                               FIRST DIVISION
                                PHIPPS, P. J.,
                            BOGGS 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


                                                                     March 15, 2016




In the Court of Appeals of Georgia
 A15A1996. CRONAN v. JP MORGAN CHASE BANK, N. A.                              BO-097

      BOGGS, Judge.

      Michael A. Cronan appeals from a trial court order dismissing his counterclaim

against JP Morgan Chase Bank, N. A. (“Chase”).1 On appeal, Cronan contends that

the court erred in dismissing his claim to quiet title and his claim for attorney fees

pursuant to OCGA § 13-6-11. He also asserts that the court erred in “refusing to

permit examination of Chase’s attorney-in-fact.” For the following reasons, we affirm

in part and reverse in part.


      1
       This appeal was originally filed in the Georgia Supreme Court, but that court
transferred the appeal here on grounds that “there appears to be no issue of equity
which could be raised on appeal so as to invoke this Court’s equity jurisdiction . . .
. Further, a review of the record reveals that appellant currently has both legal title
and possession of the land at the heart of his quiet title counterclaim such that it does
not involve this Court’s title to land jurisdiction.”
      The underlying facts are largely undisputed. In 2010, Cronan obtained a

$417,000 loan from Chase and executed a security deed to secure the debt. The deed

listed a parcel ID number and the property address of 2215 Dawnville Beaverdale Rd.

in Dalton, Georgia, (hereinafter “2215 Dawnville”) under “Transfer of Rights in the

Property,” and further provided, “See Attached Legal Description.” The attached

legal description described the property by reference to a plat/survey and by metes

and bounds, and added: “Commonly known as: 2215 Dawnville Beaverdale R,

Dalton, GA 30721.” But, as the parties agree, the legal description in the deed was

for that of 2253 Dawnville Beaverdale Road (“2253 Dawnville”), another property

Cronan owned.

      In September 2012, after Cronan defaulted on the loan, Chase foreclosed on the

property. The advertisement of foreclosure identified 2253 Dawnville as the property

to be foreclosed upon. After the foreclosure deed under power of sale was recorded,2

Chase conveyed its interest in the property to Fannie Mae, and Fannie Mae sought a

writ of possession for “2215 Dawnville Beaverdale Rd NE aka 2253 Dalton GA

30721.” But the magistrate court found that Fannie Mae had an ownership interest in



      2
          This deed listed the property address and description for 2253 Dawnville.

                                           2
2253 Dawnville and did not have a “lien or ownership interest in . . . 2215

Dawnville,” and granted Fannie Mae a writ of possession for 2253 Dawnville only.

      In February 2014, counsel for Chase signed an Affidavit of Title (recorded on

February 18, 2014), asserting that it intended the deed to encumber 2215 Dawnville,

that Cronan defaulted on the loan, that it discovered that the legal description attached

to the deed was for the property located at 2253 Dawnville, and that it intended to file

suit to correct the error in the deed. In April 2014, Chase filed a complaint for

reformation, declaratory judgment, and equitable relief seeking to correct the legal

description in the deed to reflect that the deed was intended to encumber 2215

Dawnville,3 void the foreclosure sale and reinstate the security deed, and return the

parties “to their respective positions and holding their respective interests in the

property.”

      In June 2014, Cronan filed an answer and a counterclaim for libel and abusive

collection. He subsequently filed a motion to compel and for attorney fees, a separate

motion for attorney fees, a motion to dismiss Chase’s complaint, and a motion to


      3
       Chase asserts that although Cronan recorded a survey showing the creation of
2215 Dawnville, that tract is being taxed as part of, and had never been formally
subdivided out of, a 29.71-acre tract of land known as 2235 Dawnville Beaverdale
Road.

                                           3
dismiss lis pendens.4 Chase voluntarily dismissed its complaint without prejudice on

August 8, 2014.5 Chase’s counsel signed a second Affidavit of Title on August 11,

2014, and it was filed the same day.

         On September 24, 2014, Chase moved to dismiss Cronan’s counterclaim. On

October 28, however, Cronan filed an amended answer and verified counterclaim to

quiet title. Following a hearing, the trial court denied Cronan’s pending motions and

dismissed his counterclaims. It is from this order that Cronan appeals.

