DIXON et al.
BRANCH BANKING AND TRUST COMPANY
MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
MCFADDEN, PRESIDING JUDGE.
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.
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.
Standard of review, factual allegations, and procedural
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).
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.
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
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.
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.
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.
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.
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.
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
Trial court's jurisdiction to grant the motion to
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