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

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 September 25, 2019




In the Court of Appeals of Georgia
 A19A0976. ULTRA GROUP OF COMPANIES, INC. v. ALLI.

      REESE, Judge.

      Ultra Group of Companies, Inc. (“Ultra”) appeals from a final order issued by

the Superior Court of Fulton County vacating part of an arbitration award entered

pursuant to proceedings conducted under OCGA § 50-27-102 (d).1 The arbitration

proceedings concerned allegations of breach of contract and failure to pay revenue

that Citgo Food Mart, Inc. (“Citgo”)2 and Mumtaz Alli (“Alli”) allegedly owed to




      1
        OCGA § 50-27-102 (d) required arbitration to resolve any disputes between
licensees concerning contracts involving coin operated amusement machines. See
OCGA § 50-27-70 (b) (1) (defining “licensee”); (b) (2) (defining “[b]ona fide coin
operated amusement machines”).
      2
        The trial court confirmed the Award against Citgo, and that ruling is not at
issue on appeal.
Ultra under a Location Agreement (“Agreement”)3 for the lease of coin operated

amusement machines (“COAMs”) that were located in a convenience store operated

by Citgo. The arbitrator awarded Ultra monetary damages against Citgo and Alli (in

her personal capacity), jointly and severally. In the instant appeal, Ultra challenges

the trial court’s order vacating the award against Alli in her personal capacity based

on its finding that the arbitrator lacked personal jurisdiction over Alli. For the reasons

set forth infra, we affirm.

      The record shows the following, undisputed facts. On May 11, 2011, Ultra

entered into the Agreement with Citgo, a “corporation[,]” and Alli, an “individual[.]”4

After a dispute arose under the Agreement, Ultra obtained an “Arbitration Referral”5

from the Georgia Lottery Corporation (“GLC”) in July 2015; the arbitration referral

identified Citgo as the sole “Location Licensee” involved in the dispute. Based on the

referral, in October 2015, Ultra filed an arbitration demand, identifying Citgo as the




      3
          See OCGA § 50-27-70 (b) (6) (defining “[l]ocation license”).
      4
        Although Alli contended during the arbitration hearing that she had not
signed the Agreement and was not a party thereto, the arbitrator rejected that
argument, finding Alli’s testimony on the issue lacked credibility.
      5
          See OCGA § 50-27-102 (d) (1), (2), (3).

                                            2
“Respondent[,]”6 i.e., the “Name of the Party on whom Demand for Arbitration is

made”; the demand did not refer to Alli at all. In the demand, Ultra described the

dispute to be arbitrated as follows: “While under contractual obligation and balance

owed, location licensee demanded removal of Ultra machines during temporary

closure, then installed competitor’s machines.” Ultra subsequently amended the

arbitration demand, still identifying Citgo as the sole “Respondent[,]” but also

naming Alli as the “Representative/Attorney of the Party on whom Demand for

Arbitration is made[.]” There are no documents in the record showing that Ultra

served Alli with either the arbitration referral or the arbitration demand.7

      In March 2016, an arbitration hearing was conducted. The arbitrator issued a

partial arbitration award on July 18, 2016, and, on July 29, 2016, the arbitrator issued

a final monetary award to Ultra against Alli and Citgo, jointly and severally. The

certificates of service attached to the partial and final awards showed that the awards

were served on the attorney representing “Citgo Food Mart, Inc.” There are no



      6
       Although the demand also identified “Lucky Bucks, Inc.” as another
“Respondent[,]” Ultra dismissed Lucky Bucks from the case before arbitration.
      7
        See OCGA § 50-27-102 (d) (2) (“Service by registered mail, courier delivery,
or overnight mail delivered to the agent’s registered address and to the e-mail address
shall be adequate service on the licensee for a hearing on the dispute.”).

                                           3
documents in the record showing that Alli, or an attorney representing her, was served

with either the partial or final arbitration award.

