Appeal by petitioner from a final agency decision entered 20
April 2004 by the North Carolina Department of Health and Human
Services. Heard in the Court of Appeals 15 March 2006.
Nelson Mullins Riley & Scarborough, LLP, by Noah H.
Huffstetler, III, Denise M. Gunter, Catharine W. Cummer, and
Lisa R. Gordon, for petitioner-appellant.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Melissa L. Trippe, for respondent-appellee.
Smith Moore LLP, by Maureen Demarest Murray and William W.
Stewart, Jr., for respondent-intervenor-appellee.
The Presbyterian Hospital (Presbyterian) appeals from a
final agency decision of the North Carolina Department of Healthand Human Services (DHHS) entered 20 April 2004. For the reasons
stated herein, we affirm the final agency decision.
Lake Norman Regional Medical Center (Lake Norman) filed a
Certificate of Need (CON) application to expand emergency room
facilities with DHHS on 1 February 2003. The application was
conditionally approved on 11 March 2003. On 9 April 2003,
Presbyterian filed a contested case petition in the Office of
Administrative Hearings (OAH), appealing the conditional approval
of Lake Norman's CON application. Lake Norman filed a motion to
intervene which was granted 13 May 2003.
Presbyterian filed a motion for summary judgment on 22 October
2003 on the grounds that Lake Norman's application failed to
conform with one of the statutory criteria for a CON. On 23
October 2003, Lake Norman filed a motion for summary judgment on
the grounds that Presbyterian could not establish substantial
prejudice from the DHHS decision to grant Lake Norman a CON. On 7
November 2003, Presbyterian filed a second motion for summary
judgment on the grounds that res judicata barred Lake Norman's
A recommended decision was filed on 19 December 2003. The
administrative law judge found that summary judgment should be
entered in favor of DHHS and Lake Norman, and that Lake Norman
should be awarded a CON. The administrative law judge concluded
that Presbyterian had failed to prove an essential element of its
claim, that it would be harmed by the grant of Lake Norman's
application. On 29 March 2004, Presbyterian submitted written exceptions to
DHHS. On 20 April 2004, DHHS issued its final agency decision
accepting the administrative law judge's recommended decision and
affirming the original award of a CON to Lake Norman. Presbyterian
We first address the appropriate standard of review for an
appeal from a final agency decision. The substantive nature of
each assignment of error controls our review of an appeal from an
administrative agency's final decision. Craven Reg'l Med. Auth.
v. Dep't of Health & Human Servs.
, 176 N.C. App. 46, 51, 625 S.E.2d
837, 840(2006). Where a party asserts an error of law occurred,
we apply a de novo
standard of review. Id
. If the issue on
appeal concerns an allegation that the agency's decision is
arbitrary or capricious or 'fact-intensive issues such as
sufficiency of the evidence to support [an agency's] decision' we
apply the whole-record test. Id
. (quoting North Carolina Dep't of
Env't & Natural Res. v. Carroll
, 358 N.C. 649, 659, 599 S.E.2d 888,
894 (2004)). As summary judgment is a matter of law, Hilliard v.
N.C. Dep't of Corr
., 173 N.C. App. 594, 597-98, 620 S.E.2d 14, 17
(2005), review by the Court in this matter is de novo
Presbyterian first contends the final agency decision granting
summary judgment to Lake Norman was in error. We disagree.
Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as amatter of law. Hilliard
, 173 N.C. App. at 597-98, 620 S.E.2d at
17. 'The burden is upon the moving party to show that no genuine
issue of material fact exists and that the moving party is entitled
to judgment as a matter of law.' Rainey v. St.Lawrence Homes,
., 174 N.C. App. 611, 612, 621 S.E.2d 217, 219 (2005) (citation
To meet its burden, the movant is required to
present a forecast of the evidence available
at trial that shows there is no material issue
of fact concerning an essential element of the
non-movant's claim and that the element could
not be proved by the non-movant through the
presentation of further evidence.
Lohrmann v. Iredell Mem'l Hosp. Inc
., 174 N.C. App. 63, 70, 620
S.E.2d 258, 261, (2005), disc. review denied
, 360 N.C. 364, ___
S.E.2d ___ (2006). Once the party seeking summary judgment makes
the required showing, the burden shifts to the nonmoving party to
produce a forecast of evidence demonstrating specific facts, as
opposed to allegations, showing that he can at least establish a
case at trial. Gaunt v. Pittaway
, 139 N.C. App. 778,
784-85, 534 S.E.2d 660, 664 (2000).
