author: DOYLE, Chief Judge. RAY, Judge,

text:
    A16A1357.
    THE STATE v. T. M. H.
    (794 SE2d 201)
   DOYLE, Chief Judge.

After T. M. H., a juvenile, entered into a negotiated guilty plea to armed robbery with a firearm, aggravated assault, and obstruction of a law enforcement officer, he was sentenced by the superior court to ten years with five to serve on the armed robbery count, five years to serve on the aggravated assault count, and twelve months to serve on the obstruction of a law enforcement officer count. Each of these sentences was to be served concurrently Later, as T. M. H.’s seventeenth birthday approached, the superior court held a status conference pursuant to OCGA § 49-4A-9 (e) to reevaluate his sentence. As a result of that status conference, the superior court entered orders probating the balance of T. M. H.’s sentence. The State now appeals, and we affirm.

T. M. H. was prosecuted as an adult in the superior court, and he was 16 years old at the time of his negotiated plea. The superior court sentenced T. M. H. to “confinement in such institution as the Commissioner of the State Department of Corrections may direct[.]” Because T. M. H. was 16 years old at the time of his sentencing, he was committed by the Department of Corrections (“DOC”) into the custody of the Department of Juvenile Justice (“DJJ”) and housed in a juvenile detention facility

A few weeks before his seventeenth birthday, the superior court held a status conference at the DJJ’s request to review T. M. H.’s commitment order. The superior court’s order reflects that it heard testimony at the status conference “as to [T. M. H.’s] respectful behavior at the Youth Development Campus ..., his good grades, and his record of no rule violations.” The superior court also heard argument from the State that, upon his seventeenth birthday, T. M. H. must be transferred back into the custody of the DOC to serve the remaining portion of his sentence and that the superior court lacked discretion to modify his armed robbery sentence. Conversely, T. M. H. argued that the superior court retained the discretion to allow him to serve the remainder of his sentence on probation pursuant to OCGA § 49-4A-9 (e). Citing to that Code section, the superior court agreed, and entered an order allowing him to serve the remainder of his sentence on probation.

The State argues that the superior court was not authorized to probate the remainder of T. M. H.’s sentence. We disagree.

We note at the outset that, as the parties point out, there is little if any case law interpreting precisely how the applicable statutes govern this scenario. Even so, as in any case, our analysis begins with

[t]he cardinal rule of statutory construction [, which] is to seek the intent of the Legislature [. In so doing,] language in one part of a statute must be construed in the light of the legislative intent as found in the statute as a whole ... [, and] we must first focus on the statute’s text. In order to discern the meaning of the words of a statute, we must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words. In addition, [when] interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and decisions of the courts.

Also, when “interpreting criminal statutes, it is axiomatic that any ambiguities must be construed most favorably to the defendant. . . . [And f]or purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.”

Turning to the issue before us, the governing Code sections are OCGA §§ 17-10-14 and 49-4A-9. OCGA § 17-10-14 provides:

(a) Notwithstanding any other provisions of this article and except as otherwise provided in subsection (b) of this Code section, in any case where a person under the age of 17 years is convicted of a felony and sentenced as an adult to life imprisonment or to a certain term of imprisonment, such person shall be committed to the Department of Juvenile Justice to serve such sentence in a detention center of such department until such person is 17 years of age at which time such person shall be transferred to the Department of Corrections to serve the remainder of the sentence. This Code section shall apply to any person convicted on or after July 1, 1987, and to any person convicted prior to such date who has not been committed to an institution operated by the Department of Corrections.
(b) If a child is transferred to superior court pursuant to Code Section 15-11-561[] and convicted of aggravated assault as defined in Chapter 5 of Title 16, the court may sentence such child to the Department of Corrections. Such child shall be housed in a designated youth confinement unit until such person is 17 years of age, at which time such person may be housed in any other unit designated by the Department of Corrections.

Thus, this Code section serves as the default instruction on how to house certain child offenders under the age of 17.

Also applicable to this case is OCGA § 49-4A-9, which provides:

(a) Any child who has previously been adjudged to have committed an act which is a felony if tried in a superior court and who, on a second or subsequent occasion, is convicted of a felony in a superior court may, in the discretion of the court, be sentenced into the custody of the department as otherwise provided by law or be committed as a youthful offender as authorized in Chapter 7 of Title 42; provided, further, that any child convicted of a felony punishable by death or by confinement, for life shall only be sentenced into the custody of the Department of Corrections.
(b) Any final order of judgment by the court in the case of any such child shall be subject to such modification from time to time as the court may consider to be for the welfare of such child. No commitment of any child to any institution or other custodial agency shall deprive the court of jurisdiction to change the form of the commitment or transfer the custody of the child to some other institution or agency on such conditions as the court may see fit to impose, the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of the child and the best interests of the state; provided, however, that the release of any child committed to the department for detention in any of its institutions under the terms of this chapter during the period of one year from the date of commitment shall be had only with the concurrence and recommendation of the commissioner or the commissioner’s designated representative; provided, further, that upon releasing any child adjudicated for committing a delinquent act for the commission of a class A designated felony act or class B designated felony act as defined in Code Section 15-11-2 and committed to the department for detention in any of its institutions under the terms of this chapter, the department shall provide notice to any person who was the victim of the child’s delinquent acts that the child is being released. So long as a good faith attempt to comply with the notice requirement of this subsection has been made, the department and employees of the department shall not be liable for damages incurred by reason of the department’s failure to provide the notice required by this subsection.
(c) After the expiration of one year from the date of commitment, the committing court shall review the case and make such order with respect to the continued confinement or release of the child back to the committing court for further disposition as the court deems proper.
(d) In the event adequate facilities are not available, the department shall have the right to transfer youths committed to the department under this Code section to the Department of Corrections for incarceration in an appropriate facility designated by the Department of Corrections.
(e) Any child under 17 years of age who is sentenced in the superior court and committed to the department may be eligible to participate in all juvenile detention facility programs and services including community work programs, sheltered workshops, special state sponsored programs for evaluation and services under the Georgia Vocational Rehabilitation Agency and the Department of Behavioral Health and Developmental Disabilities, and under the general supervision of juvenile detention facility staff at special planned activities outside of the juvenile detention facility. When such a child sentenced in the superior court is approaching his or her seventeenth birthday, the department shall notify the court that a further disposition of the child is necessary. The department shall provide the court with information concerning the participation and progress of the child in programs described in this subsection. The court shall review the case and determine if the child, upon becoming 17years of age, should be placed on probation, have his or her sentence reduced, be transferred to the Department of Corrections for the remainder of the original sentence, or be subject to any other determination authorized by law.

Here, T. M. H. was sentenced to the DOC, but because he was under 17, he was committed by the DOC to the DJJ for confinement. As T. M. H.’s seventeenth birthday approached, the superior court held a hearing and exercised its discretion to modify his sentence pursuant to OCGA § 49-4A-9 (e). By its plain language, that subsection applies to “[a]ny child under 17 years of age who is sentenced in the superior court and committed to the department,” and the statutory text reveals no reason why T. M. H. fails to meet this definition. He was sentenced in the superior court and committed to the DJJ for custody. Thus, the language in OCGA § 49-4A-9 (e) contains no basis to exclude T. M. H. from the process described therein.

Nevertheless, the State argues that, in this case, the superior court’s authority under subsection (e) does not reach T. M. H.’s sentence in this case because (1) language in OCGA § 17-10-14 (a) — “until such person is 17 years of age at which time such person shall be transferred to the Department of Corrections to serve the remainder of the sentence” — is mandatory and precludes any other outcome for these offenders, and (2) OCGA § 49-4A-9 (a) provides that “any child convicted of a felony punishable by death or by confinement, for life shall only be sentenced into the custody of the Department of Corrections.”

Looking first at OCGA § 17-10-14 (a), nothing in that Code section addresses or limits the superior court’s basic sentencing authority with respect to juveniles. By its plain terms, it merely addresses where the child must be committed and states that a child shall be transferred at age 17 to the DOC to serve the remainder of the sentence, without any further language addressing what the sentence might be. It does not say “remainder of the original sentence” or otherwise include a limitation on the express authority given to a superior court under OCGA § 49-4A-9 (e). Thus, at most, OCGA § 17-10-14 (a) is ambiguous as to any limitation on the superior court’s sentencing authority under OCGA § 49-4A-9 (e), andas stated above, any ambiguity in a criminal statute must be resolved in favor of the defendant.

With respect to OCGA § 49-4A-9 (a), we reach a similar conclusion. That subsection designates the DOC as the only custodian of certain child offenders, but it does not, by its express terms, limit the operation of subsection (e), nor was T. M. H.’s treatment here inconsistent with the requirement that he be sentenced to the custody of the DOC. T. M. H. was sentenced into the custody of the DOC (with DOC’s discretion as to how to house him), but because he was under 17, he was committed to the DJJ as provided by OCGA § 17-10-14 (a). Further, because he was “sentenced in the superior court and committed to the department,” the superior court had authority under OCGA § 49-4A-9 (e) to “determine if... , upon becoming 17 years of age, [T. M. H.] should be placed on probation . . . This is entirely consistent with the overall statutory scheme as currently written.

