{ "id": 11866924, "name": "GORDON G. KOLTIS, M.D. CAROLINA RADIATION AND CANCER TREATMENT CENTER, P.A., AND CAROLINA RADIATION MEDICINE, P.A. Petitioners-Appellees v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondent-Appellee, and PITT COUNTY MEMORIAL HOSPITAL, INC., Respondent-Intervenor-Appellant", "name_abbreviation": "Koltis v. North Carolina Department of Human Resources", "decision_date": "1997-02-04", "docket_number": "No. COA96-387", "first_page": "268", "last_page": "273", "citations": [ { "type": "official", "cite": "125 N.C. App. 268" } ], "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": "61 ALR3d 278", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "196 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "206", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "283 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558723 ], "year": 1973, "pin_cites": [ { "page": "307", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0299-01" ] }, { "cite": "5 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "318", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "216 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605855 ], "year": 1939, "pin_cites": [ { "page": "483", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/216/0480-01" ] }, { "cite": "303 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523821 ], "year": 1983, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0553-01" ] } ], "analysis": { "cardinality": 546, "char_count": 12929, "ocr_confidence": 0.732, "pagerank": { "raw": 2.6790348534215276e-07, "percentile": 0.8265138237789152 }, "sha256": "76ba2d79839a485e23a18f05927e8fc7c847493307045d71fbccddcb3169b65d", "simhash": "1:d77ace56acad139b", "word_count": 2003 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge SMITH concur." ], "parties": [ "GORDON G. KOLTIS, M.D. CAROLINA RADIATION AND CANCER TREATMENT CENTER, P.A., AND CAROLINA RADIATION MEDICINE, P.A. Petitioners-Appellees v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondent-Appellee, and PITT COUNTY MEMORIAL HOSPITAL, INC., Respondent-Intervenor-Appellant" ], "opinions": [ { "text": "WYNN, Judge.\nPetitioners, Dr. Gordon Koltis and two professional associations of which Dr. Koltis is the president and sole shareholder (Carolina Radiation and Cancer Treatment Center, P.A., and Carolina Radiation Medicine, P.A.), proposed to develop and operate a new oncology treatment center in Pitt County, North Carolina. To that end, petitioners notified the North Carolina Department of Human Resources, Division of Facility Services, Certificate of Need Section (DHR) of their ongoing efforts to develop the center and requested DHR\u2019s confirmation that the project was exempt from obtaining the certificate of need required for a \u201cnew institutional health service\u201d under N.C. Gen. Stat. \u00a7 131E-178. DHR responded that no certificate of need was required since the project did not meet the current statutory definition of a \u201cnew institutional health service\u201d under N.C. Gen. Stat. \u00a7 131E-176(16) but warned that pending legislation would significantly change that definition and if enacted, the project would have to be reevaluated in light of the statutory amendment.\nBy ratification of Senate Bill 10 on 18 March 1993, N.C.G.S. \u00a7 131E-176 was amended so that an oncology treatment center fell within the definition of a \u201cnew institutional health service\u201d requiring a certificate of need under N.C.G.S. \u00a7 131E-178. However, Senate Bill 10 contained a grandfather clause which excepted from application of the amended statute \u201cany person . . . [or] corporation . . . who has lawfully entered into a binding legal contract to develop and offer any service that was not a new institutional health service requiring a certificate of need prior to the ratification of this act.\u201d 1993 N.C. Sess. Laws ch. 7, sec. 12. DHR notified petitioners that they did not fall within the exception and were thus required to obtain a certificate of need. Petitioners challenged DHR\u2019s decision via a contested case hearing in the Office of Administrative Hearings. Pitt County Memorial Hospital, Inc. (PCMH) intervened as a proper party and as an \u201caffected person\u201d within the meaning of N.C. Gen. Stat. \u00a7 131E-188 (1994).\nAll parties moved for summary judgment and the Administrative Law Judge (ALJ) entered a recommended decision granting summary judgment in petitioners\u2019 favor finding that petitioners fell within the application of the grandfather clause of Senate Bill 10 because they had entered into binding legal contracts to develop the oncology treatment center before 18 March 1993. DHR\u2019s Director of the Division of Facility Services issued a final agency decision adopting the AU\u2019s recommended decision granting summary judgment in petitioners\u2019 favor. Respondent-intervenor PCMH appeals.\nThe principal issue PCMH raises on appeal is whether the agency erred by granting summary judgment to petitioners on the grounds that they were exempt from obtaining a certificate of need because they had entered into binding legal contracts to develop and offer a health service as contemplated by the grandfather clause of Senate Bill 10. We hold that the agency properly granted summary judgment for petitioners and therefore affirm the agency\u2019s final decision.