At the default hearing before Judge Bagley, it was incumbent on counsel for the CRC HOA and Richards to persuade the Court to allow them to open their default?. Attorney Kevin Tallant made the following argument to Judge Bagley regarding the alleged failure of Bose, Mommies and FH Partners to join all of the property owners in the CRC Subdivision as necessary and indispensable parties, arguing that all of the property owners were going to have to be added to the lawsuit for the Court to be able to address the issues raised in the Quiet Title Action:

"...MR. TALLANT: The meritorious defense in this case, the first one that we raised is set up by the plaintiffs' own pleadings. The plaintiff actually pled in paragraphs 35 and 37 of their complaint the meritorious defense that we need to set up. We set it up as an affirmative defense number three in our answer, and that is the failure to join the indispensable or necessary parties. That is affirmative defense number three.

What the plaintiff said in paragraph 35 of their [Complaint], they name all these John and Jane Does; and the plaintiff said in their own complaint all of these people, these 625 homeowners, a few of which were able to come here today, they may have rights. They may have interests that re going to need to be litigated, and the plaintiff said, but we have not added them as parties yet because Chattahoochee River Club holds all the lists of who these people are. So we have not added them as parties yet -- yet. They acknowledge they have not added the people to this case that they need to add.

Paragraph 37 then goes onto acknowledge, again that they have not included all of the parties and that they need to add more. So we set up as defense number three in this case, failure to join the proper parties, failure to join the indispensable parties. ow, Judge, I am very much aware because I have litigated this issue many times, that the initial remedy in this case, when you have failure to join the parties, is to order them, join the darn parties. That is the initial remedy.

However, the question is not is that the only remedy. Because at the end of the day, what is absolutely true when you have these parties that have not been joined, is that in appropriate circumstances, if they don't get these parties added, you're required to dismiss their case. O.F.C. Capital versus Schmidtlein Electric, Inc., 289 Ga.App. 143, the pinpoint cite on that is 144. It's a 2008 case. They've got all these parties who they've said, we've not added yet. We raise that as a defense. It is possible. It might -- it may be, that if you open the default, eventually you end up dismissing their case because they've not added the people they are supposed to add.

That's a meritorious defense. If you open the default, the outcome might be different. It may be different. It could be different. It doesn't have to be, but it might, may, or could. That is a meritorious defense right there. We don't really have to go any further, but we will.

O.C.G.A. § 23-3-40, that's the conventional quia timet. That's the one that says you've got to add these people. It tells them they have to add these people.

THE COURT: Isn't this a quia timet against all the world? Isn't that what it is?

MR. TALLANT: Well, it's a lot of things, Judge. It's a conventional quia timet. They've pled under § 23-3-40. They also pled under § 23-3-60. They have alleged interference with easement. They've alleged defamation. They've certainly alleged intentional infliction of emotional distress. I mean there are all --

THE COURT: There's tort claims.

MR. TALLANT: There's tort claims. There's all kinds of things that have been thrown together, cobbled together, and tossed into this case. The reason I bring up § 23-3-40 is because it is a little bit different than § 23-3-60. § 23-3-40 says you add these people. These people are parties to the case. You have to add the people who may have adverse interest. They didn't do it. That's why we've raised that defense. That's why they know they've got to add these people -- paragraphs 35 and 37 of their own complaint. That's § 23-3-42 is where they have to add all the people whose cloud they are seeking to remove. And then § 23-3-60 involves, not only all the people who may have an adverse interest, it involves all of the adjoining landowners.

The first thing the special master is going to do, your Honor, the special master has to go out there and has to determine who are all the adjoining landowners to this case because you cannot have a quiet title against all the world until they get all those noticed parties in...."

While there are many points on which the parties differ, Bose, Mommies and FH Partners all agree that those property owners in the Chattahoochee River Club Subdivision who do not quitclaim their purported rights under the Agreement Regarding Development are going to have to be made parties to the Quiet Title Action (although only with respect to the effect of that one document on the Equestrian Center Property), especially under circumstances where the CRC HOA and Richards are arguing that the failure to join those parties should require the Court to dismiss the Quiet Title Action.