Further, preserving discretion over juveniles’ sentences is in harmony with the statutory mandate in OCGA § 49-4A-9 (b) that

[n]o commitment of any child to any institution or other custodial agency shall deprive the court of jurisdiction to change the form of the commitment or transfer the custody of the child to some other institution or agency on such conditions as the court may see fit to impose, the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of the child and the best interests of the state . . . .

This is part of a unified statutory scheme enacted by the legislature specifically to address juvenile offenders. As required by the rules of statutory construction, we credit this specific scheme over the general sentencing provisions in Chapter 10 of Title 17 in which OCGA § 17-10-14 (a) appears.

Finally, this interpretation comports with the recent whole-court case of Ga. Dept. of Juvenile Justice v. Eller, in which this Court addressed a slightly different question: whether OCGA § 49-4A-9 (e) authorized the superior court to require the DJJ to retain custody of Eller, who pleaded guilty to child molestation and burglary, past his seventeenth birthday instead of transferring him to DOC. We answered in the negative based on OCGA § 17-10-14 (a), which “explicitly and unequivocally provides that, upon turning 17 years old, a juvenile in DJJ custody who was sentenced in superior court as an adult ‘shall be transferred to the Department of Corrections to serve the remainder of the sentence.’ ” Even so, this Court recognized that the superior court was authorized to “place him on probation, reduce his sentence, allow his transfer to the Department of Corrections, or fashion any other determination authorized by law.” That is precisely what happened to T. M. H. in this case.

In light of the express authority provided in OCGA § 49-4A-9 (e) to review T. M. H.’s sentence before he turned 17, the superior court was authorized to place T. M. H. on probation based on the court’s finding of T. M. H.’s rehabilitation, which finding was supported by the record. Accordingly, we discern no legal error requiring reversal, and we affirm the judgment of the superior court.

Judgment affirmed.

Miller, P. J., McFadden, McMillian and Rickman, JJ., concur. Barn es, P. J., concurs in judgment only. Andrews, P. J., Boggs and Ray, JJ., dissent.

RAY, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that OCGA § 49-4A-9 (e) applies to a juvenile who is sentenced to the Department of Corrections (the “DOC”), but is thereafter “committed” by the DOC to the Department of Juvenile Justice (the “DJJ”) until his seventeenth birthday. I believe that OCGA § 17-10-14 (a) is the controlling statute in the instant case and that the DJJ was bound to transfer T. M. H. back to the DOC upon his seventeenth birthday. Accordingly, I contend that the trial court’s orders probating and releasing T. M. H. was without authority and should be reversed.

The cardinal rule of statutory interpretation is to ascertain the legislature’s purpose in enacting a statute and then construe the statute in light of the intent as found in the statute as a whole. Goldberg v. State, 282 Ga. 542, 544 (651 SE2d 667) (2007). This Court reviews the trial court’s interpretation of a statute de novo. Hobbs v. State, 334 Ga. App. 241, 245 (3) (779 SE2d 15) (2015).

The superior court has “exclusive original jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed” one of several enumerated violent crimes, including “[ajrmed robbery if committed with a firearm.” OCGA § 15-11-560 (b) (8). In the instant case, although T. M. H. was sentenced by the superior court as an adult into the custody of the DOC, he was placed by the DOC with the DJJ until his seventeenth birthday as required by OCGA § 17-10-14 (a), which governs the sentencing of juveniles as adults by a superior court. OCGA § 17-10-14 (a) provides:

.. . [When] a person under the age of 17 years is convicted of a felony and sentenced as an adult to life imprisonment or to a certain term of imprisonment, such person shall be committed to the Department of Juvenile Justice to serve such sentence... until such person is 17 years of age at which time such person shall be transferred to the Department of Corrections to serve the remainder of the sentence. . . .

(Emphasis supplied.) OCGA § 17-10-14 (a).

Notwithstanding the foregoing statutory mandate, the trial court found that it was authorized to probate the balance of T. M. H.’s sentence upon his seventeenth birthday pursuant to OCGA § 49-4A-9 (e). This statute governs the sentencing and sentence review of juveniles who, unlike T. M. H., were sentenced directly into the custody of the DJJ. OCGA § 49-4A-9 (e) provides, in pertinent part:

Any child under 17 years of age who is sentenced in the superior court and committed to the [Department [of Juvenile Justice] may be eligible to participate in all juvenile detention facility programs and services .... When such a child sentenced in the superior court is approaching his or her seventeenth birthday, the [Department [of Juvenile Justice] shall . . . provide the court with information concerning the participation and progress of the child in [such] programs.... The court shall review the case and determine if the child, upon becoming 17 years of age, should be placed on probation, have his or her sentence reduced, be transferred to the Department of Corrections for the remainder of the original sentence, or be subject to any other determination authorized by law.

(Emphasis supplied.) OCGA § 49-4A-9 (e). While I recognize that at first glance it might seem that this provision gave the trial court the ability to modify T. M. H.’s sentence, I do not find that such authority existed under OCGA § 49-4A-9 (e) because OCGA § 49-4A-9 applies only to those juveniles sentenced by the trial court in the exercise of its discretion into the custody of the DJJ. See OCGA § 49-4A-9 (a). Although T. M. H. served a portion of his sentence in the custody of the DJJ pursuant to OCGA § 17-10-14 (a), he was sentenced by the superior court directly to the DOC. Thus, I find that OCGA § 17-10-14 (a) is the controlling statute in this case.

Decided November 18, 2016

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellant.

This Court’s recent decision in Ga. Dept. of Juvenile Justice v. Eller, 338 Ga. App. 247 (789 SE2d 412) (2016), does not require a different result. In Eller, the DJJ appealed from a superior court order sentencing Eller, a juvenile, directly into the custody of the DJJ until he turned 21 years old. Id. The Eller Court found that although the superior court was authorized to re-evaluate Eller’s sentence upon his seventeenth birthday under OCGA § 49-4A-9 (e), it was not authorized to require the DJJ to keep Eller beyond his seventeenth birthday Id. Eller is distinguishable from the instant case because Eller, unlike T. M. H., was sentenced by the trial court directly into the custody of the DJJ. Additionally, I question the language in Eller to the extent that it implies that a defendant who is not directly sentenced to the DJJ, but who instead is sentenced into the custody of the DOC and is transferred to the DJJ until his seventeenth birthday pursuant to OCGA § 17-10-14 (a), can have his sentence reviewed and reduced under OCGA § 49-4A-9 (e).

For the foregoing reasons, I would hold that the trial court lacked jurisdiction to probate the balance of T. M. H.’s sentence and to order his release. “When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed.” (Citation and punctuation omitted.) Bush v. State, 273 Ga. 861, 862 (548 SE2d 302) (2001). See, e.g., State v. James, 211 Ga. App. 149, 150 (2) (438 SE2d 399) (1993) (as trial court lacked jurisdiction to grant a motion to reconsider a defendant’s guilty plea, its judgment doing so was a nullity).

I am authorized to state that Presiding Judge Andrews and Judge Boggs join in this dissent.

Brandon A. Bullard, for appellee.

       The mandatory minimum sentence for armed robbery is ten years in prison. OCGA §§ 16-8-41 (b), 17-10-6.1 (b) (1). However, the State consented to a downward modification from the mandatory minimum. See OCGA § 17-10-6.1 (e) (“In the court’s discretion, the judge may depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a serious violent felony when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.”).

       T. M. H. also pleaded guilty to possession of a firearm during the commission of a felony. The superior court sentenced T. M. H. to five years to serve on that conviction, but suspended that sentence with conditions.

       See OCGA § 17-10-14 (a).

       The appellate record does not contain a transcript of the status conference.

       (Citations and punctuation omitted.) Fair v. State, 288 Ga. 244, 252 (2) (702 SE2d 420) (2010).

       (Citations and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 544 (651 SE2d 667) (2007).

       OCGA § 15-11-561 governs transfers from juvenile court to superior court of certain children between the ages of 13 to 15 accused of serious offenses.

       (Emphasis supplied.)

       (Emphasis supplied.)

       See OCGA§ 17-10-14 (a).

       See Goldberg, 282 Ga. at 544.

       Subsection (b) also contains notice provisions applicable to the release of certain child offenders, which notice is not at issue here.

       For this reason, we are unpersuaded by the State’s argument that the general sentencing limitation in OCGA § 17-10-6.1 (e) on downward departures from the mandatory minimum requires reversal in this case.

       See Goldberg, 282 Ga. at 544. OCGA § 17-10-14 appears inArticle 1, alongside general sentencing provisions for, among other things, split sentencing (OCGA § 17-10-1.4), general misdemeanor punishments (OCGA § 17-10-3), and collection of fines and restitution (OCGA § 17-10-20).

       338 Ga. App. 247 (789 SE2d 412) (2016).

       Id. at 249.

       (Punctuation and emphasis omitted.) Id.

       See also OCGA § 15-11-34 (“Except as otherwise provided in [OCGA §] 17-10-14, achild shall not be committed to an adult correctional facility or other facility used primarily for the execution of sentences of persons convicted of a crime”).

