Lead Opinion
We granted certiorari to the Court of Appeals in the whole court case Boca Petroco v. Petroleum Realty II,
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 lawsuits in Florida between appellants Boca Petroco, Inc., Trico V Petroleum, Inc., and Trico VII Petroleum, Inc. (collectively “Boca”), and appel-
As noted by the Court of Appeals, “[t]he phrase ‘lis pendens’ means, literally, pending suit.” Boca Petroco v. Petroleum Realty II, supra 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 Mtg. USA,
[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. Id. 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.
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.”
Id. at 432 (2) (citations and punctuation 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,
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 articu
Under common law precepts, the involved court must have jurisdiction over the real property or res
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.,
As stated in Boca Petroco v. Petroleum Realty II,
[t]he 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,
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,
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 The 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 The 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
Judgments affirmed.
Notes
The decision was rendered on June 6, 2008, and the associated granted certiorari is S08G2025.
The related appeals, which arise from different trial courts but present the same issue, are: Boca Petroco v. Petroleum Realty II,
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.
The affirmance of the judgments is based upon the Court of Appeals’s 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’s analyses and conclusions in the remaining divisions of its whole court opinion.
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,
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.
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.,
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,
Dissenting Opinion
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 is 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. 489. 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 lawsuit 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 effect on these types of Georgia litigants, relying on Walker v. Houston,
The 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
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 substitutes 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. 489.
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. 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,
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.
Dissenting Opinion
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,
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
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.