author: ANDREWS, Presiding Judge. MILLER, Presiding Judge,

text:
    A15A2256.
    TRICOLI v. WATTS et al.
    (783 SE2d 475)
   ANDREWS, Presiding Judge.

Anthony Tricoli served as president of Georgia Perimeter College (GPC) for six years until he was blamed for a $16 million budget shortfall and resigned. He subsequently sued numerous individuals affiliated with GPC, the Board of Regents of the University System of Georgia, Board of Regents members, and the Georgia Attorney General for fraud, breach of contract, and violations of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO). The trial court granted the defendants’ motion to dismiss, and this appeal followed.

On appeal, Tricoli contends the trial court erred by: (1) finding there was no enforceable written employment contract between Tricoli and the Board of Regents; (2) concluding that the Georgia Tort Claims Act (GTCA), OCGA § 50-21-20 et seq., barred his RICO claims; (3) rejecting his claims for fraud, extortion, and intentional infliction of emotional distress; (4) failing to consider his claims under the Open Records Act; (5) ignoring his abusive litigation claim; and (6) ignoring his motion for preliminary injunction. We find the trial court thoroughly addressed all the issues in this case and correctly concluded that Tricoli’s claims failed under the GTCA and the doctrine of sovereign immunity.

1. Initially, we note that the standard of review applicable in this appeal is the one for review of a decision on a motion for summary judgment. Although the appeal is from the grant of a motion to dismiss, Tricoli’s submission of documentary evidence in response to the motion to dismiss constituted, in effect, a request to convert the motion into one for summary judgment and waived the notice requirement for such a conversion. See Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615, 617 (639 SE2d 399) (2006); Bd. of Regents of the Univ. System of Ga. v. Barnes, 322 Ga. App. 47, 49 (1) (743 SE2d 609) (2013). (Exhibits attached to the pleadings would not operate to convert a motion to dismiss into a motion for summary judgment, Gaddis, supra, but because a motion to dismiss is not a pleading under OCGA § 9-11-7 (a), any documents submitted in conjunction with such a motion are outside the pleadings.)

Where a defendant, who would not bear the burden of proof at trial, moves for summary judgment and shows an absence of evidence to support any essential element of the plaintiff’s case, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Cowart v. Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010). But when we review a grant or denial of summary judgment, we must construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

2. “[T]he defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract entered into by the state or its departments and agencies.” (Punctuation and footnote omitted.) Barnes, supra at 49 (2). Tricoli contends the trial court erred in concluding there was no valid written employment contract that effectuated a waiver of sovereign immunity.

However, in moving to dismiss the action, the defendants originally showed the absence of a written contract of employment, which was critical to Tricoli’s ability to show a waiver of sovereign immunity. The trial court held a hearing on the motion on September 22, 2014. Subsequently, on October 10, 2014, Tricoli submitted an August 7, 2006 letter from the chancellor of the Board of Regents offering him the GPC presidency, which he claimed constituted a written employment contract. That letter stated:

It is my pleasure to offer you an appointment to the presidency of Georgia Perimeter College, subject to the policy and terms of the Board of Regents and the approval of the Board of Regents of the University System of Georgia at its regular meeting on August 9, 2006. The appointment would be effective on October 1, 2006. The total annualized compensation for the position is $190,000.... To accept the position, please return this letter with your signature.

The defendants objected to the consideration of that letter on the grounds Tricoli had not properly notified them of the submission, and also on the grounds the letter did not constitute a valid contract of employment. On November 21, 2014, “[ajfter consideration of the evidence, counsel’s argument, and applicable statutory and case law,” the trial court granted the motion to dismiss.

Assuming arguendo the letter created a contract of employment under this Court’s ruling in Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878, 881 (1) (630 SE2d 85) (2006), it still did not save Tricoli’s breach of contract claim. The letter, which only specifies a salary and a starting date subject to the approval and policies of the Board of Regents, hardly supports a breach of contract claim. “An employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination.” Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137) (1991).

Tricoli contends his alleged written contract was subject to the Board of Regents’ written policies and that the relevant policy, as provided by the Board in its answer to a request for admission, supplied sufficient terms to supplement the letter and form an enforceable employment contract. The text of that policy statement relied upon by Tricoli stated as follows:

If the Board declines to re-appoint a president, it shall notify the president, through the Chancellor, of such decision immediately following the Board’s regularly scheduled April [later amended to May] meeting. A decision by the Board not to re-appoint a president is not subject to appeal.

The quoted policy does not provide a definite term for the contract, a promise of employment, a specific deadline for providing the notice, or a provision that Tricoli’s employment would be automatically extended for a year or some other period in the event the Board failed to provide notice of re-appointment within a certain time. As such, the policy in no way converts the August 2006 letter into an employment contract that is not terminable at will.

Further, Tricoli himself terminated any employment contract he may have had when he resigned his position as president of GPC. There was no demonstrable breach of contract by any of the defendants, and Tricoli’s contention that the defendants forced him to resign asserted a tort, not a contract breach. Lastly, the Board of Regents’ failure to renew Tricoli’s contract or offer him a contract for a different position provided no basis for avoiding the application of sovereign immunity. See, e.g., Liberty County School Dist. v. Halliburton, 328 Ga. App. 422 (762 SE2d 138) (2014).

As Tricoli failed to show an enforceable employment contract, there was no waiver of sovereign immunity on the basis of a written contract.

3. All of Tricoli’s tort claims were barred by the GTCA. OCGA § 50-21-25 (a) provides that the GTCA “constitutes the exclusive remedy for any tort committed by a state officer or employee... while acting within the scope of his or her official duties or employment____” OCGA § 50-21-23 waives sovereign immunity for torts of state officers and employees, but that waiver is subject to the exceptions set forth in OCGA § 50-21-24. Virtually all of the tortious conduct Tricoli complains of falls within those listed exceptions, and so his claims based on that conduct are barred.

4. Tricoli also asserted a claim under the Georgia RICO Act, OCGA § 16-14-1 et seq., based on the same conduct that predicated his tort claims. It is an imaginative theory of recovery to assert against the State itself, but that is about all it is — imagination. The Georgia RICO Act does not express any waiver of sovereign immunity. As noted above, OCGA § 50-21-25 (a) clearly states that the GTCA is the exclusive remedy for any torts committed by state officers and employees. Because the GTCA is the exclusive remedy, the Georgia RICO Act cannot be invoked as an alternate remedy or waiver of sovereign immunity for tortious conduct of state officers and employees.

Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013), relied upon by Tricoli, does not support finding otherwise. Colon only involved the Georgia whistleblower statute, OCGA § 45-1-4, which more clearly contained a waiver of sovereign immunity, and did not involve any other statute that was designated as the exclusive remedy where sovereign immunity is at issue.

In conclusion, because Tricoli failed to establish a written enforceable employment contract that would avoid sovereign immunity, and because Tricoli’s tort claims were exclusively governed and barred by the GTCA, the trial court properly granted the defendants’ motion.

Judgment affirmed.

Barnes, P. J., Ellington, P. J., Dillard, McFadden, and Branch, JJ., concur. Miller, P. J., dissents.

MILLER, Presiding Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that the trial court properly granted the defendants’ motion to dismiss because the trial court did not convert the motion to dismiss into a motion for summary judgment, and the Georgia Tort Claims Act is not the exclusive remedy where the RICO statute created a separate waiver of sovereign immunity.

1. The majority concludes that the trial court converted the motion to dismiss into a motion for summary judgment. The trial court, however, could not do so without providing Tricoli with notice. Bonner v. Fox, 204 Ga. App. 666, 667 (420 SE2d 312) (1992). Instead, the trial court granted the defendant’s motion to dismiss, and this Court should review the trial court’s order consistent with that standard of review.

2. The issue of whether the Georgia RICO statute provides a waiver of immunity is a question of statutory interpretation and a matter of first impression.

A statute draws its meaning, of course, from its text. When we read the statutory text, we must presume that the General Assembly meant what it said and said what it meant, and so, we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

(Citations and punctuation omitted.) Tibbles v. Teachers Retirement System of Co., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015).

The RICO Act makes it unlawful for “any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” OCGA § 16-14-4 (b). The definition of “enterprise” includes governmental entities. OCGA § 16-14-3 (3). Moreover, the statute specifically provides that “[a]ny aggrieved person” may initiate a civil action for treble damages and/or injunctive relief. OCGA § 16-14-6 (b), (c).

Importantly, nothing requires the legislature to “use specific ‘magic words’ such as ‘sovereign immunity is hereby waived’ in order to create a specific statutory waiver of sovereign immunity.” Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013). In drafting the RICO Act, the legislature made its intent clear:

It is the intent of the General Assembly . . . that [the RICO statute] apply to an interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury. This chapter shall be liberally construed to effectuate the remedial purposes embodied in its operative provisions.

OCGA § 16-14-2 (b).

The RICO statute includes governmental entities in its definition of enterprise, and it specifically provides a private individual with a civil remedy for RICO Act violations. These provisions, when viewed together, create a waiver of sovereign immunity. To read the RICO Act as the trial court and the majority do would result in a violation of statutory interpretation and lead to a nonsensical result. See Colon, supra, 294 Ga. at 96 (1).

The majority argues that the Georgia Tort Claims Act is the exclusive remedy for Tricoli’s claims and decides the case on this basis. See OCGA § 50-21-25 (a). Ibegto differ, however, with the trial court’s and majority’s conclusion that Tricoli cannot overcome the bar of sovereign immunity because the language of the RICO statute itself indicates otherwise. Imaginative or not, it is irrelevant whether Tricoli will prevail ultimately on the merits of his RICO allegations. The only issue before this Court now is whether he has pled claims that can overcome sovereign immunity at this stage of the litigation. Tricoli has certainly done so.

