Reconsideration denied December 16, 2014 -- Cert. applied for.
Easement. Pickens Superior Court. Before Judge Bradley.
John T. Longino, for appellant.
John J. Capo, for appellee.
This case presents the question of whether S-D RIRA, LLC (" RIRA" ) is entitled to an easement over a private road located in The Outback subdivision for the purpose of accessing certain real property RIRA owns in Pickens County and whether RIRA has the right to travel over a road constructed over and across Lot 10 in The Outback to reach the private road at issue. RIRA filed a complaint against The Outback Property Owners' Association, Inc. (" the Association" ) asserting a statutory claim to an easement. Alternatively, RIRA claimed it had a contractual right to the declaration of a private way through the subdivision (the private way to include the road on Lot 10), based upon The Outback's Declaration of Covenants and the warranty deed transferring ownership of the
subdivision's private roads to the Association. RIRA also sought a declaration that the owner of Lot 10 had the right to extend the subdivision's private road onto and over Lot 10 for the purpose of providing adjoining property owners such as RIRA with access to their property.
RIRA now appeals from an order of the trial court dismissing RIRA's statutory easement claim; granting judgment in favor of the [330 Ga.App. 443] Association on RIRA's contractual claim for a private way and its claim for declaratory relief; denying RIRA's motion for summary judgment on its claim for a private way and its request for declaratory relief; enjoining RIRA from using The Outback's private roads or Lot 10 to access adjoining property, including RIRA's land; and enjoining the owner of Lot 10 from using that property to access adjoining property. RIRA contends that the trial court erred in dismissing without prejudice its statutory claim for an easement for failure to plead the claim with more specificity; in entering a permanent injunction against the owner of Lot 10 in The Outback, who is not a party to this case; in finding that RIRA's contractual claim for a private way and its claim for declaratory relief were barred by both The Outback's Declaration of Covenants and by the theory of unjust enrichment; in denying RIRA's motion for summary judgment; and in granting the Association's claim for injunctive relief against RIRA. For reasons explained below, we reverse the trial court's order dismissing RIRA's statutory claim for an easement; affirm the judgment in favor of the Association on RIRA's contractual claim for a private way and its claim for declaratory relief; vacate the permanent injunction entered against RIRA; vacate the permanent injunction entered against the owner of Lot 10; and remand the case for proceedings consistent with this opinion.
The relevant facts are largely undisputed, but where any doubt existed, we have construed the record in favor of RIRA, as the nonmovant on both the motion to dismiss and the motion for summary judgment. See Thompson v. Lovett, 328 Ga.App. 573 (760 S.E.2d 246) (2014) (on a motion for summary judgment, we " construe the evidence in the light most favorable to the nonmovant" ) (citations omitted); Babalola v. HSBC Bank, USA, 324 Ga.App. 750, 750 (751 S.E.2d 545) (2013) (" [w]e review de novo a trial court's determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the [nonmovant] and with any doubts resolved in the [nonmovant's] favor" ) (citation and punctuation omitted).
The Outback Subdivision
In 1997, Taylor Investment Corporation purchased 416.42 acres of property in Pickens County for the purpose of developing The Outback subdivision. The Outback was developed in three different phases, referred to by the developer as " units," and two separate Declarations of Covenants were filed, with each Declaration covering different units of the development. The Declaration of Covenants as to Units I and II of The Outback was filed on August 14, 1997, and these covenants apply to subdivision lots 1 through 39. The Declaration of Covenants as to Unit III of The Outback was filed on November [330 Ga.App. 444] 12, 1999 and these covenants apply to subdivision lots 40 through 97A. The separate sets of covenants are identical but for the fact that the Unit III covenants have an article addressing access to adjoining property, while the Units I and II covenants do not. The relevant article in the Unit III covenants, Article VIII, provides:
No tracts in this subdivision shall be used, nor shall any roads, streets or rights of way, be placed upon such tracts for ingress and egress to adjoining property, nor shall any road in the subdivision be used to service any adjoining subdivision. This provision shall not, however, apply to the developer or its assigns. Said developer
or its assigns may add adjoining property to this subdivision at any time and use its roads to access the same.
No similar language appears in the Units I and II covenants.
