Jackson v. Hca Mgmt. Servs., Lp

Jackson v. HCA Mgmt. Servs., LP, 2026 NCBC 69. STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION BUNCOMBE COUNTY 23CVS005013-100 JEFF JACKSON, Attorney General, ex rel. DOGWOOD HEALTH TRUST, Plaintiff, ORDER AND OPINION ON CROSS- v. MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO MH MASTER HOLDINGS LLLP, EXCLUDE Defendant. 1. THIS MATTER arises from the alleged breach of an Amended and Restated Asset Purchase Agreement (APA) by Defendant MH Master Holdings LLLP (HCA). 1 When HCA acquired Mission Hospital in 2019, it promised that it would “not discontinue the provision of” certain services for ten years. The Attorney General alleges that HCA breached the APA by discontinuing the provision of some of these services in 2023. 2. Before the Court are (1) the Attorney General’s Motion for Partial Summary Judgment (the Attorney General’s Motion), (ECF No. 141 [Pl.’s Mot.]); (2) HCA’s Motion for Summary Judgment (HCA’s Motion; and with the Attorney General’s Motion, the Cross-Motions for Summary Judgment), (ECF No. 142 [Def.’s Mot.]); and (3) HCA’s Motion to Exclude Plaintiff’s Expert, Dr. Kia Parsi (the Motion 1 HCA Healthcare, Inc. is the ultimate corporate parent of MH Master Holdings LLLP. (Am. Compl. ¶ 7, ECF No. 50; Def.’s Answer & Countercls. Pls.’ Am. Compl., Answer ¶ 7, ECF No. 55.) The APA permits MH Master Holdings LLLP to “incorporate ‘HCA’ into any . . . naming, branding and marketing[.]” (Am. Compl. Ex. 1 § 7.10, ECF No. 50.1.) The Court refers to Defendant as HCA in this opinion. to Exclude; and with the Cross-Motions for Summary Judgment, the Motions), (ECF No. 147 [Mot. Excl.]). 3. After considering the Motions, briefs, exhibits filed with respect to the Motions, oral arguments of counsel at a hearing on the Motions, and other relevant matters of record, the Court GRANTS in part and DENIES in part the Attorney General’s Motion, GRANTS in part and DENIES in part HCA’s Motion, and DENIES HCA’s Motion to Exclude. North Carolina Department of Justice, by Brian Rabinovitz, Llogan R. Walters, Daniel P. Mosteller, Danielle Wilburn Allen, Daniel T. Wilkes, Allyson S. Barkley, and Marc D. Brunton, for Plaintiff Attorney General Jeff Jackson ex. rel. Dogwood Health Trust. Latham & Watkins, LLP, by Nathan A. Sandals and Chase A. Chesser; Kirton McConkie, by Allen Gardner; and Roberts & Stevens, PA, by Phillip T. Jackson, John Noor, and David Hawisher, for Defendant MH Master Holdings, LLLP. Earp, J. I. FACTUAL AND PROCEDURAL BACKGROUND 4. The Court does not make findings of fact when ruling on motions for summary judgment but instead “summarizes the relevant evidence of record, noting both the facts that are disputed and those that are uncontested, to provide context for the claims and the [m]otions.” Aym Techs., LLC v. Rodgers, 2019 NCBC LEXIS 64, at *2 (N.C. Super. Ct. Oct. 16, 2019) (citing Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142 (1975)).  A. The APA and Asset Sale 5. On 30 August 2018, HCA, Mission Health System, Inc. (Mission Health), Dogwood Health Trust (Dogwood), 2 and other signatories executed an agreement providing for HCA’s acquisition of Mission Health’s assets. The acquisition included Mission Hospital, a healthcare facility located in Asheville, North Carolina. (Pl.’s Resp. Opp’n Def.’s Mot. Partial Summ. J. Ex. 2 [Initial Agmt.], ECF No. 93.3.) 6. Section 7.13(a) of the Initial Agreement specified that HCA would “not discontinue the provision of the services set forth on Schedule 7.13(a)” absent an applicable exception. The services included (i) “[e]mergency and [t]rauma services generally consistent with the current Level II Trauma Program with emergency services for pediatrics and adults, ground/air medical transport services and forensic nursing services”; and (ii) “[o]ncology [s]ervices – inpatient and outpatient cancer services, radiation therapy, surgery, chemotherapy, and infusion services.” (Initial Agmt.; Def.’s Br. Supp. Mot. Summ. J. Ex. 11 [Initial Agmt. Schedule], ECF No. 145.12.) By letter dated 1 September 2018 and pursuant to N.C.G.S. § 55A-12-02(g), 3 Mission Health notified the Attorney General’s Office of the 2 Dogwood is a North Carolina non-profit corporation that has the right to enforce HCA’s obligations under Section 7.13 of the APA. (See Am. Compl. Ex. 1 §§ 1.1, 13.13(b), ECF No. 50.1; Pl.’s Br. Supp. Mot. Ex. 16, ECF No. 144.16.) 