Amerireach.com, LLC v. Walker

719 S.E.2d 489, 290 Ga. 261, 2011 Fulton County D. Rep. 4001, 2011 Ga. LEXIS 948
CourtSupreme Court of Georgia
DecidedNovember 30, 2011
DocketS11G0417
StatusPublished
Cited by37 cases

This text of 719 S.E.2d 489 (Amerireach.com, LLC v. Walker) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amerireach.com, LLC v. Walker, 719 S.E.2d 489, 290 Ga. 261, 2011 Fulton County D. Rep. 4001, 2011 Ga. LEXIS 948 (Ga. 2011).

Opinion

CARLEY, Presiding Justice.

Beginning in 2006, Carol Walker, who is a physician and a Georgia resident, sold nutritional supplements purchased from Amerireach.com, LLC d/b/a AmeriSciences pursuant to an agreement which provided, among other things, that “[a]ny disputes arising from the terms hereof or relating hereto will be brought in the state and/or federal court of Harris, Texas, the convenience of which I hereby recognize.” On February 5, 2009, Dr. Walker sent a written termination of the agreement and a demand that Ameri-Sciences repurchase certain unopened and unused products at a price not less than 90 percent of the original net cost pursuant to [262]*262OCGA § 10-1-415 (d) (1) of the Sale of Business Opportunities Act (SBOA). After expiration of the 30-day statutory waiting period provided in OCGA § 10-1-399 (b) of the Fair Business Practices Act (FBPA), Dr. Walker filed a damage suit in the State Court of Gwinnett County on April 7, 2009 against AmeriSciences and three of the company’s corporate officers (Appellants) under the FBPA for failure to disclose and comply with the repurchase requirements of OCGA § 10-1-415 (d) (1). See OCGA § 10-1-417 (b).

AmeriSciences previously had filed a declaratory judgment action on February 13, 2009 against Dr. Walker in a Harris County, Texas state court. On June 3, 2009, the Texas court entered a final default judgment declaring that any damage suit for failure to repurchase, whether brought pursuant to the Georgia FBPA or otherwise, is subject to the forum selection clause in the parties’ contract, that this clause is enforceable, and that the filing of any such action in any forum other than Harris County, Texas constitutes a breach of contract.

Thereafter, the Georgia trial court granted summary judgment in favor of AmeriSciences, ruling that Dr. Walker’s claims are subject to an enforceable forum selection clause and barred by res judicata. In the same order, the trial court also dismissed the individual defendants for lack of personal jurisdiction and held that, in any event, they are not subject to individual liability under the SBOA.

The Court of Appeals reversed, concluding that, because Dr. Walker’s complaint was based on a statutory violation instead of a breach of contract, the contractual defense of a forum selection clause does not apply, and her claims are not barred by res judicata. Walker v. Amerireach.com, 306 Ga. App. 658, 660 (1) (703 SE2d 100) (2010). After rejecting an alternative ground for summary judgment on which the trial court relied, the Court of Appeals also determined that the trial court had personal jurisdiction over the individual defendants even though they were present in Georgia only in their capacities as AmeriSciences officers, as they admittedly were founding members and top officers of a “multilevel distribution company” as defined by OCGA § 10-1-415 and generally knew Dr. Walker’s cancellation rights thereunder, which apply to any agreement made in Georgia. Walker v. Amerireach.com, supra at 662-663 (3). The Court of Appeals also held that the complaint was sufficient to state a claim against the individual defendants under the FBPA based on a violation of the SBOA. Walker v. Amerireach.com, supra at 663 (3). We granted certiorari to consider Divisions 1 and 3 of the Court of Appeals’ opinion.

1. Appellants contend that the Court of Appeals erred in failing to give res judicata effect to the earlier Texas declaratory judgment.

When jurisdictional issues such as the enforceability or applica[263]*263bility of a “choice of forum” clause are adjudicated in a foreign judgment, that judgment generally is not subject to collateral attack, but is entitled to full faith and credit and is conclusive between the parties and their privies as to all matters that were placed in issue or might have been placed in issue. Mid-Ga. Bandag Co. v. Nat. Equipment Rental, 164 Ga. App. 68, 69 (2) (296 SE2d 391) (1982). See also Van Buskirk v. Great American Bank of Broward County, 175 Ga. App. 101, 102 (332 SE2d 394) (1985). We note that “[a] collateral attack based on lack of personal jurisdiction is precluded only when the defendant has appeared in the foreign court and has had an opportunity to litigate the issue. [Cits.]” Aqua Sun Investments v. Kendrick, 240 Ga. App. 671, 673 (2) (524 SE2d 519) (1999).

“(A) judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” [Cits.]

Crosby v. Wenzoski, 164 Ga. App. 266, 270 (2) (296 SE2d 162) (1982) (quoting Dufree v. Duke, 375 U. S. 106, 111 (84 SC 242, 11 LE2d 186) (1963)). The foreign judgment may not be entitled to full faith and credit when it is challenged on jurisdictional grounds in a collateral proceeding such that the jurisdictional issue has been “ ‘raised and tried out’ ” in the second court. Hoesch America v. Dai Yang Metal Co., 217 Ga. App. 845, 846 (1) (459 SE2d 187) (1995) (quoting Baldwin v. Iowa State &c. Assn., 283 U. S. 522, 525 (51 SC 517, 75 LE 1244) (1931) and Ins. Corp. v. Compagnie Des Bauxites, 456 U. S. 694, 706 (102 SC 2099, 72 LE2d 492) (1982)). Under such precedent,

the only avenue available to [Dr. Walker] to relitigate the issue of whether the [Texas] court lacked personal jurisdiction over her ... is if the trial court [here] found that the issue was not fully and fairly litigated and finally decided in the [Texas] proceeding. [Dr. Walker] did not raise the issue of whether personal jurisdiction was fully and fairly litigated in the [Texas] proceeding in her [filings here in Georgia], she did not present evidence on that issue at trial, she did not ask the trial court to rule on that issue, and the trial court did not do so.

Sentinel Acceptance v. Hodson Auto Sales & Leasing, 45 SW3d 464, 469 (Mo. App. 2001). “ ‘Issues never raised at trial will not be considered for the first time on appeal. (Cit.)’ [Cit.]” Coweta County v. City of Senoia, 275 Ga. 707, 709 (4) (573 SE2d 21) (2002). Dr. [264]*264Walker has not challenged at trial or on appeal the general enforceability of the forum selection clause which may itself have formed the basis for the Texas court’s exercise of personal jurisdiction over her. Instead, she has consistently challenged only the applicability of that clause to the Georgia action. In particular, she contends that the forum selection clause is a contractual term that does not apply to claims pursuant to Georgia statutes, such as the FBPA.

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719 S.E.2d 489, 290 Ga. 261, 2011 Fulton County D. Rep. 4001, 2011 Ga. LEXIS 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amerireachcom-llc-v-walker-ga-2011.