IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

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1 IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA BROOKWOOD HEALTH SERVICES, INC., d/b/a BROOKWOOD MEDICAL CENTER, Plaintiff, vs. Case No. CV AFFINITY HOSPITAL, LLC, d/b/a TRINITY MEDICAL CENTER, et al., Defendants. ST. VINCENT S HEALTH SYSTEM, Plaintiff, vs. Case No. CV AFFINITY HOSPITAL, LLC, d/b/a TRINITY MEDICAL CENTER, et al., Defendants. TRINITY S MOTION TO CONSOLIDATE APPEALS Comes now Affinity Hospital, LLC d/b/a Trinity Medical Center ( Trinity, and moves for these two administrative appeals to be consolidated for all purposes, and as grounds for this motion shows the following: ELECTRONICALLY FILED 1/5/2011 3:53 PM CV CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA MELISSA RITTENOUR, CLERK 1. On August 24, 2010, following the lengthiest contested case hearing in the history of the Alabama Certificate of Need program, Administrative Law

2 Judge James Hampton recommended the approval of Trinity s application for a CON to replace its existing hospital with a new state-of-the-art hospital at a new location, all within Jefferson County. On September 15, 2010, the CONRB unanimously affirmed the ALJ s recommendation, and granted the CON to Trinity. On October 20, 2010, the Board denied the reconsideration requests filed by Brookwood and St. Vincent s. 2. The administrative proceedings described were above conducted by the Alabama State Health Planning and Development Agency (SHPDA, a/k/a the CONRB. Parties to the proceedings were the applicant, Trinity, and the two hospitals that opposed Trinity s application, Brookwood Medical Center and St. Vincent s Medical Center. 3. On December 16, 2010, Brookwood appealed the CONRB s decision to award the CON to Trinity. CV Brookwood named as parties to its appeal SHPDA and Trinity. 4. Later on December 16, 2010, St. Vincent s appealed the CONRB s decision to award the CON to Trinity. CV St. Vincent s also named as parties to its appeal SHPDA and Trinity. See State v. Par Pharm., Inc., 2010 Ala. LEXIS 184, 23 (Ala. Sept. 30, 2010 ( [a]ctions involving the same parties are likely candidates for consolidation

3 5. Thus, there are two separate appeals from the same administrative decision pending before the Court. Both appeals ask this Court to invalidate Trinity s CON. See Brookwood, CV at ( Brookwood requests this Honorable Court to declare the CON Application of Trinity is rendered null and void and should be denied. ; St. Vincent s, CV ( St. Vincent s Health System respectfully request that this Court grant the following relief: reverse the final decision of SHPDA approving the Trinity Relocation Project, enter an order denying the CON application filed by Trinity. And declaring the CON issued to Trinity null and void.. 6. Under Rule 42, [w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. 7. Clearly, the interest in avoiding unnecessary costs or delay behind Rule 42 would be fulfilled by consolidating these two appeals. The plaintiffs in the respective cases, Brookwood and St. Vincent s, were both involved as opponents of the CON in the same administrative proceedings described above. Both cases are brought against SHPDA and Trinity, both seek to have declared null and void

4 the CON issued by SHPDA to Trinity, both arise from a common set of facts, and both allege common questions of law. Par Pharm., 2010 Ala. Lexis 184, 23 ( Rule 42(a permits joint trials when the cases share 'a common question of law or fact.' One of either--law or fact--will suffice as the basis for invoking the rule.. Under these circumstances, no argument could justify the duplication of judicial resources and costs that necessarily would result if these appeals are not consolidated. 8. In addition, if the cases are not consolidated, there is a risk that the appeals could be decided inconsistently, or at least in ways that are not entirely congruent. If that were to happen, the parties might not know how to act in order to comply with the law. For these reasons, Trinity moves the Court to order that these appeals should be consolidated on the basis of the appeal first filed, as is the policy of the Court. Respectfully submitted this the 5th day of January, s/dorman Walker One of counsel for Affinity Hospital, LLC d/b/a Trinity Medical Center

5 OF COUNSEL: David R. Boyd Dorman Walker BALCH & BINGHAM LLP Post Office Box 78 Montgomery, AL Direct Telephone: ( Direct Facsimile: ( Carey B. McRae Jennifer Clark BALCH & BINGHAM LLP Post Office Box 306 Birmingham, AL Telephone: ( Facsimile: ( CERTIFICATE OF SERVICE I certify that on January 5, 2011, I electronically filed the foregoing with the Clerk of the Court using the AlaCourt system which will send notification of such filing to the following and/or that a copy of the foregoing has been served by United States Mail, properly addressed and postage prepaid to the following: David Hunt Daniel E. McBrayer Johnston Barton Proctor & Rose LLP Colonial Brookwood Center 569 Brookwood Village, Suite 901 Birmingham, AL James E. Williams C. Mark Bain Melton Espy & Williams, PC 255 Dexter Avenue Montgomery, AL

6 Mark Wilkerson Dana Billingsley Wilkerson & Bryan Post Office Box 830 Montgomery, AL s/dorman Walker Of Counsel