       In September 2016, Ultra filed a motion to confirm the arbitration award in the

Superior Court of Fulton County.8 Alli and Citgo responded to the motion and moved

to vacate the arbitration award as to Alli in her personal capacity,9 arguing that the

arbitrator lacked personal jurisdiction over her because she was not named as a party

in the arbitration referral or the arbitration demand, nor was she served with either

document. After conducting a hearing, the trial court issued an order confirming the

arbitrator’s final award. Alli and Citgo appealed the trial court’s order to this Court,

and the case was docketed as Case No. A17A1638.



       8
        See OCGA § 9-9-12 (“The court shall confirm an award upon application of
a party made within one year after its delivery to him, unless the award is vacated or
modified by the court as provided in this part.”).
       9
         See OCGA § 9-9-13 (b) (“The award shall be vacated on the application of
a party who either participated in the arbitration or was served with a demand for
arbitration if the court finds that the rights of that party were prejudiced by . . . (4) [a]
failure to follow the procedure of [the Georgia Arbitration Code], unless the party
applying to vacate the award continued with the arbitration with notice of this failure
and without objection; or (5) [t]he arbitrator’s manifest disregard of the law.”); (c)
(“The award shall be vacated on the application of a party who neither participated
in the arbitration nor was served with a demand for arbitration or order to compel
arbitration if the court finds that: (1) The rights of the party were prejudiced by one
of the grounds specified in subsection (b) of this Code section[.]”).

                                             4
      In a November 14, 2017 order in Case No. A71A1638, this Court vacated the

trial court’s confirmation of the arbitration award and remanded the case so that the

parties could complete the appellate record. This Court’s order stated, in relevant part,

as follows:

              During the confirmation proceedings and now on appeal, [Alli]
      contends that the arbitrator lacked personal jurisdiction over her because
      she was not named as a respondent in the demand for arbitration or
      served the demand as a respondent, and the demand and service filings
      show that she participated in the proceedings only as a representative of
      Citgo. However, Ultra argues the “correct” demand for arbitration
      shows that Alli was named as a respondent, that this demand was served
      upon her, the same attorney who represented Citgo made an appearance
      on Alli’s behalf, and that her attorney filed a response and counterclaim
      specifically on her behalf. Further, Ultra argues that Alli did not raise
      the issue of personal jurisdiction at [any time] during the arbitration
      proceedings, although she appeared at the hearing and challenged
      subject matter jurisdiction.
              [Alli] filed a reply brief, pointing out that Ultra has failed to
      include in the record on appeal any evidence that would support its
      contentions about Alli being included on any arbitration demand filed
      in these proceedings and being served. Further, Alli continues to insist
      that she was not listed in any arbitration demands, and that she was
      never personally served.
              Obviously, both set[s] of facts cannot be true – Alli was either
      listed on an arbitration demand, albeit on one we do not have in the

                                           5
record before us, served with that demand, and represented and
participated in the arbitration proceedings as a party, or she was not.
         Further, while Ultra’s failing to perfect the record might be fatal
to its contentions, Alli has also failed to point to anything in the record
to show that she preserved these arguments during the arbitration
proceedings. And it is well established that[,] unlike subject matter
jurisdiction, challenges to personal jurisdiction, including challenges to
service, may be waived. However, while failure to raise this issue before
the arbitrator might be fatal to Alli’s claim and render Ultra’s failure to
perfect the record irrelevant, the record is not clear on the matter. . . .
         This Court is thus faced with the untenable situation of attempting
to render a decision in this case based on an incomplete and possibly
inaccurate record. Accordingly, in light of the deficiencies by both
parties in presenting their arguments to this Court, the judgment of the
superior court is vacated, and the case remanded to give the parties an
opportunity to remedy these appellate record deficits by supplementing
the record with all the documents in the record before the arbitrator
that pertain to the personal jurisdiction issue and preservation of this
error for our consideration. Upon completion of the record, the superior
court may re-enter its original order or enter a different order as it deems
appropriate. Any appeal from that order by either party must be filed
within 30 days, at which time any issues raised in the present appeal
may be reasserted.10




10
     (Citations and footnotes omitted; emphasis supplied.)

