author: MILLER, Presiding Judge. McMlLLIAN, Judge,

text:
    A17A0295.
    COWARD et al. v. MCG HEALTH, INC.
    (802 SE2d 396)
   MILLER, Presiding Judge.

Catherine Coward and Mary Bargeron (collectively “Plaintiffs”) sued MCG Health, Inc., alleging that MCG Health terminated their employment in violation of Georgia’s Whistleblower Statute, OCGA § 45-1-4. The trial court granted summary judgment to MCG Health, and Plaintiffs now appeal, contending, inter alia, that they each established a prima facie case of retaliation under OCGA § 45-1-4; that MCG Health’s true reasons for terminating their employment were discriminatory; and that the reasons articulated by MCG Health for their termination were pretextual. After a thorough review of the record, we conclude that Plaintiffs failed to show this Court that their complaints triggered the protections afforded by the Georgia Whistle-blower Statute. Therefore, neither Coward nor Bargeron established that she engaged in a protected activity for purposes of establishing a prima facie case under OCGA § 45-1-4, and we must affirm the grant of summary judgment to MCG Health.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Caldon v. Bd. of Regents of the Univ. System of Ga., 311 Ga. App. 155 (715 SE2d 487) (2011); see also Tuohy v. City of Atlanta, 331 Ga. App. 846 (771 SE2d 501) (2015).

So viewed, the record shows that Plaintiffs are registered nurses. Coward began working for MCG Health in 2001 and was trained as a charge nurse. Bargeron began working for MCG Health in 2004 as a Senior Staff R.N. and also worked as a charge nurse. Initially, Plaintiffs were assigned to the child and adolescent psychiatric unit, and they occasionally worked in the adult psychiatric unit (hereinafter the “Adult Unit”).

In August 2009, Plaintiffs were reassigned to work in the Adult Unit on a regular basis. On September 11,2009, Coward was assigned to work as the charge nurse for the 3:00 p.m. to 11:00 p.m. shift in the Adult Unit. Although Coward had been the charge nurse in the Adult Unit before, including the prior day, she asked another nurse to take her place as charge nurse for that shift. Coward did not report the change in assignments to any manager at MCG Health or to the unit clerk who provided administrative support for the Adult Unit. This was the first time Coward had changed her charge nurse assignment since her transfer to the Adult Unit.

On the evening of September 15, 2009, Coward was working in the Adult Unit when a patient in that ward attempted suicide. Coward’s supervisor came in that night and took statements from the staff, including Coward. Coward told her supervisor that she believed that the attempted suicide resulted from short-staffing in the Adult Unit. One week later, MCG Health terminated Coward’s employment for refusing to perform her assigned duties as charge nurse on September 11, 2009.

On May 31, 2010, Bargeron was assigned to work as the charge nurse in the Adult Unit. The unit was busy, and there was no unit clerk when Bargeron arrived for her shift at 3:00 p.m. Bargeron twice called her manager to report that the unit was understaffed, and Bargeron’s manager told her both times to obtain the necessary official status report from the prior shift’s charge nurse so as to transition between the two shifts. During the second phone call, Bargeron informed her manager that she had not obtained a status report from the prior shift’s charge nurse, and Bargeron refused to go forward with her staffing assignment. The supervisor instructed Bargeron to go home, and, a few days later, MCG Health terminated Bargeron’s employment for refusing her May 31 assigned shift.

Plaintiffs subsequently filed suit against MCG Health, alleging that it retaliated against them for speaking out about the understaff-ing and terminated their employment in violation of OCGA § 45-1-4 (hereinafter the “Whistleblower Statute”). Following discovery in this case, MCG Health moved for summary judgment, arguing that Plaintiffs failed to establish a prima facie case of retaliation. MCG Health further argued that it had legitimate, nondiscriminatory reasons for terminating Plaintiffs’ employment and that Plaintiffs could not show that the reasons for their termination were pretex-tual. The trial court granted summary judgment to MCG Health, and this appeal ensued.

1. On appeal, Plaintiffs contend that the trial court erred in granting summary judgment to MCG Health. We disagree.

The Whistleblower Statute, OCGA § 45-1-4,

prohibits public employers from (1) retaliating against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency; or (2) retaliating against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.

(Citation and punctuation omitted.) Caldon, supra, 311 Ga. App. at 158. Our appellate courts have repeatedly explained that

[i]n construing a statute, this [Cjourt applies fundamental rules of statutory construction [that] require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to look diligently for the intention of the General Assembly. Where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.

(Citations omitted.) Lue v. Eady, 297 Ga. 321, 332 (3) (b) (773 SE2d 679) (2015).

In the context of evaluating whether a state whistleblower claim is subject to summary adjudication, this Court utilizes the McDonnell Douglas burden-shifting analysis used in Title VII retaliation cases. Tuohy, supra, 331 Ga. App. at 848-849 (1); see McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-806 (93 SCt 1817, 36 LE2d 668) (1973).

Under the McDonnell Douglas framework, the plaintiff must first make a prima facie case of retaliation. If the plaintiff makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment decision. If the employer successfully meets this burden of production, then the burden shifts back to the plaintiff to show that each proffered reason was pretext.

(Citations omitted.) Tuohy, supra, 331 Ga. App. at 849-850 (1).

On appeal, Plaintiffs specifically argue that they satisfied the prima facie case because (i) MCG Health was a public employer; (ii) they engaged in protected activities when they complained about staffing issues; and (iii) they were terminated as a result of their conduct.

To establish a prima facie case of retaliation under the Whistle-blower Statute,

a public employee must demonstrate that (1) [she] was employed by a public employer; (2) [she] made a protected disclosure or objection; (3) [she] suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action.

(Citations and footnote omitted.) Albers v. Ga. Bd. of Regents of the Univ. System of Ga., 330 Ga.App. 58, 61 (1) (766 SE2d 520) (2014); see also Forrester v. Ga. Dept. of Human Svcs., 308 Ga. App. 716, 722 (1) (a) (708 SE2d 660) (2011) (physical precedent only).

Addressing the second prong of the prima facie case, the plain language of the Whistleblower Statute required Coward and Bargeron to show that they either (1) disclosed a violation of or noncompliance with a law, rule, or regulation to a supervisor or (2) objected to or refused to participate in an activity, policy, or practice that they reasonably believed to be in violation of or noncompliance with a law, rule, or regulation. See OCGA § 45-1-4 (d) (2), (3). Under the Whistle-blower Statute, a law, rule, or regulation “includes any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance.” OCGA § 45-1-4 (a) (2).

(a) Whether Coward made a protected disclosure or objection .

Coward complained to her supervisor that the Adult Unit was short-staffed after a patient attempted suicide, which Coward attributed to an insufficient nurse-to-patient ratio. Coward also told her supervisor that she thought that short-staffing was affecting patient care and was a “chronic problem.” In making these complaints, Coward identified only internal operating procedures for staffing requirements as the basis for her concerns. Indeed, she admitted in her deposition that she never identified to her supervisor that the understaffing violated any law, rule, or regulation. Complaints arising under internal policies are not, however, the type of protected activity the Whistleblower Statute was intended to protect. Edmonds v. Bd. of Regents of the Univ. System of Ga., 302 Ga. App. 1, 6-7 (1) (689 SE2d 352) (2009) (a safety concern arising under an internal policy is not a law, rule, or regulation under the statute), disapproved in part on other grounds, Wolfe v. Bd. of Regents of the Univ. System of Ga., 300 Ga. 223, 232 (2) (d), n. 5 (794 SE2d 85) (2016).

Construed in Coward’s favor, her own testimony, and the record as a whole, show that, prior to her termination, Coward failed to engage in any activity that would have triggered protection under the Whistleblower Statute. Moreover, no evidence showed that she objected to or refused to participate in an activity, policy, or practice that she reasonably believed to be in violation of, or in noncompliance with, a law, rule, or regulation. Regardless of whether these apparently serious concerns may have been justified by the lack of sufficient nursing support for MCG Health’s patients, Coward did not allege that MCG Health violated a law, rule, or regulation until she filed her response to MCG Health’s motion for summary judgment.

In reaching this conclusion, we need not determine what terminology is required to trigger the protections of the Whistleblower Statute, nor do we believe that the statute requires specific magic words. All we conclude is that Coward’s pre-termination statements to her supervisors about staffing that was inconsistent with the hospital’s internal policy, without any allegation that this understaff-ing violated a law, rule, or regulation, is insufficient.

Thus, even assuming without deciding that Coward met the other required elements of a prima facie case, she failed to show that she made a protected disclosure or objection and, therefore, she failed to establish a prima facie case of retaliation under the Whistleblower Statute. See OCGA § 45-1-4 (d) (2), (3); Edmonds, supra, 302 Ga.App. at 6-7 (1).

(b) Whether Bargeron made a protected disclosure.

Construed in Bargeron’s favor, the record shows that she also complained to her supervisor only that patient care was lacking because the hospital was short-staffed and not that MCG Health engaged in any unlawful activity Consequently, for the reasons set forth above, Bargeron, like Coward, did not disclose a violation or failure to comply with any law, rule, or regulation prior to her termination. See Brathwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111, 115 (2) (729 SE2d 625) (2012).

(c) Whether Bargeron objected to or refused to participate in an activity, policy or practice which she reasonably believed to be in violation of or noncompliance with a law, rule, or regulation.

Our analysis of Bargeron’s claim does not end here, however, because she was terminated for refusing her assigned shift as charge nurse in the Adult Unit, and she testified that she refused her shift due to concerns about understaffing. Bargeron’s concerns were based on internal hospital staffing standards and the needs of the specific patients in the unit at that time. No matter how well-founded, we are constrained to find that Bargeron’s general safety concerns regarding understaffing in the unit based on the hospital’s internal operating procedures do not qualify as protected activity under the plain language of the statute. See OCGA § 45-1-4 (d) (3); Edmonds, supra, 302 Ga. App. at 6-7 (1). Compare Albers, supra, 330 Ga. App. at 62 (1) (a) (factual question remained regarding whether university police chief engaged in protected whistleblowing activity where he reasonably believed that the university administration had obstructed justice in violation of the law by interfering with a criminal investigation). Consequently, Bargeron also failed to establish that she objected to or refused to participate in an activity, policy, or practice which she reasonably believed to be in violation of or noncompliance with a law, rule, or regulation so as to qualify for the protections of the Whistleblower Statute. Therefore, she likewise failed to establish a prima facie case of retaliation.

