          Case: 11-13069   Date Filed: 01/24/2013   Page: 1 of 31

                                                                    [PUBLISH]
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                      ________________________
                              No. 11-13069
                      ________________________


               D.C. Docket No. 1:07-cv-00104-JRH-WLB


ST. JOSEPH HOSPITAL, AUGUSTA,
GEORGIA, INC.,
ST. JOSEPH VENTURES, INC.,
ST. JOSEPH M.O.B., L.P.,
a Georgia Limited Partnership,

                                                Plaintiffs - Counter
                                                Defendants - Appellants,



                                 versus

HEALTH MANAGEMENT ASSOCIATES, INC.,

                                                Defendant - Counter
                                                Claimant - Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                           (January 24, 2013)
                Case: 11-13069       Date Filed: 01/24/2013       Page: 2 of 31

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

TJOFLAT, Circuit Judge:

       In this case, a corporate owner and operator of healthcare facilities across

the United States reneged on its “promise” to purchase the assets of a hospital in

Augusta, Georgia, so the hospital sued the corporation for breach of contract and,

alternatively, under the doctrine of promissory estoppel. It sought to recover as

damages the approximate difference between the price the corporation promised to

pay for the hospital’s assets, $75 million, and the price the hospital obtained,

approximately $37 million, when it sold the assets to a third party. The

corporation is Hospital Management Association, Inc. (“HMA”). The hospital is

St. Joseph Hospital (“SJH”), a non-profit, general acute care facility located in

Augusta, Georgia.1

       SJH sued HMA in the Superior Court of Richmond County, Georgia. HMA

removed the case to the United States District Court for the Southern District of

Georgia,2 and after the parties joined issue and engaged in discovery, HMA moved

the District Court for summary judgment. The District Court granted HMA’s



       1
        The hospital is owned and operated by St. Joseph Hospital, Augusta, Georgia, Inc., St.
Joseph Ventures, Inc., and St. Joseph M.O.B., L.P. (collectively “SJH”).
       2
           HMA removed the case pursuant to 28 U.S.C. §§ 1441 and 1446, asserting that
diversity of citizenship existed between the parties, in that HMA is a Delaware corporation with
its principal place of business in Florida, and SJH is a Georgia corporation with its principal
place of business in Georgia.


                                                2
                Case: 11-13069       Date Filed: 01/24/2013        Page: 3 of 31

motion and entered final judgment accordingly. SJH appeals the judgment. We

affirm.

                                                I.
       We begin our review of the District Court’s decision with a recitation of the

historical facts underpinning SJH’s claims for breach of contract and promissory

estoppel.

                                                A.

       In July 2005, SJH sought bids for the purchase of its hospital assets.3 HMA

submitted the highest of several bids, and the parties began negotiating the terms

of the purchase. By December 2005, they had reduced the terms to writing in a

draft agreement (the “Asset Sale Agreement” or the “Agreement”). Sections 2.2

and 3.2 of the Agreement, titled “Binding Agreement,” stated that the Agreement

would “constitute[] a valid and binding obligation” of the parties when both HMA

and SJH “duly and validly execute[] and deliver[]” it. Record, vol. 1, no. 1-2, at

63–64, 72. Before the parties could execute the Agreement, however, they needed

to submit it to the Attorney General of Georgia for his approval. The Georgia

Hospital Acquisition Act (the “Acquisition Act”) mandates that a transfer of fifty

percent or more of the assets of a non-profit hospital cannot go forward without

the Attorney General’s consent. O.C.G.A. § 31-7-400 (2012) et seq. The parties to

       3
         SJH sought bids for some of its other assets as well. We treat the hospital assets as
including those other assets.


