An attempt by Mission Hospital’s corporate owner to counter a lawsuit filed against it last year by North Carolina Attorney General Josh Stein has been dismissed. 

North Carolina Business Court Judge Julianna Theall Earp filed an opinion Dec. 6 dismissing HCA’s counterclaims against Stein, who had sued HCA and its Mission Health system in December 2023. Stein’s lawsuit alleged they had violated the Asset Purchase Agreement (APA) entered into when HCA bought the hospital system in 2019 for $1.5 billion.

Earp’s opinion focused on the argument the attorney general and his team had made that he is shielded from HCA’s counterclaims by a legal concept known as sovereign immunity. News of the dismissal was first reported by the Asheville Citizen Times.

Sovereign immunity is defined as “the state’s immunity from most kinds of lawsuits unless the state consents to be sued,” according to the University of North Carolina School of Government.

“We are confident that Mission has fulfilled its obligations under the Asset Purchase Agreement, and we intend to defend the lawsuit filed by the Attorney General aggressively,” Mission Health spokesperson Nancy Lindell said Tuesday. “Unfortunately, the lawsuit continues to be a distraction from the important work that Mission continues to do in Western North Carolina.”

The attorney general’s office did not immediately respond to Asheville Watchdog’s request for comment. 

Stein’s 2023 lawsuit on behalf of Dogwood Health Trust – the entity responsible for ensuring HCA complies with the APA – alleged the company had violated commitments it made to maintain services related to emergency and oncology care at the Asheville hospital. Those agreements were solidified in the APA, which Stein‘s office oversaw and agreed to before the sale.

In February, HCA sought dismissal of the suit, countering that it had never promised to provide quality health care but had honored its APA commitments. As Earp’s opinion noted, “HCA characterizes the Hospital Service Commitments at issue as requiring that HCA: “(1) maintain Level II trauma capabilities at Mission Hospital; and (2) maintain the capabilities to provide the emergency services and oncology services that were provided at Mission as of January 2019.”

Only a small portion of Earp’s opinion focused on the issue of HCA commitments to the APA, instead explaining why sovereign immunity justified dismissing the counterclaims.

Stein had relied on sovereign immunity in response to HCA’s counterclaims, arguing he could not be a target of legal action. HCA had countered that he couldn’t rely on such protection.

“HCA rejects the contention that sovereign immunity applies because, it argues, this action was brought by the Attorney General, not in his state-sanctioned role, but on behalf of Dogwood Health Trust, a private, non-profit corporation,” the opinion said. 

Stein disagreed. 

“Plaintiff [Stein] maintains that the APA’s protections and the right to enforce those protections were borne from the Attorney General’s statutory review authority and are consistent with his broad consumer protection mandate and his ‘common law’ right and power to protect the beneficiaries of charitable trusts,’” the opinion said.

No conditions for immunity

In deciding the matter, Earp turned to conditions under which immunity might be waived. None applied, she stated.

She followed that decision by explaining she would not make broad declarations about the case, sidestepping issues related to the APA, stating: “[T]o the extent Defendant’s [HCA’s] declaratory judgment claims present no new controversies and simply amount to the converse of Plaintiff’s declaratory judgment claims already pending before the Court, the Court concludes, in its discretion, that allowing Defendant’s claims to proceed would not serve a useful purpose and would ‘conflict with the interests of judicial economy and efficiency.’”

While Earp dismissed the counterclaims, she denied Stein’s request to avoid having to pay attorneys’ fees, noting it was too early in the case to make such a decision.

Stein’s lawsuit is not the only legal issue facing Nashville-based HCA in western North Carolina. 

Buncombe County, the cities of Asheville and Brevard, and Madison County are suing HCA in a separate antitrust lawsuit in federal court.

Mission Hospital also fell under scrutiny of state and federal investigators earlier this year when the U.S. Centers for Medicare & Medicaid Services (CMS) found it had violated federal standards of care and placed it under immediate jeopardy, the toughest sanction a healthcare facility can face. A report following that investigation showed that four patients died in two years related to those violations of care and leadership mismanagement.
CMS lifted the immediate jeopardy sanction in February.

Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Andrew R. Jones is a Watchdog investigative reporter. Email arjones@avlwatchdog.org. The Watchdog’s local reporting during this crisis is made possible by donations from the community. To show your support for this vital public service go to avlwatchdog.org/support-our-publication/.

