SECOND DIVISION

ANDREWS, P. J.,

MILLER and BRANCH, 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/

July 14, 2015

In the Court of Appeals of Georgia

A15A0688. JOHNSON v. BANK OF AMERICA, N. A.

BRANCH, Judge.

Bobby Johnson, proceeding pro se, appeals from the dismissal of his suit to

quiet title to certain property and the cancellation of a lis pendens. For the reasons

stated below, we reverse.

On appeal of a trial court’sruling on a motion to dismiss, we conduct a de novo

review. Penny v. McBride, 282 Ga. App. 590 (639 SE2d 561) (2006). Our role is “to

determine whether the allegations of the complaint, when construed in the light most

favorable to the plaintiff, and with all doubtsresolved in the plaintiff’sfavor, disclose

with certainty that the plaintiff would not be entitled to relief under any state of

provable facts.” Id. (Citation omitted.)
The record shows that in the Superior Court of Henry County, Bobby Johnson

filed a verified complaint to quiet title against all the world to residential property

located at 1721 Gallup Drive in Stockbridge; Johnson also filed a notice of lis

pendens. In the complaint, Johnson alleged that he has fee simple title to the property

by way of a 2006 warranty deed that, along with a plat of survey of the land, he

attached to the complaint. Johnson named as defendants Pine State Mortgage

Corporation (Pine State), Bank of America, N. A. (BANA), The Bank of New York

Mellon (BONY), and “unknown parties.” Johnson alleged that Pine State, which

appears to have held a recorded security interest in the property, was “a dissolved

mortgage lender,” that it had relinquished all of its rights as of January 1, 2007, and

that it “no longer [held] a security interest whatsoever in Plaintiff’s property.”

Johnson alleged that BANA and BONY each claimed an estate in the property based

on certain recorded assignments dated in 2011 and 2012, copies of which were

attached to the complaint. Johnson alleged that these assignments were “without

foundation, doubtful and constitute a cloud recorded against Plaintiff’s title to the

property.” Johnson requested that the court declare that the defendants have no estate,

right, title or interest in the property and that they be forever enjoined from asserting

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any such claim. Johnson requested that the superior court “at its discretion appoint

and refer this matter to a Special Master pursuant to OCGA § 23-3-63.” 

BANA was served, but it is unclear from the record whether BONY was

successfully served. Johnson followed steps to effect service by publication on Pine

State. BANA answered and later moved to dismiss the complaint; neither Pine State

nor BONY filed a similar motion. Citing Montgomery v. Bank of America, 321 Ga.

App. 343 (740 SE2d 434) (2013), BANA argued that Johnson lacked standing to

contest the assignments of the Pine State security deed. BANA included the Pine

State security deed as an attachment to its motion. Johnson thereafter filed an

amended complaint that included arguments and citations of law. On July 29, 2014,

the superior court granted BANA’s motion to dismiss, finding as follows:

Having reviewed the relevant pleadings, submissions by the parties and

applicable law, the Court finds BANA’s motion to be well taken.

Accordingly, for the reasons set forth in BANA’s [brief], the Complaint

is hereby DISMISSED WITH PREJUDICE.” (Emphasis in original). 

The court directed the clerk to record a copy of the order in the Henry County deed

records and ordered thatJohnson’s notice of lis pendens be deemed null and void and

cancelled as a matter of record. Johnson appeals.

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1. In separate enumerations of error, Johnson contends the trial court erred

because it based its dismissal on the fact that Johnson did not file a formal response

to BANA’s motion to dismiss and because the trial court failed to consider his

amended complaint. Although the trial court mentioned in its order that Johnson had

not formally responded, the trial court’s order shows that the trial court based its

decision on “the relevant pleadings, submissions by the parties and applicable law.”

These contentions are therefore without merit.

2. In several remaining enumerations of error, Johnson contendsthe trial court

erred as a matter of law by dismissing his complaint and cancelling the notice of lis

pendens. As explained below, we agree that the trial court erred by dismissing the

action and cancelling the lis pendens on the ground that Johnson lacks standing.