                                                3
                Case: 11-13069     Date Filed: 01/24/2013   Page: 4 of 31

the transfer must notify the Attorney General of the terms of the transfer at least

ninety days before it is to take place;4 then, within sixty days after receiving

notice, the Attorney General must hold a public hearing.5

      On December 22, 2005, the parties submitted to the Attorney General the

Acquisition Act’s prescribed Notice of Intent to Acquire or Dispose of Assets of a

Hospital (the “Notice of Intent” or the “Notice”). The Notice informed the

Attorney General that HMA had agreed to purchase SJH’s assets under the terms

stated in an Asset Sale Agreement, an unsigned copy of which was attached to the

Notice, and stated that the transaction would be closed “as soon as practical after

the Attorney General Process is concluded.” Record, vol. 1, no. 1-2, at 26. On

receiving the Notice, the Attorney General scheduled a public hearing on the

parties’ proposal for February 13, 2006, in Augusta, Georgia.

      After the parties notified the Attorney General of their intent, HMA made

several public announcements about its negotiations with SJH. On December 27,

2005, HMA issued a news release, which stated that it had “negotiated an

agreement to acquire St. Joseph” and that “[t]he execution and closing of the

purchase agreement [were] subject to the review and approval of the Georgia

Attorney General’s office pursuant to applicable state law.” Record, vol. 1, no. 1-


      4
          See O.C.G.A. § 31-7-401 (2012).
      5
          See O.C.G.A. § 31-7-405 (2012).


                                            4
                Case: 11-13069       Date Filed: 01/24/2013       Page: 5 of 31

4, at 82. Two days later, HMA filed a Form 10-K annual report with the Securities

and Exchange Commission (the “SEC”),6 which included a statement

“announc[ing] the negotiation of an agreement to acquire St. Joseph Hospital” and

that “the execution of a definitive purchase agreement and closing of the

transaction [were] subject to review and approval by the Georgia Attorney

General’s office.” Record, vol. 1, no. 1-3, at 21. On January 3, 2006, HMA

issued another “news release,” proclaiming that it had “signed or finalized

negotiations on definitive agreements regarding four acquisition opportunities”

and, in reference to the SJH acquisition, stating that “upon completion of the

previously announced transaction [] to acquire the 231-bed St. Joseph Hospital . . .

, HMA will operate 61 hospitals in 16 states with approximately 8,912 licensed

beds.” Record, vol. 1, no. 1-4, at 85. On January 13, HMA issued a third news

release that included a similar statement. On January 24, HMA issued a “press

release,” announcing once again that it had “negotiated an agreement to acquire

the 231-bed St. Joseph Hospital” and that “execution and closing of the purchase

agreement [were] subject to review and approval of the Georgia Attorney

General’s office pursuant to applicable state law.”7 Record, vol. 5, no. 108, Ex. J,

       6
         The Form 10-K reported on HMA’s financial condition at the close of its 2005 fiscal
year on September 30, 2005.
       7
        In addition to the above announcements, HMA engaged in transitional activities at
SJH’s hospital. It installed its own computer systems, applied to have certain licenses changed
from SJH to HMA, sent its representatives to attend meetings with the hospital’s staff, and


                                                5
                Case: 11-13069        Date Filed: 01/24/2013         Page: 6 of 31

at 5. On February 9, HMA filed a Form 10-Q quarterly report with the SEC,8

which included a statement similar to the one contained in its earlier Form 10-K

report.

                                                 B.

       Section 201 of the Hart-Scott-Rodino Antitrust Improvements Act of 1976

(the “HSR Act”), 15 U.S.C. §18a (2006), requires the Federal Trade Commission

(the “FTC”) and the Department of Justice (the “DOJ”) to scrutinize the antitrust

implications of any transfer or acquisition of assets valued at over $50 million.9

Since the transaction the parties contemplated involved the transfer of assets

exceeding $50 million in value, they filed with the FTC and the DOJ, on January
trained the staff on HMA protocol.
       8
          The Form 10-Q reported on HMA’s financial condition at the close of the first quarter
of the 2005 fiscal year, October 1, 2005 through December 31, 2005.
       9
          The HRS Act, 15 U.S.C. § 18a (2006), titled “Premerger notification and waiting
period,” states in relevant part:

       (a) Filing

       [N]o person shall acquire, directly or indirectly, any . . . assets of any other person,
       unless both persons . . . file notification pursuant to rules under subsection (d)(1)
       of this section and the waiting period described in subsection (b)(1) of this section
       has expired, if
       (1) the acquiring person, or the person whose . . . assets are being acquired, is
       engaged in commerce or in any activity affecting commerce; and
       (2) as a result of such acquisition, the acquiring person would hold an aggregate
       total amount of the . . . assets of the acquired person --

       ....

