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Sullivan v. Bunnell

Court of Appeals of Georgia, Fifth Division

February 21, 2017

SULLIVAN
v.
BUNNELL et al.

          DILLARD, P. J., RICKMAN and REESE, JJ.

          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 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 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 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 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 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 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]

         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 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 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]

         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 ...


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