Tuesday, September 1, 2009

The Lis Pendens: The Anti-Personnel Mine of Real Property

A lis pendens is the filing of Notice on the land records of the pendency of a lawsuit concerning that land. OCGA § 44-14-610. [1] While perhaps a bit cavalier, our thoughts were (in the past) if you had a suit "concerning the land," in any Georgia County, you could (or should) file a lis pendens in the County where the land is located. Naïve? Not really, based on custom.

I. The Lis Pendens Rule

The Georgia Supreme Court's recent Opinion in Boca Petroco Inc. v. Petroleum Reality II, LLC, 060809 GASC, S08G2019 [Nos. S08G2019, S08G2020, S08G2025, S08G2043, S08G2044.] June 8, 2009, may have forever altered the "safe" (or unsafe) filing of a Georgia lis pendens. [2] The Georgia Supreme Court affirmed the Court of Appeals holding in six (6) consolidated appeals in Boca Petroco, Inc. v. Petroleum Realty II, LLC., June 6, 2008. [3]

The Supreme Court made certain that it took the State back to Articles of Confederation (the era of the common law) for the interpretation and filing of a Georgia lis pendens. It wrote: [With regard to the proper filing of a lis pendens] "[I]t is essential that three elements be present; that is, three material facts must concur: the property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject matter; and the property involved must be sufficiently described in the pleadings." Boca Petroco, Inc.

Reordering the list for ease of memory, we find that to file a proper Georgia lis pendens: 1) The Superior Court must have jurisdiction over the person and the property, 2) it must be real property that can be noticed in a lis Pendens and 3) the property must be "involved," in the suit.

The most important distinction in this Boca Petroco pronouncement is that a Georgia lis pendens may not be filed in a remote county unrelated to the main suit.

Boca Petroco Inc., supra's, holding that a out of state lawsuit may not serve as the vehicle from which to file a Georgia lis pendens makes some sense. It does not comport with the modernization of property transactions, the growth of the Internet and the vast expansion of the uploading of property titles into entities like REIT's, but has a certain 19th Century simplicity to it.

The intra-Georgia Rule took me a bit by surprise. While a hyper-technical reading of the lis pendens statute would lead one to the conclusion that a suit filed in Fulton concerning DeKalb County property would not give rise to a DeKalb County lis pendens, some of the actual footwork on the ground has been otherwise. Lawyers have simply filed them on an intra county basis. That is, if (as in one case) land in Cobb County was in dispute with jurisdiction of individual owners who lived in Futlon County with Fulton County Registered Agents, a filing in Fulton with lis pendens in neighboring Cobb County not only seemed reasonable - but compelling.

Boca Petroco Inc., seems to not only undermine that logic, but prohibit it. Boca Petroco Inc., says it does not change the law - and perhaps it does not - but it does change our perception of the use of an intra-county lis pendens. They are prohibited.

II. Practical Problems With the Rule

A. No Out of State Notice

The Opinion in Boca Petroco is certainly focused on the central problem that a lawsuit in Florida may not serve as the basis from which a lis pendens may be filed in Georgia.

B. No Intra County Notice

A more problematic read of Boca Petroco Inc., seems to be its conclusion that a suit in one Georgia county cannot serve as the vehicle for the filing of a Georgia lis pendens in another Georgia County. While consistent with the law of the 19th Century, this cannot be a healthy development in our modern society.

C. No Partnership Notice

This lis pendens ruling turns "Notice," on its head. A Georgia business is likely to own property in more than one Georgia County (if not, in more than one state). This ruling prohibits a partnership dispute over real property in Georgia from providing lis pendens Notice in any county other than the County of the suit.

This issue cannot be solved by filing suit in more than one county over the same cause of action to give notice. While improper, all subsequent suits are subject to dismissal or consolidation. [4]

D. No Divorce Notice

If divorcing spouses own property in more than one county, too bad. As Justice Hunstein pointed out in her well reasoned Dissent, the majority's conclusions (in a modern age) boarder on the absurd: "[A]spouse filing for divorce in Chatham County where the marital residence is located can no longer file a lis pendens on the couple's vacation property in Hall County."

III. Litigation Risks Associated With Lis Pendens

I have always been wary of filing lis pendens. There just is something unnerving about filing a document that has the potential to bring a multimillion dollar closing to a screeching halt for no more cost than the $20 (or less) filing fee.

After Boca Petroco Inc., the risks seem magnified. Not only must a litigator carefully study the filing to be certain it fits within the parameters that: 1) The Superior Court must have jurisdiction over the person and the property, 2) it must be real property that can be noticed in a lis Pendens and 3) the property must be "involved," in the suit, he or she must further convinced that the suit is not one that “lacks substantial justification, is substantially frivolous and/or is substantially groundless.”

The filing of a lis pendens is like the firing of a bullet. It cannot be recalled if it does harm. Unlike recalling all of the B-52's carrying nuclear warheads at the end of Stanley Kubrick's Dr. Strangelove, Columbia Pictures (1964), a lis pendens cannot be recalled, if it does harm upon filing. The damages become fixed at the time of filing.

Notice that the Abusive Litigation Statute OCGA § 51-7-84 makes clear reference to the fact that a lis pendens has no "safe harbor," upon filing. "It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted has voluntarily withdrawn, abandoned, discontinued, or dismissed the civil proceeding, [ * * * ] within 30 days [ * * * ] however, that this defense shall not apply where the alleged act of abusive litigation involves the seizure or interference with the use of the injured person's property by process of [ * * * ] lis pendens . . . ." [5]

IV. Removal of Lis Pendens

If you or your client finds an unlawful lis Pendens, it may be removed by the filing of a Petition to Cancel the Lis Pendens or, if you before the Court with that party, a Motion to Cancel the Lis Pendens. The general method of removal is described, generally, in Scroggins v. Edmondson, 250 Ga. 430, 432 (2) (297 S.E.2d 469) (1982). [6]

V. Possible "Notice" by Other Affidavit Affecting Title

The Supreme Court in Boca Petroco Inc., set out a situation where one cannot file a lis pendens without meeting the requirements associated with OCGA § 44-14-610 as interpreted by Boca Petroco, Inc. However, a lis pendens may not be the only method to provide "Notice." While a lis pendens carries with it the legal tail of changing the title based on the outcome of the pending suit, what about simple, "Notice?" It may not change the title, but it may be better than nothing.

It would appear that a truthful statement of an out of state lawsuit and/or an out of county lawsuit could be recorded against Georgia real property by the filing of an Affidavit Affecting Title under OCGA § 44-2-20. Recorded Affidavits Relating To Land As Notice Of Facts Cited Therein; Admissibility Of Such Affidavits In Evidence; Presumption As To Facts Recited; Filing And Recording. [ * * * ] (9) Where such affidavits state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land. [7]

Will suit be filed over the affidavit filing? Maybe. [No doubt the asserted claim would be slander of title] [8] But remember, you are already in a dogfight with the owner of the land in another jurisdiction and slander of title is subject to the affirmative defense of “good faith.” [9] So, perhaps it is a risk you might want to take. [10] It would appear that the out of county suit (that will change the title) or a pending out of state suit (that will change the title) is a "circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land," that could be placed on the land records with cross-reference to the subject property. Would it have the effect of a lis pendens, clearly not. Would a lender loan money pause at closing upon reading the "affidavit"?" Probably. Every Title Insurance Company I have ever worked with would require further clarification before it issued a policy over such an affidavit.

VI. Conclusion

Lis Pendens look harmless, but they are not.

the Supreme Court's clarification of lis pendens in Boca Petroco Inc., a lawyer should not file a lis Pendens (or he or she should challenge one), if it does not fit in to the three (3) definitions stated in Boca Petroco Inc. Out of State and Out of County lis pendens are prohibited.

