Dixon v. Branch Banking & Trust Co.

• Decision Date: 08 March 2019
• Docket Number: A18A2010
• Court: Georgia Court of Appeals
• Parties: DIXON et al. v. BRANCH BANKING AND TRUST COMPANY.

349 Ga.App. 768

824 S.E.2d 760

DIXON et al.

v.BRANCH BANKING AND TRUST COMPANY.

A18A2010

Court of Appeals of Georgia.

March 8, 2019

Reconsideration Denied March 27, 2019

Frank X. Moore, for Appellant.

Parker Hudson Rainer & Dobbs, Nancy H. Baughan, V. Justin Arpey, John H. Elliott ; The Geheren Firm, Patrick J. Geheren, Nicholas R. Castricone IV, for Appellee.

McFadden, Presiding Judge.

Michael Dixon filed this lawsuit against Branch Banking and Trust Company ("BB&T") for claims arising from BB&T's foreclosure of certain property formerly owned by his grandmother. BB&T answered the complaint and filed a counterclaim against Dixon and the executor of the grandmother's estate, Linda Roak, who is Dixon's mother. The trial court granted BB&T's motion to dismiss Dixon's claims, and BB&T dismissed without prejudice its counterclaims against Dixon and Roak. Dixon filed this appeal.

Dixon argues the trial court lacked jurisdiction to enter the order of dismissal because he had already dismissed his complaint without prejudice. But Dixon could not dismiss the complaint after the trial court orally granted BB&T's motion to dismiss. Dixon argues that the trial court erred by dismissing his claims for wrongful foreclosure, malicious interference with property, fraud, and RICO. We agree because BB&T has not shown that Dixon would not be entitled to relief under any state of provable facts asserted in support of his allegations. So we reverse the dismissal of these claims. We direct the trial court to treat the motion to dismiss as a motion for more definite statement on the element of justifiable reliance, which is an element of Dixon's fraud claim and an element of one of the alleged predicate acts of the RICO claim, theft by deception. Dixon argues that the trial court erred by dismissing his prayers for emotional distress damages. Because Dixon affirmatively stated that he did not oppose that dismissal, we affirm it.

1. Standard of review, factual allegations, and procedural posture .

"A motion to dismiss for failure to state a claim should not be sustained unless the allegations of the complaint reveal, with certainty, that plaintiff would not be entitled to relief under any state of provable facts asserted in support thereof." DeKalb County v. State of Georgia, 270 Ga. 776, 779 (2), 512 S.E.2d 284 (1999). "It is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim." Roberts v. JP Morgan Chase Bank, N. A., 342 Ga. App. 73, 76, 802 S.E.2d 880 (2017) (citation and punctuation omitted). "If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient." Scott v. Scott, 311 Ga. App. 726, 729 (1), 716 S.E.2d 809 (2011) (citation and punctuation omitted). We review the trial court's ruling on a motion to dismiss for failure to state a claim de novo. Montia v. First-Citizens Bank & Trust Co., 341 Ga. App. 867, 869, 801 S.E.2d 907 (2017).

So viewed, the pleadings alleged that Julie Mae Mason, the mother of counterclaim-defendant Linda Roak and the grandmother of plaintiff, counterclaim-defendant Dixon, owned certain property at the time of her death in 2009, including one tract of 1.15 acres and one tract of 1.11 acres. In 2005, Mason had borrowed money from BB&T and had granted BB&T a security deed. The security deed listed the physical address and the tax parcel ID number of the 1.15-acre tract but the metes-and-bounds description of the 1.11-acre tract. Mason died, and her will provided that her three children would receive her real property. On June 23, 2009, the children executed deeds of assent that conveyed the 1.15-acre tract to Dixon.

In 2009, BB&T began foreclosure proceedings on the 1.11-acre tract, but it withdrew the foreclosure advertisement and a foreclosure did not take place. In October 2010, it began foreclosure proceedings on the 1.15-acre tract. When it was warned of the problem in the security deed, BB&T withdrew the foreclosure advertisement and a foreclosure did not take place.

On October 21, 2010, BB&T recorded a document it called a "scrivener's affidavit" in an attempt to change the metes-and-bounds description in the security deed from that of the 1.11-acre tract to that of the 1.15-acre tract, so as to match the physical address and tax parcel ID number. The affidavit did not include a caption with Dixon's name, so it was not properly indexed by the clerk.

On November 10, 2010, BB&T began running a foreclosure advertisement for the 1.15-acre tract. On December 7, 2010, BB&T conducted an auction and filed a deed under power, asserting that it was the highest bidder.

In March 2011, BB&T conveyed the 1.15-acre tract to a third party.

