Branch, Judge. Georgia Appreciation Property, Inc. (“GAP”) filed a declaratory judgment action against Enclave at Riverwalk Townhome Association, Inc., challenging an amendment to Enclave’s governing documents that increased restrictions on owners who choose to lease out their townhome within the development. Enclave moved to dismiss the action on the ground that GAP lacked standing to file what Enclave contended was a derivative action. The parties also filed cross motions for summary judgment on the merits of GAP’s claims. The trial court granted Enclave’s motion to dismiss for lack of standing and further held that Enclave was entitled to summary judgment on the merits. GAP appeals. For the reasons that follow, we hold that the trial court correctly dismissed the action for lack of standing but that the portion of the trial court’s order that purports to enter judgment in favor of Enclave is void and must be vacated.[1]Normally a motion to dismiss for failure to state a claim turns on the allegations of the complaint:[a] motion to dismiss for failure to state a claim upon which relief may be granted should 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. 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. GeorgiaCarry.Org v. Atlanta Botanical Garden, 299 Ga. 26, 28 (1) (785 SE2d 874) (2016) (citation omitted). And “[i]n deciding a motion to dismiss, all pleadings[[2]] are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.” Id. (citation and punctuation omitted).Nevertheless, a dismissal for failure to meet a procedural prerequisite to filing suit, such as for a failure to make a demand in connection with a derivative suit, is a dismissal due to a lack of subjectmatter jurisdiction, which is a matter in abatement. Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 617-618 (2) (a), n. 36 (724 SE2d 894) (2012); see also First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 885, n. 11 (655 SE2d 605) (2008) (a challenge to the trial court’s subject matter jurisdiction is a matter in abatement). And in considering a matter in abatement “a trial court is not confined to the allegations of the complaint.” Equity Trust Co. v. Jones, 339 Ga. App. 11, 14 (792 SE2d 458) (2016) (citation and punctuation omitted).Construed in favor of GAP, the record shows that at the time of the complaint, GAP owned two of thirty-two townhomes of Enclave at Riverwalk, a real estate development governed in part by a “Declaration of Protective Covenants, Conditions, Restrictions and Easements.” With certain restrictions, the Declaration allowed a unit owner to lease his or her unit for residential purposes. As of February 2016, GAP leased out its two units as allowed by the Declaration.[3] After an unchallenged February 2016 amendment to the Declaration,[4] the Declaration provided that it could be amended by a vote of two thirds of the “Total Association Vote” except where a higher vote is required by the Enclave bylaws or by the Georgia Property Owners’ Association Act (the “POA Act”):Except where a higher vote is required for action under any other provision[s] of this Declaration, the Bylaws or by the [POA] Act, this Declaration may be amended with the affirmative vote, written consent, or any combination thereof of Owners holding 2/3 of the Total Association Vote.
And “Total Association Vote” is defined in the Declaration to mean that unit owners whose voting rights have been suspended are not counted as a part of the “Total Association Vote”:“Total Association Vote” means the votes attributable to the entire membership of the Association (including votes of Declarant) as of the record date for such action, but specifically excluding the votes of any Owners whose voting rights have been suspended as provided herein, whether or not such members are present or represented at the meeting, if any, where such votes are to be cast. The February 2016 amendment to the Declaration also submitted the property and Declaration to the provisions of the POA Act, OCGA § 44-3-220 et seq. As noted above, the provision of the Declaration that allows amendments thereto is expressly subject to the terms of the POA Act. The POA Act has its own provision regarding amendment of an instrument, such as a declaration,[5] which provides:Except to the extent expressly permitted or required by other provisions of this article, the instrument shall be amended only by the agreement of lot owners of lots to which twothirds of the votes in the association pertain or such larger majority as the instrument may specify[.]