Lis pendens can be attacked by Petition or Motion for Cancellation. lis pendens impose heightened scrutiny on litigation counsel prior to filing. This is based on the fact that there is no "safe harbor," once the offending lis pendens is filed. It is an unanswered question whether an affidavit affecting title may be used as an alternative to provide, "notice," where no other notice, given the ruling in Boca Petroco Inc., is available.

After Boca Petroco, Inc., this notice mess really should be taken up by the General Assembly. The General Assembly needs to allow by statute intra-county (inside Georgia) notice of pending lawsuits. Whether Georgia goes further and joins other states with interstate notice of lis pendens is better left to the General Assembly’s wisdom, not mine.

Hugh Wood
Atlanta, GA


& & &

[1] OCGA § 44-14-610 Necessity of recordation for operation of lis pendens as to real property.

No action, whether seeking legal or equitable relief or both, as to real property in this state shall operate as a lis pendens as to any such real property involved therein until there shall have been filed in the office of the clerk of the superior court of the county where the real property is located and shall have been recorded by the clerk in a book to be kept by him for the purpose a notice of the institution of the action containing the names of the parties, the time of the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property.

[2]

Boca Petroco Inc. v. Petroleum Reality II, LLC, 060809 GASC, S08G2019, Nos. S08G2019, S08G2020, S08G2025, S08G2043, S08G2044.
Supreme Court of Georgia
June 8, 2009
HINES, Justice.
We granted certiorari to the Court of Appeals in the whole court case Boca Petroco v. Petroleum Realty, II, 292 Ga.App. 833 (666 S.E.2d 12) (2008),[1] and related panel cases applying the whole court holding[2] to address the issue of whether a lis pendens may be filed in Georgia to give notice of litigation pending outside of Georgia that involves the Georgia property.[3]Finding that a notice of lis pendens may not be filed in such situation, we affirm the judgments of the Court of Appeals.[4]
The facts giving rise to this litigation are detailed in the whole court opinion of the Court of Appeals. Boca Petroco v. Petroleum Realty, II, supra at 834. In summary, the appeals stem from law suits in Florida between appellants Boca Petroco, Inc., Trico V Petroleum, Inc., and Trico VII Petroleum, Inc., (collectively "Boca") and appellees Petroleum Realty II, LLC and Petroleum Realty V, LLC (collectively "PR") over respective lease rights for properties in several counties in Georgia, the properties to be used for the operation of gas stations and convenience stores. Boca filed notices of lis pendens against the properties, and PR, with mixed success, petitioned the various trial courts to cancel the notices of lis pendens. The Court of Appeals held that the notices of lis pendens were invalid because the Florida court lacked subject matter jurisdiction over the properties located in Georgia. Id. at 837 (2). The holding by the Court of Appeals is sound.
As noted by the Court of Appeals, "[t]he phrase 'lis pendens' means, literally, pending suit." Id. at 835. Its purpose is one of notice, that is, the aim is to inform prospective purchasers that real property is directly involved in a pending lawsuit, in which lawsuit there is some relief sought in regard to that particular property. Id. at 834. Lis pendens has its origins in the common law. Vance v. Lomas Mortg. USA, 263 Ga. 33, 35 (1) (426 S.E.2d 873) (1993). At common law, in order to have a valid and effective lis pendens, certain requirements regarding the property at issue and the court adjudicating the legal dispute had to be satisfied. Walker v. Houston, 176 Ga. 878 (169 SE 107) (1933). Furthermore,
[t]he common law doctrine of lis pendens relied on notice in the actual pleadings filed with the court in initiating litigation of property interests. The doctrine imputed to all third parties constructive notice of the litigation and of the claims against property being asserted in the pleadings and bound third parties to the outcome of the litigation.
Boca Petroco v. Petroleum Realty, II, supra at 835. The General Assembly has enacted legislation to address the filing of a lis pendens. Boca Petroco v. Petroleum Realty, II, supra at 834-835. OCGA § 44-14-610 provides:
No action, whether seeking legal or equitable relief or both, as to real property in this state shall operate as a lis pendens as to any such real property involved therein until there shall have been filed in the office of the clerk of the superior court of the county where the real property is located and shall have been recorded by the clerk in a book to be kept by him for the purpose a notice of the institution of the action containing the names of the parties, the time of the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property.
In regard to this statute, the Court of Appeals concluded that "notwithstanding OCGA § 44-14-610, Georgia continues to require a showing of the common law elements of lis pendens before finding that litigation gives rise to a valid lis pendens for which notice may be filed." Boca Petroco v. Petroleum Realty, II, supra at 835. It did so based upon this Court's affirmation of the common law requirements for lis pendens which are found in Scroggins v. Edmondson, 250 Ga. 430, 432 (2) (297 S.E.2d 469) (1982).[5] There this Court stated:
To the existence of a valid and effective lis pendens it is essential that three elements be present; that is, three material facts must concur: the property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject matter; and the property involved must be sufficiently described in the pleadings. Further, the real property must be "involved" in the suit . . . i.e., it must be property which is "actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property."
Scroggins v. Edmondson, supra at 432 (2) (Internal citations and quotation marks omitted; emphasis supplied). And the Court in Scroggins v. Edmondson properly determined that the common law elements of lis pendens survive the statutory enactment. OCGA § 44-14-610 focuses on the mechanics of filing a notice of lis pendens and provides that recordation of the notice of lis pendens is necessary for it to be effective; it does not in any manner attempt to alter the prerequisites for such notice. See Culpepper v. Veal, 246 Ga. 563 (272 S.E.2d 253) (1980) (common law rule survives statute regarding same area of concern when statute does not directly address certain elements of common law rule).
A prerequisite is that "the court must have jurisdiction both of the person and the subject-matter." As the Court of Appeals noted, "[f]or the requirement of subject matter jurisdiction in Scroggins to have purpose, the 'court' referred to must be the court before which the underlying litigation was filed." Boca Petroco v. Petroleum Realty, II, supra at 837 (2). Thus, the court at issue is the Florida court.
The remaining question now raised is the meaning of the mandate that the court involved in the underlying litigation have jurisdiction of the "subject-matter" itself. Boca urges that in articulating this jurisdictional requirement in Scroggins v. Edmondson, this Court did not mean the real property subject to the lis pendens, as the Court of Appeals concluded, but rather was referring to the trial court's power to adjudicate the dispute and to grant the relief requested, i.e., the general concept of subject matter jurisdiction. But, that is plainly not the case.
Under common law precepts, the involved court must have jurisdiction over the real property or res[6] for which a notice of lis pendens is sought.[7] Walker v. Houston, supra at 880. This is so because lis pendens involves,
the jurisdiction, power, or control which the court acquires over the property involved in the suit pending the continuance of the action and until its final judgment therein, has for its object the keeping of the subject, or res, within the power of the court until the judgment or decree shall be entered, and thus to make it possible [for courts of justice] to give effect to their judgments and decrees.[8]
Carmichael Tile Co. v. Yaarab Temple Building Co., 177 Ga. 318, 327-328 (2) (170 SE 294) (1933). Accord, Scarborough v. Long, 186 Ga. 412, 418-419 (2) (197 SE 796) (1938).
As stated in Boca Petroco v. Petroleum Realty, II,
The United States Supreme Court noted long ago that a court in one state does not have subject matter jurisdiction over real property in another state and cannot directly affect the title of property in another state. And Florida courts have recognized that they lack jurisdiction over real property in other states.
Id. at 838 (2). Yet, Boca urges that not permitting lis pendens to give notice of litigation outside the state undermines the public policy of affording greater protection to purchasers of Georgia property, thereby discouraging real estate and other business transactions, and is contrary to the view taken by a majority of states.
