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738 F.2d 314

Docket No. 83-2484.

Keith v. Bratton

Eighth Circuit Court of Appeals

Submitted April 23, 1984.

Decided July 5, 1984.

Eighth Circuit Court of Appeals · decided 1984-07-05

2 counsel of record

Applies 28 U.S.C. § 1291

Relies on Cohen v. Beneficial Industrial Loan Corp. · Firestone Tire & Rubber Co. v. Risjord · Chrysler Corporation v. Fedders Corporation, Salvatore Giordano, Sr., Salvatore Giordano, Jr., Bruno Giordano, Ignatius MacBrinn and Howard S. Modlin

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1984-07-05

How this case has been cited

Cited by 9 later decisions — most recently October 2006

5 federal appellate · 2 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*315Guy Jones, Jr. and Callis L. Childs, Conway, Ark., for appellants.

¶2Stephen E. James, Clinton, Ark., for appellees.

¶3Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

¶4PER CURIAM.

¶5Barbara, Jon and Sarah Keith appeal from an order of the District Court for the Eastern District of Arkansas releasing their notice of lis pendens on the real property owned by Bobby and Leyon Bratton. For reversal the Keiths argue that the equitable relief requested in their amended complaint would support the filing of a notice of lis pendens. The Brattons contend that this court lacks jurisdiction to entertain this appeal because the district court’s order releasing the notice of lis pendens was not a final order under 28 U.S.C. § 1291. For the reasons discussed .below, we affirm.

¶6The Keiths contracted to purchase real property owned by the Brattons. As part of the deal, the Brattons agreed to build cabins on the property. The deed to the property was placed in escrow pending completion of the cabins and full payment by the Keiths. When both parties became dissatisfied with the agreement, the Keiths stopped making payments and the Brattons withdrew the deed from escrow.

¶7On August 20, 1982, the Keiths filed a notice of lis pendens with the circuit clerk of Van Burén County, Arkansas pursuant to Ark.Stat.Ann. § 27-501 (1979).1 On August 27, 1982, the Keiths filed a complaint against the Brattons in federal district court seeking money damages for breach of contract. On January 10, 1983, the Brattons asked the district court to release the notice of lis pendens because the complaint failed to describe in sufficient detail the real property in question and did not request that title to the property vest in the Keiths, as required by the Arkansas lis *316pendens statute. The Keiths then moved for leave to amend their prayer for relief to seek not only money damages but also an equitable lien or constructive trust on the Brattons’ property. The district court simultaneously granted the Keiths’ motion to amend their complaint and the Brattons’ motion to release the notice of lis pendens. This appeal followed.

¶8The Brattons maintain that the order releasing the notice of lis pendens is not final within the meaning of 28 U.S.C. § 1291, and therefore is nonappealable. We disagree. The order falls within the collateral order exception doctrine recognized by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The doctrine provides that an appeal may be taken from an otherwise nonfinal interlocutory order if the order conclusively determines a disputed question, resolves an important issue completely separate from the underlying merits, and would be effectively unreviewable on appeal from a final judgment. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374-75, 101 S.Ct. 669, 673-74, 66 L.Ed.2d 571 (1981).

¶9The district court’s order releasing the notice of lis pendens decided a question substantially separate from the basic issue raised in the complaint. Nothing further in the underlying action can affect the validity of the notice. See Suess v. Stapp, 407 F.2d 662, 663 (7th Cir.1969). More importantly, if review must await a final judgment, the possibility exists that the property which is subject to the notice of lis pendens could be sold before conclusion of the action, resulting in irreparable harm to the Keiths. See Chrysler Corp. v. Fedders Corp., 670 F.2d 1316, 1318 n. 2 (3d Cir.1982). Accordingly, the order is presently reviewable.

¶10Although we affirm the district court’s order, we rely upon somewhat different grounds.2 The Keiths filed their notice of lis pendens one week before commencing the present action. The Arkansas lis pendens statute requires that the “plaintiff” file with the appropriate state officials “a notice of the pendency” of suits affecting the title to real or personal property. The notice must include the title and general object of the action, the names of the parties, and the style of the case where the suit is pending. Thus, the statute implicitly requires that an action has in fact been filed. The filing of the complaint is a condition precedent to filing the notice of lis pendens, and a prematurely filed notice of lis pendens is a nullity. See, e.g., Chrysler Corp. v. Fedders Corp., 670 F.2d at 1320 n. 5; Schwartz v. Grunwald, 174 N.J.Super. 164, 415 A.2d 1203, 1207-08 (1980). Therefore, the district court’s order releasing the notice of lis pendens was not erroneous.

¶11Accordingly, the order of the district court is affirmed, and this case is remanded to the district court for further proceedings.3

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