text:
    A16A0680.
    BRAZZEL v. BRAZZEL.
    (789 SE2d 626)
   ANDREWS, Presiding Judge.

Lester Brazzel, Jr., appeals from a superior court order and final judgment denying his motion to vacate an arbitrator’s decision regarding child custody and other matters, and granting the motion of his former wife, Ashley Brazzel, to confirm the decision. For the following reasons, we affirm.

Lester and Ashley Brazzel were divorced in 2010 with two minor children the issue of their marriage. Pursuant to the divorce decree and a 2012 order modifying child custody, the parents were awarded joint legal and physical custody of the children with primary physical custody in Ms. Brazzel. In 2013, Ms. Brazzel filed a motion seeking modification of child custody and support, Mr. Brazzel counterclaimed for custody and support modification, and both parties filed motions for contempt. The parties agreed to consolidate and submit to binding arbitration all the issues presented in the motions, including an agreement pursuant to OCGA § 19-9-1.1 to submit the child custody-related issues to binding arbitration. After hearing evidence, the arbitrator issued his decision in June 2015, which included a finding that, since the last custody award, there had been a material change of condition adversely affecting child welfare, and that it was in the best interests of the children that custody be modified by awarding primary legal and physical custody to Ms. Brazzel, and secondary legal and physical custody to Mr. Brazzel. Ms. Brazzel moved pursuant to OCGA § 9-9-12 of the Georgia Arbitration Code (GAC) (OCGA § 9-9-1 et seq.) for superior court confirmation of the arbitrator’s decision, and Mr. Brazzel moved pursuant to OCGA § 9-9-13 of the GAC for the court to vacate the decision, and to “set the matter for an evidentiary hearing before [the] Court to determine the best interests of the children under OCGA §[§] 19-9-1.1 and 19-9-3 before modifying custody” In September 2015, the superior court entered an order and judgment denying Mr. Brazzel’s motion to vacate the decision, and granting Ms. Brazzel’s motion to confirm the arbitrator’s decision, thereby incorporating the arbitrator’s custody-related decisions.

1. Mr. Brazzel contends that the superior court’s order confirming the arbitrator’s decision on issues related to child custody violated the provisions of OCGA § 19-9-1.1 because the court erroneously found: (1) that it was bound by the arbitrator’s decision on these issues, and (2) that it had no independent duty to determine the best interests of the children.

OCGA § 19-9-1.1 provides that in all proceedings under OCGA Title 19, Chapter 9, Article 1,

it shall be expressly permissible for the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan. The parents may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter’s decisions shall be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter’s award would not be in the best interests of the child. In its judgment, the judge may supplement the arbiter’s decision on issues not covered by the binding arbitration.

In its order confirming the arbitrator’s child custody-related decisions, the superior court correctly rejected Mr. Brazzel’s contention that OCGA § 19-9-1.1 required the court to conduct an evidentiary hearing for the purpose of making an independent custody award in the best interests of the children. A trial court considering a petition for modification of child custody should grant the petition only if the court finds a material change of condition affecting child welfare since the last custody award, and the court must exercise its discretion to determine the child’s best interest in making any new award of custody Viskup v. Viskup, 291 Ga. 103, 105 (727 SE2d 97) (2012); OCGA § 19-9-3 (b). In this case, after petitioning the court for modification of child custody, Mr. and Ms. Brazzel agreed pursuant to OCGA § 19-9-1.1 to submit the child custody-related issues to “binding arbitration.” Having done so, OCGA § 19-9-1.1 provided that the issue “will be resolved in binding arbitration” and that “[t]he arbiter’s decisions shall be incorporated into [the court’s] final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter’s award would not be in the best interests of the child.” After the arbitrator rendered the decision on the custody issues, nothing in OCGA § 19-9-1.1 authorized the court to independently decide the custody issues based on the court’s determination of the best interests of the children, or to substitute court custody decisions for the decisions ofthe arbitrator. Rather, the plain language of OCGA § 19-9-1.1 required the court: (1) to consider whether “under the circumstances of the parents and the children]” the arbitrator’s custody decisions would not be in the best interests of the children, and (2) to incorporate the decisions into the court’s final decree awarding child custody unless the court made written factual findings that the decisions were notin thechildren’sbestinterests. PursuanttoOCGA § 19-9-1.1, the court’s confirmation order incorporated the arbitrator’s custody-related decisions and showed that the court considered the circumstances of the parents and children (as set forth in the arbitration decision’s detailed factual findings) and found no basis to conclude that the decisions would not be in the best interests of the children. Nothing in the court’s order can be construed to show that the court erroneously believed it was bound by the arbitrator’s custody decisions regardless of the circumstances of the parents and children. There is no basis to conclude that the superior court violated the provisions of OCGA § 19-9-1.1.

2. Mr. Brazzel claims on various grounds under the GAC that the superior court erred by denying his motion to vacate the arbitration decision.

Because the GAC “was designed to preserve and ensure the efficacy and expediency of arbitration awards” the basis on which a reviewing court may grant a party’s application to vacate an arbitration award is “strictly limited to five statutory grounds set forth in OCGA § 9-9-13 (b).” ABCO Builders v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574) (2007). OCGA § 9-9-13 (b) provides:

The award shall be vacated... if the court finds that the rights of that party were prejudiced by:
(1) Corruption, fraud, or misconduct in procuring the award;
(2) Partiality of an arbitrator appointed as a neutral;
(3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made;
(4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or
(5) The arbitrator’s manifest disregard of the law.

Unless the court vacates or modifies the arbitration award, the court must grant a party’s application under the GAC to confirm the award. OCGA § 9-9-12. The burden was on Mr. Brazzel to demonstrate the existence of a statutory ground for vacating the arbitration award. Greene v. Hundley, 266 Ga. 592, 596, n. 24 (468 SE2d 350) (1996). Moreover, to avoid frustrating the purpose of arbitration — the resolution of civil disputes by means that avoid the time and expense of court litigation — the court reviewing an application pursuant to the GAC to vacate the arbitration award is prohibited from considering the sufficiency or weight of the evidence presented to the arbitrator “regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” Id. at 597. Accordingly, “[t]he [GAC] demands that courts give extraordinary deference to the arbitration process and awards.” Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 411 (696 SE2d 663) (2010) (citation and punctuation omitted). Applying these principles, we find that the court did not err by denying the motion to vacate.

(a) Mr. Brazzel contends that, because the arbitration award failed to specifically address one of the allegations in his contempt petition against Ms. Brazzel, this constituted an “imperfect execution” of the arbitrator’s authority so that “a final and definite award upon the subject matter submitted [for arbitration] was not made” — a ground for vacating the award under OCGA § 9-9-13 (b) (3). Specifically, Mr. Brazzel complains that the arbitration award did not address an allegation in his contempt petition that Ms. Brazzel violated a court order by involving one of the children in discussions and disagreements between the parties. The award shows that the arbitrator considered and specifically ruled on numerous contempt allegations asserted by Mr. and Ms. Brazzel in their cross-petitions for contempt, but not the above-stated contempt allegation by Mr. Brazzel. It is undisputed that the arbitration hearing was transcribed and that Mr. Brazzel did not produce a complete transcript of the arbitration hearing in support of his motion to vacate. Rather, in support of his various claims, Mr. Brazzel provided the reviewing court with transcriptions of selected excerpts of the arbitration hearing. We find that the short excerpt of the hearing that Mr. Brazzel provided to the court on this claim did not show evidence presented to the arbitrator supporting or refuting the above-stated contempt allegation. Moreover, without a complete transcript of the arbitration hearing, the reviewing court was unable to determine whether any evidence was presented to the arbitrator on this issue, and Mr. Brazzel failed to carry his burden to show that he was prejudiced by a failure or refusal of the arbitrator to rule on the issue. Bennett v. Builders II, 237 Ga. App. 756, 757 (516 SE2d 808) (1999). The court did not err by finding the absence of a transcript was a basis for denying the motion to vacate. The fact that Mr. Brazzel filed a complete transcript of the arbitration hearing in this Court as part of the record on appeal does not change this result. In reviewing claims that the reviewing court erred, this Court will not consider a transcript of the arbitration hearing not presented to or reviewed by the court below. See Frieson v. South Fulton Medical Center, 255 Ga. App. 217, 217 (564 SE2d 821) (2002) (appellate court corrects enumerated errors based on the record presented to the lower court).

(b) Mr. Brazzel contends that the reviewing court should have vacated the award because the arbitrator overstepped his authority by deciding matters that were not submitted for arbitration in the parties’ arbitration agreement. OCGA § 9-9-13 (b) (3). “[Arbitration is a matter of contract, meaning that arbitrators derive their authority to resolve disputes only from the parties’ agreement.” Berger v. Welsh, 326 Ga. App. 290, 293 (756 SE2d 545) (2014) (citation and punctuation omitted). In their arbitration agreement, Mr. and Ms. Brazzel agreed to submit to binding arbitration the pending proceedings for modification of child custody and support and the cross-proceedings for contempt, and agreed to arbitrate “all matters and issues in connection with” those proceedings. Mr. Brazzel contends that the arbitrator overstepped by issuing an award regarding: (i) reimbursement to Ms. Brazzel of $1,512.88 for the children’s medical expenses owed pursuant to court order; (ii) the provision of documentary proof to Ms. Brazzel showing the existence of court-ordered life insurance and 529 educational accounts for the children’s benefit; and (iii) religious and schooling decisions for one of the children. Because these were matters within the scope or connected with the proceedings the parties submitted to arbitration, Mr. Brazzel failed to demonstrate that the arbitrator overstepped his authority Moreover, as set forth in Division 2 (a), supra, the failure to produce a complete transcript of the arbitration hearing precluded the reviewing court from considering Mr. Brazzel’s argument that these matters were not raised at the hearing.