If Tricoli had alleged only isolated instances of tortious conduct, the Georgia Tort Claims Act would have barred his claims because the General Assembly, in drafting the RICO Act, did not intend to cover “isolated incidents of misdemeanor conduct.” OCGA § 16-14-2 (b) (emphasis supplied). Unlike the Georgia Tort Claims Act, however, the RICO Act is designed to prohibit (1) a pattern of activity, (2) intended to threaten or cause economic harm, even where that pattern involves tortious actions. See id. This is exactly'what Tricoli has alleged in his RICO claim — a pattern of tortious and criminal acts designed to threaten him with and inflict economic harm upon him. This Court cannot overlook a remedy the legislature, in its wisdom, saw fit to create. Therefore, I conclude that the Georgia Tort Claims Act is not the exclusive remedy where, as in this case, the legislature intended for the RICO Act to provide a separate waiver of sovereign immunity. Accordingly, I dissent from the majority’s opinion.

Decided March 30, 2016 —

Reconsideration denied April 14, 2016

Stephen F. Humphreys, for appellant.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Dennis R. Dunn, Deputy Attorneys General, Loretta L. Pinkston, C. McLaurin Sitton, Annette M. Couiart, Senior Assistant Attorneys General, Christopher A. McGraw, Assistant Attorney General, for appellee.

       We review de novo a trial court’s decision to grant a motion to dismiss. Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014). In doing so, we construe the pleadings in the light most favorable to the appellant, and we resolve any doubts in the appellant’s favor. Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007).

       Moreover, in other contexts, the Supreme Court of Georgia has found language similar to that found in the RICO Act sufficient to waive immunity. See Colon, supra, 294 Ga. at 95-96 (1). Specifically, in Colon, the Supreme Court concluded that the whistleblower statute, OCGA § 45-1-4, waived sovereign immunity with language that “[a] public employee . . . may institute a civil action[.]” As the Supreme Court explained, “in order for the statute to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.” (Citation omitted.) Id.

       See maj. op. at 840 (4).


source: Caselaw Access Project

author: Dillard, Judge. MCFADDEN, Judge,

license: Public Domain

text:
    A15A2303, A15A2304.
    SMITH v. NORTHSIDE HOSPITAL, INC., et al.; and vice versa.
    (783 SE2d 480)
   Dillard, Judge.

In Case No. A15A2303, E. Kendrick Smith, an attorney, appeals the trial court’s dismissal, after a bench trial, of his action to compel Northside Hospital, Inc. and its parent company, Northside Health Services, Inc. (collectively, “Northside”), to provide him with access to certain documents in response to his request under the Georgia Open Records Act (“GORA” or “the Act”). On appeal, Smith argues that the trial court erred in finding that the documents were not “public records” within the meaning of the Act and in ordering a separate trial to determine whether those documents are exempt from the Act as trade secrets. Northside cross-appeals in Case No. A15A2304, arguing that the trial court erred by preventing it from seeking any information regarding the identity of Smith’s client or clients, who Northside believed were the actual parties behind the GORA request, and Smith’s purpose for bringing this lawsuit. For the reasons set forth infra, we affirm the trial court’s dismissal of Smith’s case and dismiss Northside’s cross-appeal as moot.

The facts relevant to this appeal are largely undisputed. In 1966, the Commissioners of Roads and Revenues of Fulton County passed a resolution creating the Fulton County Hospital Authority (the “Authority’), which would “have and exercise all of the powers granted and prescribed in the Hospital Authority Laws.” The Authority was created because of the need in Fulton County for improved and increased hospital facilities to serve the community. And to that end, the Authority opened Northside Hospital, which it owned and operated for approximately the next 25 years. In the early 1990s, the Authority, recognizing “the rapidly changing healthcare environment in which it operate [d],” undertook a study, with the help of consultants, to determine how best to improve the hospital’s operations. Ultimately, the Authority concluded that the best option to achieve its goals was to restructure through a long-term lease of the hospital and related assets for operation by a private, charitable, nonprofit corporation. The Authority further determined that

[rjecent developments and opportunities affecting the ability of the [h]ospital to remain competitive and to enhance its position as a principal provider of specialty healthcare services . . . reinforced the importance of restructuring to the long term competitive position of the [h]ospital.

Based on the foregoing assessments, the Authority created Northside Hospital, Inc., a private, nonprofit corporation, and on November 1, 1991, it executed a lease and transfer agreement with the newly formed entity to facilitate the restructuring. Under this agreement, the Authority leased the hospital’s facilities and transferred all of its operating assets and existing operations to Northside for a term of 40 years. In exchange, Northside agreed to operate the hospital subject to certain restrictions, pay all of the Authority’s debts and assume all of its liabilities incurred in connection with the leased facilities and operating assets, and make a yearly rent payment of $100,000. The leased facilities included the real property, the hospital, a surgery center, office buildings, and improvements.

Relevant to the instant dispute, between 2011 and 2013, North-side entered into transactions to acquire four privately owned physician groups: Atlanta Cancer Care (“ACC”), Georgia Cancer Specialists (“GCS”), Atlanta Gastroenterology Associates (“AGA”), and Atlanta Surgery Center, Ltd. (“ASC”) (collectively, “the acquisitions”). In 2013, after learning of these transactions, Smith, a partner at an Atlanta law firm, sent a letter to Northside and the Authority, entitled “Open Records Request,” seeking access to financial statements and other documents related to the acquisitions. Specifically, the letter identified 15 different categories of requested documents related to each acquisition, including, for example, “[a]ll contracts, agreements, instruments, or other documents by which the [acquisition was effected in whole or in part”; “any indemnification agreements and any agreements concerning the management or operation ... of any medical or healthcare practice acquired...”; documents that “constitute, evidence or reflect any consideration, compensation, or remuneration of any type provided by or on behalf of [Northside]”; and “[a]ll documents that constitute, evidence, or reflect any strategic plan or business forecast for assets, membership interests, or any other property or interest acquired in the [a]cquisition” for the 24 months preceding the acquisition.

In a letter dated October 14, 2013, the Authority responded to Smith, informing him that it did not possess any records or documents that were responsive to his request. On the same day, North-side also responded to Smith, asserting that it is a private, nonprofit hospital that is not subject to GORA, and even if it was, the requested documents, which are “highly sensitive,” would be exempt under various provisions of the Act, including the trade-secrets exemption. In addition, Northside informed Smith that it had entered into binding confidentiality agreements that prohibited disclosure of the requested documents. For these reasons, Northside declined to comply with Smith’s request. Smith replied only to Northside, asserting that it was subject to the GORA because, even though it is a private entity, it performs a service or function for or on behalf of the Authority, which is a public agency within the meaning of the Act, and that no exemption applied. Nevertheless, Northside maintained that it was not subject to the Act and declined to provide Smith with access to any documents related to the acquisitions.

Subsequently, on November 15, 2013, Smith filed a complaint against Northside, requesting that the trial court compel Northside to comply with his GORA request. Northside answered and asserted a counterclaim, alleging that Smith brought this action in bad faith on behalf of one or more of his corporate clients that are competitors of Northside. Smith then moved the court to dismiss Northside’s counterclaim, arguing that the purpose of his GORA request is immaterial as a matter of law, and the trial court granted the motion. However, throughout discovery, Northside continued to seek information regarding the identity of Smith’s client or clients, who North-side contended were the real parties seeking access to its documents, as well as the purpose behind the parties making the GORA request and filing the lawsuit. Rather than answering Northside’s discovery requests, Smith filed a motion for a protective order preventing Northside from seeking such information. And after a hearing on the matter, the trial court issued the protective order “prohibiting any discovery concerning . .. Smith’s purposes in bringing the action, or the identity and purposes of any of his alleged clients.”

Discovery continued and, approximately one year into the litigation, three of the private practices that Northside acquired — AGA, ACC, and GCS — moved to intervene in the case to protect their own interests in keeping the requested documents confidential. AGA and ACC sought to intervene as defendants, and GCS sought to intervene as a third-party plaintiff to file a petition for declaratory relief. After a hearing on the matter, the trial court granted their motions.

Following protracted litigation, the case ultimately proceeded to a bench trial, which was bifurcated to resolve the two dispositive issues before the trial court: (1) whether the documents in question were “public records” under GORA; and (2) if so, whether the records contained exempt trade secrets. After Smith presented his evidence as to the first issue, Northside and the intervenors moved for an involuntary dismissal of the case, but the trial court denied the motion. However, when Northside and the intervenors renewed the motion after the close of all the evidence on the first issue, the court granted it. Smith now appeals the trial court’s dismissal of his case, and Northside cross-appeals, contending that the court erred in issuing the protective order precluding it from seeking information about the identity and motives of Smith’s corporate client or clients behind this action.

Case No. A15A2303

1. Smith first argues that the trial court erred in finding that Northside’s records concerning its acquisition of the four physician practices are not “public records” subject to GORA. We disagree.

At the outset, we note that on appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Further, in bench trials, the judge sits as trier of fact, and “the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.” However, we review any questions of law decided by the trial court de novo. Further, in ruling on a motion for an involuntary dismissal, “the trial court was not required to construe the evidence most favorably [to Smith].” And since the trial court determines the facts as well as the law, it necessarily follows that “the motion may be sustained even though plaintiff may have established a prima facie case.” Indeed, at a bench trial, the trial court “can determine when essential facts have not been proved, [and] [t]he trial court’s determination as a trier of fact will be reversed only where the evidence demands a contrary finding.” With these guiding principles in mind, we turn now to Smith’s specific claim of error.

