text:
    A14A1639.
    SMITH v. THE STATE.
    (771 SE2d 8)
   DOYLE, Presiding Judge.

Following his conviction for possession of methamphetamine and marijuana, Richard Lamar Smith appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the verdict, and (2) the trial court erred by allowing the State to impeach him with evidence of a prior felony without the proper legal showing. Discerning no error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence.” So viewed, the evidence shows that a team of police officers arrived at a mobile home complex to locate a woman who had given a false name in a drug investigation the prior evening. The officers arrived at the address and encountered Levy Lavengood standing in the driveway. The officers explained to Lavengood why they were there, and Lavengood gave them permission to search his residence for the woman and for illegal drugs.

The team entered the mobile home, and an officer entered the first bedroom where he encountered Smith sitting clothed on a corner of the bed and a young woman awake in the bed. The officer noticed that Smith’s legs were spread apart, and the bed skirt had been pushed up and tucked in between the mattress and box spring directly underneath Smith. The officer ascertained that the woman was clothed and asked the two to leave the room, which they did. The officer then lifted up the mattress “to make sure there wasn’t a loaded weapon in between there that might have been shoved by Mr. Smith.” Upon doing so, the officer discovered a small clear plastic bag containing suspected marijuana and a breath mint tin containing suspected methamphetamine. Smith was placed under arrest and searched, revealing a set of digital scales in his pocket. The suspected contraband was later tested and confirmed to be marijuana and methamphetamine. There was “possible residue” of drugs on the scales, but that substance was not tested.

Smith was indicted for possession of methamphetamine (felony) and possession of marijuana (misdemeanor). Following a jury trial, he was convicted, and his motion for new trial was denied. Smith now appeals.

1. Smith contends that the evidence was insufficient to support the guilty verdict. Specifically, he argues that there is no evidence that he actually possessed the drugs, and the State failed to show that he constructively possessed the drugs. We disagree.

This Court determines the issue of evidentiary sufficiency under the standard of review set out in Jackson v. Virginia.[] The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.
A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it .... A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden. And evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. [Finally, w]hen the State’s constructive possession case is based wholly on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.

Here, there is uncontroverted evidence that the contraband was found in Smith’s immediate presence, stuffed under the mattress directly underneath where he sat, with the bed skirt messily pushed up as though it was done in a hurry. Upon being handcuffed, Smith spontaneously denied that he had any drugs on his person despite not yet being searched. Smith testified at trial that the woman in the bed was pregnant at the time, and she did not use drugs. Further, Smith possessed a pocket-sized set of digital scales with something that looked like drug residue on them at the time of his arrest. Although Smith testified that the digital scales were for the purpose of weighing scrap jewelry he occasionally sold to metal dealers, it was for the jury to decide whether this was a reasonable hypothesis of innocence. “A jury could infer that [Smith] was lying and that his lies evidenced guilty knowledge. While the evidence here is circumstantial, it need not exclude every conceivable inference or hypothesis, but merely those that are reasonable.” Based on the record before us — including Smith’s statements, the location of the drugs and their apparently hurried concealment, and Smith’s possession of the digital scales — we conclude that the evidence sufficed to support the jury’s finding that Smith possessed the drugs found under the mattress.

2. During trial, before Smith testified, the trial court held a hearing on the admissibility of a prior guilty plea to burglary in March 2004, which was fewer than ten years prior to the October 2013 trial. The trial court admitted evidence of the guilty plea for general impeachment purposes, and Smith now argues that the trial court erred by failing to make the required findings.

OCGA § 24-6-609 (a) (l) provides, in relevant part:

For the purpose of attacking the character for truthfulness of a witness . . . evidence that an accused [person who testifies] has been convicted of [a felony] shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused[.]

As this Court has noted:

The introduction of evidence of a prior felony conviction is intended to afford the jury a basis to infer that the witness’[s] character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness.

Smith relies on cases holding that “a trial court must make an on-the-record finding that the probative value of admitting a prior conviction . . . outweighs its prejudicial effect.”

This analysis includes [but is not limited to] the following factors: (1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

Decided March 19, 2015.

Cynthia W. Harrison, for appellant.

These factors were adopted under Georgia’s old Evidence Code from federal cases applying Federal Rule 609 (b) which applies to convictions more than ten years old.. Pretermitting their applicability in this case, where Georgia’s new rules of evidence apply and the conviction was not more than ten years old, we note that a trial court was not required to “list the specific factors it considered in ruling” in the context of a prior conviction that is fewer than ten years old. Nevertheless, the trial court did list the factors it considered, notwithstanding Smith’s argument to the contrary. The record shows that the court explicitly considered the fact that Smith’s credibility would be a “substantial factor” in the case; the court considered the probative value of the conviction, concluding that “a prior felony conviction affects someone’s credibility as a general matter”; the court considered the nature of the crime (burglary) as making it less likely to serve as improper propensity evidence of a drug possession offense; and the trial court considered the age of the prior conviction as also mitigating an improper propensity inference.

In light of the trial court’s transparent and reasoned analysis, Smith’s argument that the court failed to engage in an appropriate balancing is without merit. We discern no abuse of discretion in the admission of Smith’s prior felony conviction for the purpose of generally attacking Smith’s credibility.

Judgment affirmed.

Miller and Dillard, JJ., concur.

LeeDarragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

       OCGA § 16-13-30 (a).

       OCGA §§ 16-13-30 (j); 16-13-2 (b) (misdemeanor possession of marijuana).

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

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

       (Citations and punctuation omitted; emphasis in original and supplied.) Copeland v. State, 327 Ga. App. 520, 522-523 (1) (759 SE2d 593) (2014). See also OCGA § 24-14-6.

       See Sabb v. State, 317 Ga. App. 537, 540 (731 SE2d 399) (2012) (“questions of reasonableness are generally decided by the jury. As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact.”).

       (Citation omitted.) Vega v. State, 321 Ga. App. 682, 684 (742 SE2d 499) 2013).

       See Jackson v. State, 281 Ga. App. 83, 85 (1) (635 SE2d 372) (2006) (“It is well established that where drugs are found in the immediate presence of a defendant, the jury is authorized to find that the defendant is in constructive possession of the drugs.”); Washington v. State, 251 Ga. App. 206, 208 (1) (553 SE2d 855) (2001) (“It is true that spatial proximity alone, or mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. But where drugs are found in the immediate presence of the defendant, the jury is authorized to find they are in the constructive possession of the accused.”); Widener v. State, 242 Ga. App. 438 (529 SE2d 899) (2000) (same); Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727) (1991) (same).

       Because the conviction at issue was fewer than ten years old, the more stringent “substantially outweighs” standard in OCGA § 24-6-609 (b) does not apply.

       This trial occurred in October 2013, so Georgia’s new Evidence Code applied. See Ga. L. 2011, pp. 99, 214, § 101. The new Code carried forward “substantially all of former OCGA § 24-9-84.1,” Walker v. State, 296 Ga. 161, 171, n. 17 (766 SE2d 28) (2014), but it changed some of the standards.

       (Punctuation omitted.) Douglas v. State, 327 Ga. App. 792, 798 (2) (b) (i) (761 SE2d 180) (2014) (decided under former Evidence Code).

        Clay v. State, 290 Ga. 822, 836 (3) (B) (725 SE2d 260) (2012) (decided under the former Evidence Code, addressing convictions more than ten years old).

       Id. at 835-836 (3) (B).

       See Clay, 290 Ga. at 835 (3) (B), citing United States v. Pritchard, 973 F2d 905, 908-909 (II) (11th Cir. 1992) (Federal Rule 609 (b) analysis).

       See Clay, 290 Ga. at 836-837 (3) (B). Compare OCGA § 24-6-609 (a) (1) (conviction fewer than ten years old) with subsection (b) (conviction more than ten years old).

       See Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (evidentiary rulings reviewed for abuse of discretion). See also Pritchard, 973 F2d at 908 (II) (applying Federal Rule of Evidence 609 (b) and finding no abuse of discretion in the admission of a burglary conviction — more than ten years old — for general impeachment purposes after weighing the five factors).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A1655.
    FLOYD v. GIBSON.
    (771 SE2d 12)
   DOYLE, Presiding Judge.

Shannon Lee Floyd (“the father”) appeals the superior court’s denial of his motion for new trial following the entry of a final order awarding custody of his children to Sherry Anne Gibson, the children’s maternal grandmother (“the grandmother”). Floyd argues that the trial court applied the incorrect standard and that the evidence did not support the court’s custody determination. For the reasons that follow, we vacate the judgment and remand the case for reconsideration.