(c) Mr. Brazzel contends that his motion to vacate the award should have been granted pursuant to OCGA § 9-9-13 (b) (4) because the arbitrator failed to follow procedures mandated by the GAC. According to Mr. Brazzel, his right under OCGA § 9-9-8 (b) to be heard and to cross-examine two witnesses at the hearing was impaired.

As to the first witness, the parties mutually selected a psychologist to evaluate the parents and children and to issue a report and testify. After Mr. Brazzel and his counsel met with the psychologist, they sent an e-mail to Ms. Brazzel and the arbitrator which expressed no confidence that the psychologist would complete the report in a timely fashion and stated they wanted to discuss replacing the psychologist with another mutually agreeable therapist. Mr. Brazzel complains that Ms. Brazzel and her counsel informed the psychologist about the e-mail, thereby prejudicing the psychologist’s testimony in favor of Ms. Brazzel, and that, because Mr. Brazzel discovered this after the hearing, he was denied the ability to cross-examine the witness about the prejudice. As Ms. Brazzel points out, the parties’ arbitration agreement provided that the parties could contact the psychologist during the course of the evaluation “as each may deem appropriate” and that the psychologist was free to “discuss the progress of the evaluation with the attorneys individually or jointly.” But even assuming that providing the e-mail to the psychologist violated an agreed procedure, Mr. Brazzel’s failure to provide the reviewing court with a transcript of the arbitration hearing prevented the court from conducting a review to determine whether any prejudice resulted. Bennett, 237 Ga. App. at 757.

As to the second witness, Mr. Brazzel contends that, after the arbitration hearing, he discovered that an expert witness who testified for Ms. Brazzel failed to produce her entire file (in response to requests for production) and that this prevented him from being able to investigate the nature of unrevealed conversations between the witness and Ms. Brazzel’s counsel and to fully cross-examine the witness. Again, even assuming that discoverable information was not provided and that GAC procedure was not followed, because Mr. Brazzel failed to provide the reviewing court with a complete transcript of the arbitration hearing, he failed to carry his burden of demonstrating prejudice. Bennett, 237 Ga. App. at 757.

3. Mr. Brazzel contends that the superior court erred by confirming the arbitrator’s decision because of various provisions in the decision.

(a) Mr. Brazzel complains that the decision contained a provision stating that, until confirmed (or otherwise ruled upon) by the reviewing court, the decision remained binding on the parties as a temporary order in the case. Nothing in the record shows any enforcement of the temporary order provision in the arbitration decision prior to confirmation. Mr. Brazzel did not ask the reviewing court to vacate the decision on this basis under any statutory ground set forth in OCGA § 9-9-13 (b), and on appeal he cites no statutory ground for vacating the decision or prejudice resulting from confirmation. We find the reviewing court did not err by confirming the decision. OCGA § 9-9-12.

(b) Mr. Brazzel contends that the arbitrator’s decision contains self-executing provisions which made automatic changes (at a future time) regarding his visitation rights or parenting time, and that these provisions violated Georgia public policy requiring judicial determination of the child’s best interests at the time of the change. Mr. Brazzel moved for the reviewing court to vacate the June 2015 decision because it included provisions such as “changes in visitation starting with the [2015-2016] school year” and “change of holiday time.. .beginning at the Thanksgiving holidayin2015.” With respect to one of the children, the parenting plan portion of the June 2015 decision automatically increased Mr. Brazzel’s visitation/parenting time “with the resumption of classes for the 2015-2016 school year” and automatically increased his holiday parenting time “[cjommenc-ing with the 2015 Thanksgiving holiday.” Apparently, Mr. Brazzel contends that the reviewing court should have granted his motion to vacate the decision because these automatic increases to his visitation/ parenting time were made without a judicial determination (at the time of the increases) that they were in the best interests of the child.

A visitation provision in a divorce or modification order is self-executing when it automatically makes a material change to visitation rights based on a future event without any additional judicial consideration of the best interests of the child at the time of the change. Dellinger v. Dellinger, 278 Ga. 732, 733-734 (609 SE2d 331) (2004). Public policy requires that in determining custody and visitation matters the court must consider the best interests of the child. Id. at 733; see OCGA § 19-9-3 (a) (2). Accordingly, any provision containing a self-executing material change to visitation which fails to properly consider the best interests of the child at the time of the change violates public policy and must be stricken. Dellinger, 278 Ga. at 733-736.

[S]elf-executing material changes in visitation violate this State’s public policy founded on the best interests of a child unless there is evidence before the court that one or both parties have committed to a given course of action that will be implemented at a given time; the court has heard evidence how that course of action will impact upon the best interests of the child or children involved; and the provision is carefully crafted to address the effects on the offspring of that given course of action.

Id. at 733-734. Assuming that the automatic visitation changes at issue were of sufficient magnitude to be considered material changes, we find evidence in the arbitration record (set forth in the arbitration decision’s detailed factual findings) showing that the arbitrator properly considered the best interests of the child at the time of the automatic visitation changes. There was evidence of estrangement between Mr. Brazzel and the child at issue when the arbitration decision was issued. The record shows that the arbitrator’s June 2015 decision appointed a reunification therapist with the goal of improving the relationship between Mr. Brazzel and the child; required adherence to a schedule of appointments with the therapist; and with the expectation of an improved relationship between father and child included automatic increases in visitation and parenting time in the fall of 2015 after a few months of therapy. This was evidence that the parties committed to a course of action in a given time frame to improve the parent-child relationship and facilitate the increases in visitation and parenting time in the best interests of the child.

Decided June 10, 2016

Reconsideration denied July 7, 2016

Nelson, Mullins, Riley & Scarborough, Erika C. Birg, Lucas A. Westby; Kegel McBurney, Kurt A. Kegel, for appellant.

Warner, Bates, McGough, McGinnis & Portnoy, Kathy L. Portnoy, Nancy I. Jordan, Kynna D. Garner; Ellis Funk, P.C., Robert N. Dokson, for appellee.

The provisions in the arbitrator’s decision automatically changing visitation did not violate public policy. It follows that, upon consideration of the circumstances of the parents and children, the superior court’s confirmation order properly incorporated the arbitrator’s custody and visitation decisions, and correctly denied Mr. Brazzel’s motion seeking to vacate the decision under OCGA § 19-9-1.1. See Division 1, supra.

(c) We find no merit to Mr. Brazzel’s claim that the superior court erred by confirming the arbitrator’s decision awarding attorney fees in favor of Ms. Brazzel. The record shows that the parties agreed to submit applications for legal fees and expenses to the arbitrator, and Mr. Brazzel asserted no statutory ground under OCGA § 9-9-13 (b) which provided a basis to vacate the decision. Haddon v. Shaheen & Co., 231 Ga. App. 596, 596-599 (499 SE2d 693) (1998). Specifically, we find no support in the record for claims that the arbitrator’s decision on this issue was the product of bias or misconduct, or that the arbitrator imperfectly executed his authority OCGA § 9-9-13 (b) (1), (3); Haddon, 231 Ga. App. at 596-599; Hansen & Hansen Enterprises v. SCSJ Enterprises, 299 Ga. App. 469, 472-473 (682 SE2d 652) (2009). The arbitrator exercised inherent authority to fashion a remedy based on statutory grounds for the award of attorney fees on the arbitrated issues. Id. at 473; see OCGA §§ 19-6-2; 19-6-15 (k) (5); 19-9-3 (g). Finally, any claim that the award lacked evidentiary support is not a basis for vacating the arbitrator’s decision. Hansen, 299 Ga. App. at 472.

Judgment affirmed.

Doyle, C. J., concurs. Ray, J., concurs in Divisions 2 and 3 (a) and (c), and in the judgment.