The states are split on the question of extraterritorial application of lis pendens. Jurisdictions that permit notices of lis pendens stemming from litigation outside the state have justified this expansion of the reach of common law lis pendens on policy considerations and/or in light of statutory provisions. See e.g., TWE Retirement Fund Trust v. Ream, 198 Ariz. 268 (8 P.3d 1182, 1187(B)(1)(b)) (Ariz. App.2000) (statute permitting a party to "an action affecting title to real property" in Arizona to file notice of lis pendens does not limit filing based upon location of the action); Kerns v. Kerns, 53 P.3d 1157, 1160-1164(II) (Colo.2002) (plain language of Colorado statute permits a party, in any action wherein relief affecting title to real property is claimed, to file lis pendens in the county where the Colorado real estate is located, and jurisdiction in which the action is brought is not relevant under statute); Winters v. Schulman, 977 P.2d 1218, 1223(1)(C) (Utah App.1999) (Utah statute not undermined by applying it to out-of-state judicial proceedings because it provides prospective purchasers of Utah real property with more protection); Belleville State Bank v. Steele, 117 Wis.2d 563 (345 N.W.2d 405, 408-411)(1984) (because statutory lis pendens readily permits determination of any pending litigation affecting the land, "no reason therefore for statutory lis pendens, in contrast to the common law lis pendens, to be limited to the territorial jurisdiction of the court in which the action is pending.") Other states have remained fast to the common law principles of lis pendens. See e.g., Formula Inc. v. Superior Court, 168 Cal.App.4th 1455, 1460 (86 Cal. Rptr3d 341) (Cal. App. 3 Dist.,2008) (nothing in text or history of California lis pendens statutes indicates legislative intent to include litigation in the courts of another state within their ambit); Permanent Financial Corp. v. Taro 71 Md.App. 489, 495 (526 A.2d 611) (Ct.Spec.App.1987) (the doctrine of lis pendens, as applied in Maryland, will operate against only real or leasehold property that is located in Maryland and is the subject of an action pending in Maryland); Ludvik v. James S. Jackson Co., supra at 1141 (no legislative intent to expand common-law doctrine of lis pendens by providing for extraterritorial application).
There is nothing in the present statutory scheme regarding lis pendens to indicate the legislative intent to include litigation in the courts of other states within its reach. See Formula Inc. v. Superior Court, supra at 1460. As to the claim that public policy dictates extraterritorial application, there are compelling policy considerations to the contrary. In Formula Inc. v. Superior Court, it was aptly observed that construing a statutory scheme of lis pendens to include out-of-state litigation might tip the balance between notice for the protection of third party claimants and abuse of lis pendens. Id. at 1463-1464. Indeed, the alienation of real property in Georgia could be severely restricted by the mere filing of a lawsuit anywhere in this country. Permanent Financial Corp. v. Taro, supra at 495. This would prove even more problematic if the foreign litigation continued for a period of time considered excessive under Georgia practice and procedure or was an action not cognizable under Georgia law or one raising issues antithetical to the public policy of this state. But in the final analysis, if, as a matter of policy, this state is to abandon the common law doctrine of lis pendens in favor of an approach expanding the doctrine's reach outside of Georgia, it is a matter best left to the General Assembly. Powers v. CDSaxton Properties, LLC, __ Ga. __ (Case No. S09A0092, decided April 28, 2009); Atmos Energy Corp. v. Georgia Public Service Com'n, 285 Ga. 133 (674 S.E.2d 312, 315) (2009).
Judgments affirmed. All the Justices concur, except Hunstein, P. J., and Carley, J., who dissent.
HUNSTEIN, Presiding Justice, dissenting.
I respectfully disagree with the majority regarding what constitutes a valid lis pendens. The majority expressly requires as a prerequisite to a valid lis pendens that the court in which the notice if filed not only be the court that has jurisdiction over the real property for which a notice of lis pendens is sought, but "`must [also] be the court before which the underlying litigation was filed.' [Cit.]" Majority Opinion, p. 5. The majority's holding, however, not only bars out-of-state litigants from filing a valid lis pendens in Georgia, it also adversely affects Georgia litigants whose causes of action involve real property located in more than one Georgia county. Hence, a spouse filing for divorce in Chatham County where the marital residence is located can no longer file a lis pendens on the couple's vacation property in Hall County; parties to a law suit over the dissolution of a partnership created to develop realty in Cobb, Fulton and DeKalb Counties would have to file litigation in each of those counties and no consolidation of these actions could be accomplished without sacrificing the validity of the lis pendens.
The majority claims its holding will have no affect on these types of Georgia litigants, relying on Walker v. Houston, 176 Ga. 878 (169 SE 107) (1933), which held that "[c]ommon law doctrine permits lis pendens to give notice of a lawsuit brought in a county within the state other than the county in which the real property at issue is located." Maj. Opinion, p. 6, n.7. What the majority plainly fails to recognize, however, is that OCGA § 44-14-610 was enacted for the very purpose of changing the "common law doctrine" on Walker relied and that its superseded holding cannot support the majority's claim.
Walker, supra, was rendered six years before the enactment of the Lis Pendens Act of 1939, Ga. L. 1939, p. 345, § 1, at a time when "purchasers of land were charged with notice of pending suits involving the title which might have been filed in the county where the land lay or in any other county of the state." Hinkel, Pindar's Georgia Real Estate Law, Vol. 1., § 1-20, p. 29, n. 22 (5th ed. 1998). As the facts in Walker reveal, Mary J. Crosby conveyed certain Bacon County property to Walker. The purchase for value was made after Walker had examined Bacon County public records and discovered nothing in them to put him on notice that, during the pertinent time period, Crosby had been named a party in a Pierce County suit filed by Houston regarding her claim of ownership to that same Bacon County property. As this Court phrased it:
[t]he sole question to be determined is whether the suit to cancel the [Bacon County] deed, as filed and docketed in Pierce County, constituted constructive notice of [Houston's] claim against the property as to those who purchased during the pendency of [the Pierce County] litigation, the same having terminated favorably to [Houston].
Id. at 879. We answered that question as follows:
At the time Mary J. Crosby of Pierce County proposed to convey the property now in question, there was filed and docketed against her in that county a valid suit in which her claim of title was being attacked. By ascertaining the fact that she resided in Pierce County and by inspecting the dockets and files of the superior court of that county, any person could have discovered the existence and character of [Houston's] claim. Under the law this was a necessary precaution; and this is true notwithstanding the property was located in a different county. . . . Under the facts appearing in the present case, no essential element of a valid notice of lis pendens was lacking.
Id. at 880-881. Thus, as Walker clearly explains, the lis pendens in Bacon County was valid, even though there was absolutely nothing about the Pierce County litigation in its public records, because the common law doctrine deemed every potential purchaser of realty to have constructive knowledge regarding litigation involving that realty instituted anywhere in the State against the prospective seller of the realty.
Six years after this opinion was rendered, the lis pendens statute was enacted, see Ga. L. 1939, supra, thereby superseding Walker and its holding that a valid notice of lis pendens arose by the mere filing of a suit in one county involving realty in another county. The Lis Pendens Act of 1939, "marked a considerable advance in property law reform." Hinkel, supra. Rejecting the Walker holding that purchasers of land were charged with notice of pending suits involving title filed anywhere in the State, the new law provided that, "in order for [the] constructive notice to be operative, a notice of lis pendens must be filed [cit.]," Vance v. Lomas Mortgage United States, 263 Ga. 33, 35 (1) (426 S.E.2d 873) (1993), with the further specification that the notice must be "entered on the lis pendens docket of the county where the land lies." Hinkel, supra. See also OCGA § 44-14-610.
It thus appears that the entire premise behind Walker's holding was superseded by OCGA § 44-14-610. In lieu of a constructive notice assumed from the mere filing of a lawsuit anywhere in the State, OCGA § 44-14-610 substituted a constructive notice created solely from the proper filing of a lis pendens at a specific court on a specific docket in the specific county where the real property is located. It is contrary to the legislative history of the Lis Pendens Act to engraft, as the majority attempts, the common law concept behind Walker onto our modern lis pendens statute merely in order to avoid the consequences created by the engrafting of another, equally outdated common law concept onto the same statute, namely, the idea that a lis pendens is only valid in "the court before which the underlying litigation was filed.' [Cit.]" Majority Opinion, p. 5.
I cannot agree with the majority's efforts to warp Walker out of its historical and legal context to obtain the result the majority clearly desires, the barring of out-of-state litigants from accessing Georgia courts to file valid lis pendens. Moreover, by interpreting in OCGA § 44-14-610 so as to bar those individuals in courts outside of Georgia whose litigation involves Georgia real property from the statute's protection, yet to accord that statutory protection to those individuals who, although litigating the same types of actions involving the same types of Georgia real property, differ only because their action was filed in a Georgia court, the majority's holding runs afoul of the Privileges and Immunities Clause of the United States Constitution. Art. IV, § 2 provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
The object of the Privilege and Immunities Clause is to "strongly . . . constitute the citizens of the United States one people," by "plac(ing) the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. [Cit.]