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Today’s round of questions, my smart-aleck replies, and the real answers:

Question: (John Boyle here, not a questioner). This topic comes from a Facebook post on the Original Black Mountain Exchange in which a person who attended the Black Mountain Christmas Parade on Saturday was unsettled by the presence of what appeared to be a sniper atop a building along the route. Another man with a pair of binoculars was also on the rooftop, and neither appeared to be in police uniforms. The post, and another on an individual’s Facebook page, generated almost 500 comments, with several people asking for an explanation from the Black Mountain Police Department. The gist of the commentary was: Why was this done? Were these men police officers? Is this necessary? Why was there no notice that this was going to take place? And, is this really the world we live in now? Honestly, I was curious myself, and folks were asking for answers, so I reached out to the Black Mountain Police Department.

My answer: Sadly, I think we all know the answer to the question, “Is this really the world we live in now?”

Real answer: Black Mountain Police Chief Chief Steve Parker told me Monday that the men on the roof were police officers with the department, including the man with the sniper rifle.

“He’s been there for the last three years,” Parker said. “We’ve had somebody ever since Waukesha, Wisconsin, and the Christmas parade that 60 people got mowed down. (After that) we started making sure that we had an overwatch, just making sure that we can protect everybody.”

Parker was referring to the Christmas parade in Waukesha, Wisconsin, in which a man drove an SUV into the parade in 2021, killing six and injuring dozens more. As NPR reported in 2022, the attacker was sentenced to life in prison. He had gotten into a fight with his ex-girlfriend before the incident, and he had struggled previously with mental illness.

The Black Mountain officers did wear clothing that identified them as officers and part of the overwatch, Parker said, referring to a police term that refers to setting up a security perimeter at a public event.

Parker acknowledged that the officers’ appearance, especially with the clearly visible rifle, may have been upsetting to some attendees.

“It doesn’t always look pretty, but (we’re) just making sure that we’re doing our due diligence for public safety,” Parker said, noting the department provided similar security for the recent visit of first lady Jill Biden, assisting Asheville with the overwatch. “It’s kind of a common practice.”

The team on the roof consisted of an officer to man the rifle and a spotter with a pair of binoculars. The officers were “a little more overt” this year than last, Parker said.

“It’s kind of like insurance. We’d hope we never use it, right?” Parker said. “We hope we will never have to have it, but at the end of the day, we have got to make sure that we are ensuring that the public is safe if there is somebody who wants to take a car through the crowd or there is an active shooter. And that’s just kind of the world we live in.”

Smaller towns can be tempting targets because potential attackers may think security is more lax, Parker said.

As far as letting the public know in advance, Parker said that can cut both ways, because it could alert someone with bad intent about where the most security is. Letting the public know in advance could calm some fears, but that comes with possibly losing some of the security advantage, he said.

Similar problems arise with having the officers in full uniform or wearing a bright vest that states, “Police.” The parade started late in the afternoon, and as the sun set, a man dressed in a black police uniform could also have scared attendees, Parker noted.

Some on social media suggested the police should concentrate on security on the ground. Parker said they staff the parade with 30 to 35 police and reserve officers, with officers on the sidewalks and streets.

Question: Why doesn’t the city or county sell the fallen trees from Tropical Storm Helene to lumber companies? Couldn’t the county use the money to help with rebuilding/disaster relief? Same with the national parks. The amount of trees up at Rattlesnake trailhead alone has got to be worth a ton. Tons of oaks, cedars, and ash that could be recycled into lumber for homes, furniture, etc. Seems wasteful and a missed opportunity.

My answer: If ever there was a time when North Carolina could re-energize its furniture manufacturing heritage, this is it.

Real answer: As we reported in November, Tropical Storm Helene downed or damaged about 40 percent of trees in Buncombe County.

“The U.S. Forest Service is exploring the possibility (of) salvaging downed timber on the Pisgah National Forest left in the wake of Tropical Storm Helene to help remove road and trail blockages, reduce potential fuels for wildfires and improve overall public safety,” Forest Service spokesperson Adam Rondeau said via email. “Our focus right now, however, continues to be on clearing access throughout the forest and assessing damage to roads, bridges, and trails.”

Rondeau said Helene damaged several thousand acres of Pisgah National Forest, “leaving a significant amount of woody debris and downed trees in the aftermath and creating higher-than-usual levels of fuel for wildfires.”

“To help mitigate this risk, the U.S. Forest Service invited the public to gather firewood for personal use without a permit on reopened sections of the Pisgah National Forest through December 2025,” Rondeau said.

He noted that you cannot try to gather firewood from closed portions of the forest, block traffic, create warming fires or collect wood in an active logging area. Also, the wood is for personal use only, not commercial use.

