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American College Connection, Inc. v. Berkowitz

Court of Appeals of Georgia

July 8, 2015

AMERICAN COLLEGE CONNECTION, INC.
v.
BERKOWITZ

Long Arm Statute. Fulton Superior Court. Before Judge Newkirk.

Deming, Parker, Hoffman, Campbell & Daly, Frank F. Pape, Jr., for appellant.

Chaiken Klorfein, Fredric Chaiken, for appellee.

DILLARD, Judge. Ellington, P. J., and McFadden, J., concur.

OPINION

Page 227

Dillard, Judge.

In this civil action, Jessica Berkowitz, a Georgia resident, filed suit against American College Connection, Inc. (" ACC" ), a company based primarily in Nebraska, seeking, inter alia, a declaratory judgment and damages for breach of contract. On interlocutory appeal, ACC contends that the trial court erred in denying its motion to [332 Ga.App. 868] dismiss Berkowitz's complaint for lack of personal jurisdiction. For the reasons set forth infra, we affirm.

At the outset, we note that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction.[1] Furthermore, when the motion is decided without an evidentiary hearing and based solely upon the written submissions of the parties, as it was here, " any disputes of fact must be resolved in the light most favorable to the party asserting the existence of personal jurisdiction, and we review the decision of the trial court de novo." [2]

Viewed in the light most favorable to Berkowitz, the record shows that ACC is a company incorporated in Nebraska that was created and is solely owned by former University of Nebraska swimming coach Richard Paine. Relying on Paine's extensive experience and contacts with swimming coaches across the country, ACC engages in the business of assisting student-athletes in gaining entrance to college and university athletic programs and in obtaining financial aid to support their educational goals. Generally, ACC obtains clients from referrals by parents of student-athletes, who have previously used the company's services. Prospective student-athlete clients can then use ACC's website to create a profile of their athletic and academic achievements. Thereafter, Paine and his staff use this information to create an admissions package that is then submitted on behalf of the student-athlete client to colleges and universities throughout the country. Additionally, during the entirety of the recruitment process, ACC continues advocating on their clients' behalf.

In 2007, Berkowitz, a resident of Georgia, was coaching swimming in the Atlanta area and operating a business that was similar to ACC's business, assisting student-athletes. That summer, Berkowitz and ACC began discussing collaboration and later began negotiating an agreement, under which Berkowitz would receive commissions for successfully referring student-athletes to ACC. Ultimately, on August 9, 2007, Berkowitz and ACC entered into an independent consultant/contractor agreement, which provided that Berkowitz would procure referrals of prospective student-athlete clients exclusively for ACC and that she would be compensated for such referrals. [332 Ga.App. 869] On that same day, Berkowitz also signed an agreement pledging that she would not compete with ACC or

Page 228

provide services for any of its competitors for a period of three years in the event her contractor agreement was terminated.

Over the course of the next six years, Berkowitz worked with ACC, recruiting student-athletes in Georgia and assisting in the development of clients' admission packages. However, in late 2013, Berkowitz, while still under contract with ACC, allegedly created a competing business. Consequently, on December 22, 2013, ACC disabled Berkowitz's access to her ACC e-mail account as well as the company's website. Shortly thereafter, on December 31, 2013, ACC contacted Berkowitz, via e-mail, informed her that she was in violation of the noncompete agreement, and demanded that she cease all contact with ACC clients and all work in direct competition with ACC.

On January 6, 2014, Berkowitz filed suit against ACC in the Superior Court of Fulton County. In her complaint, she sought a declaratory judgment that the noncompete agreement was unenforceable under Georgia law and damages (in the form of unpaid commissions) for ACC's alleged breach of the independent consultant/contractor agreement. Subsequently, ACC filed an answer and a motion to dismiss, arguing that the trial court lacked personal jurisdiction because ACC had not transacted business in the State as contemplated by Georgia's Long Arm Statute.[3] Berkowitz filed a response, and the trial court held a nonevidentiary hearing on the ...


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