FUCIARELLI v. McKINNEY Et Al. ( 2015 )

WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 16, 2015
In the Court of Appeals of Georgia
A15A0223. FUCIARELLI v. MCKINNEY et al. JE-011
ELLINGTON, Presiding Judge.
The Superior Court of Fulton County dismissed claims brought by Alfred
Fuciarelli under the Georgia Taxpayer Protection and False Claims Act (“the
TPFCA”), OCGA § 23-3-120 et seq., on the ground that Fuciarelli lacked the required
written approval of the Attorney General of the State of Georgia prior to bringing the
claims, citing OCGA § 23-3-122 (b) (1). Pursuant to a granted application for
interlocutory appeal, Fuciarelli argues that the trial court erred in finding that his
claims required the Attorney General’s approval. For the reasons that follow, we
affirm the judgment in part and reverse in part.
“We review a trial court’s ruling on a motion to dismiss de novo, viewing all
allegations in the complaint as true. Thus, we owe no deference to a trial court’s
ruling on questions of law and review such issues de novo under the ‘plain legal
error’ standard of review.” (Citations and punctuation omitted.) Laskar v. Bd. of
Regents of the Univ. Sys. of Ga., 320 Ga. App. 414 (740 SE2d 179) (2013). So
viewed, the relevant facts are as follows.
Fuciarelli is employed by the Board of Regents of the University System of
Georgia as a tenured faculty member at Valdosta State University (“VSU”). As he
admits in his brief, he is a public employee. He served as an assistant vice president
for research and as dean of the graduate school. In his roles as vice president and
dean, Fuciarelli recommended that VSU implement an electronic research
administration system to better manage its grants and research programs and their
funding sources. Although VSU initially approved the system, it removed Fuciarelli
as the system’s budget manager and it later declined to fund the system. Fuciarelli
complained to the administration about VSU’s “noncompliance with laws, rules, and
regulations,” he expressed concerns that VSU’s lack of research administration tools
exposed VSU to liability, and he complained about his exclusion from certain internal
audits. Ultimately, VSU terminated Fuciarelli’s contract as assistant vice president
and dean, which ended his administrative duties. He remained a tenured faculty
member, but his salary and benefits were reduced. Fuciarelli appealed VSU’s decision
2
to terminate his administrative duties to the Board of Regents, but the Board affirmed
VSU’s decision.
On July 11, 2013, after exhausting his administrative remedies, Fuciarelli filed
a complaint asserting causes of action against these defendants: the Board of Regents,
including its unit institution VSU1; William McKinney, in his individual capacity and
in his official capacity as President of VSU; and Karla Hull, in her individual capacity
and in her official capacity as the former Acting Vice President for Academic Affairs
at VSU. Against each defendant, Fuciarelli asserted a claim for “False Claims
Whistleblower Retaliation” under the TPFCA, citing OCGA § 23-3-122; and a claim
for “Public Employee Whistleblower Retaliation,” citing OCGA § 45-1-4.2
1
VSU is not a separate or distinct legal entity from the Board of Regents and,
therefore, cannot be sued. See McCafferty v. Medical College of Ga., 249 Ga. 62, 65
(1) (287 SE2d 171) (1982), and Bd. of Regents of the Univ. Sys. of Ga. v. Doe¸ 278
Ga. App. 878, n.1 (630 SE2d 85) (2006) (both holding that the power to sue and be
sued is vested in the Board of Regents, not in individual member institutions).
2
The gist of Fuciarelli’s complaint appears to be that VSU, in declining to
implement Fuciarelli’s research management tools, had misused or was at risk of
“misusing government funds in many of its sponsored [research] programs,” and that
when Fuciarelli complained to the administration about those matters, the
administration retaliated by demoting him. It is unclear from the complaint whether
a false claim was submitted to the State of Georgia. However, it is clear that Fuciarelli
is not pursuing a qui tam action based upon a specific false claim. In a qui tam action,
a private individual participates in a prosecution or a civil action on behalf of or for
the benefit of a government and may receive all or part of any penalty imposed
3
The defendants moved to dismiss Fuciarelli’s TPFCA claims, asserting, in
pertinent part, that claims against McKinney and Hull in their official capacities and
the Board of Regents are barred by sovereign immunity and that McKinney and Hull
are not proper defendants to those claims in their individual capacities. After the
parties had briefed these issues, the trial court issued an order directing the parties “to
submit supplemental briefs on whether Fuciarelli must obtain written approval from
the Attorney General [prior to bringing claims under the TPFCA] as required by
OCGA § 23-3-122 (b) (1).” Fuciarelli does not contend that he obtained the Attorney
General’s approval before filing his claims, and the record contains no evidence that
he sought or was given that approval prior to filing the instant lawsuit.