The record shows that the father and mother, who never married, have three minor children. In May 2013, the Hart County Department of Family and Children Services (“DFCS”) removed the children from the custody of their mother and placed them with the grandmother following the mother’s drug overdose. On May 14, 2013, the grandmother filed the instant petition for custody of the children. On July 12, 2013, the father, who had not legitimated the children, answered and filed a counterclaim for custody. On July 17, 2013, following a hearing, the trial court awarded temporary custody to the grandmother. On September 17, 2013, the court entered an order legitimating the children. Following a custody hearing and briefing by the parties, the trial court awarded custody to the grandmother on November 5, 2013. The father filed a motion for new trial, which was denied, and this appeal followed.

1. The father argues that the trial court failed to apply the proper standard in determining custody.

In Georgia,

a parent has a right of custody to h[is] child[ren] in preference to a third party unless there is clear and convincing evidence that the parent is unfit. The focus of such a determination of unfitness must be the parent’s ability to provide for the child [ren] in a manner sufficient to preclude the need for an entity of the government to intervene and separate the children] from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the children] might have better financial, educational^] or moral advantages elsewhere, that is, the parent’s ability to raise h[is] children] is not to be compared to the fitness of a third person.

OCGA § 19-7-1 (b.l), which governs custodial disputes between a parent and certain third-party relatives, establishes “a rebuttable presumption that it is in the best interest of the . . . children for custody to be awarded to the . . . parents of such . . . children].” In Clark v. Wade a plurality decision, the Supreme Court of Georgia concluded that there are three presumptions implicit in the statute: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her children], and (3) the child[ren]’s best interest is to be in the custody of a parent.”

Under OCGA § 19-7-1 (b.l), a parent may lose custody of his children to certain relatives only

if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the ... children and will best promote their welfare and happiness.

In Clark, the Supreme Court

interpreted] the “best-interest-of-the-child” standard in OCGA § 19-7-1 (b.l) as requiring the third party to show that parental custody would harm the child[ren] to rebut the statutory presumption in favor of the parent. Once this presumption is overcome, the third party must show that an award of custody to him or her will best promote the child[ren]’s health, welfare, and happiness.

The Court further held, however, that “[b]y harm, we mean either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantages.” The Clark Court also established four factors that trial courts should apply in considering the issues of custody and harm:

(1) who are the past and present caretakers of the children]; (2) with whom ha[ve] the children] formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the children] over time; (4) [do] the children] have unique medical or psychological needs that one party is better able to meet.

In the final order in the instant case, the trial court stated that it applied the following standard: “For [the grandmother] to be awarded custody, she must show by clear and convincing evidence that harm would result to the children if they live with their father... and that the best interests of the children are realized by living with [the grandmother].” The order contained the trial court’s factual findings regarding “the failings of the [p] arents since the births of the children” and the grandmother’s ability to properly care for the children, and then concluded that “[the grandmother] shall be and is declared to be the physical and legal custodian of [the children].”

Although implicit in the trial court’s order — based upon its ruling and the recitation of the standard — is a finding that the children would suffer harm in the custody of the father, it is not apparent whether the trial court made the requisite determination that the children would suffer “either physical harm or significant, long-term emotional harm” as required by Clark. Similarly, it is also unclear whether the trial court considered the four factors set forth in Clark with regard to custody determinations in cases in which certain third-party relatives seek custody from parents. Accordingly, we vacate the trial court’s judgment and remand the case for reconsideration consistent with this opinion.

Decided March 19, 2015.

Judy D. Jarecki-Black, Alston & Bird, Matthew W. Howell, for appellant.

Margaret N. Dyal, for appellee.

2. In light of our holding in Division 1, we need not address the father’s remaining enumerations.

Judgment vacated and case remanded.

Dillard, J., concurs. Miller, J., concurs in judgment only.

       The mother did not seek custody of the children, and she testified at the final hearing that she did not believe that the children should live with her.

       (Citation omitted.) Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011), citing Wade v. Wade, 272 Ga. 526, 527 (1) (531 SE2d 103) (2000).

       273 Ga. 587 (544 SE2d 99) (2001).

       Id. at 593 (II).

       Id. at 598 (IV).

       (Emphasis supplied.) Id.

       (Footnotes omitted.) Id. at 598-599 (IV).

       Among other factual findings, the trial court concluded that the father refused to admit his drug addiction or to seek help for it, sold drugs in the presence of the children, was violent to the mother in the presence of the children, and refused to communicate with the grandmother regarding the children or visitation.

       The trial court entered a subsequent order, which established a parenting plan providing a visitation schedule for the father.

       Id. at 598 (IV). Although there was no factual finding of physical harm to the children, the trial court noted that the father’s physical violence against the mother caused the children “emotional harm,” which “acts alone justify awarding custody to [the grandmother].”

       See id. at 598-599 (IV).

       See Lopez v. Olson, 314 Ga. App. 533, 541-542 (3) (724 SE2d 837) (2012); Galtieri v. O’Dell, 295 Ga. App. 797, 798-799 (673 SE2d 300) (2009) (vacating order awarding custody to the grandmother and remanding case because “[t]he record does not contain a transcript of the evidentiary hearing, and the trial court’s order failed to make any factual findings that [the father] was unfit as a parent or that the child may suffer physical or long-term emotional harm in the custody of her father”); Burke v. King, 254 Ga. App. 351, 354 (562 SE2d 271) (2002) (vacating order awarding custody to the child’s aunt and remanding case because of “the inconsistency between the two [custody] orders, the absence of any finding of [the father’s] parental unfitness, and the absence of a finding supported by specific facts that establish by clear and convincing evidence that [the child] will suffer physical harm or significant, long-term emotional harm”).


author: MCFADDEN, Judge.

text:
    A14A1679.
    LEAVELL v. THE STATE.
    (771 SE2d 48)
   MCFADDEN, Judge.

After a jury trial, Shannon Leavell was convicted of driving under the influence of a drug to the extent it made it less safe for her to drive (OCGA § 40-6-391 (a) (2)) and failure to maintain lane (OCGA § 40-6-48). She argues on appeal that the trial court erred in denying her request for transcripts, free of cost, of her trial and a hearing on her motion to suppress; in denying her motion to suppress; and in giving a certain jury instruction. Because we cannot discern from the record whether or not the trial court found Leavell to be indigent —• a finding dispositive of her request for cost-free transcripts — we vacate the trial court’s denial of that request and remand the case for the trial court to make a finding on her indigence and to enter a ruling consistent therewith.

On appeal in a criminal case, an indigent defendant

is entitled as a matter of right to a free copy of the transcript of trial court proceedings in which he has been a party. . . . The right to a free transcript arises regardless of whether the indigent defendant was represented by retained counsel at the time of the trial court proceeding for which the transcript is sought.

Mitchell v. State, 280 Ga. 802 (1) (633 SE2d 539) (2006) (citations and punctuation omitted). Whether a defendant is indigent is a matter for the trial court’s discretion. See Thomas v. State, 297 Ga. App. 416, 420 (3) (677 SE2d 433) (2009).

From the record, however, it is unclear whether or not the trial court found Leavell to be indigent. The trial court did not make an express finding regarding indigency in his order. While he was not required to do so, see Harris v. State, 170 Ga. App. 726 (318 SE2d 315) (1984), the order is worded in a way that could support either an inference that the trial court found Leavell to be indigent or an inference that he did not find her to be indigent. On the one hand, the trial court finds in the order “that the payment of certain Appellate cost[s] could work a financial hardship on [Leavell]” and waives the requirement that she pay filing or record costs. Elsewhere in the order, however, the trial court “den[ies Leavell] leave to proceed in the forma pauperis as to the transcript cost” and instead imposes personal responsibility for any transcript costs upon Leavell’s pro bono counsel. See Uniform Superior Court Rule 41.3 (“Except where leave to proceed in forma pauperis has been granted, an attorney who files a motion for new trial, or a notice of appeal which specifies that the transcript of evidence or hearing shall be included in the record, shall be personally responsible for compensating the court reporter for the cost of transcription.”). When asked at a hearing on the matter to make an explicit finding on the issue of indigency, the trial court did not do so. (The record contains a transcript of this hearing, apparently paid for by Leavell’s counsel.)

Based on this record, we cannot determine whether or not the trial court found Leavell to be indigent and, consequently, whether the trial court erred in denying Leavell cost-free transcripts. Moreover, without the transcripts we cannot determine the merits of Leavell’s other claims of error. We therefore vacate the trial court’s order denying Leavell’s motion seeking the transcripts, and we remand the case for the trial court to make a finding on the issue of indigency and to enter a new order on Leavell’s motion in accordance with that finding.

Should the trial court rule that [Leavell] is an indigent entitled to a free transcript, [Leavell] shall have [30] days from the date of receipt of the transcript to refile [her] notice of appeal, and upon the filing of same, the case with the complete record and transcript may be transmitted to this [c]ourt for redocketing.

Decided March 19, 2015.

Herbert P. Schlanger, for appellant.

