SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, J.
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
March 2, 2018
In the Court of Appeals of Georgia
A17A2123. EMPLOYEES’ RETIREMENT SYSTEM OF DO-080
GEORGIA v. PENDERGRASS.
DOYLE, Presiding Judge.
This case arises from a suit filed by the Employees’ Retirement System of
Georgia (“ERSGA”) against Susan A. Pendergrass based on Pendergrass’s allegedly
improper acceptance of payments from ERSGA after the death of her mother, Eleanor
Brock. Although Pendergrass failed to appear, in response to ERSGA’s motion for
default judgment, the trial court dismissed the case, finding that the court did not have
personal jurisdiction over Pendergrass. ERSGA appeals, arguing that the trial court
erred by finding that venue was improper and that it lacked personal jurisdiction over
Pendergrass. For the reasons that follow, we reverse.
The record reveals that on September 9, 2016, ERSGA filed a complaint on an
account, contract, and money had and received against Pendergrass in the State Court
of Fulton County. The complaint alleged that Pendergrass wrongfully accepted
$6,433.56 in overpaid retirement funds after Brock’s death in April 2013.
Pendergrass, who ERSGA alleged was a resident of Auburn, Alabama, was served
personally with the complaint on September 15, 2016. Pendergrass failed to answer
the complaint or make a special appearance, and on January 4, 2017, ERSGA moved
for default judgment pursuant to OCGA § 9-11-55.
In response to the motion for default judgment, the trial court sua sponte
dismissed the complaint for lack of personal jurisdiction, finding that the record was
bereft of facts that would establish that Pendergrass, a non-resident of the State of
Georgia, was subject to suit in Fulton County. The trial court found that the acts
pleaded by ERSGA showing that Pendergrass had subjected herself to Georgia law
under the Long Arm Statute were not acts completed by Pendergrass on her own
behalf and instead were the acts of Brock.
1. ERSGA argues that the trial court erred by denying the motion for default
judgment.
2
(a) “Jurisdiction of the person is the power of a court to render a personal
judgment . . . in . . . a case[] and is obtained by appearance or by serving the proper
process in the manner required by law on persons or parties subject to be sued in a
particular action.”1 And “a court has a duty to inquire into its jurisdiction, upon its
own motion where there is doubt, and is authorized to dismiss a case against a
defendant where personal jurisdiction is lacking.”2 In its complaint, ERSGA stated
that Pendergrass “is currently a resident of Auburn, Alabama,” where ERSGA served
her. Thus, from the allegations of the complaint, because Pendergrass is a non-
resident, the trial court had to determine whether Georgia’s Long Arm Statute
allowed the trial court to assert personal jurisdiction over her to the same extent as a
resident of this State.3
The Supreme Court of Georgia has . . . explained that . . . Georgia
permits the assertion of long-arm jurisdiction over nonresident
defendants based on business conducted through postal, telephonic, and
1
(Punctuation omitted.) Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d
135) (1979).
2
B&D Fabricators v. D. H. Blair Investment Banking Corp., 220 Ga. App. 373,
375-376 (2) (469 SE2d 683) (1996).
3
See OCGA § 9-10-91 (“Grounds for exercise of personal jurisdiction over
nonresident”).
3
Internet contacts. As a result, when determining the limits of procedural
due process, we apply the following three-part test: Jurisdiction exists
on 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 notions
of fairness and substantial justice.4
ERSGA argued that because Pendergrass was designated as the beneficiary of
Brock for her retirement benefits, Pendergrass is subject to personal jurisdiction under
the Long Arm Statute. But being named as a beneficiary was, as the trial court
concluded, not an act undertaken by Pendergrass on her own behalf, and it therefore
does not constitute business transacted in this State by Pendergrass.5
ERSGA also argues that Pendergrass used a power of attorney to sign for
Brock on a single direct deposit authorization document in 2008 to have the benefits
deposited into the account from which she later withdrew them. The deposit form at
4
(Citations and punctuation omitted.) Sullivan v. Bunnell, 340 Ga. App. 283,
286 (1) (797 SE2d 499) (2017).
5
See id. at 287 (1) (holding that one individual’s conduct in a proceeding did
not subject another individual now acting as the first person’s power of attorney to
personal jurisdiction in this State).
4
issue, however, was signed by Pendergrass in 2008, approximately six years prior to
Brock’s death and, therefore, at least six years prior to any overpayment in the
account. Absent other circumstances, we may not have concluded that a single
instance of using a power of attorney to submit a document on behalf of another for
the benefit of another constitutes transacting business sufficient to establish long-arm
personal jurisdiction.6
Nevertheless, Pendergrass is alleged to have converted multiple years of
monthly overpayments by ERSGA that were not due to Brock or her beneficiaries
after Brock’s death from the account previously owned by Brock.7 Thus, by assisting
Brock in designating in this State the location to which the retirement funds should
be directed by ERSGA (a Georgia resident), and then by allegedly converting
overpayments made by the Georgia resident, Pendergrass has subjected herself to
personal jurisdiction in this State because the injury alleged to have occurred was
6
Compare with id. at 287-288 (1) (holding that an individual acting power of
attorney could be subject to the State’s jurisdiction for actions taken on behalf of
another).
7
Outside the allegations of the complaint, there is no competent evidence that
Pendergrass withdrew the money, but we construe the allegations of the complaint in
favor of ERSGA. (Punctuation omitted.) Weathers v. Dieniahmar Music, LLC, 337
Ga. App. 816, 819 (1), 823 (2) (b) (788 SE2d 852) (2016).
5
connected to the conduct she undertook in this State.8 Accordingly, the trial court
erred by denying the motion for default judgment and dismissing the case.
2. ERSGA also contends that the trial court erred by finding that venue was
improper in Fulton County. We agree. Because Pendergrass failed to appear, she
waived the issue of venue.9
Judgment reversed. Reese, J., concurs. Miller, P. J., concurs in judgment only.*
*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF
APEALS RULE 33.2 (a).
8
See, e.g., HTL Sp. Z O.O. v. Nissho Corp., 245 Ga. App. 625, 626-267 (538
SE2d 525) (2000) (holding that “purposeful activity by [the defendants] in Georgia
related either directly or indirectly to the subject of the suit” constituted sufficient
evidence to subject the defendants to long-arm personal jurisdiction). See Fischer v.
Ulysses, Case No. XX-XXXXXXX at 22-23 (Conn. Sup. Ct., decided Feb. 11, 2016)
(withdrawal of funds from a bank by a nonresident corporate officer constituted
business transactions subjecting the officer to personal jurisdiction for allegations of
fraud committed by her company) (persuasive authority).
9
See Padgett Masonry & Concrete Co. v. Peachtree Bank & Trust Co., 130 Ga.
App. 886, 887 (2) (204 SE2d 807) (1974).
6