1. Hospitals and Other Medical Facilities_certificate of need_appeal of
denial_exhaustion of administrative remedies
Plaintiffs' failure to exhaust administrative remedies meant that the trial court lacked
subject matter jurisdiction over claims arising from the denial of a certificate of need to replace
and expand a hospital. The court properly dismissed plaintiffs' constitutional claims and request
for a declaratory judgment.
2. Hospitals and Other Medical Facilities_denial of certificate of need_dismissal of
injunctive claim_failure to exhaust administrative remedies
Failure to exhaust adequate administrative remedies properly resulted in the dismissal of a
claim for injunctive relief arising from the denial of a certificate of need to replace and expand a
hospital.
3. Civil Rights_§ 1983_exhaustion of administrative remedies
Procedural due process claims may not be brought under 42 U.S.C. § 1983 until
administrative remedies have been exhausted. Although violation of a substantive right may be
the subject of a § 1983 claim regardless of the exhaustion of remedies, plaintiffs here did not
sufficiently state such a claim.
4. Constitutional Law_petitioning for redress_lobbying_immunity
The Noerr doctrine applies in North Carolina to bar any claim that has its gravamen in
constitutionally protected petitioning activity. The trial court here did not err by dismissing claims
by one hospital against another arising from the denial of a certificate of need; the exceptions for
false information depriving the proceeding of legitimacy and sham or objectively baseless lobbying
activities did not apply.
STEELMAN, Judge.
Plaintiffs appeal the dismissal of their claims by the trial
court. Because the trial court dismissed the claims under Rule
12(b) of the Rules of Civil Procedure, our recitation of the
relevant factual background is based upon the allegations contained
in plaintiffs' complaint.
Plaintiff Good Hope Hospital (Good Hope) is currently located
in Erwin, Harnett County. Its facility was originally constructed
in 1921, and is licensed for a total of 72 beds, consisting of 43
acute care beds and 29 psychiatric beds. The current facility
contains two operating rooms. On 15 April 2001, Good Hope filed an
application for a certificate of need (CON) with the North Carolina
Department of Health and Human Services (Department) proposing to
develop a partial replacement facility, located about three miles
from the existing facility. The application proposed to develop 34acute care beds, 12 psychiatric beds, and 3 operating rooms at the
new facility, and to continue the use of the existing facility for
outpatient therapy, medical records, plant operations and
maintenance, training, and storage. A CON was issued to Good Hope
by Department on 14 December 2001 for this proposed project.
Good Hope proposed to finance the new facility through a loan
approved by the United States Department of Housing and Urban
Development (HUD). This proposal was submitted to the Medical Care
Commission for approval. Betsy Johnson Regional Hospital, Inc.
(Betsy Johnson) operates a hospital located in Dunn, Harnett
County. There were unsuccessful merger talks between Good Hope and
Betsy Johnson. Betsy Johnson commented against Good Hope's
financing proposal before the Medical Care Commission. The Medical
Care Commission denied approval of Good Hope's financing proposal
and directed it to seek private financing. It subsequently
approved a $26,000,000.00, 68 bed expansion of Betsy Johnson, with
HUD financing.
Good Hope subsequently entered into an agreement with Triad
Hospitals, Inc. to form a joint venture, Good Hope Health System,
LLC. (these three entities are hereinafter referred to collectively
as “plaintiffs”). The purpose of the joint venture was to erect
and operate a hospital in Harnett County. Triad was not willing to
proceed with construction of the new facility based upon the 14
December 2001 CON, but wanted to construct a larger facility at a
different location. On 13 April 2003 plaintiffs filed a new CON
application with Department to develop a larger replacementhospital to be located in Lillington. The application proposed 34
acute care beds, 12 psychiatric beds and 3 operating rooms.
Department denied this application on 26 September 2003.
Plaintiffs appealed this denial to the Office of Administrative
Hearings, to the Superior Court of Wake County, and to this Court.
Betsy Johnson and Amisub were allowed to intervene in this appeal,
opposing the issuance of the CON.