3 N.C.G.S. § 55A-12-02(g) provides the following: A charitable . . . corporation shall give written notice to the Attorney General 30 days before it sells, leases, exchanges, or otherwise disposes of all, or a majority of, its property if the transaction is not in the usual and regular course of its activities . . . . The Attorney General may require an additional 30-day period to review the proposed transaction by providing written notice to the Initial Agreement (the Notice). (Pl.’s Resp. Opp’n Def.’s Mot. Partial Summ. J. Ex. 4, ECF No. 93.5.) 7. The Attorney General reviewed the Initial Agreement, conducted an investigation, and ultimately required several changes, but no changes were made to Section 7.13(a) and Schedule 7.13(a). (Def.’s Br. Supp. Mot. Summ. J. Ex. 17, ECF No. 145.18; Am. Compl. Ex. 1 [APA], ECF No. 50.1; Initial Agmt.; Initial Agmt. Schedule.) Based on the resulting Amended and Restated Asset Purchase Agreement (APA), the Attorney General issued a letter of nonobjection on 16 January 2019, approving the transaction. (Def.’s Br. Supp. Mot. Summ. J. Ex. 18, ECF No. 145.20.) 8. The APA was executed on or about 31 January 2019. (See Am. Compl. ¶ 29, ECF No. 50; Def.’s Answer & Countercls. Pl.’s Am. Compl. [Answer & Countercls.], Answer ¶ 29, , ECF No. 55; Def.’s Mot. Partial Summ. J. Ex. 20, ECF No. 71.20.) Thereafter, Mission Health changed its name to ANC Healthcare, Inc. (ANC) and began winding down. (Dep. ANC Healthcare, Inc. [ANC Dep.] 44:13–45:5, 46:7–47:20, ECF No. 165.) B. The Key Terms 9. In section 7.13(a) of the APA, HCA agreed that: [u]nless otherwise consented to in writing by the Advisory Board for a period of ten (10) years immediately following the Closing Date, [HCA] shall not discontinue the provision of the services set forth on Schedule 7.13(a) . . . at the Mission Hospital Campus Facility . . . subject to Force Majeure making the provision of such services impossible or commercially unreasonable[.] . . . From and after charitable or religious corporation prior to the expiration of the initial notice period. During this 30-day period, the transaction may not be finalized. N.C.G.S. § 55A-12-02(g).  such ten (10)-year period, unless otherwise consented to in writing by the Advisory Board, [HCA] shall continue the provision of each Mission Hospital / CarePartners Service at the Mission Hospital Campus Facility . . . subject to Force Majeure making the provision of such services impossible or commercially unreasonable . . . until such time as a Contingency is finally determined to have occurred in accordance with Section 7.13(d)[.] (APA § 7.13(a) (emphasis added).) 10. As stated above, Schedule 7.13(a) of the APA includes: • Emergency and Trauma services generally consistent with the current Level II Trauma Program 4 with emergency services for pediatrics and adults, ground/air medical transport services and forensic nursing services[; and] • Oncology Services – inpatient and outpatient cancer services, radiation therapy, surgery, chemotherapy, and infusion services. (APA Schedule 7.13(a).) The APA does not define the phrase “shall not discontinue” or the term “provision.” 11. In addition to Section 7.13(a) and its schedule, the parties refer to Section 7.13(c) of the APA in their arguments. That section provides: Unless otherwise consented to in writing . . . for a period of ten (10) years immediately following the Closing Date, [HCA] shall not sell or close any of the Material Facilities 5 unless Force Majeure makes the continued operation by [HCA] of the Material Facilities impossible or commercially unreasonable[.] . . . From and after such ten (10)-year period, unless otherwise consented to in writing . . . [HCA] shall not close any Material Facility . . . until such time as a Contingency is finally determined to have occurred[.] (APA § 7.13(c).) 4 To be designated as a Level II Trauma Center under North Carolina law, a hospital must meet the criteria “defined in the ‘American College of Surgeons: Resources for Optimal Care of the Injured Patient.’ ” 10A N.C. Admin. Code 13P.0901(3) (2026). 5 The “Material Facilities” include Mission Hospital. (See APA § 1.1.)  12. The APA defines “Contingency” in relevant part as “the active medical staffs of the applicable Material Facility not having qualified, available physicians and/or clinical staff that are in good standing and are necessary for [HCA] . . . to provide such Mission Hospital / CarePartners Service or continue such operation[.]” (APA § 1.1.) 