       Only if a court determines under OCGA § 19-9-1.1 that an issue decidedby the arbitrator would not be in the best interests of the child does the statute require the court to make specific written factual findings setting forth that determination. In that case, OCGA § 19-9-1.1 does not authorize the court to litigate issues subjected to binding arbitration and decide what is in the best interests of the child. Rather, those issues remain subject to the agreement for binding arbitration, but the arbitrator’s award is vacated under OCGA § 19-9-1.1 by the court’s determination, and the issues on which the court issued its factual findings are returned to arbitration for rehearing in light of the court’s findings. See OCGA § 9-9-13 (e).
      Moreover, the reference in OCGA § 19-9-1.1 to an agreement for “binding arbitration” shows the legislature’s intent that the agreed arbitration of custody-related issues be conducted pursuant to the safeguards against arbitral abuse contained in the GAC. OCGA § 9-9-2 (c). So when the arbitrator’s award is not vacated by operation of OCGA § 19-9-1.1, the award is otherwise subject to being vacated pursuant to an application to vacate filed pursuant to the GAC. And when there is no basis to vacate under the GAC, the award may be otherwise vacated under OCGA § 19-9-1.1. While promoting the efficient resolution of child custody and related issues by binding arbitration, OCGA § 19-9-1.1 recognizes that it is the ultimate duty of the court to ensure that any arbitrator-made award on those issues which is confirmed and made the court’s final judgment or decree is consistent with the best interests of the child. See Page v. Page, 281 Ga. 155, 156 (635 SE2d 762) (2006).


source: Caselaw Access Project

author:
Branch, Judge.
      ELLINGTON, Presiding Judge,

license: Public Domain

text:
    A15A1706.
    WYATT et al. v. HIZER.
    (788 SE2d 866)
   Branch, Judge.

Villa Hizer brought an action to quiet title against Greg and Beth Wyatt, who counterclaimed, and a special master was appointed to hear the issues. At the beginning of the ensuing hearing, which was not transcribed, the Wyatts presented a demand for a jury trial to the special master; nevertheless, the hearing proceeded, following which the special master made findings of fact and conclusions of law in favor of Hizer. The superior court then held a hearing regarding the effectiveness of the jury demand and found asa matter of fact that the Wyatts had not filed the demand prior to the special master’s hearing. The court then adopted the special master’s findings, and the Wyatts appeal. For the reasons that follow, we reverse.

The record shows that in her September 2012 complaint, Hizer alleged that she was the fee simple owner of Lot 2, Block 2 of the Buena Vista Brow Subdivision in Chattooga County, as shown on an August 23, 2012 plat referred to by the parties as the Campbell plat. Hizer alleged that the Wyatts claimed an interest in the same property and had entered onto the subject property without authorization. Hizer asked the court, among other things, to appoint a special master, to refer the proceeding to the special master, and to quiet title to Lot 2.

The Wyatts answered and filed a counterclaim in which they asserted that they were the owners of the subject property; they also alleged that the same property was shown as Lot 1 on a January 10, 2012 plat referred to by the parties as the Morrison plat and that they have an interest in the property as a result of a quitclaim deed transferring that lot to them on June 14, 2012. The Wyatts alleged that the confusion between the two plats needed to be resolved, and they asked the court to declare that the Morrison survey showed the true location of the subject property and to eject Hizer from possession. The Wyatts also asked the court to appoint a special master and that the proceeding be referred to the special master.

Thereafter, the court appointed a special master, and he entered an order in which he assumed jurisdiction under applicable law and ordered each party to file copies of the public record title documents for their respective chains of title for a minimum of 40 years or back to when the two properties were conveyed by a common grantor. The record shows that Hizer supplied record title documents in response to the special master’s order, but the record does not clearly show what documents the Wyatts provided. In a brief, Hizer argued that the relevant issues could be determined from the documentary evidence but that in the alternative, the evidence would establish that Hizer had adversely possessed the property at issue sufficient to establish title. A hearing was then scheduled for June 13, 2013, at 9:30 a.m.

Neither party requested that the special master hearing be recorded, and no transcript nor any recreation of the events of the special master hearing has been provided to this court. But a “Demand For Jury Trial,” prepared by the Wyatts and file-stamped June 13, 2013 (but not time-stamped), is contained in the trial court record; the Demand states that it was made “prior to the hearing of the Special Master”; it does not state that it was “filed” prior to the hearing. In their Demand, the Wyatts demanded a jury trial on “any disputed issue of fact.” Hizer admitted in her post-hearing brief that

[a]t the start of the [special master] hearing, but before oral testimony was given, attorney for Defendants Wyatt presented opposing attorneys and the Special Master with an unfiled copy of a Demand for Jury Trial, stating that he wished to reserve the issue of adverse possession for determination by a jury.

Hizer also admitted that at the hearing, the Wyatts’ counsel “made the statement that he was reserving the right of jury trial regarding defendants’ claim of adverse possession.” Four months after the hearing, the special master issued a report in favor of Hizer.

The Wyatts filed an objection to the special master’s report and an additional request for a jury trial, to which Hizer objected. The Wyatts asserted that they

d[id] not take issue with the findings of the Special Master as to Hizer having title as to Lot 2 and Wyatts as to Lot 1 and agree that the issue is between the parties as to the boundary between Lot 1 and Lot 2 which is a question of fact that was reserved for jury determination.

The case was then set for a hearing in the superior court. At the hearing, Hizer explained that two affidavits of the clerk of court had been filed in the trial court record. In the first, the clerk averred that the Wyatts’ first jury demand had been filed prior to the special master hearing on June 13, 2013. But in the second affidavit, the same clerk averred that his first affidavit was incorrect, and that, in fact, he had no knowledge to the effect that the jury demand was filed prior to the special master hearing that day and that there was “no official record in [his] office that would reflect that it was filed prior to the Special Master hearing.” At the hearing, counsel for the Wyatts stated that he did file the jury demand prior to the special master hearing and that he gave a copy to Hizer and the special master before the hearing.

The superior court took the matter under advisement and eventually entered an order adopting the special master’s findings. With regard to the jury demand, the court found that to invoke their statutory right to a trial by jury and thereby divest the special master of jurisdiction, the Wyatts had to file the demand with the clerk prior to the special master hearing: “The filing of the jury demand is a jurisdictional action. The demand must be filed and stamped prior to the Special Master commencing the hearing to be effective.” The court also found as a matter of fact that the second affidavit executed by the clerk indicated that the Wyatts had not filed a jury demand prior to the hearing. The Wyatts appeal from the trial court’s order.

“[Ojnce the trial court adopts the special master’s findings and enters judgment, the court’s decision is upheld by the appellate court unless clearly erroneous.” McGregor v. River Pond Farm, 312 Ga. App. 652, 653 (1) (719 SE2d 546) (2011) (citation omitted). Conclusions of law are reviewed de novo. Id.; see also McMillan v. Siver, 233 Ga. App. 350, 352 (504 SE2d 208) (1998) (“[wjhere a trial court . . . makes a factual finding, the court’s determination will be affirmed unless it is clearly erroneous”) (citation omitted).

1. The Wyatts first contend the trial court erred by ruling that they failed to demand a trial by jury in a timely manner. As explained below, we find the trial court’s determination to be clearly erroneous.

“When the trial court appoints a special master to hear a quiet title claim, the special master is the arbiter of law and fact and decides all the issues in the case unless a party to the proceeding demands a jury trial pursuant to OCGA § 23-3-66.” Paul v. Keene, 272 Ga. 357, 358 (529 SE2d 135) (2000) (citations omitted). If such a demand “is timely made, the case must be submitted to a jury if a question of fact is presented by the evidence.” Id. (citations omitted); Addison v. Reece, 263 Ga. 631, 632 (1) (436 SE2d 663) (1993).

The Code provides that after a petition to quiet title is filed, the trial court shall submit the same to a special master, OCGA § 23-3-63, who shall have jurisdiction to decide the matter but that any party to the proceeding may demand a jury trial of any question of fact:

... [T]he special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court; provided, however, any party to this proceeding may demand a trial by a jury of any question of fact; provided, further, that the master on his own initiative may require a trial by a jury of any question of fact.

OCGA § 23-3-66. OCGA § 23-3-66 does not state that the demand must be filed with the court prior to the special master hearing. Although no case directly so holds, the great majority of Supreme Court cases addressing the timing of a jury demand in a quiet title action state that the demand must be “filed” prior to the special master hearing. But even assuming that such a demand must be filed with the court prior to the special master hearing, we find that the trial court erred.

Here, both parties requested that a special master be appointed and that the matter be referred to the special master; accordingly, the special master gave notice that he was taking jurisdiction of the matter. The parties agree that the Wyatts presented a demand for a jury trial to Hizer and the special master before the hearing, but disagree as to whether the Wyatts filed the demand with the clerk before the special master hearing. The Wyatts presented a statement from their counsel that he filed the demand before the hearing and “an attorney takes an oath upon admission to the bar and is deemed to speak the truth and to be bound by his statements in open court as a failure in this might disbar him.” Thomas v. Scott, 221 Ga. 875, 877 (7) (148 SE2d 300) (1966); Gould v. State, 315 Ga. App. 733, 734 (2) (726 SE2d 432) (2012) (same regarding “unsworn statements made by his counsel during the hearing”).

In response, Hizer presented the affidavit of the court clerk who failed to present any direct testimony to rebut the Wyatts’ attorney’s statement. Rather, the clerk averred only that he had no knowledge as to whether the demand was filed prior to the hearing and that he had no official record that would prove that the Wyatts’ counsel filed the demand prior to the hearing. He did not aver that his records were capable of showing what time a document was filed, that he knew what time the hearing was held, or that he had a record that would show that the demand was filed after the commencement of the special master hearing. Thus, the affidavit did not contradict Wyatts’ counsel’s statement. It created “at best, a mere inconclusive inference insufficient to [create an issue of fact].” Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d 360) (2010); see also Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 781 (257 SE2d 186) (1979) (When a party is relying on inferences to prove a point, not only must those inferences “tend in some proximate degree to establish the conclusion” sought, but they must also “render less probable all inconsistent conclusions.” “In cases of circumstantial evidence a mere inconclusive inference ... is not to be regarded as any evidence.”) (citation and punctuation omitted).