On 22 August 2003, plaintiffs notified Department of their
intent to develop a replacement hospital facility under the
provisions of N.C. Gen. Stat. § 131E-184(a). This statute exempts
projects from CON review under certain specific circumstances. The
stated basis of this notice was that the condition of Good Hope had
deteriorated and that there existed imminent safety hazards as
defined by federal and state codes. By letters dated 11 December
2003 and 15 January 2004, Department advised plaintiffs that their
proposed project was not exempt from CON review under the
provisions of N.C. Gen. Stat. § 131E-184(a). This decision was
based upon the correction of “the deficiencies that constituted 'an
immediate and serious threat' to the health and safety of
patients.” We take judicial notice that plaintiffs appealed this
decision to the Office of Administrative Hearings, to the Superior
Court of Wake County, and to this Court.
On 29 January 2004, plaintiffs filed this action in the
Superior Court of Harnett County. Their complaint alleged the
following claims: (1) for declaratory judgment that plaintiffs are
entitled to construct a new hospital in Harnett County under theexemption provisions of N.C. Gen. Stat. § 131E-184, without any
restrictions as to “size or capital expenditure.”; (2) for a
mandatory injunction compelling Department to exempt a 72 bed, 3
operating room facility from the CON requirements; (3) that the
denial of plaintiffs' exemption requests violated their rights of
equal protection, due process and § 42 U.S.C. 1983; (4) that Betsy
Johnson's opposition to plaintiffs' proposed projects constituted
tortious interference with contract, tortious interference with
prospective economic advantage, a conspiracy in restraint of trade
in violation of N.C. Gen. Stat. § 75-1, and unfair and deceptive
trade practice in violation of N.C. Gen. Stat. § 75-1.1, and common
law unfair competition, (5) an injunction prohibiting Betsy Johnson
from further interfering with or opposing plaintiffs' proposed
projects. Plaintiffs joined Amisub as a defendant, alleging that
under N.C. Gen. Stat. § 1-260 it may have an interest that may be
affected by the litigation, but made no further allegations as to
Amisub. Defendant, Betsy Johnson, filed a motion to dismiss for
failure to state a claim upon which relief can be granted under
Rule 12(b)(6) on 10 February 2004. Defendant Department filed a
motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), to dismiss for failure to state a claim under Rule
12(b)(6) and to strike plaintiffs' request for a jury trial under
Rule 12(f) on 13 February 2004. Plaintiffs filed a motion for
partial summary judgment as to certain of their claims for
declaratory relief on 17 February 2004. Defendant, Betsy Johnson
filed a supplemental motion to dismiss on 26 February 2004,asserting as an additional basis of its motion to dismiss lack of
subject matter jurisdiction under Rule 12(b)(1). On 20 February
2004, the Town of Lillington (Intervenor) moved to intervene as a
party plaintiff in the case. This motion was granted on 1 March
2004.
On 1 March 2004, these motions came on for hearing before
Judge Floyd. On 1 April 2004, Judge Floyd entered two orders
encompassing the following rulings: (1) Betsy Johnson's motion to
dismiss was granted; (2) plaintiffs' claims for declaratory
judgment and injunctive relief against Betsy Johnson were denied;
(3) Department's motion to dismiss was granted, except as to the
claim under the Public Records Act; (4) Department's motion to
strike plaintiffs' request for a jury trial was denied; (5)
plaintiffs' motions for preliminary and permanent injunctions were
denied. On 3 May 2004, plaintiffs dismissed their claims under the
Public Records Act, with prejudice. Plaintiffs and Intervenor
appeal the two orders entered on 1 April 2004.
[1] In their first argument, plaintiffs contend that the trial
court erred in dismissing the claims against Department. We
disagree.
The trial court dismissed plaintiffs' claims against
Department pursuant to Rule 12(b)(1) based upon a lack of subject
matter jurisdiction. “An action is properly dismissed under Rule
12(b)(1) for lack of subject matter jurisdiction where the
plaintiff has failed to exhaust administrative remedies.” Shell
Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 220, 517S.E.2d 406, 410 (1999). Before any hospital may service the
public, it must first obtain a licence from the Department of
Health and Human Services. N.C. Gen. Stat. § 131E-77. Pursuant to
N.C. Gen. Stat. § 131E-78(a), the Department of Health and Human
Services has the sole “authority to deny, suspend, revoke, annul,
withdraw, recall, cancel, or amend a license in any case when it
finds a substantial failure to comply with the provisions of this
Part or any rule promulgated under this Part.” Any applicant who
has been denied a license has a right to a hearing pursuant to
Chapter 150B to review that decision. N.C. Gen. Stat. § 131E-
78(b)(1). “Any applicant or operator who is dissatisfied with the
decision of the Department as a result of the hearing provided in
this section and after a written copy of the decision is served,
may request a judicial review under Chapter 150B of the General
Statutes, the Administrative Procedure Act.” N.C. Gen. Stat. §
131E-78(c).