Sandra N. Wisenbáker, Solicitor-General, Natalie Ashman, Assistant Solicitor-General, for appellee.

Coleman v. State, 293 Ga. App. 251, 253 (1) (666 SE2d 620) (2008). See also Mitchell, 280 Ga. at 802 (2). Should the trial court rule that Leavell is not an indigent, she shall have 30 days from the date of that ruling to refile her notice of appeal.

Judgment vacated and case remanded with direction.

Andrews, P. J., and Ray, J., concur.


author: McFADDEN, Judge.

text:
    A14A1703, A14A1704.
    GRANT v. THE PHOENIX ON PEACHTREE CONDOMINIUM ASSOCIATION, INC. et al.; and vice versa.
    (771 SE2d 15)
   McFADDEN, Judge.

The Phoenix on Peachtree Condominium Association, Inc. (“the association”), filed a complaint against Deon Grant, claiming that he had violated condominium rules by installing reflective tinting to the windows in his unit. Grant answered the complaint and filed a six-count counterclaim against the association and its president, Steve Marshall. Counts 1 and 2 of the counterclaim alleged breach of association bylaws; Count 3 alleged breach of fiduciary duty; Count 4 alleged violations of the Georgia Fair Housing Act; Count 5 sought punitive damages; and Count 6 sought attorney fees. The association and Marshall moved for summary judgment on all counts of the counterclaim. The trial court granted summary judgment to the association and Marshall as to Count 4 of the counterclaim, but denied summary judgment as to all other counts.

In Case No. A14A1703, Grant appeals from the grant of summary judgment as to Count 4 of his counterclaim. In Case No. A14A1704, the association and Marshall cross-appeal, challenging the denial of summary judgment on the remaining counts of the counterclaim. Having reviewed the evidence in the light most favorable to non-movant Grant, we find no evidence to support Appellant’s claim of unequal treatment based on race or to support any of Grant’s other allegations of misconduct. We therefore hold that the trial court correctly found that there exist no genuine issues of material fact as to Count 4, but erred in finding that there remain genuine issues of material fact as to the other counts. Accordingly, we affirm the judgment of the trial court in Case No. A14A1703, but reverse in Case No. A14A1704.

Case No. A14A1703

1. Motion to amend counterclaim.

Grant first contends that the trial court erred in denying his motion for leave to amend Count 4 of his counterclaim by adding a claim under OCGA § 8-3-222 of the Georgia Fair Housing Act to the claim originally asserted under OCGA § 8-3-202. As an initial matter, we note that Grant had the right to amend his counterclaim “as a matter of course and without leave of court at any time before the entry of a pretrial order.” See OCGA § 9-11-15 (a). Regardless, Grant has not pointed to any ruling by the trial court denying the filing of the proposed amendment and it in fact appears from the record that there was no denial of the right to file the proposed amendment. Indeed, the trial court expressly referred to the proposed amendment in its summary judgment order and included that proposed claim in its ruling as to count four. The trial court ruled, “The Motion for Summary Judgment as to Count IV of the Counterclaim is granted. Count IV of the Counterclaim is dismissed, including the proposed amendment to Count TV, as to against both the Association and Marshall.” (Emphasis supplied.) Because Grant has failed to show any ruling by the trial court denying the filing of the proposed amendment, this enumeration presents no basis for reversal.

2. Summary judgment on Count 4.

Grant contends that the trial court erred in granting summary judgment to the association on Count 4 of his counterclaim because there are genuine issues of material fact as to whether the association violated OCGA §§ 8-3-202 (a) (2) and 8-3-222 of the Georgia Fair Housing Act. The contention is without merit.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Once a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. We review a grant of summary judgment de novo and construe the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Brown v. Seaboard Constr. Co., 330 Ga. App. 778, 779 (1) (769 SE2d 530) (2015) (citations and punctuation omitted).

(a) Claim under OCGA § 8-3-202 (a) (2).

OCGA § 8-3-202 (a) (2) provides that it is unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, disability, familial status, or national origin[.]” One of the general purposes of the Georgia Fair Housing Act is to safeguard individuals from racial discrimination relating to the sale of a dwelling. Coldwell Banker Real Estate Corp. v. DeGraft-Hanson, 266 Ga. App. 23, 27 (2) (596 SE2d 408) (2004). Thus, in order to prevail on a claim under OCGA § 8-3-202 (a) (2), a plaintiff “must demonstrate unequal treatment on the basis of race that affects the availability of housing.” Bailey v. Stonecrest Condo Assn., 304 Ga. App. 484, 487-488 (1) (696 SE2d 462) (2010) (citation and punctuation omitted).

In this case, Grant, who is African-American, claims discrimination based on race. The association and Marshall, however, have shown that there is a lack of evidence of unequal treatment based on race or that the availability of housing to Grant has been affected. The burden on summary judgment thus shifted to Grant to point to some evidence giving rise to a triable issue. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). But Grant has failed to do so, pointing to no evidence showing either unequal treatment based on race or that the association and Marshall did anything that adversely affected the availability of housing to him.

With regard to the availability of housing, it is undisputed that Grant owns the condominium unit in question and it is his residence. The record plainly shows that this case simply involves a dispute over window tinting in Grant’s unit, not the availability of housing. Accordingly, in the absence of any evidence that Grant has been denied housing, the trial court correctly granted summary judgment as to any claim under OCGA § 8-3-202 (a) (2).

Moreover, Grant has pointed to no evidence of unequal treatment based on race. In attempting to meet his burden of showing a triable issue, Grant points to Marshall’s deposition testimony that glass windows can be reflective to some degree; that other windows on the building were tinted; and that another unit also has reflective tinting, but its owner, who is Caucasian, has not been fined. However, a review of the deposition testimony cited by Grant reveals that it does not create a genuine issue of material fact as to the question of unequal treatment based on race.

With regard to Marshall’s testimony that glass windows, under certain circumstances, can be reflective, any such testimony is irrelevant. The issues in the case have nothing to do with the reflectivity of glass, but have to do with the condominium rules regarding window tinting and whether or not Grant violated such rules. Grant’s reliance on testimony concerning glass being reflective under certain conditions is misplaced.

As for other windows in the building being tinted, Marshall testified that three-fourths “of windows in the building are tinted, and only one has a reflective nature. It’s Mr. Deon Grant’s [unit].” Marshall further testified that the windows in Grant’s unit have “a silver aluminum tin foil reflection [visible from] as far away as a quarter of a mile.” Marshall explained that under the condominium rules, all window tinting has to be non-reflective and that “[t]here’s only one window in the building that has an aluminum tin foil reflection. It’s Mr. Grant’s [unit]. Not another window that I’ve seen in this discussion that we’ve had has an aluminum tin foil reflection and is in violation of the rules of the building.” Thus, while Grant is correct in noting that Marshall testified that other units have window tinting, it is apparent that Marshall was distinguishing those units with purportedly conforming non-reflective tint from Grant’s allegedly non-conforming reflective window tint. Such testimony does not create a genuine issue of material fact.

Finally, as for Grant’s claim that Marshall testified that another unit, with a Caucasian owner, had reflective window tinting, Marshall actually testified that he had observed that unit and it does not have reflective window tinting. He further testified that regardless of any tinting in those windows, the unit had been “grandfathered in” ten years earlier by the developer of the building and was therefore out of the association’s control. The building’s property manager also testified that those windows had been installed by the developer and that he does not know of any windows on the building having a reflective appearance other than those in Grant’s unit. Accordingly, not only has Grant failed to cite any evidence showing that the other unit in question actually had reflective window tint, but he has also failed to refute the evidence that the windows in that specific unit had been installed by the developer many years earlier and had grandfathered status.

Grant has failed to meet his burden of pointing to evidence in the record creating a genuine issue of material fact and “[i]t is not the function of this [c]ourt to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” Bailey, supra at 489 (1) (a) (citation and punctuation omitted). Because Grant has not shown that there exists a triable issue, the trial court did not err in granting summary judgment as to his claim under OCGA § 8-3-202 (a) (2).

(b) Claim under OCGA § 8-3-222.

OCGA § 8-3-222 provides:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of such person’s having exercised or enjoyed, or on account of such person’s having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the Fair Housing law].

In order to prevail on a claim under this Code section, a plaintiff must show that

(1) a defendant coerced, intimidated, threatened or interfered; (2) with a (a) plaintiff’s exercise of a right under the Act; (b) plaintiff’s enjoyment of a housing right after exercise of that right; or (c) plaintiff’s aid or encouragement to a protected person to exercise or enjoy a housing right; (3) because of discriminatory animus.

Bailey, supra at 493 (2) (citation and punctuation omitted).