Actions against “all the world” to quiet title to real property are governed by

the Quiet Title Act of 1966. OCGA § 23-3-60 et seq. The purpose of the Act “is to

create a procedure for removing any cloud upon the title to land”; the Act is to be

liberally construed; and the remedy provided “is intended to be cumulative and not

exclusive.” OCGA §§ 23-3-60; 23-3-71; 23-3-72. The Act “is a special statutory

proceeding designed for a specific purpose.” James v. Gainey, 231 Ga. 543, 545 (203

SE2d 163) (1974). The Act “creates an efficient, speedy and effective means of

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adjudicating disputed title claims and sets outspecific rules of practice and procedure

with respect to an in rem quiet title action against all the world that take precedence

over the Civil Practice Act when there is a conflict.” Nelson v. Ga. Sheriffs Youth

Homes, 286 Ga. 192 (686 SE2d 663) (2009) (citation and punctuation omitted).1

Under the Act, “[a]ny person who claims an interest in land may bring a

proceeding to establish title to the land, determine all adverse claims, or to remove

clouds on his title.” Smith v. Ga. Kaolin Co., 264 Ga. 755, 756 (2) (449 SE2d 85)

(1994). The Supreme Court has summarized the requirements of a petition to quiet

title as follows:

Under OCGA § 23-3-62 (b), a petition to quiet title must contain a

particular description of the land, a specification of the petitioner’s

1

 For example, 

contrary to the procedures that might otherwise be sufficient to effect

proper service and require that a responsive pleading be filed under the

Civil Practice Act, the Quiet Title Act requires that, in an in rem quiet

title action, a special master must first be appointed who determines

“who is entitled to notice” and who “causes process to (issue in

accordance with the Act)” before a party is required to file a responsive

pleading.

Woodruff v. Morgan County, 284 Ga. 651, 652 (1) (670 SE2d 415) (2008)

(punctuation omitted).

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interest in the land, and whether that interest is based upon a written

instrument, adverse possession, or both. In addition, the petition should

be accompanied by a plat of survey and copies of any written

instruments upon which petitioner’s interest or that of an adverse

claimant is based.

GHG, Inc. v. Bryan, 275 Ga. 336 (1) (566 SE2d 662) (2002). That court further held

that “[a] petition is subject to dismissal only when on the face of the pleadings it

appears that it is in noncompliance with OCGA § 23-3-62.” Id. That court held that

the plaintiff’s petition, which alleged a chain of title from 1884 to the present,

complied with the statutory requirements and was not subject to dismissal. Id.

Compare Dykes Paving & Constr. Co. v. Hawk’s Landing Homeowners Assn., 282

Ga. 305 (647 SE2d 579) (2007) (a petition must allege that the claimant holds current

title; allegations that defendant should convey future title to petitioner and that

defendant gave petitioner an easement are insufficient to support a claim for quiet

title relief); Smith, 264 Ga. at 756 (2) (“plaintiff must have more than the possibility

of an interest in title to bring an action” to quiet title).

In his petition as amended, Johnson alleged that he holds current title by way

of a warranty deed, which he attached to the complaint and which includes a

particular description of the land. He also attached a plat of survey and identified or

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included copies of the instruments upon which the adverse claims are based. And he

alleged that any interest held by Pine State has been relinquished and that the

purported assignments to BANA and BONY are without legal effect. Regardless of

the merits of these claims, Johnson has stated a claim under the Act and therefore has

standing; thus, his complaint should not have been dismissed. GHG, 275 Ga. at 336

(affirming denial of motion to dismiss petition to quiet title); compare In re Rivermist

Homeowners Assn., 244 Ga. 515, 518 (260 SE2d 897) (1979) (dismissal proper where

petitioner failed to bring itself within the language of the Quiet Title Act because it

failed to show a current claim of title). 

BANA’s argument to the contrary is without merit. BANA contends the trial

court was authorized to dismiss Johnson’s petition to quiet title on the ground that

assignments of security deeds may only be challenged by a party to the assignment

and therefore Johnson had no standing to bring the quiet title action. We are not

persuaded. A plaintiff in a quiet title action need not be a party to possible clouds

upon title in order to bring a quiet title action in an attempt to remove those clouds.