       (B)(i) in excess of $50,000,000 (as so adjusted and published) but not in excess
       of $200,000,000 (as so adjusted and published). . . .



                                                  6
                Case: 11-13069        Date Filed: 01/24/2013         Page: 7 of 31

27, 2006, a “Premerger Notification and Report” (the “Premerger Notification”).

Attached to the Premerger Notification as Exhibits were a “Letter of Intent,”

which the parties executed on January 25, 2006, and the unsigned Asset Sale

Agreement that they sent to the Georgia Attorney General with their Notice of

Intent on December 22, 2005. The HSR Act precluded HMA from acquiring

SJH’s assets until the Act’s “waiting period” expired. The waiting period began

the day the FTC and the Assistant Attorney General in charge of the DOJ’s

Antitrust Division received the Premerger Notification, presumably January 27,

2006, and would end on February 26, 2006, unless terminated before that date by

the FTC and the Assistant Attorney General.10

      10
           The HSR Act states in relevant part:

      (b) Waiting period; publication; voting securities

      (1) The waiting period required under subsection (a) of this section shall--
      (A) begin on the date of the receipt by the Federal Trade Commission and the
      Assistant Attorney General in charge of the Antitrust Division of the Department
      of Justice (hereinafter referred to in this section as the “Assistant Attorney
      General”) of --
      (i) the completed notification required under subsection (a) of this section, or
      (ii) if such notification is not completed, the notification to the extent completed
      and a statement of the reasons for such noncompliance, from both persons . . . ;
      and
      (B) end on the thirtieth day after the date of such receipt . . . , or on such later date
      as may be set under subsection (e)(2) or (g)(2) of this section.
      (2) The Federal Trade Commission and the Assistant Attorney General may, in
      individual cases, terminate the waiting period specified in paragraph (1) and allow
      any person to proceed with any acquisition subject to this section, and promptly
      shall cause to be published in the Federal Register a notice that neither intends to
      take any action within such period with respect to such acquisition.

      ....


                                                  7
                Case: 11-13069        Date Filed: 01/24/2013       Page: 8 of 31

                                                     C.

       The Letter of Intent (the “Letter”), which the parties ascribed to by signing

it,11 “set forth [their] mutual understanding . . . with respect to” HMA’s acquisition

of SJH’s assets. Record, vol. 1, no. 1-5, at 5. In its second paragraph, the Letter

“reflect[ed] the parties’ intention to finalize and execute a binding Asset Sale


       (e) Additional information; waiting period extensions

       (1)(A) The Federal Trade Commission or the Assistant Attorney General may,
       prior to the expiration of the 30-day waiting period . . . specified in subsection
       (b)(1) of this section, require the submission of additional information or
       documentary material relevant to the proposed acquisition, from a person required
       to file notification with respect to such acquisition under subsection (a) of this
       section prior to the expiration of the waiting period specified in subsection (b)(1)
       of this section. . . .

       ....

       (2) The Federal Trade Commission or the Assistant Attorney General, in its or his
       discretion, may extend the 30-day waiting period . . . specified in subsection (b)(1)
       of this section for an additional period of not more than 30 days . . . after the date
       on which the Federal Trade Commission or the Assistant Attorney General, as the
       case may be, receives from any person to whom a request is made under
       paragraph (1) . . . . (A) all the information and documentary material required to
       be submitted pursuant to such a request, or (B) if such request is not fully
       complied with, the information and documentary material submitted and a
       statement of the reasons for such noncompliance. Such additional period may be
       further extended only by the United States district court, upon an application by
       the Federal Trade Commission or the Assistant Attorney General pursuant to
       subsection (g)(2) of this section.