Here, Grant relies on the same evidence discussed above to claim that there is a genuine issue of material fact as to whether the association enforced the rule against reflective window tinting only against him and not against Caucasian condominium unit owners who also had reflective window tinting. He thus reasons that such selective enforcement of the rule was a pretext for racial discrimination that supports his claim under OCGA § 8-3-222. However, as explained above, the evidence cited by Grant does not show unequal treatment based on race, and he has pointed to no other evidence of the discriminatory animus required to support a claim under OCGA § 8-3-222. Accordingly, “summary judgment [was] appropriate because the evidence fail[ed] to establish discrimination.” Lawrence v. Courtyards at Deerwood Assn., 318 FSupp.2d 1133, 1146 (III) (B) (3) (a) (S.D. Fla. 2004) (involving claims under the federal Fair Housing Act, which is nearly identical to the Georgia Fair Housing Act, see Bailey, supra at 487 (1)).

Case No. A14A1704

3. Breach of bylaw by the association.

The association asserts that the trial court erred in denying summary judgment as to Count 1 of the counterclaim, in which Grant claims that the association breached a bylaw which provides that the association shall have the power of “making and amending rules and regulations and imposing sanctions for violation thereof, including, without limitation, monetary fines.” We agree with the association that Grant has failed to show the existence of any genuine issue of material fact as to this claim.

In the context of decision [-] making by homeowners’ associations and condominium associations, our Supreme Court has held that “where, as here, the declaration delegates decision-making authority to a group and that group acts, the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious.”

Bailey, supra at 494 (3) (citations and punctuation omitted), quoting Saunders v. Thorn Woode Partnership L.P., 265 Ga. 703, 704 (2) (462 SE2d 135) (1995).

Here, Grant has made no showing that the association’s exercise of its authority was procedurally unfair or that its substantive decisions were not made in good faith and were unreasonable. Grant claims that the association acted unfairly and thus breached the bylaw by enforcing the window tint rule against him based on his race, while not enforcing the same rules against other condominium unit owners. Grant again cites the same deposition testimony of Marshall discussed above as evidence supporting this claim. But as explained above, the evidence relied on by Grant does not establish unfair treatment based on race. Accordingly, Grant has failed to carry his burden of showing that there exists a triable issue.

4. Breach of bylaw by Marshall.

The association and Marshall contend that the trial court should have granted summary judgment on Count 2 of the counterclaim, in which Grant claims that Marshall violated a bylaw prohibiting conflicts of interest because he had a relationship with a window tinting company called Solar Eclipse. In support of summary judgment, the association and Marshall point out that at his deposition, Grant was asked if he was asserting that Marshall had a connection with Solar Eclipse, and Grant testified, “I have no idea.” And when asked if he had any factual knowledge of such a connection, Grant reiterated, “No. I never stated that.”

In his appellate brief, Grant purports to refute this testimony by citing to a specific page of his own deposition as providing evidence that Marshall had said he had a “special relationship” with Solar. However, no such testimony appears at that page of Grant’s deposition. And although we need not cull the record on Grant’s behalf, we have reviewed Grant’s entire deposition and have found testimony that Marshall recommended Solar Eclipse to Grant’s assistant as a contractor who had done window tint work in the building before, but have not found testimony in his deposition establishing a “special relationship” between Marshall and Solar. Moreover, even if Grant had pointed to some evidence showing such a relationship, he has not cited to any further evidence showing that such a purported relationship would violate the bylaw in question. Because Grant has not carried his burden of pointing to evidence creating a genuine issue of material fact, the association and Marshall were entitled to summary judgment on this claim. See OCGA § 9-11-56 (e) (adverse party to motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial, and if he does not, then summary judgment shall be entered against him).

5. Breach of fiduciary duty.

The association and Marshall were also entitled to summary judgment on Count 3 of the counterclaim, alleging that they had breached some fiduciary duty to Grant by enforcing the window tinting rule against him. Once again, Grant relies on the same deposition testimony of Marshall discussed above in an attempt to show racial discrimination. But as previously explained, the testimony cited by Grant does not create a genuine issue of material fact as to racial discrimination.

6. Punitive damages and attorney fees.

Because Counts 5 and 6 of the counterclaim, for punitive damages and attorney fees, are derivative of the other counts, summary judgment should have also been granted on those counts. See Matthews v. Tele-Systems, Inc., 240 Ga. App. 871, 874 (4) (525 SE2d 413) (1999).

Decided March 19, 2015.

Stephen H. Robinson, India Y. Ali, for appellant.

Winter Capriola Zenner, Marvin P. Pastel II, David B. Weinberg, for appellees.

Judgment affirmed in Case No. A14A1703. Judgment reversed in Case No. A14A1704.

Andrews, P. J., and Ray, J., concur.

       The association and Marshall’s motion to dismiss the appeal in Case No. A14A1703 is hereby denied.


author: BARNES, Presiding Judge.

text:
    A14A1795.
    EVANS et al. v. DEPARTMENT OF TRANSPORTATION.
    (771 SE2d 20)
   BARNES, Presiding Judge.

This case involves a dispute over the value of undeveloped timberland containing a subterranean mineral deposit that was condemned by the Georgia Department of Transportation (“DOT”). Following a jury trial, the jury awarded $50,000 to the condemnees, Dr. Frank O. Evans, Jr. and Robert Earl Evans, which was far below what they had sought as compensation for the condemned property. On appeal, the condemnees contend that the trial court erred by denying their motion in limine seeking to exclude any evidence or argument relating to the zoning of the condemned property; by allowing opinion testimony from the DOT’s expert real estate appraisers regarding the reasonable probability of a change in zoning to permit mining on the property; and by giving allegedly inconsistent, erroneous charges to the jury relating to the issue of zoning and the valuation of land containing mineral deposits. For the reasons discussed below, we discern no error by the trial court and affirm.

The record reflects that on February 20, 2009, the DOT filed a petition for condemnation and acquired a 12.087-acre portion of a larger tract of undeveloped timberland as part of a road construction project. The condemned property contained a subterranean deposit of kaolin, a mineral used in paint and other products. A kaolin mine that originally opened in the 1950s was located to the north of the condemned property. To the south of the condemned property was a residential neighborhood.

The condemned property was located within the city limits of Gordon, Georgia. In 1994, the City of Gordon enacted a zoning ordinance, and the condemned property was zoned agricultural. Under the zoning ordinance, mining was not permitted in an area zoned agricultural absent a special exception approved by the Gordon City Council. No special exception was ever approved for mining kaolin on the condemned property.

The DOT and the condemnees failed to reach agreement on the value of the condemned property. The DOT asserted that the highest and best use of the property was its present agricultural use as timberland, and that the kaolin deposit did not enhance the value of the property in light of the City of Gordon’s zoning restrictions on mining and the unlikelihood of a special exception being approved. In contrast, the condemnees asserted that the value of the condemned property was significantly enhanced by the kaolin deposit and was not affected by zoning considerations.

A jury trial ensued on the issue of valuation of the condemned property. Before the presentation of evidence, the condemnees moved in limine to exclude any evidence or argument related to zoning considerations, contending that zoning was irrelevant in condemnation cases involving mineral deposits because the minerals have intrinsic value as part of the land. The trial court denied the motion.

The DOT called two real estate appraisers as experts to testify on the issue of valuation, both of whom opined that the highest and best use of the condemned property was its current agricultural use as timberland. In reaching this conclusion, both appraisers discounted the presence of the kaolin deposit on the condemned property because it could not be mined under the City of Gordon’s current zoning ordinance, which prohibited mining on property zoned agricultural. They further opined that based on their investigation into the matter, they did not believe that the Gordon City Council would grant a special exception to permit mining on the condemned property, and that the likelihood of such a grant was too remote and speculative to enter into their valuation of the property. The appraisers distinguished the condemned property from the kaolin mine operated to the north of the property because the other mine had been grandfathered into the City of Gordon’s zoning ordinance, and because the condemned property abutted a residential neighborhood that would be negatively impacted by the construction of a mine. Based on these conclusions, the first appraiser valued the condemned property at $27,196. The second appraiser valued the condemned property at $26,591, but also determined that there was an additional $4,409 in consequential damages to the condemnees’ remaining land.

After the DOT concluded its case-in-chief, the condemnees called two expert witnesses to address the issue of valuation, a minerals engineer and a real estate appraiser. The minerals engineer testified that he had drilling samples taken from the condemned property, that he tested the kaolin found in the samples, and that the kaolin was of sufficient quality to be merchantable and marketable for use in paint products. Taking into account the minerals engineer’s evaluation of the kaolin deposit, the real estate appraiser valued the condemned property at $1,132,485, plus an additional $704,000 in consequential damages, based on his opinion that the property was significantly enhanced by the value of the kaolin. Both experts believed that the City of Gordon would not restrict kaolin mining on the condemned property, based on information they had learned from a former city zoning administrator, and given that the aforementioned kaolin mine was already being operated within city limits to the north of the condemned property.

