                             THIRD DIVISION
                            ELLINGTON, P. J.,
                        ANDREWS and RICKMAN, 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


                                                                     June 27, 2017




In the Court of Appeals of Georgia
 A17A0138. ROBERTS v. JP MORGAN CHASE BANK,
      NATIONAL ASSOCIATION et al.

      RICKMAN, Judge.

      Homeowner, James Roberts filed a complaint against JP Morgan Chase Bank,

National Association (“Chase”), and Associated Credit Union (“ACU”), alleging

claims for breach of contract, emotional distress, fraud, negligent misrepresentation,

punitive damages, and attorney fees. The trial court, in two separate orders, granted

separate motions to dismiss filed by Chase and ACU, on the ground that the

complaint failed to state a claim upon which relief can be granted. Roberts appeals.

For the reasons that follow, we affirm the trial court’s rulings as to the claim for

emotional distress; we reverse the rulings as to the claims for breach of contract,

fraud, negligent misrepresentation, and attorney fees; we affirm in part and reverse
in part as to the claim for punitive damages; and we remand this case with direction

and for further proceedings not inconsistent with this opinion.

      “We review de novo the dismissal of a complaint for failure to state a claim.”

(Citation omitted.) Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 134 (1) (709

SE2d 314) (2011). This Court will “accept as true all well-pled material allegations

in the complaint and . . . resolve any doubts in favor of [Roberts].” (Citations,

punctuation, and footnotes omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691

SE2d 547) (2010).1 And in this appeal, because there is no indication that the trial

court converted the motions to dismiss into motions for summary judgment, we

consider documents attached only to the complaint and answers, and not any

additional document attached to Roberts’ pleadings opposing the motions to dismiss.2



      1
         See McConnell v. Dept. of Labor, 337 Ga. App. 457 (787 SE2d 794) (2016)
(“In ruling on a motion to dismiss, the trial court must accept as true all well-pled
material allegations in the complaint and must resolve any doubts in favor of the
plaintiff. As an appellate court, we review de novo a trial court’s determination that
a pleading fails to state a claim upon which relief can be granted, construing the
pleadings in the light most favorable to the plaintiff and with any doubts resolved in
the plaintiff’s favor.”) (citation and punctuation omitted).
      2
        Chase and ACU each filed separate motions to dismiss on the ground of
OCGA § 9-11-12 (b) (6), failure to state a claim upon which relief can be granted.
There were no documents attached to either motion. But Roberts filed responses to
each separate motion, and attached thereto various documents.

                                          2
See Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 751, n. 4 (751 SE2d 545)

(2013).

      The complaint, answers, and the exhibits attached thereto show the following.3

In June 2009, Roberts obtained a loan from Chase in the amount of $265,255, to

refinance a prior loan secured by Roberts’ home property. The June 2009 loan

(hereinafter “the Chase Loan” or “mortgage loan”) is secured by a security deed

executed by Roberts in favor of Chase and filed on July 9, 2009. The security deed

provides that Roberts and Chase did “covenant and agree” to the provisions set forth

in 26 paragraphs of the security deed. Paragraph 19 of the security deed, entitled

“Borrower’s Right to Reinstate After Acceleration,” provides the mechanism for

reinstatement, which includes curing the default of any covenant or agreement under

the deed or note. Paragraph 19 further provides that “Upon reinstatement by

      3
         Copies of the following documents were attached to the complaint as exhibits:
a security deed executed in favor of Chase; a deed to secure debt executed in favor
of ACU; a facsimile transmittal cover letter to Roberts, advising of a pending
foreclosure sale and that payment of “[r]einstatement funds” would stop the sale; a
document entitled “Reinstatement Quote,” and providing the date the “[r]einstatment
amount” quoted therein is “[g]ood through”; a document entitled “Reinstatement
Agreement”; and a cashier’s check in the reinstatement amount. Chase attached to its
answer, a copy of a cancellation of deed to secure debt, executed by Chase. ACU
attached to its answer, a copy of a home equity line of credit note, and a document
reflecting the principal balance on the HELOC note and amounts past due on the
note.