         1. Cronan argues that the trial court erred in dismissing his quiet title claim.

Assuming without deciding that Chase properly moved to dismiss this claim, we

agree.

         A motion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be
         sustained unless (1) the allegations of the complaint disclose with
         certainty that the claimant would not be entitled to relief under any state
         of provable facts asserted in support thereof; and (2) the movant
         establishes that the claimant could not possibly introduce evidence
         within the framework of the complaint sufficient to warrant a grant of
         the relief sought. The main consideration of such a motion to dismiss is
         whether, under the assumed set of facts, a right to some form of legal

         4
             Chase cancelled this lis pendens and instead filed its second Affidavit of Title.
         5
       Chase explains that it was in the process of repurchasing the property from
Fannie Mae, and that the repurchase was finalized in September 2014.

                                                 4
      relief would exist. If material allegations are missing from a pleading,
      then the pleading fails. [An appellate court’s] review of a trial court’s
      ruling on a motion to dismiss is de novo.


(Citations and punctuation omitted.) Cumberland Contractors v. State Bank and Trust

Co., 327 Ga. App. 121, 125-126 (2) (755 SE2d 511) (2014).

      Cronan’s verified counterclaim to quiet title asserted that Chase’s First and

Second Affidavits and its “actions in falsely or maliciously reporting the foreclosure

of his homeplace a/k/a 2215 Dawnville to mortgage and/or credit reporting companies

. . . cast a cloud over [Cronan’s] title to his homeplace, and/or otherwise subjects him

to future liability or present annoyance.”

      OCGA § 23-3-61 provides in part that

      [a]ny person . . . who claims an estate of freehold present or future or
      any estate for years of which at least five years are unexpired, including
      persons holding lands under tax deeds, in any land in this state, whether
      in the actual and peaceable possession thereof or not and whether the
      land is vacant or not, may bring a proceeding in rem against all the
      world to establish his title to the land and to determine all adverse
      claims thereto or to remove any particular cloud or clouds upon his title
      to the land, including an equity of redemption, which proceeding may
      be against all persons known or unknown who claim or might claim
      adversely to him . . . .


                                             5
The purpose of this equitable remedy

      is to create a procedure for removing any cloud upon the title to land,
      including the equity of redemption by owners of land sold at tax sales,
      and for readily and conclusively establishing that certain named persons
      are the owners of all the interests in land defined by a decree entered in
      such proceeding, so that there shall be no occasion for land in this state
      to be unmarketable because of any uncertainty as to the owner of every
      interest therein.


OCGA § 23-3-60.

      Cronan asserted that only 2253 Dawnville was intended to be encumbered by

the deed as shown by the legal description contained therein, and that 2215 “is merely

a reference to a mailing address at which [Cronan] could be reached.” Chase, on the

other hand, asserted that the deed was intended to encumber 2215 Dawnville. The

allegations of Cronan’s counterclaim disclose that he would be entitled to relief if it

is determined that he does in fact hold unencumbered legal title to 2215 Dawnville

(which he alleges he currently holds), and that Chase through the filing of the

Affidavits of Title and the foreclosure and resulting Deed Under Power, cast a cloud

upon that title. The trial court therefore erred in dismissing Cronan’s counterclaim to

quiet title. See, e. g., DOCO Credit Union v. Chambers, 330 Ga. App. 633, 637 (1)

(768 SE2d 808) (2015) (trial court erred in dismissing quiet title action).