Following the presentation of the conflicting expert testimony and the parties’ closing arguments, the trial court gave its charge to the jury, including a charge on the relevance of zoning considerations over the objection of the condemnees. The jury thereafter returned a verdict valuing the condemned property at $50,000, and the trial court entered final judgment in that amount. This appeal by the condemnees followed.

1. The condemnees argue that the trial court erred in denying their motion in limine seeking to exclude any evidence or argument relating to zoning. According to the condemnees, zoning is not a relevant factor for consideration by the jury in valuing property in condemnation cases involving mineral deposits.

“Amotion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. Irrelevant evidence that does not bear directly or indirectly on the questions being tried should be excluded.” (Punctuation and footnote omitted.) CNL APF Partners, LP v. Dept. of Transp., 307 Ga. App. 511, 513 (3) (705 SE2d 862) (2010). The grant or denial of a motion in limine is reviewed only for an abuse of discretion. Id. We conclude that the trial court did not abuse its discretion in ruling that zoning considerations could be considered by the jury.

“The sole issue to be determined in a condemnation matter is the just and adequate compensation due for property taken.” (Punctuation and footnote omitted.) CNL APF Partners, LP, 307 Ga. App. at 515 (4). “Generally, just and adequate compensation is the fair market value of the condemned property at the time of taking.” Canada West, Ltd. v. City of Atlanta, 169 Ga. App. 907, 909 (1) (315 SE2d 442) (1984). “Fair market value is defined as the price that a seller who desires but is not required to sell and a buyer who desires but is not required to buy would agree is a fair price after due consideration of all the elements reasonably affecting value.” (Citation and punctuation omitted.) Thornton v. Dept. of Transp., 275 Ga. App. 401, 404 (2) (620 SE2d 621) (2005).

One of the elements that reasonably may affect the value of the condemned property and should be considered by the jury is the presence of mineral deposits. See Sharpe v. Dept. of Transp., 267 Ga. 267, 269 (476 SE2d 722) (1996); Dept. of Transp. v. Bacon Farms, L.P., 270 Ga. App. 862, 863-864 (1) (608 SE2d 305) (2004); Gunn v. Dept. of Transp., 222 Ga. App. 684, 685 (1) (476 SE2d 46) (1996); Williams v. Mayor & City Council of Carrollton, 195 Ga. App. 590 (2) (394 SE2d 389) (1990). But it is also well established that in determining what constitutes just and adequate compensation, “the jury may consider existing zoning and possible or probable future zoning changes which are sufficiently likely to have an appreciable influence upon the present market value” of the condemned property. McDaniel Enterprises v. Gwinnett County, 162 Ga. App. 419 (291 SE2d 738) (1982). See Unified Government of Athens-Clarke County v. Watson, 276 Ga. 276, 276-277 (577 SE2d 769) (2003); Hall County v. Merritt, 233 Ga. App. 526, 527 (1) (504 SE2d 754) (1998); Civils v. Fulton County, 108 Ga. App. 793, 797 (2) (b) (134 SE2d 453) (1963). Hence, evidence regarding the City of Gordon’s zoning ordinance, and the reasonable probability that a special exception for kaolin mining would be granted by the Gordon City Council in the future, was relevant to the jury’s valuation of the condemned property in this case.

The condemnees argue, however, that zoning considerations are only relevant in condemnation cases that fall under the analysis employed in Dept. of Transp. v. Benton, 214 Ga. App. 221, 222-223 (1) (447 SE2d 159) (1994), where we found that the trial court erroneously allowed speculative evidence regarding the hypothetical future development of unimproved condemned property into subdivision lots. In Benton, we noted that a condemned property’s mere potential adaptability to a different residential or commercial use cannot form the basis for compensation unless the future use is so reasonably probable as to affect the property’s present value. Id. According to the condemnees, a Benton-type analysis does not apply in condemnation cases involving mineral deposits, thereby precluding the consideration of zoning in such cases. In support of their contention, they rely on two cases involving mineral deposits, Gunn, 222 Ga. App. at 684-685 (1), and Dept. of Transp. v. Sharpe, 219 Ga. App. 466, 467-468 (2) (465 SE2d 695) (1995), overruled on other grounds by Sharpe, 267 Ga. 267.

It is true that Gunn and Sharpe state that a Benton-type analysis does not apply in condemnation cases involving mineral deposits. See Gunn, 222 Ga. App. at 685 (1); Sharpe, 219 Ga. App. at 468 (2). But the implication of that statement is narrower than the condemnees contend because zoning was not an issue and was never mentioned in Benton. Nor was zoning an issue or mentioned in Gunn or Sharpe. In distinguishing Benton, this Court in Gunn and Sharpe was simply pointing out that mineral deposits are different from the hypothetical future residential or commercial development of condemned property because the deposits are an intrinsic characteristic of the property itself and thus have at least some inherent value. Nothing in Gunn or Sharpe suggests, however, that a jury should be precluded from also taking into account zoning as part of its valuation of the condemned property containing the mineral deposits. Indeed, this Court in Gunn noted that the “possible future use” of the condemned property for mining of the mineral deposits was part of the “permissible analysis” by the jury in valuing the property, and that the trial court erred in giving a jury instruction that suggested otherwise. Gunn, 222 Ga. App. at 685-686 (1). This language from Gunn supports the conclusion that zoning should be considered in condemnation cases involving mineral deposits.

Furthermore, allowing the jury to consider zoning in condemnation cases involving mineral deposits is consistent with the long-established “policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee.” (Punctuation and footnote omitted.) Dept. of Transp. v. Southeast Timberlands, Inc., 263 Ga. App. 805, 808 (2) (a) (589 SE2d 575) (2003). See Civils, 108 Ga. App. at 796 (2) (b). It is also clear that a private party negotiating to buy property containing mineral deposits would take zoning restrictions into account in arriving at a purchase price, and thus “zoning restrictions . . . unquestionably affect the market value of property,” the touchstone for determining just and adequate compensation. Id. at 797 (2) (b), quoting Nichols, The Law of Eminent Domain (3d ed.) § 12.322, p. 237.

For these combined reasons, we conclude that, as in other types of condemnation cases, zoning considerations are relevant and material to a jury’s determination of what constitutes just and adequate compensation to the condemnee in cases involving mineral deposits. The trial court therefore did not abuse its discretion in denying the condemnees’ motion in limine and allowing evidence and argument regarding the City of Gordon’s zoning ordinance and the reasonable probability of a special exception being granted for kaolin mining.

2. The condemnees further argue that the trial court erred in permitting opinion testimony from the DOT’s expert real estate appraisers concerning the reasonable probability that a special exception to the zoning ordinance would not be granted by the Gordon City Council to permit mining of the kaolin on the condemned property. According to the condemnees, the experts’ testimony was improper because zoning considerations are not relevant in mineral deposits cases and the testimony was wholly speculative.

In condemnation cases, we will not disturb a trial court’s decision to admit evidence pertaining to the likelihood of a change in zoning absent a manifest abuse of discretion. United Government of Athens-Clarke County v. Watson, 276 Ga. 276, 277 (577 SE2d 769) (2003). We conclude that no manifest abuse of discretion occurred in this case. For the reasons discussed supra in Division 1, evidence regarding zoning considerations is relevant in mineral deposits cases. And, as discussed below, the testimony of the DOT’s experts was not wholly speculative.

An expert may not render an opinion that is wholly speculative or conjectural. Layfield v. Dept. of Transp., 280 Ga. 848, 850 (632 SE2d 135) (2006); Rios v. Norsworthy, 266 Ga. App. 469, 473 (2) (597 SE2d 421) (2004). See also United States v. 0.161 Acres of Land, 837 F2d 1036, 1040 (11th Cir. 1988) (“Certainly where an expert’s testimony amounts to no more than a mere guess or speculation, a court should exclude his testimony.”). But the fact that the expert’s opinion is based partially on speculation goes to its weight rather than its admissibility. See Layfield, 280 Ga. at 850 (1) (“[T]he appropriate standard for assessing the admissibility of the opinion of [an] expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so.”).

As previously noted, the DOT called two real estate appraisers to testify as experts at trial. The first appraiser described how he went about appraising the condemned property and discussed the information he gathered and people he interviewed upon which he based his opinion. According to the appraiser, he inspected the condemned property and adjoining parcels, reviewed the DOT’s highway plans for the property, reviewed two mineral valuation reports regarding the kaolin deposits, reviewed the depositions of Dr. Evans and the condemnees’ expert minerals engineer, and interviewed residential property owners as well as several city officials. Based on his investigation, the appraiser concluded that the highest and best use of the condemned property was its current agricultural use as timberland; that it was unlikely that the Gordon City Council would grant a special exception to permit mining on the property and that any such possibility was too remote and speculative to enter into his valuation; and that the value of the property was $27,196. The expert distinguished the kaolin mine to the north of the condemned property on the ground that it had started operation in the 1950s and thus had been grandfathered in to the City of Gordon’s zoning ordinance, which was enacted in 1994. The appraiser also noted that the condemned property abutted a residential neighborhood and served as a buffer, protecting the neighborhood from the existing kaolin mine.