On December 9, 2013, the trial court ruled, in pertinent part, that Fuciarelli’s
claims pursuant to OCGA § 23-3-122 (l) are barred by his failure to obtain written
approval from the Attorney General. The trial court denied the defendants’ motion to
dismiss Fuciarelli’s remaining claims brought pursuant to OCGA § 45-1-4, which
prohibits retaliation against a public employee who discloses noncompliance with
against the offending party. See, e.g., Stalley v. Orlando Reg’l Healthcare Sys., 524
F.3d 1229, 1233 (II) (11th Cir. Fla. 2008) (“‘Qui tam’” is an abbreviation for qui tam
pro domino rege quam pro seipso, which means ‘he who as much for the king as for
himself.’”) (citation omitted; emphasis original).
4
state law. On appeal, Fuciarelli contends that the trial court erred in dismissing his
TPFCA claim on the basis that he lacked Attorney General approval, arguing that “a
retaliation civil action belongs exclusively to the party bringing the claim and does
not require Attorney General approval.”
1. Pretermitting whether there is any merit to Fuciarelli’s argument with respect
to the Board of Regents, VSU, and Hull and McKinney in their official capacities, the
trial court nevertheless properly dismissed the OCGA § 23-3-122 (l) retaliation claims
against these governmental defendants. As the defendants argued below in their
original brief supporting their motion to dismiss in the trial court, the General
Assembly did not intend for the state or any of its political subdivisions to be subject
to retaliation claims brought pursuant to the TPFCA. Nothing in the TPFCA expressly
or impliedly waives the government’s immunity from suit. Consequently, we must
affirm the trial court’s order with respect to these defendants under the “right for any
reason” rule.3
3
Georgia appellate courts may apply the “right for any reason” rule when
reviewing de novo certain judgments. See City of Gainesville v. Dodd, 275 Ga. 834,
835 (573 SE2d 369) (2002) (“Under the ‘right for any reason’ rule, an appellate court
will affirm a judgment if it is correct for any reason, even if that reason is different
than the reason upon which the trial court relied.”) (citation omitted). See also Craigo
v. Azizi, 301 Ga. App. 181, 187 (3) (687 SE2d 198) (2009) (dismissal of complaint
affirmed under right for any reason rule). A summary judgment “must be affirmed if
5
“Under Georgia law, sovereign immunity is an immunity from suit, rather than
a mere defense to liability, and, therefore, whether a governmental defendant has
waived its sovereign immunity is a threshold issue.” (Citations omitted.) McCobb v.
Clayton County., 309 Ga. App. 217, 217-218 (1) (a) (710 SE2d 207) (2011). Except
as otherwise provided in the Georgia Constitution, “[t]he sovereign immunity of the
state and its departments and agencies can only be waived by an Act of the General
Assembly which specifically provides that sovereign immunity is thereby waived and
the extent of such waiver.” Ga. Const. 1983 Art. I, Sec. II, Par. IX (e). See Dept. of
Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 597-598 (2) (755
SE2d 184) (2014). “In this regard, implied waivers of governmental immunity should
not be favored.” (Citation and punctuation omitted.) Colon v. Fulton County, 294 Ga.
93, 95 (1) (751 SE2d 307) (2013). The state’s sovereign immunity extends to the
Board of Regents. Wilson v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. 413, 414
it is right for any reason, whether stated or unstated in the trial court’s order, so long
as the movant raised the issue in the trial court and the nonmovant had a fair
opportunity to respond.” Anderson v. Jones, 322 Ga. App. 311, 312 n. 2 (745 SE2d
787) (2013). Because the issue of sovereign immunity was presented in defendant’s
motion to dismiss and because Fuciarelli had an opportunity to respond, the
application of the “right for any reason” rule is appropriate. See Abellera v.