Lunding v New York Tax Appeals Tribunal, 522 U.S. 287, 296 (II) (A) (118 S.C. 766, 139 L.E.2d 717) (1998). No substantial reason exists for the majority's discrimination against out-of-state litigants seeking to file valid lis pendens on Georgia property involved in their litigation beyond the mere fact that the litigants are not in Georgia. No substantial reason exists to bar litigants in Florida from filing notices of lis pendens in Cobb, Fulton and Gwinnett Counties yet allow litigants in Chatham County to file valid notices in those same counties. A Chatham County court has no more control or authority over realty in Cobb, Gwinnett and Fulton than a Florida court. Only the situs of their litigation distinguishes these litigants. In McKnett v St. Louis & S. F. R. Co., 292 U.S. 230 (54 S.C. 690, 78 LE 1227) (1934), the United States Supreme Court declared that the Privileges and Immunities Clause requires a state to accord to citizens of other states substantially the same right of access to its courts as it accords to its own citizens. I would recognize that litigants in courts that are not located in Georgia should be accorded the same right as Georgia litigants to file valid lis pendens in the Georgia county where realty involved in their litigation is located.
Likewise, as to those litigants to whom Art. IV, § 2 does not apply, the economic interest they have in Georgia real property that is involved in out-of-state litigation implicates the Commerce Clause of the United States Constitution, Art. I, Sec. VIII, Clause 3. Unlike in-state litigants favored by the majority's construction of OCGA § 44-14-610, out-of-state litigants are burdened by the potential economic loss of real property involved in the litigation due to the fact that, absent the notice provided by a valid lis pendens, a purchaser of that contested realty could qualify as a bona fide purchaser for value without notice against whom there would be no recourse. See generally Dime Savings Bank v. Sandy Springs Assoc., 261 Ga. 485 (4) (405 S.E.2d 491) (1991) (bona fide purchaser for value protected against outstanding interests in land of which purchaser had no notice). As construed by the majority, OCGA § 44-14-610 thus enables in-state litigants to protect their economic interests in realty situated in Georgia while denying that protection to out-of-state litigants, even though there is no reason, apart from the origin of their litigation, for the differential treatment.
Nothing requires this Court to limit lis pendens in the manner set forth in the majority opinion. Clearly, the plain language of OCGA § 44-14-610 does not mandate that holding. That statute requires only that the action involve real property and contains absolutely no limitation language regarding the situs of the underlying litigation. The case law on which the majority relies, wrenched out of its historical and legal context, does not compel the majority's result, yet the majority refuses to reject it under the peculiar idea that such action by this Court would constitute an "expansion" of the doctrine of lis pendens that can only be handled by the General Assembly. In support of this idea, the majority cites cases clearly distinguishable in that they involved situations where parties asked us to create an entirely new means to levy on property, Powers v. CDSaxton Properties, 285 Ga. 303 (__ S.E.2d __) (2009), and raised legitimate policy concerns regarding the effect of this Court's long-established interpretation of a procedural statute. Atmos Energy Corp. v. Ga. PSC, 285 Ga. 133 (674 S.E.2d 312) (2009). The case before us now does not implicate any of the concerns that have properly warranted our referral of matters to the General Assembly. Rather than an expansion of the statute, we would merely be construing it in a manner consistent with the Legislature's original intent. Accordingly, I would recognize that, rather than being a matter for the Legislature, this case embodies the very purpose of the courts: to construe the language of statutes, reconcile conflicts between statutes and older case law and reevaluate the validity of our own precedent. Therefore, because I cannot agree with the majority's resurrection of moribund case law and the imposition of a limitation on OCGA § 44-14-610 contrary to its provisions and inconsistent with the long-standing practice of our bench and bar, I respectfully dissent.
CARLEY, Justice, dissenting.
I dissent to the affirmance of the Court of Appeals' judgment, because I disagree with the majority's holding that this state's law forbids the filing of a notice of lis pendens in Georgia regarding out-of-state litigation involving real property located within Georgia. However, I write separately from Presiding Justice Hunstein because I cannot agree that OCGA § 44-14-610 was enacted to supersede the common law holding in Walker v. Houston, 176 Ga. 878 (169 SE 107) (1933). To the contrary, Walker expounded and developed the common law, and the Lis Pendens Act of 1939, currently codified in OCGA § 44-14-610, did not abandon the common law, but instead facilitated its further development consistent with Walker.
Prior to passage of the Lis Pendens Act, when litigation involved real property located within this state and the elements of the common law doctrine of lis pendens were present, the action itself operated as a lis pendens with respect to that property. Rather than replacing that doctrine, the Act simply imposed one additional requirement, stating that "[n]o action . . . as to real property in this state shall operate as a lis pendens as to any such real property involved therein until there shall have been filed" and recorded in the county where the property is located "a notice of the institution of the action containing" certain information. OCGA § 44-14-610.
Walker applied the common law doctrine of lis pendens to litigation in a different county than the one in which the property was located. The rationale therefor was "'to keep the subject of the suit or res within the power of the court until the judgment or decree shall be entered, and thus to make it possible for courts of justice to give effect to their judgments and decrees. [Cit.]" Walker v. Houston, supra at 880. This Court recognized that the effect of its holding was to make it "a necessary precaution" for the purchaser to have inspected the dockets and files of the superior court of the county in which the seller resided. Walker v. Houston, supra. The Lis Pendens Act removed this difficulty in obtaining information from multiple counties, by preventing an action from operating as a lis pendens unless the specified notice is filed in the proper county. Thus, the Act no doubt made the Walker decision, six years old at the time, far less onerous to purchasers of real property in Georgia.
This Court is now called upon to determine, as an issue of first impression, whether to extend Walker to include out-of-state litigation. In my opinion, we should permit the filing of a notice of lis pendens regarding such litigation, because it would further the purposes of the common-law doctrine as broadened in Walker, and because OCGA § 44-14-610 has removed the only policy concern articulated in that case. The policy considerations relied upon in the majority opinion are effectively mitigated by the availability of a motion to cancel the lis pendens for failure of the underlying action to meet those common-law requirements which remain applicable, including at least personal jurisdiction and actual involvement of the pending litigation with the real property at issue. Although I believe that the novel constitutional analysis posited in Presiding Justice Hunstein's dissent is open to question and in any event unnecessary, I do believe that her concerns for fair treatment of out-of-state litigants are valid and support my position that the common-law doctrine of lis pendens, as improved by OCGA § 44-14-610, should encompass out-of-state litigation.
---------
Notes:
[1]The decision was rendered on June 6, 2008, and the associated granted certiorari is S08G2025.
[2]The related appeals, which arise from different trial courts but present the same issue, are: Boca Petroco v. Petroleum Realty, II, 293 Ga.App. 139 (666 S.E.2d 566) (Decided June 25, 2008) (S08G2043); Boca Petroco v. Petroleum Realty, II, 292 Ga.App. 896 (666 S.E.2d 49) (Decided June 25, 2008) (S08G2019); Boca Petroco v. Petroleum Realty, II, 293 Ga.App. 93 (666 S.E.2d 386) (Decided June 18, 2008) (S08G2044); Boca Petroco v. Petroleum Realty, II, 292 Ga.App. 840 (666 S.E.2d 17) (Decided June 17, 2008) (S08G2020).
[3]Inasmuch as the litigation at issue is in a sister state, the question on certiorari is confined to notice of litigation outside Georgia but within this country and does not address actions pending outside the United States.
[4]The affirmance of the judgments is based upon the Court of Appeals' holding in Division 2 of its whole court opinion and its subsequent application of such holding in its panel decisions; it is unnecessary for this Court to address the Court of Appeals' analyses and conclusions in the remaining divisions of its whole court opinion.
[5]The common law doctrine of lis pendens is reflected in OCGA § 23-1-18, which provides for "general notice of an equity or claim." See Patent Scaffolding Co. v. Byers, 220 Ga. 426, 433 (139 S.E.2d 332) (1964); Russell v. Lawrence, 234 Ga.App. 612, 614 (507 S.E.2d 161) (1998).
[6]Common law doctrine permits lis pendens to give notice of a lawsuit brought in a county within the state other than the county in which the real property at issue is located. Walker v. Houston, supra at 880
[7]Indeed, the common law requirement of jurisdiction has been expressly delineated as "the court must acquire jurisdiction both of the person and the property." Ludvik v. James S. Jackson Co., 635 P.2d 1135, 1141 (Wyo., 1981)(Emphasis supplied).
[8]The common law doctrine of lis pendens has given rise to the maxim, "pendente lite nihil innovetur," which means that during the pendency of the litigation, nothing new is to be introduced. Scarborough v. Long, supra at 418-419; Walker v. Houston, supra at 880; Weston Builders & Developers, Inc. v. McBerry, LLC, 167 Md.App. 24, 29 (891 A.2d 430) (2006).