Decided June 27, 2017

Reconsideration denied July 11, 2017

John M. Brown, for appellants.

Constangy, Brooks, Smith & Prophete, Frank L. Butler III, Alyssa K. Peters, Jeffery L. Thompson, for appellee.

Because neither Coward nor Bargeron engaged in any conduct that qualified as protected activity under the Whistleblower Statute, the trial court properly concluded that they failed to satisfy the requirements for a prima facie case of retaliation. In so holding, we recognize the importance of employees raising safety concerns. Nevertheless, and no matter how well-intended, Coward’s and Bargeron’s conduct did not rise to the level of activity specifically given legal protection under penalty of law by our legislature. See Edmonds, supra, 302 Ga. App. at 6-7 (1). Compare Albers, supra, 330 Ga. App. at 62 (1) (a). Since Plaintiffs failed to engage in an activity that would trigger protection under the Whistleblower Statute, the trial court properly granted summary judgment to MCG Health.

2. In light of our conclusion in Division 1 that Plaintiffs failed to establish that they engaged in protected activity, we need not address Plaintiffs’ remaining enumerations of error.

Judgment affirmed.

Barnes, P. J., concurs. McMillian, J., concurs in judgment only.

McMlLLIAN, Judge,

concurring in judgment only.

While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only, and as a result, the majority’s opinion is not binding precedent. See Court of Appeals Rule 33 (a).

       The trial court concluded that Plaintiffs failed to establish a prima facie case of retaliation. Consequently, the trial court did not reach the issues of whether MCG Health’s true reasons for terminating Plaintiffs’ employment were discriminatory or whether its stated reasons for doing so were pretextual.

       According to the Merriam-Webster Dictionary, a charge nurse is a nurse who is in charge of one section of a hospital, https://www.merriam-webster.com/dictionary/charge nurse.

       Bargeron testified in her deposition that obtaining the status report involved meeting with the staff already in the Adult Unit regarding how many patients were in the unit, what is going on with each patient, including each patient’s level of care, and whether they were expecting any new admissions.

       Bargeron testified that she got a general “report” based on her own assessment of the unit and the “little bit” of information she was told by the prior shift’s charge nurse. Bargeron admitted, however, that she told her supervisor that she never obtained a status report from the prior shift’s charge nurse, and she admitted that she never got an official status report.

       Both Coward and Bargeron availed themselves of the internal grievance process to appeal their terminations, which were upheld.

       Because we conclude that Plaintiffs did not engage in protected activity, we need not decide whether MCG Health is a “public employer” under the Whistleblower Statute and we express no opinion on this apparently open question.

       It is undisputed that neither Coward nor Bargeron made any disclosures to an outside government agency. See OCGA § 45-1-4 (a) (1), (d) (2).


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A15A1092.
    In the Interest of D. V. H., a child.
    (802 SE2d 887)
   McFADDEN, Presiding Judge.

In In the Interest of D. V. H., 335 Ga. App. 299 (779 SE2d 122) (2015), we affirmed the juvenile court’s dismissal of two delinquency petitions brought by the state against D. V. H. In In the Interest of M. D. H., 300 Ga. 46 (793 SE2d 49) (2016), the Supreme Court of Georgia reversed our decision. Therefore, we vacate our earlier opinion, we adopt in its place the Supreme Court’s opinion in In the Interest of M. D. H., 300 Ga. 46, and we reverse the judgment below.

Decided July 11, 2017.

Stephen A. Bradley, District Attorney, Joseph M. McKinnon, Assistant District Attorney, for appellant.

Bethany A. Begnaud, for appellee.

Judgment reversed.

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


author: Ray, Judge. DILLARD, Presiding Judge,

text:
    A17A0265.
    BELLSOUTH TELECOMMUNICATIONS, LLC et al. v. COBB COUNTY et al.
    (802 SE2d 686)
   Ray, Judge.

Defendants BellSouth Telecommunications, LLC, and Earth-link, Inc., Earthlink, LLC, Deltacom, LLC, and Business Telecomm, LLC (collectively, “Defendants”), filed this interlocutory appeal from the trial court’s denials of their motions to dismiss the complaints by Cobb County and Gwinnett County (collectively, the “Counties”) regarding the Defendants’ alleged violations of the Georgia Emergency Telephone Number 9-1-1 Service Act of 1977, OCGA § 46-5-120 et seq. (the “9-1-1 Act”). The 9-1-1 Act requires telephone customers to pay a monthly charge to the telephone companies, which act as middlemen to collect and remit the collected charges to local governments that run 9-1-1 call centers and dispatch emergency services. See OCGA § 46-5-134 (a), (b). The Counties allege that the Defendants purposefully did not bill — and therefore, their customers did not pay — enough 9-1-1 charges under the statute. The Counties seek to hold the Defendants liable for damages equal to the amount of 9-1 -1 charges owed by their customers, as well as for punitive damages.

We agree with the Defendants that the 9-1-1 Act does not explicitly or implicitly sanction a direct right of action by the Counties against the Defendants due to their alleged failure to bill or collect the required fees, but also find that the Counties may pursue their claims against the Defendants for the alleged failure or refusal to collect the 9-1-1 charges pursuant to OCGA §§ 51-1-6 and 51-1-8. However, the viability of any common law claims may turn on whether the 9-1-1 charges are taxes or fees. As any decision thereon is premature at this stage of the proceedings, we remand this issue for further consideration.

Background

In 1977, the General Assembly passed the 9-1-1 Act to “establish and implement a cohesive state-wide emergency telephone number 9-1-1 system which will provide citizens with rapid, direct access to public safety agencies by dialing telephone number 9-1-1 [.] ” OCGA § 46-5-121 (a). The 9-1-1 Act authorizes a local government to pay for the 9-1-1 services it provides by “imposing] a monthly 9-1-1 charge upon each telephone service” that is or would be served by the 9-1-1 service. OCGA § 46-5-133 (a). The 9-1-1 Act broadly describes “telephone service” as “any method by which a 9-1-1 emergency call is delivered to a public safety answering point[,]” and includes

local exchange telephone service or other telephone communication service, wireless service, prepaid wireless service, mobile telecommunications service, computer service, Voice over Internet Protocol service, or any technology that delivers or is required by law to deliver a call to a public safety answering point.

OCGA § 46-5-122 (16.1).

The 9-1-1 Act makes telephone companies intermediaries between local governments and citizens for the purpose of collecting the funds necessary to implement the 9-1-1 service and dispatch centers. It provides that telephone customers “may be billed for the monthly 9-1-1 charge” of up to $1.50 for each subscription per telephone service provided. OCGA § 46-5-134 (a) (1) (A). The specific language of the Act provides:

Each service supplier shall, on behalf of the local government, collect the 9-1-1 charge from those telephone subscribers to whom it provides telephone service in the area served by the emergency 9-1-1 system. As part of its normal billing process, the service supplier shall collect the 9-1-1 charge for each month a telephone service is in service, and it shall list the 9-1-1 charge as a separate entry on each bill. . . .

OCGA § 46-5-134 (a) (1) (B). The same requirement applies to wireless service, except for services billed to federal, state or local governments. See OCGA § 46-5-134 (a) (2) (C). Further, “[e]ach service supplier that collects 9-1-1 charges” may “retain ... an administrative fee” and “[t]he remaining amount shall be due quarterly to the local government^]” OCGA § 46-5-134 (d) (1). The 9-1-1 Act further grants local governments the right to “audit or cause to be audited the books and records of service suppliers with respect to the collection and remittance of 9-1-1 charges.” OCGA § 46-5-134 (d) (4).

The Counties sued the Defendants alleging that they should have billed two classes of customers a larger amount of 9-1-1 charges. The Counties argued that Defendants were required to, but did not, bill a 9-1-1 charge for all of the “exchange access lines, channels, or pathways” available to customers that purchased “multiplex” services, which can carry multiple simultaneous calls over a single physical line, and that Defendants were required to, but did not, bill a 9-1-1 charge for every ten-digit telephone number provided to users of VoIP technology. The complaints, inter alia, assert damages claims arising out of these alleged violations of the 9-1-1 Act and arising out of common law theories of recovery and seek to enforce the 9-1-1 Act’s audit provision.

The Defendants moved to dismiss the Counties’ complaints. After a consolidated oral argument, the trial court denied the motions to dismiss. In its order, the trial court held that the 9-1-1 charges constitute fees, rather than taxes; that the lawsuit was permissible because there is “no express language” preventing the Counties from bringing the action and that “[i]t is implausible that the General Assembly would confer auditing powers without a corresponding remedy” and that the Counties could enforce the 9-1-1 Act through common law claims based on alleged violations of the 9-1-1 Act. This Court granted the Defendants’ application for interlocutory review.

Analysis

1. The parties agree that the 9-1-1 Act does not contain an express right of action authorizing local governments to enforce the statute against telephone companies and service suppliers. However, the plaintiff Counties allege and the trial court found that the statutory scheme of the 9-1-1 Act indicates an intent by the General Assembly to give local governments an implied right of action for damages against telephone companies and suppliers based upon a violation of the statute. The trial court reasoned that it was implausible that the General Assembly would confer auditing powers to local governments without a corresponding remedy if they were to discover that a telephone company or service supplier had not collected and/or remitted the proper amount owed to them under the statute. The Defendants argue that this ruling was in error; we agree that the trial court so erred.

Georgia has “longstanding precedential authority rejecting the creation of implied private rights of action[.]” Somerville v. White, 337 Ga. App. 414, 417 (1) (787 SE2d 350) (2016). See also Govea v. City of Norcross, 271 Ga. App. 36, 41 (1) (608 SE2d 677) (2004) (“[I]t is well settled that violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof”). In 2010, the General Assembly codified this presumption in OCGA § 9-2-8 (a), which provides that “[n]o private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein.” Our Supreme Court has noted that the creation of OCGA § 9-2-8 revealed the General Assembly’s concern over “judicial creation of implied civil causes of action[.]” Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 459 (2) (c) (697 SE2d 166) (2010). Although OCGA § 9-2-8 (a) “would not apply to the preexisting [9-1-1 Act] at issue in this case,... it certainly counsels against deviating from our established precedent to find new implied civil causes of action.” Id.