In 2014, Dixon filed this complaint against BB&T, asserting claims for wrongful foreclosure, fraud, civil theft by deception, mortgage fraud, false swearing, subornation of false swearing, malicious interference with property rights, and RICO. BB&T answered the complaint and filed counterclaims against Dixon and his mother, Roak. It sought a declaration that the scrivener's affidavit corrected the metes-and-bounds description in the security deed as well as a reformation of the security deed to list the metes-and-bounds description of the 1.15-acre tract.

In 2017, BB&T moved to dismiss Dixon's complaint. On May 4, 2018, the trial court held a hearing on the motion. At the hearing, the court stated that the scrivener's affidavit probably was not the proper way to correct the mistake in the security deed, but Dixon had actual and legal notice of the property securing the debt and he took the property subject to the security deed. So the court announced that he would grant BB&T's motion.

After that announced ruling, on May 8, 2018, BB&T dismissed its counterclaims against Roak and Dixon without prejudice. And on that same day Dixon filed a document purportedly dismissing his complaint without prejudice. The trial court entered his written order on May 10, 2018, dismissing all of Dixon's claims against BB&T and noting that BB&T voluntarily had dismissed its counterclaims.

Dixon filed this appeal, challenging the dismissal of his claims for wrongful foreclosure, fraud, malicious interference with property rights, and RICO. He does not challenge the dismissal of his claims for civil theft by deception, mortgage fraud, false swearing, and subornation of false swearing.

2. Trial court's jurisdiction to grant the motion to dismiss .

Dixon argues the trial court lacked jurisdiction to grant BB&T's motion because he already had dismissed his complaint. We disagree. At the May 4, 2018 hearing, the trial court orally granted BB&T's dispositive motion. Four days later, Dixon filed a purported dismissal without prejudice.

"[L]ongstanding precedents ... prevent a plaintiff from effectively erasing a trial court's orally-announced-but-not-yet-written-down ruling on a dispositive motion by filing a voluntary dismissal of the case without prejudice under OCGA § 9-11-41 (a)...." Mondy v. Magnolia Advanced Materials, 303 Ga. 764, 773-774 (4) (c), 815 S.E.2d 70 (2018) (emphasis omitted). "[T]he right of voluntary dismissal has always been subject to a judicially created limitation prohibiting its exercise, even prior to trial, where there has already been an announcement by the court of its intention to rule in favor of the defendant." Lakes v. Marriott Corp., 264 Ga. 475, 477, 448 S.E.2d 203 (1994) (citation and punctuation omitted).

Dixon acknowledges this rule and seeks to have it overruled—which, of course, can happen only if certiorari is granted. "[W]e have no authority to overrule or modify a decision made by the Supreme Court of Georgia, as the decisions of the Supreme Court shall bind all other courts as precedents." Watson v. State , 337 Ga. App. 16, 18 (1), 785 S.E.2d 656 (2016) (citation and punctuation omitted).

The trial court did not lack jurisdiction to enter the written order memorializing the oral grant of BB&T's motion for judgment on the pleadings.

3. Wrongful foreclosure.

Dixon argues the trial court erred by dismissing his wrongful foreclosure claim because the 2005 security deed was invalid or, at best, conveyed only the 1.11-acre tract as security for the 2005 loan, so that BB&T's foreclosure of the 1.15-acre tract based on the security deed was wrongful. We conclude that Dixon could prove facts in support of his claim that would entitle him to relief. So we reverse the dismissal of the wrongful foreclosure claim.

"A plaintiff asserting a claim of wrongful foreclosure must establish (1) a legal duty owed to it by the foreclosing party, (2) a breach of that duty, (3) a causal connection between the breach of that duty and the injury it sustained, and (4) damages." Canton Plaza v. Regions Bank, 315 Ga. App. 303, 306 (1), 732 S.E.2d 449 (2012). "A claim for wrongful exercise of a power of sale under OCGA § 23-2-114 can arise when the creditor has no legal right to foreclose." DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 448-449 (4), 662 S.E.2d 141 (2008) (citations and punctuation omitted); Brown v. Freedman , 222 Ga. App. 213, 214 (1), 474 S.E.2d 73 (1996) (same). That is precisely what Dixon alleges: BB&T had no legal right to foreclose on the property he acquired from his grandmother's estate because BB&T held no interest in that property.

BB&T argues that when a wrongful foreclosure claim is based on a mistake in the security deed, as is Dixon's claim, at least according to BB&T, then the plaintiff must have standing to reform the deed in order to sue for the wrongful foreclosure, and that Dixon lacked such standing. This is so, BB&T argues, because to have such standing, a party must be in privity with the original grantor but Dixon was not in privity with his grandmother, the original grantor. In support of this argument, BB&T relies on Gregorakos v. Wells Fargo N. A., 285 Ga....