Becky Prescott Sullivan v. Karen Bunnell

FIFTH DIVISION
DILLARD, P. J.,
RICKMAN and REESE, 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
February 21, 2017
In the Court of Appeals of Georgia
A16A1619. SULLIVAN v. BUNNELL et al.
DILLARD, Presiding Judge.
Becky Sullivan appeals from the trial court’s grant of Karen Bunnell’s motion
to dismiss an action to hold her in contempt of a divorce decree. Becky filed this
action against Bunnell individually and in her capacity as agent for her father,
Timothy Sullivan, after first filing the identical suit solely against Timothy.
Specifically, Becky contends that the trial court erred in determining that (1) it lacked
personal jurisdiction over Bunnell in both her individual capacity and her capacity as
an agent, and (2) it lacked subject-matter jurisdiction to consider Bunnell in contempt
or compel her compliance with the divorce decree that was entered into between
Becky and Timothy.1 For the foregoing reasons, we reverse the trial court’s grant of
Bunnell’s motion to dismiss.
The record reflects that after 23 years of marriage, Becky and Timothy Sullivan
divorced in 2012. In the midst of the divorce, Timothy moved to California, where
his daughter, Karen Bunnell, resided. Thereafter, Timothy hired counsel in Georgia
to represent him in ongoing settlement negotiations, and Bunnell assisted him with
e-mail and telephone conversations to his counsel. The divorce was made final in
May 2012, with Becky and Timothy entering into various (and related) settlement
agreements. It is undisputed that one such agreement provided that Timothy would
send his Teacher’s Retirement System of Georgia (TRS) payments to Becky.
In June 2012, Timothy executed a power of attorney, which appointed Bunnell
to act as his agent. At some point after executing the power of attorney, Timothy was
put under care and supervision for dementia, and he was deemed unable to make
1
Becky also enumerates as error the trial court’s failure to join Bunnell as a
necessary party to the action, but she notes that the court did not address the merits
of that argument “because it dismissed for lack of jurisdiction instead.” We do not
consider this enumeration of error because “[i]ssues which have not been ruled on by
the trial court may not be raised on appeal.” Ga. Dept. of Nat. Res. v. Coweta Cnty.,
261 Ga. 484, 485 (405 SE2d 470) (1991); accord Velkey v. Grimes, 214 Ga. 420, 420
(105 SE2d 224) (1958); Shennett v. Piggly Wiggly So., Inc., 197 Ga. App. 502, 504
(5) (399 SE2d 476) (1990).
2
sound financial and medical decisions on his own. Then, in July 2015, in a letter from
counsel by and through Bunnell acting on behalf of her father as power of attorney,
Becky was informed that Timothy could no longer send his TRS payments because
he was incapacitated by Alzheimer’s Disease, the payments were necessary to
maintain his placement in an assisted-living facility, and the failure to send the
payments was not a willful violation of the parties’ divorce decree. Becky responded
with a letter demanding compliance with the terms of the parties’ divorce agreement.
Thereafter, Becky filed a motion for attachment of contempt against Timothy
on August 27, 2015, for his failure to send the TRS payments. Then, in October 2015,
she amended the motion to add Bunnell both individually and in her capacity as a
fiduciary for Timothy, and Bunnell was personally served by substitute service in
both capacities. Bunnell, who is a resident of California, filed a limited answer by
special appearance and a motion to dismiss for lack of personal and subject-matter
jurisdiction.
Following a hearing on the motion to dismiss, at which Bunnell’s attorney
made a special appearance on her behalf, the trial court granted the motion to dismiss
3
after finding that it lacked both personal and subject-matter jurisdiction over Bunnell.
This appeal follows.2
1. Becky first argues that the trial court erred in finding that it lacked personal
jurisdiction over Bunnell both in her individual capacity and in her capacity as power
of attorney on her father’s behalf. We agree.
A defendant who files a motion to dismiss for lack of personal jurisdiction has
the burden of proving same.3 In considering whether this burden was met by Bunnell,
we first turn to Georgia’s Long Arm Statute, which allows the courts of this state to
exercise personal jurisdiction over a nonresident defendant “if in person or through
an agent, he or she . . . [t]ransacts any business with this [S]tate.”4 In interpreting this
2
Becky originally filed her appeal as an application for interlocutory review
before the Supreme Court of Georgia, which then transferred the case to this Court.
We granted the application because the trial court’s grant of Bunnell’s motion to
dismiss was subject to direct appeal. See OCGA § 9-11-54 (b). We further note that
the action for contempt against Timothy remains pending below, and although he was
included in the style of the case on appeal, Timothy is not a party to this appeal
because it does not concern the action against him personally.
