{ "id": 8527537, "name": "J. ADAM ABRAM, WILLIAM L. CASSELL and JOHN ENGLERT, d/b/a ACE CHEMICAL DEPENDENCY SERVICES, Plaintiffs v. CHARTER MEDICAL CORPORATION OF RALEIGH, INC., Defendant", "name_abbreviation": "Abram v. Charter Medical Corp. of Raleigh, Inc.", "decision_date": "1990-12-04", "docket_number": "No. 9010SC140", "first_page": "718", "last_page": "723", "citations": [ { "type": "official", "cite": "100 N.C. App. 718" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "297 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560900, 8560934, 8560883, 8560952, 8560924 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0127-02", "/nc/307/0127-04", "/nc/307/0127-01", "/nc/307/0127-05", "/nc/307/0127-03" ] }, { "cite": "293 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "921" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525273 ], "year": 1982, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0414-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "147 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1966, "pin_cites": [ { "page": "163" }, { "page": "164" } ], "opinion_index": 0 }, { "cite": "266 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563075 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0731-01" ] }, { "cite": "312 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "424" } ], "opinion_index": 0 }, { "cite": "310 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395558 ], "year": 1984, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0445-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 586, "char_count": 11807, "ocr_confidence": 0.762, "pagerank": { "raw": 3.308727315921819e-07, "percentile": 0.8723265333229853 }, "sha256": "d8d2492741b303cc9cddb4ca5ebe1c7176d4cdecdd750d356cff4124e14513b2", "simhash": "1:1881e5ec17412bde", "word_count": 1858 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and DUNCAN concur.", "Judge DUNCAN concurred in this opinion prior to 29 November 1990." ], "parties": [ "J. ADAM ABRAM, WILLIAM L. CASSELL and JOHN ENGLERT, d/b/a ACE CHEMICAL DEPENDENCY SERVICES, Plaintiffs v. CHARTER MEDICAL CORPORATION OF RALEIGH, INC., Defendant" ], "opinions": [ { "text": "COZORT, Judge.\nThe owners of ACE Chemical Dependency Services (hereinafter ACE or plaintiff) initiated this action against Charter Medical Corporation of Raleigh (hereinafter Charter or defendant) on 1 August 1988. ACE asserted claims for breach of contract, fraud, attempted monopolization, abuse of civil process, malicious prosecution and unfair and deceptive trade practices. The trial court granted defendant\u2019s Rule 12(b)(6) motion to dismiss plaintiff\u2019s unfair and deceptive trade practices claim and dismissed on summary judgment the rest of plaintiff\u2019s claims. Plaintiff appeals. We affirm the dismissal of all claims.\nIn North Carolina no person may develop a new institutional health service without first obtaining a certificate of need (hereinafter CON) from the Department of Human Resources (hereinafter Department). N.C. Gen. Stat. \u00a7 131E-178(a) (1988). In 1982, ACE and Charter, along with several other organizations, submitted applications for a CON to provide chemical dependency treatment facilities in the Wake County area. In the fall of 1982, the Department approved Charter\u2019s application. ACE contested this approval and pursued its administrative remedies.\nIn 1988 the Department determined that additional chemical dependency facilities were needed. ACE submitted an application for the CON. ACE planned to lease the facility to another organization, CHAPS Health Services, Inc. (hereinafter CHAPS). Charter then opposed ACE\u2019s new application and pursued its administrative remedies. Thus, while ACE was opposing Charter\u2019s application in a contested case hearing, Charter was opposing ACE\u2019s through an identical procedure. However, on 15 April 1985, the parties entered into a Settlement Agreement which was to settle the parties\u2019 \u201cinterests and claims with regard to the projects.\u201d ACE agreed to cease its opposition to Charter\u2019s project. In return, Charter agreed to cease its opposition to ACE\u2019s and CHAPS\u2019 pending application and not to contest the CON if it was awarded to ACE.\nOver the next two years, Charter developed its project while ACE suffered a number of pre-construction delays. ACE attempted to enter into a financing relationship with American Treatment Centers, Inc. (hereinafter ATC). Pursuant to the Settlement Agreement, ACE dismissed its contested case hearing regarding Charter\u2019s development. On 18 April 1985, Charter wrote to the CON section of the Department requesting that the project proposed by ACE, CHAPS and ATC be subjected to a full certificate of need review.