       ....

       11
           HMA’s Senior Vice President and General Counsel, Timothy R. Parry, wrote the
Letter of Intent and addressed to “St. Joseph Hospital, Augusta, Georgia, Inc., St. Joseph
Ventures, Inc., and St. Joseph M.O.B., L.P.” Record, vol. 1, no. 1-5, at 5. Parry signed the letter
for HMA. Senior officers of the respective addressees also signed it. A copy of the Letter of
Intent was sent to the Georgia Attorney General after the parties signed it.


                                                 8
                  Case: 11-13069        Date Filed: 01/24/2013       Page: 9 of 31

Agreement in the current form attached to this Letter of Intent12 . . . with those

changes (a) which are required by the Attorney General of the State of Georgia

. . . , (b) which otherwise result from the process set forth in [the Acquisition Act],

or (c) which are otherwise agreed upon [by the parties].” Id.

       The third, fourth, and fifth paragraphs of the Letter obligated the respective

parties as follows. In the third paragraph, SJH promised that from January 25,

2006, “through the earlier of (a) the execution of the Asset Sale Agreement and (b)

March 31, 2006, [it] shall not . . . , without the prior written consent of [HMA],”

offer to sell or lease to a third party or otherwise alienate the assets of the hospital.

Id. at 5–6.13 In the fourth paragraph, each party consented to the other party

       12
           Attached to the Letter of Intent was a copy of the unsigned Asset Sale Agreement the
parties attached to the Notice of Intent they sent to the Georgia Attorney General on December
22, 2005.
       13
            In full, the third paragraph stated the following.

       From the date of this Letter of Intent through the earlier of (a) the execution of the
       Asset Sale Agreement and (b) March 31, 2006, Seller shall not . . ., without the
       prior written consent of Purchaser: (i) offer for sale or lease . . . the [hospital
       assets] (or any material portion thereof), whether by merger, consolidation,
       purchase of assets, joint venture, exchange or otherwise; (ii) solicit, negotiate,
       initiate or encourage to take other action to facilitate (by way of furnishing access,
       non-public information or otherwise) offers to buy all or any material portion of
       the . . . [hospital assets]; (iii) hold discussions with any party (other than
       Purchaser) looking toward such an offer or solicitation; or (iv) enter into any
       agreement with any party (other than Purchaser) with respect to the sale or other
       disposition of . . . the [hospital assets]. Notwithstanding the foregoing, this
       paragraph shall not be construed to prohibit Seller . . . from engaging in corporate
       transactions involving Seller’s . . . stock or securities, membership interests or
       partnership interests, as applicable, including, without limitation, membership
       substitution transactions, so long as the terms thereof (x) do not contemplate the
       sale or lease or other disposition of the . . . [hospital assets], (y) would not affect
       Seller’s control over the disposition of the [hospital assets] to Purchaser, or (z)


                                                   9
              Case: 11-13069        Date Filed: 01/24/2013        Page: 10 of 31

“making the necessary filings and/or notifications, if any, with all governmental

agencies or authorities which are required to be made, including . . . pursuant to

[the Acquisition Act] . . . in order for [HMA] to acquire the assets described in the

Asset Sale Agreement.” Id. at 6. The parties also “agree[d] to cooperate with each

other concerning the Sale Transaction (i) in the preparation and submittal of any

filings required pursuant to the [Acquisition Act] and (ii) during the course of any

public hearings which take place pursuant to the [Acquisition Act].” Id. The fifth

paragraph provided that “[i]n the event a definitive Asset Sale Agreement is not

executed,” each party would “bear its own legal, accounting and other fees and

expenses related to the proposed transaction,” subject to certain exceptions not

relevant here. Id.

