                                  FOURTH DIVISION
                                    DOYLE, P. J.,
                               COOMER and MARKLE, JJ.

                        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.
                                    http://www.gaappeals.us/rules


                                                                         March 12, 2020




  In the Court of Appeals of Georgia
   A19A2076. RICHARDS et al. v. BOSE et al.

           DOYLE, Presiding Judge.

           This case began when Vinay Bose, Mommies Properties, LLC, and FH

  Partners, LLC, filed a complaint against John Richards and the Chattahoochee River

  Club Homeowners Association,1 asserting several causes of action pertaining to real

  property, including claims for quiet title against all the world and conventional quiet

  title2 and for a declaratory judgment regarding title to the property. In this


      1
         The complaint also named several Jane and John Doe defendants who are not
parties to this appeal. Additional claims are not pertinent to this appeal.
      2
          Conventional quiet title / conventional quia timet

      is employed to quiet title as against “any forged or other iniquitous deed or
      other writing which, though not enforced at the time, either casts a cloud over
      the complainant’s title or otherwise subjects him to future liability or present
      annoyance, and the cancellation of which is necessary to his perfect
  interlocutory appeal, Richards and the Homeowners Association appeal from a

  superior court order denying in part their motion to open default and granting in part

  the plaintiffs’ motion for default judgment. The defendants argue that the trial court

  erred by (1) improperly issuing a nunc pro tunc order after the defendants had

  amended their untimely answer by filing a verification, (2) incorrectly analyzing their

  motion to open the default, and (3) issuing a declaratory judgment when there was no

  justiciable controversy. For the reasons that follow, we affirm in part and reverse in

  part.




      protection.”
Gurley v. East Atlanta Land Co., 276 Ga. 749, 749 (1) (583 SE2d 866) (2003) (quoting
OCGA § 23-3-40). See also Johnson v. Red Hill Assoc., 278 Ga. 334, 335 (2) (602 SE2d
572) (2004) (holding that the action properly was classified as conventional quia timet
because the petitioner sought to remove clouds on its title to property “in the form of
specific instruments and liens”).

      In contrast, quiet title against all the world / quia timet as against all the world
      is used to remove any cloud of title to land . . . “and for readily and
      conclusively establishing that certain named persons are the owners of all the
      interests in land . . . so that there shall be no occasion for land in this state to
      be unmarketable because of any uncertainty as to the owner of every interest
      therein.”

Gurley, 276 Ga. at 749-750 (1) (emphasis supplied) (quoting OCGA § 23-3-60).

                                               2
       The record shows that in October 2018, plaintiffs filed a verified complaint

challenging certain encumbrances on property owned by Bose and Mommies

Properties, asserting claims for conventional quiet title, quiet title against all the

world, defamation of title, defamation of person, intentional infliction of emotional

distress, interference with easement, attorney fees, and seeking a declaratory

judgment regarding title to the property. The plaintiffs claimed that: (i) Bose and

Mommies Properties acquired fee simple title to the property from non-party Michael

Allen; and (ii) FH Partners held a security interest in the property, which it had

acquired from Mommies Properties. The plaintiffs refer to these transactions as the

“Allen Chain of Title.” The plaintiffs further alleged that the Homeowners

Association and/or one or more of its members purportedly acquired one or more

easements over the property via covenants that post-dated the initial transaction in the

Allen Chain of Title. According to the plaintiffs, their interest in the property is

unmarketable due to the encumbrances allegedly outside the Allen Chain of Title. As

relief, the plaintiffs sought, inter alia: (i) a judgment quieting title to the property; and

(ii) alternatively, a declaratory judgment regarding the defendants’ rights in the

property.



                                             3
          The parties agreed to extend the deadline for filing an answer to December 14,

  2018. Due to a misunderstanding about whether they could file their answer

  electronically on December 14, however, the defendants filed an answer four days

  later, on December 18, 2018. The verification attached to the answer was signed by

  John Paximadis, “an officer of [the Homeowners Association], who makes this

  [v]erification on behalf of the [A]ssociation and on behalf of John Richards (with his

  express permission and authorization) and after being duly sworn . . . .” Richards did

  not personally sign a verification at that time.3

          On January 7, 2019, 24 days after the answer was due, the plaintiffs moved for

  a default judgment on ground that the defendants had gone into default on December

  14, 2018, and had not sought to open default within the 15-day statutory time period

  for doing so as a matter of right.4 The plaintiffs did not seek a default judgment as to

  the tort claims.5


      3
        See generally Harris v. Murray, 233 Ga. App. 661, 664 (3) (504 SE2d 736) (1998)
(“In order to make an affidavit, there must be present the officer, the affiant, and the paper,
and there must be something done which amounts to the administration of an oath.”).
      4
         See OCGA § 9-11-55 (a) (“The default may be opened as a matter of right by the
filing of such defenses within 15 days of the day of default, upon the payment of costs.”)
      5
        The trial court did not enter a default judgment as to those claims, and they are not
a part of this appeal.

                                              4
      One day later, the defendants moved to open default under OCGA § 9-11-55

(b), arguing that after learning on Friday, December 14, 2018, that e-filing was not

available in Forsyth County, defense counsel sent the answer on that day “via UPS,

second day air for morning delivery.”

