Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Waldon v. Alger

Court of Appeals of Georgia, Second Division

October 24, 2019

WALDON et al.
v.
ALGER et al.

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

          Reese, Judge.

         Charles 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.

          Viewed in favor of the Appellants, [1] 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.

         In July 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.

          The 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.[2] 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."[3] Waldon did not return to Florida.

         On 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 Graham.

          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."

         On 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.

         The 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).[4]

         With these guiding principles in mind, we turn now to the Appellants' specific claims of error.

         1. The Appellants argue that the trial court erred in granting the Appellees' motion to dismiss under the doctrine ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.