                                          3
Borrower, this Security Instrument and obligation secured hereby shall remain fully

effective as if no acceleration had occurred.”

      In October 2009, Roberts entered into a home equity line of credit agreement

with ACU, in the amount of $100,000. The October 2009 loan (hereinafter “the

HELOC Loan”) is secured by a “Deed to Secure Debt” executed by Roberts in favor

of ACU and filed on October 8, 2009. Paragraph 5 of the deed to secure debt

pertinently provides:

      If Borrower fails to perform the covenants and agreements contained in
      this Deed, or if any action or proceeding is commenced which materially
      affects Lender’s interest in the Property, . . . then Lender at Lender’s
      option, upon notice to Borrower, may . . . disburse such sums and take
      such action as is necessary to protect Lender’s interest, including, but
      not limited to, disbursement of reasonable attorney’s fees . . . . Any
      amounts disbursed by Lender pursuant to this paragraph 5, with interest
      thereon, shall become additional indebtedness of Borrower secured by
      this Deed.


      In 2013, Roberts fell behind on both his mortgage loan and the HELOC Loan.

Chase began foreclosure proceedings; Chase also notified Roberts of the amount due

in order to stop the foreclosure sale and reinstate his mortgage loan, and of the time

period within which to pay the reinstatement amount.


                                          4
      Three days before the expiration of the reinstatement period, Roberts paid the

requisite amount to stop foreclosure and reinstate the Chase Loan, i.e., his mortgage

loan with Chase, and on that same day he executed a document entitled

“Reinstatement Agreement.” The reinstatement agreement listed Chase as the

“Lender” and Roberts as the “Borrower,” and provided that henceforth “strict and

complete compliance with the terms of the Note and Security Deed in effect

immediately prior to Borrower’s default . . . including prompt payment of each

monthly installment when due” would be required. A representative from a company

employed by Chase’s law firm also signed the reinstatement agreement,

acknowledging receipt of the funds “to cancel the pending foreclosure sale.”

      One day past the reinstatement period, ACU paid Chase $261,410.43,

representing the full amount of the Chase Loan. Thereafter, Chase cancelled the

security deed and closed Roberts’ mortgage loan account. ACU added the Chase

Loan pay-off amount to Roberts’ HELOC Loan.

      After ACU’s pay-off to Chase, Roberts’ monthly loan payment/indebtedness

on his property increased by $1,225.97. Roberts repeatedly contacted Chase and

requested a reinstatement of the Chase Loan, and although Chase promised to resolve

the matter, the Chase Loan was not reinstated, resulting in Roberts filing the instant

                                          5
complaint. Roberts also alleged that as a consequence of the increased payment on

his home indebtedness, he had to forego helping his daughter with college tuition,

and he complains of fees and costs “incurred by ACU for their error” that have been

added to the balance of his loan.

      As against both Chase and ACU, Roberts asserted separate claims for breach

of contract, and joint claims for emotional distress, punitive damages, and attorney

fees. As against only Chase, Roberts asserted additional claims for fraud and

negligent misrepresentation.

             At a minimum, a complaint must contain “[a] short and plain
      statement of the claims showing that the pleader is entitled to relief,”
      OCGA § 9-11-8 (a) (2) (A), and this short and plain statement must
      include enough detail to afford the defendant fair notice of the nature of
      the claim and a fair opportunity to frame a responsive pleading. If a
      complaint gives the defendant fair notice of the nature of the claim, it
      should be dismissed for failure to state a claim only if, as our Supreme
      Court has explained, its allegations disclose with certainty that no set of
      facts consistent with the allegations could be proved that would entitle
      the plaintiff to the relief he seeks. Put another way, 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. In
      assessing the sufficiency of the complaint, we view its allegations of fact
      in the light most favorable to the plaintiff.


