author: Miller, Judge.

text:
    A14A1420.
    In the Interest of T. M.
    (766 SE2d 101)
   Miller, Judge.

Following a hearing, the juvenile court terminated the mother’s parental rights with respect to her daughter, T. M. We granted the mother’s application for discretionary review, and she appeals the juvenile court’s order. On appeal, the mother contends that the evidence was insufficient to support the termination of her parental rights; the trial court denied her right to counsel at all stages of the proceedings; and the trial court erred in denying her motion for new trial. After a thorough review, this Court finds that the clear and convincing evidence does not show that the mother is presently unfit and that T. M.’s deprivation was likely to continue and cause substantial harm. Accordingly, we reverse the juvenile court’s decision.

In considering the mother’s appeal, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother’s right to custody should have been terminated.

(Citation omitted.) In the Interest of A. B., 311 Ga. App. 629 (716 SE2d 755) (2011). Nevertheless, in conducting our review, we must proceed

with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

(Citations and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. 283 (746 SE2d 783) (2013). Moreover, clear and convincing evidence of present or current parental unfitness, as opposed to past unfitness, is required to terminate a mother’s rights to her natural child. In the Interest of T. F., 250 Ga. App. 96, 98 (1) (550 SE2d 473) (2001).

So viewed, the evidence shows that the mother faced numerous difficulties over her lifetime. In March 2011, while she was pregnant with T. M., the then 18-year-old mother was admitted to the hospital for overdosing on ibuprofen pills. The mother denied intending to cause T. M. harm, and she was released from the hospital after three days with instructions for follow-up psychiatric treatment.

As a result of the mother’s overdose, the Department of Family and Children Services (“DFCS”) became involved in the mother’s case. Thereafter, on June 5, 2011, the mother gave birth to T. M. prematurely. On June 16, 2011, while T. M. remained hospitalized, DFCS filed a petition for custody of T. M., alleging that she was deprived. Following a shelter care hearing on June 20, 2011, the juvenile court granted temporary custody of T. M. to DFCS. The juvenile court subsequently found T. M. to be deprived and extended the grant of temporary custody to DFCS through June 16, 2013.

The juvenile court’s deprivation orders provided for a permanency plan of reunification with the mother concurrent with the termination of parental rights and adoption. The reunification plan required the mother to, among other things, obtain and maintain a source of income and suitable housing; successfully complete a psychological and psychiatric evaluation and follow the recommendations thereof; successfully complete parenting classes; and take all of her prescribed medications.

The mother made substantial improvements as demonstrated by her actions in completing her parenting classes, meeting with her caseworkers, obtaining Social Security Income (“SSI”) for her mental illness disability, seeking part-time employment to supplement her SSI income, and applying for housing assistance. The mother also attended most of her scheduled supervised visitations with T. M., interacted well with T. M. during visitation and has custody of her youngest child.

After the mother completed her parenting classes, DFCS did not require her to attend any additional classes or refer her to a follow-up family service worker. Nevertheless, in February 2013, despite the mother’s efforts to complete her reunification plan goals and turn her life around, DFCS filed a petition to terminate the mother’s parental rights to T. M. The petition alleged that the mother failed to maintain stable housing and income, failed to comply with her established mental health treatment plan and failed to regularly visit and bond with T. M.

The actual evidence presented at the termination hearing showed that the mother had stable housing and sources of income. The mother had been living at the same two-bedroom residence with her youngest child and that child’s father for more than five months, and the youngest child’s father was employed. The mother and her youngest child’s father had been dating for about one year, they had obtained a marriage license and were planning to marry, and the mother had taken the father’s last name.

An expert psychologist, who testified at the termination hearing, opined that the mother’s history of foster care and abuse, her history of fighting and noncompliance with prescribed medications and her authoritarian views on parenting increased the risk of physical abuse for a child in her care. The expert admitted, however, that parenting classes could address this issue. Moreover, the psychologist opined that the mother’s mental health would likely improve with proper intervention, including medications and counseling, and compliance with her recommended mental health treatment.

1. The mother contends that the evidence was insufficient to support the termination of her parental rights. We agree because we find that clear and convincing evidence does not show that the mother is presently unfit and that T. M.’s deprivation was likely to continue and cause her harm.

A juvenile court’s termination of parental rights is a two-step process:

The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.

(Footnotes omitted.) In the Interest of T. F., supra, 250 Ga. App. at 98 (1); see also former OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv). Moreover, where as here, the child is not in the parent’s custody the juvenile court shall consider

whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent[.]

(Citation omitted.) In the Interest of C. J. V., supra, 323 Ga. App. at 284; see also OCGA § 15-11-94 (b) (4) (C). DFCS had the burden of proof in this case. In the Interest of M. J. T., 255 Ga. App. 553 (565 SE2d 877) (2002).

(a) Whether the cause of the deprivation was likely to continue.

For purposes of our review, we assume that the evidence was sufficient to show that T. M. was deprived since the mother did not appeal that determination. Accordingly, we focus our analysis on whether the evidence clearly and convincingly showed that T. M.’s deprivation was likely to continue because that issue is dispositive of our inquiry here. In the Interest of C. J. V., supra, 323 Ga. App. at 284.

As set forth above,

termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue.

(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. 138, 148 (1) (735 SE2d 140) (2012); see also In the Interest of C. J. V., supra, 323 Ga. App. at 285-288 (reversing termination of mother’s rights where she made substantial steps toward complying with case plan). Although the juvenile court was authorized to consider the mother’s past conduct, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent and her natural child. See In the Interest of T. F., supra, 250 Ga. App. at 98 (1). Rather, clear and convincing evidence of present unfitness is required. Id.

Here, the juvenile court’s findings with regard to whether T. M.’s deprivation is likely to continue were limited to the mother’s failure to maintain stable housing, take her medications and remain employed. Even construing the evidence in the light most favorable to the termination order, the evidence does not clearly and convincingly show that the mother is presently unfit and that T. M.’s deprivation is likely to continue.

The mother has maintained stable housing with her youngest child and that child’s father. As for employment, the mother’s reunification plans required her to obtain and maintain a source of income or support, not stable employment. The mother has sources of income, including her SSI benefits, as well as income from her youngest child’s father, and she has supplemented her income with money earned from part-time employment.

The mother also met or substantially completed most of her other case plan goals. She completed her parenting classes, attended counseling sessions, attended the majority of her scheduled visitations with T. M., interacted well with T. M. during visitation, and met with her caseworkers. This evidence clearly contradicts the juvenile court’s findings in its termination order that the mother has never had stable housing, that the only thing consistent in her life is her Social Security benefits and that she failed to present any evidence showing that T. M.’s deprivation was not likely to continue.

Moreover, we note that shortly after the juvenile court entered its termination order, DFCS dismissed a deprivation petition involving the mother’s youngest child based on evidence that the mother had resumed her medications, and was adequately providing for that child. The dismissal order provides further evidence that the mother has maintained stable housing with her youngest child’s father, she has complied with her recommended counseling, and her youngest child’s father has sufficient income to support the family. Accordingly, the evidence does not show by the clear and convincing standard that the mother is presently unfit and that T. M.’s past deprivation is likely to continue. For this reason, we reverse the juvenile court’s judgment terminating the mother’s parental rights.

(b) Likelihood of harm and best interest of the child.

In light of our holding in Division 1 (a) above, we need not determine whether T. M.’s deprivation is likely to cause serious physical, mental, emotional, or moral harm or whether termination of her mother’s rights was in her best interest. Nevertheless, we note that the juvenile court found that T. M. was at risk of harm due to the mother’s unstable lifestyle, serious harm was likely to result if T. M. remained in temporary foster care for a substantial amount of time, her foster parents desired to adopt her and adoption was in her best interest. Approximately one week later, however, the juvenile court amended its termination order to state that T. M.’s foster home is not a potential adoptive resource. Accordingly, at this time, the evidence does not clearly and convincingly show that termination of the mother’s parental rights is in T. M.’s best interest. See In the Interest of T. Z. L., 325 Ga. App. 84, 96 (751 SE2d 854) (2013) (reversing termination of incarcerated father’s parental rights where no evidence showed that foster parent stood ready and willing to adopt child).

Decided November 17, 2014.

Laurie M. Thomas, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Leo Beckmann, Jr., for appellee.

2. In light of our holding that the evidence did not clearly and convincingly establish that T. M.’s deprivation was likely to continue and cause her harm, we reverse the juvenile court’s judgment. Accordingly, we need not address the mother’s remaining contentions.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

       The parental rights of the putative father were also terminated, but that is not an issue in this appeal.

       The mother has a history of mental health symptoms, including depression, bipolar disorder and schizophrenia. At age 11 or 12, the mother was molested by a stranger, removed from her mother’s custody and placed in a group home followed by a foster home. At age 17, the mother went back to live with her mother and was subjected to physical abuse.

       The mother worked part-time at two jobs for three to four months in 2012.

       The mother has two younger children who were born in June 2012 and June 2013. The mother’s second child is being raised by that child’s father.

       The mother lived in Florida with her mother for about four months in an effort to establish stable housing there, but moved back to Georgia in January 2013 because she was missing visits with T. M.

       The mother has since married the father of her youngest child.

       In 2013, the General Assembly adopted a new Juvenile Code to replace Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new Juvenile Code became effective on January 1,2014, and applies to all juvenile proceedings commenced on and after such date. Ga. L. 2013, p. 294, § 5-1.

