Scroggins v. Edmondson, 39171

Decision Date30 November 1982
Docket NumberNo. 39171,39171
PartiesFrank W. SCROGGINS, Trustee v. Susan L. EDMONDSON, et al.
CourtGeorgia Supreme Court

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.

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 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. § 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 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. 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,...

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