                                           6
(Citations and punctuation omitted.) Benedict, 309 Ga. App. at 134 (1). “[I]t 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.” (Citation omitted.)

Scott v. Scott, 311 Ga. App. 726, 729 (1) (716 SE2d 809) (2011).

       1. Breach of Contract. Roberts contends that the trial court erred in granting

Chase’s and ACU’s motions to dismiss his breach of contract claims.

       “The elements for a breach of contract claim in Georgia are the (1) breach and

the (2) resultant damages (3) to the party who has the right to complain about the

contract being broken.” (Citation, punctuation, and footnotes omitted.) Houghton v.

Sacor Financial, Inc., 337 Ga. App. 254, 256 (1) (a) (786 SE2d 903) (2016). The

security deed Roberts executed in favor of Chase contained a power of sale and was

thus “a contract and its provisions are controlling as to the rights of the parties thereto

and their privies.” (Citation and punctuation omitted.) Stewart v. SunTrust Mtg., 331

Ga. App. 635, 638 (3) (770 SE2d 892) (2015). Likewise, regarding the deed to secure

debt Roberts executed in favor of ACU, “powers contained in a deed to secure debt

are matters of contract, and will be enforced as written.” (Citation and punctuation

omitted.) Hilton v. Millhaven Co., 158 Ga. App. 862, 863 (282 SE2d 415) (1981).



                                            7
       (a) Chase. Roberts’ breach of contract claim against Chase is based on Chase’s

acceptance of payment from ACU after Roberts had timely paid the requisite amount

to stop the foreclosure and reinstate his mortgage loan. The security deed and

reinstatement agreement reflect that after Roberts cured the default on his mortgage

loan, Roberts had the right to have enforcement of the security deed discontinued, and

the security deed and the obligation secured thereby would remain fully effective

under the terms applicable immediately prior to Roberts’ default, as if no acceleration

of the debt had occurred. The complaint, coupled with the attached security deed and

reinstatement agreement as exhibits thereto, was sufficient to put Chase on notice of

the breach of contract claim being asserted against it. Therefore, the trial court erred

in dismissing the breach of contract claim against Chase. See James v. Bank of

America, N. A., 332 Ga. App. 365, 367-368 (2) (772 SE2d 812) (2015) (physical

precedent only); Stewart, 331 Ga. App. at 638-639 (3); Babalola, 324 Ga. App. at 755

(2) (b).

           (b) ACU. Roberts’ breach of contract claim against ACU is based on ACU’s

payment in full of the mortgage loan after Roberts was no longer in default and was

current on said loan. The deed to secure debt pertinently provides that ACU could



                                           8
“disburse such sums and take such action as is necessary to protect”4 its interest in

the property. The complaint, coupled with the attached deed to secure debt, security

deed, and reinstatement agreement as exhibits thereto, was sufficient to put ACU on

notice of the breach of contract claim being asserted against it. Therefore, the trial

court erred in dismissing the breach of contract claim against ACU. See James, 332

Ga. App. at 367-368 (2) (physical precedent only); Stewart, 331 Ga. App. at 638-639

(3); Babalola, 324 Ga. App. at 755 (2) (b).

      2. Emotional Distress. Roberts alleged that he suffered “mental anguish and

emotional distress” due to the “negligent or intentional acts and/or omissions” of

Chase and ACU.

      “A claim of intentional infliction [of emotional distress] requires conduct that

is of such serious import as to naturally give rise to such intense feelings of

humiliation, embarrassment, fright or extreme outrage as to cause severe emotional

distress.” (Citations and punctuation omitted.) Benedict, 309 Ga. App. at 138 (1) (b).

Roberts’ complaint “says nothing at all about humiliation, embarrassment, fright,

extreme outrage, or severe emotional distress,” and the allegations therein do not give

fair notice to either Chase or ACU of a claim for intentional infliction of emotional

      4
          (Emphasis supplied.)