\nPCMH first contends that the contracts petitioners rely upon are not legally binding contracts. PCMH argues that the terms of petitioners\u2019 contracts with Terrence Boardman are not sufficiently definite to be legally binding. In addition, PCMH argues that Mr. Boardman\u2019s consulting services could be terminated at will unilaterally by either side and therefore the agreement to provide such services was not binding.\nA valid contract requires offer, acceptance, consideration and no defenses to formation. Copy Products, Inc. v. Randolph, 62 N.C. App. 553, 555, 303 S.E.2d 87, 88 (1983).\nIn the making of a contract it is essential that the parties thereto assent to the same thing in the same sense, and their minds must meet as to all terms. To be binding the terms shall be definite and certain, or capable of being made so. But the contract need not definitely and specifically contain in detail every fact to which the parties are agreeing. It is sufficient if the terms can be made certain by proof.\nSides v. Tidwell, 216 N.C. 480, 483, 5 S.E.2d 316, 318 (1939) (emphasis added) (citations omitted).\nThe record in the subject case reveals that Mr. Boardman, a certified public accountant, provided general accounting services to Carolina Radiation Medicine, PA. (CRM) for $200 per month. In August 1992, Dr. Koltis and CRM retained Mr. Boardman to act as their agent and provide consulting services connected with development of the proposed oncology treatment center for an additional $1,400 per month. In December 1992, Dr. Koltis and CRM entered into a second agreement with Mr. Boardman, effective in January 1993, to further provide such services for an additional $600 per month. The record contains two letters from Mr. Boardman to Dr. Koltis which outline the general terms of their agreement. In the first, Mr. Boardman agreed to provide \u201cfinancial consulting services\u201d including \u201caccounting, payroll and special projects\u201d for $1600 per month from 15 August 1992 through 31 December 1992. In the second, Mr. Boardman agreed to provide \u201cgeneral accounting and consulting services\u201d for $800 per month from 1 January 1993 through 31 December 1993. The record also contains the affidavits of both Mr. Boardman and Dr. Koltis which confirm the general terms and provide further details of the agreement between the parties. We find that the uncontroverted evidence in the record establishes two legally binding contracts for a specific duration between Mr. Boardman and Dr. Koltis.\nPCMH next contends that even if the contracts with Mr. Boardman are valid, legally binding contracts, they are not contracts to \u201cdevelop and offer\u201d the proposed center as required for exemption under the grandfather clause of Senate Bill 10.\nUnder the grandfather clause of Senate Bill 10, a person or corporation \u201cwho has lawfully entered into a binding legal contract to develop and offer any service that was not a new institutional health service requiring a certificate of need prior to the ratification of this act\u201d is exempt from the certificate of need requirement. 1993 N.C. Sess. Laws ch. 7, sec. 12. N.C.G.S. \u00a7 131E-176 provides the definition of the terms \u201cdevelop\u201d and \u201coffer\u201d:\n(7) To \u201cdevelop\u201d when used in connection with health services, means to undertake those activities which will result in the offering of institutional health service or the incurring of a financial obligation in relation to the offering of such a service.\n(18) To \u201coffer,\u201d when used in connection with health services, means that the person holds himself out as capable of providing, or as having the means for the provision of, specified health services.\nPCMH argues that petitioners had neither entered into any contract to \u201cdevelop\u201d nor entered into any contract to \u201coffer\u201d the proposed oncology treatment center. However, the record reveals that petitioners entered into two separate contracts with Mr. Boardman to provide consulting services related to development of the proposed oncology treatment center.\nMr. Boardman\u2019s performance under the contracts included preparation of an initial budget proposal and financial feasibility study for the center, request and receipt of proposals from various vendors for equipment needed in the center, contact with an architect to provide a cost projection for the proposed center, the investigation of possible sites upon which to build the center, and correspondence with DHR regarding the necessity of obtaining a certificate of need for the project. Petitioners\u2019 contracts with Mr. Boardman were clearly to \u201cdevelop\u201d the center.\nPCMH further argues that to be exempt from the certificate of need requirement, the grandfather clause in Senate Bill 10 requires a contract to develop and offer a health service. PCMH maintains that petitioners have failed to present evidence of any contract to develop and offer any health service.\nThe agency, adopting the AU\u2019s recommended decision, concluded that \u201c[p]etitioners\u2019 contracts \u2018to develop\u2019 are sufficient to satisfy the Grandfather Clause. Under the Department\u2019s own interpretation, no separate \u2018contract to offer\u2019 is necessary.