DOCO CREDIT UNION v. CHAMBERS Et Al.

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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/

February 10, 2015

In the Court of Appeals of Georgia
A13A2465. DOCO CREDIT UNION f/k/a DOCO REGIONAL
FEDERAL CREDIT UNION v. CHAMBERS et al.

DILLARD, Judge.

DOCO Credit Union f/k/a DOCO Regional Federal Credit Union (“DOCO”)

filed a quiet-title action in the Superior Court of Lee County in order to establish that

it had legal title to certain properties located in that county and upon which it had

foreclosed pursuant to the powers of sale contained in several security deeds.

Appellees Ida and Cheryl Chambers filed a motion to dismiss and plea in abatement,

contending that DOCO’s quiet-title action was barred by the Chambers’ previously

filed lawsuit pending in the Superior Court of Daugherty County, which involved

some of the same properties. The Superior Court of Lee County summarily granted

Ida and Cheryl Chambers’s motion and dismissed DOCO’s quiet-title action. On
appeal, DOCO argues that the trial court erred by (1) finding that the Quiet Title Act

was subject to abatement by the Dougherty County action; (2) failing to appoint a

special master; (3) dismissing the case when Lee County was the only proper venue;

and (4) ignoring the venue provisions set forth in the relevant security deeds. For the

reasons set forth infra, we reverse.1

The facts pertinent to our consideration are undisputed. In 2009, William

Chambers, Jr. (“Bill Chambers”), son of Ida Chambers and husband of Cheryl

Chambers, executed, for the benefit of Chambers Motors, Inc. (the family business),

a series of promissory notes in favor of DOCO in exchange for loans totaling over

$1.5 million. The promissory notes were secured by several pieces of real property

1
Under GA. CONST. art. VI, § VI, ¶ III (1), the Supreme Court of Georgia has
original appellate jurisdiction over “[c]ases involving title to land.” And because this
Court concluded that jurisdiction might lie with our Supreme Court (see Tharp v.
Harpagon Co., 278 Ga. 654, 655 (1) (604 SE2d 156) (2004)), we transferred the
appeal to that court for disposition. On May 7, 2014, the Supreme Court of Georgia
issued an order transferring the appeal back to this Court, concluding that “the issue
raised on appeal does not require the resolution of a question regarding title to land,”
but instead “involves only whether the trial court erred in deciding that appellant’s
complaint should be abated or dismissed for failure to state a claim.” See Graham v.
Tallent, 235 Ga. 47, 49 (218 SE2d 799) (1975) (defining “title to land” cases as
“actions at law, such as ejectment and statutory substitutes, in which the plaintiff
asserts a presently enforceable legal title against the possession of the defendant for
the purpose of recovering the land”) (citation and punctuation omitted). Then, on May
28, 2014, this Court reinstated the appeal as a September 2014 Term case. See CC
Financial, Inc. v. Ross, 250 Ga. 832, 834 (3) (301 SE2d 262) (1983).

2
located in both Crisp and Lee Counties (collectively, the “Properties”). And

depending on the ownership of the Properties, the security deeds were purportedly2

executed by Ida Chambers, individually or as executrix of the Estate of William H.

Chambers, Sr., or by Bill Chambers, individually or as the Trustee of the Ida W.

Chambers Revocable Trust (the “Revocable Trust”) or the Testamentary Trust (the

“Testamentary Trust”) established under the Last Will & Testament of William H.

Chambers, Sr. (collectively, the “Trusts”).

Bill Chambers defaulted on the loans, and DOCO obtained a judgment against

him for the outstanding balance. Thereafter, in September 2011, DOCO foreclosed

on various properties, including six of the eight properties3 located in Lee County (the

“Lee County Properties”), in accordance with the power of sale contained in the

security deeds. DOCO was the highest bidder and purchased the Properties at the

foreclosure sale. At no time did Ida or Cheryl Chambers object to the foreclosures,

2
Ida and Cheryl Chambers allege that one or more of the signatures on the
security deeds were forged. This factual dispute, however, is not relevant to our
abatement analysis.
3
Because two of the security deeds contain what DOCO characterizes as a
scrivener’s error, in which the names of the interest-holding Trusts are transposed,
DOCO did not foreclose on the remaining two Lee County Properties and sought
reformation of the security deeds in the Quiet Title Action (described infra).

3
nor did any member of the Chambers family make any attempt to pay the outstanding

debt in order to save the collateralized Properties.