13. If the Attorney General determines that Dogwood has failed to exercise its right to enforce HCA’s obligations under Section 7.13(a) of the APA, he must first notify Dogwood of his determination. (See APA § 13.13(b); Pl.’s Br. Supp. Mot. Ex. 16, ECF No. 144.16.) If Dogwood does not take appropriate action to enforce HCA’s obligations within forty (40) days of receiving the notice, the Attorney General has the right to enforce HCA’s obligations on Dogwood’s behalf. (APA § 13.13(b).) C. The Lawsuit 14. On 14 December 2023, the Attorney General initiated this action on Dogwood’s behalf, 6 asserting two breach of contract claims against HCA for allegedly discontinuing the provision of certain (i) emergency and trauma services and (ii) oncology services at Mission Hospital. (See generally Compl., ECF No. 3.) 15. On 26 April 2024, the Attorney General filed an Amended Complaint containing additional factual allegations but asserting the same claims for relief. 6 The parties dispute whether the Attorney General properly notified Dogwood of Defendant’s noncompliance with the APA as a prerequisite for bringing suit. (See APA § 13.13(b); Am. Compl. ¶ 204; Answer & Countercls., Affirm. Defenses ¶ 11.) However, neither party raised this issue with respect to the Motions, so the Court does not address it. HCA filed its Answer and Counterclaims on 6 May 2024. 7 (See generally Am. Compl.; Answer & Countercls.) 16. The Attorney General alleges that “Mission Hospital’s once efficient and orderly emergency department is now significantly degraded and unable to meet patients’ needs” due, in part, to staffing levels that are inadequate to meet the requirements of a Level II Trauma Program and the inconsistent offering of surgical otolaryngology services. (Am. Compl. 3, 22, 27, 33–34.) The Attorney General further alleges that Mission Hospital’s oncology services have degraded since the acquisition because it has no medical oncologists to monitor initial chemotherapy treatments (“first starts”) and it has eliminated complex hematology services for adult patients with blood cancers, among other reasons. (Am. Compl. ¶¶ 168, 182–85.) The Attorney General relies on affidavits from some of Mission Hospital’s patients and providers, (see Am. Compl. Exs. 3–23, ECF Nos. 50.3–.23), as well as findings by governmental agencies, (see Am. Compl. Ex. 25, Dep’t Health & Human Servs. Ctrs. Medicare & Medicaid Servs. Stmt. Deficiencies [Stmt. Deficiencies], ECF No. 50.25). 8 HCA denies the Attorney General’s allegations. (See generally Answer & Countercls.) 7 The Court dismissed HCA’s Counterclaims with prejudice on 6 December 2024. (Order & Opinion Mot. Dismiss Countercls. & Partial Mot. Dismiss Request Attys.’ Fees, ECF No. 97); Stein ex rel. Dogwood Health Tr. v. MH Master Holdings, LLLP, 2024 NCBC LEXIS 152, at *16 (N.C. Super. Ct. Dec. 6, 2024). 8 The Statement of Deficiencies was issued after an investigation of Mission Health’s emergency department to determine its compliance with the Centers for Medicare and Medicaid Services’ (CMS) Conditions of Participation. (Stmt. Deficiencies 1); see 42 C.F.R. §§ 482.1–.104 (2026). The investigation resulted in a finding of “Immediate Jeopardy (IJ) to patients’ health and safety” as a result of incidents that occurred in 2022 and 2023, among other reasons. (Stmt. Deficiencies 1, 7, 9.)  17. On 26 July 2024 and prior to the end of discovery, HCA moved for partial summary judgment on the meaning of the words “shall not discontinue” in section 7.13(a) of the APA. (Def.’s Mot. Partial Summ. J., ECF No. 69.) The Court determined that the words were ambiguous and denied the motion. (See Order & Opinion Def.’s Mot. Partial Summ. J., ECF No. 133); Jackson ex rel. Dogwood Health Tr. v. MH Master Holdings LLLP, 2025 NCBC LEXIS 43, at *13–15 (N.C. Super. Ct. Apr. 16, 2025). 18. Following the close of discovery, on 27 October 2025, the Attorney General filed a Motion for Partial Summary Judgment requesting that the Court (i) adopt his interpretation of Section 7.13(a) and (ii) determine that HCA breached the APA by discontinuing the provision of certain oncology services at Mission Hospital. (Pl.’s Mot.) On the same day, HCA filed a Motion for Summary Judgment requesting that the Court (i) adopt its interpretation of Section 7.13(a) and (ii) determine that it did not breach the APA with respect to the provision of either emergency and trauma services or oncology services. (Def.’s Mot.; Def.’s Br. Supp. Mot. Summ. J. [Br. Supp. Def.’s Mot.] 24, 26, ECF No. 145.) HCA also filed its Motion to Exclude the testimony of Dr. Kia Parsi, the Attorney General’s expert, concerning services provided at Mission Hospital in 2023. (Mot. Excl.; Def.’s Br. Supp. Mot. Excl. Pl.’s Expert, Dr. Kia Parsi Ex. 1 [Parsi Initial Report], ECF No. 148.1.) 19. The Motions were fully briefed, and the Court held a hearing on the Motions on 11 February 2026, at which all parties were represented by counsel. (Am. Notice Hearing, ECF No. 160.) The Motions are ripe for disposition.  