Williamson, 274 Ga. 324, 326 (2) (553 SE2d 806) (2001).
.
6
(3) (1992). And “[s]uits against public employees in their official capacities are in
reality suits against the state and, therefore, involve sovereign immunity.”
(Punctuation and footnote omitted.) Cameron v. Lang, 274 Ga. 122, 126 (3) (548
SE2d 341) (2001). “The party seeking to benefit from the waiver of sovereign
immunity has the burden of proof to establish waiver[.]” (Citation omitted.) Bonner
v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009). Fuciarelli cannot meet that
burden.
The TPFCA does not expressly provide that it waives the state’s sovereign
immunity. Moreover, it does not set forth circumstances demonstrating an implied
waiver of sovereign immunity. The TPFCA does not create a cause of action against
the state nor does it provide that an aggrieved party may collect money damages from
the state. See Colon v. Fulton County, 294 Ga. at 95-96 (1).4 In fact, the thrust of the
4
By comparison, the Supreme Court of Georgia concluded that the General
Assembly, in enacting OCGA § 45-1-4, which authorizes certain retaliation claims
against public employees, waived sovereign immunity. The court reasoned that
where, as here, the Legislature has specifically created a right of action
against the government that would otherwise be barred by sovereign
immunity, and has further expressly stated that an aggrieved party is
entitled to collect money damages from the government in connection
with a successful claim under the statute, there can be no doubt that the
7
TPFCA is to authorize the State of Georgia, through the Attorney General or a
designee, to bring civil actions to recoup losses that the state or a local government
has suffered as a result of false claims presented to the state or a local government by
others. For example, OCGA § 23-3-121 (a) sets forth a scheme by which those who
present false or fraudulent claims for public funds as defined by the TPFCA “shall be
liable to the State of Georgia for a civil penalty of not less than $5,500.00 and not
more than $11,000.00 for each false or fraudulent claim, plus three times the amount
of damages which the state or local government sustains because of the act of such
person.” (emphasis supplied). To the extent that a private person may also bring such
a claim, that TPFCA expressly provides that such a claim shall be in the
government’s name and with the government’s approval.5 Moreover, under certain
Legislature intended for sovereign immunity to be waived with respect
to the specific claim authorized under the statute.
Colon v. Fulton County, 294 Ga. at 95-96 (1).
5
OCGA § 23-3-122 (b) (1) provides, in relevant part:
Subject to the exclusions set forth in this Code section, a civil action
under this article [that is, under the TPFCA] may also be brought by a
private person upon written approval by the Attorney General. A civil
action shall be brought in the name of the State of Georgia or local
8
circumstances, the government has the right to intervene in the litigation, including
the right to settle or dismiss the suit without the private person’s consent. OCGA §
23-3-122 (c). A private person’s qui tam recovery in such a civil action is limited to
a percentage of the proceeds paid to the government. OCGA § 23-3-122 (h). And the
“state or local government shall not be liable for expenses which a private person
incurs in bringing a civil action under [the TPFCA].” OCGA § 23-3-122 (k).
Considered within this context, we conclude that OCGA § 23-3-122 (l)(1) does
not create a retaliation cause of action against the government such that sovereign
immunity is waived. That Code section provides, in pertinent part:
Any employee, contractor, or agent shall be entitled to all relief
necessary to make that employee, contractor, or agent whole if that
employee, contractor, or agent is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated against in the
terms and conditions of employment because of lawful acts done by the
employee, contractor, agent, or associated others in furtherance of a civil
action under this Code section or other efforts to stop one or more
violations of this article [that is, the TPFCA].
OCGA § 23-3-122 (1)(1) (emphasis supplied). This Code section clarifies that, in
addition to any qui tam recovery, a whistleblower is also entitled to all the relief
government, as applicable.