       Compare In the Interest of A. M., 324 Ga. App. 512 (751 SE2d 144) (2013) (affirming termination of parents’ rights where they were unable to meet children’s extreme special needs).

       See In the Interest of D. B., 306 Ga. App. 129, 137 (1) (701 SE2d 588) (2010).

       At the time of T. M.’s birth, the mother had been prescribed psychotropic medications, but had not been taking the medications for more than a year. The mother also stopped taking her prescribed medications while she was pregnant with her younger children. The evidence showed that at least one of the psychotropic medications prescribed to the mother was contraindicated in pregnancy.

       The juvenile court noted the psychologist’s opinion that the mother’s history increased the risk of child abuse for a child in her care, but made no additional factual findings regarding the psychologist’s testimony that parenting classes could address this issue, or her testimony that the mother’s mental health would likely improve with proper intervention.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A0860.
    In the Interest of R. M., a child.
    (766 SE2d 126)
   BARNES, Presiding Judge.

The juvenile court revoked R. M.’s probation and committed him to the Georgia Department of Juvenile Justice for 60 months, at least 18 of which were to be served in confinement at a youth detention center. On appeal, R. M. contends that the trial court lacked subject matter jurisdiction to revoke his probation because the State did not file a proper revocation petition, that his due process rights were violated because of the State’s failure to file and serve him with a sufficient petition, and that the evidence was insufficient to establish that he violated his probation. Upon our review, we affirm.

The enumerations related to the revocation of probation involve questions of law, which we review de novo, and “[w]e review the factual findings supporting the juvenile court’s order for clear error.” In the Interest of R. F., 295 Ga. App. 739 (673 SE2d 108) (2009).

The record shows that on February 1, 2012, R. M. was adjudicated delinquent for having committed an offense that would have constituted aggravated child molestation if he had been an adult. On March 7, 2012, the juvenile court placed R. M. on 20 months of probation, the conditions of which included that he not violate any laws or use drugs, among other things.

At some point in 2013, the State filed a petition to adjudicate R. M. delinquent for theft by taking a motor vehicle, failure to report an accident, and driving without a license, and at an August 28, 2013 hearing, he was adjudicated delinquent. At that hearing, the State apparently filed a motion to revoke R. M.’s probation on the earlier child molestation adjudication, alleging numerous probation violations, including the adjudication for the traffic offenses and car theft and served a copy on R. M.’s attorney. Disposition on the automobile-related offenses was deferred until September 4, 2013, when the juvenile court also considered the probation revocation petition.

At the September 4, 2013, hearing, R. M. argued that the trial court lacked subject matter jurisdiction to hear the State’s petition to revoke his probation. According to R. M., when the State files a petition to revoke probation, the petition must contain the same contents as a delinquency petition as set forth in former OCGA § 15-11-38.1 and Uniform Juvenile Court Rule 3.8, and the State must follow the same statutory steps that are required to initiate a delinquency proceeding under former OCGA § 15-11-39.

The trial court responded that it considered the State’s petition to revoke proper under former OCGA § 15-11-40 (c) and concluded that, when taken together with the original delinquency petition, it was sufficient “in terms of facts and notice to the Defendant.” The court found that in

this case a petition for revocation must be filed, but it must be filed under [former] OCGA § 15-11-40 (b).[] . . . When a probation revocation petition is filed then the juvenile court is authorized to enter disposition pursuant to the designated felony statute if the original delinquent act is shown to be a designated felony .... A delinquency petition alleging a probation violation is not sufficient to revoke a juvenile’s probation imposed for his previous adjudication of delinquency, which is why the State filed this motion.

At the end of the September 4, 2013, hearing, the juvenile court adjudicated R. M. as delinquent on the automobile-related offenses and subsequently issued a disposition order for him to serve 30 days in a short-term treatment program. The court also revoked R. M.’s probation on the aggravated child molestation adjudication upon finding “beyond a reasonable doubt that [R. M.] had violated his probation sufficient for revocation, relying principally on his newly adjudicated offense of Theft By Taking Motor Vehicle (Felony), Driving Without A License, and Failure to Report an Accident.” The juvenile court delayed final disposition on the revocation until a new psychological evaluation could be conducted, and held a final hearing on November 6, 2013.

Finally, after that hearing, the juvenile court on November 15, 2013, issued a dispositional order of commitment for a designated felony, committing R. M. to the custody of the Department of Juvenile Justice for 60 months, to be confined for at least 18 months in detention.

1. In two related enumerations, R. M. contends that the trial court lacked subject matter jurisdiction to revoke R. M.’s probation because the State did not file a petition to revoke probation that satisfied the requirements of a delinquency petition. We do not agree because requirements for a petition to revoke probation are controlled by former OCGA § 15-11-40.

“An order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.” Former OCGA § 15-11-40 (b). To that end:

Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this Code section. The petition shall set forth in clear and concise language the grounds upon which the relief is requested.

Former OCGA § 15-11-40 (c). See In the Interest of B. C., 169 Ga. App. 200, 201-202 (311 SE2d 857) (1983) (“[B]efore a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief.”). And to satisfy due process, a “petition must contain sufficient factual details to inform the juvenile of the nature of the offense and must provide data adequate to enable the accused to prepare his defense.” In the Interest of A. T., 246 Ga. App. 30, 31 (539 SE2d 540) (2000) (delinquency petition need not inform juvenile he is being charged with designated felony and could be sentenced to restrictive custody).

Here, the State denominated its filing as “State’s Motion to Revoke Probation and Petition to Seek Relief under OCGA § 15-11-40.” The State’s petition met the requirements of former OCGA § 15-11-40 (c) and (d), and that is all that was required. “For purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998). See State v. Chapman, 322 Ga. App. 82, 83 (744 SE2d 77) (2013) (“Pleadings, motions, and orders are construed according to their substance and function and not merely by nomenclature.”) (citations and punctuation omitted). Here, the specific requirements of the juvenile probation revocation statute prevail over the more general requirements of a petition for an adjudication of delinquency or unruliness, and the juvenile court had subject matter jurisdiction over the revocation proceedings.

Under these circumstances, and mindful that “[t]he General Assembly has provided that the [Juvenile Code] shall be liberally construed to effectuate its purpose,” English v. Milby, 233 Ga. 7, 9 (1) (209 SE2d 603) (1974); former OCGA § 15-11-1, we find that the court did not err in finding that, as a matter of law, the State had filed a sufficient petition to revoke R. M.’s probation pursuant to former OCGA § 15-11-40 (b).

2. R. M. also contends that his due process rights were violated because he was denied notice and an opportunity to be heard on the revocation issue. He contends that he and his guardian never received a copy of the State’s motion.

Former OCGA § 15-11-40 (d) provided that after the petition is filed, then pursuant to former OCGA § 15-11-39.1 (a), a summons is served at least 24 hours before the hearing. It appears from the record that R. M.’s guardian was personally served with the summons and the State’s petition to revoke on August 29, 2013, and notorious service was made upon R. M. by serving the guardian with the summons for R. M. on that same date. The record also demonstrates that R. M. was also personally served at the youth detention center where he was being detained on August 28, 2013. Further, the petition to revoke stated that the hearing was set for September 4, 2013, that the purpose was for the revocation of R. M.’s original order of probation, the alleged grounds for revocation, and the factors for consideration as a designated felon. Moreover, at the September 4, 2013, hearing, R. M. and his attorney were present but did not voice any objection to service or request a continuance and thus waived any objection on the grounds of improper service. See In the Interest of E. S., 262 Ga. App. 768, 769 (1) (a) (586 SE2d 691) (2003). See also In the Interest of D. L. S., 224 Ga. App. 660, 661 (2) (482 SE2d 418) (1997) (“Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.”) (citation and punctuation omitted). Therefore, we find no due process violation regarding R. M.’s notice of the revocation petition.

3. R. M. also contends that the evidence did not show beyond a reasonable doubt that he violated the provisions of his probation. See T. S. I. v. State, 139 Ga. App. 775, 776-777 (1) (229 SE2d 553) (1976) (in juvenile probation revocation, proof of violation must be beyond reasonable doubt). Included in the terms and conditions of R. M.’s probation order were, among other things, that he not have any positive screens for controlled substances without a doctor’s prescription, that he be supervised at all times, and that he not “violate any Federal, State, County, Municipal law or ordinance.” We note again that the August 28, 2013, hearing at which R. M. was adjudicated delinquent for theft of an automobile and other traffic offenses is not included in the record, and when no transcript is included in the record on appeal, we must presume that the trial court acted correctly. Davis v. State, 319 Ga. App. 501, n. 1 (736 SE2d 160) (2012).

Decided November 18, 2014.

Alice A. Button, for appellant.

FredricD. Bright, District Attorney, Joseph M. McKinnon, Assistant District Attorney, for appellee.

Additionally, at the September 4, 2013, hearing, the trial court took judicial notice of the prior hearing at which R. M. was adjudicated delinquent for child molestation and indicated that it would take into account the evidence presented at that hearing, along with the evidence presented at the September 4, 2013 hearing, in determining whether to revoke R. M.’s probation. None of the parties objected to this procedure.