3
Am. College Conn., Inc. v. Berkowitz, 332 Ga. App. 867, 868 (775 SE2d 226)
(2015); see also Easterling v. Easterling, 231 Ga. 90, 90 (1) (200 SE2d 267) (1973)
(“In a plea to the jurisdiction[,] the burden is upon the defendant to establish the
averments of his plea.”).
4
OCGA § 9-10-91 (1).
4
statute, the Supreme Court of Georgia has explained that it “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
procedural due process.”5 Indeed, in so holding, our Supreme Court overruled prior
cases that failed to “accord the appropriate breadth to the construction of the
‘transacting any business’ language” of the Long Arm Statute.6
The Supreme Court of Georgia has also explained that nothing in the Long
Arm Statute “requires the physical presence of the nonresident in Georgia or
minimizes the import of a nonresident’s intangible contacts with the State.”7 To the
contrary, Georgia permits the assertion of long-arm jurisdiction over nonresident
defendants based on “business conducted through postal, telephonic, and Internet
5
Innovative Clinical & Consulting Servs. v. First Nat’l Bank of Ames, 279 Ga.
672, 675 (620 SE2d 352) (2005) (punctuation omitted); accord Weathers v.
Dieniahmar Music, LLC, 337 Ga. App. 816, 819 (788 SE2d 852) (2016); Berkowitz,
332 Ga. App. at 869-70.
6
Innovative Clinical & Consulting Servs., 279 Ga. at 676; accord Weathers,
337 Ga. App. at 819; Berkowitz, 332 Ga. App. at 870.
7
Innovative Clinical & Consulting Servs., 279 Ga. at 675; accord
Amerireach.com, LLC v. Walker, 290 Ga. 261, 270 (2) (719 SE2d 489) (2011);
Weathers, 337 Ga. App. at 820; Berkowitz, 332 Ga. App. at 871.
5
contacts.”8 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.9
The first two prongs are analyzed to determine whether “a defendant has
established the minimum contacts with the forum state necessary for the exercise of
jurisdiction.”10 If such minimum contacts exist, we then analyze the third prong to
consider whether “the exercise of jurisdiction is ‘reasonable’—that is, to ensure that
8
Berkowitz, 332 Ga. App. at 871 (emphasis and punctuation omitted); accord
ATCO Sign & Lighting Co., LLC v. Stamm Mfg., Inc., 298 Ga. App. 528, 534 (1) (680
SE2d 571) (2009); see also Home Depot Supply, Inc. v. Hunter Management LLC,
289 Ga. App. 286, 289 (656 SE2d 898) (2008) (holding that “even when a
nonresident has no physical presence in Georgia, intangible contacts, such as
telephone communications, can be sufficient to establish ‘minimum contacts’ which
meet the constitutional standard for the exercise of personal jurisdiction”).
9
Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Walker, 290
Ga. at 269 (2); Aero Toy Store v. Grieves, 279 Ga. App. 515, 517-18 (1) (631 SE2d
734) (2006).
10
Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Weathers, 337
at 820 (1); ATCO Sign & Lighting, 298 Ga. App. at 534 (1).
6
it does not result solely from ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.”11 To be
sure, the application of the minimum-contacts rule will “vary with the quality and
nature of the defendant’s activity.”12 Nevertheless, it is essential in each case that
there be “some act by which the defendant purposefully avails [herself] of the
privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.”13 With these guiding principles in mind, we turn now to
Becky’s contentions that the trial court erred in determining that it lacked personal
jurisdiction over Bunnell in either her individual or fiduciary capacity.
In her motion to dismiss, Bunnell argued that there were “no factual allegations
of . . . business or sufficient contacts with Georgia so as to warrant jurisdiction” over
her in either capacity. Suffice it to say, Becky disagreed with this assertion, alleging
that, during the pendency of the divorce proceedings, Bunnell (1) “was intimately
11
Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Weathers, 337
at 820 (1); ATCO Sign & Lighting, 298 Ga. App. at 534 (1).
12
Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Catholic
Stewardship Consultants, Inc. v. Ruotolo Associates, Inc., 270 Ga. App. 751, 757 (1)
(608 SE2d 1) (2004); Stuart v. Peykan, Inc., 261 Ga. App. 46, 49 (1) (581 SE2d 609)
(2003).
13
Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Ruotolo
Associates, Inc., 270 Ga. App. at 757 (1); Stuart, 261 Ga. App. at 49 (1).
