BOCA PETROCO, INC. v. Petroleum Realty II

666 S.E.2d 17 (2008)

BOCA PETROCO, INC., et al. v. PETROLEUM REALTY II, LLC et al. (two cases).

Nos. A08A0255, A08A0559.

Court of Appeals of Georgia.

June 17, 2008.

Reconsideration Denied July 23, 2008.

Morris, Manning & Martin, Jeffrey K. Douglass, Atlanta, for appellants.

Swift, Currie, McGhee & Hiers, Matthew B. Jones, Tama K. Retherford, Atlanta, for appellees.

BERNES, Judge.

These related appeals are two of several cases presently before this Court that arise from litigation pending in Florida between appellants, Boca Petroco, Inc., Trico V Petroleum, Inc. and Trico VII Petroleum, Inc., and appellees Petroleum Realty II, LLC and Petroleum Realty V, LLC. Appellants filed notices of lis pendens against properties located throughout the State of Georgia based on the Florida litigation. Appellees petitioned the Superior Court of Fulton County for cancellation and removal of the notices which had been filed on eight separate Fulton County properties. At issue in Case No. A08A0255 is the trial court's order granting appellees' petition to cancel the lis pendens. The trial court concluded that the notices of lis pendens were invalid because appellees did not have enforceable interests in the properties at issue, and also because the Florida court lacked subject matter jurisdiction over the Georgia properties. Case No. A08A0559 involves the trial court's subsequent grant of appellees' motion for supersedeas bond. For the reasons that follow, we affirm the judgment in Case No. A08A0255 and dismiss as moot the appeal in Case No. A08A0559.

The facts of this case are set out fully in our recent opinion, Boca Petroco v. Petroleum Realty, ___ Ga.App. ___, 666 S.E.2d 12, 2008 WL 2312928 (Case No. A08A0130, decided June 6, 2008), which directly controls the issues in this case. Here, as in the prior case, the trial court erred when it reached the merits of the underlying litigation to hold the lis pendens invalid on the ground that the appellants did not have a valid claim to the properties. Id. at ___ _ ___ (1), 666 S.E.2d 12, at 14-15(1).

We nevertheless affirm the trial court's removal of the lis pendens. As fully explained in Boca Petroco v. Petroleum Realty, ___ Ga.App. ___, 666 S.E.2d 12 and *18 clearly articulated in the trial court's order, the lis pendens are invalid because the Florida court lacks subject matter jurisdiction over the properties located in Fulton County. Subject matter jurisdiction in the court in which the underlying litigation is filed remains an essential element of a valid lis pendens in this state. Id. at ___ _ ___(2), 666 S.E.2d 12, at 15-16(2).

In light of our holding in Case No. A08A0255 that the lis pendens were properly removed, the appeal in Case No. A08A0559 relating to the supersedeas bond is dismissed as moot. See Atmos Energy Corp. v. Ga. Public Svc. Comm., 290 Ga.App. 243, 249(2), 659 S.E.2d 385 (2008).

Judgment affirmed in Case No. A08A0255. Appeal dismissed in Case No. A08A0559.

RUFFIN, P.J., and ANDREWS, J., concur.