                                      6
      Following remand of the case, the trial court reopened the case and conducted

a hearing specifically to allow the parties to present evidence that supported their

arguments regarding the personal jurisdiction issue. After allowing the parties some

time to discuss this Court’s remand order off the record, the trial court began the

hearing by asking Ultra’s counsel, Paul Oliver, whether Alli was a named party to the

arbitration demand and whether she was served with the demand. Oliver, however,

did not answer the question; instead, he gave a long, disjointed statement about what

the parties’ attorneys allegedly had said to one another and had filed during the

litigation, including his claim that Citgo’s former attorney had admitted, during a

conference call and an unrecorded preliminary hearing, that Alli and Citgo were both

parties to the arbitration.11 Eventually, the trial court simply asked Oliver if a

certificate of service existed that showed Alli had been served with the arbitration

demand. Oliver responded that “[t]here would be a document that showed that the

demand was served on her initially. The issue would be whether [the demand]

included her as a defendant or only because she was a corporate person. I can provide




      11
        Oliver did not call that attorney as a witness to prove his contentions. See
Division 5, infra.

                                         7
you with that document. I think I do have that. I don’t have it with me, but I can have

it down here later today or tomorrow.”

      Even though the trial court allowed the parties an additional two weeks

following the hearing to supplement the record with any documents that supported

their arguments, Oliver never filed the allegedly “correct” demand and/or proof of

service in the trial court. In fact, there is no certificate of service or other document

in the record that shows Ultra served the arbitration demand on anyone at all. Thus,

the record supports the trial court’s finding that Ultra “did not submit as documentary

evidence a ‘correct’ demand for arbitration which listed Alli as a respondent and was

served on Alli[,] as represented by [Ultra] on appeal and to [the trial court] at the July

27, 2018 hearing [following remand].”

      In other words, this Court remanded the case, and the trial court conducted a

hearing, for the sole purpose of giving the parties a chance to prove their conflicting

assertions on two specific issues: whether Alli had been named as a party in her

personal capacity in the arbitration demand, and whether she had been served with

that demand. Yet, Ultra’s counsel failed to produce a copy of any document that




                                            8
supported the statements that he had made to both this Court and the trial court and

that would have been dispositive on the issues presented.12

      Following the hearing, the trial court ruled that

      to be a party to an arbitration[,] you must . . . first be identified as such
      in a demand for arbitration in the same manner a defendant must be
      identified in a complaint to be a party to the complaint. If an individual
      is not identified as a defendant, there is no requirement he be served[,]
      and serving the individual without identifying him as a defendant would
      not make him a party to the suit, even if the individual mistakenly filed
      an answer.


The court found that, based on the evidence in the record of the arbitration

proceedings, Ultra did not identify Alli as a respondent in the arbitration demand, nor

did it amend the demand to add her as a respondent, so she was never made a party

to the arbitration.13 The court also found that Ultra’s failure to name Alli as a party


      12
          Notably, Ultra has conceded in its brief in the instant appeal that the
arbitration demand “was served upon Citgo and did not specifically name Mumtaz
Alli.”
      13
          See OCGA § 9-11-10 (a) (“In the complaint[,] the title of the action shall
include the names of all the parties[.]”); see also OCGA §§ 9-11-15 (a) (adding a
party to an existing suit by amendment); 9-11-17 (a) (substitution of the real party in
interest); 9-11-19 (joinder of necessary parties); 9-11-20 (a) (permissive joinder of
parties); 9-11-21 (addition of parties by order of court); Bd. of Commrs. v. Johnson,
311 Ga. App. 867, 871-873 (2), n. 5 (717 SE2d 272) (2011) (The plaintiff had no

                                           9
or to amend the demand to add her as a party “eliminated the need to serve her.

Indeed, there was nothing with which to serve her[ because] Alli was not a

respondent in the arbitration action.” In addition, the trial court ruled that Alli was not

required to respond to the arbitration demand because she was not a party to the

proceeding and had never been served with the arbitration demand.14 Although Ultra

argued that Alli waived her personal jurisdiction defense because, inter alia, Citgo’s

attorney filed responsive documents in the arbitration proceedings that referred to Alli

as a “Respondent,” the trial court rejected that argument, ruling that such references

did not make Alli a party to the proceedings when Ultra had not named her as a

respondent in its arbitration demand, had not amended the demand to add her as a

respondent, and had never served her with the demand.




