WEATHERS et al. v. DIENIAHMAR MUSIC, LLC et al.
A16A0663
COURT OF APPEALS OF GEORGIA
JULY 7, 2016
337 Ga. App. 816 | 788 SE2d 852
DOYLE, Chief Judge.
- (13) [t]he least disruptive placement alternative for such child;
- . . .
- (17) [t]he preferences of the persons available to care for such child;
- . . .
- (19) [a]ny recommendation by a court appointed custody evaluator or guardian ad litem; and
- (20) [a]ny other factors considered by the court to be relevant and proper to its determination.
Although as part of the best interests analysis the juvenile court considered the putative father‘s interest in caring for J. M., his ability to support the child if placed in his care, and the child‘s current placement, we find that the consideration of such factors was proper under
Judgment affirmed. Miller, P. J., and McFadden, J., concur.
DECIDED JULY 7, 2016.
Diana R. Johnson, for appellant.
Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Justin M. Schneider, Assistant Attorney General, for appellee.
A16A0663. WEATHERS et al. v. DIENIAHMAR MUSIC, LLC et al. (788 SE2d 852)
In a dispute involving a music publishing business, Eddie Weathers and his company, All-Weather, LLC (collectively “Weathers“), sued Dieniahmar Music, LLC (“DML“), EMI April Music, Inc., EMI Blackwood Music, Inc.,1 Willie Carter, and Jermaine D. Mauldin a/k/a Jermaine Dupri (“Mauldin“), alleging claims for breach of contract, fraud, conversion, breach of fiduciary duty, tortious
“On appeal, we review a trial court‘s decision to grant or deny a motion to dismiss de novo. In reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant‘s favor.”4
As alleged in the complaint, in June 2005, Weathers and Mauldin co-founded a music publishing company, DML, and were the only two members of the company, each having 50 percent equity. In March 2006, DML, Mauldin, and EMI executed an amendment to a preexisting co-publishing agreement resulting in EMI paying DML royalties and for other music publication rights for music developed by DML (“Co-Publishing Agreement“). As part of this process, Mauldin allegedly represented that he was the sole owner of DML, but the complaint also alleges that EMI was aware of Weathers‘s equity in DML, and Mauldin and Weathers were each paid $75,000 as an advance on the deal.
Weathers managed the day-to-day operations of DML, and Mauldin recruited recording artists and song writers. EMI paid DML royalty payments to publish music from the DML catalogue. All of the monies paid by EMI to DML allegedly were paid to Mauldin, and in 2008, Weathers received a payment of $275,752.97 representing two years of back payments of his share under the Co-Publishing Agreement. Between 2008 and 2011, Weathers received 50 percent of all royalty payments.
Weathers alleges that in 2011, he became aware that he still was not receiving his full share of monthly payments made by EMI to DML. Without consulting Weathers, Mauldin had sought and received multiple advances, in $100,000 increments, from EMI to DML. In April 2013, when Weathers asked Mauldin about certain missing payments, Mauldin informed him that he was considering selling the DML catalogue to EMI for $500,000. Mauldin allegedly promised to pay Weathers 50 percent of the net proceeds of the sale, but this included a reduction for a recent $100,000 advance payment, resulting in $400,000 net proceeds.
In July 2013, Mauldin sold DML to EMI “without the permission, consent, or authorization of Weathers.” Weathers was dissatisfied with the sale price, but could not get in touch with Mauldin. When he finally did, Mauldin confirmed the sale and, along with Carter (Mauldin‘s business manager), told Weathers that the sale proceeds had been placed in a trust and that Weathers would receive $250,000 within 30 days. That month, Mauldin transferred $10,000 to Weathers. The next month, Weathers received another $10,000, but Weathers alleges he never received full payment on proceeds from the sale and past due royalties.5
Weathers and All-Weather, LLC, sued DML, EMI, Mauldin, and Carter. The defendants answered, and each moved to dismiss for failure to state a claim, with EMI also asserting lack of personal jurisdiction. Following
1. Weathers challenges the trial court‘s ruling that it lacked personal jurisdiction over EMI. Based on the record before us, we conclude that the trial court erred by ruling that Weathers “failed to present sufficient admissible evidence to establish that EMI, a nonresident, has engaged in conduct or business invoking the long-arm statute.”