       See Ga. Op. Atty. Gen. No. U96-5 (February 19, 1996). Further, I disagree with the majority because its holding would essentially render meaningless the trial court’s discretion in the first instance whether to sentence a defendant directly to the DJJ; any defendant under age seventeen sentenced to the DOC would go to the DJJ anyway pursuant to OCGA § 17-10-14(a) and, under the majority’s interpretation, still have the benefit of a reconsideration of his or her sentence under OCGA § 49-4A-9 (e).


source: Caselaw Access Project

author:
Peterson, Judge. McFADDEN, Judge,
      McMlLLIAN, Judge,

license: Public Domain

text:
    A16A1403.
    MILLER et al. v. TURNER BROADCASTING SYSTEM, INC. et al.
    (794 SE2d 208)
   Peterson, Judge.

An electrical worker shuts off the circuit breaker to allow him and his colleague to work on wires. But the circuit breaker was mislabeled (or so we must presume on summary judgment), and the circuit remains live. After the worker’s colleague is shocked and tells the worker so, the worker — adamant he turned off the circuit — climbs a ladder to investigate what shocked his colleague. After a few brief seconds of investigation, the worker is electrocuted and falls to the ground, injuring his head. His injuries leave him unable to testify as to what he did while investigating. The Appellees, defendants in the ensuing lawsuit, argue that we should presume from the silent record that his investigation was negligent, and thus summary judgment for them should be affirmed. We disagree and reverse, because the Appellees’ argument turns the burden at summary judgment on its head.

Ronald Miller, individually and as legal guardian and conservator for Justin Miller, and Justin Miller (“Miller”), individually, (collectively referred to herein as “Appellants”) appeal the trial court’s grant of summary judgment in favor of Turner Broadcasting System, Inc. (“TBS”), Turner Properties, Inc. (“Turner Properties”) (both collectively referred to as the “Turner Defendants”), Inglett & Stubbs, LLC (“I&S”), and Skanska USA Building, Inc. (“Skanska”) (all four defendants collectively referred to as “Appellees”) on the Appellants’ claims seeking to recover damages resulting from Miller’s near-fatal electrocution on TBS property

On appeal, “[w]e review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party” Latson v. Boaz, 278 Ga. 113, 113 (598 SE2d 485) (2004). “To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Id.

Construed in favor of the Appellants, the evidence shows that in 2006 and 2007, Skanska worked on the build-out of a building on Techwood Drive (the “Techwood campus building”), which was owned by TBS and managed by Turner Properties. I&S was an electrical subcontractor for Skanska on that project. In the course of that work, I&S performed electrical work on the fourth floor of that building, including installing and labeling a junction box in the ceiling of a conference room (the “Junction Box”) and labeling a panel containing circuit breakers that energized the box (the “Panel”).

Several years later, on the morning of November 13, 2009, Gallagher Electric and Engineering Company, Inc. (“Gallagher”) was performing electrical work as a subcontractor to Leapley Construction Group of Atlanta, LLC (“Leapley”) at the Techwood campus building. Turner Properties had contracted with Leapley to build a new “Digital Delivery” office on the fourth floor of the building (the “Project”).

That morning, Gallagher foreman Bobby Darnell met with two Gallagher employees, Paul Nipper, a journeyman electrician, and Miller, an electrician’s helper, to discuss the work they would be performing. Nipper and Miller were assigned the job of installing wall-mounted light fixtures on the fourth floor, which required re-routing electrical wires from the Junction Box in the ceiling to the light fixtures. The two men were not authorized to work on live wires, only deenergized wires. Therefore, before beginning work, Miller and Nipper first had to cut the power to the Junction Box. Miller climbed a ladder to inspect the Junction Box, which contained the number “SP4 15.” Nipper testified that this number should have corresponded to Circuit Number 15 on the Panel in the electrical room, indicating that Circuit 15 controlled the power to the Junction Box.

Miller then went into the electrical room containing the Panel. No one else was present to observe what actions Miller took there. When he returned, Miller told Nipper that he had turned off the circuit breaker to the Junction Box, locked the Panel door, and locked the electrical room door. In certain circumstances, federal workplace safety regulations mandate that electrical workers follow a “lockout/ tagout” procedure, which requires not only that they trip the circuit breaker, but that they also put a lock on the breaker handle to prevent it from being turned back on and/or that they tag the breaker. See 29 CFR § 1910.333 (b) (2). This procedure ensures that no one else will reenergize the line while work is being performed. See 29 CFR § 1910.333 (b) (2) (iii) (A). The regulations also require thatbefore any circuit or equipment “can be considered and worked as deenergized,” workers must verify that they have turned off the proper circuit with the use of testing equipment, such as a “tic tracer,” to ensure that they have locked and tagged out the proper circuit. See 29 CFR § 1910.333 (b) (2) (iv) (B). Miller’s employer testified that Miller was familiar with the lockout/tagout procedure when he came to work with Gallagher and that Gallagher provided him further training on the procedure.

Nipper said that he personally did not follow any lockout/tagout procedure that day, and he did not know whether Miller had done so. Nipper also stated that he did not use a tic tracer before beginning to work on the Junction Box, and he did not see Miller use one, although he stated it could have been in Miller’s shirt pocket.

At the work site, Nipper was the first to climb the ladder to the Junction Box. When he removed a wire nut in the box in order to separate some of the wires, he was “hit [hard] with electricity.” Nipper said the charge went up his arm and was very painful. He descended the ladder and told Miller that the circuit was not off. Miller replied that he had turned it off. Although Nipper suggested that they check the circuit breakers first, Miller went directly up the ladder to the Junction Box. About 20-30 seconds after reaching the ceiling, Miller said that Nipper had been hit with a “neutral” wire. Nipper then saw Miller’s knees buckle. At that point, Nipper said that he knew Miller “was on the electricity,” and he asked two nearby men to knock the ladder out from under Miller while Nipper tried to catch him. Unfortunately, Miller slipped through Nipper’s arms as he fell, hitting his head on the floor, resulting in severe injuries.

Nipper summoned Darnell and asked someone to report the incident to security. Nipper testified that after emergency medical personnel arrived to tend to Miller, Darnell told him that the circuit was mislabeled. However, Darnell did not recall making that statement and, in fact, said he did not check the panel until weeks later because Gallagher employees were not permitted on the floor while Turner Properties was investigating the incident.

James “Tex” Walters, the director of facility operations for Turner Properties, also came to the scene of the incident, and while Miller was still receiving emergency medical treatment, he directed two of Turner Properties’ electricians, James Randall Duke and Thomas Byrd, Jr., to make the Junction Box safe by turning off the circuit, insulating or capping off any exposed wires in the box, and then reenergizing the circuit. The electricians first determined that the box was, in fact, energized. Byrd then climbed the ladder to the Junction Box, while Duke went to the Panel in the electrical room. Upon entering the electrical room, Duke found no evidence that any of the breakers had been locked or tagged out. To deenergize the Junction Box, Duke began shutting off circuits individually, as Byrd tested the wires in the Junction Box with a meter to see if they had power, communicating the results by radio. Based on this exercise, Byrd came to the conclusion that Circuit 13 controlled the power to the Junction Box. However, the Panel schedule labeled that circuit as a “Spare,” which indicated that it did not control power to any location, and Circuit 15 was labeled “Break/Conference Room.” Byrd subsequently changed the Panel schedule by scratching out the word “Spare” next to Circuit 13 and handwriting in the word “East Con-f[erence]” to indicate the room in which the Junction Box was located.

When Gallagher was allowed back on the work site, Darnell and another Gallagher employee returned to complete the work begun by Nipper and Miller. At that point, a Turner Properties employee informed them which circuit controlled the Junction Box, and they ensured that it was locked out during their work. At that time, the label on the Junction Box was apparently changed to reflect that Circuit 13 controlled the box, instead of Circuit 15.

The Appellants filed a timely suit against the Turner Defendants, Skanska, andl&S, among others, asserting negligence claims. Following discovery, the Appellees moved for summary judgment on the grounds that Miller (1) failed to exercise due care as a matter of law; (2) assumed the risk of his injuries; and (3) had superior or equal knowledge of the hazard. Additionally, the Turner Defendants argued that they lacked control over the premises at the time of Miller’s injuries. Skanska and I&S also argued that the record contained no evidence that they were responsible for any mislabeling of the circuit.

The trial court granted the motions for summary judgment, holding that as to all four defendants, Miller’s “actions in disregarding Mr. Nipper’s warning and proceeding to work on a line that he had reason to believe was live were the sole proximate cause of his injuries.” The trial court further found that despite Miller’s contentions that the Panel schedule was mislabeled, his “decision to ascend the ladder and continue working without confirming that the line was deenergized renders immaterial any contention that the circuit was mislabeled.”

The Appellants argue on appeal that the trial court erred in granting summary judgment for the Appellees by improperly construing the evidence in the Appellees’ favor or failing to credit the Appellants’ evidence. We agree.