                                          9
distress. Id. “[F]or this reason, [Roberts] fails to state a claim for intentional infliction

upon which relief can be granted.” Id. See James, 332 Ga. App. at 368 (3).

       To the extent that Roberts asserts a claim for negligent infliction of emotional

distress, he also fails. “In a claim concerning negligent conduct, a recovery for

emotional distress is allowed only where there is some impact on the plaintiff, and

that impact must be a physical injury.” (Citation, punctuation, and footnote omitted.)

Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82) (2000). See

Coon v. Med. Ctr., Inc., 300 Ga. 722, 734 (4) (797 SE2d 828) (2017) (explaining that

in Lee, the Supreme Court of Georgia “recognize[d] a single, carefully circumscribed

exception to the physical impact rule, [and] authoriz[ed] recovery of damages by a

parent where the parent and her child both suffered a physical impact that caused

them both physical injuries, even [where] the parent’s emotional distress arose not

only from her physical injury but also from watching her child suffer and die.”). In

the instant case, there is no allegation of a physical impact. Therefore, the trial court

did not err in granting the motions to dismiss as to the emotional distress claim. See

generally Coon, 300 Ga. at 734-735 (4).

       3. Fraud and Negligent Misrepresentation. “The tort of fraud requires a willful

misrepresentation of a material fact, made to induce another to act, upon which such

                                             10
person acts [or avoids acting] to his injury.” (Punctuation and footnoted omitted.)

Weathers v. Dieniahmar Music, LLC, 337 Ga. App. 816, 824 (3) (788 SE2d 852)

(2016).5 “[F]raud must be pled with particularity under OCGA § 9-11-9 (b).”

Hedquist v. Merrill Lynch, &c. Smith, Inc., 284 Ga. App. 387, 394 (2) (b) (643 SE2d

864) (2007). But in Cochran v. McCollum,6 the Supreme Court of Georgia “held with

respect to an initial motion to dismiss, or motion to strike, that a claim of fraud should

not be dismissed unless it appears beyond doubt that the pleader can prove no set of

facts in support of the claim which would entitle him to relief, and that the remedy at

that stage of the pleading is not a motion to dismiss but a motion for more definite

statement under [OCGA § 9-11-12 (e)].” (Footnotes omitted.) Tucker v. Chung Studio

of Karate, Inc., 142 Ga. App. 818, 819-820 (3) (237 SE2d 223) (1977); OCGA § 9-

11-12 (e). “[T]he only real distinction between negligent misrepresentation and fraud

is the absence of the element of knowledge of the falsity of the information

disclosed.” (Citations and punctuation omitted.) Holmes v. Grubman, 286 Ga. 636,

       5
         See City Dodge, Inc. v. Gardner, 232 Ga. 766, 770, n. 1 (208 SE2d 794)
(1974) (“The five elements of fraud and deceit in Georgia are: (1) false representation
made by the defendant; (2) scienter; (3) an intention to induce the plaintiff to act or
refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff;
(5) damage to the plaintiff.”) (citation omitted).
       6
           233 Ga. 104 (210 SE2d 13) (1974).

                                            11
640-641 (1) (691 SE2d 196) (2010). Accordingly, we consider the two claims in

conjunction with each other.

      Roberts alleged that his fraud and negligent misrepresentation claims against

Chase are based on Chase’s representations to reinstate the mortgage loan after

Roberts paid the requisite reinstatement amount, and on subsequent promises made

by Chase on “numerous occasions” to “rectify the mistake by reinstating his

mortgage.” Roberts alleged that he justifiably relied upon Chase’s representations to

his detriment, and that as a result of Chase’s conduct, he incurred “damages . . . in an

amount to be determined at trial.” It is too early in these proceedings for us to say

beyond doubt that Roberts can prove no set of facts in support of the fraud and

negligent misrepresentation claims which would entitle him to relief. But “[a]t the

very least [Roberts] should designate the occasions on which affirmative

misstatements were made and by whom and in what way they were acted upon.”