As previously mentioned, Smith argues that the trial court erred in dismissing his case because Northside, even though it is a private entity, is subject to GORA. In doing so, he essentially contends that all of Northside’s records, including the requested records, are “public records” because it was created by the Authority as a vehicle to act on the Authority’s behalf. Further, he argues that the trial court improperly focused on what it perceived to be a lack of evidence of the Authority’s “direct involvement in the transactions at issue,” rather than “the undeniably public nature of the Northside healthcare system,” and Northside’s role in the acquisitions.

In considering the merits of Smith’s appeal, we begin, as we must, with the applicable statutory text of GORA, which requires that “[a] 11 public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure.” Thus, when there is a “request for disclosure of documents under the Public Records Act, the first inquiry is whether the records are ‘public records.’ ” And the Act defines “public records” as

all documents, .papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.

As we have recognized, GORA was “enacted in the public interest to protect the public from ‘closed door’ politics and the potential abuse of individuals and misuse of power such policies entail.” Thus, the Act must be “broadly construed to effect its remedial and protective purposes.” But even though the Act has been “broadly applied as it relates to public offices or agencies to ensure adequate public access to public records, it should not be construed broadly and in derogation of its express terms so as to bring private entities within the purview of the statute.”

In the case sub judice, contrary to Smith’s contention, the trial court did not dismiss this case based on a general determination that Northside was not subject to the Act at all. Instead, the court simply found that Smith presented no evidence that Northside entered into or performed any of the four transactions at issue on behalf of the Authority or exercised any of the Authority’s powers when doing so. Without question, the plain language of GORA, set forth supra, provides that documents or records “prepared and maintained or received by” a private entity (such as Northside) “in the performance of a service or function for or on behalf of” a public agency are subject to the Act. Thus, despite Smith’s characterization of the issue before this Court as whether Northside, as a “Richmond hospital,” is subject generally to GORA, the more pertinent question is whether the specific requested documents were prepared and maintained or received by Northside in the performance of a specific service or function for or on behalf of the Authority.

And here, the undisputed testimony and other evidence established that, in 1991, there was a complete severance between the Authority and Northside’s business decisions and operation of the hospital. Turning first to the 1991 lease-transfer agreement, the parties agreed that, under Section 2.4, the purpose of the lease was to “effect... the transfer of control over all of the Leased Facilities, the existing Operations and the Operating Assets to Northside” in exchange for Northside operating the hospital, assuming the Authority’s debts and obligations related to the leased property, and making a yearly rent payment of $100,000. This section further provides that “North-side during the term [of the lease] shall use the Operating Assets and Existing Operations so transferred to it in the operation of the Leased Facilities and in furtherance of Northside’s purposes as set forth in its Articles of Incorporation and as otherwise permitted” by the lease. In addition, Section 7.2 of the lease provides that “[s]o long as Northside is not in default under this Agreement, Northside shall have sole and exclusive charge of the operation of the Leased Facilities.”

In executing the lease, the Authority retained only four specified powers: (1) to prepare and adopt an annual budget for the Authority and to conduct a yearly audit; (2) to file certain reports required by law regarding the Authority’s activities; (3) to cooperate with North-side and to use its best efforts to issue revenue anticipation certificates or other evidence of indebtedness in accordance with the Agreement; and (4) to enter contracts with government agencies to obtain funds and to receive funds and grants from same for the maintenance and operation of the hospital or to provide medical care to indigent persons and for other public health purposes. And not long after the lease was executed, in February 1992, the Authority also amended its bylaws to “clarify the fact that there ha[d] been a change in the Authority and that [it] no longer ha[d] responsibility for hospital operations.” An Authority representative further indicated that the amendment was “needed to accurately reflect the Authority’s actual role and avoid confusion” caused by both the Authority and Northside’s bylaws “stating the same function.” Thus, the language of the lease agreement itself provided that Northside would have exclusive control over the hospital’s operations without interference from the Authority and that Northside would operate the hospital for its own purpose.

As to the specific acquisitions at hand, the evidence showed that the Authority had no involvement whatsoever in those transactions. Specifically, the Authority’s chairman testified that, although the Authority owns the assets that it leased to Northside, it does not control the hospital’s operations, and to his knowledge, the Authority has never instructed Northside to enter into any transactions. According to the chairman, the lease made “very clear” that Northside operates the hospital for its own purpose. He further explained that, although Northside and the Authority have a “friendly’ and “cooperative” relationship, there is a “clear separation” between the two entities. As to the transactions at issue, the chairman testified that the Authority never requested that Northside acquire the physician practices, nor did it approve of those acquisitions in advance. In fact, the chairman did not even know about Northside’s acquisitions until he read about them in the newspaper.

Similarly, Northside’s director of finance and system controller, who was the Northside representative who had the most “direct and regular interaction” with the Authority, testified that the Authority had no involvement in the acquisitions and that Northside did not seek guidance from the Authority before negotiating and executing those transactions. In fact, she testified that “approval and direction is never sought from the Authority,” and Northside never received support, financial or otherwise, from the Authority with respect to the acquisitions. The finance director knew “exactly what funds are used for what [Northside] projects and in what counties,” and her undisputed testimony was that no public funds were used to finance the acquisitions.

Representatives from the intervenors, who were directly involved in negotiating the transactions with Northside, also testified to the Authority’s complete lack of involvement in the negotiation process. For example, the president of GCS testified that GCS negotiated solely with Northside, which it knew to be a private entity, and that he had no interaction whatsoever with the Authority in connection with the transaction. He further testified that GCS required North-side to sign a confidentiality agreement due to its concerns over providing Northside with sensitive information, and if GCS had known that the records it transferred to Northside would be provided to the Authority, GCS “probably would not have” entered into the transaction.

Likewise, the practice administrator of AGA testified that AGA provided “competitively sensitive and confidential” documents to Northside, and she was “stunned” when she learned of Smith’s GORA request. Because AGA was not aware of any public entity that participated in the transaction, it was also unaware that it could be subject to the Act. Not only was the Authority not involved during the negotiations, but AGA’s practice administrator had never even heard of the Authority before this lawsuit. As with GCS, AGA “might not have entered into the transaction at all” if it knew that the documents it provided to Northside could be subject to a GORA request. Lastly, the chief executive officer of ACC also testified that the Authority was never involved in the negotiations between ACC and Northside, and that ACC was “surprised” when it learned of Smith’s GORA request because it was dealing only with a private entity.

Ultimately, in granting Northside and the Intervenors’ renewed motion for an involuntary dismissal, the trial court found that Smith had presented no evidence that Northside acquired any of the four private physician practices on behalf of the Authority or that the Authority discussed in advance, requested, approved, or authorized Northside to enter into those transactions. In arguing that the trial court erred in finding that the requested documents are not “public documents,” Smith primarily relies on Northwest Georgia Health System, Inc. v. Times-Journal, Inc., and Clayton County Hospital Authority v. Webb, cases in which this Court held that certain requested documents of private entities were subject to a GORA request based on their involvement with county hospital authorities. However, these cases are readily distinguishable.

In Northwest Georgia Health System, a private entity’s subsidiary hospital corporations contractually agreed to operate public hospital authority assets “for the public good” and the private entity’s statement of corporate purpose was, in part, “to operate those assets for the benefit of and performing the function of . . . several public hospital authorities.” In addition, seven members of the private entity’s board of trustees were also members of five different hospital authorities. Under such circumstances, we held that “these private, nonprofit corporations became the vehicle through which the public hospital authorities carried out their official responsibilities.” But here, Northside’s bylaws contain no language indicating that the hospital’s purpose was to act for the public good or as a vehicle to carry out the Authority’s official responsibilities. And although, as discussed supra, the lease-transfer agreement granted Northside the ability to act on the Authority’s behalf, it also provided that Northside was to operate the leased facilities for its own purposes and the Authority retained the power to take only four specific actions, none of which involved the acquisition of private physician practices. More importantly, the specific issue before us in Northwest Georgia was whether the trial court erred in granting the plaintiff’s motion for declaratory relief, and by declaring that the private nonprofit entities were subject to GORA and the Georgia Open Meetings Act. In the case sub judice, the trial court’s decision did not make a general declaration that Northside is never subject to GORA, and that is not the holding of this Court. Instead, in line with long-standing Georgia jurisprudence, our analysis is centered on whether the particular requested documents are public.

Furthermore, in Webb, unlike the instant case, the requested documents of the private entities remained in the “possession and control” of the hospital authority. Based on the particular facts of that case, we held that there was a “sufficient basis to conclude that the private corporations functioned under the direction and control of the Authority to implement the Authority’s duty to provide for the public health.” But here, unlike in Webb, the Authority did not possess or control any of the requested documents and the overwhelming evidence, detailed supra, established that, since its creation, Northside has never functioned under the direction and control of the Authority. Indeed, the Authority’s chairman was not even aware of the private acquisitions in this case until they were reported publicly in the media. Lastly, it is worth noting that neither Northwest Georgia nor Webb established a bright-line rule that all of a private nonprofit hospital’s documents are subject to disclosure when it is affiliated in any way with one or more county hospital authorities. Instead, the holdings in those cases were based on the particular facts before the court.

In support of its position that Northside was acting on behalf of the Authority in entering the four private transactions at issue, the dissent relies on our decision in United HealthCare of Georgia, Inc. v. Georgia Department of Community Health, in which we held that a private insurance company’s documents relating to its contract with the Georgia Department of Community Health for the administration of certain State benefits were public documents within the meaning of GORA. However, rather than relying on the general nature of the relationship between the private and public entities, as the dissent would have us do, the Court in that case began with the “threshold question” as to whether the documents at issue were public records. In considering the particular transaction at issue, we held that the documents were public records when, inter alia, the transaction involved “current and future expenditure of substantial public funds,” and there was “significant” and “active” involvement of public officials. Here, it is undisputed that no public funds were used to finance the relevant transactions and there was no involvement of any public officials.