\u201d In arriving at that conclusion, the agency relied upon Hunter v. N.C. Dept. of Human Resources, 93 DHR 0746 (Final Decision, July 14, 1994).\nIn Hunter, the agency considered whether a contract for the purchase of heart-lung bypass equipment entered into prior to the ratification of Senate Bill 10 qualified petitioners for an exemption from the application of the amended statute under the grandfather clause. The agency concluded:\nThe definition of \u201coffer\u201d makes it impossible to have a \u201ccontract\u201d to offer. \u201cOffer\u201d as it is used in the New Act involves only one party because, quite simply, one cannot contract to \u201chold oneself out\u201d as being capable of providing or having the means of providing a health service; therefore, a contract for the offering or use of the equipment prior to March 18, 1993, was not necessary.\nWhile we recognize that the agency\u2019s interpretation of the grandfather clause of Senate Bill 10 is not binding on this Court, \u201cthe construction adopted by those who execute and administer the law in question is relevant and may be considered. Such construction is entitled to \u2018great consideration,\u2019 or to \u2018due consideration.\u2019 It is said to be \u2018strongly persuasive, or even \u2018prima facie correct.\u2019 \u201d MacPherson v. City of Asheville, 283 N.C. 299, 307, 196 S.E.2d 200, 206 (1973) (citations omitted). We find the agency's interpretation persuasive and therefore hold that to satisfy the requirements of the grandfather clause of Senate Bill 10 one need only show a binding legal contract to develop any service that was not a new institutional health service requiring a certificate of need prior to 18 March 1993.\nWe find that petitioners fall within the exemption provided by the grandfather clause of Senate Bill 10 because they entered into contracts with Mr. Boardman to provide services to develop the proposed oncology treatment center prior to 18 March 1993. Accordingly, we hold that the agency properly granted summary judgment for petitioners and affirm the agency\u2019s final decision.\nAffirmed.\nChief Judge ARNOLD and Judge SMITH concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Poyner & Spruill, L.L.P., by Mary Beth Johnston and Benjamin P Dean, for respondent-intervenor-appellant.", "Petree Stockton, L.L.P., by Noah H. Huffstetler, III and Gary S. Qualls, for petitioners-appellees.", "Michael F. Easley, Attorney General, by Sherry C. Lindquist, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "GORDON G. KOLTIS, M.D. CAROLINA RADIATION AND CANCER TREATMENT CENTER, P.A., AND CAROLINA RADIATION MEDICINE, P.A. Petitioners-Appellees v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondent-Appellee, and PITT COUNTY MEMORIAL HOSPITAL, INC., Respondent-Intervenor-Appellant\nNo. COA96-387\n(Filed 4 February 1997)\nHospitals and Medical Facilities or Institutions \u00a7 11 (NCI4th)\u2014 oncology treatment center \u2014 certificate of need \u2014 statutory amendment \u2014 exemption under grandfather clause\nPetitioners were exempt from obtaining a certificate of need to open an oncology treatment center because they had entered into binding legal contracts \u201cto develop\u201d a health service as contemplated by the grandfather clause of the 1993 amendment to N.C.G.S. \u00a7 131E-176 which included an oncology treatment center within the definition of \u201cnew institutional health service\u201d requiring a certificate of need where, prior to the effective date of the amendment, petitioners had entered into contracts with a CPA for a specified fee and duration under which the CPA was to provide consulting services related to development of the proposed center, and the CPA\u2019s duties under the contracts included preparation of an initial budget proposal and a financial feasibility study, handling of vendors\u2019 proposals for equipment, contacting an architect for a cost projection, investigation of sites, and correspondence with DHR regarding the necessity of obtaining a certificate of need. Although the grandfather clause required a contract to \u201cdevelop and offer\u201d a health service, the definition of \u201coffer\u201d in the statute makes it impossible to have a contract to offer, and the requirements of the grandfather clause were satisfied by a showing of a binding contract \u201cto develop\u201d a health service.\nAm Jur 2d, Hospitals and Asylums \u00a7 4.\nValidity and construction of statute requiring establishment of \u201cneed\u201d as precondition to operation of hospital or other facilities for the care of sick people. 61 ALR3d 278.\nAppeal by respondent-intervenor from Final Decision entered 4 December 1995 by Director John M. Syria, Director of the North Carolina Department of Human Resources, Division of Facility Services. Heard in the Court of Appeals 6 January 1997.\nPoyner & Spruill, L.L.P., by Mary Beth Johnston and Benjamin P Dean, for respondent-intervenor-appellant.\nPetree Stockton, L.L.P., by Noah H. Huffstetler, III and Gary S. Qualls, for petitioners-appellees.\nMichael F. Easley, Attorney General, by Sherry C. Lindquist, Assistant Attorney General, for the State." }, "file_name": "0268-01", "first_page_order": 306, "last_page_order": 311 }