As noted above, all parties concede that the 9-1-1 Act does not contain an express right of action that would allow the Counties to bring the claims in this lawsuit against the Defendants. See generally OCGA § 46-5-120 etseq. Accordingly, the Counties bear the burden of overcoming Georgia’s presumption against implied rights of action. See Brooks-Powers v. MARTA, 260 Ga. App. 390, 392 (1) (579 SE2d 802) (2003). This they cannot do.

Although the 9-1-1 Act does not provide that local governments have a right of action against telephone compan ies, it does provide a similar right of action against telephone customers. Specifically, the 9-1-1 Act provides that telephone customers are “liable for the 9-1-1 charge[ ] . . . until it has been paid to the service supplier.” OCGA § 46-5-134 (b). Under the 9-1-1 Act, if a customer refuses to pay the 9-1-1 charge, then the telephone company is to inform the local government, which may “initiate[ ]” a “collection action” against that customer. Id. While the legislature also could have specifically created a cause of action for a breach of the 9-1-1 Act against telephone service providers by its terms, it did not choose to do so.

Not to be deterred, the Counties claim and the trial court held that the audit provisions of the 9-1-1 Act gave rise to an inference that the General Assembly intended that local governments could sue telephone service providers. See OCGA § 46-5-134 (d) (4) (The 9-1-1 Act provides that a “local government may on an annual basis, and at its expense, audit or cause to be audited the books and records of service suppliers with respect to the collection and remittance of the 9-1-1 charges”). However, again, had the General Assembly intended within the statute itself to make the Defendants or other telephone service providers liable for amounts not collected from customers, then it knew how to do so. See, e.g., OCGA § 48-8-7 (a), (b) (making it “unlawful for any dealer to knowingly and willingly fail, neglect, or refuse to collect” from its customers a sales and use tax, and imposing a “penalty of being liable for and paying the tax himself” if a dealer violates the statute).

Contrary to the Counties’ assertion, it is plausible that the General Assembly would make service providers subject to an audit (but not confer a right of action against them) since the service providers are the parties that hold the records regarding the 9-1-1 taxes charged to and paid by others, namely, their customers. Further, the audits could lead to retroactive collection by the local governments against end-users who did not pay the appropriate amounts of 9-1-1 charges or lead to prospective changes to the service supplier’s manner of billing.

The Counties next allege that an implied right of action exists because the 9-1-1 Act gave them the power to “bring and defend actions.”OCGA § 46-5-138(c) (1). However, thefactthatthe Counties may sue or be sued does not confer a right of action; it merely confers the capacity to sue. The Eleventh Circuit rejected a similar argument in Smith v. Russellville Production Credit Assn., 777 F2d 1544, 1548 (I) (11th Cir. 1985). Smith held that the appellants’ argument

in support of an implied right of action, that the inclusion of a “sue and be sued” provision in the Farm Credit Act is evidence that Congress intended to create a private right of action under that act, is completely without merit. The “sue and be sued provision” simply indicates that Congress intended that [Production Credit Associations (“PCAs”)], like other private entities, be held accountable for breaking the law and be able to seek relief under appropriate circumstances. The provision does not indicate that Congress intended, in enacting the Farm Credit Act, to create an independent substantive legal basis under which PCAs could be sued.

Id.

In summary, we disagree with the trial court’s finding that the 9-1-1 Act provides an implied right of action to the Counties for the Defendants’ alleged failure to collect the proper amount of fees under the statute.

2. The Defendants next argue that the trial court erred in concluding that the 9-1-lAct, when read in conjunction with OCGA §§ 51-1-6 and 51-1-8, provides the Counties with common law remedies against the Defendants or any other telephone service provider. As to this point, we hold that the Counties may pursue claims against the Defendants due to their alleged failure or refusal to collect these charges; the 9-1-1 Act imposed a duty upon the Defendants to do so, and OCGA §§ 51-1-6 and 51-1-8 allow the Counties to enforce that statutorily imposed duty.

“The language of OCGA §§ 51 -1 -6[] and 51-1-8[] does not confer a separate cause of action in tort upon one who has suffered a breach of a legal or a private duty” Parris v. State, 229 Ga. App. 522, 524 (494 SE2d 244) (1997). Rather, they operate in conjunction with a statute, such as the 9-1-1 Act, that imposes a legal duty but does not expressly provide a cause of action. See also Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991). The Counties argue that the 9-1-1 Act imposes upon the providers a duty to bill and collect the 9-1-1 charges for all voice lines or pathways capable of reaching 9-1-1 call centers and to remit those fees to the Counties according to the terms of the statute (See OCGA § 46-5-134 (a) (1) (B) (telephone service providers “shall collect” 9-1-1 charges)), thus giving rise to their claims due to the providers’ alleged failure or refusal to do so. The duty to bill and collect the charges imposed by the 9-1-1 Act falls within the ambit of OCGA §§ 51-1-6 and 51-1-8, even though they arise from a statute that does not directly provide for a private cause of action. See, e.g., Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 705-706 (3) (746 SE2d 173) (2013) (violations of Georgia Water Quality Control Act, Georgia Waste Control Act and Georgia Erosion and Sedimentation Control Act “fall within the ambit of OCGA § 51-1-6”); Dupree, supra at 141-142 (1) (violation of federal O SHA regulations are admissible as evidence of and give cause of action when in concert with OCGA § 51-1-6).

We do not agree with the Defendants’ argument that Best Jewelry Mfg. Co. v. Reed Elsevier, Inc., 334 Ga. App. 826 (780 SE2d 689) (2015) and U. S. Bank v. Phillips, 318 Ga. App. 819 (734 SE2d 799) (2012), require a different result. In Best Jewelry, supra, the plaintiff filed a class action, inter alia, on the grounds that the superior court’s e-filing system, as implemented, violated various statutes and regulations. Id. at 830 (1) (a) (i). This Court affirmed the trial court’s grant of a motion to dismiss these claims, finding that the claims had no basis other than statutory violations and that the plaintiff failed to plead “facts sufficient to show violations” of the statutes. Id. at 830 (1)-834 (1) (b). In U. S. Bank, supra, this Court affirmed the trial court’s grant of a motion to dismiss the plaintiffs’ claim under OCGA § 51-1-6 for negligent implementation of the federal Home Affordable Modification Program because the homeowner/ plaintiff was not the intended third-party beneficiary to whom the defendant owed a legal duty Id. at 820. The cases relied upon by the amicus curiae briefs, Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 280 (1) (528 SE2d 238) (2000) and Mattox v. Yellow Freight Systems, 243 Ga. App. 894, 895 (534 SE2d 561) (2000), are also distinguishable. Both of those cases involve specific prohibitions against liability, unlike this case.

Further, both OCGA §§ 51-1-6 and 51-1-8 were passed in 1863, prior to the passage of the 9-1-1 Act in 1977. Thus,

we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.

(Citations and punctuation omitted.) Chase v. State, 285 Ga. 693, 695-696 (2) (681 SE2d 116) (2009). See also Barbush v. Oiler, 158 Ga. App. 625, 625 (281 SE2d 359) (1981) (“Statutes are to be construed in connection and in harmony with existing law”) (citation and punctuation omitted). Thus, in enacting the 9-1-1 Act, the General Assembly would have been aware of the right of local governments to pursue claims under OCGA §§ 51-1-6 and 51-1-8 if the telephone companies did not properly collect these charges.

3. The Defendants argue that the trial court erred in concluding that the 9-1-1 charge imposed by the 9-1-1 Act is a “fee” rather than a “tax,” and contend that if the trial court had properly classified the charge as a tax, that it would have had no choice but to dismiss the Counties’ claim pursuant to our holding in Fulton County v. T-Mobile, South, 305 Ga. App. 466 (699 SE2d 802) (2010). In essence, the Defendants argue that if the charges at issue are taxes, that a common law action for the recovery of the taxes will not lie. Kirk v. Bray, 181 Ga. 814, 818 (184 SE 733) (1936). However, as we found in Division 2 herein, the Counties have statutory claims against the Defendants pursuant to OCGA §§ 51-1-6 and 51-1-8 to enforce the duty imposed upon the Defendants by the 9-1-1 Act. And, even if we were to assume that such claims are really claims at common law, the Counties have complained that T-Mobile was wrongfully decided or inapplicable to the facts of this case. As explained below, we vacate the trial court’s decision on the issue of whether the 9-1-1 Act charges are a tax or a fee and remand for further consideration.

“Although it is often important to decide whether a particular charge is a tax or a fee, it is frequently difficult, to discern whether a given enactment provides for a regulatory fee or authorizes simply a tax.” Hadley v. City of Atlanta, 232 Ga. App. 871, 872 (1) (502 SE2d 784) (1998). The distinction between a tax and a fee “is not one of names but of substance.” Richmond County Bus. Assn. v. Richmond County, 224 Ga. 854, 856 (1) (165 SE2d 293) (1968). Our Supreme Court has defined a tax as “an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered.” (Citation and punctuation omitted.) McLeod v. Columbia County, 278 Ga. 242, 244 (2) (599 SE2d 152) (2004). A charge is generally not a tax if its purpose and objective is to compensate for services rendered. Id. Additional factors which distinguish a fee from a tax:

First, taxes are a means for the government to raise general revenue and usually are based on ability to pay (such as property or income) without regard to direct benefits which may inure to the payor or to the property taxed. Fees, on the other hand, are intended to be and should be clearly described as a charge for a particular service provided. Second, fees should apply based on the contribution to the problem. Third, fee payers, unlike tax payers, should receive some benefit from the service for which they are paying, although the benefits may be indirect or immeasurable.

