BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
DILLARD, C. J., GOBEIL and COOMER, JJ.
Inc. ("Dehco") filed a petition in the Superior
Court of Cobb County seeking a private way for access across
property owned by the Board of Regents of the University
System of Georgia (the "Board"). The Board filed a
motion to dismiss, which was granted by the trial court. On
appeal, Dehco contends that the trial court erred in (1)
finding that a constitutional claim was absent from its
petition for access, (2) finding that an exercise of its
constitutional right using the procedures of OCGA §
44-9-40 et seq. was a new claim and that the notice pleading
requirements of the Civil Practice Act were not met, and (3)
dismissing the petition rather than giving Dehco a period of
time in which to amend its pleading. For the following
reasons, we vacate and remand.
is a Georgia corporation owning landlocked real property in
Cobb County, Georgia. Dehco filed a petition pursuant to OCGA
§§ 44-9-40 and 44-9-41 seeking a private way for
access to the landlocked property across land owned by the
Board. The Board filed a motion to dismiss based on the lack
of subject matter jurisdiction on grounds of sovereign
immunity. In response, Dehco argued that the superior court
did not lack subject matter jurisdiction because its petition
filed pursuant to OCGA § 44-9-40 et seq. was based on
the right accorded to a property owner under Art. I, Sec.
III, Par. II, of the Constitution of the State of Georgia and
that sovereign immunity is not a bar to the enforcement of a
trial court found that Dehco's petition raised no
constitutional claims, and characterized Dehco's argument
that the case arises from a constitutional right as a
"completely new claim made for the first time in
response to [a] motion for summary judgment" which
"does not satisfy even the liberal requirements of the
Georgia Civil Practice Act . . . for notice pleading."
As a result, the trial court found that it did not need to
address whether there was a constitutional waiver of
sovereign immunity. The trial court found that Dehco had
failed to show any waiver of sovereign immunity in either
OCGA §§ 44-9-40 or 44-9-41, and thus granted the
Board's motion to dismiss. This appeal followed.
trial court's ruling on the motion to dismiss on
sovereign immunity grounds is reviewed de novo[.]"
Coosa Valley Technical College v. West, 299 Ga.App.
171, 172 (682 S.E.2d 187) (2009) (citation and punctuation
closely related enumerations, Dehco argues that the trial
court erred by finding (1) that its petition did not contain
a constitutional claim and (2) that an exercise of its
constitutional right using the procedures of OCGA §
44-9-40 et seq. was a new claim that did not meet the notice
pleading requirements of Georgia's Civil Practice Act. We
Sec. III, Par. II of the Constitution of the State of Georgia
provides that "[i]n case of necessity, private ways may
be granted upon just and adequate compensation being first
paid by the applicant." Ga. Const. of 1983, Art. I, Sec.
III, Par. II. The procedure for obtaining a private way is
codified in OCGA § 44-9-40 et seq. OCGA § 44-9-40
(a) provides that the "superior court shall have
jurisdiction to grant private ways[.]" OCGA §
44-9-40 (b) allows a "person or corporation of this
state [who] owns real estate . . . to which the person or
corporation has no means of access, ingress, and egress"
to file a petition in superior court praying for "a
judgment condemning an easement of access, ingress, and
egress[.]" OCGA § 44-9-40 (b) also provides that
"[t]he filing of the petition is deemed to be the
declaration of necessity[.]" OCGA § 44-9-41 sets
forth requirements for the content of the petition.
Georgia's Civil Practice Act, a complaint must contain a
"short and plain statement of the claims showing that
the pleader is entitled to relief," OCGA § 9-11-8
(a) (2) (A), and "must include enough detail to afford
the defendant fair notice of the nature of the claim and a
fair opportunity to frame a responsive pleading."
Bush v. Bank of New York Mellon, 313 Ga.App. 84,
89-90 (720 S.E.2d 370) (2011) (citation and punctuation
omitted). Distinct claims founded on separate transactions
must be pled in distinct counts to the extent that a
separation facilitates the clear presentation of the matters
set forth. See OCGA § 9-11-10 (b);
Bush, 313 Ga.App. at 90.
appeal, the Board argues that while both OCGA § 44-9-40
et seq. and Ga. Const. of 1983, Art. I, Sec. III, Par. II
provide mechanisms to obtain easements in the case of
necessity, claims brought pursuant to OCGA § 44-9-40 et
seq. and Ga. Const. of 1983, Art. I, Sec. III, Par. II must
be brought as distinct claims in distinct counts. However,
the Georgia Supreme Court has explained that OCGA §
44-9-40 et seq. provides the procedure to be followed to
petition for the grant of a private way as authorized by Ga.
Const. of 1983, Art. I, Sec. III, Par. II:
Authority to petition for the grant of a private way is
provided in Art. I, Sec. III, Par. II of the Constitution [of
the State of Georgia] and the procedure to obtain a private
way is codified in Art. III, Chapter 9 of Title 44 [of the
Official Code of Georgia]. . . . Title 44 creates a statutory
procedure by which an individual can obtain a private way
across property owned by another.
Cline v. McMullan, 263 Ga. 321, 321 (1) (431 S.E.2d
368) (1993). Because filing a petition pursuant to OCGA
§ 44-9-40 et seq. is the procedure by which an owner of
landlocked real estate asserts its rights provided by Ga.
Const. of 1983, Art. I, Sec. III, Par. II, the trial court
erred by characterizing Dehco's argument that it was
exercising its constitutional right by attempting to obtain a
private way to its landlocked property as a new claim that
had not been raised in the complaint. Dehco's complaint
brought pursuant to OCGA § 44-9-40 et seq. is
necessarily an attempt to enforce its constitutional right to
obtain a private way. The statute exists for the sole purpose
of providing a procedure for petitioners to enforce their
rights preserved to them by Art. I, Sec. III, Par. II of the
Constitution. Accordingly, we vacate the trial court's
order and remand the case to the trial court to consider
whether a constitutional waiver of sovereign immunity exists.
Because of our conclusion in Division 1, we need not address