (Citations and punctuation omitted.) Walker v. Blackwell, 259 Ga. App. 324, 577 S.E.2d 24 (2003).

[2, 3] "During a hearing on the determination of jurisdiction, in personam jurisdiction must be proven by a preponderance of the evidence." (Citation omitted.) Carter v. Heritage Comer, Ltd., 320 Ga. App. 828, 830 (2) (b), 741 S.E.2d 182 (2013). "A defendant moving to dismiss for lack of personal jurisdiction bears the burden of proving the absence of jurisdiction." (Citation omitted.) LG Chem, Ltd. v. Lemmerman, 361 Ga. App. 163, 863 S.E.2d 514 (2021).

[4–10] Under Georgia’s long-arm statute, a Georgia court "may exercise personal jurisdiction over any nonresident … as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enu- merated in this Code section, in the same manner as if he or she were a resident of this state, if in person or through an agent, he or she [t]ransacts any business within this state[.]" OCGA § 9-10-91 (1). This subsection "grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State…. to the maximum extent permitted by due process." (Citation and punctuation omitted.) Innovative Clinical is Consulting Svcs., LLC v. First Nat, Bank of Ames, 279 Ga. 672, 675, 620 S.E.2d 352 (2005).

Regularly doing or soliciting business in the state, deriving substantial revenue from goods or services in the state, having agents or representatives or officers or employees in the state, maintaining an office in the state, and having subsidiaries or business affiliates in the state are factors most directly relevant to the existence of general jurisdiction. Factors such as regularly doing or soliciting business, or deriving substantial revenue from goods or services, in this state may, however, also be relevant in determining whether sufficient minimum contacts exist for the purpose of supporting specific jurisdiction, where such activities relate to the suit at hand.

(Citations omitted.) Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 521-522 (1), 631 S.E.2d 734 (2006).

In determining the boundaries of due process, we must apply the following three-part test: [j]urisdiction exists oh the basis of transacting business in this state if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.

We look to the first two factors to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. If such minimum contacts are found, we move to the third prong of the test to consider whether the exercise of jurisdiction is reasonable—that is, to ensure that it does not result solely from random, fortuitous or attenuated contacts. Our Supreme Court has explained that nothing in paragraph (1) of the Long Arm Statute requires the physical presence of the non-resident in Georgia or minimizes the import of a nonresident’s, intangible contacts with the State. And Georgia allows the assertion of long-arm jurisdiction over non-resident defendants based on business conducted through postal, telephonic, and Internet contacts.

(Citations and punctuation omitted.) Pascarelli v. Koehler, 346 Ga. App. 591, 593-594 (1), 816 S.E.2d 723 (2018).

[11, 12] In this case, Smith argued that personal jurisdiction was proper over Latium USA because of the information provided on its website and its actions over the course of her dealings regarding her sunroom. Smith testified at the hearing that she found Latium USA through their advertisements on the internet. Smith presented evidence of Latium USA’s Facebook page, which states that it helps customers "[f]rom initial design and consultation all the way through the installation of their new space[.]"² Latium USA’s website stated "[t]he Latium USA group of companies has a presence in every state and province throughout the USA and Canada serving more than 5,000 dealers, franchises and independent contractors." Smith testified that she contacted Four Seasons over the phone, and they referred her to 2HIRE, whom they referred to as their local "franchise/dealer." In the course of Smith’s dealings with 2HIRE, Kelchher told her that he "was just the installer," that he didn’t make the glass or design the glass, and that he just sent the measurements to Latium USA and they would send the windows and the equipment. After Smith encountered problems with 2HIRE, she reached out to Latium USA; and their customer affairs department reached out to her and visited her property. The customer affairs representative told her that "he would make sure that 2HIRE did the right thing, that they would either bring a new team in to fix it within 90 days or he would make sure that [Kelchner] gave [her her] money back."

[13] As an initial matter, Latium USA argues at length on appeal that it is a separate corporate entity from Four Seasons, which it argues is a ‘ subsidiary of Latium USA, and that the trial court therefore erred to the extent it attributed any actions by Four Seasons to Latium USA. On this question, however, there was competing indications in the record. Smith’s complaint, the allegations in which stand admitted at this juncture due to the default, alleged that Four Seasons was merely a trade name of Latium USA, and, in response, Latium...