Finally, in addition to the commission of the additional delinquency offenses, there was evidence that R. M. had violated additional terms and conditions of his probation, including having a positive drug test and failing to be under adult supervision at all times. Accordingly, the juvenile court did not err in concluding that the evidence showed beyond a reasonable doubt that, while on probation, R. M. committed acts that violated the terms and conditions of his probation. See T S. I. v. State, 139 Ga. App. at 777 (3).

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The delinquency petition for the traffic offenses and adjudication and disposition orders were not included in the record.

       See Ga. L. 2013, p. 294, § 5-1, which notes that the new Juvenile Code “shall become effective on January 1, 2014, and shall apply to all. . . juvenile proceedings commenced on or after such date.”

       Former OCGA § 15-11-40 (b) provided in relevant part that “[a]n order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.”

         Former OCGA § 15-11-40 (d) provided:
      After the petition is filed, the court shall fix a time for hearing and shall cause notice to be served, as a summons is served under [former] Code Section 15-11-39.1, on the parties to the proceeding or those affected by the relief sought. After the hearing, which may be informal, the court shall deny or grant relief as the evidence warrants.


author: BARNES, Presiding Judge. BRANCH, Judge,

text:
    A14A0975.
    GOTTSCHALK v. WOODS et al.
    (766 SE2d 130)
   BARNES, Presiding Judge.

After his first lawsuit was dismissed by the United States District Court for the Northern District of Georgia and the dismissal was affirmed by the United States Court of Appeals for the Eleventh Circuit, Dean Mark Gottschalk filed a purported renewal action in the Superior Court of Cobb County. The superior court dismissed all of Gottschalk’s claims on the ground that they were time-barred, resulting in this appeal. We conclude that Gottschalk’s claims were untimely, whether viewed under Georgia’s renewal statute (OCGA § 9-2-61 (a)) or under the tolling provision of the federal supplemental jurisdiction statute (28 USC § 1367 (d)). As we explain below, under Georgia’s renewal statute, Gottschalk was required to file his renewal action within six months of the Eleventh Circuit’s decision affirming the district court’s dismissal of his first lawsuit, which he failed to do. See OCGA § 9-2-61 (a). Furthermore, the tolling provision of the federal supplemental jurisdiction statute does not apply if state law provides for a longer tolling period, and the federal statute provides only a 30-day grace period for refiling suit. See 28 USC § 1367 (d). Because Georgia’s renewal statute provides for a longer tolling period than the federal supplemental jurisdiction statute, the federal statute is inapplicable in this case. Accordingly, the trial court committed no error in concluding that Gottschalk’s claims were time-barred under state and federal law, and we therefore affirm.

The record reflects that Gottschalk and his ex-wife had two children together before their divorce in March 2005. In April 2006, Gottschalk’s ex-wife filed a petition for modification of child visitation rights in the Superior Court of Cobb County, seeking to have Gottschalk’s visits with their children supervised (the “Modification Proceeding”). In December 2008, the superior court entered a final order in the Modification Proceeding that, among other things, granted the requested supervision. This Court subsequently affirmed that order on appeal. See Gottschalk v. Gottschalk, 311 Ga. App. 304 (715 SE2d 715) (2011).

In April 2009, Gottschalk filed a pro se complaint in the United States District Court for the Northern District of Georgia against 38 individuals and entities for their alleged misconduct related to the Modification Proceeding (the “Federal Lawsuit”). Gottschalk’s complaint was brought pursuant to 42 USC §§ 1983 and 1985 and alleged numerous additional federal constitutional and statutory claims, as well as a state law claim for intentional infliction of emotional distress. He later amended his complaint to allege state law claims for the unauthorized disclosure of confidential medical information, slander, libel, and invasion of privacy.

On March 30, 2010, the district court dismissed Gottschalk’s federal constitutional and statutory claims on several grounds. The district court declined to exercise supplemental jurisdiction over Gottschalk’s pendant state law claims and dismissed them without prejudice. Gottschalk appealed the dismissal of his federal constitutional claims to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the district court in an unpublished opinion on June 16, 2011. The mandate from the Eleventh Circuit was issued on July 19, 2011.

On December 20, 2011, Gottschalk, through counsel, filed the present action in the Superior Court of Cobb County against several of the same defendants who had been named in the Federal Lawsuit (the “State Lawsuit”). Gottschalk’s complaint asserted claims for intentional infliction of emotional distress, slander, libel, unauthorized disclosure of confidential medical information, and invasion of privacy for alleged misconduct arising out of the Modification Proceeding. The complaint further alleged that the misconduct had occurred from April 2006 until April 2009. Additionally, the complaint alleged that the State Lawsuit was a proper renewal action timely brought pursuant to OCGA § 9-2-61 (a) because it was filed within six months from the date the mandate issued from the Eleventh Circuit in the Federal Lawsuit.

The defendants answered and raised several affirmative defenses, including that all of Gottschalk’s claims were barred by the applicable statutes of limitation. The defendants subsequently moved to dismiss Gottschalk’s complaint and/or for summary judgment on the same ground. The defendants argued that under Georgia’s renewal statute, OCGA § 9-2-61 (a), Gottschalk’s deadline for filing his State Lawsuit was six months from June 16, 2011, the date that the Eleventh Circuit affirmed the district court’s order dismissing his claims in the Federal Lawsuit, rather than from the later date when the Eleventh Circuit’s mandate was issued. Because Gottschalk did not file his State Lawsuit until December 20,2011, which was outside the six-month window for renewal calculated from June 16,2011, the defendants contended that the lawsuit was untimely under OCGA § 9-2-61 (a) and that Gottschalk thus could not take advantage of the statute’s tolling provision. The defendants also contended that the State Lawsuit was untimely under the separate tolling provision of the federal supplemental jurisdiction statute, 28 USC § 1367 (d), because it was filed more than 30 days after the dismissal of the Federal Lawsuit and thus fell outside the grace period afforded by that statute.

The superior court entered an order granting the motions to dismiss and for summary judgment that had been filed by the various defendants on the ground that all of Gottschalk’s claims in the State Lawsuit were time-barred. The superior court concluded that the applicable statutes of limitation had run on Gottschalk’s claims and that his State Lawsuit had not been refiled within the six-month window for renewal authorized by OCGA § 9-2-61 (a). In this regard, the superior court agreed with the defendants that the sixth-month renewal period began to run from the date when the Eleventh Circuit affirmed the district court’s dismissal of the Federal Lawsuit, rather than from the later date when the mandate was issued. Consequently, the superior court concluded that Gottschalk’s filing of the State Lawsuit on December 20, 2011 was untimely and dismissed all of his claims. In reaching this conclusion, the superior court did not address the tolling provision of the federal supplemental jurisdiction statute, 28 USC § 1367 (d). Gottschalk now appeals the superior court’s dismissal order.

1. Gottschalk contends that the superior court erred in concluding that his complaint was not timely refiled in the State Lawsuit within the six-month window for renewal authorized by OCGA § 9-2-61 (a). According to Gottschalk, the trial court should have measured the six-month renewal period from the date that the mandate from the Eleventh Circuit was issued. We disagree.

OCGA § 9-2-61, which governs the renewal of discontinued or dismissed cases, states in relevant part:

(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later [ ] . . . .
(c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.

(Emphasis supplied.) By its plain language, Georgia’s renewal statute provides that where, as here, the plaintiff’s state-law claims were dismissed without prejudice for lack of subject matter jurisdiction by a federal court, and the original limitation period on those claims has expired, the plaintiff may refile his claims within six months after the dismissal. Id. The plaintiff carries the burden of affirmatively proving that his refiled lawsuit meets the criteria for renewal under OCGA § 9-2-61. See Morrison v. Bowen, 106 Ga. App. 464 (2) (127 SE2d 194) (1962).

Gottschalk has failed to carry his burden of showing that the criteria for renewal have been met in this case. Contrary to his assertion, the start of the six-month window for renewal under OCGA § 9-2-61 (a) was triggered by the date the Eleventh Circuit affirmed the decision of the district court dismissing his Federal Lawsuit, not the later date when the Eleventh Circuit’s mandate was issued. Our conclusion in this regard is controlled by Owens v. Hewell, 222 Ga. App. 563 (474 SE2d 740) (1996), where we addressed how to measure the six-month renewal period in cases where the original suit was dismissed by a federal court.

In Owens, the plaintiffs sought to renew their state-law claims in state court after (1) the federal district court dismissed their federal-law claims on the merits and dismissed their state-law claims without prejudice for lack of subject matter jurisdiction; (2) the Eleventh Circuit affirmed the dismissal; and (3) the United States Supreme Court denied their petition for a writ of certiorari. 222 Ga. App. at 563. We affirmed the dismissal of the plaintiffs’ renewal suit as untimely because the original limitations period on the state-law claims had expired and the suit was filed more than six months after the Eleventh Circuit’s decision affirming the dismissal of the original suit. Id. at 564-565. We reasoned that “the six-month renewal period... ran from the date of the Eleventh Circuit Court of Appeals’ affirmance of the [district] court’s dismissal of [the plaintiffs’] action,” not from the date of the Supreme Court’s denial of their certiorari petition. Id. at 565.