As an initial matter,
[w]hen a defendant moves to dismiss for lack of personal jurisdiction, he has the burden of proving that he is not subject to the jurisdiction of the court. Where the motion is decided without an evidentiary hearing and based solely upon the written submissions of the parties..., 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.6
The trial court noted in its order, without citation to legal authority, that it considered “all matters of record... [and] heard the oral argument of all those parties present at the hearing...,” but it is not clear from the record what evidence, if any, EMI submitted. Further, as noted above, Weathers did submit an affidavit supporting his argument in favor of the court‘s jurisdiction over EMI. To the extent that the trial court dismissed EMI because Weathers failed to “present sufficient admissible evidence” demonstrating personal jurisdiction, it erred because it was EMI‘s burden to demonstrate the court‘s lack of jurisdiction.
Turning to the merits of the jurisdiction question,
Georgia‘s Long Arm Statute[, OCGA § 9-10-91 (1),] permits the exercise of personal jurisdiction over a nonresident defendant if he, personally or through an agent, “transacts any business within this State.” In Innovative Clinical &c. Svcs. v. First Nat. Bank &c., our Supreme Court explained that ”OCGA § 9-10-91 (1) 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,” and it overruled all prior decisions that interpreted “transacts any business within this State” more narrowly.8
In doing so, the Supreme Court gave a literal interpretation to the phrase “transacts any business,” and noted that prior cases had failed “to accord the appropriate breadth to the construction of” that phrase.9 Therefore, Georgia‘s long arm jurisdiction under
In determining the limits of procedural due process, this Court applies a 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. We analyze the first two prongs of this test to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. And if such minimum contacts are found, we then analyze the third prong of the test 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. Importantly, the application of the minimum-contacts rule will vary with the quality and nature of the defendant‘s activity.
(a) Purposeful act or transaction in Georgia. Here, EMI argues that it never physically conducted business or signed any contract in Georgia, relying on its assertion that it only conducted limited business with DML using the telephone, mail, and Internet. But
nothing in subsection (1) of
OCGA § 9-10-91 requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident‘s intangible contacts with the State. To the contrary, Georgia allows the assertion of long-arm jurisdiction over nonresident defendants based on business conducted through postal, telephonic, and Internet contacts. And a single event may be a sufficient basis if its effects within the forum are substantial enough.11
The record before us shows that EMI‘s relevant contact with Georgia stems in part from the Co-Publishing Agreement with DML. That agreement created an ongoing relationship whereby DML, a Georgia business co-owned and operated by Georgia residents, would develop and broker musical talent (also Georgia residents) for profitable publication by EMI elsewhere. This relationship resulted in multiple, ongoing payments to DML for a variety of continued uses of artistic work identified and developed by DML over a period of ten years. Further, EMI‘s subsequent purchase of Georgia-based DML establishes additional contact with Georgia. Also, there is evidence that, as part of its music publishing business, EMI leased a recording studio located in Atlanta, and its employees operated out of the studio to conduct EMI‘s business. These facts demonstrate purposeful acts and business transacted in Georgia on the part of EMI.12
(b) Cause of action is connected with EMI‘s Georgia activity. It is undisputed that the present litigation arose because of EMI‘s co-publishing agreement and purchase of DML. Weathers‘s status as a co-owner of DML demonstrates a clear connection between EMI‘s contacts with Georgia and Weathers‘s claims.
(c) Exercise of jurisdiction in Georgia is reasonable. Finally, EMI‘s arrangement with DML and its resulting activities in Georgia provided fair warning that it may be subject to the jurisdiction of a Georgia court.13 EMI purchased music publication rights from a Georgia company, made routine royalty payments to the Georgia company, leased a studio in Georgia to develop Georgia artists, and ultimately purchased the Georgia company it dealt with.14 “Georgia has an interest, as does every state, in providing its own citizens with a convenient forum for redressing injuries wrought by nonresidents who have sought the state‘s citizens out for the purpose of business gain.”15 Accordingly, we conclude that the trial court erred by dismissing EMI for lack of personal jurisdiction. The judgment dismissing EMI on jurisdictional grounds is reversed, and the case is remanded for consideration of EMI‘s motion to dismiss on the merits of Weathers‘s claims against EMI.16
A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. 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.17
To state a claim for breach of contract, Weathers‘s complaint must generally allege a factual framework showing
parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate. Each of these four essential terms must be certain. In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.18
(a) Breach of contract as to Carter. As alleged in the complaint, Carter‘s role over the course of the relevant transactions was to act as Mauldin‘s business manager. The complaint does not allege any contractual agreement between Carter and Weathers, nor does it allege that Carter, acting for himself, wrongfully withheld money owed Weathers pursuant to a contract with Carter. Accordingly, there is no set of provable facts within the framework alleged by the complaint that would result in Carter‘s liability to Weathers for breach of contract, and the trial court correctly dismissed this claim against Carter.