[3]

666 S.E.2d 12 (Ga.App. 2008), A08A0130, Boca Petroco, Inc. v. Petroleum Realty II, LLC

666 S.E.2d 566 (Ga.App. 2008), A08A0526, Petroleum Realty II, LLC v. Boca Petroco, Inc.

666 S.E.2d 49 (Ga.App. 2008), A08A0281, Petroleum Realty II, LLC v. Boca Petroco, Inc.

666 S.E.2d 17 (Ga.App. 2008), A08A0255, Boca Petroco, Inc. v. Petroleum Realty II, LLC

666 S.E.2d 386 (Ga.App. 2008), A08A0248, Petroleum Realty II, LLC v. Boca Petroco, Inc.

671 S.E.2d 870 (Ga.App. 2008), A08A1631, Boca Petroco, Inc. v. Petroleum Realty II, LLC

Boca Petroco, Inc. v. Petroleum Realty II, LLC., 060608 GACA, A08A0130, Court of Appeals of Georgia, June 6, 2008
Phipps, Judge.
Litigation in Florida between Boca Petroco, Inc., Trico V Petroleum, Inc. and Trico VII Petroleum, Inc. (collectively, "Boca and Trico") on one side and Petroleum Realty II, LLC ("PR II") on the other side led to Boca and Trico filing a notice of lis pendens against property in Gwinnett County. The Gwinnett County Superior Court granted PR II's petition to cancel the notice and ordered it removed from the county's records. Boca and Trico appeal. For reasons that follow, we affirm.
OCGA § 44-14-610 et seq. provide for the filing of a notice of lis pendens against real property involved in a legal action. Whether statutory requirements are met is a legal question,[1] and we review the trial court's decision de novo.
The Florida litigation concerned, among other things, a lease between PR II and Trico V for properties, including the Gwinnett property, to be used as gas stations and convenience stores. In June 2004, PR II sued Boca and Trico in Florida for breach of the lease (the "2004 Action"). Although the parties entered into a settlement that modified the lease, PR II alleged that Boca and Trico defaulted on their obligations under this settlement. In March 2006, after an evidentiary hearing, the Florida court entered a "partial non-final judgment" in the 2004 Action terminating the lease, awarding damages to PR II on certain of its claims, and retaining jurisdiction to enforce and modify the judgment and to award additional relief. A Florida appellate court affirmed this judgment.[2]
In the fall of 2006, Boca and Trico filed another action in Florida (the "2006 Action"), one count of which sought specific performance of the lease, including the right to purchase certain properties covered by the lease.[3] In connection with the 2006 Action, Boca and Trico filed a notice of lis pendens against the Gwinnett property. PR II petitioned the Gwinnett County Superior Court to cancel the lis pendens. After a preliminary review of the evidence and pleadings, the court held that, because the ruling in the 2004 Action terminated the lease, Boca and Trico lacked any enforceable interest in the Gwinnett County property and were not entitled to file a notice of lis pendens against the property in connection with the 2006 Action. The court granted PR II's petition and ordered "the Clerk of the Superior Court of Gwinnett County to cancel and immediately remove the lis pendens . . . from its records."
"The purpose of a lis pendens is to notify prospective purchasers that the property in question is directly involved in a pending suit in the sense that the suit seeks some relief respecting that particular property."[4]
The phrase "lis pendens" means, literally, pending suit. The common law doctrine of lis pendens relied on notice in the actual pleadings filed with the court in initiating litigation of property interests. The doctrine imputed to all third parties constructive notice of the litigation and of the claims against property being asserted in the pleadings and bound third parties to the outcome of the litigation.[5]
In 1939, however, Georgia enacted a statute to require the filing of a notice of lis pendens,[6] and accordingly OCGA § 44-14-610 provides:
No action, whether seeking legal or equitable relief or both, as to real property in this state shall operate as a lis pendens as to any such real property therein until there shall have been filed in the office of the clerk of the superior court of the county where the real property is located and shall have been recorded by the clerk in a book to be kept by him for the purpose a notice of the institution of the action containing the names of the parties, the time of the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property.
Notwithstanding OCGA § 44-14-610, Georgia continues to require a showing of the common law elements of lis pendens before finding that litigation gives rise to a valid lis pendens for which notice may be filed. In Scroggins v. Edmondson,[7] the Supreme Court of Georgia held:
"To the existence of a valid and effective lis pendens, it is essential that three elements be present; . . . the property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject-matter; and the property involved must be sufficiently described in the pleadings." Further, the real property must be "involved" in the suit within the meaning of [OCGA § 44-14-610], i.e., it must be property which is actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.[8]
A court may cancel a notice of lis pendens if, on its face, the notice does not show that the common law requirements for a valid lis pendens have been met.[9] But because "a motion to cancel a notice of lis pendens does not raise any issue concerning the merits of a claim," a court may not cancel a lis pendens notice on the ground that the underlying case (here, the 2006 Action) lacks merit.[10]
1. Boca and Trico argue that the trial court improperly considered the merits of the 2006 Action in determining that it did not create a valid lis pendens concerning the Gwinnett property. We agree.
In its order, the trial court focused on whether Boca and Trico had an "enforceable interest" in the property. A party who lacks an ownership interest in real property cannot file a valid notice of lis pendens against the property.[11] And a notice of lis pendens is void and subject to cancellation if the party who filed the notice loses his ownership interest.[12]
Here the trial court based its finding that Boca and Trico could not claim an enforceable property interest in the 2006 Action upon an order in the 2004 Action terminating the lease that gave rise to the property interest. But in Moore v. Bank of Fitzgerald,[13] the Supreme Court of Georgia held that a notice of lis pendens could not be cancelled on the ground that the underlying action was estopped by earlier litigation. Because estoppel was an affirmative defense to the underlying action, the Moore court held that the estoppel defense related to the merits of the underlying claim and was irrelevant to a motion to cancel a notice of lis pendens.[14] We find that the trial court impermissibly considered the merits of the 2006 Action in holding, based on an estoppel theory, that Boca and Trico lacked a property interest that could give rise to a valid lis pendens.[15]
2. Nevertheless, we find that the trial court properly cancelled the notice of lis pendens because the Florida court lacked subject matter jurisdiction over the Gwinnett property, and thus one of the requirements for a valid lis pendens articulated by the Supreme Court of Georgia in Scroggins was not met.
Boca and Trico argue that the jurisdictional requirement in Scroggins was satisfied because the Gwinnett County Superior Court had jurisdiction over the petition to cancel the notice of lis pendens. But the jurisdiction of the court entertaining a later challenge to a lis pendens notice has no bearing upon whether the underlying litigation created a valid lis pendens for which notice could be filed, the issue addressed in Scroggins. For the requirement of subject matter jurisdiction in Scroggins to have purpose, the "court" referred to must be the court before which the underlying litigation was filed. Earlier Georgia law addressing the jurisdictional requirement supports this interpretation. In Carmichael Tile Co. v. Yaarab Temple Building Co.,[16] for example, the Supreme Court of Georgia described lis pendens as "the jurisdiction, power or control which the court acquires over the property involved in the suit pending the continuance of the action and until its final judgment therein, . . . for [the] object [of] the keeping of the subject, or res, within the power of the court until the judgment or decree shall be entered, and thus to make it possible to give effect to [its] judgments and decrees."[17] One purpose of the doctrine of lis pendens is thus to ensure that the court adjudicating a lawsuit involving real property retains its power over the property pending the suit's resolution. The requirement of subject matter jurisdiction set out in Scroggins is consistent with this purpose because if the court hearing the underlying litigation lacks jurisdiction over the property, then it has no power over the property to retain and the litigation cannot create a valid lis pendens affecting the property.
