WALDON et al.
ALGER et al.
MILLER, P. J., RICKMAN and REESE, JJ.
Waldon, Glenda Waldon, Inez Waldon Howard, and Sandra Waldon
Dunn (collectively, "the Appellants") appeal from
the trial court's dismissal of their complaint, wherein
they sought injunctive relief and damages from Carla Alger,
John Alger (collectively "the Appellees"), and
Monte Graham. The Appellants alleged claims of breach of
fiduciary duty, deprivation of personal property, and willful
damage to personal property, and sought attorney fees. For
the reasons set forth infra, we affirm in part, vacate in
part, and remand this case for further proceedings.
in favor of the Appellants,  the record shows the following
salient facts. As of 2015, Charles Waldon and Peggy Waldon
("the Waldons") had been married for over 68 years.
Charles Waldon ("Waldon") is the father of Carla
Alger ("Alger"), Glenda Waldon, Inez Waldon Howard
("Howard"), and Sandra Waldon Dunn
("Dunn"). Alger testified that three trusts were
created in Florida for the benefit of the Waldons: "the
Charles R. Waldon Revocable Trust[;] the Peggy Faye Waldon
Revocable Trust[;] and the Waldon Family Living Trust."
On April 1, 2009, Alger and Peggy Waldon were named
co-trustees for the Charles R. Waldon Revocable Trust. On
April 2, 2015, the Waldons and Alger were named as
co-trustees for the Waldon Family Living Trust.
2015, Alger petitioned a Florida court to "determine
[the] capacity" of the Waldons and to establish a
guardianship over them, if necessary. By orders dated
September 22, 2015, the Florida court determined Waldon had
limited capacity, and it appointed Elena George, a
"professional guardian[, ]" as the "[l]imited
guardian of person and property" over Waldon.
record contains a transcript of a hearing which occurred on
August 29, 2018 in the 11th Judicial Circuit Court, located
in Miami-Dade County, Florida, to appoint a successor
guardian for Waldon. At the hearing, George testified that on
or about October 15, 2015, Dunn called her (George) to ask if
Waldon could go to lunch with her (Dunn) and Glenda Waldon.
George testified that she agreed, if Waldon wanted to go to
lunch with them. Waldon left his home, and George did not
hear from him again until three days later. At that time,
Waldon told George that he was in Georgia to
"winterize" his cabin and that he would "be
right back." Waldon did not return to Florida.
November 13, 2015, the Superior Court of Walker County,
Georgia issued an ex parte order enjoining the Appellees,
John and Carla Alger, from threatening or contacting the
Appellants and attempting to remove Waldon from Georgia. On
the same day, the Appellants filed a verified petition for
injunctive relief and damages against the Appellees and Monte
Meanwhile, a Florida court issued an order directing Howard,
Glenda Waldon, and Dunn to return Waldon to Florida and
"back into the custody of this Court's appointed
guardian in Miami[, ] Dade County, Florida, without delay on
or before . . . February 14, 2016."
September 4, 2018, a hearing was held in the Superior Court
of Walker County. Waldon testified at the hearing that he
lived in Walker County mostly by himself, and received social
security benefits and food stamps. He testified that Alger
and her husband "took everything [he] owned." When
questioned how he had traveled from Florida to Georgia,
Waldon testified that he drove, accompanied by two of his
daughters, to "winterize [his] house up on Lookout
Mountain." He further testified that he did not want
"anybody to be over [him, and that he was his] own
person." Waldon presented a Georgia driver's license
issued on November 10, 2015. Waldon testified that he wanted
to be with his wife, who had been "locked [up and]
take[n] away from [him, ]"and he wanted to remain in
Georgia. Waldon testified that he would not return to Florida
because he believed that he would be put in jail.
trial court granted the Appellees' motion to dismiss all
claims, finding that the "11th Judicial Circuit for
Miami-Dade County[, ] Florida ha[d] accepted and exercised
jurisdiction over the subject matter and personal
jurisdiction over the parties[, ]" and that this matter
"would be more appropriately heard in Florida under the
doctrine of forum non conveniens." This appeal followed.
A defendant moving to dismiss for lack of personal
jurisdiction bears the burden of proving the absence of
jurisdiction. To meet that burden, the defendant may raise
matters not contained in the pleadings. However, when the
outcome of the motion depends on unstipulated facts, it must
be accompanied by supporting affidavits or citations to
evidentiary material in the record. Further, to the extent
that defendant's evidence controverts the allegations of
the complaint, plaintiff may not rely on mere allegations,
but must also submit supporting affidavits or documentary
evidence. When examining and deciding jurisdictional issues
on a motion to dismiss, a trial court has discretion to hear
oral testimony or to decide the motion on the basis of
affidavits and documentary evidence alone pursuant to OCGA
§ 9-11-43 (b).
these guiding principles in mind, we turn now to the
Appellants' specific claims of error.
Appellants argue that the trial court erred in granting the
Appellees' motion to dismiss under the doctrine ...