      The sixth paragraph explained the parties’ intent in executing the Letter of

Intent with this statement:

      This Letter of Intent is intended as an expression of mutual intent
      only and does not constitute an obligation binding in any way on the
      parties, except for the provisions of the third, fourth and fifth
      paragraphs hereof. This Letter of Intent will be governed by and
      construed in accordance with the laws of the State of Georgia.

Id. at 6–7.




      would not otherwise restrict the ability of Seller to convey the [hospital assets] to
      Purchaser in the Closing.


                                               10
               Case: 11-13069        Date Filed: 01/24/2013       Page: 11 of 31

       SJH sent a copy of the Letter to the Georgia Attorney General the day the

parties signed it, January 25, 2006. SJH’s transmittal letter explained that the

“[Letter] was required for the parties’ Hart-Scott-Rodino filing” and “[was]

nonbinding as to the sale of the assets.” Record, vol. 4, no. 103, Ex. 223, at 1.

       On February 12, 2006, HMA informed SJH that it would not sign the

Asset Sale Agreement.14 On February 13, 2006, the day the Attorney

General was to hold a public hearing on the proposed transaction, HMA

advised the Attorney General that it was “withdrawing its non-binding offer

to acquire St. Joseph Hospital and other related assets” because “the

hospital ha[d] experienced significant deterioration in its operating

performance including adverse changes in physician referral practices since

the submission of the [Notice of Intent].” Record, vol. 4, no. 103, Ex. 25, at

1. On being so advised, the Attorney General cancelled the hearing and

closed the public record in the matter. On November 1, 2006, SJH sold the

hospital assets to a third party for approximately $37 million.




       14
            Notwithstanding its public statements to the effect that it had negotiated the purchase
of SJH’s hospital assets, HMA was concerned about the hospital’s financial health. Based on a
visit to the hospital and a review of SJH’s February 2006 financial analysis, HMA’s president,
who had succeeded his predecessor on January 1, 2006, and had not been involved in the parties’
negotiations, determined that HMA should abandon its plan to purchase SJH’s assets.


                                                11
               Case: 11-13069       Date Filed: 01/24/2013       Page: 12 of 31

                                               II.

                                               A.

       SJH filed this lawsuit to recover the loss it claims it sustained, in excess of

$35 million, as a result of HMA’s failure to go through with the purchase. Its

complaint contained five counts. Two are before the court today: Count One,

which sounds in contract; Count Four, which sounds in promissory estoppel.15

       Count One incorporates by reference the historical facts recited in subparts

A and C of part I, supra, and alleges that SJH and HMA “ultimately . . . reached a

firm and definite agreement, as evidenced by writings signed by the parties that

contain all of the material terms of the contract for the purchase and sale of the

assets of the hospital.” Record, vol. 1, no. 1-2, ¶ 12. Attached to the complaint as

an exhibit, and made a part of this allegation, is the Notice of Intent the parties

submitted to the Attorney General on December 22, 2005, which appends the

       15
           The three counts not before us in this appeal are Counts Two, Three, and Five. Count
Two, seeking damages in excess of $35 million, alleges that HMA breached a duty of good faith
and cooperation implicit in the Asset Sale Agreement. Count Three, seeking “damages in an
amount to be proven at trial,” alleges that HMA breached its contractual duty to maintain in
confidence information it gained from SJH while negotiating the purchase of its assets. Record,
vol. 1, no. 1-2, ¶ 34. Count Five, which incorporates by reference Counts One through Four,
seeks “attorneys’ fees, litigation expenses and costs . . . pursuant to O.C.G.A. § 13-6-
11[(2012)].” Id. at 10. Section 13-5-30 of the Official Code of Georgia Annotated, titled
“Expenses of litigation,” states the following: “Expenses of litigation generally shall not be
allowed as a part of the damages; but where the plaintiff has specially pleaded and has made
prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or
has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” O.C.G.A. §
13-6-11(2012).