The trial court therefore clearly erred by finding as a matter of fact that the demand for a trial by jury was not filed before the commencement of the special master’s hearing. We therefore reverse the trial court’s order finding that the jury demand was ineffective. We reserve for remand, however, the scope of the jury demand. See OCGA § 23-3-66 (only issues of fact require a jury).

2. The Wyatts’ remaining enumerations of error ask this court to conclude that the trial court erred by adopting the findings of the special master. Because the special master’s findings include resolution of questions of fact, we also reverse the trial court’s adoption of those findings and remand for further proceedings consistent with this opinion.

Judgment reversed. Andrews, P. J., Dillard and Peterson, JJ., concur.

Ray, J., concurs in judgment only. Ellington, P. J., Phipps, P. J., and Mercier, J., dissent. Doyle, C. J., dissents without opinion.

ELLINGTON, Presiding Judge,

dissenting.

I respectfully dissent.

The record shows that in 2012 the Wyatts requested that a special master be appointed to hear Hizer’s quiet title action. By mail sent on June 5, 2013, at which point the Wyatts had never yet requested a jury, the Wyatts’ attorney served Hizer a notice of hearing, stating that they would bring the action on for hearing before the special master on June 13, 2013; the notice of hearing made no reference to any jury demand. The special master heard the case as scheduled and issued a written report that was filed on October 23, 2013. The report recites that the hearing was scheduled for June 13, 2013, by agreement of the parties and held that day The special master determined that fee simple title should be vested in Hizer as to a disputed lot. The special master noted that the hearing was not transcribed because neither side requested a court reporter. The report makes no mention of any jury demand and makes no mention of any issues being reserved for a jury

Afterward, Hizer requested that the special master’s findings of fact and conclusions of law be made the order of the superior court. The Wyatts filed a written “Objection to Special Master Report and Request for a Jury Trial,” contending that a jury is necessary to determine the correct placement of the boundary between their lot and Hizer’s lot. They averred that, “[pjrior to the beginning of the hearing by the Special Master,” they “filed a demand for jury trial of any question of fact[,]” and that the boundary issue “is now reserved for jury determination.” (Emphasis in original.) Hizer countered that the Wyatts failed to show that they filed their jury demand prior to the hearing before the special master.

At the hearing on the Wyatts’ objection, the trial court received two contradictory affidavits executed by the clerk of court. In the first affidavit, the clerk deposed that the Wyatts filed their jury demand prior to the special master hearing. In the second affidavit, the clerk deposed that he had no personal knowledge of whether the jury demand was filed before the hearing and that no official record in his office would reflect that it was filed before the hearing. At the hearing, the Wyatts’ attorney stated in his place that the jury demand was filed in the clerk’s office prior to the hearing. But the attorney also stated:

I think that. . . you have to look carefully in the words that [Hizer’s attorneys] are using. They had a copy of the demand for trial. Special Master had a copy of demand for trial prior to the hearing; he actually put his copy in the file. The issue for [Hizer’s attorneys] is, is whether or not [the clerk of court] stamped it “filed” at the courthouse and filed it prior to the hearing. I think that’s a bit much in this case.

The trial court could have reasonably construed this statement as an admission that the Wyatts served copies at the hearing, but only filed the jury demand in the clerk’s office later that day, and an argument that the timing of the filing was irrelevant.

After hearing this inconclusive and somewhat conflicting evidence, and without the benefit of a transcript of the special master hearing, and subject to the resulting presumption that the special master’s conduct of the hearing was lawful, the trial court sitting as a trier of fact found that the Wyatts’ jury demand was not effective, that is, actually filed with the clerk of court prior to the special master hearing. In the absence of evidence conclusively establishing the contrary, I would defer to the trial court’s finding of fact in this regard. Moreover, even if the Wyatts did in fact file their jury demand in the clerk’s office before the hearing, the special master’s report shows that they participated in the hearing and offered evidence in support of their position. In the absence of a transcript of the hearing, it cannot be determined whether they acquiesced in or objected to the special master’s exercise of jurisdiction or whether they took or failed to take appropriate action to preserve for appellate review any error in not reserving issues for the jury. For these reasons, I conclude that the Wyatts failed to carry their burden on appeal of showing error by the record, and I would affirm. See Smith v. Chemtura Corp., 297 Ga. App. 287, 293 (5) (676 SE2d 756) (2009) (“It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.”) (punctuation and footnote omitted).

Decided July 7, 2016.

Palmour Law Firm, Albert C. Palmour, Jr., Melissa G. Hise, for appellants.

Cook & Connelly, Bobby Lee Cook, Edward F. Hurley, for appellee.

I am authorized to state that Presiding Judge Phipps and Judge Mercier join in this dissent.

       See, e.g., Addison, 263 Ga. at 631-632 (demand was timely that was “filed” “[bjefore the special master could hear the claim”); Nelson v. Ga. Sheriffs Youth Homes, 294 Ga. 228, 229 (751 SE2d 783) (2013) (“demand for a jury trial filed before the special master [held] a hearing” gave trial court jurisdiction); Sacks v. Martin, 284 Ga. 712, 714 (2) (670 SE2d 417) (2008) (“demand for jury trial must be filed prior to the time the special master hears the case”) (citation omitted); Brown v. Wilson, 240 Ga. 856, 857 (1) (242 SE2d 603) (1978) (where party “failed to file her demand for a jury trial prior to the time the case was heard by a special master, her demand was untimely”); Thornton v. REB Properties, 237 Ga. 59 (226 SE2d 741) (1976) (“[i]f no demand is filed prior to the time he hears the case,” the special master shall hear the case unless the special master requires a trial by jury on any question of fact). Compare Paul, 272 Ga. at 358 (demand for a jury trial “made” before the case was heard by the special master was timely); Simmons v. Bearden, 277 Ga. 800, 801 (3) (596 SE2d 136) (2004) (party must “make” the demand “prior to the time that the special master hears the evidence”) (citation omitted).

       In its order, the trial court indicated only that it relied on the second affidavit of the clerk of court, which, as shown above, was clearly erroneous; it did not reference the statement made by the Wyatts’ attorney during the trial court hearing upon which the dissent relies. Moreover, that statement is nothing more than a representation of the issue before the court, not an admission of any facts.

       The dissent’s concern with the lack of a transcript of the special master hearing is premature. The trial court’s determination that the Wyatts failed to timely file their jury demand was not based on events that occurred at the special master hearing but rather on what occurred prior to the hearing, i.e., whether the Wyatts had failed to file the jury demand prior to the hearing. On remand, as we have already stated, the trial court must resolve the scope of that demand, which may raise issues regarding what occurred at the special master hearing.

       See OCGA § 23-3-66, which provides:
      Upon reasonable notice to the parties, after proof of serving notice as required by this article has been filed and after the appointment of the disinterested person as representative where required, the special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court; provided, however, any party to this proceeding may demand a trial by a jury of any question of fact; provided, further, that the master on his own initiative may require a trial by a jury of any question of fact.

        Davenport v. Smith, 157 Ga. App. 870, 871 (278 SE2d 691) (1981) (“In the absence of a transcript, we must assume that” a party made any showing required for the relief requested, “for there is a presumption that a trial judge performed faithfully and lawfully the duties devolving upon him by law, and enumerations of error dependent upon consideration of evidence heard by a trial court will, absent a transcript, be affirmed.”) (citation omitted).


author:
Rickman, Judge.
      BARNES, Presiding Judge,

text:
    A16A0130, A16A0131.
    HOWELL et al. v. NORMAL LIFE OF GEORGIA, INC. et al.; and vice versa.
    (788 SE2d 840)
   Rickman, Judge.

Laura Howell as Durable Power of Attorney and Next Friend of Christopher Tiegreen (her son) filed a complaint for damages against Normal Life of Georgia, Inc., Res-Care, Inc., James Stephens, Carlos Strong, and Christopher Wages (hereinafter, collectively “Normal Life”). Howell sought damages as a result of Tiegreen’s imprisonment for what she claimed was Normal Life’s: (1) negligent supervision and care of Tiegreen, enabling him to flee his home and commit crimes; and (2) breach of contract, by failing to adequately supervise and care for Tiegreen, enabling Tiegreen to flee his home, in violation of the terms of the contract for his care. Howell also sought punitive damages and attorney fees.

Normal Life moved for summary judgment on all claims. The trial court granted partial summary judgment in favor of Normal Life on the claims for negligence, punitive damages, and attorney fees; the trial court denied summary judgment on the breach of contract claim. In Case No. A16A0130, Howell appeals the partial grant of summary judgment in favor of Normal Life on her claims for negligence, punitive damages, and attorney fees. In Case No. A16A0131, Normal Life appeals the trial court’s denial of summary judgment on the breach of contract claim. For the reasons that follow, in Case No. A16A0130, we affirm the judgment of the trial court, and in Case No. A16A0131, we reverse the judgment of the trial court denying summary judgment on the breach of contract claim.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Courtland Hotel v. Salzer, 330 Ga. App. 264 (767 SE2d 750) (2014).