The second appraiser testified that his investigation included an inspection of the condemned property, interviews with nearby residential property owners, an interview with the owner of the kaolin mine operated to the north of the property and observations of the mining operation conducted there, a review of aerial photographs of that mining operation, a review of two minerals valuations reports of the condemned property, a review of the DOT’s highway plans for the property, and a review of the deposition testimony of Dr. Evans and of a city official involved in zoning decisions. Based on his investigation, the appraiser also concluded that the highest and best use of the condemned property was its current agricultural use as timberland, and he valued the property at $26,591, plus certain consequential damages to the condemnees’ remaining land. As part of his valuation of the condemned property, the appraiser concluded from his investigation that it was unlikely that the Gordon City Council would grant a special exception to permit mining on the property, and that the likelihood of such a grant was too speculative to enter into his analysis. The appraiser opined that the condemned property was distinguishable from the kaolin mine operated to the north because the other mine had been grandfathered in to the zoning ordinance, and because the condemned property was in closer proximity to residential property owners who would be negatively impacted if mining occurred there.

Given this record evidence, we cannot say that the opinion testimony of the DOT’s expert real estate appraisers regarding the likelihood of a change in zoning was wholly speculative. To the extent that the appraisers may have speculated to some degree in reaching their conclusions regarding the likelihood that a special exception would be granted for kaolin mining, that factor went to the weight of their testimony rather than its admissibility. See Layfield, 280 Ga. at 850 (1).

Relying upon Fulton County v. Dangerfield, 260 Ga. 665, 666 (1) (b) (398 SE2d 14) (1990), and Stewart v. Atlanta Beef Co., 93 Ga. 12 (2) (18 SE 981) (1893), the condemnees argue that testimony regarding what a legislative body might do in the future is too speculative to be admissible. Those cases, however, stand for the narrower proposition that a legislator, or a witness who is a mere conduit for the opinion of a legislator, cannot testify regarding the subjective intent or motive of a legislative body in carrying out a particular act that has already been accomplished. This is because what “motivates one legislator to make a comment about a law is not necessarily what motivates fellow legislators to enact the law.” Goldrush II v. City of Marietta, 267 Ga. 683, 692 (4) (482 SE2d 347) (1997). In contrast, our Supreme Court has held that a trial court did not abuse its discretion in allowing expert testimony that there was a reasonable probability that condemned property would be rezoned, where the testimony was predicated on the expert’s knowledge of the current zoning status of the property and an investigation into the property and the surrounding areas. See Watson, 276 Ga. at 277. See also State Highway Dept. v. Hurt, 121 Ga. App. 188, 189 (173 SE2d 279) (1970) (physical precedent only) (opinion testimony regarding probability of change in existing zoning restrictions was admissible); Klumok v. State Highway Dept., 119 Ga. App. 505 (1) (167 SE2d 722) (1969) (same). That is the situation here with the opinion testimony of the DOT’s real estate appraisers, and thus we conclude that the trial court acted within its discretion in allowing their testimony related to zoning. See id.

3. The trial court charged the jury that in valuing the condemned property, it should consider the existence of the kaolin deposit on the property, regardless of whether the condemnees had mined it or had plans to mine it at the time of the taking. The trial court also charged the jury that in considering “uses” of the condemned property as part of its valuation of the property on the date of the taking, it could only consider uses that were lawful under the zoning ordinance in effect on that date, or uses for which there was a possibility or probability would become lawful under the zoning ordinance in the immediate future sufficient to have an effect on the value of the property. The condemnees argue that these jury charges were inconsistent and were an erroneous statement of the law applicable in condemnation cases involving mineral deposits. We are unpersuaded.

“A jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.” (Citation and punctuation omitted.) Ware v. Henry County Water & Sewerage Auth., 258 Ga. App. 778, 784 (7) (575 SE2d 654) (2002). But charges cannot be construed in isolation; “on appellate review, jury charges must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487, 496 (6) (747 SE2d 83) (2013).

Taken as a whole, the trial court’s charges in this case were an accurate statement of the law applicable to condemnation cases involving mineral deposits. The trial court correctly charged the jury that it should consider the mineral deposits as part of its valuation of the condemned property, irrespective of whether the condemnees had mined the property or planned to mine it at the time of the taking. This charge was consistent with Gunn, where we indicated that mineral deposits have intrinsic value as part of the land that should be considered by the jury in valuing the condemned property, even if the condemnee never personally mined or had plans to mine the minerals as of the date of the taking. See Gunn, 222 Ga. App. at 685-686 (1). See also Sharpe, 219 Ga. App. at 468 (2).

At the same time, however, the fact that unmined mineral deposits on the condemned property have at least some intrinsic value does not rule out the jury also considering the uses to which the property could lawfully be put, including the mining of those deposits, as part of its calculation of just and adequate compensation. We made that very point in Gunn when we indicated, as noted supra in Division 1, that the “possible future use” of the condemned property for mining of the mineral deposits was part of the “permissible analysis” by the jury in valuing the property. Gunn, 222 Ga. App. at 685 (1). Such an analysis necessarily requires a consideration of zoning, see supra Division 1, and the trial court’s specific charge on zoning was an accurate statement of our law in condemnation cases. See, e.g., Dept. of Transp. v. Jordan, 300 Ga. App. 104, 105 (684 SE2d 141) (2009) (evidence regarding a potential future change in zoning is admissible and can be considered by the jury in condemnation cases, so long as the “change in zoning to allow the usage is probable, not remote or speculative, and is so sufficiently likely as to have an appreciable influence on the present market value of the property”) (citation and punctuation omitted); Dept. of Transp. v. Sconyers, 151 Ga. App. 824, 826 (2) (261 SE2d 728) (1979) (charge on zoning in condemnation cases should reflect that the jury “must base its value as of the time of the taking [on] the present zoning” but can also take into consideration, “if not too remote and speculative, that there was a reasonable probability or possibility that the zoning restrictions may be in the near future repealed or amended so as to permit the use in question”).

Decided March 19, 2015

Boone, Scott & Boone, Joseph A. Boone, for appellants.

Samuel S. Olens, Attorney General, Paul H. Dunbar III, Assistant Attorney General, Avant & Evans, Irwin B. Evans, for appellee.

Accordingly, the jury charges on mineral deposits and zoning considerations, when construed together, were not conflicting and were an accurate statement of the law. In arriving at its ultimate valuation of the condemned property, the jury was properly allowed to consider the intrinsic value of the mineral deposits, as well as the possibility of lawfully mining those deposits under the present zoning ordinance or the grant of a special exception. We therefore discern no error by the trial court in its charges to the jury in this case.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The condemnees also cite to Clark v. City of Kennesaw, 237 Ga. App. 42, 43 (1) (514 SE2d 701) (1999) in an effort to support their position. Yet, Clark did not address whether or to what extent zoning should he considered by the jury in mineral deposits cases.

       Because the jury trial in this condemnation case was conducted in October 2013, the new Georgia Evidence Code applies. See Ga. L. 2011, p. 99, § 101. But many cases decided under the former rules are still useful to our analysis regarding expert testimony and speculation. See Paul S. Milich, “Expert Witnesses — Examination at Trial,” Courtroom Handbook on Georgia Evidence 299 (2014 ed.).

       We note that an expert properly may rely on inadmissible facts and data such as hearsay in reaching his opinion, “if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” (Citation omitted.) Anderson v. Atlanta Gas Light Co., 324 Ga. App. 801, 812 (1) (b) (751 SE2d 589) (2013). See OCGA § 24-7-703 (providing in part that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,... facts or data [upon which the expert bases his opinion or inference] need not be admissible in evidence in order for the opinion or inference to be admitted”); United States v. Garcia, 447 F3d 1327, 1336 (11th Cir. 2006) (noting that a witness testifying as an expert “may rely on information he received from other people if such sources of information were regularly relied upon by experts in his field”) (citation and punctuation omitted). In their appellate brief, the condemnees do not address whether the opinions of the real estate appraisers were based on “facts and data of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject” and thus have waived any argument on appeal with respect to that issue.


author: McMlLLlAN, Judge.

text:
    A14A1981.
    STREETER v. THE STATE.
    (771 SE2d 33)
   McMlLLlAN, Judge.