II. LEGAL STANDARD 20. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56(c). “A genuine issue of material fact is one that can be maintained by substantial evidence.” Daughtridge v. Tanager Land, LLC, 373 N.C. 182, 186–87 (2019) (citation modified). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and means more than a scintilla or a permissible inference.” Id. at 187 (citation modified). 21. The party seeking summary judgment on the opposing party’s claim bears the initial burden to establish the absence of a genuine issue of material fact. James H.Q. Davis Tr. v. JHD Props., LLC, 387 N.C. 19, 23 (2025) (quoting Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579 (2002)). Ordinarily, a movant may satisfy this burden by showing that “an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of [the] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000) (citations omitted). “If the movant successfully makes such a showing, the burden then shifts to the nonmovant to come forward with specific facts establishing the presence of a genuine factual dispute for trial.” Halikierra Cmty. Servs. LLC v. N.C. Dep’t of Health & Hum. Servs., 385 N.C. 660, 663 (2024) (quoting Pennington, 356 N.C. at 579).  22. A party who seeks summary judgment in its favor with respect to its own claims “must show that there are no genuine issues of fact, that there are no gaps in [its] proof, that no inferences inconsistent with [its] recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury.” Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 721 (1985). 23. The Court “may not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact.” Forbis v. Neal, 361 N.C. 519, 524 (2007) (citing Singleton v. Stewart, 280 N.C. 460, 464 (1972)); Gaynoe v. First Union Direct Bank, N.A., 2001 NCBC LEXIS 8, at *14 (N.C. Super. Ct. Jan. 18, 2001) (“The judge’s function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” (citation modified)). When deciding the motion, the Court must consider the evidence in the light most favorable to the non-moving party. Belmont Ass’n, Inc. v. Farwig, 381 N.C. 306, 310 (2022) (quoting Dalton v. Camp, 353 N.C. 647, 651 (2001)). 24. As this Court has previously observed, “summary judgment is a drastic remedy that should be granted cautiously.” A-1 Pavement Marking, LLC v. APMI Corp., 2009 NCBC LEXIS 16, at *8 (N.C. Super Ct. June 26, 2009) (citing First Fed. Sav. & Loan Ass’n v. Branch Banking & Tr. Co., 282 N.C. 44, 51 (1972)). “Where the slightest doubt exists as to the merits of the motion, it should be denied.” Id. at *9 (citation omitted).  III. ANALYSIS A. The Cross-Motions for Summary Judgment 25. “The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of the contract.” Wells Fargo Ins. Servs. USA, Inc. v. Link, 372 N.C. 260, 276 (2019) (citation modified); Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 369 (2005) (quoting Poor v. Hill, 138 N.C. App. 19, 26 (2000)). 26. The parties do not dispute the existence of a valid contract. Rather, the Cross-Motions for Summary Judgment address two main issues with respect to breach: (i) the scope of HCA’s obligations given the language of the APA and (ii) HCA’s compliance with those obligations. The Court analyzes each issue in turn. 1. Section 7.13(a) 27. “The goal of contract interpretation is to ascertain the intent of the parties when the contract was made.” Harris v. Ten Oaks Mgmt., LLC, 2023 NCBC LEXIS 90, at *10 (N.C. Super. Ct. July 31, 2023) (citing Morrell v. Hardin Creek, Inc., 371 N.C. 672, 681 (2018)). “Intent is derived not from a particular contractual term but from the contract as a whole.” State v. Philip Morris USA Inc., 363 N.C. 623, 631–32 (2009) (citation omitted). 28. “When the parties use clear and unambiguous terms, the contract should be given its plain meaning, and the court can determine the parties’ intent as a matter of law.” 42 E., LLC v. D.R. Horton, Inc., 218 N.C. App. 503, 513 (2012) (quoting Alaimo Fam. Chiropractic v. Allstate Ins. Co., 155 N.C. App. 194, 197 (2002)). In that event, “the court cannot look beyond the terms of the contract to determine the intentions of the parties.” Lynn v. Lynn, 202 N.C. App. 423, 431 (2010) (citation omitted). 