Owens thus stands for the proposition that when a plaintiff’s suit is originally filed in federal court, the district court dismisses the state-law claims, the federal appellate court affirms that dismissal, and the plaintiff does not obtain review of the decision in the United States Supreme Court, the six-month renewal period for refiling the state-law claims starts when the federal appellate court issues its affirmance. See id. Owens is consistent with prior Georgia cases addressing earlier versions of the renewal statute which indicated that “6 months of the date of affirmance” by an appellate court was the proper triggering date for the start of the six-month renewal period. See Central of Ga. Ry. Co. v. Macon Ry. and Light Co., 140 Ga. 309, 310 (2) (78 SE 931) (1913) (under Ga. Civ. Code 1910 § 4381, an action may be recommenced “within six months of the date of affirmance of the judgment of nonsuit”), superseded by statute on other grounds as stated in Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 475-477 (306 SE2d 290) (1983); Carmack v. Oglethorpe Co., 117 Ga. App. 664 (1) (161 SE2d 357) (1968) (under Ga. Code § 3-808, an action may be recommenced “within six months from the date of the affirmance” of the original action).

Nothing in Owens or earlier Georgia cases suggests that the six-month renewal period instead should start to run from the date when the mandate is later issued from the federal appellate court, and Gottschalk has failed to cite to any case law that would support such a position. Indeed, we have previously rejected the argument that this Court’s issuance of a remittitur (or mandate as it is called in federal court) has any bearing on the calculation of a limitations period in cases where this Court affirms the trial court and no further review is obtained. Specifically, in Wilson v. Hinely, 259 Ga. App. 615, 615-616 (578 SE2d 254) (2003), we concluded that the running of the statute of limitations for an abusive litigation claim commenced when this Court affirmed the decision of the trial court in the original lawsuit, not on the later date when this Court issued its remittitur. Rejecting the appellant’s argument that the issuance of the remittitur should start the running of the limitations period, we concluded that the controversy effectively was at an end when this Court issued its decision affirming the trial court, given that no further review of the decision was sought and obtained by the losing party and the case was not remanded to the trial court for further proceedings. Id. The same reasoning applies in the present case — the Eleventh Circuit’s issuance of the mandate is immaterial to the calculation of the renewal period, because the controversy in federal court effectively ended when the Eleventh Circuit issued its decision affirming the district court, given that Gottschalk did not seek and obtain any further review and the case was not remanded to the district court for further proceedings.

For these combined reasons, we conclude that the six-month window for renewal authorized by OCGA § 9-2-61 (a) began to run on Gottschalk’s state-law claims when the Eleventh Circuit affirmed the district court’s dismissal of those claims in the Federal Lawsuit on June 16,2011. Because Gottschalk did not file his State Lawsuit until December 20, 2011, which was after the applicable statutes of limitation and the six-month renewal period had expired, the superior court did not err in concluding that his claims were untimely under OCGA § 9-2-61 (a) and thus that he failed to file a valid renewal action under the statute.

2. Gottschalk contends that even if his State Lawsuit was untimely under OCGA § 9-2-61 (a), it was timely under the separate tolling provision afforded by the federal supplemental jurisdiction statute, 28 USC § 1367 (d). Therefore, he argues, the superior court erred in failing to apply section 1367 (d) in this case. Again, we disagree.

The federal supplemental jurisdiction statute, 28 USC § 1367, contains a tolling provision for supplemental state-law claims that are included in a federal civil action but are later dismissed. Section 1367 provides in relevant part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

(Emphasis supplied.) The central issue in the present case is the meaning of the phrase “shall be tolled while the claim is pending.”

Statutory interpretation is a question of law, and our review is de novo. Hill v. First Atlantic Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). In interpreting federal statutes, we must strive “to give effect to the will of Congress,” Griffin v. Oceanic Contractors, 458 U. S. 564, 570 (II) (A) (102 SCt 3245, 73 LE2d 973) (1982), and “if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that [is] the end of our analysis.” Zuni Public School Dist. No. 89 v. Dept. of Ed., 550 U. S. 81, 93 (II) (B) (127 SCt 1534, 167 LE2d 449) (2007).

The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.

Dolan v. United States Postal Svc., 546 U. S. 481, 486 (II) (126 SCt 1252, 163 LE2d 1079) (2006). Furthermore, if there is ambiguity in a federal statute, “[e]xtrinsic materials . . . [that] shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms” can be consulted. Exxon Mobil Corp. v. Allapattah Svcs., 545 U. S. 546, 568 (II) (C) (125 SCt 2611, 162 LE2d 502) (2005). Additionally, the canons of statutory construction, including unique canons that apply to questions of the scope of federal power, can be consulted in an effort to decide among competing constructions of ambiguous statutory language. See, e.g., Immigration and Naturalization Svc. v. St. Cyr, 533 U. S. 289, 299 (II) (121 SCt 2271, 150 LE2d 347) (2001). Georgia courts have made reference to many of these same principles in construing state statutes. See, e.g., You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 71 (1) (743 SE2d 428) (2013); Speedway Motorsports v. Pinnacle Bank, 315 Ga. App. 320, 325 (2) (727 SE2d 151) (2012).

In light of these principles, the first question we must address is whether the tolling language of 28 USC § 1367 (d) is ambiguous. “A statute is ambiguous when it is susceptible of more than one natural and reasonable interpretation.” Fulton County Bd. of Tax Assessors v. Greenfield Investment Group, 313 Ga. App. 195, 198 (721 SE2d 128) (2011). Like most courts that have considered this question, we conclude that section 1367 (d) is capable of more than one meaning and thus is ambiguous. We agree with those courts that three interpretations of the tolling provision are possible: (1) the “suspension” approach; (2) the “grace period” approach; and (3) the “substitution” approach.

Under the “suspension” approach, the statute could be read to stop the running of the statute of limitations and, following dismissal of a claim and the expiration of 30 additional days, tack on however much time remained when the claim was originally filed in federal court. Alternatively, under the “grace period” approach, the statute could abate the expiration of any period of limitations for as long as a claim was pending in federal court plus 30 days after dismissal. Finally, under the “substitution” approach, the statute might replace any state deadline with a federal one, such that parties would have 30 days to refile following dismissal whether or not a longer period might otherwise still remain under state law.

(Citations and punctuation omitted.) City of Los Angeles, 328 P3d at 60 (I).

Courts around the country are split regarding which interpretation ultimately should be adopted for the tolling provision in 28 USC § 1367 (d), with some courts adopting the suspension approach and others adopting the grace period approach. Gottschalk argues that we should adopt the suspension approach, but we instead conclude that “Congress enacted section 1367 (d) to provide a grace period for claims that would otherwise be lost, [rather than] categorically suspend state statutes of limitations and thereby potentially extend filing periods for years following federal dismissal.” City of Los Angeles, 328 P3d at 58.

In reaching this conclusion, we are mindful that the interpretation of federal statutes “does not occur in a contextual vacuum.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (III) (116 SCt 2240, 135 LE2d 700) (1996). Rather, our interpretation is informed by the principle that “courts should not interpret federal law to preempt state sovereignty unless the federal law clearly compels the intrusion.” Municipal Elec. Auth. of Ga. v. Ga. Pub. Svc. Comm., 241 Ga. App. 237, 241 (3) (525 SE2d 399) (1999), citing Gregory v. Ashcroft, 501 U. S. 452, 460-461 (II) (A) (111 SCt 2395, 115 LE2d 410) (1991). As the Supreme Court of California recently explained in a thorough analysis of statutory construction principles that apply in this context:

Principles of federalism dictate a distinct approach to the construction of statutes impinging on state sovereignty, one designed to ensure courts do not assume an incursion where none was intended. When Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute. This principle applies when Congress intends to pre-empt the historic powers of the States or when it legislates in traditionally sensitive areas that affect the federal balance. In such cases, the clear statement principle reflects an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere. Section 1367 (d) is such a balance-altering statute; it preempts state law, supplanting to some extent state statutes of limitations that would otherwise apply to affected claims.
While Congress has the constitutional authority to preempt state law, we start with the presumption that it has not exercised that power and will find preemption only in the face of a clear and manifest expression of intent to do so. This presumption operates with particular force in areas traditionally the subject of state regulation. Self-evidently, states long have established, and have a uniquely strong interest in, the limitations periods that apply to their own state law claims in their own state courts.

(Citations and punctuation omitted.) City of Los Angeles, 328 P3d at 64 (III). See Arizona v. United States, _ U. S. _ (III) (132 SCt 2492, 183 LE2d 351) (2012); Bates v. Dow Agrosciences, LLC, 544 U. S. 431, 449 (III) (125 SCt 1788, 161 LE2d 687) (2005); Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 543-544 (II) (122 SCt 999, 152 LE2d 27) (2002); Gregory, 501 U. S. at 460-461 (II) (A). See siso Municipal Elec. Auth. of Ga., 241 Ga. App. at 241 (3).

Notably, the presumption against preemption extends beyond the question whether Congress intended any preemption at all; the presumption also affects “questions concerning the scope of [the] intended invalidation of state law.” (Emphasis in original.) Medtronic, Inc., 518 U. S. at 485 (III). See City of Los Angeles, 328 P3d at 64 (III) (pointing out that “even when an intent to displace is clear, . . . the presumption informs assessments of the breadth of preemption”). Hence, “[t]he effect of that presumption is to support, where plausible, a narrow interpretation of an express pre-emption provision, especially when Congress has legislated in a field traditionally occupied by the States.” (Citation and punctuation omitted.) CTS Corp. v. Waldburger, _ U. S. _ (II) (D) (134 SCt 2175, 189 LE2d 62) (2014) (plurality opinion). See Medtronic, Inc., 518 U. S. at 485 (III); Altria Group v. Good, 555 U. S. 70, 77 (II) (129 SCt 538, 172 LE2d 398) (2008); Bates, 544 U. S. at 449 (III); Cipollone v. Liggett Group, 505 U. S. 504, 518 (IV) (112 SCt 2608, 120 LE2d 407) (1992).