Leesa Brandon, a spokesperson for the Blue Ridge Parkway, part of the National Park Service, said Park Service policy states:

“Natural resource products that accumulate as a result of…hazard tree removal, vista clearing, or other management action will be recycled through the ecosystem when practicable. When recycling is not practicable, the products may be disposed of by other means. Disposal may be accomplished by contract, if the result of the work done under contract and the value are calculated in the contract cost, or by sale at fair market value in accordance with applicable laws and regulations.”

Brandon noted that in the 11-mile section of the parkway through Asheville, “park staff and contractors moved more than 350,000 cubic feet of storm debris” from the road.

“This volume of woody debris could fill nearly 150 shipping containers,” Brandon said. “Some wood was chipped, and some logs were transferred to Cherokee.”

“Along other sections of the park that have now opened, most of the large wood has not been removed from beyond the tree line within the opened areas,” Brandon continued. “Within the closed areas debris is still piled or present on site.”

I should note that FEMA and the North Carolina Arboretum have a cool program underway to salvage and repurpose thousands of downed trees through Interagency Recovery Coordination, “a team of federal, state and local government, nonprofits and faith-based organizations,” according to a Nov. 13 FEMA news release. The release noted that more than 320,000 pounds of wood had already been removed.

“Stages of the project include clearing debris and fallen trees from the North Carolina Arboretum south of Asheville,” the release states. “The arboretum has walking trails, gardens and an educational center that serve 600,000 visitors per year. Helene knocked down more than 5,000 trees across trails and roads in the 434-acre site in the Pisgah National Forest, making the park non-operational.”

The Arboretum is back open, although some trails remain closed.

The FEMA news release noted the project already has sent logs to a staging area to be sorted based on potential use.

“The wood will then be distributed to residents and communities for firewood, furniture material, mulch and more,” the release states. The IRC had removed 65 truckloads of timber by mid-November. 

City of Asheville spokesperson Jessica Hughes said private property owners can sell logs from fallen trees.

“At this time, the city is not selling fallen logs for lumber,” Hughes said. “Any vegetative debris that is collected in the right of way is taken to a storm debris management site where it is then reduced in size by grinding.”

Hughes pointed out that “any lumber that was submerged in floodwaters should not be sold due to contamination concerns as public safety and environmental health are top priorities.”

Buncombe County spokesperson Stacey Wood said, “All vegetative debris collected in the right of way is taken to a storm debris management site where it is then reduced in size by grinding. However, private property owners may choose to sell lumber from fallen trees on their land.”

I also reached out to a couple of local sawmills to see if they could use these downed trees for lumber. They can, but they can take only so much of a good thing.

“We have taken in nearly a half a year’s worth of inventory in a period of six weeks,” Don Shuford, owner of Sunrise Sawmill off Sweeten Creek Road, told me. “We can barely move in our yard for all the logs that are stacked up.”

Good logs abound — if properly cut.

“Actually, most of the stuff that’s down has been really good quality stuff — if they would cut it properly,” Shuford said. “A lot of people are in a hurry to just get things out of their way, and they cut them into four and five foot chunks, and that’s useless for a log to be considered a log by sawmill standards.”

Generally speaking, it has to be at least eight feet long for a sawmill to want it. Shorter logs, called “bolts,” end up in the grinder for mulch or wood chips.

Shuford owns 25 acres and has plenty of trees down.

“I’ve got the same problem everybody else does, and I don’t have enough hours in the day to get it all processed,” Shuford said. 

Logging companies and sawmills can process much of the wood, but it’s going to take time, Shuford said. The logs on the ground now will make it through the winter just fine, but in the spring when the weather warms, they’ll become more problematic.

“Logs laying on the ground will not spoil or go bad until late spring when things start getting hot,” Shuford said. “With the sap and such, the moisture inside the log will cause them to stain, and that hurts it for furniture quality — it creates a coffee-looking stain in the lumber that won’t come out.”

Hot weather also brings insects, and that can damage the wood.

Mary Catherine Tennant, the office manager at Bee Tree Hardwoods in Swannanoa, another family-owned operation, brought up another potential problem.

“If the trees slam and bounce when they’re coming down, the rings inside the lumber will separate,” Tennant said, explaining that this ruins the quality.

Shuford said this usually happens if a tree hits rock or another stump as it falls.

“It’ll hit with such force, it’ll literally shatter the inside of the tree, and it’ll come apart just like onion skin,” Shuford said. “When you saw into it, it’ll fall apart right in front of your very eyes.”

Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Got a question? Send it to John Boyle at jboyle@avlwatchdog.org or 828-337-0941. His Answer Man columns appear each Tuesday and Friday. The Watchdog’s reporting is made possible by donations from the community. To show your support for this vital public service go to avlwatchdog.org/support-our-publication/.

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