"[J]urisdiction means the power of a court to render a binding judgment in the case."[18] The United States Supreme Court noted long ago that a court in one state does not have subject matter jurisdiction over real property in another state and cannot directly affect the title of property in another state.[19] And Florida courts have recognized that they lack jurisdiction over real property in other states.[20] While the Florida court presiding over the 2006 Action could exercise personal jurisdiction over the parties to that action to indirectly affect title to the Gwinnett property (for instance, by requiring the parties to take certain action regarding the property),[21] this does not satisfy Georgia's requirement that the court also have subject matter jurisdiction for a valid lis pendens.
As Boca and Trico point out, some jurisdictions recognize lis pendens created by litigation in other states.[22] Those jurisdictions have cited the public policy benefits of expanding lis pendens,[23] and they have noted that the common law requirements for lis pendens served to mitigate the harshness of the doctrine before the enactment of statutes requiring the filing of notice and interpreted their lis pendens notice statutes to narrow those common law requirements.[24] Unlike those jurisdictions, however, Georgia has expressly reaffirmed the common law requirements for the existence of a lis pendens, including its requirement for subject matter jurisdiction, since the enactment of its notice statute.[25]
Under the right for any reason rule, an appellate court may affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied.[26] PR II argued below that the lis pendens was invalid because the Florida court lacked jurisdiction over the property, and we affirm on this ground the trial court's cancellation of the notice of lis pendens.[27]
3. Boca and Trico argue that the trial court erred in directing the clerk to remove the notice of lis pendens from the county's records. OCGA § 44-14-612, which provides for the settlement, dismissal or final judgment in an action to be reflected on the face of the lis pendens record, applies to a properly filed notice of lis pendens.[28] But "a lis pendens not entitled to be recorded may be removed by court order by means . . . other than those prescribed" in the statute.[29] The trial court was authorized to order the notice of the invalid lis pendens removed from the county's records.[30]
Judgment affirmed.
Barnes, C. J., Johnson, P. J., Blackburn, P. J., Smith, P. J., Ruffin, P. J., and Andrews, Miller, Ellington, Mikell, Adams and Bernes, JJ., concur.
---------
Notes
[1] See Everchanged, Inc. v. Young, 273 Ga. 474 & n. 5 (542 S.E.2d 505) (2001).
[2] Trico V Petroleum v. Petroleum Realty I, 939 S2d 1075 (Fla. App. 2006).
[3] The 2006 Action contained several other counts seeking money damages.
[4] Colony Bank Southeast v. Brown, 275 Ga.App. 807, 808 (622 S.E.2d 7) (2005) (citation and punctuation omitted).
[5] Vance v. Lomas Mtg. USA, 263 Ga. 33, 35 (1) (426 S.E.2d 873) (1993) (citations and punctuation omitted).
[6] See id.
[7] 250 Ga. 430 (297 S.E.2d 469) (1982).
[8] Id. at 432-433 (2), quoting Walker v. Houston, 176 Ga. 878, 880 (169 SE 107) (1933) (citation and punctuation omitted); see also Panfel v. Boyd, 187 Ga.App. 639, 646 (4) (371 S.E.2d 222) (1988).
[9] See Hutson v. Young, 255 Ga.App. 169, 171 (564 S.E.2d 780) (2002).
[10] Scroggins, supra at 433 (2); see also Jay Jenkins Co. v. Financial Planning Dynamics, 256 Ga. 39, 43 (5) (343 S.E.2d 487) (1986) (although some states statutorily authorize cancellation of lis pendens notice when plaintiff's success on merits of underlying case is unlikely, Georgia has no such statute).
[11] See Jay Jenkins Co., supra at 42 (4) (a) (affirming cancellation of notice of lis pendens brought against real property by person who no longer had interest in joint venture that owned property).
[12] Bellamy v. Federal Deposit Ins. Corp., 236 Ga.App. 747, 753 (4) (c) (512 S.E.2d 671) (1999) (affirming cancellation of notice of lis pendens after party's ownership interest in property was extinguished through foreclosure and sale, which were upheld on appeal).
[13] 266 Ga. 190 (465 S.E.2d 445) (1996).
[14] Id. at 191.
[15] For this reason, we need not address Boca and Trico's separate claim of error concerning whether the order in the 2004 Action estopped them from seeking specific performance in the 2006 Action.
[16] 177 Ga. 318 (170 SE 294) (1933).
[17] Id. at 327-328, quoting Tinsley v. Rice, 105 Ga. 285, 288 (31 SE 174) (1898) (punctuation omitted) (emphasis supplied); see also Scarborough v. Long, 186 Ga. 412, 418-419 (2) (197 SE 796) (1938).
[18] Williams v. Fuller, 244 Ga. 846, 849 (2) (262 S.E.2d 135) (1979).
[19] Fall v. Eastin, 215 U.S. 1, 9-10 (30 SC 3, 54 LE 65) (1909); see also Baker v. Gen. Motors Corp., 522 U.S. 222, 239 (B) (118 SC 657, 139 L.E.2d 580) (1998) ("one State's judgment cannot automatically transfer title to land in another State"), citing Fall, supra.
[20] See Polkowski v. Polkowski, 854 S2d 286 (Fla. App. 2003).
[21] See Fall, supra at 10 (An extraterritorial court's "decree does not operate directly upon the property nor affect the title, but is made effectual through coercion of the defendant. . . . The court has no inherent power by the mere force of its decree to annul a deed or to establish a title.") (citations and punctuation omitted); General Elec. Capital Corp. v. Advance Petroleum, 660 S2d 1139, 1143 (Fla. App. 1995) (United States Supreme Court decisions, including Fall, "make clear that, although a court may not directly act upon real or personal property which lies beyond its borders, it may indirectly act on such property by its assertion of in personam jurisdiction over the defendant").
[22] See TWE Retirement Fund Trust v. Ream, 8 P.3d 1182, 1187 (B) (1) (b) (Ariz. Ct. App. 2000); Kerns v. Kerns, 53 P.3d 1157, 1160-1164 (II) (Colo. 2002); Winters v. Schulman, 977 P2d 1218, 1223 (C) (Utah Ct. App. 1999); Belleville State Bank v. Steele, 345 N.W.2d 405, 408-411 (Wis. 1984).
[23] See, e.g., TWE Retirement Fund, supra at 1187; Winters, supra at 1222-1223.
[24] See Kerns, supra at 1161-1162 (holding Colorado's lis pendens statute "obviates the need for [] common-law restrictions" and thus finding "no sound justification for limiting the statute's applicability to actions pending in the jurisdiction where the property is located or to actions that operate directly upon title") (citations omitted); Belleville State Bank, supra at 411 (because Wisconsin's lis pendens statute ameliorated harshness of common law lis pendens, "[t]here is no reason therefore for statutory lis pendens, in contrast to common law lis pendens, to be limited to the territorial jurisdiction of the court in which the action is pending") (emphasis supplied).
[25] Scroggins, supra at 432; see also Ludvik v. James S. Jackson Co., 635 P2d 1135, 1140-1141 (Wyo. 1981) (holding that Wyoming's lis pendens statute did not alter common law requirements and thus did not have extraterritorial application), citing Walker, supra.
[26] City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 S.E.2d 369) (2002).
[27] See Bailey v. Hall, 267 Ga.App. 222, 223 n. 1 (599 S.E.2d 226) (2004) (judgment may be affirmed as right for any reason when judgment may be sustained upon legal basis apparent from the record which was fairly presented in court below).
[28] See Hill v. L/A Mgmt. Corp., 234 Ga. 341, 343 (1) (216 S.E.2d 97) (1975) (discussing predecessor to OCGA § 44-14-612).
[29] Id. (citation omitted).
[30] Id. at 344.