(b) Breach of contract as to Mauldin and DML. The essence of Weathers‘s complaint is that (1) Mauldin was paid revenue from EMI, which revenue he did not properly share with Weathers, (2) Mauldin wrongfully sold DML, and (3) Mauldin did not fully share the proceeds of the sale with Weathers. These claims arise from the alleged co-ownership of DML by Weathers and Mauldin and the operating agreement governing their relationship in DML. We note that the record does not contain these agreements, so our review is confined to the allegations in the complaint.19 Nevertheless, viewed in the proper light on a motion to dismiss, the facts alleged in the complaint, if later proven, could demonstrate liability on the part of Mauldin, for example, for failing to share with Weathers the revenue paid to DML by EMI as agreed in the operating agreement, or for failing to share the proceeds of the sale of DML according to the equity allocation in the operating agreement.20 As noted above,
[a] motion to dismiss should only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. Stated somewhat differently, a motion to dismiss should not be granted
unless the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.21
Similarly, with respect to DML itself, the facts alleged could, if proven, support a breach of contract claim, for example, based on the fact that the company, under the control of Mauldin, failed to properly compensate Weathers for his role in the company. We are not in a position at this point to parse out the relative liability between Mauldin and DML, but the record at this stage alleges potential claims for breach of contract as to both. Accordingly, the trial court erred by dismissing the breach of contract claims against Mauldin and DML.22
3. Weathers next contends that the trial court erred by dismissing his fraud claims against Mauldin, DML, and Carter. We agree.
As noted above, “[t]he tort of fraud requires a willful misrepresentation of a material fact, made to induce another to act, upon which such person acts [or avoids acting] to his injury.”23
Although fraud must be pled with particularity under
OCGA § 9-11-9 (b) , a complaint alleging fraud should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief. Rather than move to dismiss, a defendant seeking greater particularity may either move for a more definite statement or wait for the outcome of discovery.24
Here, Weathers‘s complaint alleged that Mauldin, Carter, and DML (through Mauldin) knowingly made misrepresentations about placing the proceeds of the sale of DML into an allegedly nonexistent trust and that Weathers would be paid $250,000 from that trust within 30 days. Weathers alleged that he relied on these misrepresentations, and as a result of not being paid, he lost revenue and other business opportunities. Viewing these allegations in the light most favorable to Weathers, as is proper, we conclude that Weathers might be able to prove a set of facts that would support his fraud claims. Accordingly, the trial court erred by dismissing the fraud claims as to Carter, Mauldin, and DML at this stage of the proceedings.25
4. Finally, Weathers contends that the trial court erred by applying the wrong standard to the defendants’ motions to dismiss, thereby incorrectly placing a burden upon Weathers to proffer evidence to overcome their motions. It is well settled that a motion to dismiss under
should be granted only when: the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.26
Here, the trial court‘s dismissal orders state that the trial court “considered all matters of record in this action... and has determined that good cause exists for the relief” requested by the defendants. In the order addressing Weathers‘s failure to state his claims, the trial court concluded that Weathers “failed to present sufficient admissible
in ruling on the motion to dismiss, the trial court was required to view the allegations and documents in the pleadings in [Weathers‘s] favor [regardless of the absence of evidence] and then limit its determination to whether there was any possibility that [he] would be able to produce sufficient evidence at trial to prove that [he] was entitled to relief.28
Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when [the court] does so it converts the motion to dismiss into a motion for summary judgment, governed by
The trial court did not employ this procedure here, and no evidence was submitted in support of the motions to dismiss.30 In light of our rulings in Division 2, any resulting error was not harmful as to every issue. For purposes of remand as to EMI, we emphasize the proper standard.
Judgment affirmed in part and reversed in part, and case remanded with direction. Barnes, P. J., and Boggs, J., concur.
DECIDED JULY 7, 2016.
Wayne B. Kendall, for appellants.
Alan S. Clarke & Associates, Alan S. Clarke; Stokes Wagner, Hayden R. Pace, for appellees.