9
necessary to be made whole from the entity that retaliated against him or her. In the
context of the TPFCA, that entity is not the governmental entity, but, rather, the
“person, firm, corporation, or other legal entity” responsible for submitting the false
claim to “the state or local government.” See OCGA § 23-3-120 (1) (defining a
claim); OCGA § 23-3-121 (defining those who may be liable for submitting a false
claim).6 Construing OCGA § 23-3-122 (l) (1) to allow a retaliation claim against the
government would be contrary to the law enforcement purpose of the statute, which
is to recoup public funds.7 For these reasons, we hold that the General Assembly did
not waive the state’s sovereign immunity when it enacted the TPFCA. Consequently,
the trial court did not err in dismissing Fuciarelli’s retaliation claim made pursuant
to OCGA § 23-3-122 (l)(1) against the governmental defendants.
6
See also OCGA § 23-3-124, pertaining to venue of TPFCA civil actions.
Defendants are described as those having submitted “a false or fraudulent claim to the
state or local government.” (emphasis supplied).
7
See, e.g, OCGA §§ 23-3-122 (b) (6) (“To effectuate the law enforcement
purposes of this article in combating fraud and false claims directed at the public’s
funds, it is the public policy of this state that private persons be authorized to take
actions to provide to the Attorney General or local government such information and
evidence.”; 23-3-126 (b) (The TPFCA “shall be broadly construed and applied to
promote the public’s interest in combating fraud and false claims directed at the
public’s funds.”).
10
2. The trial court, however, erred in dismissing Fuciarelli’s OCGA § 23-3-122
(l) retaliation claims against Hull and McKinney in their individual capacities on the
ground that Fuciarelli failed to obtain Attorney General approval prior to filing his
suit alleging retaliation claims under the TPFCA. Attorney General approval is not
required for retaliation claims, which are personal to the plaintiff.
The TPFCA provides that, “[s]ubject to the exclusions set forth in [OCGA §
23-3-122], a civil action under this article may also be brought by a private person
upon written approval by the Attorney General.” OCGA § 23-3-122 (b) (1) (emphasis
supplied). The use of the word “article” in this context was intended to embrace civil
actions brought in the name of government; applying it to retaliation claims was not
intended and would lead to absurd results.
In construing a statute, our goal is to determine its legislative purpose.
In this regard, a court must first focus on the statute’s text. In order to
discern the meaning of the words of a statute, the reader must look at the
context in which the statute was written, remembering at all times that
the meaning of a sentence may be more than that of the separate words,
as a melody is more than the notes. If the words of a statute, however,
are plain and capable of having but one meaning, and do not produce
any absurd, impractical, or contradictory results, then this Court is
bound to follow the meaning of those words. If, on the other hand, the
words of the statute are ambiguous, then this Court must construe the
11
statute, keeping in mind the purpose of the statute and “the old law, the
evil, and the remedy.” OCGA § 1-3-1 (a).
(Punctuation and emphasis omitted.) Rite-Aid Corp. v. Davis, 280 Ga. App. 522, 524
(1) (634 SE2d 480) (2006).
In the context of OCGA § 23-3-122 (b) (1), the “civil action” referenced is a
an action brought “in the name of the State of Georgia or local government[.]” Id.
This Code section provides that, with Attorney General approval, a private person
“may also” bring such a claim. Thus, the subsection is itself an exception to the
general rule that only governments may prosecute TPFCA claims. The subsection is
intended to apply the prerequisite of Attorney General approval to any action under
the TPCFA that a private person brings in the name of the government for the benefit
of the government. Retaliation claims, however, are personal to the plaintiff and are
meant to afford proper plaintiffs with all relief necessary to make them whole.
Because Fuciarelli was not required to obtain the Attorney General’s approval prior
to filing his TPFCA retaliation action, the trial court erred in dismissing Fuciarelli’s
claims against Hull and McKinney in their individual capacities.
Judgment affirmed in part and reversed in part. Barnes, P. J., and Phipps, P.
J., concur. McFadden, J., fully concurs in Division 1 and concurs specially as to
12
Division 2. Dillard, Ray and McMillian, JJ., fully concur in Division 1 and dissent
as to Division 2.