The only evidence that Smith relies on to show the Authority’s “involvement” in the acquisitions is evidence that Northside’s chief financial officer also serves as the Authority’s treasurer, Northside’s chief legal services officer is also the Authority’s secretary, and four members of the Authority also sit on Northside’s board. However, he identifies no specific involvement of any of these individuals in their capacity as a member of the Authority with respect to Northside’s acquisitions. Smith contends that the Authority’s secretary, as North-side’s chief legal services officer, “personally maintains the requested acquisition records.” But the evidence presented below also showed that there was no relationship or overlap between her duties and responsibilities as the Authority’s secretary, a voluntary position, and her duties and responsibilities as a Northside employee. In addition, the Authority’s treasurer testified that she had been “told” that she was its treasurer, but she had “never been asked to do anything for the Authority.” To the extent that this testimony created a conflict in the evidence, we must view the evidence in favor of the trial court’s ruling. Further, we note that, even if there was evidence that any Authority member was also involved in the acquisitions in their capacity as a Northside employee (which there is not), the Supreme Court of the United States has recognized that there is a “presumption that an act is taken on behalf of the corporation for whom the officer claims to act.”

In the case most analogous to this one, Corp. of Mercer University v. Barrett & Farahany, LLP, we held that documents created and maintained by a private college’s campus police department were not subject to a GORA request when no public office or agency had “expressly requested” that the campus police perform a service or function on its behalf, even though campus police are given authority to perform certain functions by two Georgia statutes. We explained that “[t]he [GORA’s] statutory language simply does not provide this Court with the authority to compel entities that are private, but are granted the authority to perform public functions, to disclose their records.” And this Court further noted that “simply performing some task or function that has an indirect public benefit, or which aids the public as a whole, does not transform a private entity’s records into public records.”

Here, not only did the Authority never expressly request that Northside make the acquisitions on its behalf, the Authority was not even aware of the acquisitions until after they were completed. Moreover, the me fact that Northside’s healthcare operations and services may provide an indirect public benefit does not convert its private documents into public records absent any evidence that the documents relate to Northside’s performance of a specific function on the Authority’s behalf.

In sum, Smith seeks documents related to commercial transactions between private entities, which the Authority had no knowledge, interest, or involvement in to any degree. Indeed, these acquisitions were negotiated and executed solely by Northside for its own private purposes, and it did not seek the Authority’s approval or even inform the Authority of its plans in advance. Moreover, Smith presented no evidence that any public officials participated in the negotiations, and it was undisputed that no public funds were used to finance the acquisitions. Given these particular (and unique) facts and circumstances, the trial court was authorized to conclude that the documents specifically requested by Smith were not “public documents” within the meaning of GORA.

2. Smith also argues that the trial court erred in ordering a separate trial to determine whether the requested documents were exempt from GORA as trade secrets. However, given our holding in Division 1 supra (i.e., that the trial court properly dismissed Smith’s case because the requested documents are not “public records” within the meaning of the Act), the issue of whether the documents qualified for the trade-secrets exemption is moot.

Case No. A15A2304

3. In its cross-appeal, Northside argues that the trial court erred in precluding it from seeking information regarding the identity of the corporate client or clients for whom Smith initiated this action and the motive for doing so. However, given our holding in the primary appeal, affirming the trial court’s dismissal of this case, Northside’s cross-appeal, challenging a discovery ruling, is likewise moot.

For all of the foregoing reasons, we affirm the trial court’s dismissal of Smith’s GORA action in Case No. A15A2303, andinCase No. A15A2304, we dismiss Northside’s cross-appeal as moot.

Judgment affirmed in Case No. A15A2303. Appeal dismissed as moot in Case No. A15A2304.

Ellington, P. J., Phipps, P. J., and Ray, J., concur. McMillian, J., concurs in judgment only. Barnes, P. J., and McFadden, J., dissent.

MCFADDEN, Judge,

dissenting.

I respectfully dissent. Because the Authority has certain official, governmental responsibilities, and Northside is the vehicle through which the Authority discharges those responsibilities, and Northside entered the transactions described in the documents at issue in the course of its discharge of those responsibilities, I would hold that those documents were indeed prepared and maintained or received by Northside on behalf of the Authority. And I would therefore hold that those documents are subject to the Open Records Act.

The lease-transfer agreement, as a matter of law, cannot shield those documents from the Open Records Act. And as a matter of fact, it does not attempt to shield them.

So I would reverse the trial court’s holding that the records are not public records within the meaning of the Open Records Act. Consequently, I would reach two issues the majority does not. I would remand for the trial court to decide whether particular documents contain trade secrets and therefore fall within an exception to the Act. I would affirm the grant of the protective order.

1. Public records.

Hospital authorities “exercise public and essential governmental functions.” OCGA § 31-7-75. So there is no question that the Authority’s records are public records within the meaning of the Open Records Act. See Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 45 (273 SE2d 841) (1981); OCGA § 50-18-70.

The Authority has chosen to discharge its “governmental obligation to provide for the health of the people ... by the lease of the hospital” to Northside. Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 184 (1) (336 SE2d 562) (1985) (citation and punctuation omitted).

(a) As a matter of law.

Whether the documents at issue are likewise public records is answered by our holding in Northwest Ga. Health System v. Times-Journal, 218 Ga. App. 336 (461 SE2d 297) (1995). In that case, we held that the trial court was authorized to conclude that certain private, nonprofit corporations were

the vehicle through which the public hospital authorities carried out their official responsibilities. Consequently, despite [their] private, nonprofit status [,] ... as vehicles for public agencies [they] were subject to the Open Meetings Act, and .. . documents [requested under the Open Records Act] were public records under the Open Records Act.

Id. at 340 (1) (citation and punctuation omitted). Because Northside is the vehicle through which the Authority carries out its official responsibilities and, as discussed below, the documents at issue concern Northside’s execution of that delegated responsibility, those documents are public records under the Open Records Act.

That holding in Northwest Ga. Health System has been approved by the General Assembly. In 1997 the General Assembly enacted OCGA § 14-3-305 to impose certain reporting and conflict-of-interest requirements on nonprofit corporations formed, created, or operated by or on behalf of a hospital authority. Subsection (e) of the statute provides:

Nothing in this Code section shall be deemed or construed to affect in any manner the provisions of Code Section 31-7-75.2 [an exemption in the Hospital Authorities Law to the Open Meetings Act and Open Records Act], Chapter 14of Title 50 [the Open Meetings Act], or Article 4 of Chapter 18 of Title 50 [the Open Records Act] or to change existing law as to whether such statutory provisions are applicable to nonprofits.

OCGA § 14-3-305 (e) (emphasis supplied). (The term “nonprofits” as used in that statute “means any corporation which is formed, created, or operated by or on behalf of a hospital authority.” OCGA § 14-3-305 (a).) Two years before OCGA § 14-3-305 was enacted, we held in Northwest Ga. Health System that the records of such nonprofit corporations were public records within the meaning of the Open Records Act. Northwest Ga. Health System, 218 Ga. App. 336. “All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” Nuci Phillips Mem. Foundation v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380, 383 (1) (703 SE2d 648) (2010) (citation and punctuation omitted).

Our decision in Northwest Ga. Health System rested on undisputed facts. And, as the majority observes, the relevant facts in this case are largely undisputed as well. We conduct a de novo review of the application of the law to the undisputed facts. See Maddox v. Schrader, 268 Ga. 661, n. 3 (492 SE2d 521) (1997). Nothing in Northwest Ga. Health System, or any of the cases in its line, identifies any factors relevant here that would authorize a contrary result. See United HealthCare of Ga. v. Ga. Dept. of Community Health, 293 Ga. App. 84, 87-89 (1) (666 SE2d 472) (2008) (records of private companies, whose actions involved the expenditure of public resources, were public records because companies were vehicle through which state agency carried out its public function of administering state health insurance plan); Corp. of Mercer Univ. v. Barrett & Farahany, LLP, 271 Ga. App. 501 (610 SE2d 138) (2005), superseded by statute on other grounds (documents created and maintained by private college campus’s police department were not subject to Open Records Act because no public agency had expressly requested that the campus police perform a service or function on its behalf); Dept. of Human Resources v. Northeast Ga. Primary Care, 228 Ga. App. 130, 134-135 (4) (491 SE2d 201) (1997) (observing that Open Records Act has been applied to private entities when public agencies have delegated to them their official responsibilities and authority).

If — as the majority holds — Northside were not the vehicle through which the Authority carries out its official responsibilities, then the validity of the entire lease-transfer agreement would be in question. And if Northside were riot the vehicle through which the Authority discharges its responsibility “to provide for the health of the people,” Richmond County Hosp. Auth., 255 Ga. at 184 (1), then no one would be meeting that obligation. And if Northside were to stop providing those services, “the [Authority] would be required to step in to establish another method” for discharging its obligation. Red & Black Publishing Co. v. Bd. of Regents, 262 Ga. 848, 854 (3) (b), n. 13 (427 SE2d 257) (1993) (emphasis omitted).

In short, while the Authority was certainly free to delegate those responsibilities, it was not free to abdicate them. And, contrary to the majority, the terms of the lease-transfer agreement repeatedly make very clear that it is not an attempt to abdicate them.

(b) Terms of the lease-transfer agreement.

