Denesia Bankston v. Res-Ga Twelve, LLC

• Court: Court of Appeals of Georgia
• Decided: November 2, 2015
• Docket: A15A1116
• Status: Published

Opinion

THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, 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

November 2, 2015

In the Court of Appeals of Georgia A15A1116. BANKSTON v. RES-GA TWELVE, LLC et al.

MCFADDEN, Judge.

This appeal is from a trial court order dismissing a complaint for failure to state

a claim. Because the trial court correctly found that there is no set of facts within the

framework of the complaint that would entitle the plaintiff to relief, we affirm.

“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.”

Babalola v. HSBC Bank, 324 Ga. App. 750 (751 SE2d 545) (2013) (citations and

punctuation omitted). So construed, the pleadings show that Denesia Bankston filed

a complaint against RES-GA Twelve, LLC (“RES-GA”) and its law firm Hartman,

Simons and Wood, LLP (“Hartman”), asserting claims for breach of contract, breach of duty of good faith, invasion of privacy, punitive damages and attorney fees. In

support of the claims, the complaint alleged that in 2007, Bankston acquired land by

quitclaim deed and executed a deed to secure debt in favor of First Georgia

Community Bank in the amount of $277,500. The bank was later closed by the

Georgia Department of Banking and Finance, and the Federal Deposit Insurance

Company (“FDIC”) was appointed as receiver for the bank. In 2010, the FDIC

assigned its interest in the aforementioned deed to secure debt to Multibank 2009-1

RES-ADC Venture, LLC (“Multibank”). In 2013, Multibank assigned the deed to

secure debt to RES-GA. On May 29, 2013, Hartman mailed notice of foreclosure to

Bankston that, according to the complaint, failed to include the information required

by the security deed and OCGA § 44-14-162.2. Bankston attached the notice of

foreclosure as an exhibit to the complaint.

RES-GA and Hartman moved to dismiss the complaint for failure to state a

claim. The trial court granted the motion, finding that the notice of foreclosure

attached to the complaint plainly showed that it complied with all notice

requirements. Bankston appeals from the dismissal order.1

1 RES-GA and Hartman’s motion to dismiss the appeal due to untimeliness of, and deficiencies in, Bankston’s appellate brief is hereby denied.

2 A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.

Ramsey v. New Times Moving, 332 Ga. App. 555, 557 (774 SE2d 134) (2015)

(citations and punctuation omitted). “A copy of any written instrument which is an

exhibit to a pleading is a part thereof for all purposes and thus, a trial court is

authorized to consider exhibits attached to and incorporated into the pleadings in its

consideration of a motion to dismiss.” Gold Creek SL v. City of Dawsonville, 290 Ga.

App. 807, 809 (1) (660 SE2d 858) (2008) (citations and punctuation omitted).

1. Breach of contract.

The only specific allegations in the complaint supporting the breach of contract

claim are that the notice of foreclosure was deficient under the security deed and

OCGA § 44-14-162.2. But these allegations

are not factual matters at all. To the contrary, they are conclusions of law. While a trial court is required to consider a non-moving party’s factual allegations to be true, it is not required to accept the legal conclusions the non-[moving] party suggests that those facts dictate. For this reason, [Bankston’s] claims are untenable based on the standard of review alone.

3 Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) (764 SE2d 398) (2014) (footnote

omitted).

Moreover, even if Bankston’s legal conclusions were treated as factual

allegations, they do not provide a basis for relief. As the trial court found, the notice

of foreclosure that was attached to and incorporated into the complaint clearly shows

that it included the required information and was thus sufficient as a matter of law.

See OCGA § 44-14-162.2 (notice must be in writing; be given no later than 30 days

before foreclosure date; include name, address and telephone number of entity with

authority to negotiate all terms of the mortgage; and be sent by registered or certified

mail to specified address). Because the complaint shows with certainty that Bankston

would not be entitled to relief under the state of facts that could be proven in support

of her breach of contract claim, the trial court correctly dismissed that claim.

2. Breach of duty of good faith and fair dealing under security deed.

There is no independent cause of action for violation of a duty of good faith

and fair dealing in the performance of a contract “apart from breach of an express

term of the contract. [Cit.]” Morrell v. Wellstar Health Sys., 280 Ga. App. 1, 5 (2)

(633 SE2d 68) (2006). As discussed above in Division 1, the trial court properly

dismissed the breach of contract claim. Consequently, the claim for breach of duty of

4 good faith and fair dealing under the contract was also properly dismissed since there

is no such independent cause of action apart from the breach of contract claim.

3. Invasion of privacy.

The complaint alleged that RES-GA violated Bankston’s right of privacy by

placing her in a false light before the eyes of others. “To establish this [type of false

light invasion of privacy] claim, a plaintiff must show the existence of false publicity

that depicts her as something or someone which she is not and must demonstrate that

the false light in which she was placed would be highly offensive to a reasonable

person.” Torrance v. Morris Publishing Group, 281 Ga. App. 563, 572 (3) (b) (636

SE2d 740) (2006) (citations and punctuation omitted). Here, the invasion of privacy

count of the complaint did not identify any acts of false publicity and instead simply

referenced the “[d]efendants’ above actions.” As previously noted, the only specific

allegations in the complaint concerned the purportedly deficient notice of foreclosure

that was sent to Bankston. However, as also explained above, that notice was

sufficient as a matter of law, and thus the complaint “fails to state a claim upon which

relief can be granted.” Benedict v. State Farm Bank, 309 Ga. App. 133, 136 (1) (a)

(709 SE2d 314) (2011) (affirming dismissal of invasion of privacy claim).

4. Punitive damages and litigation costs.

5 The trial court correctly concluded that because the primary claims must be

dismissed, the derivative claims for punitive damages and litigation costs also fail.

See Crane v. Samples, 267 Ga. App. 895, 896 (2) (600 SE2d 624) (2004).

Judgment affirmed. Ellington, P. J., and Dillard, J., concur.