Although the Appellants’ theory of recovery differs in some respects as to each of the Appellees in this case, they assert claims sounding in negligence against all the Appellees. The gist of these claims is that improper labeling of the Junction Box and the Panel resulted in Miller’s injuries, that Skanska and I&S are the parties responsible for the initial installation and mislabeling, and that TBS and Turner Properties, as the owner and manager of the Techwood campus building, respectively, are responsible for maintaining this condition.

The Appellees asserted in their motions for summary judgment that Miller’s own actions were the sole proximate cause of his injuries, insulating them from liability. A legally attributable causal connection between the allegedly-negligent conduct and the resulting injury — i.e., proximate cause — is an essential element of any negligence claim. See Toyo Tire N. Am. Mfg., Inc. v. Davis, 299 Ga. 155, 158 (2) (787 SE2d 171) (2016); Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). “In the tort context, proximate causation includes all of the natural and probable consequences of the tortfeasor’s negligence, unless there is a sufficient and independent intervening cause.” Cowart v. Widener, 287 Ga. 622, 627-28 (2) (b) (697 SE2d 779) (2010).

[T]he general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act . . . was such that its probable or natural consequences could reasonably have been . . . foreseen by the original wrong-doer, the causal connection is not broken.

Ontario Sewing Machine Co., Ltd. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002) (citation and punctuation omitted).

1. Here, the Appellants provided sufficient evidence of proximate cause to escape summary judgment. The Appellants presented evidence that create questions of fact as to whether the Junction Box and the Panel were mislabeled. In particular, a Turner Properties electrician who attended to the scene following the incident determined that Circuit 13 controlled the power to the Junction Box but had been mislabeled as a “Spare,” while Circuit 15 was labeled as the “Break/ Conference Room.” The electrician subsequently changed the Panel schedule to indicate that Circuit 13 controlled the power to the room in which the Junction Box was located. And the Appellants presented evidence that created a question of fact as to whether the mislabeling proximately caused Miller’s injuries. There is evidence that due to the mislabeling, Miller did not realize the circuit had not been turned off: According to Nipper’s testimony, after Nipper was hit by electricity, he told Miller “the circuit wasn’t off,” but Miller insisted that it was. Of course, Miller must have known that something was wrong, but we cannot conclude as a matter of law that he knew that the circuit had not been turned off — all we can conclude he knew was that there may have been some source of electricity in the Junction Box, and that an investigation was required to determine how to turn it off. Based on this evidence, the Appellants’ expert testified that it would have been perfectly reasonable for Miller to have climbed the ladder to investigate and test the wires. And so a jury could conclude that Miller’s injuries were proximately caused by the Appellees’ negligence in mislabeling the circuit.

2. A defendant also may prevail on summary judgment “by presenting evidence which establishes a prima facie affirmative defense.” Weston v. Dun Transp. & Stringer, Inc., 304 Ga. App. 84, 85 (695 SE2d 279) (2010). The defendants argue that the Appellants’ claims are barred by contributory negligence or assumption of risk. It is well settled that “[a] plaintiff’s [own] contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant.” N. Ga. Elec. Membership Corp. v. Webb, 246 Ga. App. 316, 319 (2) (540 SE2d 271) (2000). Similarly, “[t]he relatedbut separate defense of assumption of risk is applied where a plaintiff assumes the risk of a danger he knows and appreciates.” Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993).

However, issues of assumption of risk and contributory negligence also are ordinarily not susceptible to summary adjudication “but must be resolved by a trial in the ordinary manner, except where the facts are so plain and palpable that they demand a finding by the court as a matter of law.” Bass Custom Landscapes, Inc. v. Cunard, 258 Ga. App. 617, 619 (1) (575 SE2d 17) (2002). Moreover, contributory negligence and assumption of the risk are affirmative defenses for which the defendants have the burden of proof. See Muldovan v. McEachern, 271 Ga. 805, 807 (2) (523 SE2d 566) (1999) (discussing assumption of risk as an affirmative defense); Christian v. Eagles Landing Christian Acad., Inc., 303 Ga. App. 113, 113 (1) (692 SE2d 745) (2010) (defendant moving for summary judgment based on assumption of risk bears the burden of pointing to evidence establishing that defense); Garrett v. NationsBank, N.A., 228 Ga.App. 114, 116 (491 SE2d 158) (1997) (contributory negligence is an affirmative defense on which defendant bears the burden of proof on summary judgment). “A defendant moving for summary judgment based on an affirmative defense may not rely upon an absence of evidence in the record disproving the affirmative defense.” Ward v. Bergen, 277 Ga. App. 256, 260 (626 SE2d 224) (2006) (citation omitted); see also Franklin v. Eaves, 337 Ga. App. 292, 299 (2) (787 SE2d 265) (2016). Here, the Appellees have not carried their burden to prove either of these defenses such that they are entitled to summary judgment.

As explained above, the Appellants’ expert testified that it would have been perfectly reasonable for Miller to have climbed the ladder to investigate and test the wires once uncertainty arose as to whether there was a source of electricity still live in the Junction Box. The evidence does not make clear exactly what Miller did once he ascended the ladder. The Appellees suggest that Miller somehow acted without due care at that point by failing to use proper equipment to test the wires; the record is silent as to what Miller did in investigating. The parties argue about what significance we should give Miller’s statement that Nipper had been hit by a neutral wire; we need not resolve that dispute. The absence of evidence regarding what Miller did while on the ladder simply means that the Appellees have not carried their burden to prove a defense of contributory negligence or assumption of risk.

The Appellees argue that Miller’s contributory negligence in this case is “confirmed” by his violation of two OSHA regulations designed to protect his safety: (1) a requirement that employees working on deenergized circuits “lock out and tag” any circuit that has been deenergized; and (2) a requirement that employees verify that the circuit has been deenergized using test equipment before performing work on that circuit. The Appellees point to evidence that Nipper and Miller did not comply with OSHA lockout/tagout regulations. However, they point to no evidence that any such violations contributed to Miller’s injuries.

As for the requirement of testing the wires, the Appellees point to Nipper’s deposition testimony that he made a “mistake” by not testing the line before working on it. But they can merely speculate as to whether Miller failed to test, saying that he “must have made a mistake because he should not have been injured if he was using a tic tracer properly.” Such speculation does not amount to the sort of affirmative evidence required to carry the Appellees’ burden at this stage.

Judgment reversed.

Ellington, P. J., Phipps, P J., Dillard and Mercier, JJ., concur. Miller, P. J., and McFadden, J., concur fully and specially. Branch and McMillian, JJ., dissent.

McFADDEN, Judge,

concurring fully and specially.

In the course of his work as an electrician’s assistant, Appellant Miller sustained catastrophic injuries which left him severely disabled and unable to speak or communicate in any meaningful fashion. As a result, he has not been able to describe or explain his actions immediately before his electrocution, including what precisely he did after climbing the ladder. I concur fully with the majority’s conclusion that, despite the absence of evidence on this point, summary judgment is not appropriate. I write separately in response to two arguments made by the dissent.

The dissent argues that the Appellees are entitled to summary judgment under principles set forth in Georgia cases applying principles of assumption of the risk and contributory negligence to circumstances involving exposure to an electrical current. But these cases do not compel judgment for the Appellees, because with the exception of one case, Beamon v. Ga. Power Co., 199 Ga. App. 309 (404 SE2d 463) (1991), they do not concern a plaintiff whose work specifically required him to place himself in proximity to an electrical current, as Miller’s work required. In Beamon, the plaintiff “admitted] not exercising care for his own safety” by failing to take required precautions. Id. at 311. The remaining electrical current cases involve plaintiffs in other lines of work, who did not have the type of job duties that — as the expert witness testified — imposed upon Miller a duty to climb the ladder and investigate. Consequently, none of those cases supports a conclusion that, as a matter of law, Miller assumed the risk or failed to exercise ordinary care by climbing the ladder.

The dissent also argues that testimony of the Appellants’ expert witness regarding whether Miller used a voltage meter when he climbed the ladder to investigate was too speculative to raise even an inference of fact on this point. I disagree. In his deposition, the expert witness stated that it was standard practice for an electrician to carry a voltage meter (sometimes called a tic tracer) as part of his equipment, and he testified that, in his opinion, Miller’s statement about the neutral wire indicated that Miller had tested the voltage with such a meter after climbing the ladder. The expert witness set forth the bases for his conclusions — his knowledge of standard industry practice and his interpretation of a specific comment made by Miller. “[A]ny deficiencies in the expert’s opinion go to the weight and credibility of his testimony.” Toyo Tire North America Mfg. v. Davis, 333 Ga. App. 211, 217 (2) (775 SE2d 796) (2015). See generally Layfield v. Dept. of Transp., 280 Ga. 848, 851 (1) (632 SE2d 135) (2006) (expert’s opinion that vehicle accident was caused by driver losing control when encountering accumulated water on road was not speculative or conjectural and, to extent expert lacked sufficient information from which to reach a probative opinion, the weight which should be assigned to the opinion was a jury question). It is for the jury, and not this court, to decide whether Miller used a voltage meter to investigate the unexpected power source.

I am authorized to state that Presiding Judge Miller joins in this concurrence.

McMlLLIAN, Judge,

dissenting.

