BOGGS, Judge.
Michael A. Cronan appeals from a trial court order dismissing his counterclaim against JP Morgan Chase Bank, N.A. ("Chase").
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,
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,
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 dismiss lis pendens.
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.
(Citations and punctuation omitted.) Cumberland Contractors v. State Bank and Trust Co., 327 Ga.App. 121, 125-126(2), 755 S.E.2d 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
The purpose of this equitable remedy
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 S.E.2d 808 (2015) (trial court erred in dismissing quiet title action).
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 S.E.2d 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 S.E.2d 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.
"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 S.E.2d 830 (2000); see also LecStar Telecom, Inc. v. Grenfell, 273 Ga.App. 712, 715(4), 616 S.E.2d 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."
OCGA § 44-2-20 provides in part that
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.
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 S.E.2d 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.