(Citation omitted.) Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga.

App. 455, 456 (2) (170 SE2d 863) (1969). Roberts did not meet the requisite pleading

standard,7 but the remedy is not dismissal of the claims. The trial court’s dismissal of


      7
        See Tucker, 142 Ga. App. at 820-821 (3) (setting forth cases addressing the
standard for pleading fraud, including Diversified Holding Corp., supra).

                                          12
the fraud and negligent misrepresentation claims is reversed and the case is remanded

with direction to treat the motion to dismiss as to those claims as a motion for a more

definite statement under OCGA § 9-11-12 (e). See Tucker, 142 Ga. App. at 820 (3);

see also Babalola, 324 Ga. App. at 755 (2) (c).

      4. Punitive Damages. “[P]unitive damages are not available in breach of

contract claims.” (Footnote omitted.) Servicemaster Co. v. Martin, 252 Ga. App. 751,

757 (2) (c) (556 SE2d 517) (2001). But “[f]raud, if found, is tortious conduct,” and

will justify punitive damages. Diana v. Monroe, 132 Ga. App. 669, 671-672 (2) (209

SE2d 70) (1974). See Clark v. Aenchbacher, 143 Ga. App. 282, 284 (1) (238 SE2d

442) (1977) (“in an action for breach of contract, where there are matters of record

relating to fraud, punitive damages can be awarded.”) (citations omitted).

      As concluded in Division 3, supra, the claim for fraud is not subject to

dismissal at this stage of the proceedings. Therefore, the trial court did not err in

dismissing the punitive damages claim as to ACU because the fraud claim, which can

sustain punitive damages, was not asserted against ACU; but the court erred in

dismissing the punitive damages claim as to Chase.

      5. Attorney fees. Roberts alleged that pursuant to OCGA § 13-6-11, he is

entitled to attorney fees on the ground that Chase and ACU have acted in bad faith,

                                          13
have been stubbornly litigious, and have caused him unnecessary trouble and

expense.

      “The expenses of litigation are not generally allowed as a part of the damages;

but if the defendant has acted in bad faith, or has been stubbornly litigious, or has

caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

(Citation and punctuation omitted.) Speir Ins. Agency v. Lee, 158 Ga. App. 512, 514

(4) (281 SE2d 279) (1981); OCGA § 13-6-11. “Successful plaintiffs may recover

under OCGA § 13-6-11 attorney fees and expenses of litigation only to the extent

they are attributable solely to the claims on which they prevailed.” (Footnote

omitted.) Magnus Homes v. DeRosa, 248 Ga. App. 31, 34 (3) (545 SE2d 166) (2001).

If Roberts succeeds on any of his claims, fees expended in pursuit of the claims upon

which he prevails are recoverable if he satisfies the requirements of OCGA § 13-6-11.

See generally Fowler’s Holdings, LLLP v. CLP Family Invs., L. P., 318 Ga. App. 73,

76 (2) (732 SE2d 777) (2012) (“If the claim for breach of contract was successful,

fees expended in pursuit of that claim are recoverable,” under OCGA § 13-6-11)

(citation and emphasis omitted); Magnus Homes, 248 Ga. App. at 31, 33-34 (3)

(affirming award of damages under OCGA § 13-6-11, in breach of contract and

negligent construction case); Kopp v. First Bank of Ga., 235 Ga. App. 520, 524 (3)

                                         14
(509 SE2d 384) (1998) (“Every intentional tort, such as fraud, invokes the species of

bad faith that under the provisions of . . . OCGA § 13-6-11 entitles the person

wronged to recover the expense of litigation involving attorney’s fees.”) (citation and

punctuation omitted). Accordingly, the trial court erred in dismissing the claim for

attorney fees.

      Judgment affirmed in part and reversed in part, and case remanded with

direction and for further proceedings. Ellington, P. J., and Andrews, J., concur.




                                          15