Sandra Streeter was convicted by a jury of burglary, two counts of financial transaction card fraud, three counts of financial transaction card theft, and one count of attempt to commit financial transaction card fraud. She appeals following the denial of her motion for new trial, arguing that her trial counsel was ineffective and that the evidence was insufficient to convict her of burglary and the financial transaction card fraud count which alleged that she used a BB&T Visa credit card (“BB&T card”) at an AutoBuffs Express Car Wash (“AutoBuffs”). As more fully set forth below, we now affirm in part and reverse in part.

Construed to support the jury’s verdict, the evidence presented at trial shows that on July 14, 2011, Primrose Schools Franchising Company (“Primrose”) was conducting a curriculum training program for its employees and franchise owners (collectively referred to as “Primrose employees”) at its corporate development headquarters located on Cedarcrest Road in Acworth, Georgia. The training seminar had been in session for several days, and all the Primrose employees who worked in the building as well as numerous Primrose employees who worked at other locations were participating in the seminar. The Primrose corporate building contained both training rooms and employee offices, and the doors to the building were normally kept locked. Typically, Primrose employees who worked. inside the building used a key code to open the doors to the building, and visitors were “buzzed” into the building by someone disengaging the locks from the inside. However, due to the large number of Primrose employees who were attending the seminar from other locations, the locks on the main doors had been disengaged on the day in question.

At that particular time, Jodi Sherman was working as Primrose’s professional development manager and had a private office on the main floor of the building. She was also one of the presenters at the seminar and was in and out of her office all day. As was her custom, her office door was unlocked throughout the day with her purse sitting on the floor; she testified that someone standing in the hallway could probably see it sitting there. However, none of the training classes were being held in that part of the building, and the seminar trainees should not have entered that area unless a Primrose corporate employee brought them there or they wandered off on their own.

Sherman testified that between 10:30 to 11:30 the morning of July 14, 2011, she was in the front office talking to several other employees when she looked out the window and noticed a tall, dark-skinned woman walking around a car parked on a curb outside the building. She said that there was something about the situation that seemed out of place, but she assumed the woman was lost and did not investigate. Sherman also said the woman was fairly far away, and she was unable to identify the woman she saw that day.

At approximately the same time, a training session was being conducted in the cafeteria area of the building, which was located on the ground floor. The doors going into the cafeteria from outside had been left unlocked so that the caterers, who had not yet arrived, could enter to set up lunch. Part way through the session, several people noticed a tall, dark-skinned woman dressed in a bright printed dress and carrying a large handbag walk into the building through that door, which apparently made a distinctive sound when it opened. They did not recognize the woman as being a Primrose employee and did not think she was attending the training seminar. The witnesses said that the woman appeared somewhat startled that she had walked into a room full of people; she looked around and then turned and went through the doors that led into an area where employee offices are located.

Phyllis Thompson, Primrose’s director of operations, was one of the people who saw the woman enter the building that day. She said it was very unusual for a visitor to enter through that door, so she approached the woman as she started walking toward the office area. Members of the public were not supposed to enter that area without permission, and Thompson knew that those offices were deserted at that particular time. The woman identified herself as a travel agent and gave Thompson a business card naming the person she said she was supposed to meet. Thompson did not recognize the name but called the Primrose school, which was located nearby, to see if anyone by that name worked at that Primrose location. The school informed her that the name was unfamiliar, so she escorted the woman back out the door. Thompson said the woman was “kind of hasty to get out really quick,” and because she assumed the woman was in a hurry to meet up with her client, she just opened the door and let her out.

Thompson and two other employees who saw the woman enter that morning were subsequently shown a photographic lineup containing Streeter’s photograph. Only one of the employees was able to identify Streeter from the lineup, and he was also the only Primrose employee who identified Streeter at trial. However, Thompson and another Primrose employee testified that a wig found in Streeter’s possession when she was arrested looked similar to the hair of the woman they saw that day, and the other Primrose employee identified the dress Streeter was wearing, which all the witnesses generally described as brightly patterned.

Later that evening, Sherman discovered that her wallet was missing from her purse, and she subsequently spoke to her credit card companies about the use of several of the credit cards that had been in her purse. At trial, the State presented video recordings and testimony that showed Streeter using credit cards the afternoon of July 14 to make, or attempt to make, purchases at a Target, an AutoBuffs car wash, and a Walmart, all of which were located in close proximity to each other. The State also introduced receipts from the Target and the Walmart showing that Streeter had used Sherman’s BB&T card at those stores. The following day, Sherman’s wallet, missing all of her credit cards except one that had not yet been activated, was found by workers at a car dealership located on Highway 92 in Acworth. And the State showed that the car dealership was located on a “straight line” between Streeter’s house and the businesses where the cards were used.

Other facts will be set forth as necessary to address Streeter’s specific contentions on appeal.

1. Streeter first contends that her trial counsel was ineffective because he did not recall Thompson to the stand to testify after he learned that she had identified someone other than Streeter as the person she saw enter the Primrose building on July 14, 2011.

The record shows that after they had testified on the first day of trial, Thompson and another Primrose employee approached the prosecuting attorney and told him that a woman they had noticed sitting in the back of the courtroom, who was later identified as Streeter’s daughter, strongly resembled the person they saw enter the Primrose offices that morning. The prosecuting attorney notified Streeter’s trial counsel of this development, and the attorneys separately interviewed the witnesses before the trial resumed the next day. When questioned further, the other Primrose employee apparently equivocated about her identification of Streeter’s daughter, but Thompson remained firm in identifying Streeter’s daughter as the person she saw in the Primrose building.

Trial counsel testified concerning his decision not to recall the witness at the hearing on Streeter’s motion for new trial. He said that when he spoke to Thompson again by phone during a subsequent trial recess, she told him that she could not positively identify Streeter as the person she saw in the Primrose building and that Streeter’s daughter looked more like the person she saw. Trial counsel testified, however, that despite this potentially exculpatory testimony, he decided not to recall Thompson to the stand because he was uncertain what her testimony would be if she was recalled, especially when he learned that Streeter’s daughter had been in Florida at the time of the crime and thus could not have been the person Thompson saw in the building. Further, trial counsel testified that he did not believe that Thompson’s initial testimony was that harmful to the defense, since she did not identify Streeter as the person she saw in the building. And he thought her failure to identify Streeter would cast doubt on the credibility of the other witnesses because Thompson spent the most time observing the person who came in the Primrose building. To support Streeter’s contention that trial counsel should have recalled the witness, Streeter’s new counsel submitted Thompson’s affidavit in which she avers that after she saw the woman in the courtroom, she would have testified that Streeter was not the person she spoke to in the Primrose building the day of the theft.

In order to prevail on her claim of ineffective assistance of counsel, Streeter

must show counsel’s performance was deficient and that the deficient performance prejudiced [her] to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citations and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). “A decision amounting to reasonable trial strategy does not constitute deficient performance. Instead, matters of trial tactics provide grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.” (Citations and punctuation omitted.) Gill v. State, 295 Ga. 705, 708 (763 SE2d 719) (2014). Trial counsel’s testimony at the motion for new trial hearing established that his reason for not recalling the witness was one of trial strategy and, under the circumstances, the reasons he gave for this strategy were not patently unreasonable. Although Streeter contends that trial counsel should have questioned the witness more extensively to alleviate his concerns about her testimony, Streeter has not shown how additional questioning of the witness would have led to a different decision in light of counsel’s expressed belief that Thompson’s failure to identify Streeter in her initial testimony helped the defense more than a later identification of someone who in all likelihood could not have committed the crime. Id.; Collins v. State, 300 Ga. App. 657, 659 (1) (686 SE2d 305) (2009).

2. Streeter also challenges the sufficiency of the evidence to support her burglary conviction, arguing that because the Primrose corporate offices were open to the public on the day she was alleged to have entered the building, the State failed to show she entered the building “without authority.” “In the context of our criminal code[, OCGA § 16-1-3 (18),] andas applied in burglary cases specifically, the term ‘without authority’ has been defined to mean ‘without legal right or privilege or without permission of a person legally entitled to withhold the right.’ [Cits.]” State v. Newton, 294 Ga. 767, 771 (755 SE2d 786) (2014).

Contrary to Streeter’s argument on appeal, the evidence in this case does not show that the Primrose office building was open to the public during the training seminar in general or on the day of the incident in particular. Although on that day the locks were disengaged on some of the doors that were normally kept locked, this was done only for the purpose of allowing Primrose employees attending the seminar and the caterers who were setting up lunch to enter the building. Thus, they had the legal right or privilege to enter without permission, and Streeter clearly did not fall into either category.

Further, even assuming the building was open to the public at the time Streeter entered the building, her conviction for burglary was also proper based on her unauthorized entry into the office area of the building where Sherman’s wallet was stolen. At the time the crimes were committed in this case, the crime of burglary was committed when “without authority and with the intent to commit a felony or theft therein, [a person] enters or remains within . . . any building, ... or any room or any part thereof.” OCGA § 16-7-1. And pursuant to the statute, the trial court charged the jury without objection on the definition of burglary as follows:

A person commits the offense of burglary when without authority that person enters any building or dwelling place of another or into any room or any part of it with the intent to commit a theft. To constitute the offense of burglary it is not necessary that it be shown that a break in occurred or that an actual theft was accomplished.