In support of its conclusion that Northside has no responsibility under the terms of that agreement to act for the public good or as a vehicle to carry out the Authority’s official responsibilities, the majority relies on two provisions of the lease-transfer agreement: (1) that Northside would use “the Operating Assets and Existing Operations so transferred to it in the operation of the Leased Facilities and in furtherance of Northside’s purposes as set forth in its Articles of Incorporation and as otherwise permitted by [the] Agreement”; and (2) that Northside would “have sole and exclusive charge of the operation of the Leased Facilities.”

But the lease-transfer agreement and Northside’s articles of incorporation show that the responsibilities Northside has undertaken are much broader than that. As to the first of those provisions, the lease-transfer agreement does provide that Northside was to operate the leased facilities “in furtherance of [its] purposes.” But it specifies that those purposes are “set forth in its Articles of Incorporation” — not the bylaws as the majority implies. And the relevant provision of Northside’s articles of incorporation, which is set out below, • simply states that its corporate purpose is “to operate, directly or indirectly, health care facilities for the benefit of the general public. . . .” (Emphasis supplied.) This, of course, is precisely in line with the Authority’s delegation of its governmental obligations to Northside.

Further, the lease-transfer agreement describes the Authority’s stated intent in leasing to Northside a facility composed of a hospital, a surgery center, and two office buildings for $100,000 per year, as to “promote the public health needs of the community by making additional facilities available in the community,” “by lowering the cost of health care in the community,” and by “seizing] available opportunities both within and outside Fulton County.” As discussed below, at the end of the lease term, those “seize [d] opportunities” become the property of the Authority. The transactions reflected in the documents at issue, acquisition of the four physician practices, furthers the Authority’s stated goal of “seizing] available opportunities.” Consequently, Northside’s acquisition of those practices is on behalf of the Authority and the documents related to those acquisitions are public records.

As to the second of those provisions, the agreement does indeed provide that Northside has “the power and authority to stand in the place of the Authority” and that the parties intend that the Authority’s “grant of powers and authority shall be broadly construed and that Northside shall have full power to act for the Authority, in the Authority’s name, place and stead in any and all circumstances.” Indeed, as the majority points out, the Authority retained only limited duties and powers under the lease. It necessarily, then, delegated to Northside the remainder of its powers and responsibilities so as to satisfy its governmental obligation. But contrary to the majority what that means is that the lease-transfer agreement, in its parts and as a whole, sets out an express intent to make Northside the entity to which the Authority delegated its governmental responsibilities and authority. It is the vehicle through which the Authority acts.

That intent is reaffirmed in other provisions of the lease-transfer agreement. The agreement ensures that the Authority retains sufficient control over the hospital to satisfy the requirements of the Hospital Authorities Law. A provision of that law, OCGA § 31-7-75 (7), requires that, before a hospital authority enters a lease agreement like the one at issue here, it must “first determine [ ] that such lease will promote the public health needs of the community.” And a hospital authority is required by that same subsection to “retain[ ] sufficient control” over the project to ensure that the lessee obtains no more than a reasonable rate of return on its investment. Id.

The lease-transfer agreement further provides that the operating assets, which include all subsequent accumulations by Northside, presumably including the acquisitions at issue here, will revert to the Authority at the end of the lease. It even contemplates a method of disposing of Northside assets that the Authority cannot legally hold: Northside will dispose of such assets according to the Authority’s direction, with the proceeds reverting to the Authority.

And the lease-transfer agreement expressly provides that North-side stands in the place of the Authority and that the agreement was intended to “promote the public health needs of the community.”

Those express acknowledgments of Northside’s public purpose defeat the majority’s attempt to distinguish Northwest Ga. Health System on the basis of language in the corporate bylaws at issue in that case, which provided that the nonprofit corporation there was organized “for the benefit of, to perform the functions of, or to carry out the purposes of” the involved hospital authorities. Northwest Ga. Health System, 218 Ga. App. at 337. Moreover the language the majority cites was but one factor the Northwest Ga. Health System court considered in determining that the trial court was authorized to find that the nonprofit corporation in that case was the vehicle through which the authorities acted.

The majority also attempts to distinguish Northwest Ga. Health System on the ground that the case concerned only certain, particular documents. But that opinion was not so narrow. It did not describe or distinguish among documents requested, and its analysis did not turn on the scope or nature of the documents requested.

Another fact supporting the conclusion that Northside is performing a service or function on behalf of the Authority is that the Authority has placed a valuable public asset into Northside’s hands — the leased premises. In United Health Care of Ga., 293 Ga. App. at 88 (1), we concluded that the records of certain private companies were public records because the companies were the vehicle through which a state agency carried out its public function of administering the state health insurance plan, which involved the expenditure of public funds. When a public agency has entrusted a private entity with public resources, we held, that fact is at least some indication that the private entity is performing a public-agency function.

The trial court here focused on what she perceived to be the lack of evidence that the Authority was involved in “the transactions at issue in this case.” But the Northwest Ga. Health System court looked to the overall nature of the relationships between the hospital authorities and the private, nonprofit corporations, not to any particular transactions. Contrary to the majority’s characterization, I would not decide that “all of a Richmond hospital’s documents are public records” for purposes of the Open Records Act. It is unnecessary to reach such a sweeping construction in this case, because here it is abundantly clear that Northside entered the four transactions on behalf of the Authority, and the documents related to those transactions are therefore public records. And while I would hold that these documents are public records within the meaning of the Open Records Act, I would also hold, as detailed in Division 2 of this dissent, that the case must be remanded for the trial court to determine whether the documents are subject to an exception to the Act. SeeOCGA § 50-18-72, which sets out a long list of statutory exceptions to the Open Records Act.

The case that the majority relies on as most analogous to the instant case does not support its position. See Corp. of Mercer Univ., 271 Ga. App. at 501. In that case, as the majority describes, we held that documents created and maintained by a private college campus’s police department were not subject to the Open Records Act because no public agency had expressly requested that the campus police perform a service or function on its behalf. Here, on the other hand, the Authority expressly delegated its governmental obligations to Northside, in part to enable it “to seize available opportunities,” such as the four acquisitions at issue. The relevance of Corp. of Mercer Univ. is that we found the Act not applicable when, unlike here, the private entity did not carry out “some public purpose at the express request of a public office or agency.” Id. at 505 (1) (b).

For these reasons, consistent with the General Assembly’s declaration in the Open Records Act that it is “the strong public policy of this state . . . that public access to public records should be encouraged,” OCGA § 50-18-70 (a), I would conclude that the documents Smith requested are public records within the meaning of the Act.

I acknowledge that Northside has made countervailing policy arguments: that subjecting entities like Northside to the Open Records Act would prevent them from competing effectively in the marketplace and that counties should be permitted, if not encouraged, to get government out of the healthcare business. But Northside’s policy arguments should be addressed to the General Assembly. We have neither the institutional competence to properly evaluate them nor the legitimate authority to subordinate to them the policy announced by the General Assembly in the text of the Open Records Act.

2. Trade secrets exception.

Whether the requested documents are exempted from disclosure under a trade secrets exception to the Open Records Act, see OCGA §§ 50-18-72 (a) (34), 31-7-75.2, remains for resolution. Smith argues that the trial court erred in ruling that Northside is entitled to a trial on its claim of exemption. But he did not seek a pretrial resolution of the exemption issue, and the trial court issued no ruling denying such a motion. So this enumeration presents nothing for review. See Matthews v. Tele-Systems, 240 Ga. App. 871, 875 (5) (525 SE2d 413) (1999) (“[Tjhere is no order from which to appeal. Thus, there is nothing for us to review.”) (citation omitted); McDaniel v. State, 221 Ga. App. 43, 46 (1) (470 SE2d 719) (1996) (this court “has no jurisdiction to address issues . . . raised for the first time on appeal”) (citation omitted).

3. Protective order.

Northside appeals the trial court’s grant of Smith’s motion for a protective order prohibiting any discovery concerning the identity of Smith’s clients or their purpose in bringing the action. “It is well settled that the conduct of discovery is within a trial court’s broad discretion.” Exxon Corp. v. Thomason, 269 Ga. 761, 763 (3) (504 SE2d 676) (1998) (citations omitted). And “[ujnless the trial court has clearly abused [that] discretion,... we will defer to [her] conclusion about whether a protective order should be granted.” Norfolk Southern R. Co. v. Hartry, 316 Ga. App. 532, 534 (729 SE2d 656) (2012) (citation omitted).

Northside argues that the information it seeks is relevant to its argument that the records Smith requested are trade secrets exempt from the Open Records Act. It elaborates that the information it seeks would show that Smith’s client is a competitor that sought the documents for competitive purposes, thus supporting its contention that the documents are protected by the trade secrets exemption of the Open Records Act.

At the hearing on the motion for protective order, Northside conceded that it has other ways of establishing that the documents are trade secrets, and, in fact, contended that it already had done so. And Smith’s counsel conceded at oral argument before this court that, for purposes of analysis of the scope of the applicability of the Open Records Act, Northside is entitled to the benefit of the assumption that Smith’s client is a competitor.

At the time the trial court entered the protective order, she already had dismissed Northside’s counterclaim, which she characterized as asserting claims for

unfair competition, interference with contractual relationships, interference with ongoing and prospective business relationships, attempting to obtain business secrets under false pretenses, and pursuing a sham, false, and frivolous lawsuit in order to gain unfair and improper competitive advantage.

She held that “[s]uch claims necessarily involve the intentions, purposes, and motivations behind [Smith’s] current action seeking enforcement of the Open Records Act,” and that allowing the counterclaims to proceed would have a “chilling effect” and “would circumvent well-established public policy in favor of open government.” A trial court may prevent the

use of discovery which is oppressive, unreasonable, unduly burdensome or expensive, harassing, harsh, insulting, annoying, embarrassing, incriminating, or directed to wholly irrelevant and immaterial or privileged matters or as to matter concerning which full information is already at hand.

