SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
January 16, 2014
In the Court of Appeals of Georgia A13A2225. MELJON v. SONSINO, et al.
RAY, Judge.
This appeal seeks to reverse an order cancelling of record a notice of lis
pendens. For the reasons that follow, we reverse.
In August 2007, appellant Solly Meljon1 and appellee Victor Sonsino, through
a company Sonsino owned called Carmel Industries, Inc., agreed to purchase real
property in Marietta. Allegedly in contravention of the agreement, Sonsino then took
out a loan using the Marietta property as collateral. More than a year later, in October
2008, Sonsino conveyed a separate property that he owned in Dunwoody to his sister-
in-law, appellee Helen Sonsino, via a quitclaim deed. In October 2010, the bank
foreclosed on the Marietta property after Carmel Industries defaulted.
1 Meljon is also known as Solly Melyon. Meljon then sued the Sonsinos, seeking damages for, inter alia, conversion and
breach of agreement related to the Marietta property. He also alleged that Victor
Sonsino had fraudulently transferred ownership of the Dunwoody property to Helen
Sonsino to shield it from Meljon’s legal claims. Meljon sought a temporary
restraining order and interlocutory injunction to prevent the Sonsinos from selling,
assigning, or mortgaging the Dunwoody property. Contemporaneously with his pro
se complaint, Meljon filed a notice of lis pendens and attached the recorded deed for
the Dunwoody property.
Helen Sonsino moved to cancel the lis pendens, arguing that because the
primary dispute was over the Marietta property, the Dunwoody property was not
“involved” in the litigation pursuant to OCGA § 44-14-610; Meljon sought only to
prevent conveyance of the Dunwoody property and did not claim an interest in it.
With the assistance of counsel, Meljon amended his complaint to allege, inter alia,
fraudulent conveyance of the Dunwoody property from Victor Sonsino to Helen
Sonsino and to have such transfer voided. The trial court granted Helen Sonsino’s
motion to cancel the lis pendens in an order stating only that Meljon had failed to
meet the requirements of a lis pendens cause of action under OCGA § 44-14-610.
Meljon appeals.
2 In his sole enumeration, Meljon contends that the trial court erred in granting
the motion to cancel the lis pendens because the Dunwoody property was involved
in the litigation and because he met the requirements for creating a lis pendens.
Meljon has met the technical statutory requirements for filing a lis pendens. See
OCGA § 44-14-610.2 However, Georgia continues to require a showing of the
common law elements of lis pendens. Boca Petroco, Inc. v. Petroleum Realty II, 285
Ga. 487, 489 (678 SE2d 330) (2009). These elements are the following:
[T]he 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 the litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.
(Citations and punctuation omitted; emphasis in original.) Scroggins v. Edmondson,
250 Ga. 430, 432 (2) (297 SE2d 469) (1982).
2 OCGA § 44-14-610 provides that for an action to operate a lis pendens, the clerk of the superior court in the county where the real property is located must record a notice 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.”
3 In the instant case, the only common law element that has been raised is
whether the property is “involved” in the suit. The Sonsinos argue on appeal that the
Dunwoody property is not involved because Meljon’s suit involves only money
damages related to the Marietta property and does not involve an ownership interest
in the Dunwoody property.
It is true that “[a] lis pendens may not be based upon a suit for money damages
only[.]” (Citation omitted.) Hutson v. Young, 255 Ga. App. 169, 170 (564 SE2d 780)
(2002). Further, if “the litigation does not assert an interest in land, filing a lis
pendens is improper.” (Citation omitted.) Id. at 171. In the instant case, Meljon seeks
not only to enjoin transfer of the Dunwoody property, but also to reverse a fraudulent
conveyance. “It is not essential . . . that a plaintiff assert a direct interest in the real
property for a lis pendens to be valid, so long as the real property would be directly
affected by the relief sought.” Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga.
701, 703 (690 SE2d 842) (2010). For example, our Supreme Court found that a lis
pendens was proper in a suit where the plaintiffs sought no ownership interest in the
land at issue, but rather alleged that an obstruction on that land was causing flooding
and damage to their adjoining real property. Griggs v. Gwinco Dev. Corp., 240 Ga.
