                             THIRD DIVISION
                            MCFADDEN, C. J.,
                        DOYLE, P. J., and HODGES, J.

                   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.
                              https://www.gaappeals.us/rules

                   DEADLINES ARE NO LONGER TOLLED IN THIS
                   COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                   THE TIMES SET BY OUR COURT RULES.


                                                                     June 25, 2020



In the Court of Appeals of Georgia
 A20A0777. SAIK et al. v. BROWN et al.

      HODGES, Judge.

      This appeal concerns a dispute between neighbors Jeffrey S. Saik and Robin

W. Saik, on the one hand, and Eric Brown and Alice Brown on the other. After the

Browns subdivided their property, the Saiks sought a declaratory judgment

concerning the validity of a subdivision plat and to partition a jointly owned access

driveway so as to give the Saiks sole ownership of the access. The trial court granted

summary judgment to the Browns on the Saiks’ petition for declaratory judgment,

finding that the Saiks’ claims were barred by their failure to exhaust their

administrative remedies. The trial court also granted summary judgment to the

Browns and denied it to the Saiks on the Saiks’ partition claim. The Saiks appeal both

orders, and for the reasons contained herein, we affirm.
      “We apply a de novo standard of review to an appeal from a grant of summary

judgment and view the evidence, and all reasonable conclusions and inferences drawn

from it, in the light most favorable to the nonmovant. A defendant may obtain

summary judgment by showing an absence of evidence supporting at least one

essential element of the plaintiff’s claim.” (Citation omitted.) Kennestone Hosp. v.

Harris, 285 Ga. App. 393 (646 SE2d 490) (2007).

      So viewed, the facts demonstrate that the Browns and the Saiks own

neighboring property which shares a single, roughly 25-foot-wide, access driveway

(the “Access”) that connects their lots, as well as one other lot, to Majors Road in

Forsyth County. The Saiks and the Browns each owned a one-half undivided fee

simple interest in the Access, and the Browns also possess an easement over the

Access.

      In 2018, the Browns submitted plans to the Forsyth County Department of

Planning and Development (the “Department”) seeking to subdivide their lot from a

single lot into three lots. The Department approved the subdivision plats on May 18,

2018 pursuant to the Forsyth County Unified Development Code (the “UDC”). All

three of the Brown lots will rely on the Access for ingress and egress.



                                         2
      In June 2018, the Browns retained a Realtor to list their three lots. Around June

6, 2018, the Realtor erected a “for sale” sign, and on June 10, 2018, he held an open

house at the Browns’ home for all three lots. At that open house, the Realtor spoke

with Jeffrey Saik about the plats. Mr. Saik initially indicated to the Realtor that he

might be interested in purchasing the Browns’ property, but ultimately withdrew his

interest. The Browns entered purchase and sale agreements for all three lots, but

subsequently the Saiks filed the instant lawsuit and a lis pendens, and all of the sales

fell through.

      The Saiks’ original complaint sought a declaration concerning the validity of

the subdivision plat due to its alleged non-compliance with the UDC, the ability of

the Browns to convey easement rights over the Access without the Saiks’ consent,

and whether the increased traffic will overburden the Access. It also sought

interlocutory and permanent injunctive relief and attorney fees. The Browns moved

for summary judgment on the Saiks’ original complaint.

      After the trial court held a hearing on the Browns’ motion, but before the trial

court ruled, the Browns transferred the ownership of the two vacant lots to two

recently created LLCs, Majors2, LLC and Majors3, LLC (the “Majors Entities”). The

Browns also deeded to the Majors Entities a 1/6 interest each in title to the Access,

                                           3
while retaining a 1/6 interest for the lot with their home on it, and conveyed an

easement across each of the vacant lots and the Access.

      Shortly thereafter, and apparently without realizing the change of ownership

in the two vacant lots, the Saiks amended their complaint to add a claim for equitable

partition wherein the Saiks intended to consolidate ownership of the Access in

themselves. Both parties moved for summary judgment on the amended complaint.

Ultimately, the trial court granted the Browns summary judgment on both the

complaint and the amended complaint, and the Saiks now appeal.

      1.The Browns have moved to dismiss this appeal on the ground that the Saiks

were required to file an application for discretionary review. They argue that because

the underlying subject matter involves an administrative decision, the Saiks could

only appeal pursuant to OCGA § 5-6-35 (a) (1) (application required for appeals from

decisions of the superior courts reviewing decisions of state and local administrative

agencies). We disagree.