29. If, however, the contract is ambiguous, interpretation of the contract is a question of fact. See Recurrent Energy Dev. Holdings, LLC v. SunEnergy1, LLC, 2017 NCBC LEXIS 18, at *27 (N.C. Super. Ct. Mar. 7, 2017) (quoting Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 525 (2012)). A contract is ambiguous if its language is “fairly and reasonably susceptible to either of the constructions asserted by the parties.” Gay v. Saber Healthcare Grp., L.L.C., 271 N.C. App. 1, 7 (2020) (citation omitted). While not dispositive, “[t]he fact that a dispute has arisen as to the parties’ interpretation of the contract is some indication that the language of the contract is, at best, ambiguous.” Id. (citation omitted). “[W]hether the language of a contract is ambiguous is a question of law[.]” Morrell, 371 N.C. at 680. 30. In the event contract language is ambiguous, the parties may introduce extrinsic evidence “not to contradict, but to show and make certain what was the real agreement between the parties.” See Galloway v. Snell, 384 N.C. 285, 288 (2023) (quoting Root v. Allstate Ins. Co., 272 N.C. 580, 590 (1968)); Brown v. Ginn, 181 N.C. App. 563, 567 (2007) (“Extrinsic evidence may be consulted when the plain language of the contract is ambiguous.” (citations omitted)); Inland Am. Winston Hotels, Inc. v. Crockett, 212 N.C. App. 349, 354 (2011) (citation omitted). If the extrinsic evidence conflicts, however, an issue of material fact exists, and summary judgment should not be granted. See Variety Wholesalers, 365 N.C. at 524–25 (determining that summary judgment was improper where extrinsic evidence supported both parties’ interpretations of ambiguous contract); Galloway, 384 N.C. at 288 (“If a written contract is ambiguous, the contract’s meaning and effect is a factual question[.]”). 31. Importantly, “[c]ourts are not at liberty to rewrite contracts for the parties. We are not their guardians, but the interpreters of their words. We must, therefore, determine what they meant by what they have said—what their contract is, and not what it should have been.” In re Estate of Sharpe, 258 N.C. App. 601, 607 (2018) (quoting Penn v. Standard Life Ins. Co., 160 N.C. 399, 402 (1912)); Morrell, 371 N.C. at 682 (“Courts must enforce the contract as written; they may not, under the guise of construing an ambiguous term, rewrite the contract or impose liabilities on the parties not bargained for and found therein.” (citation modified)). 32. Section 7.13(a) of the APA states that HCA “shall not discontinue the provision of the services set forth on Schedule 7.13(a)” for ten years after the closing date of the transaction. (APA § 7.13(a) (emphasis added).) The parties disagree on the interpretation of this key language. a. “Shall Not Discontinue” 33. Each of the parties posits a reasonable interpretation of the phrase “shall not discontinue.” See MH Master Holdings LLLP, 2025 NCBC LEXIS 43, at *13–15. Accordingly, the Court turns to the extrinsic evidence to determine whether it is consistent with respect to the intent of the contracting parties such that summary judgment would be appropriate. It is not.  34. The Attorney General argues that the phrase “shall not discontinue” requires HCA to continuously provide, at least at pre-acquisition levels, the same services set forth in Schedule 7.13(a) that Mission Hospital provided at the time of the acquisition. (See Br. Supp. Pl.’s Mot. Partial Summ. J. [Br. Supp. Pl.’s Mot.] 8– 10, 14–16, ECF No. 143.) The Attorney General also contends that a service may be constructively discontinued if it is so inadequately provided that patients will not or cannot utilize it. (See Br. Supp. Pl.’s Mot. 29; Resp. Def.’s Mot. Summ. J. [Br. Opp’n Def.’s Mot.] 13, ECF No. 156.) 35. In support of his position that HCA is required to provide the services on Schedule 7.13(a) at no less than pre-acquisition levels, the Attorney General cites extrinsic evidence including HCA’s agreement with the Notice, which states that “a critical part of the transaction is the obligation of [HCA] to safeguard (and improve) the current operations and services of Mission [Hospital].” (Notice 17 (emphasis added); Tierney Email to Esposito, Sep. 1, 2018, ECF No. 93.6 (“[HCA is] good with the [N]otice.”).) 36. The Attorney General also cites a statement made in January 2018 by Dr. John Ball, then-chair of Mission Health’s Board, which was attached to the Notice and poses the following question concerning Mission Health’s future: “what approach minimally maintains and ideally expands our safety net and health transformation capabilities[?]” (Dr. John Ball’s Stmt. Directors Bd. Retreat 1, ECF No. 144.4 (emphasis added).) 