13
A15A0223. FUCIARELLI v. MCKINNEY et al. McF-XXX
MCFADDEN, Judge, concurring fully.
I concur fully in the majority opinion. I write separately as to Division 2 to
emphasize that the majority’s construction of OCGA § 23-3-122 (l) is faithful to the
text of the statute. As the majority correctly holds, subsection (l) creates a cause of
action that is personal to the plaintiff, distinct from the cause of action addressed in
the rest of § 23-3-122, and not subject to the notice requirement of OCGA § 23-3-122
(b).
The dissent implies that we are simply presented with a syllogism “that could
not be more clear” and merely leads to an unpalatable result. But contrary to the
dissent, the question before us is whether there is a controlling distinction between
actions under subsection (l) of OCGA § 23-3-122 – which are personal to the plaintiff
– and other civil actions under that Code section as a whole – which are on behalf of
the state. The text of the statute does draw such a distinction, and it is controlling.
Subsection 23-3-122 (l) is distinct from the rest of OCGA § 23-3-122 and is likewise
distinct from the rest of the Article of which that statute is a part.
That article, Title 23, Chapter 3, Article 6, deals with false or fraudulent claims
made against state and local governments. See OCGA § 23-3-120 (1) (defining
“Claim”). That statute, OCGA § 23-3-122, addresses the procedures for bringing civil
actions under Article 6. As the Solicitor General explained at oral argument, “The
purpose of th[at] statute is to recover state moneys.”
But subsection 23-3-122 (l), the final subsection of a lengthy statute, addresses
a distinct type of action. The subsection refers repeatedly to an “action under this
subsection” and sets out rules related to such actions, distinguishing them from an
“action under this Code section,” as a whole.
It is significant that the text of subsection (l) distinguishes “an action under this
subsection”from “a civil action under this Code section.” As Justice Scalia and
Professor Garner note in Reading Law, “where the document has used one term in
one place, and a materially different term in another, the presumption is that the
2
different term denotes a different idea.” ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (Presumption of
Consistent Usage) (1st ed. 2012). And subsection (l) explains the relationship
between these two different ideas. A cause of action under subsection (l) arises when
a person suffers retaliation as a consequence of “lawful acts done . . . in furtherance
of a civil action under this Code section” as a whole. OCGA § 23-3-122 (l) (1).
It is true that OCGA § 23-3-122 also uses the phrase “civil action under this
article.” OCGA § 23-3-122 (a), (b) (emphasis added). But the point of that usage is
that the civil actions authorized in subsections (a) and (b) are for the purpose of
vindicating the government interests addressed throughout the article. Consequently
the subsequent references throughout the statute to “action[s] under this Code
section” refer to the same type of actions. As the majority notes, there is no other
sensible reading.
This analysis is reinforced by the rule that Scalia and Garner call the Scope-of-
Subparts Canon, which provides, “material contained in unindented text relates to all
the following or preceding indented subparts.” SCALIA & GARNER, supra, at 156.
Neither subsection (b), which contains the notice requirement, nor subsection (l) is
indented. They are of equal rank in the statutory structure.
3
A15A0223. FUCIARELLI v. MCKINNEY et al.
DILLARD, Judge, concurring in part and dissenting in part.
Although I fully concur in the majority’s opinion as to Division 1 that OCGA
§ 23-3-120 et. seq. does not waive the state’s sovereign immunity, I do not agree with
the majority’s holding in Division 2. To the contrary, the plain language of OCGA
§ 23-3-122 (b) (1) unequivocally requires written approval of the Attorney General
to bring a retaliation claim under OCGA § 23-3-122 (l). Thus, I respectfully dissent
as to this division of the majority opinion.
In interpreting any statute, we necessarily begin our analysis with familiar and
binding canons of construction. And in considering the meaning of a statute, our
charge as an appellate court is to “presume that the General Assembly meant what it
said and said what it meant.”1 Thus, we must afford the statutory text its plain and
ordinary meaning,2 consider the text contextually,3 read the text “in its most natural
and reasonable way, as an ordinary speaker of the English language would,”4 and
1
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013)
(punctuation omitted); see Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d
504) (2013) (same).