(Citation and punctuation omitted.) Id. See also Unified Govt. of Athens-Clarke County v. Homewood Village, 292 Ga. 514, 515 (1) (739 SE2d 316) (2013). The last factor set forth in McLeod, supra — that fee payers, unlike tax payers, should receive some benefit from the service for which they are paying, although the benefits may be indirect or immeasurable — cannot be determined without further evidentiary proceedings.

The Defendants and the amicus curiae briefs argue that the trial court ignored binding precedent in T-Mobile, supra. In T-Mobile, supra, this Court held that the 9-1-1 charges collected in advance at the point of sale for prepaid wireless services were a tax because, inter alia, those upon whom the charge was imposed did not receive a special benefit not received by others, and the charge was for the purpose of raising general revenue. Id. at 470-471 (2).

However, we find that T-Mobile is potentially distinguishable from the instant case because it involved a “taxpayer” seeking a refund for “taxes” that it mistakenly paid or was illegally required to pay, while in this case the Counties are not seeking to collect monies which were owed by the Defendants as “taxpayers” but to collect monies which the Defendants had a duty to collect for the Counties. Also, T-Mobile arguably is distinguishable from the instant case because the residents of the plaintiff Counties allegedly receive a special benefit not received by residents of other counties in Georgia or by persons simply passing through the Counties who call 9-1-1. The 9-1-1 Act grants autonomy to each local government to establish its own 9-1-1 services if it so chooses and the amount of fees to be imposed up to the $1.50 maximum set forth under the 9-1-1 Act. OCGA § 46-5-133 (a). The Counties argue that, although all members of the public with telephone service may access Georgia’s 9-1-1 systems, the citizens in Cobb and Gwinnett counties who incur the 9-1-1 charges receive enhanced 9-1-1 benefits and services. The Counties contend that the evidence in this case will

show that while some local governments provide no 911 services at all, Cobb and Gwinnett Counties provide enhanced landline 911 services that use special computer software to display the caller’s home address and location on a map. Residents may even have “Smart 911” services that allow them to pre-register their anticipated 911 needs for special circumstances, such as “senior with Alzheimer’s” or “child with disability.” Indeed, because different local governments offer different, 911 services, and none are authorized to accumulate more charges than their actual service costs, different, local governments charge different amounts for 911 services up to the statutory maximum of $1.50.

If the evidence shows that these assertions are true, then, contrary to the conclusion in T-Mobile, supra, not all landline and wireless 9-1-1 services are created equal.

Because the analysis of whether the 9-1-1 Act charges are a tax or a fee, or whether T-Mobile was correctly decided in the first instance, could be impacted by and/or turn on whether those upon whom the 9-1-1 charge is imposed receive a special benefit not received by others, there remain questions of fact that must be resolved by further evidentiary proceedings by the trial court. See, e.g., Covenant Media of Ga. v. City of Lawrenceville, 580 FSupp.2d 1313, 1315 (I) (N.D. Ga. 2008) (“In a case involving disputed facts, however, it may be necessary to provide an opportunity for discovery and a hearing that is appropriate to the nature of the motion to dismiss”) (citation and punctuation omitted). Accordingly, we vacate the trial court’s ruling on the motion to dismiss as to whether these charges are a “tax” or a “fee,” and we remand the issue for discovery and further evidentiary proceedings.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.

Self, J., concurs fully and also concurs in Divisions 1 and 2 of the special concurrence. Dillard, P. J., con curs fully in Divisions 1 and 2, concurs in judgment only in Division 3, and also concurs specially.

DILLARD, Presiding Judge,

concurring fully and specially

I concur fully with the majority’s holdings in Divisions 1 and 2 that the 9-1-1 Act does not provide the Counties with a private right of action, explicitly or otherwise, to enforce its provisions against telephone-service providers such as the Defendants but that the 9-1-1 Act, read in conjunction with OCGA § 51-1-6, provides the Counties with a potentially viable avenue for relief such that their complaints should not be dismissed at this early stage of the proceedings. Nevertheless, because litigants often seek to persuade this Court to recognize implied causes of action and to invoke OCGA § 51-1-6 as a way of circumventing a statute that does not authorize a litigant to seek enforcement of its provisions, I write separately to provide further guidance as to the current state of Georgia law regarding these issues. Finally, as to Division 3, I disagree with the majority that it is premature to determine whether or not the type of charge imposed by the 9-1-1 Act is a tax or a fee because we have already expressly held, as a matter of law, that the 9-1-1 charge is indeed a tax, and the Defendants have not provided us with a compelling argument for revisiting that holding. That said, because I agree with the majority’s ultimate conclusion that the Counties’ complaints are sufficient to survive the motion to dismiss and that the case should be remanded for further proceedings, I concur in judgment only as to Division 3.

1. As to the trial court’s erroneous finding that the 9-1-1 Act provides an implied cause of action for the Counties to sue the Defendants to enforce its provisions, I write separately to emphasize that, even with regard to statutes enacted prior to the effective date of OCGA § 9-2-8, Georgia law does not recognize implied causes of actions. In our state, a private right of action cannot be based solely on speculation regarding the “intent” of the General Assembly when there is no indication in the text of the statute itself that such a cause of action exists. Indeed, in determining whether a private right of action is authorized by a statute, “[t]he judicial task is ... to interpret the statute the General Assembly has passed to determine whether it displays an intent to create not just a private right of action but also a private remedy.” And statutory “intent,” as reflected by the plain meaning of the relevant text, on this latter point is “determinative.” Thus, it is entirely irrelevant that the trial court found it to be “implausible” that the General Assembly would enact the 9-1-1 statute without providing a cause of action against telephone-service providers to enforce its provisions because that is exactly what it did. Bottom line: In the absence of an explicit textual basis, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” As we have previously explained, “[i]t is wholly inappropriate, as well as constituting a clear violation of the separation of powers, for this Court to fashion causes of action out of whole cloth, regardless of any perceived public policy benefit.”

Thus, I take this opportunity to reiterate that, so long as the meaning of the relevant statutory text is plain and does not lead to an absurd result, that is the end of our inquiry. Indeed, it is deeply troubling when

judges start discussing not the meaning of the statutes the legislature actually enacted, as determined from the text of those laws, but rather the unexpressed “spirit” or “reason” of the legislation, and the need to make sure the law does not cause “unreasonable consequences,” [thus venturing] into dangerously undemocratic, unfair, and impractical territory. The “spirit or reason” approach to statutory interpretation invites judges to read their own policy preferences into the law, as we all believe that our own policy views are wise and reasonable, which tempts us to assume, consciously or unconsciously, that the legislature could not have intended differently.

As Georgians (and Americans), we are “governed by laws, not by the intentions of legislators.” And as judges, we should only be concerned with what laws actually say, “not by what the people who drafted the laws intended.” Suffice it to say, the trial court erred in disregarding these well-established principles and finding that the 9-1-1 Act provides an implied cause of action under the circumstances of this case.

2. I also fully concur with the majority’s holding that OCGA § 51-1-6 provides the Counties with a potentially viable cause of action to enforce the Defendants’ duties imposed by the 9-1-1 Act. Nevertheless, because litigants routinely invoke OCGA § 51-1-6 in an attempt to enforce statutory provisions that do not give them the right to do so, I write separately to emphasize that the cause of action authorized by OCGA § 51-1-6 arises only in limited circumstances, and several requirements must be satisfied before a viable claim may be brought under the statute. As noted by the majority, OCGA § 51-1-6 provides that “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” But as we have repeatedly explained, the alleged duty cannot rest solely upon OCGA § 51-1-6 because that statute merely sets forth general principles of tort law. Thus, the legal duty necessary to support a claim under OCGA § 51-1-6 “must be found in another legislative enactment[,]” which in this case is the 9-1-1 Act.

The Defendants have cited our Supreme Court’s decision in Wells Fargo Bank, N.A. v. Jenkins, and this Court’s decisions in Parris v. State Farm Mutual Automobile Insurance Co. and Best Jewelry Mfg. Co. v. Reed Elsevier, Inc., to support their argument that, if the statute imposing the legal duty does not provide a plaintiff with a private right of action, neither does OCGA § 51-1-6. They contend that the Counties cannot bring a claim under OCGA § 51-1-6 for a violation of the 9-1-1 statute solely because the 9-1-1 statute does not authorize such a claim. But this argument misconstrues the holdings in the cases cited supra and conflicts with the plain language of OCGA § 51-1-6, which only applies when “no cause of action is given in [the underlying statute’s] express terms.” Furthermore, in Jenkins, the Supreme Court of Georgia held that an alleged violation of a federal statute did not give rise to a negligence claim under OCGA § 51-1-6 because the plaintiff did not show that there was a violation of any duty imposed by the federal statute, not because the federal statute did not provide the plaintiff with a cause of action to enforce its terms. And in reaching this conclusion, the Jenkins Court emphasized that, “[i]n order for a plaintiff to invoke OCGA § 51-1-6, there must be the alleged breach of a legal duty with some ascertainable standard of conduct.” As for Parris and Best Jewelry, the Defendants are simply mistaken that, despite the express language of OCGA § 51-1-6 providing otherwise, we nevertheless held in those cases that OCGA § 51-1-6 only authorizes claims when those claims are also authorized by the underlying statute imposing the relevant duty. While it is certainly true that some of the language employed in those cases is rather cursory and less than precise, it is likewise manifestly evident that OCGA § 51-1-6 may only be used to provide a cause of action to enforce a legal duty imposed by a different statute that does not otherwise authorize such an action itself. And, of course, plaintiffs have been allowed by Georgia courts to pursue claims under OCGA § 51-l-6underthoseexactcircumstancesinnumerouscases.

But even though OCGA § 51-1-6 can provide a private right of action to enforce a duty imposed by a different statute, in order to successfully assert a claim under OCGA § 51-1-6, the alleged duty arising from the other statute must be mandatory and imposed expressly by the statute at issue with specificity. Not only that, the legal duty at issue must specifically impose “some ascertainable standard of conduct.” And even if such a statutorily-mandated duty exists, a plaintiff cannot recover under OCGA § 51-1-6 unless the duty set forth in the other statute is expressly owed to the plaintiff, who must “fall[ ] within the class of persons it was intended to protect.” Thus, the fact that a plaintiff might have some unintended or incidental benefit from the defendant’s compliance with a statutorily imposed duty is insufficient to support a claim under OCGA § 51-1-6. Furthermore, even when the plaintiff is the intended beneficiary of such a duty, a successful claim under OCGA § 51-1-6 requires that there has actually been a violation of that duty on the part of the defendant.