7
aware of the details and contents of the settlement documents”; (2) “hired Georgia
counsel and actively engaged in renegotiating the settlement terms prior to the entry
of the [f]inal [d]ecree”; and (3) had several exchanges with Georgia counsel,
subsequent to the entry of the final divorce decree, about Becky’s claims of
Timothy’s non-compliance.
We decline Becky’s invitation to subject Bunnell to the personal jurisdiction
of this state based on Timothy’s contempt of the divorce decree. Whatever
involvement Bunnell may have had in the divorce proceedings between Becky and
Timothy, it strains credulity to suggest that this somehow subjects her to personal
jurisdiction as a result of Timothy’s contempt of the divorce decree. Indeed, the
alleged violation of the divorce decree forms the foundation for the cause of action,
not the negotiations that resulted in the final decree.14
14
See Berkowitz, 332 Ga. App. at 870 (noting that jurisdiction exists on the
basis of transacting business in Georgia if, inter alia, the cause of action arises from
or is connected with such act or transaction); Aero Toy Store, 279 Ga. App. at 517-18
(1) (same); cf. Noorani v. Sugarloaf Mills Ltd. Partnership of Ga., 308 Ga. App. 800,
804 (a), 804 (2) (b) (708 SE2d 685) (2011) (holding that personal jurisdiction over
appellant was proper when he personally guaranteed rent payments that were subject
of dispute, and “the direct connection between the loan, guaranty, [appellant’s]
activities [in Georgia] and [the plaintiff’s] claim under the guaranty [was] so obvious
as to require no elaboration”); Ga. R.R. Bank & Trust Co. v. Barton, 169 Ga. App.
821, 823 (315 SE2d 17) (1984) (“The direct connection between the execution of the
notes and appellant’s suit for collection is so obvious as to require no elaboration.”).
8
That said, Becky’s motion for contempt also alleges that Bunnell, acting as
Timothy’s agent, “hired Georgia counsel to draft and send correspondence . . .
indicating that due to changes in his health and residence, he would no longer be
sending any TRS payments to [Becky] effective August, 2015.” And in her response
to Bunnell’s motion to dismiss, Becky further alleges that Bunnell has, for some time,
been involved in communications with her regarding Timothy’s noncompliance with
the TRS-terms of the divorce decree and acted to reduce the TRS payments by
modifying deductions. Then, in July 2015, Bunnell notified Becky that the TRS
payments would cease altogether.
These post-divorce allegations sufficiently allege that Bunnell has done some
act or consummated some transaction in this state, although she did so on behalf of
her father as power of attorney. But, at least as to individuals who act as agents or
fiduciaries on behalf of a corporation, our Supreme Court has concluded that “[t]he
status of . . . individual defendants as employees or officers does not somehow
insulate them from jurisdiction.”15 Indeed, the status of an agent does not “necessarily
mean that the individual defendants did not purposefully avail themselves of the
privilege of conducting activities in Georgia such that the minimum contacts
15
Amerireach.com, LLC, 290 Ga. at 267 (2) (punctuation omitted).
9
mandated by constitutional due process were not present.”16 For example, employees
of a corporation that is subject to the personal jurisdiction of the courts of the forum
state “may themselves be subject to jurisdiction if those employees were primary
participants in the activities forming the basis of jurisdiction over the corporation.”17
Here, Bunnell is alleged to have been a primary participant in the activities at
issue—i.e., the nonpayment of TRS payments in violation of Becky and Timothy’s
divorce decree.18 And Becky’s cause of action for contempt unquestionably arises
from those activities.19 Furthermore, at least two other states have determined that
their courts could properly assert personal jurisdiction over a non-resident individual
16
Id.17
Id. at 267-68 (2) (punctuation omitted).
18
Id. at 269-70 (2) (holding that allegations supported finding that individual
defendants were primary participants in defendant corporation’s transaction of
business in Georgia when it was alleged that the individual defendants directly
facilitated transaction of business that resulted in unlawful conduct set forth in
complaint).
19
See Noorani, 308 Ga. App. at 804 (2) (a), 804 (2) (b) (“[T]he direct
connection between the loan, guaranty, [appellant’s] activities [in Georgia] and [the
plaintiff’s] claim under the guaranty [was] so obvious as to require no elaboration”);
Barton, 169 Ga. App. at 823 (“The direct connection between the execution of the
notes and appellant’s suit for collection is so obvious as to require no elaboration.”).