Because the majority conflates the burden of proof in reviewing a defendant’s motion for summary judgment and in so doing, ignores pertinent and on point case law, I must respectfully dissent.

As an initial matter, even if we assume for purposes of summary judgment that issues of fact exist as to whether the Appellees were negligent in mislabeling the circuits and as a result Miller failed to cut the electricity to the Junction Box, the Appellants have failed to show that any such negligence was the proximate cause of Miller’s injuries because Miller undisputedly knew that the Junction Box contained a potential danger from an energized source of electricity and yet negligently approached the Junction Box.

Miller knew that the Junction Box was live because he had witnessed Nipper being shocked, was told by Nipper that he had been shocked, and watched Nipper descend the ladder after being shocked. Miller did not have to know with specificity what had caused the electrical shock, i.e., that the circuit itself was live; rather, it is enough that he knew that potential danger existed from a source of live electricity in the box. In fact, the Appellants’ expert acknowledged in his deposition that if Miller took Nipper’s word “at face value,” he should have known that something in the box was energized and that his attempt to deenergize the circuit may not have worked.

Not only did Nipper tell Miller that the Junction Box contained live current, but he also suggested that they check the circuits. Tragically, Miller declined to do so. Instead, Miller decided to climb the ladder to check the Junction Box, the same ladder that Nipper had just descended to avoid being electrocuted. The majority asserts that a question of fact exists as to whether Miller was properly using a tic tracer or voltage meter to check the Junction Box, but that is error as all the evidence is to the contrary. Nipper, the only eyewitness, did not use a tic tracer before working on the box and did not use a tic tracer to test the wires after he was shocked. Nipper also said that he did not see Miller use such a device, although he stated that Miller “may” have had one in his pocket. Also, no tic tracer was found on the scene after Miller was electrocuted.

Although the Appellants argue that Miller’s statement that Nipper had been hit by a neutral line demonstrates that he used a tic tracer, such an interpretation is pure conjecture. The Appellants’ expert opined that the only way Miller could have ascertained that information was with a voltage meter, but the expert can only guess that Miller based his statement on empirical evidence gathered through testing the lines and not on some other factor, such as his stated belief that he had cut the power to the box, or whether it was just a guess on Miller’s part. Presented with the evidence of record, a jury also would be left to speculate regarding the basis for Miller’s statement. It is well settled that “[gjuesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” (Citation and punctuation omitted.) Hill v. Jackson , 336 Ga. App. 679, 681 (783 SE2d 719) (2016). Cf. Cochran v. Kendrick, 297 Ga. 655, 660 (2) (778 SE2d 1) (2015) (speculation about motive behind defendant’s actions insufficient to defeat summary judgment). There is simply no evidence showing whether Miller tested the lines with a tic tracer or any other similar device.

This Court has repeatedly found that summary judgment for the defendants is appropriate in similar circumstances where the plaintiff was aware of a potential risk from live electricity, yet failed to exercise reasonable care for his own safety or through his own actions assumed the risk of potential danger. As the Court has explained, “[a] person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” (Citation and punctuation omitted.) Brown v. Southern Bell Tel. & Tel. Co., 209 Ga. App. 99, 101 (2) (432 SE2d 675) (1993) (holding that plaintiff’s claims barred as a matter of law where he attempted to free a power line from his truck even though he knew it might carry voltage). Thus, for example, in Southern Orchard Supply v. Boyer, 221 Ga. App. 626, 627-28 (472 SE2d 157) (1996), this Court found that a pipe installer’s actions in lifting an irrigation pipe above his head near high voltage wires despite his knowledge of the danger was the proximate cause of his injuries. See also Callaway v. Crown Crafts, Inc., 223 Ga. App. 297, 298-99 (2) (477 SE2d 435) (1996) (physical precedent only) (metal company worker, who was “keenly aware” of the dangers of working around high voltage lines, yet chose to lower a metal gutter near those lines, eschewing other means for doing the job, failed to exercise ordinary care).

Even in cases where jury questions existed as to whether a defendant was negligent in installing or maintaining the source of the electrical current, this Court has found that summary judgment is appropriate where the undisputed evidence demonstrated that the injured party’s own negligence was the proximate cause of his injuries and the defendant could not foresee that the injured party would fail to exercise the appropriate care for his own safety or would assume the risk of a known danger. In Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993), for example, an experienced tree service worker suffered fatal injuries when he was electrocuted after he came into contact with a Georgia Power Company (“GPC”) power line while he was up in a tree to begin the process of its removal. 210 Ga. App. at 574. The plaintiffs argued that GPC was negligent in maintaining its power line too close to the tree in violation of the National Electrical Safety Code. Id. at 575. The deceased’s co-worker testified that the deceased had seen the line and knew it was an uncovered power line, and they had discussed whether they had enough room to remove the tree without contacting GPC regarding the line, as they had done on past jobs. Id. This Court found as a matter of law that “even if Georgia Power breached a duty with respect to placement of the power line, [the deceased’s] death was proximately caused by his own actions, rather than any breach by Georgia Power.” Id. at 576. The Court further found that

[i]t was not foreseeable to Georgia Power that an experienced tree climber and cutter, working in a profession where it is common to encounter the danger of power lines on tree removal jobs, would proceed in this case to attempt removal of the tree, despite the close proximity of an obvious and visible power line.

Id. at 578. See also Beamon v. Ga. Power Co., 199 Ga. App. 309, 312 (404 SE2d 463) (1991) (electrical lineman’s own actions in failing to follow safety procedures while repositioning a transformer on a utility pole precluded his recovery despite the existence of jury issues as to whether GPC had negligently mounted the transformer to the pole); Ga. Power Co. v. Purser, 152 Ga. App. 181, 182 (262 SE2d 473) (1979) (surveying company employee’s own contributory negligence in holding surveying rod between power lines precluded recovery even if GPC was negligent in the placement of the lines).

Therefore, even assuming for purposes of summary judgment that the Appellees negligently mislabeled the Junction Box and the Panel, I would find as a matter of law that Miller’s own actions were the sole proximate cause of his injuries. “A defendant who pierces the plaintiff’s pleadings by showing that under any theory of recovery one essential element is lacking is entitled to summary judgment despite any remaining issues of fact with respect to other essential elements.” (Citation and punctuation omitted.) Leonardson, 210 Ga. App. at 576. Here, the record contains no evidence showing that any actions by the Appellees were the proximate cause of Miller’s injuries; rather, Miller had the last, best chance to avoid injury, and no evidence exists that he took steps to do so. Moreover, I would find that it was not foreseeable to the Appellees that a trained electrical worker would make contact with the Junction Box without taking the requisite precautions under the circumstances, i.e., with knowledge that his co-worker had received a shock from the box moments before and believed the box to be energized. See id. at 577.

Decided November 18, 2016

The Summerville Firm, J. Darren Summerville, Angela R. Fox; Law & Moran, Peter A. Law, E. Michael Moran, for appellants.

Although the majority asserts that the Appellees bear the burden of proof on summary judgment to show that Miller failed to take proper precautions to support their affirmative defenses of contributory negligence and assumption of risk, the Appellants bore the burden of showing that the Appellees’ actions were the proximate cause of Miller’s injuries, and they have failed to do so. A mislabeling of circuits may have led Miller to assume that he had switched off the proper circuit when he had, in fact, not done so, but Miller had direct notice that despite his actions in flipping the circuit, the Junction Box was live. Thus, the Appellants cannot show that any negligence by the Appellees was the cause of Miller’s injury. Without resorting to speculation or conjecture, a jury will not be able to determine what actions Miller took or that he took the proper precautions. Under these circumstances, summary judgment is required. See Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991) (defendant entitled to summary judgment by showing that there is no evidence sufficient to create a jury issue on an essential element of plaintiff’s claim); Leonardson, 210 Ga. App. at 575 (defendant entitled to summary judgment in wrongful death action where deceased tree worker, who knew risks of electricity, was electrocuted and record was silent as to his actions that led to contact with electrical line).

Accordingly, I believe that the Appellees were entitled to summary judgment on the Appellants’ claims.

I am authorized to state that Judge Branch joins in this dissent.

Troutman Sanders, Daniel S. Reinhardt, Alan W. Bakowski, Courtney E. Ferrell; Goodman, McGuffey, Lindsey & Johnson, Edward H. Lindsey, Jr., Michael A. Melonakos, for appellees.

       Miller had worked for Gallagher for approximately one-and-one-half years prior to the incident in this case, but apparently this was his first day at the Techwood campus building site.

       Darnell testified that the Gallagher workers generally did not cut the power to an entire floor in the Techwood campus building because it was a 24-hour facility and people might be working; however, he said the Turner Defendants never instructed him that they could not cut the power to the entire floor.

        See generally 29 CFR § 1910.147 (a) (defining the scope, application, and purpose of the lockout/tagout procedures) (effective as of August 1, 2011).

       That regulation requires that “a qualified person” use “test equipment to test the circuit elements and electrical parts of equipment to which employees will be exposed and shall verify that the circuit elements and equipment parts are deenergized.” 29 CFR § 1910.333 (b) (2) (iv) (B).