\nThe Department viewed ACE\u2019s new financing relationship as a CON transfer, a decision which would have necessitated the withdrawal of the first CON and a full, lengthy CON review. ACE proposed a new financing relationship, which the Department eventually found acceptable and extended the timetable on ACE\u2019s CON. Charter continued to raise questions about ACE\u2019s CON by writing to the Department on 31 July 1985 and 3 September 1985. On 1 May 1986, Charter filed with the Department a formal petition alleging ACE had unlawfully transferred its certificate. When that petition was denied, Charter filed in superior court on 11 July 1986 a Petition for a Contested Case Hearing. Charter also filed in superior court a Petition for Judicial Review and Complaint. The superior court filings were ultimately resolved in ACE\u2019s favor, and the ACE project was completed and began operation in 1986.\nOn 1 August 1988, plaintiff filed this action, basing its claims upon Charter\u2019s efforts to secure full CON review of the proposed project after ACE changed its financing arrangement.\nOn appeal, plaintiff contests the trial court\u2019s dismissal of the unfair and deceptive trade practices claim and the granting of summary judgment for defendant on the breach of contract claim and the malicious prosecution claim. We shall address the breach of contract claim first.\nPlaintiff contends that the letter and the spirit of the settlement agreement required Charter to refrain from any further challenges to ACE\u2019s certificate of need and that Charter\u2019s letters, administrative petitions and judicial petitions violated the agreement. Defendant argues that the statute of limitations bars ACE\u2019s contract claim. We agree with defendant.\nThe statute of limitations for contract actions is three years. N.C. Gen. Stat. \u00a7 1-52(1) (1983). The statute begins to run when the claim accrues; with a breach of contract action, the claim accrues upon breach. Pearce v. N.C. Hwy. Patrol Vol. Pledge Comm., 310 N.C. 445, 448, 312 S.E.2d 421, 424 (1984).\nThe controlling case is Parsons v. Gunter, 266 N.C. 731, 147 S.E.2d 162 (1966). In that case plaintiff Parsons and defendant Gunter agreed in April 1959 that \u201cthey would work jointly to develop a machine known as a \u2018cotton card drive\u2019.\u201d Id. at 731, 147 S.E.2d at 163. The parties agreed that they would each \u201creceive one-half of the profits from sales of the machines.\u201d Id. Thereafter, defendant sold some of the machines. In May 1960, plaintiff demanded an accounting of the proceeds defendant received; defendant told plaintiff that there was \u201c \u2018no room for [plaintiff] in the sale of [the] card drives.\u2019 \u201d Id. at 733, 147 S.E.2d at 164. Our Supreme Court held that in May 1960 Gunter had disclaimed his obligation to pay part of the proceeds to plaintiff and that \u201c[t]his disavowal started the statute of limitations to run.\u201d Id. Therefore, Parsons\u2019 right to maintain the action was barred since more than three years elapsed since the date plaintiff was put on notice of Gunter\u2019s breach and the institution of the cause of action. Id.\nIn the present case, the agreement, if breached at all, was breached initially on 18 April 1985. On that date, Charter\u2019s attorney wrote the chief of the CON section and requested a full review of the new arrangement proposed by CHAPS, ACE, and ATC. In a letter to Charter\u2019s attorney, ACE itself declared the 18 April letter to be a breach of the settlement agreement. Thus, according to Parsons, if a claim for breach of contract arose, it did so on 18 April 1985. ACE did not bring its breach of contract action until 1 August 1988 and is thus barred by the statute of limitations.\nPlaintiff\u2019s next argument is that, since Charter\u2019s administrative and judicial petitions were filed in the absence of or contrary to the governing statutes and regulations and jeopardized a CON, the trial court should have denied defendant\u2019s motion for summary judgment as to plaintiff\u2019s malicious prosecution claim. We do not agree.\nIn North Carolina, a claim of malicious prosecution requires proof of four elements: (1) that the defendant initiated the proceedings, (2) that the defendant did so maliciously and without probable cause, (3) that the proceeding terminated in plaintiff\u2019s favor, and (4) that there are special damages beyond the ordinary expense and inconvenience of litigation. Stanback v. Stanback, 297 N.C. 181, 203, 254 S.E.2d 611, 625 (1979). In the present case, one of the elements plaintiff must prove is special damages. Plaintiff has forecast no evidence demonstrating special damages as required by Stanback; plaintiff has merely referred to the liquidated damages set forth in the agreement. Liquidated damages for breach of a contract are not special damages resulting from the alleged malicious prosecution. Furthermore, the record reveals no factual dispute as to whether special damages existed. Thus, summary judgment for the defendant on this issue was appropriate.