487, 487 (241 SE2d 244) (1978). Our high court concluded that real property was
4 “involved” and the lis pendens was proper “since equitable relief was sought which
would result in the removal of obstructions on the land, and [would] forbid any
further grading or construction on the land[.]” (Citation omitted.) Id. As in Griggs,
if Meljon prevails on his fraudulent conveyance claims, the real property in
Dunwoody would be directly affected by the relief he seeks because title to the
property would transfer from Helen Sonsino back to Victor Sonsino. Such a transfer
falls squarely within the raison d’etre for a lis pendens: to inform prospective
purchasers “that the real property in question is directly involved in a pending suit
over title or an interest, i.e., a lien, an equitable interest, fraudulent conveyance,
contract right, or other similar interest, which seeks some relief respecting such
alleged interest in such realty.” (Citations omitted; emphasis supplied.) Hutson, supra
at 170. Within the meaning of a suit “involving” real property as contemplated by
OCGA § 44-14-610, “[a] classic example of such a suit is one which seeks to have
a prior conveyance of the property set aside or declared null and void.” (Citation and
punctuation omitted) Moore v. Bank of Fitzgerald, 266 Ga. 190, 190 (465 SE2d 445)
(1996) (lis pendens held proper in suit alleging wrongful foreclosure and seeking
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
January 16, 2014
In the Court of Appeals of Georgia A13A2225. MELJON v. SONSINO, et al.
RAY, Judge.
This appeal seeks to reverse an order cancelling of record a notice of lis
pendens. For the reasons that follow, we reverse.
In August 2007, appellant Solly Meljon1 and appellee Victor Sonsino, through
a company Sonsino owned called Carmel Industries, Inc., agreed to purchase real
property in Marietta. Allegedly in contravention of the agreement, Sonsino then took
out a loan using the Marietta property as collateral. More than a year later, in October
2008, Sonsino conveyed a separate property that he owned in Dunwoody to his sister-
in-law, appellee Helen Sonsino, via a quitclaim deed. In October 2010, the bank
foreclosed on the Marietta property after Carmel Industries defaulted.
1 Meljon is also known as Solly Melyon. Meljon then sued the Sonsinos, seeking damages for, inter alia, conversion and
breach of agreement related to the Marietta property. He also alleged that Victor
Sonsino had fraudulently transferred ownership of the Dunwoody property to Helen
Sonsino to shield it from Meljon’s legal claims. Meljon sought a temporary
restraining order and interlocutory injunction to prevent the Sonsinos from selling,
assigning, or mortgaging the Dunwoody property. Contemporaneously with his pro
se complaint, Meljon filed a notice of lis pendens and attached the recorded deed for
the Dunwoody property.
Helen Sonsino moved to cancel the lis pendens, arguing that because the
primary dispute was over the Marietta property, the Dunwoody property was not
“involved” in the litigation pursuant to OCGA § 44-14-610; Meljon sought only to
prevent conveyance of the Dunwoody property and did not claim an interest in it.
With the assistance of counsel, Meljon amended his complaint to allege, inter alia,
fraudulent conveyance of the Dunwoody property from Victor Sonsino to Helen
Sonsino and to have such transfer voided. The trial court granted Helen Sonsino’s
motion to cancel the lis pendens in an order stating only that Meljon had failed to
meet the requirements of a lis pendens cause of action under OCGA § 44-14-610.
Meljon appeals.
2 In his sole enumeration, Meljon contends that the trial court erred in granting
the motion to cancel the lis pendens because the Dunwoody property was involved
in the litigation and because he met the requirements for creating a lis pendens.
Meljon has met the technical statutory requirements for filing a lis pendens. See
OCGA § 44-14-610.2 However, Georgia continues to require a showing of the
common law elements of lis pendens. Boca Petroco, Inc. v. Petroleum Realty II, 285
Ga. 487, 489 (678 SE2d 330) (2009). These elements are the following:
[T]he 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 the litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.
(Citations and punctuation omitted; emphasis in original.) Scroggins v. Edmondson,
250 Ga. 430, 432 (2) (297 SE2d 469) (1982).
2 OCGA § 44-14-610 provides that for an action to operate a lis pendens, the clerk of the superior court in the county where the real property is located must record a notice 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.”
3 In the instant case, the only common law element that has been raised is
whether the property is “involved” in the suit. The Sonsinos argue on appeal that the
Dunwoody property is not involved because Meljon’s suit involves only money
damages related to the Marietta property and does not involve an ownership interest
in the Dunwoody property.