Applying the presumption to the present case, we conclude that the grace period approach is the most appropriate interpretation of 28 USC § 1367 (d). Of the three possible interpretations of section 1367 (d), the grace period approach is the least intrusive upon state sovereignty because

[i]t alters the limitations period only when necessary to prevent a time bar; if a claim is dismissed more than 30 days before the state limitations period would have expired, the grace period approach would change the state period not at all. Even when extension of the limitations period to prevent a bar is necessary, the grace period view distorts the otherwise applicable period only by the difference between when the limitations period ran and the claim was dismissed, plus 30 days[.]

City of Los Angeles, 328 P3d at 65 (III). Consequently, the effect of the presumption in this case is to support a narrow interpretation of section 1367 (d) as simply creating a grace period for refiling suit rather than entirely suspending or annulling a limitations period created by state law. Any other interpretation of the statute “would permit a gross protraction of the limitations period in clear contravention of the underlying [state] policy of statutory limitations on the time for bringing suit.” Berke, 821 A2d at 123.

It is true that the presumption against preemption can be rebutted where Congress has made its intent clear. See Egelhoff v. Egelhoff, 532 U. S. 141, 151 (III) (121 SCt 1322, 149 LE2d 264) (2001). But there is no persuasive evidence, in the federal statutory structure, legislative history, or otherwise, that Congress intended a more expansive preemption of states’ statutes of limitation when it enacted 28 USC § 1367 (d). See City of Los Angeles, 328 P3d at 62-64 (II) (discussing legislative history pertaining to section 1367 (d)).

For these combined reasons, we adopt the grace period approach and construe 28 USC § 1367 (d) as allowing state-law claims that would otherwise be time-barred to be refiled in state court, if the claims are refiled no later than 30 days after federal court dismissal. But Georgia’s renewal statute provides for a tolling period significantly longer than 30 days by permitting plaintiffs to refile their claims within a six-month renewal period, as discussed supra in Division 1. See OCGA § 9-2-61 (a). And section 1367 (d) expressly states that the federal tolling provision does not apply if “[s]tate law provides for a longer tolling period.” Section 1367 (d) therefore does not apply and cannot be relied upon by Gottschalk as a basis for renewing his state-law claims. It follows that the trial court committed no error in concluding that Gottschalk’s claims in the State Lawsuit were time-barred and subject to dismissal.

Judgment affirmed. Boggs, J., concurs.

Branch, J., concurs fully in Division 1 and specially in Division 2.

BRANCH, Judge,

concurring specially.

I concur fully in Division 1. I concur in judgment only as to Division 2 because I do not agree with all that is said in the majority opinion. As such, Division 2 may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Decided November 18, 2014.

David E. Oles, for appellant.

Oarlock, Copeland & Stair, John L. Bunyan, Shannon M. Sprinkle, Lewis Brisbois Bisgaard & Smith, Brantley C. Rowlen, Hall Booth Smith, Richard N. Sheinis, Anthony E. Stewart, Kawania B. James, Dennis, Corry, Porter & Smith, Assunta S. Fiorini, for appellees.

       “A ‘mandate’ is the official notice of action of the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed.” 5 Am Jur2d Appellate Review § 725. Under the Federal Rules of Appellate Procedure, “the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs.” Fed. Rule of Appellate Procedure 41 (a).

       The defendants named in the State Lawsuit were Dianne Woods; Huff, Woods & Hamby; Susan Volentine; Sheri Siegel; Emmett Fuller; Psychological Affiliates; and Barbara Lassiter.

       Gottschalk concedes that all of his claims, except for slander and libel, were subject to a two-year statute of limitation. His slander and libel claims were subject to a one-year limitation period. See OCGA § 9-3-33; Jahannes v. Mitchell, 220 Ga. App. 102, 105 (3) (469 SE2d 255) (1996).

       Gottschalk filed an amended complaint in the State Lawsuit that incorporated additional factual allegations of misconduct by the defendants purportedly occurring from March 2008 and continuing through December 2010. In its dismissal order, the superior court ruled that Gottschalk’s complaint as amended “improperly raised claims against the Defendants that were not alleged in the Federal [Lawsuit]” and that his “conclusory amended allegations stating that the Defendants’ actions constituted a continuing tort [were] insufficient to state a timely claim for relief.” Gottschalk has not challenged these rulings on appeal and thus has abandoned any allegation of error with respect to them. See Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 804, n. 2 (689 SE2d 843) (2009).

       The renewal statute does not suspend the running of the statute of limitation while the federal lawsuit is pending. See Stevens v. Faa’s Florist, 169 Ga. App. 189, 190 (311 SE2d 856) (1983).

       Ga. Civ. Code 1910 § 4381 provided in relevant part: “If a plaintiff shall be non-suited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case).]”

       Ga. Code § 3-808 provided in relevant part: “If a plaintiff shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case[.]”

        See In re Vertrue Inc. Mktg. and Sales Practices Litigation, 719 F3d 474, 481 (III) (B) (6th Cir. 2013); City of Los Angeles v. County of Kern, 328 P3d 56, 60 (I) (Cal. 2014); Turner v. Kight, 957 A2d 984, 989 (Md. 2008). But see Goodman v. BestBuy, 111 NW2d 755, 761 (Minn. 2010) (concluding that section 1367 (d) “has a plain meaning and is subject to only one reasonable interpretation”).

       See, e.g., In re Vertrue Inc. Mktg. and Sales Practices Litigation, 719 F3d at 481 (III) (B); Turner, 957 A2d at 992-993; Goodman, 777 NW2d at 760-761; Oleski v. Dept. of Public Welfare, 822 A2d 120, 126 (Pa.Commw.Ct. 2003).

       See, e.g., Beck v. Prupis, 162 F3d 1090, 1099-1100 (IV) (11th Cir. 1998); Weinrib v. Duncan, 962 S2d 167, 169-170 (Ala. 2007); City of Los Angeles, 328 P3d at 65-66 (III); Dahl v. Eckerd Family Youth Alternatives, 843 S2d 956, 958 (Fla. Dist. Ct. App. 2003); Harter v. Vernon, 532 SE2d 836, 839-840 (N.C. Ct. App. 2000); Huang v. Ziko, 511 SE2d 305, 308 (N.C. Ct. App. 1999); Berke v. Buckley Broadcasting Corp., 821 A2d 118, 123-124 (N.J. Super. Ct. App. Div. 2003); Juan v. Govt. of North Mariana Islands, 6 N.M.I. 322, 326-327 (II) (A) (N. Mar. I. 2001).

       We note that the Eleventh Circuit also appears to have construed 28 USC § 1367 (d) as creating a 30-day grace period for the refiling of state-law claims. See Beck, 162 F3d at 1099-1100 (TV) (“[A] dismissal under section 1367 automatically tolls the statute of limitations on the dismissed claims for 30 days[.]”). “The decisions of the United States Court of Appeals for the Eleventh Circuit are not binding on this Court, even on questions of federal law, but they are persuasive authority. See Deen v. Stevens, 287 Ga. 597, 601 (2) (b) (698 SE2d 321) (2010).” Bobick v. Community & Southern Bank, 321 Ga. App. 855, 861 (3), n. 5 (743 SE2d 518) (2013).

       The parties dispute whether the 30-day grace period afforded by 28 USC § 1367 (d) begins to run when a federal district court dismisses the state-law claims, when a federal appellate court affirms the dismissal, or when the mandate is issued from the federal appellate court. We need not resolve this issue because it does not affect the outcome.

       Appellee Susan Volentine’s motion for the imposition of a penalty against Gottschalk for frivolous appeal is hereby denied. See Court of Appeals Rule 15 (b).


author: DOYLE, Presiding Judge.

text:
    A14A0995.
    BLAKE et al. v. KES, INC. et al.
    (766 SE2d 138)
   DOYLE, Presiding Judge.

In this action arising from the death of their son Paul Daniel Blake in a residential care facility, plaintiffs Carl and Yvonne Blake appeal the denial of their summary judgment motion and the grant of summary judgment to defendants KES, Inc., Sandra and Kenneth Browner, Mabel Semper, and Nicole Wise (collectively “KES”). The Blakes contend that the trial court erred by refusing to consider, on procedural grounds, certain depositions and exhibits, including the deposition of their medical expert. For the reasons that follow, we affirm the denial of the Blakes’ motion for summary judgment, vacate the grant of summary judgment to KES, and remand.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the facts show that Paul Blake was an adult diagnosed with several developmental disabilities from birth, including organic personality disorder, moderate intellectual disability, and partial complex seizures. By 2005, Paul resided with caretakers at a personal care home and generally spent his days at a KES day habilitation facility, where he received services pursuant to a contract between KES and his parents. In addition to his seizures, Paul had a history of leaving his assigned area without notice or permission, and he needed constant line-of-sight supervision, in addition to daily medication.