This Court has previously held that, as genuine material
issues of fact will always exist, summary judgment is never
appropriate in an application for a CON where two or more
applicants conform to the majority of the statutory criteria. See
Living Centers-Southeast, Inc. v. N.C. Dep't of Health & Human
., 138 N.C. App. 572, 580-81, 532 S.E.2d 192, 197 (2000). We
find the facts of this case distinguishable. Here, unlike in
, Lake Norman was the sole applicant for anon-competitive CON. Therefore, an award of summary judgment is
permissible in this matter.
We first examine the statutory requirements for contesting the
issuance of a CON by DHHS. Review of a decision by DHHS to issue
a CON is governed by N.C. Gen. Stat. § 131E-188(a) (2005), which
states in part:
After a decision of the Department to issue,
deny or withdraw a certificate of need or
exemption or to issue a certificate of need
pursuant to a settlement agreement with an
applicant to the extent permitted by law, any
affected person, as defined in subsection (c)
of this section, shall be entitled to a
contested case hearing under Article 3 of
Chapter 150B of the General Statutes.
. A contested case is commenced by the filing of a petition
shall state facts tending to establish that
the agency named as the respondent has
deprived the petitioner of property, has
ordered the petitioner to pay a fine or civil
penalty, or has otherwise substantially
prejudiced the petitioner's rights
(1) Exceeded its authority or
(2) Acted erroneously;
(3) Failed to use proper procedure;
(4) Acted arbitrarily or capriciously;
(5) Failed to act as required by law or
N.C. Gen. Stat. § 150B-23(a) (2005) (emphasis added). In
Britthaven, Inc. v. N.C. Dept. of Human Resources
, 118 N.C. App.
379, 455 S.E.2d 455 (1995), this Court stated: The subject matter of a contested case hearing
by the ALJ is an agency decision. Under N.C.
Gen. Stat. § 150B-23(a), the ALJ is to
determine whether the petitioner has met its
burden in showing that the agency
substantially prejudiced petitioner's rights
and that the agency also acted outside its
authority, acted erroneously, acted
arbitrarily and capriciously, used improper
procedure, or failed to act as required by law
. at 382, 455 S.E.2d at 459 (emphasis added).
Presbyterian, in its Petition for a Contested Case Hearing,
alleged that they were an aggrieved party because as a provider of
identical services in HSA III, [Presbyterian] is a person directly
and indirectly affected substantially in its person and property by
the Agency's foregoing decision, which interferes with
Presbyterian's ability to carry out its lawful business in HSA
III. Presbyterian primarily asserts that substantial prejudice to
its legal rights may result from continued challenges by Lake
Norman to its Huntersville project, a hospital to be constructed by
Presbyterian in a neighboring community. We note that our Supreme
Court recently dismissed this challenge as moot in Mooresville
Hosp. Mgmt. Assocs. v. N.C. Dep't of Health & Human Servs
N.C. 156, 157-58, 622 S.E.2d 621, 622 (2005), on the grounds that
the Huntersville facility was completed and fully operational.
Presbyterian also contends that judicial estoppel prevents
Lake Norman from asserting that Presbyterian has not suffered
substantial prejudice, due to Lake Norman's position in
. '[J]udicial estoppel forbids a party from asserting
a legal position inconsistent with one taken earlier in the same orrelated litigation.' Price v. Price
, 169 N.C. App. 187, 191, 609
S.E.2d 450, 452 (2005) (citations omitted). We note that although
both the instant case and Mooresville
are appeals from CON
determinations by DHHS, the cases are not related litigation and do
not stem from a common set of circumstances. Therefore, judicial
estoppel does not bar Lake Norman's legal position in the instant
case where Presbyterian has made no showing of substantial
prejudice from the grant of the CON to Lake Norman.
A review of the record shows that no material issue of fact
exists as to an essential element of the non-movant's claim, as
Presbyterian has failed to forecast evidence of substantial
prejudice to its rights from the grant of a CON to Lake Norman for
expansion of its emergency room facilities. Presbyterian's
assignment of error is overruled.
As the final agency decision properly granted summary judgment
to Lake Norman, we do not reach Presbyterian's remaining
assignments of error regarding Presbyterian's own motions for
summary judgment not reached by the final agency decision. For the
foregoing reasons, the final agency decision is affirmed.
Judges HUDSON and BRYANT concur.
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