9 The Attorney General cites a similar statement that Dr. Ball 9 HCA contends that Dr. John Ball’s 2018 statements are inadmissible hearsay but offers little support for its objection. (See Def.’s Opp’n Pl.’s Mot. Partial Summ. J. 11 n.2, ECF No. made on 29 August 2018: “[t]he [APA] provides the best chance for the clinical programs, services, and facilities to continue throughout the region . . . with the quality, access, and affordability that the people of this region have come to expect of us.” (Stmt. John R. Ball, MD, JD – Mission Health Sys. Bd. Directors 2, ECF No. 144.4 (emphasis added).) 37. Further, the Attorney General cites a letter Dr. Ball provided to the Attorney General’s office in January 2019, in which he states that “[t]he Mission Board firmly believed – and still believes – that the partnership between Mission and HCA is essential to Mission’s continuing ability to operate at least at its current level.” (Br. Supp. Pl.’s Mot. Ex. 6, at NCAG_0000090521, ECF No. 144.6 (emphasis added).) 38. In addition, the Attorney General relies on a series of emails sent between August 20 to 22, 2018 by Dr. Ronald Paulus, Mission Health’s then-CEO, to one of HCA’s representatives, Chuck Hall, when negotiating language regarding the services HCA would be required to maintain under the forthcoming initial APA: [T]he two things [the Mission Health] Board cares about are: 1) the size of the foundation; and 2) that the services available today at Mission Hospital are going to be here for at least 10 years. .... I have to have some reference to services being generally consistent with those services provided as of signing. 154); N.C. R. Evid. 802; cf. Maxwell Foods, LLC v. Smithfield Foods, Inc., 2025 NCBC LEXIS 66, at *14 n.4 (N.C. Super. Ct. June 5, 2025) (“[Plaintiff] does not do enough to develop its arguments, resting on conclusory assertions of inadmissibility rather than meaningful analysis.”).  .... We have been going back and forth most substantively about whether the list is illustrative or literal. I made it illustrative, then you deleted that. I added back “generally consistent with” and then you used those same words but neutered their meaning. We each have been doing so for understandable reasons – you don’t want ill-defined mandates in case there is an argument about “well that meant this” and I have been trying to “keep services as they essentially are today” knowing that it is impossible to ever define such a list. The reality on my end is that all discussion internally – with the [Mission Health] Board, with management, etc. has been based upon “Mission Hospital as we know it will continue as we know it for at least ten years, unless the Advisory Board agrees otherwise.” This was an essential underlying aspect of even beginning discussions with HCA. I would have never gotten [the Mission Health Board] to move otherwise[.] .... With that said, my revisions do the following: 1. I’ve accepted that you are unwilling to have the list be a general description (which is what has been our understanding from the beginning). That’s incredibly painful and I may be criticized widely, but if we don’t trust one another, we shouldn’t do the deal. .... 3. I’ve taken out the parentheses and e.g., modifiers, to reflect that this is now a literal list. I’m trusting you that the myriad of obvious things that aren’t listed (e.g., general x-ray, etc.) will be continued out of common sense. .... The very first question I’m going to be asked by the [Mission Health] Board tomorrow at 4 pm is “do we have agreement on the protected services list”, and I will have to give them an honest answer. They will ask me to personally reassure them that “this protects Mission Hospital as we know it.” (Def.’s Mot. Partial Summ. J. Ex. 10 [Paulus Emails], ECF No. 71.10 (emphasis added).) 39. Finally, the Attorney General points to HCA’s own internal documents, including compliance trackers (“Post-Close Commitment Checklists”), as well as attestations of service, all referring to HCA’s continuous provision of services. The compliance trackers describe as a requirement that HCA “[c]ontinue services currently provided at Mission’s primary Asheville hospital[.]” (Br. Supp. Pl.’s Mot. Ex. 1, ECF No. 144.1; Br. Supp. Pl.’s Mot. Ex. 10, ECF No. 144.10 (30 August 2019 email explaining that the commitment checklists were provided to the HCA team in conjunction with the deal closing.).) The attestation of service is an annual audit form by which the CEO of Mission Hospital attested that the services in Schedule 7.13(a) “were continuously offered . . . for Mission Hospital” for the year. (See Br. Supp. Pl.’s Mot. Exs. 12–13, ECF Nos. 144.12–.13.) Summaries of Key Post-Closing Covenants included in the APA state that HCA “will not discontinue any services currently provided at [Mission Hospital].” (Br. Supp. Pl.’s Mot. Ex. 2, ECF No. 144.2.) 