                                          6
      2. Cronan also appeals from the dismissal of his claim for attorney fees

pursuant to OCGA § 13-6-11. The trial court ruled that Cronan’s claim for attorney

fees fails because it found “no merit in his other claims.” In light of our reversal of

the dismissal of Cronan’s quiet title claim in Division 1, we would ordinarily reverse

the court’s denial of his claim for attorney fees pursuant to OCGA § 13-6-11. See, e.

g., Omni Builders Risk, Inc. v. Bennett, 325 Ga. App. 293, 298 (3) (750 SE2d 499)

(2013). But, as the trial court also noted in passing, “a plaintiff-in-counterclaim

cannot recover attorney’s fees under OCGA § 13-6-11 unless he asserts a

counterclaim which is an independent claim that arose separately from or after the

plaintiff’s claim.” (Citations omitted.) Byers v. McGuire Properties, 285 Ga. 530, 540

(6) (679 SE2d 1) (2009). In Byers, the Georgia Supreme Court held that where the

plaintiff brought an action seeking, among other things, cancellation of a deed, a

decree to quiet title, and equitable subrogation, the plaintiff-in-counterclaim could not

recover attorney fees because his quiet title counterclaim was not independent from

the underlying/original complaint. Id. As in Byers, Cronan’s counterclaim to quiet

title did not arise separately from Chase’s claim to reform the deed and void the

foreclosure. See id. The trial court therefore did not err in dismissing Cronan’s claim

for attorney fees pursuant to OCGA § 13-6-11.

                                           7
      3. Cronan argues that the trial court erred in refusing to permit examination of

Chase’s attorney-in-fact. The record reveals that Cronan served a subpoena for

Chase’s counsel to appear to give testimony concerning the Affidavits of Title she

filed as the deponent. Chase’s counsel moved to quash the subpoena on the ground

that, inter alia, the request violates the attorney-client privilege and is overly

burdensome, unreasonable and oppressive. During a hearing, the court effectively

granted the motion to quash by ruling simply, “I’m not going to require her to testify.”

      “A trial court has discretion to quash an unreasonable and oppressive

subpoena, and abuse of discretion is the appropriate standard of review in such

situations.” (Citations and punctuation omitted.) Bazemore v. State, 244 Ga. App.

460, 463 (2) (535 SE2d 830) (2000); see also LecStar Telecom, Inc. v. Grenfell, 273

Ga. App. 712, 715 (4) (616 SE2d 482) (2005); OCGA § 24-13-23 (b) (1). Cronan

argues on appeal that he was entitled to question Chase’s counsel concerning her

stated knowledge of the subjective intent of Chase and Cronan with regard to the

security deed. He asserts that Chase’s counsel’s averments in the Affidavits of Title

“go[ ] far beyond an objective evaluation of title by purporting to know Cronan’s

subjective intent, which cannot be discerned by reviewing documents filed in a

clerk’s office.”

                                           8
      OCGA § 44-2-20 provides in part that

      [r]ecorded affidavits shall be notice of the facts therein recited, whether
      taken at the time of a conveyance of land or not, where such affidavits
      show . . . [t]he relationship of parties or other persons to conveyances of
      land; . . . [or] state any other fact or circumstance affecting title to land
      or any right, title, interest in, or lien or encumbrance upon land.


OCGA § 44-2-20 (a) (1), (9).

      Here, both Affidavits of Title assert allegations concerning the execution of the

deed: that Chase intended the deed to encumber 2215 Dawnville, Cronan’s default

on the loan, Chase’s discovery that the legal description attached to the deed was for

the property located at 2253 Dawnville, that Chase intends to file suit to correct the

error in the deed, and that the purpose of the affidavits is to put all on notice of

Chase’s claimed interest in the property. The second Affidavit of Title adds that

Cronan disputes that 2215 Dawnville was the intended collateral. All of these

allegations simply describe either the relationship of the parties, or other objective

facts or circumstances affecting title to the property. Moreover, nearly all of these

allegations are asserted or confirmed by Cronan either in his answer to Chase’s

complaint, his counterclaim, or his brief on appeal to this court.




                                           9
      Under these circumstances, we cannot conclude that the trial court abused its

discretion in refusing to allow Cronan to question Chase’s counsel. See In the Interest

of N. S. M., 183 Ga. App. 398, 399 (2) (359 SE2d 185) (1987) (trial court did not

abuse its discretion in refusing to allow witness to testify in termination action when

all information sought by petitioners had been obtained through other sources and at

best cumulative).

      Judgment affirmed in part, reversed in part. Phipps, P. J. and Rickman, J,

concur.




                                          10