The trial court set out the undisputed facts accurately and succinctly in its order, as follows.

This action arises out of an incident during which Christopher Tiegreen eloped from the supervision of employees of Defendants Normal Life and Res-Care and, within minutes of that elopement from supervision, sexually assaulted a female. Tiegreen subsequently was indicted on charges of Aggravated Assault, Attempt to Commit a Felony, False Imprisonment, Battery, Sexual Battery, and Cruelty to Children. Tiegreen filed a plea of mental incompetency, and a special jury empanelled to hear the plea of mental incompetency found him to be competent to stand trial. Tiegreen subsequently entered a guilty plea to the charges, and Superior Court Judge David Sweat accepted his guilty plea after a lengthy colloquy regarding the voluntariness of the plea. Tiegreen was sentenced to 30 years, with the first 7 years to be served in confinement and the balance to be served on probation.
The supervision of Tiegreen by Defendants Normal Life and Res-Care was provided pursuant to a contract entered into with the State of Georgia under which Normal Life and Res-Care provided residential care and supervision for citizens with cognitive, intellectual and/or developmental disabilities. Tiegreen, who suffered a traumatic brain injury in 2001, was known to be manipulative, prone to attempts at elopement, and susceptible to impulse control problems and inappropriate sexual behavior. His Individual Service Plan (ISP) therefore required that two individuals supervise him within arms’ length at all times. On September 11, 2009, Defendants Stephens, Strong, and Wages were employed by Defendants Normal Life and Res-Care to supervise Tiegreen at his residential duplex in Athens when Tiegreen eloped from supervision during their shift change and committed the crimes outlined above.

It is undisputed that Tiegreen had never been adjudicated or found by any court to be an incapacitated adult, he had never been ruled incompetent by a court of law, and he had not been declared insane.

Case No. A16A0130

1. Howell contends that the trial court “erred in discerning the boundaries” of the rule that applies to this case, and that correctly construed, the rule would not have barred her negligence claim.

Howell argues that this Court’s statement in Bruscato v. OBrien , 307 Ga. App. 452, 460 (2) (705 SE2d 275) (2010) that “public policy... prohibits those who commit murder or voluntary manslaughter from profiting from the victim’s death” controls this case, and that because the instant case does not involve a murder, her negligence claim is not barred. However, Howell’s reliance on the foregoing quoted language from Bruscato is misplaced. Instead, the rule that applies to this case is as stated by the Supreme Court of Georgia when it granted certiorari to this Court in Bruscato: “In most circumstances, one may not profit from his own act of wrongdoing. Therefore, when one knowingly commits a wrongful act, he cannot use this act for personal gain.” O'Brien v. Bruscato, 289 Ga. 739, 742 (715 SE2d 120) (2011).

In Bruscato, this Court held that the guardian of a mentally ill patient with a history of violence, homicidal thoughts toward his parents, and auditory hallucinations that commanded him to kill people or to molest girls — could pursue on the patient’s behalf a medical malpractice claim against the patient’s psychiatrist. Bruscato, 307 Ga. App. at 452-453. The psychiatrist had discontinued some of the patient’s medications, and less then three months later the patient killed his mother. Bruscato, 307 Ga. App. at 453-454. In reversing the trial court’s grant of summary judgment in favor of the psychiatrist, this Court concluded that because the patient had not been convicted of murder, no court had found him mentally competent at the time of the crime, and the evidence did not establish, as a matter of law, that he was mentally competent when he killed his mother, a jury issue existed as to whether the patient had the requisite mental capacity to commit murder, and the patient was not a “ ‘wrongdoer’ whose status as such would be a bar to any of his claims.” Bruscato, 307 Ga. App. at 459, 462 (2).

This Court’s reference in Bruscato to a “public policy . . . that prohibits those who commit murder or voluntary manslaughter from profiting from the victim’s death,” regarded “the statutes the trial court and the dissent rely upon as embodying Georgia’s public policy of prohibiting wrongdoers from profiting from their crimes.” (Emphasis supplied.) Bruscato, 307 Ga. App. at 459. The Supreme Court of Georgia granted certiorari to “determine whether the Court of Appeals properly ruled that [the patient’s] claim for damages is not barred by Georgia public policy.” O'Brien, 289 Ga. at 740. In its decision, the Supreme Court said that this Court had correctly “examined” and “determined” the public policy issues before it, and that the Supreme Court was “generally adopting] the Court of Appeals’ analysis.” (Emphasis supplied.) O'Brien, 289 Ga. at 742. The Supreme Court then took the opportunity to enunciate the following rule:

In most circumstances, one may not profit from his own act of wrongdoing. Therefore, when one knowingly commits a wrongful act, he cannot use this act for personal gain. There may be situations, however, when an individual’s psychiatric disorder prevents him from exercising a reasonable degree of care to prevent himself from taking improper and illegal actions.

(Citations omitted.) Id. In reaching its conclusion, the Supreme Court did not adopt any rule from Bruscato, and given that the instant case does not involve either murder or voluntary manslaughter, the trial court applied the proper OBrien rule.

Furthermore, in applying the rule, the trial court properly granted summary judgment in favor of Normal Life on the negligence claim. In OBrien, the Supreme Court held that on the same grounds as was found by this Court in Bruscato, a jury issue existed as to whether the patient had the requisite mental capacity to commit murder. OBrien, 289 Ga. at 743. The Supreme Court thus concluded that “[a]s a result, at this moment in time, it cannot be said that, should [the patient’s] claim against [the psychiatrist] be successful, he might profit from knowingly committing a wrongful act,” and therefore, summaryjudgmentwasnot authorized by the evidence. Id. In the instant case, given that the damages Howell sought flowed from the criminal acts Tiegreen acknowledged by entry of his plea of guilty that he knowingly committed, the circumstances fall under the rule as enunciated by the Supreme Court, and Howell’s negligence claim is barred. Therefore, the trial court did not err in granting summary judgment in favor of Normal Life on Howell’s negligence claim and consequently on the punitive damages claim. See generally Trust Co. Bank v. Citizens & Southern Trust Co., 260 Ga. 124, 126 (1) (b) (390 SE2d 589) (1990) (“Punitive damages are not available in actions for breach of contract.”); Burlington Air Express v. Ga. Pacific Corp., 211 Ga. App. 113, 116 (5) (438 SE2d 97) (1993) (“[Pjunitive damages cannot be awarded for breach of contract.”); OCGA § 13-6-10.

We agree with the trial court’s grant of summary judgment in favor of Normal Life on Howell’s claim for attorney fees. Howell failed to adduce any evidence that Normal Life acted in bad faith, had been stubbornly litigious, or caused Howell unnecessary trouble and expense pursuant to OCGA § 13-6-11.

Case No. A16A0131

2. Normal Life contends that the trial court erred in denying its motion for summary judgment as to the claim for breach of contract. We agree.

As determined in Division 1, supra, the rule that applies to this case is that an individual may not profit from his/her own act of wrongdoing. O'Brien, 289 Ga. at 742. It appears as though the trial court erroneously failed to consider the OBrien rule with regard to the breach of contract claim. Given the facts of this case as set forth above, including that Tiegreen knew that his criminal conduct which resulted in his imprisonment was wrongful, and a jury found Tiegreen mentally competent to stand trial, we reverse the trial court’s denial of summary judgment in favor of Normal Life regarding the breach of contract claim. See generally Unigard Ins. Co. v. Zimmerman’s, Inc., 151 Ga. App. 394, 395 (1) (259 SE2d 652) (1979) (in subrogation agreement case, reaffirming principle that “a wrongdoer will not be permitted to profit from wrongdoing”).

Judgment affirmed in Case No. Al 6A0130. Judgment reversed in Case No. A16A0131.

Boggs, J., concurs. Barnes, P. J., concurs specially.

BARNES, Presiding Judge,

concurring specially.

Given the record before us, I agree with the majority that the plaintiff’s negligence and breach-of-contract claims fail as a matter of law under the wrongful-conduct rule, but I do not agree with all that is said in the majority’s opinion regarding the guilty plea entered by Christopher Tiegreen. I therefore concur only in the judgment, and the majority opinion may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

As the majority notes, under Georgia’s wrongful-conduct rule, “one may not profit from his own act of wrongdoing. Therefore, when one knowingly commits a wrongful act, he cannot use this act for personal gain.” O’Brien v. Bruscato, 289 Ga. 739, 742 (715 SE2d 120) (2011). The wrongful-conduct rule has been applied in both tort and breach-of-contract cases. See id.; Unigard Ins. Co. v. Zimmerman’s, Inc., 151 Ga. App. 394, 395-396 (1) (259 SE2d 652) (1979).