In the instant case, plaintiffs requested a hearing pursuant
to N.C. Gen. Stat. § 131E-78(b)(1), but also filed the instant
claim seeking relief in the courts of general jurisdiction before
exhausting their administrative remedies. “[T]he proper course for
the plaintiffs was to exhaust their remedies under the
[Administrative Procedure Act] before seeking judicial review.”
North Buncombe Ass'n of Concerned Citizens v. Rhodes, 100 N.C. App.
24, 28, 394 S.E.2d 462, 465 (1990). Plaintiffs claim that they
were not required to exhaust this administrative remedy because the
administrative remedies are inadequate, and the administrativeagencies do not have jurisdiction to hear their constitutional and
§ 1983 claims, nor grant declaratory or injunctive relief.
“When the General Assembly provides an effective
administrative remedy by statute, that remedy is exclusive and the
party must pursue and exhaust it before resorting to the courts.
On the other hand, if the remedy established by the NCAPA is
inadequate, exhaustion is not required. The burden of showing
inadequacy is on the party claiming inadequacy, who must include
such allegations in the complaint.” Jackson v. North Carolina Dep't
of Human Resources Div. of Mental Health, Developmental
Disabilities, & Substance Abuse Servs., 131 N.C. App. 179, 186, 505
S.E.2d 899, 903-04 (1998).
In Rhodes, supra, plaintiffs filed a claim in Buncombe County
Superior Court seeking to have a mining permit issued to Vulcan
Materials Company, Inc. to operate a crushed stone quarry declared
void, and further seeking injunctive relief. Plaintiffs' complaint
sought, inter alia, a declaratory judgment requesting the trial
court to determine that the Mining Act (N.C. Gen. Stat. §§ 74-46 to
-68) was unconstitutional as applied to them, and that the permit
had been improperly granted.
The Rhodes Court held that the trial court lacked jurisdiction
to consider plaintiffs' claims under the Declaratory Judgment Act,
including their constitutional claim, because they had failed to
exhaust their administrative remedies under the Administrative
Procedure Act. Rhodes, 100 N.C. App. 24, 394 S.E.2d 462. For the
same reason, we hold that the trial court properly dismissedplaintiffs' constitutional claims, and its request for declaratory
judgment. See also, Murphy v. McIntyre, 69 N.C. App. 323, 328, 317
S.E.2d 397, 400 (1984).
[2] Plaintiffs further argue that the trial court erred in
dismissing their claim for injunctive relief, because the
Department of Health and Human Services has no authority to grant
equitable relief. “A pleading that alleges inadequacy of
administrative remedy states a claim upon which equitable relief
may be granted if the circumstances warrant it.” Lloyd v. Babb, 296
N.C. 416, 426-27, 251 S.E.2d 843, 851 (1979). “The complaint must
be carefully scrutinized '”to ensure that the claim for relief [is]
not inserted for the sole purpose of avoiding the exhaustion
rule.”' Thus, we must consider whether the available
administrative remedies were indeed inadequate to resolve
[plaintiff's] claims.” Jackson, 131 N.C. App. at 187, 505 S.E.2d
899, 904 (citations omitted). We have thoroughly reviewed
plaintiffs' claim seeking injunctive relief, and hold that the
available administrative remedies are not inadequate to resolve
their claim, and hold that it was properly dismissed.
[3] State courts have concurrent jurisdiction with federal
courts over 42 U.S.C. § 1983 claims, and may hear certain
constitutional claims even if administrative remedies have not been
exhausted. Edward Valves, Inc. v. Wake County, 343 N.C. 426, 434,
471 S.E.2d 342, 347 (1996). Where a plaintiff argues that
administrative remedies are inadequate, and thus violate procedural
due process: The constitutional violation actionable under
§ 1983 is not complete when the deprivation
occurs; it is not complete unless and until
the State fails to provide due process.
Therefore, to determine whether a
constitutional violation has occurred, it is
necessary to ask what process the State
provided, and whether it was constitutionally
adequate. This inquiry would examine the
procedural safeguards built into the statutory
or administrative procedure of effecting the
deprivation, and any remedies for erroneous
deprivations provided by statute or tort law.