It is true that “[a] lis pendens may not be based upon a suit for money damages
only[.]” (Citation omitted.) Hutson v. Young, 255 Ga. App. 169, 170 (564 SE2d 780)
(2002). Further, if “the litigation does not assert an interest in land, filing a lis
pendens is improper.” (Citation omitted.) Id. at 171. In the instant case, Meljon seeks
not only to enjoin transfer of the Dunwoody property, but also to reverse a fraudulent
conveyance. “It is not essential . . . that a plaintiff assert a direct interest in the real
property for a lis pendens to be valid, so long as the real property would be directly
affected by the relief sought.” Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga.
701, 703 (690 SE2d 842) (2010). For example, our Supreme Court found that a lis
pendens was proper in a suit where the plaintiffs sought no ownership interest in the
land at issue, but rather alleged that an obstruction on that land was causing flooding
and damage to their adjoining real property. Griggs v. Gwinco Dev. Corp., 240 Ga.
487, 487 (241 SE2d 244) (1978). Our high court concluded that real property was
4 “involved” and the lis pendens was proper “since equitable relief was sought which
would result in the removal of obstructions on the land, and [would] forbid any
further grading or construction on the land[.]” (Citation omitted.) Id. As in Griggs,
if Meljon prevails on his fraudulent conveyance claims, the real property in
Dunwoody would be directly affected by the relief he seeks because title to the
property would transfer from Helen Sonsino back to Victor Sonsino. Such a transfer
falls squarely within the raison d’etre for a lis pendens: to inform prospective
purchasers “that the real property in question is directly involved in a pending suit
over title or an interest, i.e., a lien, an equitable interest, fraudulent conveyance,
contract right, or other similar interest, which seeks some relief respecting such
alleged interest in such realty.” (Citations omitted; emphasis supplied.) Hutson, supra
at 170. Within the meaning of a suit “involving” real property as contemplated by
OCGA § 44-14-610, “[a] classic example of such a suit is one which seeks to have
a prior conveyance of the property set aside or declared null and void.” (Citation and
punctuation omitted) Moore v. Bank of Fitzgerald, 266 Ga. 190, 190 (465 SE2d 445)
(1996) (lis pendens held proper in suit alleging wrongful foreclosure and seeking
cancellation of bank’s deeds under power).
5 The Sonsinos rely on Quill v. Newberry, 238 Ga. App. 184 (518 SE2d 189)
(1999), but that case is distinguishable. In that case, Quill sought not only to rescind
a contract of sale on one property he had purchased from Newberry, but also sought
to enjoin Newberry from selling a separate property, alleging that he wanted to
prevent Newberry from hiding any sale proceeds. Id. at 184, 186. We held the lis
pendens improper because Quill’s fraud claim did not involve claims related to the
property that was subject to the lis pendens; rather, Quill would have to pursue the
proceeds of any sale of that property to satisfy his claim. Id. at 190 (2) (a). Quill is
distinguishable because it did not involve any claim in the lawsuit that any wrong had
been committed by the defendant as to the subject property for which relief was
sought, as is alleged here, but merely that it might be sold and thus unavailable should
it be needed to satisfy any judgment if the plaintiff were to prevail. In this case,
however, it is alleged that the subject property was fraudulently transferred by Victor
Sonsino to Helen Sonsino to defeat the claims by the plaintiff herein, and as such, that
the transfer should be set aside. Thus, so long as said claim remains a part of the
complaint, it cannot be said that the subject property is not involved in this lawsuit.
See generally Berger v. Shea, 150 Ga. App. 812, 813 (258 SE2d 621) (1979) (In suit
for disparagement of title, Court of Appeals observed that “[t]he complaint alleged
6 that appellee . . . 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”) (citations omitted)3.
In the instant case, the lis pendens was proper, and the trial court erred in
cancelling it.
Judgment reversed. Barnes, P. J., and Miller, J., concur.
3 To the extent that the Sonsinos mean to argue that Meljon’s fraudulent conveyance claim is faulty or lacks merit, this Court has determined that “a court may not cancel a lis pendens notice on the ground that the underlying case . . . lacks merit.” (Punctuation and footnote omitted.) Boca Petroco, Inc. v. Petroleum Realty II, 292 Ga. App. 833, 836 (2008), affirmed Boca Petroco, 286 Ga. 487, supra.