In addition to satisfying the foregoing requirements, a plaintiff asserting a claim under OCGA § 51-1-6 must have suffered damages or harm resulting from the defendant’s violation of a legal duty owed to the plaintiff. And plaintiffs must also show that “the harm complained of was the harm the statute was intended to guard against.” Finally, as with any negligence claim, OCGA § 51-1-6 requires a causal connection between the defendant’s violation of a statutory duty and the injuries sustained by the plaintiff.

In sum, to establish a negligence per se claim under OCGA § 51-1-6, a plaintiff must show that (1) the defendant violated a specific statutory duty, (2) the duty is mandatory and expressly imposed, (3) the plaintiff is in the class of persons that the statutory duty was intended to protect, (4) the plaintiff suffered the type of harm that the duty was intended to guard against, and (5) the defendant’s breach of that duty caused the plaintiff’s injuries. And here, it remains to be seen whether the Counties can present sufficient evidence to satisfy each of these requirements with respect to the Defendants’ alleged violations of the 9-1-1 Act. That said, at this stage in the proceedings, the allegations in the Counties’ complaints are at least sufficient to withstand a motion to dismiss. Nevertheless, litigants should be cautioned that the mere fact that a plaintiff is negatively impacted or harmed by a defendant’s violation of a statutorily imposed duty is insufficient, in and of itself, to successfully plead and maintain a claim under OCGA § 51-1-6, and this is true regardless of how egregious the defendant’s conduct may be or how seemingly unfair it is to the plaintiff.

3. As previously mentioned, I concur with the majority’s ultimate conclusion that the Counties’ complaints are sufficient to withstand a motion to dismiss, and I agree that the case should be remanded for further proceedings consistent with this Court’s opinion. Nevertheless, I concur in judgment only as to Division 3 of the majority’s opinion because I do not agree with all that is said in reaching that conclusion. According to the majority, the trial court’s finding that the charge the Defendants are required to exact from their customers under the 9-1-1 Act is a fee, rather than a tax, is premature, and the parties, upon remand, should be allowed to present evidence to aid the court in deciding that issue. I respectfully disagree. This Court has already considered the charge exacted under the 9-1-1 Act and expressly held, as a matter of law, that the type of charge authorized by and imposed under the Act is a tax. And the trial court, which is bound by the decisions of this Court, erred in holding otherwise. But for the reasons set forth infra, the trial court’s error in this regard is irrelevant to our resolution of this appeal.

In Fulton County v. T-Mobile S., LLC, this Court considered, as a matter of first impression, “whether the 9-1-1 charge authorized by the Act is properly classified as a ‘tax’ under Georgia law.” In doing so, we relied on several Supreme Court of Georgia cases addressing whether payments made in other contexts were taxes or fees, decisions of other jurisdictions considering this issue with respect to their similar 9-1-1 statutes, and the provisions and stated purpose of the 9-1-1 Act itself. And ultimately, without ever mentioning the manner in which the 9-1-1 charge had been imposed by Forsyth County in that particular case, we concluded that “the 9-1-1 charge is a tax.” In reaching this conclusion, we did not reference any facts or evidence unique to the T-Mobile case, and we did not include any caveats or limiting language suggesting that, under different factual circumstances in another County, the type of charge that the Act imposed might not be a tax.

Nevertheless the trial court attempted to distinguish T-Mobile by suggesting that the sole basis for our holding was that the residents in Fulton County who paid the charge “receive no benefit not received by the general public because all members of the general public may access the 9-1-1 system.” But the “public benefit” factor was only one of several factors that we considered in T-Mobile. For example, we evaluated whether the charge was voluntary and whether it was imposed to raise revenue for a public or governmental purpose. And in considering whether the charge was for the benefit of the public, we relied on an extra-jurisdictional opinion addressing a similar 9-1-1 statute, which explained that the charge is not for the use of the 9-1-1 service like a payment for services rendered, but for access to the 9-1-1 system, regardless of whether or not a resident ever places an emergency call. Thus, while there may be some additional benefits to a resident if he or she actually places an emergency call, the Counties have never alleged that their 9-1-1 systems are not accessible to the general public. Given the foregoing, the trial court’s finding that 9-1-1 charges are fees is foreclosed by binding precedent, and no further evidence is needed to resolve that issue.

But unlike in T-Mobile, the issue of whether the 9-1-1 charge authorized by the Act is a tax is not the “dispositive issue in this case.” Indeed, in T-Mobile, a telephone-service provider sought a tax refund from Forsyth County, and we held that it was authorized to do so under OCGA § 48-5-380, which applies to the overpayment of taxes to counties and municipalities. And as noted by the majority, the Defendants contend that, if the 9-1-1 charge is a tax, the case must be dismissed because a common-law action for the recovery of taxes is impermissible. But here, the Counties are not suing a taxpayer for the recovery of taxes. Instead, they assert a statutory claim under OCGA § 51-1-6 for a violation of a legal duty, as well as common-law claims to recover damages resulting from alleged negligence, fraud, and breach of fiduciary duty. But while none of these claims directly seek to collect unpaid taxes, “a party cannot survive a motion to dismiss merely by recasting alleged statutory or constitutional violations as torts.” Thus, to the extent that any of the Counties’ common-law claims do nothing more than seek damages for a violation of the 9-1-1 Act, they must be dismissed. The Counties’ claim under OCGA § 51-1-6, however, lives to fight another day

Decided June 15, 2017

Reconsideration denied July 12, 2017

Kilpatrick Townsend & Stockton, J. Henry Walker IV, John P. Jett, C. Allen Garrett, Jr.; Bondurant, Mixson & Elmore, Frank M. Lowrey IV, Amanda S. Bersinger, for appellants.

Barnes Law Group, Roy E. Barnes, John R. Beuis, W. Matthew Wilson; Evangelista Worley, James M. Evangelista, David J. Worley; Harris Lowry Mantón, Jeffrey R. Harris; Penn Law, Darren W. Penn, for appellees.

Pierson Law, Holly A. Pierson; Kasowitz, Benson, Torres & Friedman, Michael E. Hutchins, David E. Spalten, Jeremy D. Stall-man, amici curiae.

I am authorized to state that Judge Self joins this concurrence in Divisions 1 and 2.

       The United States Telecom Association and Incompas, as well as the Georgia Chamber of Commerce, have filed amicus curiae briefs in this case.

       When a customer “has several telephone access lines, each exchange access facility shall constitute a separate subscription.” OCGA § 46-5-122 (17). “Exchange access facility” is defined as ‘the access from a particular telephone subscriber’s premises to the telephone system” of a telephone company and includes, inter alia, service supplier-provided access lines, PBX trunks, Centrex network access registers, and Voice over Internet Protocol (“VoIP”) service suppliers and any other communication, message, signal, or information delivery system capable of initiating a 9-1-1 emergency call. OCGA § 46-5-122 (7).

       VoIP service is “any technology that permits a voice conversation using a voice connection to a computer... which sends a digital signal over the Internet through a broadband connection to be converted back to the human voice at a distant terminal!.]” OCGA § 46-5-122 (17.1).

       The trial court should not grant a motion to dismiss a complaint for failure to state a claim upon which relief may be granted unless:
      (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.
      (Citations and punctuation omitted.) Best Jewelry Mfg. Co. v. Reed Elsevier, Inc., 334 Ga. App. 826, 826-827 (780 SE2d 689) (2015) (cert. denied).

       In their supplemental brief, the Counties argue that Section 14 (b) of the Senate Bill 222 from the 2017 legislative session indicates that the General Assembly intended to preserve an implied cause of action under the 9-1-1 Act. However, we fail to see how legislation passed 40 years after the 9-1-1 Act was enacted clarifies what the intent was of the original General Assembly which passed the Act, and in any event, Senate Bill 222 was vetoed by Georgia’s Governor and did not become law.

       See also OCGA § 48-13-59 (a), (b) (making it unlawful “for any innkeeper to fail, neglect, or refuse to collect the [hotel] tax,” and imposing a “penalty of being liable for and paying the tax himself” as well as a misdemeanor charge punishable by a fine or imprisonment if the statute is violated); OCGA § 48-13-124 (a), (b) (making it unlawful for any dealer to “knowingly and willfully fail, neglect, or refuse to collect the [energy tax] ” and imposing a penalty of “being liable for and paying the tax himself” as well as a “misdemeanor of a high and aggravated nature” punishable by a fine or imprisonment if the statute is violated).

       See OCGA § 46-5-134 (m) (2) (providing that the local government may be held liable to subscribers for pro rata reimbursement of funds not spent according to the 9-1-1 Act).

       At this time, we do not address whether and/or to what extent common law might also impose a duty upon the Counties that could be enforced under these statutes. The viability of these common law claims will more appropriately be tested pursuant to a motion for summary judgment after discovery. We refrain from ruling thereon until the “tax” versus “fee” issue is resolved, as discussed in Division 3 herein.

       OCGA § 51-1-6 states that “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”

       OCGA § 51-1-8 provides that “[pjrivate duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action.”

       We note that the order appealed was pursuant to a motion to dismiss where no evidence was considered.

       While we do not endeavor herein to determine, the Counties contend that T-Mobile was wrongly decided. We defer consideration of such issue until after the trial court further considers the fee versus tax issue on remand.

       We note that because T-Mobile was an appeal on an order resolving a motion to dismiss, it likewise appears to have been decided without the benefit of evidence.

       The trial court below and Defendants (on appeal) reference OCGA § 51-1-8 in passing, but their primary focus is on OCGA § 51-1-6 and its accompanying case law. Indeed, the Defendants cite only one case that even references OCGA § 51-1-8, and that opinion merely groups it with OCGA § 51-1-6 for the basic proposition that both statutes only authorize recovery of damages for the breach of a legal duty otherwise created. See Parris v. State Farm Mut.Auto. Ins. Co., 229 Ga.App. 522, 524 (494 SE2d 244) (1997). For these reasons, andbecause a claim brought under OCGA § 51-1-8 is separate and distinct from one brought under OCGA § 51-1-6, my analysis is limited to OCGA § 51-1-6.