\nFinally, plaintiff maintains that the trial court\u2019s dismissal of the unfair and deceptive trade practices claim was erroneous. In the complaint, plaintiff alleges that the actions of defendant in seeking review of plaintiff\u2019s application for the CON constituted an unfair and deceptive trade practice in violation of N.C. Gen. Stat. \u00a7 75-1.1. In response, defendant argues that \u00a7 75-l.Hb) exempts professional services rendered by a member of a learned profession and that it is exempted as a professional health care provider. We find merit to defendant\u2019s argument.\nIn an action which stemmed from a hospital\u2019s denial of hospital staff privileges to two doctors, a panel of this Court concluded that the \u201cconsideration of whom to grant hospital staff privileges is a necessary assurance of good health care; certainly, this is the rendering of \u2018professional services\u2019 which is now excluded from the aegis of G.S. 75-1.1.\u201d Cameron v. New Hanover Memorial Hosp., 58 N.C. App. 414, 447, 293 S.E.2d 901, 921, disc. review denied, appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982). We find that the rationale of Cameron applies here; the General Assembly intended to exclude such professional services from the application of \u00a7 75-1.1. Under North Carolina\u2019s CON law, an applicant seeking to develop a health service facility must meet certain criteria. See N.C. Gen. Stat. \u00a7 131E-183 (1988). Defendant, a member of the health care community, was requesting that ACE\u2019s application be subjected to scrutiny before ATC, the organization which would run the chemical dependency treatment facility, was admitted to the community. These actions do not give rise to a claim under \u00a7 75-1.1. Thus, the trial court properly dismissed plaintiffs claim.\nIn conclusion, we find that the trial court\u2019s orders dismissing this action were proper.\nAffirmed.\nJudges ORR and DUNCAN concur.\nJudge DUNCAN concurred in this opinion prior to 29 November 1990.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Tharrington, Smith & Hargrove, by Richard A. Schwartz and Douglas A. Ruley, for plaintiff appellants.", "Parker, Poe, Adams & Bernstein, by Robert W. Spearman, Renee J. Montgomery and John J. Butler, for defendant appellee." ], "corrections": "", "head_matter": "J. ADAM ABRAM, WILLIAM L. CASSELL and JOHN ENGLERT, d/b/a ACE CHEMICAL DEPENDENCY SERVICES, Plaintiffs v. CHARTER MEDICAL CORPORATION OF RALEIGH, INC., Defendant\nNo. 9010SC140\n(Filed 4 December 1990)\n1. Limitation of Actions \u00a7 4.6 (NCI3d)\u2014 certificate of need\u2014 agreement not to contest \u2014 breach\u2014statute of limitations\nPlaintiff was barred by the statute of limitations from bringing an action alleging breach of an agreement to refrain from further challenges to ACE\u2019s certificate of need where the agreement was breached, if at all, on 18 April 1985 and plaintiff did not bring its breach of contract action until 1 August 1988. The statute of limitations for contract actions is three years. N.C.G.S. \u00a7 1-52(1) (1983).\nAm Jur 2d, Limitation of Actions \u00a7 92.\n2. Malicious Prosecution \u00a7 12 (NCI3d)\u2014 contested certificate of need \u2014 malicious prosecution \u2014 summary judgment for defendant\nThe trial court did not err by granting summary judgment for defendant on a malicious prosecution claim arising from a contested certificate of need where plaintiff did not allege special damages, one of the elements of malicious prosecution. Liquidated damages for breach of a contract are not special damages resulting from the alleged malicious prosecution; furthermore, the record reveals no factual dispute as to whether special damages existed.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 10, 11.\n3. Unfair Competition \u00a7 1 (NCI3d)\u2014 contested certificate of need \u2014not unfair competition\nThe trial court properly granted defendant\u2019s motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) of defendant\u2019s unfair and deceptive trade practices claim arising from a contested certificate of need. The General Assembly intended to exclude from the application of N.C.G.S. \u00a7 75-1.1 professional services rendered by a member of a learned profession such as a professional health care provider.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 735.\nJudge DUNCAN concurred in this opinion prior to 29 November 1990.\nAPPEAL by plaintiffs from judgment entered 4 August 1989 by Judge Henry W. Hight, Jr., in WAKE County Superior Court. Heard in the Court of Appeals 80 August 1990.\nTharrington, Smith & Hargrove, by Richard A. Schwartz and Douglas A. Ruley, for plaintiff appellants.\nParker, Poe, Adams & Bernstein, by Robert W. Spearman, Renee J. Montgomery and John J. Butler, for defendant appellee." }, "file_name": "0718-01", "first_page_order": 750, "last_page_order": 755 }