[4]

OCGA § 9-2-5. Prosecution Of Two Simultaneous Actions For Same Cause Against Same Party Prohibited; Election; Pendency Of Former Action As Defense; Exception.
(a) No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.
(b) The rule requiring a plaintiff to elect shall not apply to a prior attachment against property where the defendant is subsequently served personally nor to an attachment obtained during the pendency of an action. However, the judgment in the case against the person shall set out the fact of its identity with the proceedings against the property.

[5]

OCGA § 51-7-82. Defenses.
(a) It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted has voluntarily withdrawn, abandoned, discontinued, or dismissed the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation within 30 days after the mailing of the notice required by subsection (a) of Code Section 51-7-84 or prior to a ruling by the court relative to the civil proceeding, claim, defense, motion, appeal, civil process, or other position, whichever shall first occur; provided, however, that this defense shall not apply where the alleged act of abusive litigation involves the seizure or interference with the use of the injured person's property by process of attachment, execution, garnishment, writ of possession, lis pendens, injunction, restraining order, or similar process which results in special damage to the injured person.

[6]

Scroggins v. Edmondson, 250 Ga. 430, 432 (2) (297 S.E.2d 469) (1982)

Supreme Court of Georgia.
November 30, 1982
Rehearing Denied Dec. 15, 1982.
Page 470
[250 Ga. 433] Robert E. Hicks, Robert A. Bartlett, Hicks, Maloof & Campbell, Atlanta, for Frank W. Scroggins, Trustee.
Emmet J. Bondurant, II, H. Lamar Mixson, Trotter, Bondurant, Miller & Hishon, Philip S. Coe, Donald R. Harkleroad, Lamon, Elrod & Harkleroad, P.C., Randall L. Hughes, Charles E. Kuntz, Dodd, Driver, Connell & Hughes, Paul Webb, Jr., Harold T. Daniel, Jr., Webb, Daniel & Betts, Atlanta, Fred Gilbert, J. Matteson, Atlanta, Richard Paul Decker, Decker, Cooper & Hallman, Atlanta, for Susan L. Edmondson et al.
[250 Ga. 430] BELL, Justice.
This appeal seeks to reverse an order cancelling of record a notice of lis pendens. Appellant Scroggins, trustee in bankruptcy of Kaleidoscope, Inc., sued appellee Susan Edmondson and other defendants. Scroggins alleged that Edmondson had been an officer, director, and stockholder of Kaleidoscope, and that she had secured an extension of credit for Kaleidoscope by granting a supplier a deed to secure debt on certain real property she owned. He further claimed that subsequently, with knowledge that Kaleidoscope was insolvent, she had fraudulently used her corporate position to cause Kaleidoscope to repay the secured indebtedness in preference to other corporate debts, and had thus personally benefitted by extinguishing the security deed on her property. On the basis of this fraudulent transfer Scroggins sought, inter alia, to impose a trust or lien on the real property, and filed a notice of lis pendens based on that claim. He also petitioned for an interlocutory injunction to restrain her from disposing
Page 471
of the property. The injunction was denied February 24, 1981. The following year Edmondson filed a motion styled as a "motion for clarification" of the 1981 order. This motion, which was in substance a motion for cancellation of the notice of lis pendens, was granted July 8, 1982.
1) The threshold issue is the appealability of the July 8, 1982 order. It is the duty of this court to raise the question of jurisdiction on its own motion whenever there may be any doubt as to its existence. Woodside v. City of Atlanta, 214 Ga. 75(1), 103 S.E.2d 108 (1958). The record shows that prior to this appeal both parties were aware that there might be some doubt as to the appealability of this order. Appellant sought a Code Ann. 6-701(a)2(A) certificate of immediate review, which was refused. Appellee sought a Code Ann. § 81A-154(b) certificate of finality; the trial court apparently attempted to grant this certificate, but did not succeed in doing so. See division 1(a), infra. Notwithstanding their awareness that the order might not be appealable, they did not bring the matter to this court's attention. It is axiomatic that parties cannot confer jurisdiction by consent, and therefore we will proceed to consider this issue.
a) The order is not appealable pursuant to Code Ann. § 81A-154(b), because there is no certificate of finality required by that statute. While it is true that the trial court ruled that his order should "be deemed a final judgment," this was no more than a direction of entry of final judgment; absent an express determination of no just reason for delay of appeal, his statement cannot be considered a Code Ann. § [250 Ga. 431] 81A-154(b) certificate. Davis v. National Mortgage Corporation, 320 F.2d 90 (2d Cir.1963).
b) Appellant has suggested that the order can be treated as a grant of partial summary judgment, and is therefore appealable pursuant to Code Ann. § 81A-156(h). We do not agree. A motion to cancel a notice of lis pendens does not in and of itself constitute a motion for summary judgment, because it does not go to the merits of the case. See 54 C.J.S. Lis Pendens, § 37(g). Cf. Hines v. Hines, 237 Ga. 755, 229 S.E.2d 744 (1976) (application for contempt is ancillary to primary action; since it is not a pleading, it is necessarily a motion). Moreover, a motion for summary judgment of a motion to cancel would have been an unauthorized and unnecessary complication of the litigation process, since the same purpose was served by simply appearing and going forward in support of the motion. Cf. Howland v. Weeks, 133 Ga.App. 843(1), 212 S.E.2d 487 (1975) (motion to dismiss a motion is unauthorized by CPA, same purpose being accomplished by opposing the motion). But see Kenner v. Fields, 217 Ga. 745, 125 S.E.2d 44 (1962) [1] The July 8, 1982 hearing was clearly nothing more than a hearing of the motion to cancel.
c) With respect to the provisions of Code Ann. § 6-701(a), it is undisputed that no certificate of immediate review under Code Ann. § 6-701(a)2(A) has been granted, compare Hill v. L/A Management Corporation, 234 Ga. 341, 216 S.E.2d 97 (1975) (trial court certified for immediate review an order cancelling notice of lis pendens), nor does the appeal fall within any of the exceptions enumerated in Code Ann. § 6-701(a)3. But consideration of whether the order is "final" within the meaning of Code Ann. § 6-701(a)1 requires more attention. Under our traditional analysis the order would not be final, since the underlying action remains pending in the court below. However, this court has recently adopted the "collateral order" exception to the final judgment rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), with respect
Page 472
to denials of pleas of double jeopardy. Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982). In Patterson, id., a criminal defendant sought to directly appeal an order denying his plea of double jeopardy. We looked at Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and found that the U.S. [250 Ga. 432] Supreme Court in that case had "provided compelling reasons why a broader construction is appropriate where the order appealed from is one denying a plea of double jeopardy," Patterson, supra, 248 Ga. at 877, 287 S.E.2d 7, and we held that an order denying a plea of double jeopardy is appealable under Code Ann. § 6-701.
There is no reason to confine application of the Cohen doctrine to appeals of denials of pleas of double jeopardy, or for that matter to criminal cases. [2] Those federal courts which have considered the question have held that orders granting motions to cancel lis pendens notices are appealable, Chrysler Corp. v. Fedders Corp., 670 F.2d 1316, 1318 n. 2 (3d Cir.1982); Suess v. Stapp, 407 F.2d 662 (7th Cir.1969), and we find their reasoning persuasive.
First, once a notice of lis pendens is cancelled, "[f]rom a practical viewpoint, nothing further in the basic suit can affect the validity of the notice," Suess, supra, at 663, and nothing with respect to the question of cancellation is left "open, unfinished or inconclusive," Cohen, supra, at 337 U.S. at 546, 69 S.Ct. at 1226. Second, there can be no dispute that cancellation of the notice is substantially separate from the basic issues presented in the complaint. Suess, supra, at 663; Chrysler Corp., supra at 1318 n. 2. Finally, an important right might be lost if review had to await final judgment because the realty might be sold before conclusion of the action, making cancellation "effectively unreviewable on appeal." Chrysler Corp., id. Therefore, it is clear that a pretrial order granting a motion to cancel a notice of lis pendens falls "within the small class of cases that Cohen has placed beyond the confines of the final-judgment rule." Abney, 431 U.S. at 659, 97 S.Ct. at 2040, and we hold that such orders are directly appealable.
2) Having so ruled, we turn to consideration of the order. Although it contains no findings or conclusions in support of the cancellation of Scroggins' lis pendens notice, the transcript of the hearing on the motion shows that the trial court concluded that the property was not involved in the suit. We do not agree.
"To the existence of a valid and effective lis pendens it is essential that three elements be present; that is, three material facts must concur: the property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject matter; and the property involved must be sufficiently described in the pleadings." Walker v. Houston, 176 Ga. 878, 880, [250 Ga. 433] 169 S.E. 107 (1933). Further, the real property must be "involved" in the suit within the meaning of Code Ann. § 67-2801, i.e., it must be property which is "actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property." Kenner v. Fields, supra, 217 Ga. at 747, 125 S.E.2d 44. Here, appellee's contention that her real property is not involved in the suit is without merit, since if appellant ultimately prevails in the part of his suit under consideration, a trust or lien will be imposed on the property specifically described in his complaint.
Although Edmondson also argues the merits of appellant's claim, this argument is misplaced. Under Code Ann. Ch. 67-28 a motion to cancel a notice of lis pendens does not raise any issue concerning the merits of a claim, see 54 C.J.S. Lis Pendens, § 37(g); see generally Berger v. Shea, 150 Ga.App. 812, 813, 258 S.E.2d 621
Page 473
(1979); [3] inquiries of that sort are reserved for a motion for summary judgment, a remedy Edmondson remains free to pursue, Polk v. Schwartz, 166 N.J.Super. 292, 399 A.2d 1001 (1979).
The trial court erred in granting the motion to cancel.
Judgment reversed.
All the Justices concur.
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Notes:
[1] Kenner was a suit seeking recovery of damages allegedly arising from the filing of a notice of lis pendens in connection with separate suits, as well as seeking cancellation of that notice. The trial court granted partial summary judgment on the motion to cancel, which was directly appealed. The cancellation was affirmed without discussion of the appealability or the characterization of the order. To the extent that Kenner suggests a result contrary to our decision today, it is disapproved.
[2] The U.S. Supreme Court noted in Abney that "[o]f course, Cohen's collateral order exception is equally applicable in both civil and criminal proceedings." Abney, 431 U.S. at 659, 97 S.Ct. at 2040, n. 4.
[3] Berger was a suit for disparagement of title. There, in holding that notices of lis pendens were absolutely privileged from suit, the Court of Appeals observed that "[t]he complaint alleged that appellee Spindel sought in her separate suit to set aside a fraudulent conveyance of real property. Therefore, real property was involved and the filing of a lis pendens notice was proper ... Here, the appellants have not attacked the underlying suit to set aside the fraudulent conveyance...." Berger, id., 150 Ga.App. at 813, 258 S.E.2d 621.
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[7]