       As noted by the majority, OCGA § 9-2-8 (a) provides that “[n]o private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein.” (emphasis supplied). Subsection (b) of OCGA § 9-2-8 provides that
      [njothing in subsection (a) of this Code section shall be construed to prevent the breach of any duty imposed by law from being used as the basis for a cause of action under any theory of recovery otherwise recognized by law, including, but not limited to, theories of recovery under the law of torts or contract or for breach of legal or private duties as set forth in Code Sections 51-1-6 and 51-1-8 or Title 13.

       In my view, our appellate courts should stop referencing altogether the ethereal fiction of “legislative intent” in the context of statutory interpretation. A judge should not care about what any legislator intended but did not expressly provide for in the statutory text. See King v. Burwell, _ U. S. _ (135 SCt 2480, 2505 (V), 192 LE2d 483) (2015) (Scalia, J., dissenting) (“More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers.”). If the General Assembly “enacted into law something different from what it intended, then it should amend the statute to conform to its intent.” Id. (punctuation omitted); accord Lamie v. United States Trustee, 540 U. S. 526, 542 (III) (124 SCt 1023, 157 LE2d 1024) (2004); see Malphurs v. State, 336 Ga. App. 867, 870-71 (785 SE2d 414) (2016) (Peterson, J.) (“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.”). And as for the notion that judges are somehow able to discern the collective intent of a legislative body, that is “[p]ure applesauce.” King, 135 SCt at 2501 (II) (Scalia, J., dissenting); see In re Whittle, 339 Ga. App. 83, 85-86 (1) (793 SE2d 123) (2016) (“[I]n the context of legislation, discerning ‘collective intent is pure fiction because dozens if not hundreds of legislators have their own subjective views on the minutiae of bills they are voting on—or perhaps no views at all because they are wholly unaware of the minutiae.’ ”)). Judges are not in the business of divining unexpressed legislative intent, nor are we capable of doing so with any reasonable degree of accuracy. As Judge Bethel (a former legislator) has aptly noted, “[a]ny attempt to discern legislative intent beyond the express language passed by a legislative body is as practical and productive as attempting to nail Jell-0 to the wall.” Bishop v. State, 341 Ga. App. 590, 593 (802 SE2d 39) (2017) (Bethel, J., concurring). I agree. Judges are trained to interpret the meaning of the words expressly ratified by the people or enacted by their representatives in a manner consistent with longstanding canons of construction. Thus, when judges speak as if they are engaging in some mystical search for the legislature’s unexpressed intent (in the context of statutory interpretation), they create an impression that is both misleading and squarely at odds with the judicial duty. It is time to state plainly what is already manifestly true: What legislators intend but do not expressly provide for in the text of a statute is meaningless. I realize, of course, that OCGA § 1-3-1 (a) provides that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy,” but this statutory directive must be read in conjunction with OCGA § 1-3-1 (b), which provides that “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words ....” In any event, the General Assembly can no more tell the judiciary how to generally interpret the law than we can direct them how to legislate. The separation of powers is essential to the maintenance of our constitutional republic, and it is high time that our discussion of statutory interpretation reflects the reality of our jurisprudence and acknowledges the strict demarcation line between judicial interpretation and legislating. We are judges, not black-robed philosophers.

        Somerville v. White, 337 Ga. App. 414, 416 (1) (787 SE2d 350) (2016) (punctuation omitted); accord Alexander v. Sandoval, 532 U. S. 275, 286 (II) (121 SCt 1511, 149 LE2d 517) (2001); see Gonzaga Univ. v. Doe, 536 U. S. 273, 283-84 (122 SCt 2268, 153 LE2d 309) (2002).

        Somerville, 337 Ga. App. at 416-17 (1); see Sandoval, 532 U. S. at 286 (II).

        Somerville, 337 Ga. App. at 417 (1) (punctuation omitted); see Sandoval, 532 U. S. at 286-87 (II).

        Somerville, 337 Ga. App. at 417 (1) (punctuation omitted) (quoting Schroeder v. Hamilton School Dist., 282 F3d 946, 951 (II) (7th Cir. 2002) (Manion, J.)); see also Steel Co. v. Citizens for a Better Env’t, 523 U. S. 83, 102 (IV) (118 SCt 1003, 140 LE2d 210) (1998) (holding that “the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts” (punctuation omitted)).

        See Shorter Coll. v. Baptist Convention of Ga., 279 Ga. 466, 470 (1) (614 SE2d 37) (2005); Ray v. Barber, 273 Ga. 856, 856 (1) (548 SE2d 283) (2001); see also City of Atlanta v. Miller, 256 Ga. App. 819, 820 (1) (569 SE2d 907) (2002) (“In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” (punctuation omitted; emphasis supplied)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 397 (1st ed. 2012) (“Intentionalist theorists and courts promote the idea that enacted texts merely evoke or suggest—as opposed to state—what the true law is If this were true, then it would hardly be possible ever to reach a consensus about the law. The traditional view is that an enacted text is itself the law.”); id. at 376 (“[T]hat the legislature even had a view on the matter at issue ... is pure fantasy. In the ordinary case, most legislators could not possibly have focused on the narrow point before the court [and] the few who did undoubtedly had varying views.”).

        Merritt v. State, 286 Ga. 650, 656 (690 SE2d 835) (2010) (punctuation omitted) (Nah-mias, J., concurring specially); accord Callaway Blue Springs, LLLP v. W. Basin Capital, LLC, 341 Ga. App. 535 (801 SE2d 325) (2017).

        Conroy v. Aniskoff, 507 U. S. 511, 519 (113 SCt 1562, 123 LE2d 229) (1993) (Scalia, J., concurring); accord Callaway Blue Springs, LLLP, 341 Ga.App. at 541 (1 ); Day v. Floyd Cty. Bd. of Educ., 333 Ga. App. 144, 151 (775 SE2d 622) (2015) (Dillard, J., concurring).

       Scalia & Garner, supra note 8, at 16; accord Callaway Blue Springs, LLLP, 341 Ga.App. at 541 (1); Day, 333 Ga.App. at 151 (Dillard, J., concurring).

         See Wells Fargo Bank, N.A. v. Jenkins, 293 Ga. 162, 164 (744 SE2d 686) (2013) (noting that a plaintiff cannot sue for the breach of an alleged duty based solely on OCGA § 51-1-6); Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873, 877 (2) (783 SE2d 389) (2016) (explaining that OCGA § 51-1-6 “do[es] not create causes of action, but simply set[s] forth general principles of tort law, authorizing the recovery of damages for the breach of a legal duty otherwise arising, though not expressly stated, under a statute or common law” (punctuation omitted)); Parris, 229 Ga. App. at 524 (“OCGA § 51-1-6, standing alone, creates no cause of action. Rather, it simply authorizes the recovery of damages for the breach of a legal duty otherwise created.”); see also Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 705 (3) (746 SE2d 173) (2013) (“OCGA § 51-1-6 does not create a legal duty but defines a tort and authorizes damages when a legal duty is breached.” (punctuation omitted)).

        Jenkins, 293 Ga. at 164; accord McConnell v. Dep’t of Labor, 331 Ga. App. 457, 459 (1) n.3 (787 SE2d 794) (2016).

       While OCGA § 51-1-6 “set[s] forth general principles of tort law,” Bell, 335 Ga. App. at 877 (2), OCGA § 51-1-6 claims are typically evaluated under the same legal framework as negligencepe/'se claims, which makes sensebecause such claims, like those under OCGA § 51-1-6, seek damages for the violation of a statute. See Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840, 845 (2) (797 SE2d 87) (2017) (“[Njegligenceper se arises when a statute is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against.” (punctuation omitted)); Brown v. Belinfante, 252 Ga. App. 856, 861 (1) (557 SE2d 399) (2001) (“In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.” (punctuation omitted)). Thus, OCGA § 51-1-6 does not necessarily authorize any type of tort claim merely because an alleged statutory violation satisfies its requirements.

       293 Ga. 162.

       229 Ga. App. 522.

       334 Ga. App. 826 (780 SE2d 689) (2015).

        See Jenkins, 293 Ga. at 164-165.

        Id. (emphasis supplied).

        See, e.g., Simerly, 322 Ga. App. at 705-06 (3) (holdingthat the plaintiffs’ claims regarding the defendant’s noncompliance with various federal and state statutes relating to environmental protection “[fell] within the ambit of OCGA § 51-1-6”); Combs v. Atlanta Auto Auction, Inc., 287 Ga. App. 9, 12 (2) (650 SE2d 709) (2007) (holding that a plaintiff could pursue a negligence claim under OCGA § 51-1-6 based on the defendant’s alleged violation of certain zoning ordinances); Ford v. Saint Francis Hosp., Inc., 227 Ga. App. 823, 827 (2) (490 SE2d 415) (1997) (affirming the trial court’s denial of a directed verdict in favor of the defendant on a negligence per se claim brought under OCGA § 51-1-6 based on a hospital’s noncompliance with federal regulations governing infection control).

        See Schaff v. Snapping Shoals Elec. Membership Corp., 330 Ga. App. 161, 164 (2) (767 SE2d 807) (2014) (holding that the plaintiff failed to describe the alleged statutory duties with enough specificity to support a negligencepe/'se claim brought under OCGA § 51-1-6); Hubbard v. Dep’t of Transp., 256 Ga.App. 342, 351 (3) (568 SE2d 559) (2002) (affirming partial summary judgment in favor of the defendant as to the plaintiff’s negligence claim asserted under OCGA § 51-1-6 because the statutory duties identified by the plaintiff were not mandatory).

        See Jenkins, 293 Ga. at 164.