40. HCA responds that nothing in the APA requires it to provide the same quality or quantity of services that Mission Hospital provided at the time of the acquisition. (Def.’s Opp’n Pl.’s Mot. Partial Summ. J. [Br. Opp’n Pl.’s Mot.] 14, ECF No. 154.) Instead, HCA contends that the phrase “shall not discontinue” requires only that it refrain from completely eliminating a Schedule 7.13(a) service. (Br. Opp’n Pl.’s Mot. 17; Br. Supp. Def.’s Mot. 27–28.)  41. In support of its position, HCA points to the declaration of Chadd Tierney, HCA’s lead negotiator with respect to the APA. (Br. Opp’n Pl.’s Mot. 16.) In his declaration, Tierney asserts that Mission Health “conceded that Schedule 7.13(a) would comprise a literal and exclusive list of the specific service lines . . . without reference to any particular levels or volume of any particular service.” (Br. Opp’n Pl.’s Mot. Ex. 33 [Tierney Decl.] ¶ 27, ECF No. 146.13 (emphasis added).) 42. Characterizing Mr. Tierney’s affidavit as “self-serving,” the Attorney General argues that the Tierney affidavit should not be considered as competent evidence upon which to award summary judgment. (See Br. Opp’n Def.’s Mot. 7 (citing N.C. Farm Bureau Mut. Ins. Co. v. Herring, 385 N.C. 419, 426 (2023) (“[T]he party with the burden of proof, who moves for summary judgment supported only by his own affidavits, will ordinarily not be able to meet these requirements and thus will not be entitled to summary judgment.” (emphasis omitted))).) 43. HCA relies on the same emails from Dr. Paulus to Mr. Hall that the Attorney General cites, but it reads them as evidence that the parties understood Schedule 7.13(a) to be a “literal list of services that must not be ceased entirely.” (Br. Opp’n Pl.’s Mot. 16–17 (emphasis added).) HCA argues that Dr. Ball’s statements confirm that Mission Health “did not expect the status quo to continue at Mission[,]” given his assertion that the initial agreement provided the “best chance for the clinical programs, services, and facilities to continue throughout the region[.]” (Br. Opp’n Pl.’s Mot. 12.) HCA concludes that, at best, a genuine issue of material fact exists as to the meaning the contracting parties intended this term to have. (Br. Opp’n Pl.’s Mot. 14.) 44. The Court agrees that, when the extrinsic evidence is considered, there are inconsistencies that eliminate the possibility of judgment on this issue at this stage of the litigation. See Variety Wholesalers, 365 N.C. at 524–25. The phrase “shall not discontinue” is ambiguous because this language is “fairly and reasonably susceptible to either of the constructions” the parties assert. See Gay, 271 N.C. at 7 (citation omitted); MH Master Holdings LLLP, 2025 NCBC LEXIS 43, at *9–15. The APA does not define this language, and both parties have presented evidence to support their respective interpretations. HCA argues, however, that the Attorney General is equitably estopped from asserting his interpretation of the phrase, so before reaching a conclusion, the Court considers this argument. b. Equitable Estoppel 45. HCA contends that the Attorney General is equitably estopped from asserting his view that the phrase “shall not discontinue” means that HCA is required to maintain the Schedule 7.13(a) services at pre-acquisition levels because the Attorney General knew that the contracting parties did not intend to impose quality or quantity standards yet did not attempt to clarify the ambiguity before approving the transaction. (Br. Supp. Def.’s Mot. 32–34; Def.’s Reply Br. Supp. Mot. Summ. J. [Reply Def.’s Mot.] 14–16, ECF No. 158.) In support of its argument, HCA points to an email between employees of the Attorney General’s Office that was written during the Attorney General’s review of the transaction. (Br. Supp. Def.’s Mot. 32–33.) In the email, Jennifer Harrod—a lawyer on the Attorney General’s team—tells other members of the team that “the [Mission Health] board thinks [HCA] has agreed to maintain current hospital services at current levels. That’s not what the APA says, and [HCA] says it would not have agreed to do this.” (Br. Supp. Def.’s Mot. Ex. 28, ECF No. 146.8 (emphasis added).) 46. At the hearing, the Attorney General argued that Ms. Harrod’s statement is consistent with the Attorney General’s position that the APA requires HCA to provide only the scheduled services at “current levels,” not all the hospital’s services. In any event, the Attorney General maintains that HCA has not explained how his subordinate’s understanding of the contracting parties’ agreement constitutes his misrepresentation or concealment of material facts, or how HCA relied to its detriment on his office’s internal understanding, such that equitable estoppel would prevent him from advancing his interpretation of the APA here. (Br. Opp’n Def.’s Mot. 17.) 