§ 44-2-20. Recorded Affidavits Relating To Land As Notice Of Facts Cited Therein; Admissibility Of Such Affidavits In Evidence; Presumption As To Facts Recited; Filing And Recording.
(a) Recorded affidavits shall be notice of the facts therein recited, whether taken at the time of a conveyance of land or not, where such affidavits show:
(1) The relationship of parties or other persons to conveyances of land;
(2) The relationship of any parties to any conveyance with other parties whose names are shown in the chain of title to lands;
(3) The age or ages of any person or persons connected with the chain of title;
(4) Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties connected with the chain of title;
(5) The payment of debts of an unadministered estate;
(6) The fact or date of death of any person connected with such title;
(7) Where such affidavits relate to the identity of parties whose names may be shown differently in chains of title;
(8) Where such affidavits show the ownership or adverse possession of lands or that other persons have not owned such lands nor been in possession of same; or
(9) Where such affidavits state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land.
Any such affidavits may be made by any person, whether connected with the chain of title or not.
(b) In any litigation over any of the lands referred to and described in any of the affidavits referred to in subsection (a) of this Code section in any court in this state or in any proceedings in any such court involving the title to such lands wherein the facts recited in such affidavits may be material, the affidavits or certified copies of the record thereof shall be admissible in evidence and there shall be a rebuttable presumption that the statements in said affidavits are true. The affidavits or certified copies thereof shall only be admissible as evidence in the event the parties making the affidavits are deceased; they are nonresidents of the state; their residences are unknown to the parties offering the affidavits; or they are too old, infirm, or sick to attend court.
(c) Affidavits referred to in subsections (a) and (b) of this Code section shall be filed by the clerk of the superior court of the county where the land is located and shall contain a caption referring to the current owner and to a deed or other recorded instrument in the chain of title of the affected land. The clerk of the superior court shall record such affidavits, shall enter on the deed or other recorded instrument so referred to the book and page number on which such affidavit may be recorded, and shall index same in the name of the purported owner as shown by such caption in both grantor and grantee indexes in deed records as conveyances of lands are recorded and indexed; and he shall receive the same compensation therefor as for recording deeds to lands.

[8]

§ 51-9-11. Slander Or Libel Concerning Title To Land.
The owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.

[9]

Slander of title is subject to an affirmative defense of good faith. “[8]In commenting on the scope of the privilege created by a good faith defense to a slander of title action, one Florida court relied upon Prosser's Law of Torts:
A rival claimant to the property disparaged, in his capacity as such, is recognized as privileged to assert a bona fide claim by any appropriate means of publication . . . [.] The privilege is uniformly held, however, to be a qualified one, and it is defeated if the defendant's motive is shown to be solely a desire to do harm, or if it is found that he did not honestly believe his statements to be true, or that the publication of the statement was excessive. A few cases have gone further and have said that he must have reasonable grounds for believing his disparaging words to be the truth; but the better view, which is now more generally accepted, is that a genuine belief in their truth is sufficient, however unfounded or unreasonable it may be.
Allington Towers Condo. N. v. Allington Towers N., 415 So.2d 118, 119-20 (Fla. Dist. Ct. App. 1982) (quoting W. Prosser, Law of Torts, § 128 (4th ed. 1971)) (alteration in original).” In re Frank Gallo, Debtor-Appellee. Appeal of Gillian A. Emery No. 08-1315, United States Court of Appeals, Seventh Circuit, July 20, 2009, at Endnote 8.

[10]

It would be subject to being cancelled as in MEA Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008) (The trial court granted the motion, and ordered the cancellation and removal of Appellant's affidavit as a cloud on Appellee's title). However, the very cross-reference to the affidavit removal fight would provide “notice.”

& & &

Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta, GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068

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Anonymous said...

Has the General Assembly addressed this issue?