Thus, even assuming the unlocked doors resulted in implied authority to enter the building, the evidence was clear that the Primrose employee offices which were located in the building were not that day, or any other day, open to the public. Further, the victim testified that she had a private office for her exclusive use, that members of the general public did not have access to the hallway where her office was located, and that no one was supposed to be in that area except for people who worked there or who had permission to be in the area from someone who worked in the building. Accordingly, the jury was authorized to conclude that Streeter was without authority to enter Sherman’s office at the time the theft was committed, and her conviction for burglary is affirmed. O’Neal v. State, 171 Ga. App. 582 (320 SE2d 612) (1984) (“evidence showed that appellant without authority rifled through areas and rooms which were not opened to the public at any time, and this was burglary”); Riley v. State, 130 Ga. App. 181, 182 (202 SE2d 533) (1973) (under applicable statute, defendant charged with entering a certain building may be convicted of burglary upon proof that he entered a part of the building or one room of the building).

3. Lastly, Streeter argues that the evidence was insufficient to convict her of Count 2 of the indictment charging her with financial transaction card fraud based on her unauthorized use of Sherman’s BB&T card to purchase a car wash at AutoBuffs. We agree. Although the video recording showing Streeter using some type of financial transaction card to purchase the car wash was introduced and played for the jury at trial, and Sherman testified that Streeter did not have her permission to use her BB&T card at AutoBuffs, no evidence was presented showing that Sherman’s BB&T card was the card Streeter used to pay for the AutoBuffs transaction. The name of the card is not visible on the recording and, unlike the Walmart and Target transactions, a receipt for the AutoBuffs transaction was not introduced into evidence at trial. The investigating officer testified the card used there was the “card that was reported stolen,” but the evidence showed that Sherman had several credit cards stolen from her wallet, and the officer could not recall the name of the card used at Auto-Buffs, which he said was written in a case file he had left at his office. Accordingly, we agree that Streeter’s conviction for financial transaction card fraud as alleged in Count 2 of the indictment must be reversed.

Decided March 19, 2015.

Andrew S. Fleischman, for appellant.

Dick Donovan, District Attorney, Thomas A. Cole, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Ellington, P. J., concur.

       Streeter was found not guilty of identity fraud.

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

       Sherman divorced sometime after the incident, and by the time she testified at trial she was using the surname Proyect. The credit cards at issue in this case, however, were issued in the name of Jodi Sherman, and we will refer to Proyect by her former name throughout this opinion.

       Investigators discovered one of Sherman’s credit cards had been used at the AutoBuffs, and it was when they were watching the video recording from that location that they saw the tag number of the car Streeter was driving and tracked her to her house. When officers went to Streeter’s house, she was wearing the same dress she wore in the videos showing her using the credit cards at Target, Walmart, and AutoBuffs.

       After this issue came to light, the State announced that it had subpoenaed Streeter’s daughter and that she was in the courthouse ready to testify if necessary.

       Thompson’s affidavit was submitted without objection at the motion for new trial hearing in lieu of her testimony.

       Although not crystal clear, it does not appear that the doors were actually ajar.

       OCGA § 16-7-1 has been amended to create gradations of first and second degree burglary, but that amendment applies only to offenses that occurred on or after July 1,2012. Ga. L. 2012, p. 899, §§ 3-1, 9-1.

       Count 2 charged that Streeter committed the offense of financial transaction card fraud when she, “with the intent to defraud Auto Buffs [sic] . . . did unlawfully obtain goods and services having value of less than $100.00 by presenting one BB&T Visa Card issued to Jodi Sherman, a financial transaction card, without the authorization and permission of Jodi Sherman, the cardholder, in violation of OCGA § 16-9-33. . . .”


text:
    A14A2038.
    In re LOFTUS.
    (771 SE2d 38)
   McFADDEN, Judge.

Catherine Mary Loftus a/k/a Catherine Mary Serewicz (hereinafter, the ward) currently is the ward of two of her adult children, both of whom serve as her co-guardians and one of whom serves as her conservator. Her brother, Thomas J. Loftus, petitioned the probate court to terminate the guardianship and conservatorship and restore her rights (hereinafter, the restoration petition). The probate court dismissed the restoration petition for lack of probable cause without first conducting a hearing. The record, however, reflects probable cause such that the probate court should have conducted a hearing on the petition pursuant to OCGA §§ 29-4-42 (b) and 29-5-72 (b). Accordingly, we reverse the dismissal of the petition and remand the case for further proceedings.

Georgia law permits “any interested person” to petition to terminate a guardianship or conservatorship and restore the ward’s rights. OCGA §§ 29-4-42 (a); 29-5-72 (a). If the petition and its supporting affidavits give rise to probable cause that the guardianship or conservatorship should be terminated, the court shall order an evaluation of the ward. OCGA §§ 29-4-42 (b); 29-5-72 (b).

If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that the [guardianship or conservatorship] should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing[.]

OCGA §§ 29-4-42 (b); 29-5-72 (b).

The relevant issue in determining the appropriateness of a guardianship or conservatorship for an adult is whether the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety (in the case of guardianship), OCGA § 29-4-1 (a), or his or her property (in the case of conservatorship). OCGA § 29-5-1 (a). The record in this case contains evidence indicating that the ward now has the necessary capacity to make or communicate these decisions. It contains the notarized statement of the ward’s brother, expressing his belief that she was able to “make sound decisions regarding her own welfare.” It contains the affidavit of a licensed psychologist stating that he had examined the ward on January 23, 2014, and found her to have sufficient capacity to make or communicate significant responsible decisions concerning her health or safety and concerning the management of her property. In support of this finding, the psychologist cited the ward’s coherence, understanding, and awareness during the evaluation and her performance on an assessment test. Among other things, the psychologist noted that the ward “had perfect performance in several areas [of the test] that have to do with overall cognitive ability.” He concluded that the ward was not experiencing dementia or delirium and stated that

there is no question that [the ward] is not mentally incompetent and in some areas her performance is remarkably good. She appears to have a good general understanding of verbal and numerical concepts, is aware of her surroundings, and is able to express herself and use humor in social interactions.

And the record contains a report from a Ph.D. candidate in clinical psychology who on January 27,2014, performed a limited evaluation on the ward, during which the ward was alert and oriented, was capable of conversing normally, and displayed “thought processes [that] were logical and coherent.”

The record also contains evidence that the ward is not capable of making or communicating such significant responsible decisions, specifically the report of a licensed social worker who had evaluated the ward in connection with guardianship and conservatorship proceedings a year earlier and who, on March 12, 2014, performed a court-ordered evaluation on the ward in connection with the restoration petition. (We disagree with the brother’s argument that the social worker should have been precluded from evaluating the ward in the restoration proceedings because she had evaluated the ward in the original guardianship and conservatorship proceedings. See In re Vincent, 240 Ga. App. 876, 878 (2) (a) (525 SE2d 409) (1999) (involving testimony in connection with restoration petition from doctor who had evaluated ward in connection with both that petition and prior guardianship petition)).

Decided March 19, 2015.

Smith Moore Leatherwood, G. Marshall Kent, Jr., R. Milton Crouch, for appellant.

Hurley Elder Care Law, Danielle C. Cefalu, for appellee.

The social worker stated in her report that she found that the ward suffered from dementia, did “not have capacity to make responsible decisions on her own and is also easily influence [d] by others in her decision making.” In support of this finding, the social worker cited, among other things, a decline in the ward’s cognitive ability from the prior year, the ward’s confusion and lack of understanding regarding her finances, her apraxia, her inability to understand instructions, and her poor performance on a different assessment test than that given by the licensed psychologist.

Given that different evaluations of the ward produced such disparate results, we cannot affirm the probate court’s ruling there was no probable cause to require a hearing in this matter. As this court previously has explained, the purpose of a pre-hearing probable cause ruling in a guardianship or conservatorship proceeding, like a summary judgment ruling in a civil case, is “to ferret out meritless claims without the expense and trouble of a trial.” Yetman v. Walsh, 282 Ga. App. 499, 501 (2) (639 SE2d 491) (2006). This record does not reflect a meritless petition. Rather, it reflects the need for a hearing to assess the professionals’ credibility and examine the limitations of their evaluations, so that the probate court can determine which of the very different evaluations to believe. Under these circumstances, it was error for the probate court to dismiss the petition without a hearing.

Accordingly, we reverse the order dismissing the petition and remand the case for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Andrews, P. J., and Ray, J., concur.