2
See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory
text its plain and ordinary meaning.” (punctuation omitted)); State v. Able, 321 Ga.
App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law
in accordance with the original and/or plain meaning of the text at issue (and all that
the text fairly implies) . . . .”); ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 16 (1st ed. 2012) (“Textualism, in its
purest form, begins and ends with what the text says and fairly implies.”).
3
See Arizona v. Inter Tribal Council of Arizona, Inc., ___U.S. ___, ___ (II) (B)
(133 SCt 2247 186 LE2d 239) (2013) (“Words that can have more than one meaning
are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294
Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it
appears[.]”); see also OCGA § 1-3-1 (b) (“In all interpretations of statutes, the
ordinary signification shall be applied to all words . . . .”); SCALIA & GARNER, supra
note 2, at 167 (“Context is a primary determinant of meaning.”).
4
Deal, 294 Ga. at 172-73 (1) (a); accord Martinez, 325 Ga. App. at 273.
2
seek to “avoid a construction that makes some language mere surplusage.”5
Importantly, when the language of a statute is plain and susceptible of only one
natural and reasonable construction, courts must “construe the statute accordingly.”6
Here, the plain meaning of OCGA § 23-3-122 (b) (1) could not be more clear.
Prior to bringing a civil action under Article 6 (False or Fraudulent Claims) of
Chapter 3 (Equitable Remedies and Proceedings Generally) to Title 23 (Equity) of the
Official Code of Georgia, a private person must obtain written approval from the
Attorney General:
Subject to the exclusions set forth in this Code section, a civil action
under this article may also be brought by a private person upon written
approval by the Attorney General. A civil action shall be brought in the
name of the State of Georgia or local government, as applicable. The
civil action may be dismissed only if the Attorney General gives written
5
In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014)
(punctuation omitted); accord Holcomb v. Long, 329 Ga. App. 515, 518 (1) (765
SE2d 687) (2014); see also SCALIA & GARNER, supra note 2, at 174 (“The surplusage
canon holds that it is no more the court’s function to revise by subtraction than by
addition.”).
6
Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (punctuation
omitted); accord Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009);
Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).
3
consent to the dismissal stating the reasons for consenting to such
dismissal and the court enters an order approving the dismissal.7
And in the case sub judice, Fuciarelli did not obtain written approval from the
Attorney General before bringing his claim under OCGA § 23-3-122 (l)8 and,
accordingly, the trial court properly dismissed his action.
Judge McFadden gamely attempts to rehabilitate Division 2 of the majority
opinion, but these efforts are no more convincing than the majority’s refashioning of
the statute. The plain meaning of OCGA § 23-3-122 (b) (1) makes it abundantly clear
that the requirement imposed on “a private person” to obtain “written approval by the
Attorney General” prior to initiating a “civil action under this article” means exactly
what it says, that this statutory requirement applies to the entirety of the statutory
7
OCGA § 23-3-122 (b) (1) (emphasis supplied). Cf. 31 U.S.C. § 3730 (b) (1)
(providing that under the federal False Claims Act, private persons may bring a civil
action, but only requiring written approval from the Attorney General prior to
dismissal for any such action, not prior to initiation).
8
See OCGA § 23-3-122 (l) (1) (“Any employee, contractor, or agent shall be
entitled to all relief necessary to make that employee, contractor, or agent whole if
that employee, contractor, or agent is discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against in the terms and conditions of
employment because of lawful acts done by the employee, contractor, agent, or
associated others in furtherance of a civil action under this Code section or other
efforts to stop one or more violations of this article.”).
4
article (i.e., Title 23, Chapter 3, Article 6). Try as he might, there is simply no textual
justification for Judge McFadden’s assertion that “[s]ubsection 23-3-122 (l) is . . .
distinct from the rest of the Article of which that statute is a part,” when OCGA § 23-
3-122 (b) (1) explicitly states the exact opposite.
Thus, while I fully concur with the majority in Division 1, I respectfully dissent
from Division 2 because, for all of the foregoing reasons, the trial court properly
granted the defendants’ motion to dismiss.
I am authorized to state that Judge Ray and Judge McMillian join in this
opinion concurring in part and dissenting in part.
5