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 *496inspected 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.
Decided June 8, 2009. Morris, Manning & Martin, Robert P. Albert, Jeffrey K. Douglass, for appellants. Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Deborah D. Heald, Berger Singerman, Mitchell W. Berger, Fred O. Goldberg, for appellees.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.