       The parties concede that the severity of Miller’s injuries rendered him incapable of providing testimony regarding the events of November 13, 2009.

       The Appellants’ expert stated that a neutral wire is grounded so it does not ordinarily present a shock hazard. However, Darnell testified that a neutral wire can carry an electric shock if the wires are frayed and someone completes the circuit by touching both ends.

       Inspectors from the Occupational Safety and Health Administration (“OSHA”) subsequently interviewed witnesses and investigated the events leading up to and surrounding Miller’s injury. Based on this investigation, OSHA issued Gallagher a “Citation and Notification of Penalty,” charging the company with three violations of OSHA regulations, including the failure of its employees to lock and tag out the circuit on which they were working. See 29 CFR § 1910.333 (b) (2). '

       The record contains additional evidence raising a jury issue as to whether the circuits in the Panel were mislabeled.

       To be clear, we do not rely on the expert’s testimony to the extent that the expert offers conclusions as to the legal questions raised by the case but merely to the extent that the expert offers opinions on whether Miller acted within industry standards.

       This case was superseded by statute on other grounds, as recognized in Preston v. Ga. Power Co., 227 Ga. App. 449, 455 (489 SE2d 573) (1997).

       The Appellees cite two cases, Kull v. Six Flags Over Ga. II, L.P., 264 Ga. App. 715 (592 SE2d 143) (2003), and Beamon v. Ga. Power Co., 199 Ga. App. 309 (404 SE2d 463) (1991), for the proposition that failure to comply with mandatory safety regulations precludes recovery as a matter of law. However, in both of those cases there was a direct causal relationship between the violation and the injury that is not present here.

       Appellees Skanska USA Building, Inc. and Inglett & Stubbs, LEG also argue that summary judgment as to them should be affirmed because there is no evidence that they were negligent in allegedly mislabeling the circuit. But the trial court did not rule on this argument, instead focusing exclusively on Miller’s actions. Counsel acknowledged at oral argument this argument invites us to affirm as “right for any reason.” We decline to do so and leave it instead to the trial court to consider on remand.

       Turner Properties employees found no signs that Miller followed Occupational Safety and Health Administration (“OSHA”) regulations requiring that electrical workers follow a lockout/tagout procedure before approaching the box. OSHA later charged Gallagher with violating its regulations in this regard. See Kull v. Six Flags Over Ga. II, L.P., 264 Ga. App. 715, 717-18 (592 SE2d 143) (2003) (failure to follow mandatory OSHA regulations may amount to negligence per se).

       Moreover, I note that the Appellants’ expert testified that he knew of no source of power to the Junction Box other than that controlled by the circuit breakers.

       This case was superseded by statute on other grounds, as recognized in Preston v. Ga. Power Co., 277 Ga. App. 449, 455 (489 SE2d 573) (1997).

       Other than briefly considering Beamon in a footnote, the majority does not attempt to address or distinguish these cases.


author: Peterson, Judge.

text:
    A16A1967, A17A0322.
    In the Interest of L. P. et al., children (two cases).
    (794 SE2d 252)
   Peterson, Judge.

The mother and father of three children, L. P, J. P, and P P, appeal from the termination of their parental rights. The mother argues that termination of her rights was error because she substantially completed her case goals and her children’s dependency was not likely to continue or cause them future harm, and that the juvenile court violated her right to due process by terminating her parental rights despite the Division of Family and Children Services’ (“DFCS”) failure to file her case plan. The father argues that the juvenile court erred by terminating his parental rights without clear and convincing evidence that the children would be harmed by their continued dependency We conclude that clear and convincing evidence in the record supports the juvenile court’s findings that the children’s dependency is likely to continue and failing to terminate the parents’ rights is likely to cause the children serious physical, mental, or emotional harm. Accordingly, we affirm.

Viewed in the light most favorable to the judgment below, see In the Interest of M. S. S., 308 Ga. App. 614, 614 (708 SE2d 570) (2011), the evidence shows that the three children came into the care of DFCS in January 2013 due to the parents’ unstable housing and employment and unresolved domestic violence and criminal issues. Later that year, the children were returned to the care of their mother under a protective order. In December 2013, however, DFCS received a report that the mother had been involuntarily hospitalized due to mental health issues on the same night the father was arrested for a probation violation. The children then returned to DFCS custody

When the dependency petition filed by DFCS was heard in March 2014, the mother was incarcerated and the father’s whereabouts were unknown. Based on the evidence presented as to the father, and with the consent of the mother, the juvenile court found the children dependent, awarded temporary custody to DFCS, and ordered the parents to complete a case plan to resolve the dependency issues. Though no case plan appears in the record (and the mother argues hers was never filed), the juvenile court’s order terminating parental rights states that the case plan required the parents to complete a number of tasks, including, but not limited to: (1) obtaining and maintaining stable housing, employment, and income; (2) resolving outstanding criminal issues; (3) attending parenting classes; and (4) completing mental health evaluations. The mother also had to complete a substance abuse evaluation and follow associated recommendations, attend Narcotics Anonymous meetings, and submit to random DFCS drug screens. The father maintained only intermittent contact with DFCS, and was later arrested. The mother cycled in and out of jail for various offenses, including simple battery and possession of methamphetamine.

In June 2014, the juvenile court found that the parents had failed to complete any of the tasks in their case plan and failed to maintain contact with DFCS. Both parents remained incarcerated. DFCS filed a motion for a finding of non-reunification in July 2014, and a petition to terminate parental rights in October 2014. The mother was subsequently released from jail and entered a drug court program. She was sanctioned for missing one drug screen, but DFCS withdrew its motion for non-reunification as to the mother and requested that the termination hearing be held in abeyance due to her substantial compliance in the drug court treatment program and her cooperation with DFCS. In November 2014, the father tested positive for multiple substances on a drug screen, and some time later the court suspended his visitation with the children and further indicated an intention to terminate his parental rights.

On April 30, 2015, the mother tested positive for methamphetamine, but she admitted only to using GHB on a number of occasions since entering the drug court program. The mother was subsequently sanctioned for not disclosing her relapse to DFCS. In July 2015, the mother tested positive for synthetic marijuana, which she denied using, and was removed from the drug court program and then incarcerated.

The juvenile court held its first termination of parental rights hearing for both parents on August 25, 2015. At the hearing, a DFCS supervisor testified that the mother had not obtained stable housing or employment. A separate DFCS witness testified that the children would be harmed if the parents’ rights were not terminated because the children would face an uncertain future, which could result in emotional harm, whereas if the termination were granted, their foster family was interested in adopting them. The youngest child had spent nearly the entirety of his childhood with his foster parents, and considered his foster parents to be his mother and father. The juvenile court continued the hearing, finding that it did not have enough evidence to evaluate potential harm to the children or to decide whether termination was in their best interest.

At a subsequent hearing held on November 12, 2015, a psychologist testified as an expert witness regarding his evaluations of the two older children, L. P. and J. P. He testified that if the children were left to “linger” in foster care, they could be expected to suffer “some degree of emotional harm,” would develop a sense of hopelessness, and would have trouble developing emotional bonds. He did not evaluate the youngest child but testified that a child who is removed from the care of foster parents with whom he has spent the majority of his life would also experience a number of deleterious effects. The expert further noted that L. P had some behavior problems and fought with J. P around the time parental visitation resumed. The expert testified regarding the harm that could result from the children being exposed to domestic violence, drug use, continued incarceration, and lack of stable living arrangements, and stated that “there is a very strong potential that the negative impact can be lasting well beyond just the immediate impact.” The expert conceded that if “all of the issues that resulted in harm to the children are cured, then logically, there would be a lower risk of future harm to the children.”

The therapist for J. P and L. P also testified at the later hearing. She testified that the children had been experiencing certain negative emotions associated with the shifting amount of visitation by their parents, and that L. P’s academic motivation had suffered when visitation with her parents ceased. She further testified that J. P and L. P experienced mood shifts and drops in their activity levels and motivation after visitations with their parents. However, overall, the children’s emotional states had stabilized while under the care of their foster parents.

The children’s foster mother testified that when visits with the parents resumed, J. P became more argumentative and combative, and had conduct issues at school. L. P. experienced similar troubles at school, and the youngest child, P. P, showed signs of anxiety at being separated from his foster parents. J. P. and L. P. also experienced trouble with their grades when the visits with their parents became irregular, she testified, but once the visits with their parents entirely ceased, their performance stabilized.

At this later hearing, the father, who was on probation, provided proof that he had completed the anger management class and proof of stable housing for the past three months. The father further stated that he had taken some unprescribed pain pills in March but had done some drug and alcohol awareness education since then. The father also testified regarding his employment since his release on probation. A DFCS witness also testified that the father had provided some check stubs and proof of attendance at over twenty Narcotics Anonymous or Alcoholics Anonymous meetings.

The juvenile court entered an order terminating the parental rights of the mother and father. The court cited the lack of stable employment, income, and housing for the parents, continued substance abuse and failure to complete treatment by both parents, the mother’s continued incarceration, and the father’s history of lack of participation in treatment programs and in the case plan more generally. The court also cited the testimony of the psychologist who testified as to the harm the children were likely to suffer if they were returned to their parents. The parents each filed a motion for a new trial, which the juvenile court denied. The parents then filed timely application for discretionary appeal, which this Court granted.