On March 8, 2002, Taylor Investment Corporation transferred ownership of The Outback's private roads to the Association. The warranty deed effectuating that transfer states that the Association is " to have and to hold" the roads for the exclusive use and benefit of the Association and its members, subject only to certain permitted exceptions. These permitted exceptions include both the Units I and II covenants and the Unit III covenants.
The Adjoining Property
At or about the same time that Taylor Investment Corporation purchased The Outback property, Pickens Prime Properties, LLC, a Georgia corporation owned by Bettina Longino and Katie Lancey, purchased 80 acres of land contiguous to the land purchased by Taylor Investment. Sometime after purchasing this property, Pickens Prime Properties dissolved, and the land was split into two parcels. Cliff and Katie Lancey received ownership of a 19.6-acre parcel, part of which adjoins The Outback. The remaining property (approximately sixty acres) was divided between six Georgia LLCs, each of which is wholly owned by The Longino Family Perpetual Trust I (" the Trust" ). Although each of the six LLCs holds title to approximately ten acres of the sixty-acre property, the parties refer to [330 Ga.App. 445] the entire sixty-acre parcel as " the Trust Property." PPP Properties Development, LLC (" PPP" ), one of the six LLCs with an interest in the Trust Property, holds title to the ten-acre parcel of the Trust Property that adjoins Lot 10 in The Outback subdivision. Neither the Trust nor any of the six Trust LLCs (including PPP) is a party to this action.
In January 2006, PPP purchased Lot 10 from Jerry Goode, who had owned that property since purchasing it from Taylor Development in August 1997. One month later, the various owners of the Trust Property successfully petitioned to have all sixty acres rezoned from " Agricultural" to " Rural Residential." In May 2006, PPP constructed what has been referred to alternatively as a road or a widened driveway across Lot 10. This roadway begins at the point where Lot 10 meets the subdivision road (Outback Trail Ridge) and ends at an access road located on the adjoining ten-acre parcel of Trust Property owned by PPP. On May 28, 2007, the six Trust LLCs entered into an " easement agreement" which provides, in relevant part, that the six Trust LLCs " and any other Georgia [LLC] wholly owned by [the Trust] (and no other entities)," and any successors in title " shall have a perpetual and non-exclusive easement for ingress, egress, and utilities over and across" the roadway that PPP had constructed on Lot 10 in The Outback subdivision.
RIRA is a Georgia limited liability company formed for the purpose of investing the Roth IRA funds of attorney John Longino, and, as noted previously, Longino also serves as RIRA's manager and attorney. On December 4, 2008, RIRA purchased the 19.67-acre parcel of land that had been transferred to Cliff and Katie Lancey when Pickens Prime Properties dissolved. Several days later, RIRA applied to have its property
rezoned from " Agricultural" to " Rural Residential." After hearing objections from a number of homeowners in The Outback, the Pickens County Zoning Board granted this petition with two conditions. Specifically, the rezoning resolution provided that RIRA may only place two houses on the property, as opposed to the one house per 1.5 acres that is normally allowed under rural residential zoning. To build on the property the number of houses normally allowed under rural residential zoning, RIRA would have to obtain access to public roads, with such access being owned by RIRA rather than being " an [330 Ga.App. 446] easement across someone else's property." 
The Current Lawsuit
On March 26, 2009 RIRA filed the current lawsuit. In response, the Association filed a counterclaim for injunctive relief, seeking to permanently enjoin RIRA from driving on the subdivision's private roads or across Lot 10 to access its property, as well as a motion to dismiss RIRA's claims against it or, in the alternative, a motion for judgment on the pleadings.
After the litigation had been pending for approximately one year, but before the trial court had ruled on its motion seeking a dismissal of RIRA's claims or judgment on the pleadings, the Association filed a motion for summary judgment seeking judgment in its favor on all of RIRA's claims against the Association. RIRA filed a cross-motion for summary judgment as to its claims against the Association. Approximately four years later, on February 7, 2014, the trial court held a hearing on all motions. At the outset of that hearing, the parties acknowledged that the court was to consider the Association's motion to dismiss or, in the alternative, for judgment on the pleadings, as well as RIRA's motion for summary judgment. During that hearing, the Association also argued that if it prevailed on its motion for judgment against RIRA, it was also entitled to the injunctive relief sought in its counterclaim.