Sechler Family Partnership v. Prime Group, 255 Ga. App. 854, 857 (2) (567 SE2d 24) (2002) (citation omitted). Compare Galbreath v. Braley, 318 Ga. App. 111, 112-113 (733 SE2d 412) (2012) (reversing grant of protective order that prohibited litigant from conducting discovery “necessary” to his case).

Decided March 30, 2016 —

Reconsideration denied April 14, 2016

Jones Day, Peter C. Canfield, Lucas W. Andrews, Samantha R. Mandell, Rebekah N. Plowman, Daniel J. Conner, Jr., Laura K. Gura, for appellant.

Dentons US, J. Randolph Evans, Thurbert E. Baker, Bryan E. Bates, Nathan L. Garroway; Baker & Hostetler, James C. Rawls, S. Derek Bauer, Ian K. Byrnside; Susan V. Sommers; Nelson, Mullins, Riley & Scarborough, S. Wade Malone, Charles T. Huddleston, Jessica Rutledge; Kilpatrick, Townsend & Stockton, Sidney S. Welch, Jeremy P. Burnette; Edward C. Konieczny, for appellees.

Hull Barrett, David E. Hudson, amicus curiae.

Under these facts, Northside has not shown that the trial court abused her discretion.

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

        See OCGA § 50-18-70 et seq.

       To the extent that there are any disputed facts in this case, we note that, “[i]n reviewing a judgment entered in a bench trial, we construe the evidence in favor of the judgment and the court’s factual findings will not be disturbed when supported by any evidence.” Callahan v. Hall, 302 Ga. App. 886, 887 (691 SE2d 918) (2010) (punctuation omitted). We further note that the first eight pages of the “Statement of Material Facts” in Smith’s appellate brief include only a single record citation, which is in a footnote and merely references an amicus brief from an unrelated case. The burden, of course, is on “the party alleging error to show it affirmatively by the record[,] [and] [w]hen the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” Fleming v. Advanced Stores Co., 301 Ga.App. 734, 736 (688 SE2d 414) (2009) (punctuation omitted); see also Court of Appeals Rule 25 (c) (2) (i). Further, to the extent that any of Smith’s alleged “material facts” in this portion of his brief are supported by the more than 7,000 pages of record, we take this opportunity to remind him that “it is not the function of this Court to cull the record on behalf of a party in search of instances of error.” Fortson v. Brown, 302 Ga. App. 89, 90 (1) (690 SE2d 239) (2010) (punctuation omitted).

        See OCGA § 31-7-70 et seq.

         The lease noted that the Authority’srestrueturingplanwasauthorizedbyOCGA § 31-7-70 et seq. and the Supreme Court of Georgia’s decision in Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183 (336 SE2d 562) (1985). Private hospitals such as Northside created under similar restructuring plans by government entities are sometimes referred to in the parties’ briefs and throughout the record as “Richmond hospitals.” See OCGA § 31-7-75 (7) (granting hospital authorities the power to enter lease agreements to, inter alia, “promote the public health needs of the community”).

       Smith has never disputed that the Authority did not possess any of the requested documents.

       Northside also filed a motion to dismiss the case on the basis that Smith was not the real party in interest, but the trial court denied the motion, noting that the language of the GORA allows “any person, firm, corporation or other entity’ to bring an action in superior court to enforce compliance with its provisions. See OCGA § 50-18-70.

        Brock Built, LLC v. Blake, 316 Ga. App. 710, 712 (730 SE2d 180) (2012) (punctuation omitted).

        Id. (punctuation omitted).

        Washington v. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009).

        Ivey v. Ivey, 266 Ga. 143, 144 (1) (465 SE2d 434) (1996); accord Smith v. Ga. Kaolin Co., 269 Ga. 475, 476 (1) (498 SE2d 266) (1998).

        Ivey, 266 Ga. at 144 (1) (punctuation omitted); see also Smith, 269 Ga. at 476 (1).

        Ivey, 266 Ga. at 144 (1) (citation and punctuation omitted); accord Smith, 269 Ga. at 476 (1).

        See In the Interest of L. T., 325 Ga.App. 590, 591 (754 SE2d 380) (2014) (“[I]n considering this question of statutory interpretation, we necessarily begin our analysis with familiar and binding canons of construction.” (punctuation omitted)); accord Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).

       OCGA § 50-18-71 (a).

        Napper v. Ga. Television Co., 257 Ga. 156, 160 (a) (356 SE2d 640) (1987); accord Nw. Ga. Health Sys., Inc. v. Times Journal, Inc., 218 Ga.App. 336, 338 (1) (461 SE2d 297) (1995); see also United Healthcare of Ga., Inc. v. Ga. Dep’t of Cmty. Health, 293 Ga.App. 84, 87 (666 SE2d 472) (2008).

       OCGA § 50-18-70 (b) (2) (emphasis supplied). We note that, here, it is undisputed that the Authority is a public “agency”’ within the meaning of the Act and that Northside is a private, nonprofit corporation. See Cox Enterprises, Inc. v. Carroll City/Cty. Hosp. Auth., 247 Ga. 39, 45-46 (273 SE2d 841) (1981) (determining that a city/county hospital authority is a “governmental entity”); Griffin-Spalding Cty. Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 445 (1) (241 SE2d 196) (1978) (noting that “the ‘hospital authority’s law’ describes [a county hospital] authority as a public corporation”).

        United Healthcare of Ga., Inc., 293 Ga. App. at 86 (punctuation omitted); see also Wallace v. Greene Cty., 274 Ga. App. 776, 782 (2) (618 SE2d 642) (2005).

        United HealthCare of Ga., Inc., 293 Ga. App. at 86 (punctuation omitted); accord Wallace, 274 Ga. App. at 782 (2).

        United Healthcare of Ga., Inc., 293 Ga. App. at 86-87 (punctuation omitted); accord Corp. of Mercer Univ. v. Barrett & Farahany, LLP, 271 Ga. App. 501, 503 (1) (a) (610 SE2d 138) (2005), superseded by statute on other grounds; see also Evans v. Ga. Bureau of Investigation, 297 Ga. 318, 319 (773 SE2d 725) (2015) (“[A]lthough exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed in derogation of its express terms.” (punctuation omitted)).

       OCGA § 50-18-70 (b) (2). The dissent contends that our opinion holds that Northside is not the vehicle through which the Authority carries out its official duties, suggesting that our conclusion is that Northside is not subject to GORA. This is a mischaracterization of our holding. Instead, we have simply noted that, under the plain terms of the Act, records of any private entity may be subject to GORA to the extent that the particular records requested meet the criteria of OCGA § 50-18-70 (b) (2). As explained supra, in considering whether specific requested documents are subject to the Act, our first task is to determine whether those particular documents are “public.” See supra footnote 15 & accompanying text. The dissent would render this analytical step meaningless by holding that all of a Richmond hospital’s documents are public merely because it is generally subject to GORA. But this would effectively (and impermissibly) transform Northside into a public entity for the purposes of GORA. Suffice it to say, there is nothing in the text or structure of GORAremotely supporting such a sweeping construction of the statute. See supra footnote 19 & accompanying text.

        See OCGA § 50-18-70 (b) (2) (providing that “public recordfs]” include those “prepared and maintained or received ... by a private person or entity in the performance of a service or function for or on behalf of an agency...”); see also Hackworth v. Bd. of Educ. for City of Atlanta, 214 Ga. App. 17, 19-20 (1) (a) (447 SE2d 78) (1994) (“Because of the statutory definition, our focus in cases under the Act is necessarily not on the actor but on the particular, discrete
        function performed by that actor. We must determine whether that function is a public one, rendering the records generated in the course of its performance subject to the Act.”). As demonstrated in footnote 47 infra, when considering GORArequests served on private entities with public affiliations, Georgia courts have focused on whether the specific “requested documents” qualify as public records under the particular facts of each case, not whether the private entity itself is or is not subject to the Act.

       The only witness at trial who was a member of the Authority at the time when the 1991 lease-transfer agreement was executed testified that the primary reason for the restructuring was to make the hospital more competitive. He explained that, as a government agency, the Authority could not expand its facilities outside of Fulton County, “could not enter into private transactions, could not enter into joint ventures, [and] could not enter into a for profit operation! ]•” In addition, he testified that, at the time, the Authority wanted to “remove politics from the governance so that it could operate without interference.” According to this witness, under the lease-transfer agreement, Northside would operate the hospital, while the Authority would merely he “the landlord.”

       As noted hy the dissent, the lease-transfer agreement provides that one of the purposes of the agreement is to promote the public-health needs of the community in various ways. And the agreement also granted Northside the ability to transact business “in connection with the Leased Facilities,” as well as to “stand in the place of the Authority’ to perform any function that the Authority could legally perform. But given Northside’s exclusive control over hospital operations and its ability to also act for its own purposes, we are unpersuaded that the lease-transfer agreement established, as the dissent suggests, that any action ever taken by Northside is necessarily taken on the Authority’s behalf. In any event, regardless of the provisions of the lease-transfer agreement, GORA plainly provides that Northside’s documents may only be rendered public if they actually are maintained or received on behalf of a public entity. See OCGA § 50-18-70 (b) (2). As discussed more fully infra, there is no evidence in this case that Northside entered the four specific transactions at issue on the Authority’s behalf or at its direction.