On September 22, 2009, Paul arrived at the KES facility at approximately 9:00 a.m. and complained of dizziness and feeling poorly. Paul’s immediate care giver allowed him to rest without joining other activities. Around noon, while Paul was finishing his lunch, he asked if he could return to his assigned task of cleaning a computer desk, but he was asked to stay at the lunch table so he could finish eating and continue to rest. When the care giver was out of the room, Paul left the classroom and walked out of the building. Paul was not immediately followed, but staff began tracing his path thereafter.

At approximately 12:19 p.m., security camera footage shows that as Paul walked alongside a van parked at the side of the building, he faltered, leaned into the side of the van, and fell forward down to the ground. Approximately 22 seconds later, a KES worker arrived at Paul’s body, and despite the worker’s prompting, Paul remained unresponsive. Approximately 40 seconds later another worker, Mabel Semper, arrived and called into the building to advise the staff that they had located Paul. She had to make two calls to reach someone, and in the minutes that followed, Semper called 911 and remained on the line with the operator. During this time, a third employee, Kenneth Browner, arrived and checked Paul’s mouth for foreign objects, and Paul was observed to be breathing with a faint pulse. Other employees arrived, and they repositioned Paul to aid in his breathing, and they began CPR chest compressions as instructed by the 911 operator over speakerphone. There was a several minute time gap between Paul’s fall and the administration of CPR. Emergency personnel arrived minutes later, took over emergency care, and prepared him for transport. Treatment continued en route and at the hospital, but Paul was pronounced dead at the hospital soon thereafter. The cause of death listed by the emergency room physician was “cardiac arrest status post likely seizure.”

Based on Paul’s death, the Blakes sued KES, alleging claims for negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training. KES answered, discovery ensued, and both parties moved for summary judgment. Following a hearing, the trial court granted summary judgment to KES and denied the Blakes’ motion. The trial court based its ruling, in part, on the exclusion of certain unauthenticated documents and depositions not filed 30 days before the hearing. The Blakes now appeal.

1. KES’s Motion for Summary Judgment.

(a) The Blakes contend that the trial court, in granting summary judgment in favor of KES, erred by failing to consider, on procedural grounds, the deposition testimony of their medical expert, Dr. Anthony Kimani. We agree.

Kimani was deposed on April 19, 2013. On April 30, 2013, both KES and the Blakes moved for summary judgment, and the Blakes filed originals of the depositions in their custody and requested KES to file, among others, an original of Kimani’s deposition. On May 22, 2013, the trial court entered a notice of hearing setting a June 7,2013 hearing date for the motions. On May 24,2013, KES filed three of the four original deposition transcripts requested by the Blakes — the depositions of Carl Blake, Yvonne Blake and Tonya Collins — and on May 30, 2013, KES filed a timely response to the Blakes’ motion. On June 3, 2013, the Blakes filed their timely response opposing KES’s motion and attached a copy of Kimani’s deposition. The hearing was held as scheduled on June 7, 2013, and at the hearing both parties referred to and relied on Kimani’s deposition.

On July 30, 2013, the trial court entered an order denying the Blakes’ summary judgment motion and granting KES’s motion, citing a lack of evidence in support of the Blakes’ claims and in opposition to KES’s motion, which was supported by competent evidence. This ruling was based in large part on the trial court’s conclusion that it was “constrained to disregard” the copy of the Kimani deposition filed by the Blakes before the hearing on the grounds that KES had objected to its consideration and it was merely a copy and not signed by Kimani. Specifically, the court noted that the unsigned transcript of Kimani’s deposition contained a request by counsel that Kimani be allowed to review and sign the deposition, so the court reasoned that “[a]bsent proof that Dr. Kimani waived the opportunity to ‘read and sign’ his deposition, the testimony adduced therein is inadmissible” as of the hearing date, citing Steed v. Fed. Nat. Mtg. Corp.

But even in the absence of an original deposition filed with the court, “case law specifically allows a trial court to rely on deposition excerpts filed by a party in support of a motion.” “[F]iling those portions of discovery material necessary to [a] motion[ ] for summary judgment” is permitted, and it is not error for a trial court to consider deposition excerpts even if they “were not certified copies.” Notably, the deposition copy filed in this case contained the court reporter’s signed certification that the transcript was a true and complete record of the evidence given by Kimani, who was duly sworn by the court reporter. Therefore, the mere fact that the deposition on file was a copy did not preclude its consideration in opposition to KES’s motion. Based on the record before us, “we vacate and remand with direction that [Kimani’s deposition] be considered by the trial court in deciding [KES’s] summary judgment motion. . . .”

(b) The Blakes also contend that the trial court erred by excluding Exhibits 1-A through 1-M attached to their response in opposition to KES’s motion for summary judgment on the grounds that they were objected to by KES and “not attached to any affidavit, are not self-authenticating, nor are they otherwise authenticated.” The Blakes correctly point out, however, that these exhibits were created, prepared, and completed by KES in the regular course of business and produced by KES in discovery. “[A] document can be authenticated by circumstantial evidence. One such circumstance, when coupled with other evidence, is a party’s production of the document during discovery.” Thus, the trial court improperly excluded these exhibits when considering KES’s summary judgment motion.

2. The Blakes’ Motion for Summary Judgment.

The Blakes contend that the trial court erred by excluding the depositions of Carl Blake, Yvonne Blake, and Tonya Collins, and Exhibits A to S attached to the Blakes’ motion, on which the Blakes relied in support of their motion for summary judgment. The trial court excluded this evidence on the basis that the depositions were not timely filed and the exhibits were not “self authenticating, [not] attached to an authenticating affidavit, not authenticated by reference to deposition testimony or previously filed evidence of record.” Pretermitting whether the trial court erred by excluding the depositions and exhibits, KES timely filed competent evidence, including expert testimony, disputing the Blakes’ assertions and evidence in support of the Blakes’ summary judgment motion. Therefore, the court did not err by denying the Blakes’ motion at this stage.

3. Supplemental Briefing.

At the summary judgment hearing, KES requested to file a reply brief in support of its summary judgment motion. The trial court stated that “[y]ou can file it with the clerk,” and told the Blakes’ counsel, “[i]f you want to file a response as well, or a reply as well, I’ll give you ... 10 days.” Despite this colloquy, the trial court, in its written order, ruled that it was “constrained to . . . disregard” the supplemental briefing on the summary judgment motions due to the lack of consent of the opposing party and the timing of the filings. Whether or not consent is required, the Blakes’ attorney specifically stated that he had no objection to KES filing its reply brief. And the trial court did have discretion to consider the supplemental briefing it authorized, as well as any evidentiary support for that briefing already properly before the court in earlier timely filings.

Decided November 18, 2014.

Bobby C. Aniekwu, for appellants.

Leitner, Williams, Dooley & Napolitan, Christopher D. Gunnels, Jatrean M. Sanders, Thomas O. Sippel, for appellees.

4. The Blakes’ remaining enumerations are either moot or premature at this time.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Miller and Dillard, JJ., concur.

       (Citation and punctuation omitted.) Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003), quoting Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Kimani’s deposition included testimony stating, “I think that Paul Blake’s chance of a successful resuscitation was at least 50 percent, so I think it was more likely than not that had he received CPR in a timely fashion that he would have responded and been resuscitated.”

       On May 30, 2013, Kimani received from the court reporter a copy of his deposition for review. By law, Kimani had 30 days to review the transcript, which he did, returning his signed errata sheet on June 21,2013. SeeOCGA § 9-11-30 (e). The court reporter sent KES the original transcript on July 9, 2013, 22 days before the trial court entered its order, but KES did not file the original deposition until September 3, 2013.

       We have reviewed the record and the transcript of the summary judgment hearing, and we find no objection by KES to the use of Kimani’s deposition. KES objected only to the use of eight exhibits (D, E, F, I, K, P, R, and S) attached to the Blakes’ motion for summary judgment, due to the lack of authentication. To the extent that the trial court’s ruling is premised on an objection by KES, this was error. Also contrary to the trial court’s ruling, KES appears to have relied on the Kimani deposition to argue that the Blakes failed to show causation. See generally Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 632 (278 SE2d 377) (1981) (failure to meet time requirement “does not preclude a finding of harmless error, waiver, estoppel, or acquiescence in the trial court’s consideration of supporting material not timely filed”); Suttle v. Northside Realty Associates, Inc., 171 Ga. App. 928, 932 (2) (c) (321 SE2d 424) (1984) (“This court has consistently reached a finding of waiver where no objection was made to the late filing of an affidavit - whether the affidavit was in support of, or in opposition to, a motion for summary judgment.”).

       301 Ga. App. 801, 808 (1) (c) (689 SE2d 843) (2009). Based on the facts of this case, Steed does not require exclusion. In that case, the Court relied on OCGA § 9-11-30 (e), which provides that “[i]f requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript... is available in which to review the transcript...,” and held that it was error to admit the deposition of a plaintiff who objected to the use of his deposition testimony because he was never notified that his deposition transcript was available to review and sign. Here, the record shows that Kimani was allowed to review and sign his deposition, which he did in a timely manner, and neither he nor any party objected to the lack of his signature on the copy the Blakes filed with the court.

       (Punctuation omitted.) Shannon v. Office Max North America, Inc., 291 Ga. App. 834 (2) (662 SE2d 885) (2008).

        Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604) (1986), citing OCGA § 9-11-29.1 (a) (5).

       See id. See also Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 693 (5) (649 SE2d 862) (2007). This Court has remanded cases for the trial court to consider deposition testimony where both parties had relied on depositions that were requested to be filed but had not been filed with the trial court before its ruling or even before the appeal was filed. See, e.g., Wilson v. Obstetrics & Gynecology of Atlanta, P. C., 304 Ga. App. 300, 304 (1) (696 SE2d 339) (2010); Ga. Messenger Svc. v. Bradley, 302 Ga. App. 247, 249 (1) (690 SE2d 888) (2010), citing Snipes v. Housing Auth. of DeKalb County, 250 Ga. App. 771, 771-772 (552 SE2d 133) (2001).

        Ga. Messenger Svc., 302 Ga. App. at 249 (1).

       As set forth above, KES only objected to 8 Exhibits. KES did not object to Exhibits 1-A to 1-M. To the extent the trial court’s ruling was dependent upon such objection, it was error.

       See USF Corp. v. Securitas Security Svcs. USA, 305 Ga. App. 404, 406 (699 SE2d 554) (2010) (punctuation and footnote omitted).

       As pointed out by the Blakes in their motion for reconsideration, these exhibits were authenticated by witnesses whose depositions were properly part of the record and should have been considered in ruling on the motion. Nonetheless, as set forth above, KES’s evidence properly supports the denial of the Blakes’ summary judgment motion even if the trial court had considered these exhibits.

       See Home Builders Assn. of Savannah, 276 Ga. at 245 (1) (summary judgment is only appropriate if “there is no genuine issue of material fact and . . . the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law”).

       KES stated that it had already e-mailed a copy to the Blakes’ counsel.

       See, e.g., STC Two, LLC v. Shulman-Weiner, 325 Ga. App. 245, 249, n. 5 (750 SE2d 730) (2013) (affirming the trial court’s judgment and noting the trial court’s consideration of supplemental briefs filed after a hearing on cross summary judgment motions). See also Porter Coatings, 247 Ga. at 631 (OCGA § 9-11-6 (b) and (d) “provide flexibility by authorizing the trial judge, or the parties by stipulation, to extend the filing times” for purposes of OCGA § 9-11-56).

       The trial court’s order stated that KES’s reply brief and the Blakes’ sur-reply brief would be disregarded in their entirety, but even if the trial court had properly exercised its discretion to exclude the briefs, rather than considering itself constrained to do so, the exhibits attached to KES’s reply brief were excerpts of depositions previously timely filed with the court and should not have been excluded.


text:
    A14A1002.
    THE STATE v. PADGETT.
    (766 SE2d 143)
   DOYLE, Presiding Judge.

The State appeals from the grant of a motion to suppress filed by James Daniel Padgett after he was indicted for allegedly driving under the influence of alcohol (“DUI”). The State contends that the trial court erred by excluding the results of a blood test performed by a hospital because the chemical analysis of the blood failed to comply with OCGA § 40-6-392 (a) (1) (A). For the reasons that follow, we affirm.

There are

three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

For purposes of the motion to suppress, the parties do not dispute that an ambulance took Padgett to a hospital for medical treatment after an officer responded to the scene of his motorcycle wreck. Once the officer arrived at the hospital, based on his observations of Padgett at the scene, including an alco-sensor test, the officer administered an implied consent warning and requested that Padgett submit to a blood test, and Padgett consented. At the officer’s direction, Padgett’s blood was drawn by a registered nurse at the hospital, but the officer did not retain the sample for testing or request that it be sent to the State crime lab. Instead, the blood sample was tested by the hospital, and the result was entered into Padgett’s medical record. Thereafter, the officer obtained a search warrant for Padgett’s medical record, and Padgett moved to suppress the result of the blood test.

The trial court received letter briefs on the admissibility of the test result, and after initially denying Padgett’s motion, the court convened two rehearings to address a factual discrepancy that had arisen. With the facts clarified, the State conceded that the hospital’s analysis of Padgett’s blood sample did not comply with the requirements of OCGA § 40-6-392 (a) (1) (A), but the State argued that the test was otherwise admissible. The trial court granted the motion to suppress, giving rise to this appeal by the State.

1. The trial court based its ruling on OCGA § 40-6-392 (a), which provides as follows, in relevant part:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
(1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

In Perano v. State, the Supreme Court of Georgia explained the purpose of the statute: “This [Cjode section provides for the procedures to be used where the [Sjtate administers the test.” Thus, if a State-administered test complies with the statutory requirements in OCGA § 40-6-392 (a), the test results “shall be admissible,” and conversely, if the State-administered test does not comply with the statute, it is inadmissible. The question in this case is whether these statutory requirements apply to a blood test requested by a law enforcement officer but analyzed by a hospital. We conclude that they do.

Georgia cases have consistently characterized tests requested by an officer as “State-administered.” For example, in Oldham v. State, this Court explained that

the procedures outlined in [OCGA § 40-6-392] are limited to those tests performed at the request or direction of a law enforcement officer. When an alcohol level concentration test is performed at the request or direction of a law enforcement officer and complies with the dictates of that statute, it is admissible.

On the other hand, the Court explained, some other situations present a scenario where a blood test is not done at the direction of a law enforcement officer (such as during medical treatment), and “[t]hose tests are not subject to the dictates of OCGA § 40-6-392[, so] the party seeking to admit the test results must satisfy the court that the results are admissible pursuant to the rules of evidence.”

Decided November 18, 2014.

Nina M. Baker, Solicitor-General, Julian A. Mack, Assistant Solicitor-General, for appellant.

Brown & Associates, R. Jeffrey Ellington, for appellee.

Here, it is undisputed that the blood analysis at issue was performed at the request of a law enforcement officer for the purpose of a DUI investigation pursuant to consent gained after an implied consent warning. Thus, the test was State-administered for purposes of OCGA § 40-6-392 (a), and the State had the burden of showing that it met the statutory requirements, which it concedes it could not do.

2. The State also contends that even if the test did not comply with statutory requirements, it was otherwise admissible through the inevitable discovery doctrine because the officer later obtained a warrant for Padgett’s medical record, which contained the test result.

[T]he . . . inevitable discovery doctrine allows admission of evidence that was discovered as a result of police error or misconduct if the State establishes by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, without reference to the police error or misconduct.

Here, we discern no intentional misconduct on the part of the police, but it remains true that the blood test at issue did not meet the statutory requirements, so this constituted police error. Even if the police were entitled to discover the result of the blood test by lawfully obtaining a warrant for Padgett’s medical record, this did not change the fact that the result in the medical record was from a procedure that failed to comply with OCGA § 40-6-392 (a), which governs the admissibility of State-administered blood alcohol tests. Thus, the presence of a warrant did not cure the improper testing procedure that occurred in this case. Accordingly, the inevitable discovery doctrine does not provide an avenue for admission.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       See OCGA §§ 40-6-391 (a) (1) (less safe to drive) and 40-6-391 (a) (5) (per se illegal alcohol concentration).

       (Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702 SE2d 888) (2010).

        Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       When first briefing the issue, Padgett’s counsel was operating under the assumption that the officer had lost the initial blood sample, and the medical record did not reflect the particular blood test requested by the officer. The parties later learned that the officer never lost the sample and never attempted to submit it for State-administered testing. Instead, he intentionally left it to be tested by the hospital, and that result was entered into Padgett’s medical record.

       250 Ga. 704 (300 SE2d 668) (1983).

       (Emphasis supplied.) Id. at 707. See also State v. Carter, 292 Ga. App. 322, 323 (665 SE2d 14) (2008) (“This Code section... provides that for the state-administered test to be considered valid, it must be conducted” in accordance with the statutory requirements.) (emphasis supplied); Dixon v. State, 227 Ga. App. 533, 534 (2) (489 SE2d 532) (1997) (“These procedures apply only to State-administered tests . . . .”) (emphasis supplied).

       OCGA § 40-6-392 (a).

       See Carter, 292 Ga. App. at 323.

       205 Ga. App. 268 (422 SE2d 38) (1992).

       (Citation omitted; emphasis supplied.) Id. at 269 (1).

       Id. See also Daniel v. State, 298 Ga. App. 245 (679 SE2d 811) (2009) (addressing the admissibility of two tests, one non-State administered test done by the hospital for medical treatment, and one State-administered test requested at the hospital by an officer two hours later).

       See Dixon v. State, 227 Ga. App. 533, 534 (2) (489 SE2d 532) (1997) (drawing a distinction between a test requested by an officer and a test performed by a hospital during medical treatment). See also Perano, 250 Ga. at 708 (referring to a test performed at a hospital at the request of an officer as “the [S]tate’s test”).

       (Emphasis supplied.) State v. Nesbitt, 305 Ga. App. 28, 36 (2) (c) (699 SE2d 368) (2010).


author: Dillard, Judge.

text:
    A14A1004.
    KELLY v. HARRIS et al.
    (766 SE2d 146)
   Dillard, Judge.

In this civil action arising from an automobile accident, Thomas Kelly appeals the trial court’s grant of summary judgment to GEICO, his insurance carrier. On appeal, Kelly argues that the trial court erred in finding that GEICO was not in default for its untimely answer, that the notice provision of GEICO’s insurance policy was unambiguous, and that he failed to comply with the policy’s notice provision as a matter of law. For the reasons set forth infra, we conclude that the trial court erred in finding that GEICO was not in default, and thus, we vacate the trial court’s orders denying Kelly’s motion for a default judgment and granting summary judgment to GEICO and remand for further proceedings consistent with this opinion.