claim against a county board member in his individual capacity because he was not
named as a defendant in his individual capacity, and the plaintiff failed to obtain
leave of court to add him as a defendant, pursuant to OCGA § 9-11-15. Further, the
absence of the member being listed as a defendant in his personal capacity was not
a mere misnomer that could be corrected without leave of court under OCGA § 9-11-
10 (a), because “[c]orrection of a misnomer does not add a new and distinct party.”)
(citation and punctuation omitted).
       14
         See OCGA § 9-11-12 (a) (“A defendant shall serve his answer within 30 days
after the service of the summons and complaint upon him, unless otherwise provided
by statute.”).

                                            10
      Consequently, the trial court ruled that personal jurisdiction over Alli was

lacking in the arbitration proceedings, that the arbitrator had overstepped his authority

in issuing an award against Alli in her personal capacity, and that the evidence

established the arbitrator’s manifest disregard of the law.15 Thus, pursuant to OCGA

§§ 9-9-12 and 9-9-13 (c), the court vacated the arbitrator’s award to the extent the

arbitrator ruled that Alli was personally liable for Ultra’s damages claim. This appeal

followed.

      On appeal from a trial court’s ruling on whether an arbitration award should

be confirmed or vacated, this Court should not disturb the ruling if there is any

evidence to support it.16 With this guiding principle in mind, we turn now to Ultra’s

specific claims of error.

      1. Ultra first argues that the trial court erred in ruling that, “to be a party to an

arbitration you must first be identified in a complaint to be a party to the complaint.”

Ultra contends that this statement “is an incomplete statement of the facts in this case

and [is] incorrect as a matter of law.” Pretermitting whether the statement Ultra



      15
           See OCGA § 9-9-13 (b) (4), (5).
      16
        See Hilliard v. J. C. Bradford & Co., 229 Ga. App. 336, 341 (2) (494 SE2d
38) (1997).

                                           11
complains about is legally correct, Ultra’s claim of error lacks merit, because it

materially misquotes the trial court’s actual ruling, which was as follows: “to be a

party to an arbitration[,] you must . . . first be identified as such in a demand for

arbitration in the same manner a defendant must be identified in a complaint to be

a party to the complaint.”17 Ultra has not presented any argument or authority

establishing that the trial court’s actual ruling constituted reversible error. Thus, this

presents nothing for this Court to review.18

      2. Ultra argues that the trial court erred in rejecting its argument that, even

though Alli was not named as a party (respondent) in the arbitration demand or served

with the demand, she waived any objection regarding the absence of personal

jurisdiction because Citgo’s attorney filed documents in the arbitration action that

listed Alli as one of the “Respondents[.]”

      Under OCGA § 15-1-2, however, “[p]arties may not give jurisdiction to a court

by consent, express or implied, as to the person or subject matter of an action.” And,

although “lack of jurisdiction of the person may be waived, insofar as the rights of the

      17
           (Emphasis supplied.)
      18
        See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed
abandoned.”).

                                           12
parties are concerned,” personal jurisdiction may not be waived if it prejudices third

persons.19

      Here, the record shows that, in responsive filings in the arbitration proceedings,

Citgo’s attorney listed the “Respondents” in the style of the case as, inter alia,

“Mumtaz Alli, Citgo Food Mart, Inc., 3625 Chamblee Tucker Road, Atlanta, GA

30341” and “Citgo Food Mart, Inc., Mumtaz Alli, 3625 Chamblee Tucker Road,

Atlanta, GA 30341[.]” Given that the attorney only referred to Alli in relation to

Citgo and that Citgo’s business address is listed for Alli instead of her home address,

it is unclear whether the attorney intended to list Alli as a respondent in her personal

capacity or only as a corporate representative of Citgo.

      Regardless, Alli was not named as a party to the arbitration action in her

personal capacity. Instead, Citgo was named as the “Respondent” in the arbitration

referral and arbitration demand, and all of the claims asserted by Ultra in the referral

and demand are against the “Respondent[,]” only. Moreover, in the amended

arbitration demand, Ultra specifically identified Alli as the “Representative/Attorney

of the Party on whom Demand for Arbitration is made[,]” i.e., the Respondent, Citgo.