       218 Ga. App. 336 (461 SE2d 297) (1995).

       208 Ga. App. 91 (430 SE2d 89) (1993).

       Smith also relies heavily throughout his brief on Richmond County Hosp.Auth., 255 Ga. 183, the Supreme Court of Georgia case expressly holding that entering a lease-transfer agreement such as the one in this case is a valid exercise of a hospital authority’s power under the Hospital Authorities Act. See generally id. at 184-92 (l)-(2). However, in Richmond County, the lease-transfer agreement expressly included a requirement that the private entity comply with GORA. See id. at 191 (2) (a). Because the instant case does not involve a challenge to the validity of the lease-transfer agreement, Richmond County is not relevant to the resolution of this appeal.

        Nw. Georgia Health System, Inc., 218 Ga. App. at 340 (1).

        See id. at 338.

        Id. at 340 (1).

        See id. The dissent contends that our decision in Northwest Georgia turned on the “overall nature of the relationships between the hospital authorities and the private, nonprofit corporations, not to any particular transactions,” and that a document-by-document analysis is only appropriate in determining whether particular documents are exempt from the Act. However, before we can consider whether particular documents are exempt from the Act, we must first determine whether the documents requested from the private entity may he deemed public, which generally turns on the nature of the transaction. See infra footnote 47 & accompanying text. Unlike this case, in Northwest Georgia there is no indication that the private entity disputed that, if it were subject to the Act, the specific requested documents were public in nature.

        See infra footnote 47.

        See Webb, 208 Ga. App. at 94 (1).

        Id.

       Similarly to Northwest Georgia, the defendants in Webb “relied not on the specific content of any requested document to demonstrate its private nature, but rather on the claim that the documents were those of private corporations not subject to the Act.” See Webb, 208 Ga. App. at 95 (1). And the Webb Court noted that the private entities had not provided the requested records to the court, and explained that if the private corporations “intended to rely upon the specific contents of the withheld documents as a defense to production under the Act, they had the burden of producing the records for inspection by the court.” Id. at 94-95 (1) (emphasis supplied). But unlike in those cases, Northside has maintained throughout this entire litigation that the specific documents requested by Smith are not public documents within the meaning of the Act.

        See Nw. Ga. Health Sys., Inc., 218 Ga. App. at 340 (1) (“[T]he trial court in the case sub judice was authorized to conclude on the facts before it that [the private entities], as vehicles for public agencies, were subject to the Open Meetings Act, and that the requested documents were ‘public records’ under the Open Records Act.” (punctuation omitted) (emphasis supplied)); Webb, 208 Ga. App. at 95 (1) (“Despite the private status of the corporations, the trial court was authorized to find on the facts before it that they were subject to the Act, and that the requested documents were ‘public records’ under the Act.” (emphasis supplied)).

       293 Ga. App. 84 (666 SE2d 472) (2008).

       See id. at 84, 87-89 (1).

       See id. at 87.

       See id. at 88 (1).

       See Callahan, 302 Ga. App. at 887.

        United States v. Bestfoods, 524 U. S. 51, 70 (IV) (B) (1) n.13 (118 SCt 1876, 141 LE2d 43) (1998); see also Raytheon Constructors, Inc. v. Asarco Inc., 368 F3d 1214, 1217 (II) (10th Cir. 2003) (noting that “dual officers can and do ‘change hats’ to represent . . . two corporations separately’); Lusk v. Foxmeyer Health Corp., 129 F3d 773, 779 (III) (5th Cir. 1997) (noting the well-established principle of corporate law that directors and officers holding positions with a parent company and its subsidiary can and do “change hats” to represent two corporations separately).

       271 Ga. App. 501 (610 SE2d 138) (2005), superseded by statute on other grounds.

        See id. at 503-04 (1) (a), 505 (1) (b).

        Id. at 505 (1) (b).

        Id.

        See id.

        See Corp. of Mercer Univ., 271 Ga. App. at 505 (1) (b) (holding that a private college’s campus police reports were not “public records” when no public office or agency expressly requested that the campus police perform a service or function on its behalf). Cf. Macon Tel. Pub. Co. v. Bd. of Regents of Univ. Sys. of Ga., 256 Ga. 443, 444-45 (350 SE2d 23) (1986) (holding that documents maintained by a private athletic association affiliated with a public university were “public documents” when the president of the university was responsible for controlling the intercollegiate program, the athletic association was used by university officials to carry out that responsibility, and the requested documents were under a university official’s direction and control); United Healthcare of Ga., Inc., 293 Ga. App. at 88 (1) (holding that records of a private entity were “public records” when the relevant actions by that entity involved “current and future expenditure of substantial public funds,” there was “significant” and “active” involvement of public officials, and the private entity was the “vehicle” or “management tool” through which the public agency had chosen to carry out the service or function on its behalf); Cent. Atlanta Progress, Inc. v. Baker, 278 Ga. App. 733, 735-38 (1) (629 SE2d 840) (2006) (holding that documents related to a bid for property by a private company were “public documents” under the Act when the bid was funded by “substantial public resources”; the city’s mayor pledged to use tax allocation proceeds to fund the construction on the property; public officials and employees participated in the preparation and promotion of the bid; the bid was approved by various public officials; and winning the bid was “very important” to the State, City, and County); Hackworth, 214 Ga. App. at 19 (1) (a) (holding that personnel records of school bus drivers, who were employees of a private company that contracted with Atlanta’s Board of Education to provide bussing services, were “public records” when student transportation was a ‘legitimate function” and the responsibility of the Board, the private company was a tool used by the Board to carry out this responsibility, maintaining personnel records regarding the hiring and management of school bus drivers was an “integral part” of the Board’s public functions, and the Board had the right to approve the employment of all drivers or to cause the company to remove them); Webb, 208 Ga. App. at 94 (1) (holding that certain records of private corporations were “public records” when those records remained in possession and control of a hospital authority, and there was a “sufficient basis to conclude that the private corporations functioned under the direction and control of the Authority to implement the Authority’s duty to provide for the public health” (emphasis supplied)).

        See Murray v. Ga. Dep’t of Transp., 284 Ga. App. 263, 272 (5) (644 SE2d 290) (2007) (dismissing the appellees’ cross-appeal when the trial court’s judgment in the main appeal was affirmed).

       The purposes of the corporation are to operate, directly or indirectly, health care facilities for the benefit of the general public and, specifically, to own, lease, and operate hospitals, clinics, and other health care facilities, to provide hospital and medical care and related functions, and generally to undertake and perform all other activities necessary, incidental, useful, or advisable, directly or indirectly, to the foregoing including the exercise of all other powers and authorities permitted for the corporation by the Georgia Nonprofit Corporation Code, subject to the limitations of Section 501 (c) (3) of the Code.
      (Emphasis supplied.)


author: Peterson, Judge.

text:
    A16A0140.
    MALPHURS v. THE STATE.
    (785 SE2d 414)
   Peterson, Judge.

Juaquin Malphurs’ bag had a gun in it. There are many places in Georgia where a gun in a bag would not excite comment; unfortunately for Malphurs, the TSA screening area of Hartsfield-Jackson International Airport is not among them. Malphurs did not have a weapons carry license and was arrested and charged with several crimes. Notably for the purposes of this appeal, he was charged with violation of OCGA § 16-11-127 (which makes it a misdemeanor for a person without a weapons carry license to carry a weapon in a government building) and OCGA § 16-11-130.2 (which makes it a misdemeanor for a person without a weapons carry license to possess knowingly a weapon while entering an airport security screening checkpoint). Malphurs appeals the trial court’s denial of his general demurrer, arguing that the two statutes conflict as applied to his case, and that he can be charged only under OCGA § 16-11-130.2 (with its more demanding knowledge requirement). We affirm the trial court because the two statutes do not conflict.

The material facts are not disputed for purposes of this appeal. On October 10, 2014, Malphurs placed his luggage on an x-ray scanner at the TSA security checkpoint at Hartsfield-Jackson International Airport. As the bag proceeded through the scanner, TSA agents observed an apparent handgun inside the bag. A police officer confirmed the handgun’s presence in Malphurs’ luggage. Malphurs did not hold a weapons carry license and was subsequently arrested and charged with five counts. Counts 1 and 2 charged him with carrying a weapon in an unauthorized location in violation of OCGA § 16-ll-127(b), Count 3 charged him with reckless conduct, Count 4 charged him with carrying a concealed weapon in violation of OCGA § 16-11-126, and Count 5 charged him with carrying a weapon at a commercial airport in violation of OCGA § 16-11-130.2. He demurred to both counts of carrying weapons in unauthorized locations, which the trial court granted with respect to Count 1 but denied for Count 2. Malphurs filed a motion for reconsideration, which the trial court denied, prompting this interlocutory appeal.

Malphurs argues as his sole enumeration of error that the trial court erred by denying his demurrer as to Count 2 because it is based on a violation of OCGA § 16-11-127, which he argues conflicts with the statute on which Count 5 was based, OCGA § 16-11-130.2. He argues that OCGA § 16-11-130.2 must control because it is the more specific statute governing the conduct at issue, and because the legislature intended it to supersede OCGA § 16-11-127 as applied to airports. We disagree.

We review a trial court’s ruling on a general demurrer de novo “in order to determine whether the allegations in the indictment are legally sufficient.” Sallee v. State, 329 Ga. App. 612, 616 (2) (765 SE2d 758) (2014) (citations omitted).

OCGA § 16-ll-127(b) prohibits people who lack weapons carry licenses from carrying a weapon in a government building. See OCGA § 16-ll-127(b). A “government building” is defined as a “building in which a government entity is housed[.]” OCGA § 16-ll-127(a)(2)(A). Malphurs concedes that the airport qualifies as a “government building” within the meaning of OCGA § 16-11-127. Violation of this subsection by a person who lacks a weapons carry license constitutes a misdemeanor. See OCGA § 16-ll-127(b).