Notably, however, there is an exception to the wrongful-conduct rule in cases involving mentally ill patients who commit wrongful acts toward third parties while under the care or supervision of a hospital or mental health care provider. In that context, we have held:

[A] patient’s psychiatric disorder may prevent him from having the mental capacity to exercise control over his intentional behavior or, at least, from exercising a reasonable degree of care in order to prevent himself from harming others.... [T]he fact that a patient’s illegal act was volitional does not necessarily mean that it was a rational act for which the patient alone was responsible or which relieved . . . the hospital [or mental health care provider] of its duty to the patient.

(Citations omitted.) Bruscato v. O’Brien, 307 Ga. App. 452, 461-462 (2) (705 SE2d 275) (2010), aff’d, O’Brien v. Bruscato, 289 Ga. 739 (715 SE2d 120) (2011). See Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 776-777 (9) (403 SE2d 235) (1991); Swofford v. Cooper, 184 Ga. App. 50, 54 (4) (360 SE2d 624) (1987). Thus, the wrongful-conduct rule does not bar a patient or his representative’s tort or contractual claim against a hospital or mental health provider for breaching a duty to treat and supervise a patient who harms a third party, where there is evidence that the patient suffered from a neurological or psychological condition that prevented him from exercising control over his own behavior or from otherwise exercising a reasonable degree of care to avoid harming others. See id.

In moving for summary judgment in the present case, the defendants came forward with evidence that Tiegreen’s neurological condition caused by his traumatic brain injury did not prevent him from exercising control over his own behavior or from exercising a reasonable degree of care to avoid harming others. Specifically, the defendants pointed to evidence that Tiegreen pled guilty to several criminal offenses that he committed against third parties upon escaping from the supervision of the defendants.

A guilty plea is admissible in a civil case and constitutes prima facie evidence of the facts admitted in the plea. See OCGA § 24-8-803 (22); Hasty v. Spruill, 207 Ga. App. 485, 486 (428 SE2d 420) (1993). Hence, by pleading guilty in his criminal case, Tiegreen admitted to the existence of the facts supporting the elements of the crimes to which he pled, including that the crimes were committed with the requisite culpable mental capacity See generally Wharton v. Anderson, 270 Ga. 22, 24 (2) (504 SE2d 670) (1998) (“Aplea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.”).

But, contrary to the majority’s suggestion, we have long held that admissions made as part of a guilty plea “are not conclusive [in civil cases] and may, therefore, be rebutted to create a genuine issue of material fact for the jury’s determination.” (Emphasis supplied.) Hasty, 207 Ga. App. at 486. See Miller v. Crumbley, 249 Ga. App. 403, 405 (2) (548 SE2d 657) (2001); Peacock v. Strickland, 198 Ga. App. 406, 406-407 (1) (401 SE2d 601) (1991); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 761 (8) (242 SE2d 483) (1978). As we have explained:

Georgia does not generally allow the record in a criminal prosecution to act as a bar to a later civil action arising from the same transaction because the two actions are not between the same parties and because the rules as to the competency of witnesses and the weight of evidence required for a finding are different,. . . . Therefore, . . . neither res judicata nor collateral estoppel apply.

McGuire v. Witcher, 201 Ga. App. 685, 686 (411 SE2d 875) (1991).

Based on this precedent, if the party moving for summary judgment presents evidence that the nonmovant entered into a guilty plea admitting to certain facts relevant to the case, the burden then shifts to the nonmovant to produce evidence rebutting the admission contained in the guilty plea sufficient to create a genuine issue of material fact for trial. See Hasty, 207 Ga. App. at 486. Accordingly, once the defendants in this case came forward with evidence of Tiegreen’s guilty plea, the burden shifted to the plaintiff to produce rebuttal evidence reflecting that Tiegreen suffered from a mental condition that prevented him from exercising control over his own behavior or from otherwise exercising a reasonable degree of care to avoid harming others. See id. This, however, the plaintiff failed to do.

In her appellate brief, the plaintiff points to a neuropsychological evaluation of Tiegreen conducted by a Dr. Hugh Brown to show that Tiegreen had no control over his impulsive behavior as a result of his traumatic brain injury. But there are no deposition transcripts or affidavits from Dr. Brown in the record before us. And while Dr. Brown’s neuropsychological evaluation was marked as an exhibit during the plaintiff’s deposition, it was never properly authenticated and thus could not be considered on motion for summary judgment. See Maloof v. Metro. Atlanta Rapid Transit Auth., 330 Ga. App. 763, 765 (1) (769 SE2d 174) (2015) (“Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally”) (citation and punctuation omitted); Thomason v. FLA Card Svcs., 330 Ga. App. 603, 605 (768 SE2d 785) (2015) (unauthenticated exhibits were not competent proof for purposes of summary judgment). Moreover, the neuropsychological evaluation is not included in the appellate record and thus is not available for our review. The plaintiff therefore has failed to point to any competent evidence in the record reflecting that Tiegreen had a neurological or psychological condition that prevented him from exercising control over his behavior or from exercising a reasonable degree of care to avoid harming others.

Decided July 7, 2016

Weaver Law Firm, Michael L. Weaver, Sr., Daniel L. Parr, Sr., for appellants.

Hawkins, Parnell, Thackston & Young, Peter R. York, L. Kristin Brock, for appellees.

Given that Tiegreen’s guilty plea to the crimes stood unrebutted, the plaintiff’s tort and contract claims failed as a matter of law based on the wrongful-conduct rule. Consequently, while I do not agree with all of the majority’s legal analysis, I agree with the majority’s ultimate conclusion that the plaintiff could not succeed on her tort and contract claims.

       Keith Strong was also named as a defendant, but service was not perfected as to him.

       The trial court prepared a detailed order; and counsel for both parties prepared detailed and well written briefs. The order and briefs have greatly assisted this Court.

       As previously set forth, the public policy issues involved prohibiting those who commit murder or voluntary manslaughter from profiting from the victim’s death.

       Notably, although we did not see where Normal Life argued at the summary judgment hearing that the O’Brien rule applied specifically to the breach of contract claim, our revie w of the record revealed that Normal Life made such argument in its written motion.

       A special jury found Tiegreen mentally competent to stand trial in his criminal case, see Tiegreen v. State, 314 Ga. App. 860 (726 SE2d 468) (2012), but that finding does not have preclusive effect in the current civil case because the two proceedings are not between the same parties or their privies. See Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995) (per curiam) (preclusion doctrines of res judicata and collateral estoppel “require! ] the identity of the parties or their privies in both actions”).

        O’Brien, 289 Ga.739 does not require a different conclusion regarding the effect of a guilty plea. In that case, the patient whose wrongful conduct was at issue had not pled guilty to any crimes. Our Supreme Court in O’Brien thus did not address the circumstance where the plaintiff’s admissions as part of a guilty plea conflict with other evidence in the record (such as expert psychiatric testimony) regarding the plaintiff’s mental capacity. In that latter circumstance, our binding precedent reflects that the guilty plea should be treated only as prima facie evidence of the facts admitted in the plea that can be rebutted to create a genuine issue of material fact for trial, as indicated in the cases cited above.

       In certain civil proceedings relating to a decedent’s estate, “[a] final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive!.]” OCGA § 53-1-5 (d). That statute clearly does not apply here. Furthermore, OCGA § 53-1-5 (d) reflects that if the legislature wished to make criminal convictions and guilty pleas conclusive in civil proceedings more generally, it knew how to do so. “We must presume that its failure to do so was a matter of considered choice.” (Citation and punctuation omitted.) Inland Paperboard & Packaging v. Georgia Dept. of Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005).

       In the trial court, the defendants challenged the admissibility of the plaintiff’s evidence of Tiegreen’s lack of mental capacity.

       Because the plaintiff could not succeed on her substantive claims for negligence and breach of contract, her claims for punitive damages and attorney fees also failed as a matter of law. See DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008).


author: McMlLLIAN, Judge.

text:
    A16A0328.
    SNEED v. THE STATE.
    (788 SE2d 892)
   McMlLLIAN, Judge.

In this out-of-time appeal, Lamarkas Sneed appeals the denial of his motion for a new trial after a jury convicted him of aggravated sexual battery. On appeal, Sneed asserts that the trial court erred in admitting certain evidence, in denying his motion for new trial on the grounds of ineffectiveness of counsel, and in failing to charge the jury on the issue of consent. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence shows that at the time of the incident, the victim lived with her mother and her two younger brothers, and Sneed was temporarily staying with the family. Sneed and the victim’s mother had been involved in a romantic relationship, and Sneed is the father of the younger of the victim’s brothers.

On January 24, 2011, Sneed, the victim, her mother, and her brothers were all watching a movie in her mother’s bedroom. Everyone except the older of her two brothers was on the bed. Later, after the victim’s older brother left the room, the victim, her mother, and her younger brother fell asleep. The victim, who was 17 years old at the time, testified that she was awakened by Sneed touching her buttocks and that he then put his fingers in her vagina. The victim said that she was too scared to speak at that point, but she tried unsuccessfully to wake up her mother by tapping her on the arm. The victim then got up and left the room without saying anything and went to her own bedroom.