And there is no evidence that Alli signed or verified any of the filings at issue or

      19
           OCGA § 15-1-2 (emphasis supplied).

                                          13
otherwise acknowledged that the attorney who filed the documents was representing

her in her personal capacity in the arbitration action.

      In support of its argument, Ultra relies on Ga. Pub. Defender Standards

Council v. State of Ga.,20 in which this Court held that the Georgia Public Defender

Standards Council (“Council”) had consented to the trial court’s exercise of

jurisdiction over it by submitting a letter brief and order in response to a rule nisi

issued by the trial court without contesting jurisdiction.21 That case is clearly

distinguishable from the instant case, however, because the action arose when two

attorneys, both of whom had been appointed by the Council to represent indigent

defendants, sought copies of the trial transcripts in the defendants’ cases.22 The

transcripts were prepared, and the trial court’s clerk billed the Council for the cost of

the transcripts, but the Council refused to pay, contending that it was not responsible




      20
           284 Ga. App. 660 (644 SE2d 510) (2007).
      21
         Id. at 663 (1). We note that, given this Court’s ultimate ruling that the
counties, not the Council, were responsible for the cost of the transcripts, id. at 664-
665 (2), it was unnecessary for this Court to rule on the jurisdiction issue, as it was
effectively rendered moot.
      22
         Id. at 661-662. It was undisputed that the indigent defendants were entitled
to transcripts of their trials at no cost to themselves. See id. at 662.

                                           14
for paying for the transcripts.23 In order to resolve the question of who was

responsible for the cost of the transcripts, the trial court issued a rule nisi for a

hearing and ordered that the rule nisi be served on various governmental entities,

including the Council, directing the entities to show cause as to why they should not

be held jointly or severally liable for the cost of the transcripts, as well as transcripts

in subsequent criminal cases involving indigent defendants.24 Thus, the Council had

effectively initiated the case by refusing to pay for transcripts that had been ordered

by attorneys it had hired to represent defendants on its behalf.

       We conclude that, under the circumstances presented, the trial court did not err

in rejecting the argument that Citgo and its attorney somehow consented to the

arbitrator’s exercise of personal jurisdiction over Alli, nor did it err in finding that

Citgo’s filing of unverified responsive pleadings mistakenly naming Alli as a

“Respondent[ ]” did not waive Alli’s claim of lack of personal jurisdiction, because




       23
            Id. at 662.
       24
          Id. at 661. It was in response to this rule nisi that the Council submitted its
letter brief and proposed order.

                                            15
each of these actions prejudiced Alli, a third party, by exposing her to personal

liability for the arbitrator’s award against Citgo.25

      3. Ultra argues that, even though Alli was not named as a party to the

arbitration action or served with the demand, Alli waived her personal jurisdiction

defense by participating in the arbitration hearing without raising the issue. We

disagree.

      The undisputed evidence presented during the arbitration hearing shows that

Alli’s son created and owned the corporation (Citgo Food Mart, Inc.), that Alli was

the corporation’s secretary and a shareholder, and that the corporation was the

location licensee for the COAMs. In addition, Citgo presented testimony by a store

employee that Alli’s name was not on any of the COAM licenses displayed in the

store. The hearing transcript also shows that no one asserted, or asked Alli to confirm,

that she was participating in the arbitration hearing in her personal capacity versus

testifying solely as Citgo’s corporate representative. This is especially significant

given that, as shown above, Ultra had specifically amended its arbitration demand to

list Alli as the “Representative/Attorney of the Party on whom Demand for

Arbitration is made[.]”

      25
           See OCGA § 15-1-2.

                                           16
      Moreover, all of the cases upon which Ultra relies for this argument are clearly

distinguishable, as each one involved a named party who had not been properly

served, but who waived a personal jurisdiction defense by actively participating in the

action. Consequently, Ultra has failed to cite to any authority that supports its

argument that, under the circumstances presented, Alli waived her personal

jurisdiction defense by testifying during the arbitration hearing. Thus, this argument

presents no basis to reverse the trial court’s order.