After hearing the parties' arguments and evidence, the trial court entered an order granting in part the Association's motion to dismiss, granting in part the Association's motion for summary judgment, granting the Association's request for injunctive relief, and denying RIRA's summary judgment motion. Specifically, the trial court dismissed without prejudice RIRA's claim for a statutory easement, giving RIRA leave to refile that claim if it pled more specific facts supporting it; granted summary judgment in favor of the Association on RIRA's contractual claim for a private way and its claim for declaratory relief, finding that RIRA's requested relief was [330 Ga.App. 447] barred by both the Covenants applicable to Lot 10 and the theory of unjust enrichment; denied RIRA's motion for summary judgment; permanently enjoined RIRA from using The Outback's private roads or the road on Lot 10 for purposes of ingress or egress to either the Trust Property or RIRA's own property; and permanently enjoined PPP (the owner of Lot 10) from using Lot 10 as a means of ingress and egress to either the Trust Property (including the ten-acre parcel of that property immediately adjoining Lot 10, to which PPP holds title) or the RIRA property. RIRA now appeals from that order.
1. We first address RIRA's assertion that the trial court erred in dismissing its statutory claim for an easement under OCGA § 44-9-40. Under that statute, where a property is inaccessible via a public road or right of way, the property owner may petition the superior court for an easement
of necessity, which provides the owner with ingress and egress to his land over the property of another. OCGA § 44-9-40 (a), (b). Here, the trial court dismissed without prejudice RIRA's claim for an easement of necessity, apparently finding that RIRA had failed to state a claim under OCGA § 44-9-40. The trial court indicated, however, that RIRA was free to refile this claim if it pled the cause of action with more specificity. The trial court's order stated that it was dismissing RIRA's claim under OCGA § 44-9-40 and was " hereby requiring [RIRA] to plead, in specific detail, the extent of any requested private condemnation as well as any alternate routes into [RIRA's] property thereby affording The Outback an opportunity to properly respond."  This holding is in error.
[T]he Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed [330 Ga.App. 448] liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act. Thus, most elements of most claims can be pled in general terms, so long as they give fair notice of the nature of the claims to the defendant.
Wylie v. Denton, 323 Ga.App. 161, 169-170 (3) (746 S.E.2d 689) (2013) (citations and punctuation omitted). A complaint fails to meet this standard and warrants dismissal
only if its allegations disclose with certainty that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks. Put another way, if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.
Bush v. Bank of New York Mellon, 313 Ga.App. 84, 89 (720 S.E.2d 370) (2011) (citations and punctuation omitted). And when assessing whether the allegations of a complaint are sufficient to survive a motion to dismiss, we must accept those allegations as true and view them in the light most favorable to the plaintiff. Id.
In this case, RIRA's complaint alleged that it had used one-half mile of a private road in The Outback to access its property since purchasing that land in 2006; that without such access it had no legal means of ingress and egress that would support the use of the property as rural residential; and that it " has no ability to negotiate and acquire deeded fee simple title to roads to access its property." Attached to the complaint was a plat purportedly showing the landlocked status of RIRA's property. And the complaint stated that RIRA was seeking the declaration of a private way " over the paved private road named 'Outback Trail [Ridge] Road' owned by [the Association], running ½ mile from [Lot 10] to Price Creek Road, a public road." Construed liberally in favor of RIRA, these allegations are sufficient to state a claim for relief under OCGA § 44-9-40. See OCGA § 44-9-40 (b) ( the filing of a petition seeking a private way " shall be deemed to be the declaration of necessity" ); Dovetail Properties v. Herron, 287 Ga.App. 808, 809 (1) (652 S.E.2d 856) (2007) (a prima facie case of necessity requires the plaintiff/condemnor to prove that his property is landlocked). See also Wylie, 323 Ga.App. at 162-163
(" [o]nly if the pleadings and exhibits incorporated into the pleadings show a complete failure by the plaintiff to state a cause of action, is the defendant entitled to judgment as a matter of law" ) (citation and punctuation omitted). Accordingly, the trial court erred [330 Ga.App. 449] in dismissing RIRA's ...