Once the victim was in her room she texted her older brother to come in and also called her grandmother. The victim asked her grandmother to come over and told her that Sneed had touched her. When the victim’s brother got to the victim’s room, the door was locked and she was “balled up crying behind the door.” The victim refused to tell her brother what happened until their grandmother got there, but after she arrived, the victim said that Sneed had touched her.

The grandmother testified that when she arrived Sneed answered the door, at which time she confronted him about touching her granddaughter. Sneed denied doing anything wrong. The victim’s mother heard the grandmother and Sneed talking and came upstairs, at which point the grandmother told the mother that Sneed was “messing with your daughter while you’re asleep.”

At his grandmother’s direction, the brother called 911. Officer T. Barnes arrived on the scene and detained Sneed. Officer Barnes proceeded into the house and spoke with the victim, whom he described as being “withdrawn” and “distraught.” The victim told Officer Barnes that everyone fell asleep watching a movie and that she woke up to Sneed “rubbing her vagina, her vaginal area, and then he placed his finger inside of her. She said she wanted to scream out, but she was afraid that she would not be believed by her mother.” The victim also told Officer Barnes that “she tried to stop him and he would not stop,” and that she attempted to remove Appellant’s hands from her pants. Officer Barnes testified that the statements given by the brother and grandmother were consistent with what the victim had told him.

Officer Barnes contacted Detective Angela Finley of the DeKalb County Police Department’s Special Victims Unit. Finley met the victim and Officer Barnes at police headquarters, where the victim gave two statements to the detective, one written and one verbal. The victim told Finley that her mother’s boyfriend “had inappropriately touched her” and that “he had used his finger to rub on her vagina.”

The victim also testified that when she was around seven or eight years old, Sneed would come into her room while she was asleep and pull the covers off of her. She told her mother about this, but her mother questioned whether it had really happened. The victim’s grandmother testified that the victim recently told her that the victim had reported to her mother when she was around eight that Sneed had come into her room and lifted the covers off her. Officer Barnes stated that at the scene the victim said to him that an incident like this had happened before, but her mother did not believe her, and Finley testified that the victim told her about two other incidents where Sneed touched her inappropriately when she was five or six years old, but her mother did not believe her. The mother also testified that the victim told her that Sneed touched her on “the behind” when she was seven or eight, but the mother did not believe at the time that the touch was of a sexual nature.

On the night of the incident in question, Sneed told the mother that “he didn’t touch” the victim. However, a month or two later, the mother received a letter in the mail from Sneed, in which he admitted to sticking his finger in the victim’s vaginal area. In the letter, Sneed claimed that the victim initiated the contact by rubbing her feet on his penis. Sneed claimed that the victim did not try to stop him from touching her vagina, and, in fact, she moved to make it easier for Sneed to take her pants off and that the victim was not wearing any panties. The mother testified that such actions were uncharacteristic of her daughter.

On September 29, 2011, Sneed was convicted of aggravated sexual battery, and on April 8, 2015, the trial court denied his motion for new trial. Sneed filed his notice of appeal 35 days later, on May 13, 2015. This Court dismissed the appeal because the untimely notice was insufficient to confer jurisdiction for appellate review. However, Sneed subsequently moved for an out-of-time appeal, and the trial court granted the motion. This appeal followed.

1. In his first two enumerations of error, Sneed argues that the trial court erred in admitting testimony and evidence of pretrial statements made by several of the State’s witnesses. For this Court to reverse a trial court’s decision to admit evidence, the objecting party must show “error triangulation,” that is, “(1) error, (2) contemporaneous objection, and (3) harm as a result of the error.” (Citation and punctuation omitted.) Scoggins v. State, 306 Ga. App. 760, 762 (1) (703 SE2d 356) (2010). Because the record demonstrates that Sneed failed to properly object to the admission of the cited evidence, we find no error.

(a) Sneed argues that the trial court erred in admitting testimony from the victim’s brother, grandmother, mother, and Officer Barnes regarding statements the victim made about the events on the night in question and the earlier incidents involving Sneed when the victim was younger. Sneed asserts that no foundation was laid for the admission of either prior consistent or inconsistent statements by the victim and that this evidence improperly bolstered the victim’s testimony However, Sneed failed to raise any contemporaneous objection to the cited testimony at trial and thus failed to preserve these arguments for appeal. See Hatcher v. State, 286 Ga. 491, 493 (2) (690 SE2d 174) (2010), overruled on other grounds by State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011) (argument that State failed to lay foundation for prior inconsistent statement waived where defendant raised no objection at trial); Moore v. State, 246 Ga. App. 163, 166 (5) (539 SE2d 851) (2000) (appellate court will not address issue of whether cited testimony improperly bolstered other witness testimony where this argument was not presented to or ruled upon by the trial court).

(b) Sneed also asserts that the trial court erred in allowing into evidence written statements given by the victim’s brother and grandmother at the police station on the night of the incident and in allowing those witnesses to read their statements to the jury Sneed’s counsel objected to the introduction of both statements on the ground of hearsay and added, in objecting to the brother’s statement, that she “[had not] heard anything that’s inconsistent.” The trial court overruled the objections. Although the stated basis for Sneed’s objections was hearsay (and possibly the failure to provide a foundation for admission of the brother’s written statement as a prior inconsistent statement), he argues on appeal the trial court erred in admitting the written statements as prior consistent statements, which improperly bolstered the witnesses’ credibility. Sneed’s failure to object on the grounds urged on appeal waives the issues for appellate review. “To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” (Citation and punctuation omitted.) Scoggins, 306 Ga. App. at 762 (1). See also Wallace v. State, 302 Ga. App. 410, 411 (1) (691 SE2d 557) (2010) (“Failure to object to evidence on a certain ground in the trial court waives consideration of that ground on appeal.”).

2. Sneed further asserts that the trial court erred in admitting testimony from Finley commenting on the victim’s credibility and testimony from the victim’s mother commenting on both the victim’s and Sneed’s credibility Finley testified that she interviewed the victim twice. In the second interview, she sought to clarify the victim’s first statement and thus the detective was “a little bit harder” on her and “interrogated her a little bit more.” The detective opined, “I think she was just more credible the second time when I interviewed her” because she was “more teary-eyed,” never deviated from her original statement, and gave more detail about the earlier incidents. Additionally, the mother agreed with the prosecutor during direct examination that as a mother she had the ability to get to the truth when she talked to her child one-on-one, and she stated, “I knew from the way my daughter was sounding and the look on her face and the way she was acting, I knew that she was telling me the truth.” In addition, the mother testified that when she received Sneed’s letter asserting that the victim had provoked or consented to his touching her, she chose not to show it to her daughter because she knew that the “lies he put in there” would upset her. (All the evidence recited in this paragraph will be referred to collectively herein as the “Credibility Evidence.”)

However, because Sneed failed to object to the admission of this Credibility Evidence, he has waived his right to complain on appeal, and thus there is no basis for reversal on this ground. Kinder v. State, 284 Ga. 148, 151-52 (4) (663 SE2d 711) (2008). See also Andrews v. State, 293 Ga. 701, 704 (3) (749 SE2d 734) (2013); Bailey v. State, 291 Ga. 144, 147-48 (2) (728 SE2d 214) (2012).

3. Sneed next argues that the trial court erred in denying his motion for new trial on the ground that his trial counsel was ineffective by failing to adequately object to the admission of testimony he contends was inadmissible. “[Tjhis Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by accepting the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Brewer v. State, 328 Ga. App. 801, 801-02 (762 SE2d 622) (2014).

In order to assert a claim of ineffective assistance of counsel, the two-prong test set forth in Strickland v. Washington must be satisfied. 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Under that test, Sneed must prove “that trial counsel’s performance was deficient and but for the deficiency a reasonable probability existed that the result of the trial would have been different,.” (Citation omitted.) Reynolds v. State, 269 Ga. App. 268, 271 (2) (603 SE2d 779) (2004). If the appellant fails to meet his or her burden on either prong of the Strickland test, the reviewing court does not need to assess the other prong. Strickland, 466 U.S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

As to the first prong of the Strickland test, “[t]o show that his lawyer’s performance was deficient, Appellant must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms.” Davis v. State, 299 Ga. 180, 182-83 (2) (787 SE2d 221) (2016); see Strickland, 466 U.S. at 687-90. “A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” (Citation omitted.) Bryant v. State, 298 Ga. 703, 707 (4) (784 SE2d 412) (2016). To overcome this presumption, Sneed must show that no “reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” Humphrey v. Nance, 293 Ga. 189, 192 (II) (A) (1) (744 SE2d 706) (2013). As a general rule, reasonable trial strategy and tactics do not amount to ineffective assistance of counsel. Lee v. State, 316 Ga. App. 227, 230 (1) (a) (728 SE2d 847) (2012). “[Ajbsent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation and punctuation omitted.) Id.

As to the prejudice prong of the Strickland test, Sneed must also show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Moreover, “[i]t is not enough to show that the error has some conceivable effect on the outcome of the proceeding.” (Citation and punctuation omitted.) Harrington v. Richter, 562 U.S. 86, 104 (IV) (131 SCt 770, 178 LE2d 624) (2011). An appellate court will not reverse a decision on the basis of ineffective assistance of counsel unless trial counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.” Glass v. State, 255 Ga. App. 390, 401 (10) (565 SE2d 500) (2002).