See generally Black’s Law Dictionary (9th ed. 2009) (defining “cloud on title” as [a]

defect or potential defect in the owner’s title to a piece of land arising from some

claim or encumbrance, such as a lien, an easement, or a court order.”). Thus, the fact

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that Johnson was not a party to the assignments that he challenges does not destroy

his standing to assert that those assignments are clouds upon his title. The only case

upon which BANA relies for its argument, Montgomery, 321 Ga. App. 343, in which

this Court affirmed the trial court’s dismissal of a claim for quiet title, is not

controlling. Although that opinion states that the lawsuit therein was an action for

wrongful foreclosure, several other claims, and “quiet title,” this Court did not

examine whether the Quiet Title Act demanded a different result. “[Q]uestions which

merely lurk in the record, neither brought to the attention of the court nor ruled upon,

are not to be considered as having been so decided as to constitute precedents.”

Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007) (punctuation and footnote

omitted). 

BANA’s reliance on OCGA § 9-2-20 (a) is also not controlling. That Code

section states that it pertains to “actions on a contract”:

As a general rule, an action on a contract, whether the contract is

expressed, implied, by parol, under seal, or of record, shall be brought

in the name of the party in whom the legal interest in the contract is

vested, and against the party who made it in person or by agent.

Here, Johnson is not attempting to enforce or assert rights under a contract and

therefore has not brought an action on a contract. See generally Scott v. Cushman &

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Wakefield of Ga., 249 Ga. App. 264, 265 (547 SE2d 794) (2001) (“only parties to a

contract may bring suit to enforce it,” citing OCGA § 9-2-20 (a)). Rather, he seeks

to determine whether a recorded instrument is an improper cloud upon his title.

Accordingly, OCGA § 9-2-20 (a) does not apply.

The case of Nelson v. Georgia Sheriffs Youth Homes, 294 Ga. 228 (751 SE2d

783) (2013), upon which BANA also relies, is also distinguishable. BANA cites the

case for the proposition that a trial court retains jurisdiction to grant summary

judgment in quiet title cases even though a special master’s report has not been

entered. But there, the Supreme Court held that “when . . . there is a demand for a jury

trial filed before the special master holds a hearing, the trial court has jurisdiction to

proceed to trial” and is authorized to make findings of fact and to grant summary

judgment when appropriate. Id. at 229; compare Addison v. Reece, 263 Ga. 631, 632

(1) (436 SE2d 663) (1993) (“If no demand for a jury trial is filed prior to the time he

hears the case, the special master is the arbiter of law and fact and decides all issues

in the case.”) (citation and punctuation omitted). In the present case, no jury trial was

demanded and no facts have been found by the trial court. Thus Nelson is

distinguishable.

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In short, the trial court erred by dismissing Johnson’s petition on the ground

that he had no standing to bring this quiet title action and by cancelling the associated

lis pendens. See DOCO Credit Union v. Chambers, 330 Ga. App. 633, 639 (2) (768

SE2d 808) (2015) (reversing dismissal of quiet title action). 

3. Although not enumerated as error, Johnson also argues that the trial court

erred by not appointing a special master. This argument is not properly before us. The

only rulings of the trial court that Johnson enumerated as error were the dismissal of

the petition and the cancellation of the lis pendens. “an appealing party may not use

its brief to expand its enumeration of errors by arguing the incorrectness of a trial

court ruling not mentioned in the enumeration of the errors.” Felix v. State, 271 Ga.

534, 539 n. 6 (523 SE2d 1) (1999) (citations omitted).

We therefore reverse the dismissal of Johnson’s quiet title action and the

cancellation of the lis pendens. Chambers, 330 Ga. App. at 639 (2); see also

Woodruff, 284 Ga. at 653 (1).

Judgment reversed and case remanded with direction. Andrews, P. J., and

Miller, J., concur.

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