        Norman v. Jones Lang LaSalle Americas, Inc., 277 Ga.App. 621, 628 (2) (b) (627 SE2d 382) (2006) (punctuationomitted); see Newman v. Johnson, 319 Ga.App. 307, 309 (1) (733 SE2d 520) (2012) (rejecting a claim based on OCGA § 51-1-6 when the plaintiff was not in the class of persons for whose benefit the statute from which the alleged duty arose was enacted); Jenkins v. Wachovia Bank, N.A., 309 Ga. App. 562, 566 (2) (711 SE2d 80) (2011) (holding that a plaintiff could not sue to enforce a check, which was allegedly paid by a bank “over a forged endorsement” when the bank’s alleged wrongful actions were not violations of any legal right of or duty owed to the plaintiff); R & R Insulation Servs., Inc. v. Royal Indem. Co., 307 Ga. App. 419, 424-25 (1) (705 SE2d 223) (2010) (noting that to recover under a theory of negligence per se under OCGA § 51-1-6, a plaintiff must show that he or she fell within the persons that the underlying statute was intended to protect); DaimlerChrysler Motors Co., LLC v. Clemente, 294 Ga. App. 38, 47 (2) (a) (668 SE2d 737) (2008) (holding that the plaintiff could not assert a claim under OCGA § 51-1-6 (or OCGA § 51-1-8) against a car dealership’s franchisor for a violation of the Georgia Motor Vehicle Franchise Practices Act when that Act regulated the relationship between automobile franchisors and their franchisee dealers and did not impose any legal duty upon automobile franchisors owed to the franchisee’s consumers)'. Benefit Support, Inc. v. Hall Cty., 281 Ga. App. 825, 832 (4) (637 SE2d 763) (2006) (holding, in the context of rejecting an OCGA § 51-1-6 claim, that the generic statement in OCGA § 33-23-5 (a) that it is “for the protection of the people of this state” does not expand the intent of the statute requiring licensure for counselors to benefit businesses that provide insurance (punctuation omitted)); Brantley v. Custom Sprinkler Sys., Inc., 218 Ga.App. 431, 432 (1) (461 SE2d 592) (1995) (holding that the defendant was entitled to summary judgment as to the plaintiff’s OCGA § 51-1-6 claim because plaintiff was not an employee of defendant, and “therefore was not [a] person intended tobebenefittedbythe.. .regulations upon which he relie [d]” in conjunction with OCGA § 51-1-6).

        See U. S. Bank, N.A. v. Phillips, 318 Ga.App. 819, 826 (3) (734 SE2d 799) (2012) (holding that OCGA § 51-1-6 did not apply to the plaintiff homeowner because, “[wjhile homeowners incidentally benefit from [the Home Affordable Modification Program (HAMP)]’s incentives, homeowners are not intended third-party beneficiaries to whom servicers owe a legal duty under HAMP”).

        See Rowell v. Phoebe Putney Meml. Hosp., Inc., 338 Ga. App. 603, 606-07 (2) (791 SE2d 183) (2016) (affirming grant of summary judgment because, although “[a] hospital has a legal duty to follow its existing bylaws and any alleged breach of that duty can be asserted asa cause of action under OCGA § 51 -1-6[,]" there was no evidence that hospital breached that duty); Simon Prop. Grp., Inc. v. Benson, 278 Ga. App. 277, 279 n.7, 281-82 (628 SE2d 697) (2006) (reversing the trial court’s order, which found that the plaintiff could sue to enforce a statute’s provisions under OCGA § 51-1-6, because there was no violation of the underlying statute).

        See Legacy Acad., Inc. v. Doles-Smith Enterprises, Inc., 337 Ga.App. 575, 583-84 (2) (789 SE2d 194) (2016) (holding that the plaintiffs “failed as a matter of law to establish any economic damages to support their claim for negligence under OCGA § 51-1-6, and thus the trial court should have granted the [defendants’] motions for directed verdict and j .n.o.v.” as to that claim); Sofet v. Roberts, 185 Ga. App. 451, 452 (2) (364 SE2d 595) (1987) (affirming the dismissal of a negligence claim brought under OCGA § 51-1-6 when the plaintiff did not allege that the defendant’s negligence caused him damage to his person or property); Hodges v. Tomberlin, 170 Ga. App. 842, 845 (3) (319 SE2d 11) (1984) (holding that the plaintiffs failed to state a right to recovery under OCGA § 51-1-6 when they suffered no damage as a result of the defendants’ conduct).

        Norman, 277 Ga. App. at 628 (2) (b) (punctuation omitted); accord Combs, 287 Ga. App. at 12 (2); Hubbard, 256 Ga. App. at 350 (3).

        See Norman, 277 Ga. App. at 628 (2) (b) (holding, in evaluating a claim brought under OCGA § 51-1-6, that “if the court finds negligence per se, the plaintiffs must then demonstrate a causal connection between the negligence per se and the injury” (punctuation omitted)); Hubbard, 256 Ga. App. at 350 (3) (same).

       305 Ga. App. 466 (699 SE2d 802) (2010).

        Id. at 469 (2) (punctuation omitted; emphasis supplied).

        See generally id. at 469-73 (2).

        Id. at 473 (2) (emphasis supplied).

        See id. at 469-73 (2).

       (Emphasis supplied.)

        See generally T-Mobile, 305 Ga. App. at 469-73 (2).

        Id. at 472 (2).

        See Smith v. Baptiste, 287 Ga. 23, 25 (1) (694 SE2d 83) (2010) (“The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence.” (punctuation omitted)); A & A Heating & Air Conditioning Co. v. Burgess, 148 Ga. App. 859, 860 (1) (253 SE2d 246) (1979) (“Even those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute. Once the court interprets the statute, the interpretation has become an integral part of the statute. This having been done, any subsequent ‘reinterpretation’ would be no different in effect from a judicial alteration of language that the General Assembly itself placed in the statute.” (punctuation omitted)); Ga. Const. of 1983, Art. VI, Sec. V, Par. III (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.”).

        T-Mobile, 305 Ga. App. at 469 (2).

        See id. at 466; see also OCGA § 48-5-380.

        Best Jewelry Mfg. Co., 334 Ga. App. at 835 (3) (a); see Troncalli v. Jones, 237 Ga. App. 10, 12-13 (1) (514 SE2d 478) (1999) (reversing jury verdict as to a tort claim for civil-stalking because nothing in the statute that defines the crime of stalking creates a private cause of action in tort in favor of the victim); Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990) (holding that there is no tort remedy available under OCGA § 16-8-16 for the allegedly unlawful attempt to disseminate information tending to impair appellant’s business because that statute does not create a cause of action in tort in favor of the plaintiff).

        In Anthony v. Am. Gen. Fin. Servs., Inc., 287 Ga. 448 (697 SE2d 166) (2010), the Supreme Court of Georgia held that “a private civil cause of action may not be implied to remedy a violation of OCGA § 45-17-11 [,] which is a criminal statute that regulates the conduct of notaries public. Id. at 459 (2) (d). Nevertheless, the Court explained that its holding “d[id] not necessarily mean that the [plaintiffs] [we]re without any remedy, as they may be able to pursue civil liability against [the defendant] under other applicable tort or contract laws of this State.” Id. at 460 (2) (d). The Anthony Court expressed “no opinion on the viability of such other potential theories of liability.” Id. Similarly, here, I express no opinion as to the viability of any potential theories of liability that the Counties might have in addition to their OCGA § 51-1-6 claim.


author: DOYLE, Chief Judge.

text:
    A17A0455.
    KNOWLES v. THE STATE.
    (801 SE2d 582)
   DOYLE, Chief Judge.

Barbara Knowles was convicted of making a false report of a crime and three counts of making a false statement. She appeals the denial of her motion for new trial, arguing that: (1) the evidence was insufficient to support her convictions; (2) the rule of lenity should have been applied to her convictions for making false statements; and (3) she received ineffective assistance of counsel. F or the reasons that follow, we affirm Knowles’s convictions, but vacate her sentences for making a false statement and remand for resentencing.

Knowles was tried along with co-defendants Kelly Marlow and Robert Trim, both of whom were convicted of two felony counts of making a false statement. All three defendants appealed. We affirmed Marlow’s and Trim’s convictions in Marlow v. State, but vacated their sentences and remanded for resentencing. The relevant facts, as set forth in that opinion, follow:

Viewed in the light most favorable to the verdict, [] the record shows that on June 13, 2013, at approximately 11:00 p.m., a Canton police officer responded to a 911 call made by Barbara Knowles outside the Painted Pig restaurant in Canton. When he arrived, the officer spoke with Knowles, Marlow, and Trim, and [Knowles] advised that “they had left a school board meeting that was very heated, and when they crossed the two-lane, one way street between the crosswalk and the actual entrance of the restaurant, Cherokee County Schools Superintendent Frank Petruzielo came speeding by in an aggressive manner, and he came very close to them, and they felt threatened.”[]
The officer took a report, but he advised the trio that he would not pursue an investigation or charges and that they could obtain a citizen warrant in magistrate court if they wished to further pursue the matter.
A police supervisor subsequently reviewed the incident report, and on June 14, 2013, he referred the matter to a detective for investigation. The detective contacted Knowles, Trim, and Marlow and asked them to provide written statements via e-mail. [On June 23, 2013, Knowles e-mailed her written statement to the detective, and she went into the police station and signed it on July 2, 2013.[] In the statement, Knowles advised that as she, Marlow, and Trim were crossing the street, “[they] turned and saw a white, BMW SUV accelerating and changing from the right lane to the left lane where they were crossing.” According to her statement, Knowles was in front of Marlow and Trim, and Trim “had to push [Marlow] forward in order for them not to be hit by the driver of the SUV. The driver never slowed down.. . Knowles stated that [Petruzielo] was the driver of the BMW, and she called 911 and reported the incident because she “felt that [her] life had been in danger.”]
On June 20, 2013, the detective obtained surveillance video from outside the Painted Pig at 10:40 p.m. on June 13, 2013. [] According to the detective, the video shows Knowles “casually” walk across the street to the sidewalk without turning around and walk into the restaurant. Trim then reaches the sidewalk, followed by Marlow. The video does not show Trim pushing Marlow out of the way in the way [Knowles] described in [her] statement[ ]. It does depict Pet-ruzielo driving past in his vehicle. [] The detective described the surveillance video as “inconsistent” with the accusations made by . . . Knowles[, Marlow, and Trim].
On July 2, 2013, Knowles[, Marlow, and Trim] met with police at the scene, and they gave recorded oral statements and reenacted their version of the events involving Petruz-ielo, narrating as they did so. [] Their statements essentially repeated their written statements, and according to the detective, their statements and reenactment remained inconsistent with the video surveillance.