OCGA § 16-11-130.2 prohibits an individual from entering a restricted access area of a commercial service airport in or beyond the airport screening checkpoint while knowingly possessing or having under his or her control a weapon or long gun, and specifically excludes from the prohibited area the “airport drive, general parking area, walkway, or shops and areas of the terminal that are outside the screening checkpoint and that are normally open to unscreened passengers or visitors to the airport.” OCGA § 16-11-130.2(a). Violation of this subsection by a person who lacks a weapons carry license constitutes a misdemeanor, absent intent to commit a separate felony. See OCGA § 16-11-130.2(b).

Malphurs argues these provisions conflict as applied to his case because although OCGA §§ 16-11-130.2 and 16-11-127 both prohibit weapons in Hartsfield-Jackson, only OCGA § 16-11-130.2 requires the possession to be “knowing.” But Malphurs is mistaken. “When the courts are called upon to determine if there is a conflict between statutes they are required to undertake to construe them together and seek to give full effect to both laws as representing all of the legislative intention.” Fulton Cnty. v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 133 Ga. App. 847, 851 (1) (C) (212 SE2d 451) (1975). Both statutes apply here without conflict.

As a nonlicense holder, Malphurs was prohibited under OCGA § 16-11-127(b)(1) from carrying a weapon into a government building —• that is, the airport. See OCGA § 16-ll-127(b)(l). He could be validly charged with a misdemeanor for violating this prohibition, and indeed, was charged with such a violation in Count 2 of his indictment, which he now challenges on appeal. That Malphurs allegedly committed a separate offense by entering the airport security screening checkpoint while knowingly possessing or having in his control a weapon does not invalidate the first charged offense. In this context, OCGA § 16-11-127 criminalizes the carrying of a weapon by a nonlicense holder through the airport’s doorway. If Malphurs had stopped there, he would have violated only OCGA § 16-11-127. OCGA § 16-11-130.2 then criminalizes carrying the weapon further — to the security screening checkpoint. There is no conflict between the statutes.

Malphurs argues, however, that interpreting the statutes in this manner ignores the General Assembly’s intent in passing OCGA § 16-11-130.2. He asserts that the General Assembly intended to relax gun laws as they relate to carrying firearms in airports, and concludes that we would undermine that intent by applying OCGA § 16-11-127 to the nonsecure portions of airports carved out of OCGA § 16-11-130.2’s prohibition. We disagree.

It is fair to presume that the General Assembly intended to provide some protection against prosecution when firearms are brought to an airport’s security checkpoint; indeed, that is precisely what the textof OCGA § 16-11-130.2 does. But the text of that protection limits its scope to preventing prosecution for the crime created by OCGA § 16-11-130.2.

The focus of OCGA § 16-11-130.2’s protection is on weapons carry license holders. License holders — and only license holders — have the opportunity to leave the security area without criminal penalty after being notified they have a firearm; people like Malphurs who lack a license have no similar opportunity. See OCGA § 16-11-130.2(b). The same statutory distinction is also present in OCGA § 16-11-127. There, license holders — and only license holders — may carry firearms in nonsecure portions of government buildings and have the opportunity to leave a security screening area without criminal penalty after being notified that they have a weapon. OCGA § 16-ll-127(e)(l). People who lack a license may not carry weapons in government buildings at all. OCGA § 16-ll-127(b)(l).

If Malphurs was a license holder, he could have carried his firearm in the nonsecure portion of the airport under both OCGA § 16-11-130.2 (because OCGA § 16-11-130.2 carves that portion out from its prohibition for all people) and OCGA § 16-11-127 (because license holders can carry firearms in nonsecure portions of government buildings). He also could have left the security screening area without criminal penalty once his gun was discovered under both OCGA § 16-11-130.2 (because the statute allows license holders to do so) and OCGA § 16-11-127 (because the statute allows license holders to do so).

But because Malphurs was not a license holder, he is not entitled to the protections the General Assembly applied only to license holders. Not being a license holder, Malphurs could have carried his firearm in the nonsecure portion of the airport under OCGA § 16-11-130.2 (because OCGA § 16-11-130.2 carves those portions out from its prohibition for all people), but not under OCGA § 16-11-127 (because people who lack weapons carry licenses cannot carry firearms in any portion of government buildings). And not being a license holder, neither OCGA § 16-11-130.2 nor OCGA § 16-11-127 allowed him to leave the security screening area without criminal penalty.

Instead, Malphurs is left merely to argue that the General Assembly intended to protect carriers of firearms generally, and thus we should read the statutory scheme to protect him. But that is not how legislative intent or laws work. The General Assembly does not enact a general intention; it enacts statutes. Statutes have words, and words have meanings. It is those meanings that we interpret and apply, not some amorphous general intention.

Our conclusion is buttressed by the implications Malphurs’ argument would have for other firearm statutes. Malphurs was also charged with violating OCGA § 16-11-126, which prohibits persons without a weapons carry license from carrying a weapon anywhere outside of their property, their motor vehicle, or their place of business. If OCGA § 16-11-130.2’s carve-out of nonsecure portions of airports affords not merely protection against prosecution under OCGA § 16-11-130.2, but also creates an affirmative right for anyone to carry a weapon in those portions of airports, the necessary implication is that OCGA § 16-11-126 now has a fourth place in which persons who lack weapons carry licenses can carry weapons: their home, their car, their place of business, and nonsecure portions of airports. The language of OCGA § 16-11-130.2’s carve-out is not rights-creating language (such as “persons may carry weapons”), it is a double negative (no person shall carry weapons in a restricted access area, but such area shall not include nonsecure locations). We decline Malphurs’ invitation to invent new rights not created by the General Assembly.

We arrive at this conclusion without considering one authority to which the parties seek to draw our attention. Both parties rely on what they call legislative history of the two statutes at issue to support their respective arguments. They point us to an article about the legislation in the Georgia State University Law Review, which in turn quotes an op-ed in the Atlanta Journal-Constitution written by State Representative Rick Jasperse — the author of a different bill that did not pass, some provisions of which were incorporated into a bill that did — regarding his belief of the legislation’s intent. See Tyler Becker et al., Crimes And Offenses: Offenses Against Public Order and Safety, 31 Ga. St. U. L. Rev. 47, 50 n. 11 (Fall 2014). The trial court likewise relied on this article in its order. But this is not the kind of legislative history on which it is appropriate to rely.

As we have previously observed, our concern is with the actual text of statutes, not the subjective statements of individual legislators expressing their personal intent in voting for or against a bill. See Walters v. State, 335 Ga. App. 12, 15 n.3 (780 SE2d 720) (2015); Rutter v. Rutter, 316 Ga.App. 894, 896 (1) n.5 (730 SE2d 626) (2012). See also Merritt v. State, 286 Ga. 650, 653-57 (690 SE2d 835) (2010) (Nahmias, J., concurring specially); Day v. Floyd County Bd. of Educ., 333 Ga. App. 144, 150-51 (775 SE2d 622) (2015) (Dillard, J., concurring fully and specially); Keaton v. State, 311 Ga. App. 14, 26 n.17 (714 SE2d 693) (2011) (Blackwell, J., concurring in part and dissenting in part). And the very “legislative history” on which the parties seek to rely explains why this is so.

Decided April 19, 2016.

The Findling Law Firm, Drew Findling, Marissa Goldberg, for appellant.

Tasha M. Mosley, Solicitor-General, Charles A. Brooks, Keith E. Gammage, Assistant Solicitors-General, for appellee.

The law review article on which all the parties rely quotes Rep. Jasperse’s views on the intent of the legislature, but it also discusses at length conflicting views of the House Minority Leader, Rep. Stacey Abrams. 31 Ga. St. U. L. Rev. 47 at 51, 68, 69. Although Rep. Jasperse voted in the majority and Rep. Abrams voted in the minority, that does not constitute a reason to consider one view as more legally significant than another; the one-person, one-vote principle applies to the red and green buttons on the desks of the General Assembly as much as it does at the ballot box. Rep. Jasperse’s vote on the legislation counted as one vote only, precisely the same weight afforded to Rep. Abrams’ vote; similarly, his subjective statements about why he cast that vote are no more relevant to our determination of the meaning of the statutory text than are Rep. Abrams’. Accordingly, we do not consider either and limit our consideration only to the text and context of the statute.

For the reasons outlined above, the trial court did not err in denying Malphurs’ general demurrer.

Judgment affirmed.

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

       The State devotes the first two substantive pages of its brief to an argument that we should disregard Malphurs’ brief because its page margins do not comply with Rule 24(c) of our court, and his record citations are improperly formatted. The State is factually correct in its criticism, but fails to notice that its brief, too, fails to comply with our rules. The font of the State’s footnotes is far smaller than the 10 characters per inch required by our Rule 1(c). Counsel for both parties are reminded of their obligation to comply with our rules, and we will exercise our discretion to address the arguments presented. See Jones v. State, 241 Ga. App. 768, 769 (1) (527 SE2d 611) (2000). See also Matthew 7:1-5.

       Count 1 charged Malphurs with carrying a weapon without a license in an unauthorized location, that is, “in the Transportation Security Administration (TSA) passenger screening checkpoint, a restricted access and unauthorized location for firearms, while in a government building.”

       Count 2 charged Malphurs with carrying a weapon without a license in an unauthorized location, that is, “into a government building, Hartsfield-Jackson Atlanta International Airport[,]” and further noted that the “count is separate and distinct from any other counts” of the accusation.

       That kind is “a more objective sort of legislative history, the legislative votes upon, and amendments of, the bills that ultimately were passed and approved as the statutes in question.” Rutter v. Rutter, 316 Ga. App. 894, 896 (1) n.5 (730 SE2d 626) (2012) (overruled on other grounds).