Following the foreclosures, Bill Chambers filed for Chapter 7 bankruptcy

protection. Then, in March 2012, more than six months after the foreclosures, DOCO

received a letter from counsel for Cheryl Chambers and the Trusts, alleging that Bill

Chambers’s conveyance of certain Properties owned by the Trusts constituted a

breach of his fiduciary duties, and that DOCO aided and assisted in that breach. The

letter concluded that the use of that collateral was void and demanded a return

transfer of those Properties and compensation for damages.

After receipt of counsel’s correspondence, DOCO filed in the bankruptcy

proceeding a motion for relief from stay in order to prosecute a quiet-title action to

resolve the claims asserted in the letter. And while that motion was pending, in

January 2013, Ida and Cheryl Chambers initiated a lawsuit in the Superior Court of

Daugherty County (the “Daugherty County Lawsuit”). In the complaint, Ida and

Cheryl Chambers alleged that Bill Chambers and DOCO conspired to unlawfully

convert the Properties and asserted against DOCO claims of conversation, aiding in

breach of fiduciary duty, conspiracy, interference with business/contractual relations,

wrongful foreclosure, civil RICO, and constructive trust. In addition, they sought

4
monetary damages, attorney fees, injunctive relief, and an accounting.4 Significantly,

at no time did Ida or Cheryl Chambers move to set aside the foreclosures.5 DOCO

answered the complaint, denied the allegations, and filed a counterclaim to quiet title

to the Properties.

In February 2013, after obtaining relief from the bankruptcy stay, DOCO

commenced its quiet-title action in the Lee County Superior Court (the “Quiet Title

Action”) to remove clouds on the titles of the Lee County Properties so that it could

market and sell same. In addition to their answer, Ida and Cheryl Chambers filed a

motion to dismiss and plea in abatement, arguing that DOCO’s Quiet Title Action

was subject to abatement by the previously filed Daugherty County Lawsuit.

4
Bill Chambers was not named as a defendant in the lawsuit.
5
Although the Daugherty County Lawsuit included a claim seeking the
creation of “a constructive trust as to each [of the Properties] or any income derived
therefrom . . . in favor of its respective owner,” Ida and Cheryl Chambers cannot
claim the right to title to the Properties without first setting aside the foreclosures. See
generally Oduok v. Wedean Properties, Inc., 319 Ga. App. 785, 787 (1) (a) (738 SE2d
626) (2013) (“The purchaser at a foreclosure sale under a power of sale in a security
deed is the sole owner of the property until and unless the sale is set aside.”
(punctuation omitted)); accord Vines v. LaSalle Bank Nat’l. Ass’n, 302 Ga. App. 353,
353 (691 SE2d 242) (2010); Jackman v. LaSalle Bank, N.A., 299 Ga. App. 894, 895
(1) (683 SE2d 925) (2009).

5
Specifically, the motion asserted that the Daugherty County Lawsuit and the Quiet

Title Action involved the same parties, represented the same cause of action, and that

the Daugherty County court was the only venue with jurisdiction to hear all of the

claims between the parties. Finally, the motion alleged that by filing the Quiet Title

Action, DOCO sought nothing more than an improper declaratory judgment in an

attempt to obtain “an advisory opinion as to the legitimacy of its foreclosures.”

DOCO opposed the motion, but the Lee County Superior Court, nonetheless, granted

it in a summary order. This appeal follows.

1. DOCO first contends that the trial court erred in holding that the Daugherty

County Lawsuit abated the Quiet Title Action. We agree.

We begin by acknowledging the long-standing rule that “when two civil

actions involving the same cause of action and the same parties remain pending but

are filed at different times, the later-filed action is abated and must be dismissed.”6

This ancient and well-established principle is rooted in recognition of the fact that “no

one should be twice harassed, if it appear[s] to the Court that it is for one and the

6
Odion v. Varon, 312 Ga. App. 242, 244 (2) (718 SE2d 23) (2011); see OCGA
§ 9-2-44 (a) (“[T]he pendency of a former action for the same cause of action between
the same parties in the same or any other court having jurisdiction shall be a good
cause of abatement.”).