OCGA § 15-ll-310(a) provides that a court considering termination of parental rights first must determine whether at least one of five statutory grounds for termination has been met. Here, the trial court terminated the parents’ rights under OCGA § 15-ll-310(a)(5), which provides that a ground for termination exists when:

A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

If it finds that any of the statutory grounds has been met, the juvenile court then shall consider whether termination is in the child’s best interest. OCGA § 15-ll-310(b). Grounds for termination must be proven by clear and convincing evidence. OCGA § 15-ll-320(a). A trial court’s order terminating parental rights must “[cjontain written findings on which the order is based, including the factual basis for a determination that grounds for termination of parental rights exist and that termination is in the best interests of the child[.J” OCGA § 15-ll-320(b)(l).

1. The mother first argues that the trial court erred in terminating her parental rights because she substantially completed her case goals and her children’s dependency was not likely to continue. In determining that the children were dependent due to lack of proper parental care and control, the trial court relied on the following grounds: (1) “[ejxcessive use of or history of chronic unrehabilitated substance abuse with the effect of rendering a parent of such child incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of his or her child”; (2) “[pjhysical, mental, or emotional neglect of his or her child or evidence of past physical, mental, or emotional neglect by the parent of such child or another child of such parent”; and (3) “whether such parent, without justifiable cause, has failed significantly for a period of six months prior to the date of the termination hearing... [t]o comply with a court ordered plan designed to reunite such parent with his or her child.” OCGA § 15-ll-311(a)(2), (a)(5), (b)(3).

The record shows that, after entering a drug court program, the mother tested positive for methamphetamine and, separately, synthetic marijuana. She denied using either of these substances, and admitted only to using GHB on a number of occasions since entering drug court. The mother did not disclose her initial relapse to DFCS as instructed, was removed from the drug court program, and was re-incarcerated.

The mother argues in her appeal that the children’s dependency is unlikely to continue because she is completing drug rehabilitation courses while incarcerated. A DFCS witness testified, however, that the mother felt she still needed the structure of in-patient drug treatment. Despite the mother’s claim of newfound personal reform, which is for the juvenile court to weigh, the evidence in the record was clear and convincing to support the juvenile court’s finding that the mother had continued her pattern of drug use, had not been forthcoming about her ongoing drug issues, and had not been successful in completing a drug treatment program. See In the Interest of T.W.O., 283 Ga. App. 771, 776-77 (1) (a) (iii) (643 SE2d 255) (2007) (“[JJudging the credibility of the parent[’s] good intentions was a task for the juvenile court.”) (punctuation and footnote omitted); In the Interest of M. N. R., 282 Ga. App. 46, 47 (637 SE2d 777) (2006) (“The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.”) (citation and punctuation omitted). The record makes clear that the mother’s ongoing drug problem substantially contributed to her inability to provide for the needs of her children, as her incarceration and her related inability to maintain stable housing or employment all stem from her drug use. Where, as here, the mother’s drug use has a deleterious effect on her ability to parent, the juvenile court is justified in finding that the children’s dependency was likely to continue.

Without even addressing the two remaining causes for dependency cited by the juvenile court in its order, we find the evidence clearly and convincingly supported the juvenile court’s determination that the deprivation was likely to continue. SeeM. N. R., 282 Ga. App. at 47 (dependency was likely to continue where mother admitted she did not complete a drug treatment program, relapsed after completing an earlier program, had positive drug screens, and had not successfully completed a drug treatment program).

2. Both parents argue that there is insufficient evidence that the children’s continuing dependency will cause the children serious harm. OCGA § 15-11-310(a)(5) demands that the juvenile court terminate parental rights based on dependency only upon finding by clear and convincing evidence that “the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm” to the child in question. We have long said that a finding that dependency is likely to continue does not necessarily justify a finding of harm, although dependency could support a finding of harm in particular circumstances. See In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011) (whole court) (analyzing under “deprivation” standard of former Juvenile Code). Rather, in determining whether harm to the child exists, “our law requires a juvenile court to consider both the relationship between the parent and child at the time of the termination hearing and what might happen if the child were returned to the parent.” In the Interest of E. M. D., 339 Ga. App. 189, 200 (2) (b) (793 SE2d 489) (2016). Thus, the court must assess whether a child currently in foster care is likely to suffer serious harm as a result of continued dependency if the child remains indefinitely in foster care, and “also the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists.” In the Interest of C. L., 315 Ga. App. 607, 611-12 (1) (b) (727 SE2d 163) (2012). The State must show that both scenarios would likely cause serious harm in order for a termination of parental rights tobe justified. See E. M. D., 339 Ga. App. at 200 (2) (b). “Under this framework, whether returning the child to the parent would cause harm matters little if there is no evidence that the child is likely to experience serious harm under the status quo.” Id.

Decided November 18, 2016.

The juvenile court found that the children would be harmed if returned to their parents because of their parents’ inability to provide stability for their children, and because of their substance abuse and past incarceration and domestic violence issues. This finding is supported by the record.

The record also supports a finding that the children would continue to suffer harm under the current arrangement. The expert testified that one of the children, L. R, experienced behavioral problems and would fight with one of her siblings around the time she resumed visits with her parents. The therapist for the two older children, L. R and J. R, testified that the inconstancy of the visits with their parents had negative consequences on the children, and that the children would experience mood shifts and drops in their activity level and motivation after visits with their parents. The children’s foster mother testified that when visits with their parents resumed, J. R became more argumentative and combative and experienced problems at school, L. R experienced similar school troubles, and the youngest child, R R, showed signs of anxiety at being separated from his foster parents. However, these troubles dissipated when visits with the mother and father were discontinued. Finally, the two older children expressed a desire to be adopted by their foster parents, with whom they had bonded, if they could not be returned to their mother and father. The record supported the juvenile court’s finding that maintaining the status quo would likely harm the children. See In the Interest of S. A. B., 269 Ga. App. 705, 708-09 (605 SE2d 100) (2004) (clear and convincing evidence supported finding that continued deprivation would cause harm where child had developed a positive relationship with his foster parent and expressed his desire to be adopted, and where remaining in foster care would lead to school conduct and academic problems).

Judgments affirmed.

Phipps, P. J., and Dillard, J., concur.

Andrew F. Wehunt, for appellant (case no. A16A1967).

Lee W. Fitzpatrick, for appellant (case no. A17A0322).

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Penny L. Hannah, Richard W. Tangum, Senior Assistant Attorneys General, Dana M. Thompson, Cynthia C. Propst, Assistant Attorneys General, for appellees.

       The mother testified she was hospitalized for drug use, but concedes in her appeal that she was committed for “extreme paranoia” and mental health issues.

       The mother conceded at her termination hearing that she previously received a copy of her case plan, and that DFCS had reviewed the plan with her and provided her with resources and referrals to complete the plan. DFCS witnesses testified they had previously given copies of the case plan to each parent.

       The court suspended the father’s visitation with the children until he enrolled in a substance abuse treatment program and had negative drug screens. The father did not regain visitation with the children before the dependency hearing.

       A DFC S witness testified that the positive drug screen for methamphetamine was a “false positive” because the drug the mother had actually used was GHB. But the mother has not explained why her use of that drug was more legitimate.

       The father does not challenge the juvenile court’s findings of dependency or that it was likely to continue, but rather argues that the evidence was not clear and convincing that the children would likely suffer serious harm. We address that argument in Division 2.

       The mother’s failure to follow the case plan was a separate basis for granting termination that we do not reach here, and therefore her remaining argument that the juvenile court deprived her of her due process rights when it failed to file her case plan is moot.


text:
    A16A2161.
    CENTRAL MUTUAL INSURANCE COMPANY v. KICKLIGHTER et al.
    (794 SE2d 258)
   Peterson, Judge.

Leslie and Kathy Kicklighter’s house burned down. Central Mutual Insurance Company, with whom they had a homeowners’ insurance policy, paid them several hundred thousand dollars under the policy The Kicklighters contended they were owed still more; when Central Mutual did not pay, the Kicklighters sued them for bad faith. Central Mutual responded to the lawsuit by filing a motion to dismiss, but not an answer. So far, so good for the Kicklighters. But then the Kicklighters’ counsel obtained an ex parte default judgment against Central Mutual, and then intentionally withheld the judgment from Central Mutual until the time to appeal or file a motion to reconsider had run. We cannot allow conduct of this sort to stand, and so we reverse the order of the trial court denying Central Mutual’s understandably belated motion to set aside.

We review a trial court’s refusal to set aside a default judgment for an abuse of discretion, but review questions of law de novo. See Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc., 317 Ga. App. 123, 125 (730 SE2d 514) (2012).