Zinermon v. Burch, 494 U.S. 113, 126, 108 L. Ed. 2d 100, 114
(1990); see also Edward Valves, Inc. v. Wake County, 343 N.C. 426,
434, 471 S.E.2d 342, 347 (1996). Thus, procedural due process
claims may not be brought under § 1983 until administrative
remedies have been exhausted. Id.
Violation of a substantive constitutional right may be the
subject of a § 1983 claim, regardless of whether administrative
remedies have been exhausted, because the violation is complete
when the prohibited action is taken. Id. However:
The text of section 1983 permits actions only
against a “person.” In Will v. Michigan Dept.
of State Police, 491 U.S. 58, 105 L. Ed. 2d 45
(1989), the Supreme Court held that when an
action is brought under section 1983 in state
court against the State, its agencies, and/or
its officials acting in their official
capacities, neither a State nor its officials
acting in their official capacity are
“persons” under section 1983 when the remedy
sought is monetary damages.
Corum v. University of North Carolina, 330 N.C. 761, 771, 413
S.E.2d 276, 282-83 (1992). In support of their § 1983 claim,
plaintiffs allege:
Agency defendants through their actions have
caused plaintiffs to lose the $200,000 grantfrom the Kate B. Reynolds Foundation for the
replacement facility, deprived plaintiffs of
the right to do business, due process of law,
equal protection and have imposed excessive
fines against Good Hope Hospital through the
forced expense in excess of $225,000 to make
unwarranted repairs in, rather than
replacement of, an inadequate, deficient and
aged hospital facility, thereby depriving Good
Hope Hospital of the use of such funds to
develop a replacement hospital facility and
have caused Good Hope to incur significant
expenses including attorneys fees in violation
of 42 U.S.C. § 1983.
To the extent that plaintiffs are seeking monetary damages, the
state defendants are not “persons” in the § 1983 context. To the
extent, if at all, that plaintiffs are seeking injunctive relief
for violations of their procedural due process rights, their claim
was properly dismissed for lack of jurisdiction for failure to
exhaust their administrative remedies. Plaintiffs' sole claim for
relief pursuant to § 1983, then, would be for any claim for
injunctive relief arguing that their equal protection rights have
been violated. We are not convinced plaintiffs have stated any
such claim for injunctive relief. Assuming arguendo such a claim
exists, we hold that it was properly dismissed.
In support of their equal protection claim, plaintiffs state:
Agency defendants have deprived Good Hope
Hospital of the right to equal protection
under Article I, Section 19 of the North
Carolina and the Fourteenth Amendment to the
United States Constitution by their
unauthorized and improper application of the
CON Act [and other statutes and regulations]
and by unfairly and improperly favoring Betsy
Johnson in its expansion and partial hospital
replacement projects and unfairly
discriminating against Good Hope and its
proposed replacement hospital facility.
Plaintiffs further make a general allegation of discrimination
against them by the state defendants based on their “for profit
status and the bias of the individual Agency defendants against for
profit health care providers.” We note that the North Carolina
Constitution is inapposite in a § 1983 claim.
Though it appears the trial court dismissed this claim for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1),
defendants also moved for dismissal pursuant to Rule 12(b)(6), and
we elect to review this argument based on Rule 12(b)(6). Snuggs,
310 N.C. at 740, 314 S.E.2d at 529.
The question before a court considering a
motion to dismiss for failure to state a claim
is whether, if all the plaintiff's allegations
are taken as true, the plaintiff is entitled
to recover under some legal theory. A
complaint may be dismissed pursuant to Rule
12(b)(6) where “(1) the complaint on its face
reveals that no law supports a plaintiff's
claim, (2) the complaint on its face reveals
the absence of facts sufficient to make a good
claim, or (3) the complaint discloses some
fact that necessarily defeats a plaintiff's
claim.” “In reviewing a dismissal of a
complaint for failure to state a claim, the
appellate court must determine whether the
complaint alleges the substantive elements of
a legally recognized claim and whether it
gives sufficient notice of the events which
produced the claim to enable the adverse party
to prepare for trial.”
Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83
(2002).
“
We are not required, however, 'to accept as true
allegations that are merely conclusory, unwarranted deductions of
fact, or unreasonable inferences.'
”
Veney v. Wyche, 293 F.3d 726,
730 (4th Cir., 2002).