6
same cause.”7 And even if two causes of action are not identical but, technically

speaking, “are legally disparate and rest in opposite parties,”8 the second suit will still

be abated if those actions “arise out of the same transaction and if the second suit

would resolve the same issues as the first pending suit.”9

It is against this jurisprudential backdrop that we examine the two causes of

action involved in the case sub judice. Ida and Cheryl Chambers’s first-filed action

is based in tort; they seek monetary and punitive damages for the allegedly wrongful

foreclosures that resulted from DOCO’s fraudulent conduct in conspiring with their

son and husband, respectively, to unlawfully use the Properties owned by the Trusts

as collateral for loans to the family business. And by electing to pursue monetary

damages, Ida and Cheryl Chambers necessarily do not seek a return of title to the

7
Atlanta Airmotive, Inc. v. Newnan-Coweta Airport Auth., 208 Ga. App. 906,
906 (1) (432 SE2d 571) (1993) (punctuation omitted); see also Rogers v. Hoskins, 15
Ga. 270, 273 (2) (1854) (same); Schoen v. Home Fed. Sav. & Loan Ass’n of Atlanta,
154 Ga. App. 68, 69 (267 SE2d 466) (1980) (same).
8
Atlanta Airmotive, 208 Ga. App. at 906 (1) (punctuation omitted); see also
Schoen, 154 Ga. App. at 69 (same).
9
Atlanta Airmotive, 208 Ga. App. at 906 (1) (punctuation omitted); see also
Rogers, 15 Ga. at 274 (2) (same); Schoen, 154 Ga. App. at 69 (same); Hood v.
Cooledge, 39 Ga. App. 476, 478 (1) (147 SE 426) (1929) (same).

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Properties, because an “injured party may not both set aside or cancel the foreclosure

and also recover damages for the value of the property.”10

DOCO, on the other hand, by way of the Quiet Title Action, is seeking to

“readily and conclusively establish[ ]” that it is the owner and title holder of the Lee

County Properties.11 Indeed, an action to quiet title, which must be brought in the

county in which the land is situated,12 is a “special statutory proceeding designed for

[that] specific purpose.”13 And by adopting the Quiet Title Act of 1966,14 the General

10
Calhoun First Nat’l Bank v. Dickens, 264 Ga. 285, 286 (1) (443 SE2d 837)
(1994) (punctuation omitted).
11
Porter v. Houghton, 273 Ga. 407, 407 (542 SE2d 491) (2001) (punctuation
omitted); see OCGA § 23-3-60 (“The purpose of this part is to create a procedure for
removing any cloud upon the title to land . . . 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.”).
12
See Ga. Const. Art VI, Sec. II, Para. II (“Cases respecting titles to land shall
be tried in the county where the land lies . . . .”); OCGA § 23-3-62 (a) (“The
proceeding in rem shall be instituted by filing a petition in the superior court of the
county in which the land is situated.”); Smith v. Ga. Kaolin Co., Inc., 264 Ga. 755,
755-56 (1) (449 SE2d 85) (1994).
13
Woodruff v. Morgan County, 284 Ga. 651, 651 (1) (670 SE2d 415) (2008)
(punctuation omitted); see also James v. Gainey, 231 Ga. 543, 544 (203 SE2d 163)
(1974) (same).
14
OCGA § 23-3-60 et seq.

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Assembly intended to establish “an efficient, speedy and effective means of

adjudicating disputed title claims,”15 so as to “eliminate the possibility that land in

this state could not be sold due to any uncertainty about the ownership of any interest

in the property.”16 Thus, as the present title holder to the Lee County Properties, a

quiet-title action is both an available and appropriate vehicle through which DOCO

can establish its right to same.17

15
Nelson v. Ga. Sheriffs Youth Homes, Inc., 286 Ga. 192, 192 (686 SE2d 663)
(2009) (punctuation omitted); see also Heath v. Stinson, 238 Ga. 364, 365 (233 SE2d
178) (1977) (same).
16
Cowron & Co. v. Shehadeh, 268 Ga. 383, 383 (490 SE2d 82) (1997); see also
OCGA § 23-3-60; Smith, 264 Ga. at 756 (2). Because the Quiet Title Act sets forth
specific rules and procedures that govern its terms, its statutory provisions control to
the extent that they conflict with the Civil Practice Act. See OCGA § 9-11-81;
Woodruff, 284 Ga. at 651-52 (1).
17
See Porter, 273 Ga. at 408 (“In cases such as this involving record title to
numerous tracts of land and multiple parties . . ., the quiet title in rem action, which
affords complete relief within a procedural framework providing adequate safeguards
of the rights of all parties is always available . . . .”); see also Dykes Paving & Const.
Co., Inc. v. Hawk’s Landing Homeowners Ass’n, Inc., 282 Ga. 305, 305 (647 SE2d
579) (2007) (“To state a claim for quiet title relief, a plaintiff must allege more than
a right to acquire title; it must allege that it presently holds current title or current
prescriptive title.”).