      4. Ultra complains that the trial court erred in noting in its order that it (Ultra)

had failed to call Citgo’s former attorney (Mark Spix) to verify that he (Spix) had

expressly waived Alli’s personal jurisdiction defense by verbally admitting that Alli

was a party to the arbitration proceedings. The court’s statement, however, was in

response to repeated, unsupported, and unsworn assertions made by Ultra’s counsel

(Oliver) during the January 2017 trial court hearing (prior to remand), and the trial

court’s July 2018 hearing (following remand), regarding off-the-record statements

allegedly made by Spix to Oliver prior to the arbitration hearing. The transcript of the

trial court’s July 2018 hearing shows that Alli’s counsel directly responded to

Oliver’s assertions, stating that he believed



                                           17
      Oliver may have been testifying up here. Obviously, . . . it’s an
      interesting story about [Oliver] and [ ] Spix. It’s very interesting that [
      ] Spix was never called as a witness at the [January 2017] hearing so that
      he could explain what went on, and we don’t have anything from him
      regarding [what he privately told Oliver]. Obviously, . . . the argument
      made by [ ] Oliver is just that, it’s an argument. It’s not evidence [and]
      doesn’t prove anything.


      Under these circumstances, the trial court did not err by pointing out that Ultra

had failed to provide competent evidence to support Oliver’s assertions.

      5. In a related argument, Ultra contends that the trial court erred in ruling that

it was Ultra’s responsibility to call Spix as a witness to testify about his intent in

filing the response and counterclaim in which he (Spix) listed Alli as a

“Respondent[.]” This argument, however, materially misrepresents the court’s order.

In fact, immediately after the sentence Ultra quotes in its brief, the order stated:

“However, [Spix’s] reason for filing [the document] need not be known since it is

clearly evident [that Ultra] never amended the Demand for Arbitration to add Alli as

a respondent and that [Alli] was never served.” In other words, the court ruled that,

because Alli was never made a party to the arbitration proceedings, Spix’s testimony

regarding his intent in filing the documents was unnecessary and immaterial to the

issue of Alli’s personal jurisdiction defense. Thus, Ultra’s argument lacks merit.

                                          18
      6. Finally, to the extent Ultra relies on a footnote in the arbitrator’s order in

which the arbitrator asserted that Alli was “subject to jurisdiction in this matter”

based solely on his finding that she was a “licensee” under OCGA § 50-27-70 (b) (1),

the arbitrator’s statement was legally incorrect to the extent he was referring to the

exercise of personal jurisdiction over Alli.

      OCGA § 50-27-102 (d) (2) provides that

      [t]he [GLC] shall have jurisdiction of all disputes between and among
      any licensees or former licensees whose licenses were issued pursuant
      to this article relating in any way to any agreement involving coin
      operated amusement machines, distribution of funds, tortious
      interference with contract, other claims against a subsequent master
      license holder or location owner, or any other claim involving coin
      operated amusement machines[.]26


Thus, this statute provides that arbitrators, when acting on behalf of the GLC, had

subject matter jurisdiction over disputes between licensees, not personal jurisdiction

over the licensees, themselves, particularly when, as here, the licensee was not a party

to the dispute.




      26
           (Emphasis supplied.)

                                          19
      Moreover, under OCGA § 50-27-102 (d) (2), “the [GLC] shall refer any dispute

certified by any master licensee against any other master licensee or any location

owner or location operator or by any location owner or location operator against any

master licensee to a hearing officer. . . . All disputes subject to the provisions of this

Code section certified by a master licensee, location owner, or location operator shall

be decided by a hearing officer approved or appointed by the [GLC].” As shown in

the arbitration referral, however, the only “certified” dispute that Ultra asserted, and

that the GLC referred to arbitration, was between Ultra and Citgo. Thus, there was no

certified dispute between Alli and Ultra that the GLC had referred to arbitration under

OCGA § 50-27-102 (d) (2), and over which the arbitrator had jurisdiction.

Consequently, Ultra’s reliance on the arbitrator’s assertion of jurisdiction does not

demonstrate reversible error or otherwise change the outcome of this appeal.

      Judgment affirmed. Miller, P. J., and Rickman, J., concur.




                                           20
