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Dixon v. Branch Banking and Trust Co.

Court of Appeals of Georgia, Fifth Division

March 8, 2019

DIXON et al.
v.
BRANCH BANKING AND TRUST COMPANY

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          MCFADDEN, PRESIDING JUDGE.

         Michael Dixon filed this lawsuit against Branch Banking and Trust ("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 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 ...


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