10
who acted as a power of attorney.20 Indeed, one such court noted that “[a]n agency
relationship does not shield an individual from jurisdictional contacts with a state,
only from possible liability flowing from the activities conducted within the forum
state.”21 We find this reasoning persuasive and consistent with our own jurisprudence
in this area of the law. In our view, the assertion of personal jurisdiction over an
individual who acted as power of attorney does not offend traditional notions of fair
play and substantial justice when, as an attorney in fact, Bunnell took advantage of
the laws of the State of Georgia to exercise control over her father’s assets (the TRS
payments) and purposefully directed her activities toward a Georgia resident
(Becky).22
20
See Catauro v. Goldome Bank for Sav., 189 AD2d 747, 748 (N.Y. App. Div.
1993); Smith v. Lanier, 998 SW2d 324, 334 (Tex. App. 1999). But see Cohn v.
Woolin, 971 So2d 868, 871-72 (Fla. Dist. Ct. App. 2007) (remanding to trial court for
additional findings as to personal jurisdiction after reversing determination that court
had personal jurisdiction based upon allegation that son brought a lawsuit in his
mother’s name via power of attorney).
21
Smith, 998 SW2d at 334-35.
22
See id. (holding that assertion of personal jurisdiction over non-resident
individual who acted as power of attorney did not offend traditional notions of fair
play and substantial justice when, as attorney in fact, she took advantage of the laws
of the state to exercise control over her father’s assets, purposefully directed her
activities toward state residents and institutions, and was on notice that her father’s
property might be subject to the jurisdiction of the state’s probate courts); see also
11
Accordingly, for all of the foregoing reasons, the trial court erred in
determining that it could not exercise personal jurisdiction over Bunnell.
2. Sullivan further argues that the trial court erred in holding that it lacked
subject-matter jurisdiction to hold Bunnell in contempt. Once again, we agree.
Although the parties and trial court framed this issue in the context of lacking
subject-matter jurisdiction, this was more properly an argument that Becky’s attempt
to hold Bunnell in contempt failed to state a claim upon which relief could be
granted.23 Indeed, a superior court has the authority to “entertain an action for
contempt of a Georgia divorce decree,”24 and subject-matter jurisdiction is “the power
to deal with the general abstract question, to hear the particular facts in any case
Catauro, 189 AD2d at 748 (holding that assertion of personal jurisdiction over non-
resident individual who acted as power of attorney was appropriate when he
transacted business to withdraw funds from joint bank account).
23
Cf. Pinnacle Benning LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609,
612 (724 SE2d 894) (2012) (“[W]e recognize that in the case sub judice, [appellee’s]
motion to dismiss, the trial court’s order granting same, and the parties’ arguments
on appeal all frame the issues in the context of a failure to state a claim upon which
relief can be granted[,] [b]ut . . . [appellant’s] claims were in actuality properly
dismissed for a lack of subject-matter jurisdiction[.]”).
24
Crutchfield v. Lawson, 294 Ga. 407, 409 (754 SE2d 50) (2014).
12
relating to this question.”25 Of course, jurisdiction of the subject matter “does not
mean simply jurisdiction of the particular case then occupying the attention of the
court, but jurisdiction of the class of cases to which that particular case belongs.”26
Therefore, the question before the trial court—a superior court with jurisdiction to
entertain actions for contempt of Georgia divorce decrees27—was whether Becky
25
Id. (punctuation omitted); accord Melton v. Jenkins, 50 Ga. App. 615, 615
(1) (178 SE 754) (1935).
26
Crutchfield, 294 Ga. at 409 (punctuation omitted); accord Zeagler v.
Zeagler, 192 Ga. 453, 456 (15 SE2d 478) (1941).
27
See supra footnote 24 and accompanying text.
13
failed to state a claim against Bunnell upon which relief could be granted,28 not
whether the court lacked subject-matter jurisdiction.29
A motion to dismiss for failure to state a claim upon which relief can be
granted will only be granted when it is shown with certainty that “the plaintiff would
not be entitled to relief under any state of facts that could be proven in support of his
28
See Crowley v. Tedesco, 687 A2d 194 (Table) (4) (Del. 1996) (noting
petition that alleged “[party] had violated a court order” was dismissed for failure to
state a claim upon which relief can be granted when court found that no such order
had been entered, meaning that “there was no basis to hold [party] in contempt”);
Joseph v. Bureau of Corrections, Civ. No. 2009–0055, 2011 WL 1304605, at *5 (V.I.
March 7, 2011) (“[T]he [appellee] could not be bound by the order placing terms and
conditions on the [appellant]. If the [appellee] cannot be bound by the order, then the
order is not valid as it applies to the [appellee]—even if the order is valid with respect
to [the appellant]—and [appellee] cannot be in contempt of that order. Therefore, we
cannot draw a reasonable inference that [appellant] has a plausible claim for relief
and, thus, we affirm the trial court’s dismissal of the contempt count for failure to
state a claim.” (citation omitted)).
