Opinion
Docket No. 78-3566.
Decided September 4, 1979.
Schlussel, Lifton, Simon, Rands, Kaufman, Lesinski Jackier (by T. John Lesinski and James C. Foresman), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter V. Kron and William J. Perrone, Assistants Attorney General, for the Michigan Department of Public Health and Maurice S. Reizen.
Miller, Canfield, Paddock Stone (by Gilbert E. Gove and Larry J. Saylor), for the City of Pontiac and the City of Pontiac Hospital Building Authority.
Plaintiff appeals as of right an August 25, 1978, circuit court order dissolving a preliminary injunction.
On February 1, 1978, the trial court issued an ex parte temporary restraining order enjoining the Michigan Department of Public Health (hereinafter Department) from granting any application for a certificate of need for acute care hospital beds to be located in Service Area 76, and an order to show cause why a preliminary injunction pendente lite should not issue.
The parties are concerned here with MCL 331.451 et seq.; MSA 14.1179(51) et seq., which requires a certificate of need for the construction, conversion, addition to or modernization of health facilities. In evaluating an application for a certificate of need, the appropriate commission takes into account, among other things, the region's pattern and level of utilization of existing health services, possible economies and improvement in existing facilities, the availability of manpower, and financing. MCL 331.455a; MSA 14.1179(55a).
On March 22, 1978, the trial court entered an order which, among other things, granted the City of Pontiac and the City of Pontiac Hospital Building Authority (hereinafter Pontiac) leave to intervene as defendants, granted plaintiff a preliminary injunction enjoining the Department from issuing a certificate of need for acute care hospital beds to Pontiac during the pendency of this lawsuit, and dismissed without prejudice Counts II-V of the complaint on the ground that plaintiff had failed to exhaust its administrative remedies as to the claims set forth therein.
On April 26, 1978, Pontiac filed a motion to dissolve the preliminary injunction alleging that its continuance would result in irreparable harm to Pontiac and the public, and more specifically that if the Department was not permitted to issue a certificate of need allowing Pontiac to proceed expeditiously with its plan to renovate Pontiac General Hospital, the hospital would be forced to close. On May 17, 1978, the trial court denied the motion "for the reason that no material change in circumstances has been demonstrated to have occurred justifying dissolution of the regularly entered Preliminary Injunction of March 22, 1978 as of this time." (Emphasis added.) Pontiac appealed but this Court, in an order dated June 5, 1978, docket no. 78-1843, and the Supreme Court denied leave, 403 Mich. 825 (1978).
On August 4, 1978, Pontiac and the Department jointly filed a motion for accelerated judgment as to plaintiff's claim for injunctive relief and an alternative motion to dissolve the preliminary injunction. The motion was supported by several affidavits. On August 25, 1978, the date of the hearing, the trial court denied the motion for accelerated judgment, but granted the motion to dissolve the preliminary injunction because "there now is presented irreparable and immediate harm to the defendant, Pontiac General Hospital". (Emphasis added.) The order granting defendants' motion to dissolve the preliminary injunction explained that the motion was granted because "immediate and irreparable harm shall be suffered by the defendant [Pontiac]" if the motion were to be denied. Plaintiff now appeals from the order dissolving the preliminary injunction.
Plaintiff initially claims that since the preliminary injunction did not restrain Pontiac from doing any act, Pontiac did not have standing to move for the dissolution of the preliminary injunction. While the issue is intriguing from an academic viewpoint, we do not have to address it. The Department, which plainly had standing to move for dissolution of the preliminary injunction, joined Pontiac in making the motion. Therefore, even if Pontiac did not have standing, the motion was properly before the trial court.
Note, however, the provisions of GCR 1963, 201.2, which provides in part "Every action shall be prosecuted in the name of the real party in interest".
Plaintiff also argues that the trial court abused its discretion in dissolving the preliminary injunction. We disagree.
As Furniture Manufacturers Ass'n of Grand Rapids v Grand Rapids Guild of Exhibitors, 268 Mich. 685, 689; 256 N.W. 595 (1934), noted:
"` Granting or dissolving an interlocutory injunction is discretionary with the trial court; and this court will rarely interfere with the exercise of such discretionary power and then only upon a showing of a palpable abuse thereof.' Flemming v Heffner Flemming, 263 Mich. 561 [ 248 N.W. 900 (1933)], citing Freeman v Mitchell, 198 Mich. 207 [164 N.W. 445 (1917)].
"Mr. Justice STONE defined `abuse of discretion' in Cooper v Carr, 161 Mich. 405, 412 [126 N.W. 468 (1910)], saying:
"`To warrant such interference (on our part), the abuse ought to be so plain that upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say there was no justification or excuse for the ruling made.'" (Emphasis added.)
A review of the affidavits filed by defendants in support of their second motion to dissolve the preliminary injunction establishes that the preliminary injunction was causing Pontiac myriad and serious financing, construction and licensure problems which jeopardized the continuing provision of medical services to the community. Plaintiff filed no counter affidavits with the trial court.
Further, the ultimate relief plaintiff seeks is the issuance of its own certificate of need permitting construction of its proposed hospital. The issuance of a certificate of need to Pontiac would not necessarily preclude the Department from granting plaintiff's application for a certificate of need. And, if plaintiff is unsatisfied with the Department's treatment of its application, it can pursue administrative and judicial review concerning that treatment. Thus, the continuance of the preliminary injunction was not absolutely necessary to protect plaintiff from irreparable harm.
Finally, plaintiff argues that dissolution of the preliminary injunction amounted to summary judgment and should be reviewed accordingly. We disagree. Although the dissolution of the preliminary injunction and the subsequent issuance of a certificate of need to Pontiac effectively disposed of Count I of plaintiff's complaint, we have found no authority holding that defendants' motion to dissolve the injunction should be treated as a motion for summary judgment. Additionally, plaintiff still can seek its own certificate of need if it so desires.
For the foregoing reasons, we cannot say that the trial judge abused his discretion in dissolving the preliminary injunction.
Affirmed. No costs, a public question being involved.