The record evidence, which is largely undisputed, shows that on October 16, 2015, the Kicklighters filed suit against Central Mutual after it allegedly refused to provide full coverage for a fire loss under the Kicklighters’ homeowners’ insurance policy. The Kicklighters sought to recover the additional amounts allegedly owed under the policy, attorneys’fees, and bad faith damages. On November 20, Central Mutual filed a motion to dismiss the complaint, asserting that it made a partial payment of $441,000 under the policy and denying that it acted in bad faith in refusing to pay the entirety of the Kick-lighters’ fire loss claim because coverage issues remained unsettled and the Kicklighters never made any demand for immediate payment of the entire policy limits.

On December 16, 2015, the trial court held a meeting with the Kicklighters’ counsel and signed an order entering a default judgment of $124,660 plus interest for the Kicklighters. Central Mutual was not given notice of the hearing and therefore did not attend. In its default judgment order, the trial court ruled that Central Mutual’s motion to dismiss could not be construed as an answer, Central Mutual was therefore in default, and Central Mutual failed to open the default.

The trial court did not provide a copy of the default judgment to Central Mutual, and despite intervening communications with Central Mutual, the Kicklighters’ counsel made no mention of it either. Instead, the Kicklighters’ counsel deliberately withheld the default judgment from Central Mutual until February 1, 2016, when the Kicklighters made a demand of payment of the judgment. By this time, the 30-day period for filing a notice of appeal from the order had expired and the term of the court had ended. OCGA § 15-6-3(30)(A) (the court terms for the Superior Court of Bulloch County begin on the first Mondays in February, May, August, and November). At oral argument, the Kicklighters’ counsel acknowledged that he delayed notice, at least in part, for the purpose of ensuring that Central Mutual could not appeal.

Soon after receiving notice of the default judgment, Central Mutual moved to set aside the judgment. Central Mutual argued that the judgment should be set aside because its motion to dismiss was a responsive pleading that could be construed as an answer so as to preclude default; the entry of default judgment was improper where a dispositive motion is pending; it was not given notice that the court would enter a default judgment; and the Kicklighters’ counsel acted in bad faith in failing to provide prompt notice of the default judgment. The trial court held a hearing on Central Mutual’s motion to set aside, during which the following colloquy occurred between the trial court and the Kicklighters’ counsel (John B. Manly and Bobby T. Jones):

COURT: Do you recall when we had the meeting in the — in the law library and I did — I signed the order. Do you remember what I told you? I told you to make sure that the opposing side got a copy.
MANLY: That’s correct.
COURT: I did say that. Correct?
MANLY: I don’t remember exactly, but it doesn’t surprise me.
COURT: I did. I did.
MANLY: And we served a copy, Your Honor, in accordance with —
COURT: Yes. When did you serve a copy?
MANLY: I believe the date was February 1st or 2nd.
COURT: And when did I sign the order?
MANLY: I think it was December 17th, if I recall.
COURT: And why did you wait that long?
MANLY: Because of the term of court and because this case Winslett v. Guthrie[, 326 Ga. App. 747 (755 SE2d 287) (2014),] allows us to wait until the new term of court because of his failure to file an answer and his negligence in not filing an answer absolves our responsibility of having to serve him with that.
COURT: [T]he only thing that bothers me is I specifically told you folks to make sure they got a copy and I think that somewhat — if the case says that, the case says that. But it was my clear impression that I had informed you to give them notice and my impression or my belief was that the notice would be forthcoming and not delayed. Okay
MANLY: Yes, sir.
JONES: May I address that?
COURT: Why?
JONES: Because, Judge, I’ve been before you decades now... As you know, I’ve known you almost forty years.
COURT: We have.
JONES: I can assure you, Judge, and I think my experience will bear this out, if you had told us and if you did tell us, I’m not denying what you said. I don’t recall it, but if—we have never, and I personally in my dealings with this Court and all other courts, have never not done as instructed by a court even when I disagreed with it. So I want you to understand that I didn’t —
COURT: Oh, I didn’t say today. I didn’t say tomorrow. I just said give them notice.
JONES: I understand. And we did, Judge, but whatever you told us I promise you I did my best and always will, including today, comply with the Court’s directions and instructions. I just don’t want the Court having any belief of anything otherwise.
COURT: That’s fine.
JONES: And, I mean, my reputation with the Court is more important than any one single case. Whatever the Court — the Court has the authority to rule and it’s the (inaudible) of the lawyers and parties to comply with the Court’s rulings and I just want you to understand that that’s always been my position and is today and will always be.

Following the hearing, the trial court denied the motion without explanation, and we granted Central Mutual’s application for discretionary review.

On appeal, Central Mutual argues that the trial court erred in denying its motion to set aside the default judgment because Central Mutual filed a motion to dismiss that the court should have construed as an answer, the court held an ex parte hearing when denying the motion to dismiss and granting default judgment to the Kicklighters, and plaintiffs’ counsel deliberately delayed providing Central Mutual notice of the order granting default judgment until the time frame for filing a notice of appeal had expired and the term of the court had ended. We agree that (1) Central Mutual was entitled to notice that the court would hold a hearing in which it would consider whether Central Mutual’s motion to dismiss constituted an answer, and (2) the court erred in entering default judgment without first disposing of Central Mutual’s pending motion. Therefore, we reverse the denial of its motion to set aside the default judgment.

A motion to set aside may be brought on several grounds, including when a nonamendable defect appears on the face of the record or pleadings. OCGA § 9-ll-60(d)(3). “In cases involving a default judgment, this type of defect arises where the record shows on its face that the default was entered on an improper basis.” Hiner Transport, Inc. v. Jeter, 293 Ga. App. 704, 705 (667 SE2d 919) (2008) (citing Shields v. Gish, 280 Ga. 556, 558 (2) (629 SE2d 244) (2006)) (punctuation omitted). The record shows that the trial court entered the default on an improper basis and, therefore, should have granted Central Mutual’s motion to set aside.

“[Ujnder the [Civil Practice Act] a party is to be given notice and the opportunity to amend defective pleadings where such notice will facilitate [a] decision on the merits. The [Civil Practice Act] does not penalize a party irrevocably for one misstep in pleading.” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 515 (250 SE2d 424) (1978). If the defendant timely files a document responding to the complaint that could be construed as an answer, a trial court may not hold an ex parte hearing disposing of the filing; it must provide notice to the defendant that the court will rule on the sufficiency of its filing as an answer. See Brown v. Brown, 217 Ga. App. 245, 246-47 (457 SE2d 215) (1995) (regardless of whether defendant’s letter was sufficient as an answer, it was properly before the trial court and could not be disposed of in an ex parte proceeding without notice thereof to the defendant); cf. Livesay v. King, 129 Ga. App. 751, 751 (201 SE2d 178) (1973) (“The rule of fair play suggests at the outset that one who moves the court to change the status of a pending matter . . . should serve the opposite party with a copy of the motion and of a rule nisi which the court should enter thereon, thus affording to the opposite party a fair opportunity to object or to defend against the proposed action.”). And it is reversible error for the trial court to enter default judgment where a dispositive motion is pending. See US Professionals, LLC v. Directlink India (P) Ltd., 247 Ga. App. 679, 680 (1) (545 SE2d 95) (2001) (although defendant failed to appear for trial, it was error to enter judgment against the defendant when the court failed to dispose of the defendant’s motion to dismiss for improper venue); Williams v. Coca-Cola Co., 158 Ga. App. 139, 140 (2) (279 SE2d 261) (1981) (it is harmful error to enter default judgment without ruling on a motion to dismiss or, alternatively, a motion for summary judgment that was filed within the time permitted to file an answer).

Here, the trial court held an ex parte hearing with the Kicklight-ers’ counsel in a law library before signing the default judgment order in which it deemed Central Mutual’s motion to dismiss an insufficient answer. The failure to give Central Mutual notice that the issue of the sufficiency of the answer would be hear d requires the grant of Central Mutual’s motion to be set aside. See Brown, 217 Ga. App. at 247. Moreover, Central Mutual provided evidence outside of the pleadings in support of its motion to dismiss to argue that it was entitled to a judgment on the merits. This was a dispositive motion that the trial court was required to dispose of before entering default judgment, and it committed reversible error in failing to do so. See US Professionals, 247 Ga. App. at 680 (1); Williams, 158 Ga. App. at 140 (2). Because we reverse on these grounds, it is unnecessary to consider Central Mutual’s arguments that the trial court should have set aside the default judgment because Central Mutual’s motion to dismiss constituted an answer, or because the Kicklighters’ counsel intentionally withheld providing notice of the judgment to prejudice Central Mutual. Accordingly, we reverse.

Judgment reversed.

Phipps, P. J., and Dillard, J., concur.

Decided November 18, 2016.

James, James & Joyner, Stuart F. James, William T. Joyner, for appellant.

Manly Jones, John B. Manly; Jones & Smith, Bobby T. Jones, for appellees.

       We note, however, that the Kicklighters’ counsel misconstrued Winslett when arguing at the motion to set aside hearing that there was no duty to inform Central Mutual of the default judgment. In Winslett, we concluded that the trial court had no responsibility to give notice of a default judgment when the defendant waived the right to receive future notices, like the entry of the default judgment, by failing to file any pleadings. 326 Ga. App. at 751-52 (4) (citing OCGA § 9-ll-5(a)). Here, Central Mutual filed a motion to dismiss, and so Winslett does not apply.