If SHPDA is unable to make any of the five findings required by § 22-21-266, then a CON "cannot be issued." Nursing Home of Dothan, Inc. v. Alabama State Health Planning Dev. Agency, 542 So.2d 935, 939 (Ala.Civ.App. 1988). Analysis I. Consistency with the SHP
ADAMS, Justice. Nursing Home of Dothan ("Dothan") petitioned this Court to issue a writ of certiorari to review the holding of the Court of Civil Appeals, 542 So.2d 935, affirming the judgment of the Montgomery Circuit Court, which had upheld the denial by the State Health Planning and Development Agency ("SHPDA") of Dothan's application for a certificate of need ("CON"), to construct a 110-bed nursing home. Named as defendants in this action were the SHPDA and its executive director, the CON Review Board members, and the Governor of the State of Alabama. The Alabama Medicaid Agency intervened in the action, and we permitted the Alabama Nursing Home Association to file an amicus curiae brief.
Noland raises several arguments in support of its appeal of the CONRB's ruling approving of Select's CON application. Noland first argues that the CON requested by Select is not consistent with the SHP and therefore does not satisfy § 22–21–266(1). See Nursing Home of Dothan, Inc. v. Alabama State Health Planning & Dev. Agency, 542 So.2d 935, 939 (Ala.Civ.App.1988) (indicating that a CON application inconsistent with the SHP must be denied). Noland's first argument rests on its contention that the CON application seeks 38 LTACH beds in addition to the 135 LTACH beds already in operation in Region III. According to Noland, because of the language of Select's lease with Trinity, the 38 LTACH beds currently operated by Select revert to Trinity upon the termination of the lease. Thus, Noland contends, pursuant to Ala. Admin. Code (SHPDA), Rule 410–1–11–.
Therefore, conflating the CON applications would be in violation of the statutory prohibition against inconsistency with the SHP. See, e.g., Nursing Home of Dothan, Inc. v. Alabama State Health Planning & Dev. Agency, 542 So.2d 935, 939 (Ala.Civ.App.1988) (affirming denial of CON application on grounds of inconsistency with the SHP at the time the application was received). We can find no statutory or regulatory authority that would permit us to consider subsequent events when evaluating CONRB's decisions regarding these separate CON applications.
THOMPSON, Judge, dissenting. This court reviews the judgment of the trial court `"`without any presumption of correctness, since [that] court was in no better position to review the order of the Board than we are.'"' Nursing Home of Dothan, Inc. v. Alabama State Health Planning Development Agency, 542 So.2d 935, 938 (Ala.Civ.App. 1988) (quoting Regional Dialysis of Anniston v. Northeast Alabama Kidney Clinic, Inc., 480 So.2d 1226, 1227 (Ala.Civ.App.), cert. denied, 480 So.2d 1229 (Ala. 1985). Because I conclude that SHPDA continues to have jurisdiction over this contested case, and no final order has been entered, I would reverse the judgment of the trial court and remand the cause for a ruling by the Certificate of Need Review Board.
Further, this court reviews the judgment of the trial court " 'without any presumption of correctness, since [that] court was in no better position to review the order of the Board than we are.' " Nursing Home of Dothan, Inc. v. Alabama State Health Planning Development Agency, 542 So.2d 935, 938 (Ala.Civ.App. 1988), quoting Regional Dialysis v. Northeast Alabama Kidney Clinic, Inc., 480 So.2d 1226 (Ala.Civ.App.), cert. denied, 480 So.2d 1229 (Ala. 1985). A reviewing court may not substitute its judgment as to the weight of the evidence on questions of fact, and the agency's decision is to be upheld unless it is unreasonable, arbitrary, or capricious. Montgomery Rehabilitation Hospital, Inc. v. State Health Planning Agency, 610 So.2d 403 (Ala.Civ.App. 1992).
This court reviews the judgment of the trial court " 'without any presumption of correctness, since [that] court was in no better position to review the order of the Board than we are.' " Nursing Home of Dothan, Inc. v. Alabama State Health Planning Development Agency, 542 So.2d 935 (Ala.Civ.App. 1988) (quoting Regional Dialysis of Anniston v. Northeast Alabama Kidney Clinic, Inc., 480 So.2d 1229 (Ala. 1985)). Our review is limited to questions of whether the agency exceeded its statutory authority, whether its decision was supported by substantial evidence, and whether its action was arbitrary.
The primary theory of recovery asserted by Gaines is fraud. Issues not raised before the trial court may not be considered on appeal. Nursing Home of Dothan, Inc. v. SHPA, 542 So.2d 935 (Ala.Civ.App. 1988), aff'd, 542 So.2d 940 (Ala. 1989). Therefore, we will consider only the fraud theory.