King Petro, Inc. v. Ultra Grp. of Cos., A20A0480

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Markle, Judge.
• Citation: 844 S.E.2d 547,355 Ga.App. 503
• Decision Date: 12 June 2020
• Docket Number: A20A0480
• Parties: KING PETRO, INC. et al. v. ULTRA GROUP OF COMPANIES, INC.

355 Ga.App. 503
844 S.E.2d 547

KING PETRO, INC. et al.
v.
ULTRA GROUP OF COMPANIES, INC.

A20A0480

Court of Appeals of Georgia.

June 12, 2020

844 S.E.2d 548

Mark Van Spix, Atlanta, for Appellant.

Wimberly Lawson Steckel Schneider & Stine, Paul Oliver, Atlanta, for Appellee.

Markle, Judge.

355 Ga.App. 503

This action arises from King Petro, Inc.’s ("King Petro's"), East West Convenience, Inc.’s ("EW's"), and Malik Sultan's ("Sultan's"), (collectively "KP" or "the defendants") appeal from the trial court's final order reversing the Georgia Lottery Corporation's ("GLC's") and the arbitrator's decision in favor of Ultra Group of Companies, Inc. ("Ultra"), and remanding the case to GLC for further determination. On appeal, KP argues that the trial court erred by (1) failing to dismiss Ultra's petition for writ of certiorari when it lacked jurisdiction to consider the matter; and (2) reversing the arbitrator's decision in light of existing Georgia law. Because we find that the trial court erred in denying KP's motion to dismiss, we reverse the trial court's order, and remand the case with instructions to dismiss Ultra's petition.

"We review the trial court's ruling on a motion to dismiss under the de novo standard of review." (Citation and punctuation omitted.) American Professional Risk Svcs. v. Gotham Ins. Co. , 323 Ga. App. 776, 777, 748 S.E.2d 134 (2013). So viewed, the record shows that the underlying dispute between the parties involved claims pertaining to the leasing and operation of coin operated amusement machines ("COAMs"). Ultra entered into location agreements with KP to put COAMs in gas stations, and, under these agreements, the parties would share net revenues, with 30 percent to Ultra and 70 percent to KP. Thereafter, the legislature enacted OCGA § 50-27-87.1, which mandated that the parties share 50 percent of the proceeds

844 S.E.2d 549

until the COAMs were removed from the locations, but KP continued to pay Ultra only 30 percent. Ultra filed an action for breach of contract seeking actual and liquidated damages, declaratory relief, and attorney fees.¹

355 Ga.App. 504

The trial court ordered the parties to arbitrate the dispute, as required by OCGA § 50-27-102 (d). Following a hearing, the arbitrator ruled in favor of Ultra, but awarded less damages than Ultra requested. Dissatisfied with this result, Ultra appealed to GLC's CEO pursuant to OCGA § 50-27-102 (d) (5) and GLC Rules and Regulations 13.2.5 (1) (b) (4). Because the CEO failed to decide the matter within 30 days, the appeal was deemed denied and the arbitrator's award was affirmed by operation of law.² Ultra then filed a petition for writ of certiorari in the Fulton County Superior Court.³

In its petition, Ultra named KP, EW, and Sultan as the respondents and did not identify GLC as a party to the action. The petition was sanctioned, and the writ of certiorari was issued to GLC on January 16, 2018. It is undisputed that Ultra served the petition on GLC on January 23, 2018. KP filed a limited appearance answer and moved to dismiss the petition, asserting lack of personal and subject matter jurisdiction and insufficient service of process.

The trial court denied the motion to dismiss, finding that it had subject matter jurisdiction under OCGA § 50-27-102 (d) (5), and that the defendants were properly served with a copy of the petition and the writ as the opposite parties to the action pursuant to OCGA § 5-4-6 (b). However, the trial court made no mention of service on GLC. Subsequently, following a hearing on the merits of the petition, the trial court entered judgment reversing the arbitration award and remanding the case to GLC. KP filed an application for discretionary review, which we granted. It then filed this notice of appeal.

We note from the outset that, with respect to KP's motion to dismiss,

[w]hen reviewing a trial court's ruling on a motion to dismiss for lack of jurisdiction that has been decided on the basis of written submissions, we are in an equal position with the trial court to determine the facts and therefore examine the facts under a non-deferential standard. When reviewing a ruling on a motion to dismiss for insufficient service, a trial court's ruling will be upheld on appeal absent a showing of an abuse of discretion. And when an appeal from the denial

355 Ga.App. 505

of a motion to dismiss presents a question of law, we review the trial court's decision de novo.

(Citation and punctuation omitted.) Henderson v. James , 350 Ga. App. 361, 829 S.E.2d 429 (2019). With these guiding principles in mind, we turn to KP's contentions on appeal.

1. KP first argues that the trial court erred in denying its motion to dismiss Ultra's petition for writ of certiorari because GLC was the proper respondent and Ultra failed to timely serve GLC. KP also argues that Ultra failed to obtain an answer to the writ from GLC within the time specified by law. KP further argues that the Gwinnett County Superior Court had priority jurisdiction over this matter, not the Fulton County Superior Court. Because we agree that GLC is the respondent, and that Ultra failed to obtain a timely answer to the writ from GLC, we conclude the trial court erred in denying the motion to dismiss.

Our decision is controlled by this Court's recent decision in

844 S.E.2d 550

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