      The trial court granted the Browns summary judgment on the Saiks’ amended

complaint for partition of the Access. This was a final order, and the Saiks filed a

timely notice of appeal from this ruling. The order granting summary judgment on

this claim is directly appealable. See OCGA § 9-11-56 (h). Further, to the extent the

                                          4
Saiks also seek review of the prior summary judgment order, pursuant to OCGA § 5-

6-34 (d),

      all judgments, rulings, or orders rendered in the case which are raised on
      appeal and which may affect the proceedings below shall be reviewed
      . . . without regard to the appealability of the judgment, ruling, or order
      standing alone and without regard to whether the judgment, ruling, or
      order appealed from was final or was appealable by some other express
      provision of law contained in this Code section, or elsewhere.

Accordingly, this Court has jurisdiction to hear this appeal, and the Browns’ motion

to dismiss this appeal is therefore denied.

      2. The Saiks contend that the trial court erred in granting the Browns summary

judgment on their original complaint for declaratory judgment and injunctive relief

due to a failure to exhaust administrative remedies.1 We disagree.

      It is well established that

      [t]he general rule is that before a party seeks redress in the courts
      regarding the application of local regulation to property, it must apply
      to the local authorities for determination of matters such [as approving
      a subdivision plat], because requiring exhaustion of administrative
      remedies prevents unnecessary judicial intervention into local affairs



      1
        “For convenience of discussion, we have taken the enumerated errors out of
the order in which appellant has listed them . . .” Foster v. Morrison, 177 Ga. App.
250 (1) (339 SE2d 307) (1985).

                                          5
      and promotes judicial economy because local authorities, unlike the
      court, have the power to grant the relief sought.


(Citation and punctuation omitted.) Elbert County v. Sweet City Landfill, LLC, 297

Ga. 429, 433 (1) (774 SE2d 658) (2015).

      Here, in relevant part, Section 5-3.4 of the UDC provides that “[t]he [Director

of Planning and Community Development of Forsyth County] shall have the power

to approve minor subdivision plats which meet the standards of the Georgia Plat Act

for recordation and the provisions of this Code under the applicable provisions of this

Code.”2 The Saiks correctly point out that this provision, by its plain language,

provides no opportunity for notice or objection by the public. Further, Section 5-3.5

of the UDC states that

      [t]he [D]epartment is the administrative agency charged with the
      administration of this Code and may therefore establish such rules and
      procedures as may be necessary, including but not limited to
      administrative procedures for the filing of applications for amendment
      to the official zoning map of Forsyth County (i.e., rezoning requests),
      conditional use permits, variances, and other applications for
      development approval. The [Director of the Department] is hereby



      2
       The parties do not contend that the plat submitted by the Browns constituted
a major subdivision.

                                          6
      authorized to interpret the provisions of this Code when warranted and
      appropriate.


      Moreover, if any person wishes to challenge a decision by the Director, Section

8.7-2 of the UDC provides that

      [a]ppeals to the Zoning Board of Appeals may be taken by any person
      aggrieved by any decision of the [Director of the Department] or other
      official . . . in the administration or interpretation of this Code or other
      county ordinances granting jurisdiction of the Zoning Board of Appeals.
      Appeals of administrative decision applications shall be made within
      thirty (30) days of the date of the decision or action being appealed. The
      application shall be filed in accordance with the public hearing schedule
      adopted by the Zoning Board of Appeals, and the director shall schedule
      the matter to be heard on the next available hearing date.


      Here, the Department approved the Browns’ subdivision plat on May 18, 2018,

and the record contains uncontroverted evidence that Jeffrey Saik learned of the

existence of the newly approved plat on June 10, 2018. Although the Saiks contend

they did not know the date the plat was approved, and thus did not know their

deadline to appeal, they learned of the plat in time to timely appeal. Importantly,

however, the Saiks made no attempt whatsoever to comply with the administrative

procedures contained within the UDC for challenging the subdivision plat. The Saiks


                                           7
point to no authority standing for the proposition that they were entitled to ignore the

administrative procedures of the UDC, except to say that the exclusion of a notice

requirement prior to approval of a minor subdivision plat deprives them of due

process. This is, in effect, a challenge to the constitutionality of the minor subdivision

plat approval process contained in Section 5-3.4.

      Issues concerning the constitutionality of land development determinations

must be raised before the body having the authority to make such determinations. See

State Bd. of Equalization v. Trailer Train Co., 253 Ga. 449 (320 SE2d 758) (1984)

(“We have required litigants to raise the constitutionality of applicable zoning

classifications before that body having authority to rezone.”); see also Sweet City

Landfill, 297 Ga. at 433 (1).