Viewed in the light most favorable to Kelly (i.e., the nonmoving party), the record shows that on May 25, 2011, Kelly and Joseph Harris, an uninsured motorist, were involved in an automobile accident. Subsequently, on October 30, 2012, Kelly filed a complaint for negligence against Harris, alleging that he did not yield when turning left directly into Kelly’s path, thereby causing the collision.

At the time of the accident, Kelly was insured by GEICO with a policy that provided uninsured motorist coverage. On February 13, 2012, Kelly notified GEICO that he intended to file an insurance claim arising from the accident. After filing his complaint against Harris on October 30, 2012, Kelly served GEICO with a copy of the summons and complaint on November 5, 2012.

GEICO filed an answer on February 14, 2013, joining the civil action as a named defendant. On July 29, 2013, GEICO moved for summary judgment, arguing that Kelly could not prevail because he failed to comply with the notice provision of his insurance policy, which required that he notify GEICO “as soon as possible after the accident.” Specifically, GEICO argued that Kelly’s notice was untimely as a matter of law because it was provided more than eight months after the accident. Kelly responded, arguing that GEICO was in default for filing an untimely answer and, regardless, its notice provision was ambiguous and thus unenforceable. GEICO later withdrew its motion for summary judgment and filed a notice of election to proceed in the name of Harris, the uninsured motorist, instead of in its own name. Kelly objected to GEICO’s notice of election, and GEICO responded by withdrawing the notice and renewing its initial motion for summary judgment. Kelly then filed a motion for default judgment against GEICO, which the court denied. Then, after a hearing, the court granted GEICO’s renewed motion for summary judgment. This appeal follows.

To begin with, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” A defendant meets this burden when the court is shown that “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” Finally, if the moving party satisfies this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to Kelly’s enumerations of error.

1. Kelly first argues that the trial court erred in finding that GEICO was not in default for filing an untimely answer. Specifically, he contends that the court erroneously relied upon a typographical error contained in Lewis v. Waller to conclude that GEICO’s answer was timely.

We agree with Kelly that, in finding that GEICO’s answer was timely filed, the trial court relied upon a typographical error in Lewis. Indeed, in its order granting summary judgment, the trial court quoted our opinion in Lewis, which notes that “to the extent that the [uninsured motorist carrier (‘UMC’)] purports to act directly in its own name, its answer is timely if filed within 30 days from service of the answer and complaint upon the UMC.” And in relying upon this language, the trial court found that GEICO was not in default because its answer was timely filed within 30 days of Harris’s answer. However, in the above-cited quote from Lewis, the phrase “answer and complaint” should actually read “summons and complaint,” and we take this opportunity to acknowledge and correct this typographical error.

At the outset, we note that immediately following the above-cited language from Lewis, we concluded that the UMC’s answer was timely because it was filed within 30 days of when the UMC was served with “the summons and complaint.” And in support of this conclusion in Lewis, we cited Home Indemnity Co. v. Thomas, which held that,

to the extent that [an insurer] may purport to act directly in its own name, and thereby elect to assume the status of a named party, we think the rules of practice and procedure apply to it commencing when service is perfected as though actually named as a party defendant, and thus, to preserve its rights as to this status, it must act within the time provided by law to avoid default, and failing to do so, it is in no better position than a defaulting party.

Accordingly, Lewis and Home Indemnity Co. firmly establish that, once GEICO was served with the summons and complaint, it was then subject to Georgia’s rules of practice and procedure that apply to every other litigant. Indeed, such a result is entirely consistent with our Supreme Court’s conclusion that, “[a]lthough [a] UMC should not be placed in a worse position than the alleged tortfeasor for whose negligence it may ultimately be held financially responsible, it likewise should not be placed in a better position.”

Here, GEICO was served with the complaint on November 5, 2012, but it filed its answer 101 days later on February 14, 2013. And in Georgia, a defendant shall serve his answer “within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute.” Moreover, to avoid a default judgment, a party must move to open the default as a matter of right within the next 15 days after defaulting or at any time before a final judgment subject to the trial court’s discretion. Thus, contrary to the trial court’s findings, GEICO was indeed in default because it filed its answer well over 30 days after it received service of the complaint, and it never moved to open default under OCGA § 9-11-55 (a) or (b).

Then, after relying upon the typographical error in Lewis to determine that GEICO’s answer was timely, the trial court further found that because the Uninsured Motorist Act allows a UMC to file no answer whatsoever, subjecting a UMC to default for filing a late answer would lead to the “illogical result” that a UMC filing an answer after 30 days would be in a worse position than a UMC that never files an answer. And similarly, GEICO argues on appeal that allowing a UMC to default for filing a late answer would “unravel the flexibility” provided to insurance companies under OCGA § 33-7-11 (d). We disagree.

In relevant part, Georgia’s Uninsured Motorist Act requires that, in personal-injury actions in which a defendant is known or reasonably believed to be an uninsured motorist, the plaintiff must serve his or her insurer with a copy of the complaint. Further, in the case of a known owner or operator of an uninsured vehicle, “either or both of whom are named as a defendant in such action, the insurance company issuing the policy shall have the right to file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.” Thus, under the plain language of the statute, once a UMC is served with a complaint against an uninsured motorist, it has the option to join that action by filing an answer, but it is not required to do so. And if the UMC elects not to join as a party, it may then litigate its contract disputes separately in any “action allowable by law.” As such, while we certainly agree that the Uninsured Motorist Act gives insurance companies wide latitude in deciding whether to join a lawsuit against an uninsured motorist, GEICO cites to no statutory language or case law (and we find none) remotely suggesting that once a UMC voluntarily becomes a party to a lawsuit it is exempt from fully complying with the dictates of the Civil Practice Act. Moreover, requiring UMCs to follow such practices and procedures in no way “unravels” the flexibility that they are afforded under the Uninsured Motorist Act. Indeed, requiring UMCs to follow the same rules of civil procedure that apply to every other litigant does not limit or impede their ability under that statutory framework to opt-in or opt-out of litigation. In any event, GEICO’s contention that a UMC can never be in default is directly at odds with our prior decisions in Lewis and Home Indemnity Co., which hold otherwise and govern the outcome of this appeal.

Decided November 18, 2014

Smith, Welch, Webb & White, JohnP. Webb, Grant E. McBride, for appellant.

Cruser & Mitchell, Kathleen M. Hurley, Charles P Barry, Fain, Major & Brennan, Jennifer L. Nichols, for appellees.

In sum, the trial court’s orders denying Kelly’s motion for a default judgment and granting GEICO’s motion for summary judgment were premised, at least in part, on the trial court’s reliance upon a typographical error in Lewis and its erroneous belief that a UMC can never be in default. As such, we vacate those orders and remand the case for the trial court to determine whether GEICO’s default should stand and then proceed accordingly based on that determination.

2. Given our holding in Division 1, supra, we need not address Kelly’s argument that the trial court erred in resolving the contract disputes in GEICO’s favor.

For all of the foregoing reasons, we vacate the trial court’s denial of Kelly’s motion for a default judgment and its grant of GEICO’s motion for summary judgment and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded with direction.

Doyle, P. J., and Miller, J., concur.

        See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003) (“On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.”).

        Albertson v. City of Jesup, 312 Ga. App. 246, 248 (718 SE2d 4) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

       282 Ga. App. 8 (637 SE2d 505) (2006).

        Id. at 12 (1) (b) (emphasis supplied in part).

        Id. (emphasis supplied).

       122 Ga. App. 641 (178 SE2d 297) (1970); see Lewis, 282 Ga. App. at 12 (1) (b).

        Home Indem. Co., 122 Ga. App. at 641; see also OCGA§ 9-11-1 (“This chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81.”); cf. Hall v. Regal Ins. Co., 202 Ga. App. 511, 513 (414 SE2d 669) (1991) (“The right [of an uninsured motorist carrier] to participate directly in the proceedings includes the right to engage in discovery in accordance with the provisions of applicable discovery statutes.”).

        See Lewis, 282 Ga. App. at 12 (1) (b); Home Indem. Co., 122 Ga. App. at 641.

        Stout v. Cincinnati Ins. Co., 269 Ga. 611, 612 (502 SE2d 226) (1998) (punctuation omitted).

        See OCGA § 9-11-12 (a); see also Cavender v. Taylor, 285 Ga. 724, 724 (1) (681 SE2d 139) (2009).

       OCGA § 9-11-55 (a), (b).

       We do not fault the trial court for relying upon the typographical error contained in Lewis. Any fault in that regard lies squarely with this Court.

        See OCGA § 33-7-11 et seq.

        See OCGA § 33-7-11 (d).

        See id. (emphasis supplied).

        See Singleton v. Phillips, 229 Ga. App. 286, 288 (2) (494 SE2d 66) (1997) (noting that under OCGA § 33-7-11 (d), a UMC may “elect to become a party to the case by filing an answer in its own name”).

       OCGA § 33-7-11 (d).

        See Lewis, 282 Ga. App. at 12 (1) (b); Home Indem. Co., 122 Ga. App. at 641.