The Equal Protection Clause of the Fourteenth
Amendment provides that “no State shall . . .
deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The equal protection
requirement “does not take from the States all
power of classification,” but “keeps
governmental decision-makers from treating
differently persons who are in all relevant
respects alike.” To succeed on an equal
protection claim, [plaintiff] “must first
demonstrate that [it] has been treated
differently from others with whom [it] is
similarly situated and that the unequal
treatment was the result of intentional or
purposeful discrimination.” If [it] makes
this showing, “the court proceeds to determine
whether the disparity in treatment can be
justified under the requisite level of
scrutiny.” To state an equal protection
claim, [plaintiff] must plead sufficient facts
to satisfy each requirement....
Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002)
. Plaintiffs
do not contend that they are entitled to any heightened scrutiny in
the instant case, and after thoroughly reviewing their complaint we
find no reason for any. Their claim is therefore subject to
rational basis review, and their complaint must therefore allege
that Department's discriminatory acts against them were without any
rational basis. Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed.
2d 1060, 1063 (2000);
Willis v. Town of Marshall, 2003 U.S. Dist.
LEXIS 16967, 40-43 (W.D.N.C. 2003).
Plaintiffs' complaint fails to
allege lack of rational basis, therefore fails to state a claim
upon which relief may be granted, and was properly dismissed. See
Id. This argument is without merit.
[4] In their second argument, plaintiffs contend the trial
court erred in dismissing the claims against Betsy Johnson. We
disagree.
“'A complaint should be dismissed for failure to state a claim
where it is apparent that plaintiff . . . is entitled to no relief
under any statement of facts which could be proven, more
specifically, when there is an absence of law to support the claim
asserted, a want of facts sufficient to establish a good claim, or
some defense which will necessarily defeat the claim.'”
Brawley v.
Brawley, 87 N.C. App. 545, 552, 361 S.E.2d 759, 763 (1987
). At the
hearing on its motion to dismiss, Betsy Johnson argued that the
Noerr-Pennington doctrine (Noerr) shielded it from any liability
for plaintiffs' claims against it.
In Noerr and Pennington, the Supreme Court
held that attempts to influence the
legislative process, even if prompted by an
anticompetitive intent, are immune from
antitrust liability. This doctrine rests on
two grounds: the First Amendment's protection
of the right to petition the government, and
the recognition that a representative
democracy, such as ours, depends upon the
ability of the people to make known their
views and wishes to the government.
Potters Medical Center v. City Hospital Asso., 800 F.2d 568, 578
(6th Cir., 1986). A search of the decisions of the appellate
courts of this state turns up no instances where Noerr has been
applied (Reichhold Chems., Inc. v. Goel, 146 N.C. App. 137, 555
S.E.2d 281 (2001), discusses Noerr, but declines to apply it,
determining that Noerr is not implicated under the facts of that
case). However the Fourth Circuit has applied Noerr in cases out
of North Carolina. Hospital Bldg. Co. v. Trustees of Rex Hospital,
791 F.2d 288, 292 (4th Cir., 1986); North Carolina Electric
Membership Corp. v. Carolina Power & Light Co., 666 F.2d 50 (4thCir., 1981). We hold that Noerr applies in the state courts of
North Carolina. See also Gen-Probe, Inc. v. Amoco Corp., 926 F.
Supp. 948, 956 (D. Cal., 1996)(“Noerr immunity bars any claim,
federal or state, common law or statutory, that has as its gravamen
constitutionally-protected petitioning activity.”); Kottle v.
Northwest Kidney Ctrs., 146 F.3d 1056, 1059 (9th Cir., 1998)(“Thus,
the Noerr-Pennington doctrine sweeps broadly and is implicated by
both state and federal antitrust claims that allege anticompetitive
activity in the form of lobbying or advocacy before any branch of
either federal or state government.”).
Noerr has been recognized in federal courts in the context of
certificate of need cases. Armstrong Surgical Ctr., Inc. v.
Armstrong County Mem'l Hosp., 185 F.3d 154, 158 (3d Cir., 1999);
Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056 (9th Cir., 1998);
Tarabishi v. McAlester Regional Hosp., 951 F.2d 1558 (10th Cir.
1991); Potters Medical Center v. City Hospital Asso., 800 F.2d 568,
578 (6th Cir., 1986); Hospital Bldg. Co. v. Trustees of Rex
Hospital, 791 F.2d 288, 292 (4th Cir., 1986); St. Joseph's Hosp. v.