      Here, to exhaust their administrative remedies, the Saiks were required to

appeal the approval of the minor subdivision plat pursuant to the UDC and, if such

appeal was rejected as untimely pursuant to the UDC, to raise their constitutional due

process concerns before the Zoning Board in the first instance. Instead, the Saiks seek

to have this Court circumvent the administrative remedies provided to them without

any authority permitting us to do so, so that we may declare actions by the

government to be invalid without any governmental representative before this Court

                                            8
to defend itself. See e.g. Stendahl v. Cobb County, 284 Ga. 525, 527 (2) (668 SE2d

723) (2008) (“It is clear that the governing authority with the power to re-zone

property and the successful re-zoning applicant are proper defendants in a suit

attacking the grant of a re-zoning application.”).3 This is improper, and the trial court

properly granted the Browns summary judgment on the claims raised in the Saiks’

original complaint, as those claims were not ripe for judicial review.

      3. In two interrelated enumerations of error, the Saiks also contend that the trial

court erred in granting the Browns’ motion for summary judgment and denying the

Saiks’ motion for summary judgment, thereby disallowing the Saiks’ petition for

partition. We disagree.

      As a threshold matter, we recognize that “Georgia distinguishes between

‘equitable’ partition, OCGA § 44-6-140 et seq., and ‘statutory’ partition, OCGA § 44-

6-160 et seq. This nomenclature, however, has led to some confusion, insofar as




      3
        At the motion hearing held in this case, the trial court questioned the parties
as to whether any governmental party needed to be added to this case. Inexplicably,
at no time did either party attempt to join any governmental parties to the litigation.
Nonetheless, we need not reach the issue of whether the Saiks failed to join an
indispensable party, because their failure to exhaust administrative remedies is
dispositive.

                                           9
equitable and statutory partitions alike must account for certain equities.” (Citations

omitted.) Pack v. Mahan, 294 Ga. 496 (755 SE2d 126) (2014).

      Statutory partition is available

      [w]hen two or more persons are common owners of lands and
      tenements, whether by descent, purchase, or otherwise, and no provision
      is made, by will or otherwise, as to how such lands and tenements shall
      be divided, any one of such common owners may apply by petition to
      the superior court of the county in which such lands and tenements are
      located for a writ of partition which shall set forth plainly and distinctly
      the facts and circumstances of the case, shall describe the premises to be
      partitioned, and shall define the share and interest of each of the parties
      therein.


OCGA § 44-6-160. Separately, Georgia law recognizes that “[e]quity has jurisdiction

in cases of partition whenever the remedy at law is insufficient or peculiar

circumstances render the proceeding in equity more suitable and just.” OCGA § 44-6-

140. It is of little consequence the nomenclature used by the parties in requesting a

partition.

      Indeed, because the Civil Practice Act provides for one form of action,
      if the petition states a claim for either equitable or statutory partitioning,
      a court having the requisite jurisdiction and venue is authorized to
      proceed with a just and prompt determination of the action, regardless
      of whether the true nature of the partition is equitable or statutory.

                                           10
(Citation and punctuation omitted.) Pack, 294 Ga. at 499.

       Here, the Saiks titled their petition as one for equitable partition wherein they

sought to force a sale of the Browns’ ownership interest in the Access.4 Although pled

as a claim for equitable partition, the relief sought is available pursuant to statutory

partition.5




       4
          At the time of their petition, the Browns had divested part of their ownership
interest in the Access to the Majors Entities. Inexplicably, no party attempted to add
the Majors Entities to the litigation nor was any meaningful discussion had in the trial
court as to whether the petition was legally valid in the absence of the Majors
Entities. The trial court did not premise its order on the inability to confer the relief
requested without the Majors Entities being joined as parties. See Hill v. McCandless,
198 Ga. 737 (3) (32 SE2d 774) (1945) (“Under the foregoing statutory provisions in
order for a partition proceeding to be maintainable, the applicant must not only show
title in himself to a specified interest in the property sought to be sold or divided, but
must name as defendant each of the other persons who may own an interest therein,
and set forth their respective interests. Accordingly, even though an applicant may
correctly set forth his own interest in the property which he seeks to have sold for the
purpose of partition, and even though he names as defendant another person, and
correctly sets forth the interest in the property belonging to him, such defendant may
appear for the purpose of showing that another and different person, not named as a
defendant, and not served, has an interest in the property, and that therefore the
applicant is proceeding illegally. This is true for the reason that a sale under a
partition proceeding does not have the effect of setting aside or annulling an interest
which may be held by a person not made a party to the proceeding.”) (citations
omitted).
       5
        The Browns do not contest the Saiks’ assertion that partition of the narrow
access driveway by metes and bounds would be untenable.