(a) Sneed’s trial counsel testified at the hearing on the motion for new trial that she did not object to the testimony of the victim’s brother, mother, grandmother, and Officer Barnes regarding what the victim said about the incident on the night it occurred because she believed those statements were part of the victim’s immediate outcry following the incident and were thus admissible as part of the res gestae. The written statements by the victim’s brother and grandmother, which were read into evidence, also addressed only the events surrounding the incident that night. The brother’s written statement related the sequence of events involving the text from his sister, the grandmother’s arrival at the house, and his mother then waking up. With regard to his sister’s statements, he reported only that “my sister had told me that my brother’s dad had touched her and that my grandma was on her way.” The grandmother’s statement provided that the victim had called her crying to say that Sneed had touched her. When the grandmother asked where the mother was, the victim said that she was asleep. The grandmother told the victim to wake the mother up. The victim kept crying and asked her grandmother to come get her. When the grandmother arrived, she asked the victim if Sneed had put his penis in her. The victim said, “no, he just put his hands inside my pants.” Although trial counsel raised a general hearsay objection to the written statements given to police by the brother and grandmother, she did not object on the ground that the prior consistent statements improperly bolstered their testimony, and she could not recall a strategic reason for not objecting on this basis.

Pretermitting whether trial counsel’s performance could be considered deficient in not objecting to evidence repeating the victim’s statements about Sneed’s actions that night, we find that he has failed to establish that he was prejudiced by this evidence. For the most part, the cited evidence was cumulative as each witness testified, and the written statements indicated that the victim said that Sneed had touched her vaginal area. Sneed also admitted in his letter to the victim’s mother that he had placed his fingers in the victim’s vagina, and he did not contest this fact at trial. Accordingly, Sneed has failed to establish that he was prejudiced by his trial counsel’s failure to object to this evidence. Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013) (no prejudice from counsel’s failure to object to certain hearsay testimony that was primarily cumulative of other testimony); Johnson v. State, 328 Ga. App. 702, 712 (5) (b) (760 SE2d 682) (2014) (counsel not ineffective in failing to object to prior consistent statement bolstering other testimony where defendant failed to establish prejudice).

We separately address testimony by Officer Barnes that the victim told him she tried to stop Sneed and to move his hands out of her pants. Sneed’s sole defense at trial was that the victim consented to, or even participated in, their interaction. Although Officer Barnes’s testimony countered Sneed’s defense, it did not constitute either a prior consistent statement by the victim or improper bolstering because the victim did not testify at trial that she had taken those actions. She only testified that she did not want Sneed to touch her. Moreover, the statement was not hearsay. At the time of Sneed’s trial, the legal concept of res gestae as an exception to the hearsay rule was codified under former OCGA § 24-3-3 of Georgia’s prior Evidence Code. The statute provided that “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” Thus, Officer Barnes’s testimony regarding what the victim told him she did during the incident was admissible as part of the res gestae. See Tucker v. State, 243 Ga. 683, 684 (3) (256 SE2d 365) (1979) (declarations were made so shortly after the commission of the crime as to constitute part of the res gestae); Powell v. State, 272 Ga. App. 628, 630 (2) (a) (612 SE2d 916) (2005) (testimony from the victim’s outcry witness as her statements made immediately after the rape constituted admissible res gestae evidence). Accordingly, Sneed has failed to establish that his trial counsel was deficient in failing to object to this testimony See Wesley v. State, 286 Ga. 355, 357 (3) (e) (689 SE2d 280) (2010) (trial counsel not ineffective for failing to make a meritless objection).

We find, therefore, that Sneed has failed to establish ineffective assistance of counsel with regard to the cited evidence repeating the victim’s statements about the incident.

(b) Sneed’s trial counsel did not recall a strategic reason for failing to object to the testimony from witnesses other than the victim concerning the prior difficulties between Sneed and the victim.

It is well settled that

[pjroof of prior difficulties between the defendant and victim — including prior acts of molestation — is admissible without notice or a hearing ... to show the defendant’s motive, intent, and bent of mind in committing the act against the victim which resulted in the charges for which he was being prosecuted.

(Citation omitted.) Madison v. State, 329 Ga. App. 856, 866 (3) (766 SE2d 206) (2014). Additionally, to the extent that the testimony shows that the victim felt her mother did not believe her description of the incidents with Sneed when she was younger, the evidence was relevant to explain her failure to cry out to her mother at the time of the incident in this case or to report it to her mother in the first instance.

Although Sneed’s trial counsel did not object to the other witnesses’ testifying about the victim’s out-of-court statements regarding these prior difficulties, the record demonstrates that she chose instead to cross-examine the witnesses about this evidence. This Court has previously found that as part of a reasonable trial strategy, trial counsel may choose not to object to such testimony but may opt instead to subject it to cross-examination. Barmore v. State, 323 Ga. App. 377, 383 (3) (746 SE2d 289) (2013); Damerow v. State, 310 Ga. App. 530, 537-38 (4) (a) (ii) (714 SE2d 82) (2011); Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008).

Accordingly, we find that Sneed has failed to establish that her approach to the prior difficulties testimony fell below an objective standard of reasonable representation in addressing this evidence. Thornton v. State, 301 Ga. App. 784, 792 (4) (689 SE2d 361) (2009) (“To demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness ... [as] examined from counsel’s perspective at the time of trial and under the circumstances of the case.”) (citation omitted).

Because the failure to establish either prong of the Strickland testis lethal to a claim of ineffective assistance of counsel, Fuller, 277 Ga. at 507, we find that Sneed has failed to prove his claim of ineffective assistance of counsel on this ground.

(c) Although, as discussed in Division 2 above, Sneed appeals the admission of the Credibility Evidence, he makes no argument in his appellate brief concerning this evidence in the context of his claim of ineffective assistance of counsel.

Sneed begins his ineffective assistance argument by noting that “[regarding all of the above discussed testimony [his] trial counsel either did not object at all, or in the case of the admission of the written statements objected only on hearsay grounds,” even though he asserts the evidence was inadmissible. However, he confines his argument to evidence that he asserts improperly repeated the victim’s testimony or that improperly repeated the testimony of other witnesses. Sneed contends that the “case rested entirely on [the victim’s] credibility” and that “[t]hrough the erroneously admitted statements, [the victim’s] credibility was repeatedly bolstered by other witnesses repeating her allegations.” He further asserts that “[t]he credibility of those witnesses was then bolstered by the admission of their own prior statements, none of which were proper testimony for the jury.” He makes no mention of the testimony from Finley and the mother addressing the victim’s credibility or the mother’s testimony attacking his own credibility. Under these circumstances, we find that Sneed has abandoned for appeal any claim of ineffective assistance of counsel based on his trial counsel’s failure to object to the Credibility Evidence.

Therefore, we find no basis for reversal on the ground of ineffective assistance of counsel.

4. Sneed further argues that the trial court erred by not giving his requested jury charges on the issue of consent, which was his sole defense. “Atrial court does not abuse its discretion in refusing to give a jury charge in the exact language requested when the charge given substantially covers the correct principles of law.” Gamble v. State, 291 Ga. 581, 582 (2) (731 SE2d 758) (2012). See also Stewart v. State, 286 Ga. 669, 673 (6) (690 SE2d 811) (2010) (“refusal to give a jury charge in the exact language requested by a defendant is not error if the charge given by the trial court substantially covers the applicable principles of law”) (citation and punctuation omitted); Watkins v. State, 336 Ga. App. 145, 149 (3) (b) (784 SE2d 11) (2016) (same).

Decided July 7, 2016.

Teresa L. Smith, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistan t District Attorney, for appellee.

Here, we find no error on the part of the trial court in refusing to give the jury charges requested by Sneed. In its instructions to the jury, the trial court read the statutory definition of aggravated sexual battery, which says “[a] person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ ... of another person without the consent of that person.” (Emphasis supplied.) OCGA § 16-6-22.2 (b). The trial court also instructed the jury that the State was required to prove, beyond a reasonable doubt, each and every element of the charge in the indictment, which would include lack of consent. The court further instructed the jury twice that, should they find that the State failed to meet its burden, they were required to acquit Sneed. Because the trial court’s jury charges, when considered as a whole and in conjunction with each other, substantially covered the principles of law requested by Sneed concerning the issue of consent, we find no basis for reversal on this ground. Campbell v. State, 292 Ga. 766, 769 (3) (740 SE2d 115) (2013) (“It is a fundamental rule that jury instructions must be read and considered as a whole in determining whether the charge contained error.”) (citation and punctuation omitted); White v. State, 291 Ga.App. 249, 251 (661 SE2d 865) (2008) (“A jury charge must be considered as a whole and the parts read in conjunction with each other.”) (citation and punctuation omitted). Accordingly, we find no error.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The trial in this case took place in September 2011, prior to the adoption of Georgia’s new Evidence Code, which went into effect on January 1, 2013. See Ga. L. 2011, pp. 99, 214, § 101.