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 It follows, then, that the two causes of action at issue in this case are neither

identical nor do they resolve the same issues.18 The Quiet Title Action seeks to

establish DOCO as the legal title holder of the Lee County Properties, while the

Daugherty County Lawsuit seeks to hold DOCO monetarily responsible for the

allegedly unlawful acquiring of the titles to those and other Properties. And because

the Quiet Title Action to the Lee County Properties was required to be brought in that

county, the Superior Court of Daugherty County lacked jurisdiction to consider the

petition.19 Consequently, the Lee County Superior Court erred in dismissing the Quiet

18
See BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 760 (1)
(670 SE2d 210) (2008) (application for confirmation not abated by a previously filed
action for wrongful foreclosure because a confirmation action is a special statutory
proceeding that resolves only issues related to legality of the sale itself); see also
Cheely v. State, 251 Ga. 685, 687 (3) (309 SE2d 128) (1983) (second validation
proceeding not abated by the first because actions involved bonds in different
amounts and with different due dates and thus presented separate and distinct claims);
Cf. Schoen, 154 Ga. App. at 70 (dispossessory action abated by a previously pending
lawsuit seeking the cancellation of a fraudulent security deed because “the
determination of entitlement to the land in the first action will necessarily dispose of
the issue of entitlement in the second action . . .”).
19
For this same reason, DOCO’s counterclaim in the Daugherty County
Lawsuit cannot be considered a previously filed quiet-title action to the Lee County
Properties. See Aiken Dermatology & Skin Cancer Clinic, P. A. v. DavLong Sys. Inc.,
314 Ga. App. 699, 703 (2) (725 SE2d 835) (2012) (“If it appears from the face of the
pleadings in the first-filed case that the court therein does not have jurisdiction to
resolve the pending claims on the merits, then the plea of abatement will not lie and
the later-filed suit may proceed forward.” (punctuation omitted)); Bhindi Bros. v.

10
Title Action, and we must reverse the court’s dismissal of DOCO’s Quiet Title

Action.

2. DOCO next argues that the trial court erred by failing to appoint a special

master. Again, we agree.

In Georgia, our Quiet Title Act requires “a trial court to appoint a special

master”20 and for that special master to “make a report of the special master’s findings

to the trial court.”21 And while the quiet title statutory scheme provides that “the

special master, once appointed, shall have complete jurisdiction within the scope of

the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s

title and all other interests in the land . . . or to remove any particular cloud or clouds

upon the title to the land and to make a report of his findings to the judge of the court,

Patel, 275 Ga. App. 143, 146 (619 SE2d 814) (2005) (same).
20
Nelson, 286 Ga. at 192; OCGA § 23-3-63 (“The court, upon receipt of the
petition together with the plat and instruments filed therewith, shall submit the same
to a special master who shall be a person who is authorized to practice law in this
state and is a resident of the judicial circuit wherein the action is brought.”).
21
Nelson, 286 Ga. at 192-93; OCGA § 23-3-66 (“[T]he special master shall
have complete jurisdiction within the scope of the pleadings to ascertain and
determine the validity, nature, or extent of petitioner’s title and all other interests in
the land, or any part thereof, which may be adverse to the title claimed by the
petitioner, or to remove any particular cloud or clouds upon the title to the land and
to make a report of his findings to the judge of the court.”).

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the trial court is not divested of its overall jurisdiction of the case and its sole

authority under OCGA § 23-3-67 to issue the final decree.”22 Thus, in this action to

quiet title, the trial court should have appointed a special master to submit a report of

its findings. And because we reverse the trial court’s dismissal of the Quiet Title

Action, we remand the case with direction for the trial court to appoint a special

master.23

3. Given our holdings in Division 1 and 2 supra, we need not address DOCO’s

remaining claims of error.

For all of the foregoing reasons, we reverse the trial court’s order dismissing

DOCO’s action and remand the case for the court to appoint a special master.

Judgment reversed and case remanded with direction. Doyle, P. J., and Miller,

J., concur.

22
Nelson, 286 Ga. at 193 (punctuation and citation omitted).
23
See id. (remanding the trial court’s grant of summary judgment in a quiet-title
action when the trial court’s summary adjudication lacked findings of fact and a
report of the special master’s findings); Woodruff v. Morgan County, 284 Ga. 651,
652 (1) (670 SE2d 415) (2008) (reversing and remanding the trial court’s grant of a
default judgment in an in rem quiet-title action when no special master was
appointed); Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640, 643 (2) (755 SE2d 675)
(2014) (finding, with regard to a counterclaim to quiet title, that “the appointment of
a special master is mandatory”).

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