                                           11
      In a statutory partition, a court is authorized to divide commonly owned
      land under OCGA § 44-6-160, or if a party in interest convinces the
      court that the land cannot be divided fairly, the land may be appraised
      and a party in interest given the opportunity to purchase the petitioner’s
      share before a public sale is ordered. OCGA § 44-6-166.1. Alternatively,
      land may become subject to public sale under OCGA § 44-6-167 if it is
      not sold pursuant to the procedure set out in OCGA § 44-6-166.1 or if
      a petitioner convinces the court that a fair and equitable division of the
      property cannot be made by means of metes and bounds because of
      improvements on the property, because the premises are valuable for
      mining purposes or for the erection of mills or other machinery, or
      because the value of the entire property will be depreciated by the
      partition applied for.


(Citation omitted.) Pack, 294 Ga. at 496-497. In the context of a statutory partition,

Georgia law further provides that

      [i]n any extraordinary case not covered by Code Sections 44-6-160
      through 44-6-169, the court may frame its proceeding and order so as to
      meet the exigency of the case without forcing the parties into equity;
      and the court may deny a sale or partition altogether if it is manifest
      that the interest of each party will not be fully protected.


(Emphasis supplied.) OCGA § 44-6-170.

      Correctly recognizing that the relief requested by the Saiks was cognizable as

a claim for statutory partition despite the manner in which it was pled, the trial court

                                          12
proceeded to analyze the Saiks’ claim.6 In so doing, the trial court made the following

legal conclusion:

      Here, the only beneficial use of the driveway is to allow ingress and
      egress to the five parcels of property. Even though the parties hold a
      joint fee simple interest in the driveway, the useful value lies in the
      easement of way that provides access to the otherwise landlocked
      parcels. Thus, the [trial court] finds that a conveyance of the fee simple
      interests in the driveway by either equitable or statutory partition would
      not constitute an equitable remedy, as the unification of title in one of
      the parties or to a third party in the event of a public sale would not
      eliminate the potential for conflict between the various parcel owners or
      remedy any other condition. Any conveyance of the fee simple interests
      would remain subject to the easement rights of the parties and other
      parcel owners and would thus effect little change. The Court finds that
      this is an extraordinary case in which partition or sale should be denied
      because it is manifest that the interests of each party will not be fully
      protected thereby. See OCGA § 44-6-170.


(Emphasis supplied.)

      Although our law has not previously had the opportunity to interpret when a

court may deny a petition on the grounds that it is “manifest that the interest of each

      6
        The law permits equitable, as opposed to statutory partition, where peculiar
circumstances exist which make proceeding in equity more suitable. See Pack, 294
Ga. at 497. Although the Saiks titled their claim as one for equitable partition, they
do not allege any peculiar circumstances which would require equity jurisdiction.

                                          13
party will not be fully protected,” we find that the trial court did not err in finding that

this was such a case. Even in the context of statutory partition, the law “must account

for certain equities.” (Citations omitted.) Pack, 294 Ga. at 496. Here, the trial court

correctly recognized that the Access has no value other than its service to the lots to

which it is connected, that all owners will maintain easement rights to use the Access

regardless of the fee ownership of the Access, and that accordingly, disputes

concerning the use and maintenance of the Access will not resolve merely by

consolidating fee ownership in one party. The Saiks are correct that “[p]artition is a

remedy much favored by the law because it permits cotenants to avoid the

inconvenience and dissension arising from sharing joint possession of land and it

facilitates transmission of title, thereby avoiding unreasonable restraints on the use

and enjoyment of property.” (Citation and punctuation omitted.) Harvey v. Sessoms,

284 Ga. 75, 76 (663 SE2d 210) (2008). In the present circumstance, however, the

benefit of partition in eliminating dissension among cotenants would not be

recognized given the continued easement rights of all parties to use the Access. In

other words, partition of the Access so as to consolidate fee ownership in the Saiks

would not put to end this dispute. Accordingly, we find that OCGA § 44-6-170



                                            14
authorized the trial court to grant summary judgment to the Browns and deny it to the

Saiks on the petition to partition.

      Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.




                                         15