      After a February 25, 2019 hearing, the trial court orally announced its rulings,

but it did not enter a written order memorializing those rulings until two days later.

The court ruled, in part, that Richards remained in default because he had not verified

his answer thereby establishing a meritorious defense as a required pre-condition to

opening default. It also ruled that the Homeowners Association had established a

meritorious defense and a proper case to open default with respect to the conventional

quiet title claim. With respect to the declaratory judgment claim, the trial court ruled

that neither Richards nor the Homeowners Association had set up a meritorious

defense, so it denied the motion to open default as to that claim.

      One day after the hearing (and one day before the written order was entered),

the defendants filed an amended answer that included Richards’s personal

verification. The following day, February 27, the trial court signed and entered – nunc

pro tunc February 25, 2019 (the day of the hearing) – the order at issue in this appeal.



                                           5
          In its order, the trial court: (i) determined that both defendants are not in default

  as to the claim for quiet title against all the world because the special master

  appointed in this case had not yet caused service to issue6; (ii) granted the

  Homeowner Association’s motion to open default as to the conventional quiet title

  claim; (iii) denied Richards’s motion to open default as to the conventional quiet title

  claim based on his failure to make a showing under oath, i.e., verify the defendants’

  answer7; (iv) on the declaratory judgment claim, denied the defendants’ motion to

  open default and granted the plaintiffs’ motion for a default judgment; and (v) granted

  the defendants’ motion to open default as to the remaining claims, which the plaintiffs

  did not oppose. The trial court subsequently certified its order for immediate review,

  and this Court granted the defendants’ application for interlocutory review.

          As a threshold matter, we note that “[a] suit commences only after the filing of

  a petition and the proper service of process upon the defendant as required and

      6
         See Woodruff v. Morgan County, 284 Ga. 651, 652 (1) (670 SE2d 415) (2008)
(explaining that in an in rem quiet title action against all the world, “a special master must
first be appointed . . . who causes process to issue . . . before a party is required to file a
responsive pleading”) (punctuation omitted).
      7
         Although the court denied Richards’s motion to open default as to the conventional
quiet title claim, it did not explicitly grant the plaintiffs’ motion for a default judgment
against Richards on this claim, for reasons that are not immediately apparent on the current
record.

                                                6
  authorized by law.”8 Here, the trial court correctly concluded that, under OCGA § 23-

  3-65 (a), a special master would need to determine who is entitled to notice and cause

  process to issue with respect to the quiet title claim against all the world. It is

  undisputed that at the time of the default judgment order, this procedure had not been

  completed. Under that circumstance, the defendants “were not required to answer the

  [plaintiffs’] complaint, and the trial court was not authorized to enter a default

  judgment against them.”9 This is true even though personal service was completed

  because the quiet title statute “provides specific rules of practice and procedure with

  respect to an in rem quiet title action against all the world.”10

           Given that the defendants were not yet required to answer the quiet title against

  the world, entry of default judgment on any claim was error. This is because default

  is a state of the pleadings which, unless remedied, entitles the plaintiff “to verdict and

  judgment by default, in open court or in chambers, as if every item and paragraph of




      8
       (Punctuation omitted.) Anglin v. State Farm Fire & Cas. Ins. Co., 348 Ga. App.
362, 364 (1) (823 SE2d 51) (2019).
      9
          Woodruff v. Morgan County, 284 Ga. 651, 652 (1) (670 SE2d 415) (2008).
      10
           Id.

                                               7
  the complaint or other original pleading were supported by proper evidence. . . .”11

  Applying that rule in this case would result in a judgment against the defendants as

  to “every [well-plead factual] item and paragraph of the complaint,”12 including the

  quiet title claim against the world, despite the fact that the defendants had no duty to

  answer that claim. This demonstrates the trial court’s error in entering the partial

  default judgment as to some claims but not others because such a result, treating the

  complaint’s well-pleaded allegations as true, is in direct conflict with the procedural

  posture as it existed at the time of the order.13




      11
        (Emphasis supplied.) OCGA § 9-11-55 (a). See also Fink v. Dodd, 286 Ga. App.
363, 364 (1) (649 SE2d 359) (2007) (“[A] defendant in default is in the position of having
admitted each and every material allegation of the plaintiff’s petition except as to the
amount of damages alleged. The default concludes the defendant’s liability, and estops him
from offering any defenses which would defeat the right of recovery.”) (punctuation
omitted).
      12
         OCGA § 9-11-55 (a). See Fink, 286 Ga. App. at 365 (1) (“[W]hile a default
operates as an admission of the well-pled factual allegations in a complaint, it does not
admit the legal conclusions contained therein.”) (punctuation omitted).
      13
         Cf. Lord v. Holland, 282 Ga. 890, 894 (2) (655 SE2d 602) (2008) (“In a quiet title
action, a plaintiff must recover on the strength of his own title or not at all. Plaintiffs
should not have been allowed to obtain a default judgment against [one] defendant, whose
ownership and possessory interests were equal to those of [the other defendant], who
successfully defended against the quiet title action.”) (punctuation omitted).

                                              8
      Accordingly, because proper service had not yet occurred, the trial court erred

as a matter of law to the extent that it concluded that the defendants were in default.

      Judgment affirmed in part and reversed in part. Coomer and Markle, JJ.,

concur.




                                          9