As a result of the investigation, Knowles was charged with one count of making a false report of a crime (Count 1) and three counts of making a false statement (Counts 2-4). The trial court granted a directed verdict as to Count 2, and Knowles was convicted of the remaining counts and sentenced to ten years to serve sixty days in custody, with the remainder to be served on probation. The trial court denied her subsequent motion for new trial, and this appeal followed.

1. Sufficiency of the evidence. Knowles argues that the evidence was insufficient to support her convictions. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

(a) Making a false report of a crime. OCGA § 16-10-26 provides: “A person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor.”

Knowles argues that because she did not actually use the specific words “reckless conduct” or “aggravated assault” or otherwise specifically name the crime she alleged Petruzielo committed when she first contacted police, her statements do not constitute a false report of a crime. This argument is without merit. The indictment did not allege that Knowles used any specific language, and the statute does not require it as an element of the crime.

Next, Knowles contends that the State failed to prove beyond a reasonable doubt that the report that she made to police was false. As we stated in Marlow,

the jury viewed the video surveillance footage and read and heard the testimony regarding [Knowles’s] statement[ ] to police.... It is the province of the jury to resolve any conflicts in the evidence and to determine the credibility of witnesses, and the fact that such conflicts may be resolved adversely to [Knowles] does not render the evidence insufficient. The evidence was sufficient to authorize the jury to determine that the State excluded all reasonable hypotheses save that of [Knowles’s] guilt, and to authorize a rational trier of fact to find [Knowles] guilty beyond a reasonable doubt of [making a false report of a crime].

(b) Making a false statement. OCGA § 16-10-20 provides:

Aperson who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

i. Knowles contends that the evidence was insufficient to support her convictions for Counts 3, 4, and 5. But as we concluded in Marlow and reiterated in Division 1 (a), Knowles’s statements to police, as contrasted with the video surveillance footage of the incident, were sufficient to support her convictions for making false statements.

ii. Knowles further contends that the State failed to prove venue as to Count 3, which arose out of her signing a printed copy of her e-mail at the police station on July 3. Specifically, Knowles argues that venue is proper in her location when she sent the e-mail to the detective and that there is no evidence that the location was in Cherokee County. Knowles relies upon Spray v. State. Her reliance, however, is misplaced and overlooks the language of the indictment in this case.

Here, Knowles was not charged with making a false statement by sending the e-mail. Instead, Count 3 charged her with making a false statement by “providing a false written statement” to police on July 2, 2013, when she went to the Canton Police Department in Cherokee County and signed her name to and attested to the contents of a printed copy of her e-mail. Under these circumstances, venue was proper in Cherokee County

2. Rule of lenity. Knowles contends that her felony sentences for making false statements (Counts 3, 4, and 5) should be vacated and that she should be resentenced for misdemeanor making a false report of a crime. For the same reasons stated in Marlow, we agree. Accordingly, we vacate Knowles’s sentences for the felony offense of making a false statement and remand for resentencing for the misdemeanor offense ofmaking a false report of a crime, OCGA § 16-10-26.

3. Ineffective assistance of counsel. Finally, Knowles contends that trial counsel was ineffective.

To establish that [her] trial counsel was constitutionally ineffective, [Knowles] was required to prove both deficient performance by counsel and resulting prejudice. To prove deficient performance, [Knowles] had to demonstrate that counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Because judicial scrutiny of counsel’s performance must be highly deferential, the law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. To carry this burden, [Knowles] must show that no reasonable lawyer would have done what [her] counsel did, or failed to do what [her] counsel did not do. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. Even if a defendant can prove that [her] counsel’s performance was deficient, [s]he must also prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must demonstrate a reasonable probability of a different result, which, the United States Supreme Court has explained, is a probability sufficient to undermine confidence in the outcome. In all, the burden of proving a denial of effective assistance of counsel is a heavy one.

(a) Knowles argues that trial counsel was ineffective by failing to call character witnesses for her at trial. But trial counsel testified that he did not call character witnesses because the case “wasn’t a trial about character. It was a trial — we were up against a video. . .. [0]ur case was about perception. It was about the video that we were trying to overcome and experts.” He also elected not to call them because he did not want to open the door to evidence regarding animosity between Knowles and school board members, which he thought could provide evidence of a motive for her actions.

[WJhether to introduce character evidence and potentially open the door for impeachment is clearly [a question] of tactics and strategy ... Even assuming that trial counsel’s decision not to call character witnesses on [Knowles’s] behalf was ill-advised and based on an evaluation of the evidence which hindsight shows to be incorrect, we nevertheless regard that decision as being a matter of trial strategy, which, even if erroneous, does not itself constitute a denial of effective assistance of counsel.

(b) Knowles also argues that trial counsel was ineffective by failing to remind the court that Knowles had filed a demurrer. We disagree.

Prior to trial, Knowles filed a general demurrer, stating that she “demurs to said indictment on the [ground] that the same fails to adequately charge this [defendant with any offense against the law of the State of Georgia.” At trial, Knowles’s trial attorney, through trial counsel for one of the co-defendants, moved for a directed verdict as to Count 3 of the indictment. After hearing argument of counsel, the trial court denied the motion, stating:

Having reviewed the authority cited by counsel and with consideration of the evidence presented in regard to the motion for a directed verdict, as it relates to the verbiage of Count... 3 ... — that because the indictment does not allege either — make or use a false written statement but otherwise alleges that the accused provided a false written statement, the court notes that there are no — there are no demurrers filed to the form of the indictment, that there is no black letter law that the court could find and that [was] cited to the court as to that particular issue, and that is whether or not signing a previously made electronic communication is making another false written communication or whether it’s using a false writing or both.

Trial counsel for Knowles did not remind the trial court that she had, in fact, filed a demurrer, and Knowles now argues on appeal that this failure constitutes ineffective assistance of counsel. But this argument overlooks the fact that the trial court also denied the motion on the basis that there was no case law finding the language of Count 3 insufficient to charge a violation of OCGA § 16-10-20.

Again, in relevant part, OCGA § 16-10-20 prohibits a person from “mak[ing] or us[ing] any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement.” Here, Count 3 charged that Knowles made a false statement in violation of OCGA § 16-10-20 by “knowingly and willfully providing] a false written statement to Detective Andrew Henson.” We reject Knowles’s argument that by using the word “provide” as opposed to “make” or “use,” the State failed to allege a violation of OCGA § 16-10-20. There is no requirement that the indictment track precisely the language of the Code section, and it is clear from the wording of Count 3 that the State alleged that Knowles made a written statement and gave it to police, knowing it to be false, which constitutes a violation of OCGA § 16-10-20.

Because the indictment was sufficient to withstand demurrer, the failure of [Knowles’s] trial counsel to [remind the court that she had filed a] demurrer did not constitute deficient performance. Accordingly, [Knowles] did not demonstrate that [s]he received ineffective assistance of counsel, and the trial court did not err in denying [her] motion for new trial.

Decided May 31, 2017

Reconsideration denied July 12, 2017.

Ross & Pines, Noah H. Pines, for appellant.

Shannon G. Wallace, District Attorney, Rachelle L. Carnesale, Cliff Head, Assistant District Attorneys, for appellee.

Judgment of conviction affirmed, sentence vacated, and case remanded for resentencing.

Andrews and Ray, JJ., concur.

       OCGA § 16-10-26.

       OCGA § 16-10-20.

       339 Ga. App. 790 (792 SE2d 712) (2016).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       This conversation was the basis for Count 1, making a false report of a crime.

       Knowles’s act of signing the written statement at the police department on July 2, 2013, is the basis for Count 3 of the indictment.

       The surveillance video was played for the jury at trial.

       At trial, the State introduced the testimony of the police officer who worked in the intelligence division of the police department and analyzed the surveillance video. Based on his analysis of the frames in the video, the officer opined that Petruzielo was traveling approximately 11.4 miles an hour as he drove past the scene. A defense expert refuted this conclusion, testifying that Petruzielo was traveling between 21 and 24.5 miles per hour.

       The statements and reenactment were recorded and played at trial. The reenactment video is the basis for Count 4 of the indictment against Knowles.

       (Citation, punctuation and footnotes omitted.) Marlow, 339 Ga. App. at 790-792.

       Count 2 was based on a phone call Knowles made to the detective on June 14, 2013.

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

       (Punctuation omitted.) Marlow, 339 Ga.App. at 792-793 (1), quoting McClendon v. State, 287 Ga. App. 238, 239 (1) (651 SE2d 165) (2007).

       (Punctuation omitted.) Marlow, 339 Ga. App. at 793 (1), quoting Banta v. State, 282 Ga. 392, 395-396 (1) (651 SE2d 21) (2007).

        See Marlow, 339 Ga. App. at 793 (1).

       223 Ga. App. 154 (476 SE2d 878) (1996). In Spray, the defendant was charged with making a false statement by filling out an application and falsely attesting to its contents. The defendant argued that venue for the crime should have been in the county where the application form was sent after he signed it. We disagreed, holding that venue was proper where the defendant made the statement, not in the county to which he sent the form. See id. at 157-158 (2). Compare State v. Johnson, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998) (holding that “venue for the prosecution of OCGA § 16-10-20 for the use of a false document is proper in the county in which the document was submitted for use, even if the person charged with using the false document made the document in another county”) (emphasis supplied).

       339 Ga. App. at 794-798 (2).

       (Citations and punctuation omitted.) Smith v. State, 298 Ga. 406, 412 (3) (a) (782 SE2d 269) (2016), quoting Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Neal v. State, 290 Ga. 563, 566-567 (4) (722 SE2d 765) (2012).

       The demurrer did not specify any particular counts Knowles was challenging.

       (Citations omitted.) Raybon v. State, 309 Ga. App. 365, 367 (710 SE2d 579) (2011).