Hospital Corp. of America, 795 F.2d 948, 955 (11th Cir. 1986).
Plaintiffs argue that they alleged facts in their complaint
sufficient to establish two exceptions to Noerr, and thus survive
Betsy Johnson's motion to dismiss. Plaintiffs argue that there
exist both a “false information” and a “sham” exception to Noerr
immunity protection. In Kottle, 146 F.3d 1056, the 9th Circuit
applied Noerr in a certificate of need case and affirmed the
district court's dismissal for failure to state a claim ofplaintiff's suit based on Noerr immunity, even though plaintiff had
alleged the “sham” exception, and further alleged that defendant
had made numerous misrepresentations concerning plaintiff's CON
petition. The 9th Circuit, after reviewing the relevant law, held
that in the certificate of need context, a plaintiff
can get around the Noerr-Pennington doctrine
only if his allegations show one of three
things: (1) [defendant's] advocacy before the
Department was objectively baseless and merely
an attempt to stifle competition; (2)
[defendant] engaged in a pattern of petitions
before the Department without regard to the
merit of the petitions; or (3) [defendant's]
misrepresentations before the Department
deprived the entire CON proceeding of its
legitimacy.
Kottle, 146 F.3d 1056, 1062-63. We find the 9th Circuit's reasoning
compelling.
In the instant case plaintiffs have not alleged a “pattern of
petitions before the Department without regard to the merit of the
petitions,” so they fail the second prong of the test. In order
for plaintiffs to succeed under the first prong of the test, they
must allege “that a defendant's lobbying activities were
'objectively baseless' for the 'sham' exception to apply. Lobbying
activity is objectively baseless if a reasonable private citizen
could not expect to secure favorable government action. The
lawsuit must be objectively baseless in the sense that no
reasonable litigant could realistically expect success on the
merits.” Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 862 (5th
Cir., 2000). “A winning lawsuit is by definition a reasonable
effort at petitioning for redress and therefore not a sham.”Professional Real Estate Investors v. Columbia Pictures Indus., 508
U.S. 49, 61 (U.S., 1993). In the instant case, plaintiffs'
application for a CON for a replacement facility was rejected by
the Agency. Plaintiffs appealed to the Office of Administrative
Hearings, and lost that appeal. Because defendant Betsy Johnson
was successful in its petition to prevent the issuance of a CON for
plaintiffs' proposed replacement facility, that petition can not be
held to be objectively baseless. Kottle v. Northwest Kidney Ctrs.,
146 F.3d 1056, 1063 (9th Cir., 1998).
In order for plaintiffs to prevail under the third prong of
the test, they must allege facts indicating that defendant Betsy
Johnson made misrepresentations before Department that deprived the
entire CON proceeding of its legitimacy. “[W]hen 'a plaintiff
seeks damages . . . for conduct which is prima facie protected by
the First Amendment, the danger that the mere pendency of the
action will chill the exercise of First Amendment rights requires
more specific allegations than would otherwise be required.'”
Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056, 1063 (9th Cir.,
1998)(citation omitted). “In such cases, we employ a heightened
pleading standard, and that standard 'would have no force if in
order to satisfy it, a party could simply recast disputed issues
from the underlying litigation as “misrepresentations” by the other
party.'” Id.(citations omitted).
In the instant case plaintiffs make vague allegations of
misrepresentations on the part of defendant Betsy Johnson. A
representative example of the allegations in plaintiffs' complaintfollows: “[Defendant] had made comparable misrepresentations to the
Attorney General, including but not limited to Triad Hospitals'
past provision of charity care at a hospital in New Mexico, and
Good Hope Health System's commitment to provide charity care at the
Good Hope Hospital replacement facility and has otherwise sought to
malign the intentions of Good Hope Health System, Good Hope
Hospital and Triad Hospitals.” Nowhere in its complaint do
plaintiffs make allegations of any specific misrepresentations
defendant Betsy Johnson made that could deprive the entire CON
proceeding of legitimacy. We hold that plaintiffs' complaint fails
to meet the heightened standard required to overcome defendant
Betsy Johnson's Noerr immunity. Because defendant Betsy Johnson
was protected by Noerr immunity, the trial court properly dismissed
the claims against defendant Betsy Johnson. This argument is
without merit.
AFFIRMED.
Judge McGEE concurs.
Judge TIMMONS-GOODSON concurs prior to 31 October 2005.
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