47. HCA replies that “(1) the Attorney General falsely represented his interpretation of the [amended] APA . . . to [HCA] and [Mission Health] before issuing his Non-Objection letter; (2) [HCA] relied on that representation (and Non- Objection) to close on the transaction; and (3) [HCA] was prejudiced by that reliance because it operated under the [amended] APA consistent with that interpretation to this day.” (Reply Def.’s Mot. 14–16; see also Br. Supp. Def.’s Mot. 32–34.) HCA further contends that applying the doctrine of equitable estoppel against the Attorney General in these circumstances will not impair the exercise of the Attorney General’s governmental powers. (Reply Def.’s Mot. 14.) 48. As evidence that the Attorney General’s office made HCA aware of the Attorney General’s understanding, HCA refers to “talking points” prepared by Ms. Harrod in preparation for a meeting with HCA. (Reply Def.’s Mot. 15.) The talking points state, in relevant part, “[e]ven now, the [Mission Health] board believes that HCA has committed to maintaining the current level of services at all six hospitals . . . even though the [initial asset purchase agreement] says no such thing.” (Br. Supp. Def.’s Mot. Ex. 1, ECF No. 145.2.) 49. Generally, to establish the defense of equitable estoppel, one must show that “the party sought to be estopped: ‘(1) misrepresented or concealed material facts; (2) intended that such misrepresentation or concealment be acted upon by the other party; and (3) had knowledge, actual or constructive, of the true facts.’ ” Syro Steel Co. v. Hubbell Highway Signs, Inc., 108 N.C. App. 529, 532 (1993) (quoting Neal v. Craig Brown, Inc., 86 N.C. App. 157, 163–64 (1987)). In addition, “[t]he party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to [its] prejudice.” Chapel H.O.M. Assocs., LLC v. RME Mgmt., LLC, 256 N.C. App. 625, 627–28 (2017) (quoting Friedland v. Gales, 131 N.C. App. 802, 807 (1998)). 50. Reliance by the party asserting estoppel must be justified. See Silwal v. Akshar Lenoir, Inc., 292 N.C. App. 274, 288 (2024) (quoting Bourne v. Lay & Co., 264 N.C. 33, 37 (1965)); Lockerman v. S. River Elec. Mbrshp. Corp., 250 N.C. App. 631, 643 (2016) (quoting Dallaire v. Bank of Am., N.A., 367 N.C. 363, 369 (2014)). “However, where the estoppel is based upon a subsequent inconsistent position, it is not necessary that the party to be estopped be aware of the falsity of the representation when made.” Meacham v. Montgomery Cnty. Bd. of Educ., 59 N.C. App. 381, 387 (1982) (citation modified). 51. North Carolina courts “have not sanctioned the use of estoppel against governmental agencies to the same extent as [it is] used against private individuals or private corporations.” Hayes v. Town of Fairmont, 130 N.C. App. 125, 128 (1998) (citing Henderson v. Gill, 229 N.C. 313, 316 (1948)); N.C. Dep’t of Env’t Quality v. TRK Dev., LLC, 259 N.C. App. 597, 604 (2018) (citation omitted). “A governmental entity may be estopped in a particular instance only if it is necessary to prevent a loss to another and the estoppel will not impair the exercise of governmental powers.” Kings Mt. Bd. of Educ. v. N.C. State Bd. of Educ., 159 N.C. App. 568, 577 (2003) (citation omitted); TRK Dev., LLC, 259 N.C. App. at 604 (citation omitted). 52. Importantly, “[a] trial court may only grant a summary judgment motion based on the doctrine of estoppel ‘where there is but one inference that can be drawn from the undisputed facts of a case.’ ” Tuckett v. Guerrier, 149 N.C. App. 405, 412 (2002) (quoting Keech v. Hendricks, 141 N.C. App. 649, 653 (2000)). If the evidence raises a permissible inference that estoppel applies, “but there are other inferences to be drawn from the evidence to the contrary, estoppel is a question of fact[.]” Meachan v. Montgomery Cnty. Bd. of Educ., 47 N.C. App. 271, 278 (1980); Tuckett, 149 N.C. App. at 412 (quoting Keech, 141 N.C. App. at 653–54). 53. The Court agrees with HCA that the application of equitable estoppel in this action would not impair the exercise of the Attorney General’s governmental powers to approve or disapprove the transaction pursuant to section 55A-12-02(g) of the North Carolina General Statutes. Instead, through its estoppel defense, HCA intends to bar the Attorney General from asserting his interpretation of the phrase “shall not discontinue.” As such, the application of estoppel