29
Cf. Crutchfield, 294 Ga. at 409 (“[T]he question before us does not concern
what type of court in which the entire class of contempt cases must be brought;
instead, it deals with the question of which superior court may properly consider this
particular case. This latter consideration is one of venue, not subject matter
jurisdiction.”).
14
or her claim.”30 And we review a trial court’s ruling on a motion to dismiss de novo.31
Moreover, in deciding a motion to dismiss, “all pleadings are to be construed most
favorably to the party who filed them, and all doubts regarding such pleadings must
be resolved in the filing party’s favor.”32
In the case sub judice, Becky asserted that the trial court could hold Bunnell
in contempt of the divorce decree under OCGA § 15-1-4 (a) (3), which provides that
the power of a court to punish for contempt of court extends to, inter alia,
“[d]isobedience or resistance by any officer of the courts, party, juror, witness, or
other person or persons to any lawful writ, process, order, rule, decree, or command
of the courts[.]” Although Bunnell argued that she could not be held in contempt of
a divorce decree to which she was not a party, in Georgia, the violation of a court’s
order by one who was not a party to the proceedings can be punished as contempt if
“it is alleged and proved that the contemnor had actual notice of the order for
30
Tate v. Kia Autosport of Stone Mtn., Inc., 273 Ga. App. 627, 627-28 (616
SE2d 112) (2005) (punctuation omitted); accord Common Cause/Ga. v. Campbell,
268 Ga. App. 599, 601 (2) (602 SE2d 333) (2004).
31
Tate, 273 at 628; Campbell, 268 Ga. App. at 601 (2).
32
Jordan v. City of Atlanta, 283 Ga. App. 285, 285 (641 SE2d 275) (2007)
(punctuation omitted); accord Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10)
(1997).
15
disobedience of which he is sought to be punished.”33 And, as recognized by our
Supreme Court, “[m]ost jurisdictions also require that the nonparty be in privity with,
aid or abet, or act in concert with the named party in acts constituting a violation of
the order.”34 Thus, one who acts as the representative of another with actual notice of
the order that has allegedly been violated may be held in contempt.35
33
Bootery, Inc. v. Cumberland Creek Props., Inc., 271 Ga. 271, 272 (2) (517
SE2d 68) (1999) (punctuation omitted).
34
Id.; see Murphy v. Murphy, 330 Ga. App. 169, 176 (6) (a) (ii) (767 SE2d 789)
(2014) (“The violation of a court’s order by one who was not a party to the
proceedings can be punished as a contempt if the contemnor had actual notice of the
order and is in privity with, aided and abetted, or acted in concert with the named
party in acts constituting a violation of the order.”); see also United States v.
Kirschenbaum, 156 F3d 784, 794 (III) (D) (7th Cir. 1998) (Manion, J.) (“A district
court may not enjoin non-parties who are neither acting in concert with the enjoined
party nor are in the capacity of agents, employees, officers, etc. of the enjoined
party.”); Blockowicz v. Williams, 675 FSupp2d 912, 914 (N.D. Ill. 2009) (“[A] court
may find a nonparty in contempt if that person has actual knowledge of the court
order and either abets the party named in the order or is legally identified with him.”
(punctuation omitted)).
35
See Murphy, 330 Ga. App. at 176 (6) (a) (ii) (holding that evidence was
sufficient to hold mother’s attorney in contempt when attorney had actual notice of
order and “acted as [mother’s] representative” when he engaged in an action that
violated order); cf. Segal v. Dorber, 250 Ga. App. 688, 689 (1) (552 SE2d 873)
(2001) (holding that attorney could not be held in contempt for client’s failure to pay
fee as ordered by court because trial court lacked authority to hold attorney in
contempt “for violating an order which was not directed at him, at least in the absence
of evidence he caused or contributed to [the client’s] failure”).
16
Here, it is alleged that Bunnell, acting as Timothy’s power of attorney with
knowledge of the relevant order, aided in implementing the non-payment of TRS
funds to Becky in violation of the former couple’s divorce decree and settlement
agreement.36 Thus, Becky asserted sufficient facts to withstand a motion to dismiss
for failure to state a claim upon which relief could be granted, and the trial court erred
in granting the motion to dismiss under this argument.
Accordingly, for all of the foregoing reasons, we reverse.
Judgment reversed. Rickman and Reese, JJ., concur.
36
See supra footnote 35.
17