                                               12
                Case: 11-13069     Date Filed: 01/24/2013      Page: 13 of 31

Asset Sale Agreement. Count One alleges, in the next sentence, that “[t]hereafter,

HMA repeatedly confirmed in writing in its [SEC] filings signed by HMA’s

officers and in its press and news releases that it had agreed to purchase the assets

of the hospital.” Id. Attached to the complaint as exhibits, and made part of this

allegation, are the press and news releases and SEC reports HMA issued between

December 27, 2005 and February 9, 2006.16

       Count Four, an alternative basis for the recovery of damages, assumes that

the parties did not reach an enforceable contract and alleges that “HMA promised

to purchase the assets of [SJH] and reasonably expected to and did induce [SJH] to

rely on its promises,” id. ¶ 36, and that “[SJH] reasonably relied on HMA’s

repeated promises and public statements that HMA agreed to purchase the assets

of [SJH].” Id. ¶ 37.

       HMA’s answer to Count One admits the allegations of historical fact except

that the Asset Sale Agreement constituted a binding contract between the parties.

As an affirmative defense, apparently assuming that Count One is based on an oral

agreement, HMA asserts that the agreement, if incorporating the terms of the Asset

Sale Agreement, was unenforceable under Georgia’s statute of frauds, O.C.G.A.

§ 11-2-201 (2012) and O.C.G.A. § 13-5-30 (2012).17 HMA’s answer to Count

       16
            See supra part I.A.
       17
         Section 11-2-201 of the Official Code of Georgia Annotated, titled “Formal
requirements; statute of frauds,” states in pertinent part:


                                             13
                Case: 11-13069        Date Filed: 01/24/2013         Page: 14 of 31

Four admits the allegations of historical fact and asserts as an affirmative defense

that Count Four failed to state a claim for relief.

                                              B.

       Following discovery, the parties filed cross motions for summary

judgment.18 The District Court granted HMA’s motion on Counts One, Two, Four

and Five of SJH’s complaint,19 and denied SJH’s motion. Addressing the Count

One claim, the court found nothing in the record to support SJH’s argument that

by the time the parties submitted the Notice of Intent to the Attorney General on

December 22, 2005, or at any time after that and prior to HMA’s withdrawal, they


       (1) Except as otherwise provided in this Code section a contract for the sale of
       goods for the price of $500.00 or more is not enforceable by way of action or
       defense unless there is some writing sufficient to indicate that a contract for sale
       has been made between the parties and signed by the party against whom
       enforcement is sought or by his authorized agent or broker.

O.C.G.A. § 11-2-201 (2012).

       Section 13-5-30 of the Official Code of Georgia Annotated, titled “Obligations which
must be in writing,” states in pertinent part:

       To make the following obligations binding on the promisor, the promise must be in
       writing and signed by the party to be charged therewith or some person lawfully
       authorized by him:

       ....

       (4) Any contract for sale of lands, or any interest in, or concerning lands . . . .

O.C.G.A. § 13-5-30 (2012).
       18
         HMA moved for summary judgment on all five counts of the complaint. SJH moved
for summary judgment on Count One only.
       19
            The court denied HMA’s motion for summary judgment on Count Three.


                                                   14
                Case: 11-13069        Date Filed: 01/24/2013        Page: 15 of 31

had reached an agreement calling for HMA to purchase SJH’s hospital assets

pursuant to the terms of the Asset Sale Agreement.20 First, the parties never

signed the Asset Sale Agreement; nor did they ever sign an agreement

incorporating by reference the terms of the Asset Sale Agreement. Thus, if Count

One alleged the breach of a contract in writing, the claim failed.

       Second, treating Count One as alleging, in effect, the breach of an oral

contract, the District Court found no evidence that the parties, after drafting the

       20
            In its order granting HMA summary judgment on Count One, the District Court did
not state explicitly whether it considered Count One as asserting the breach of a contract in
writing or the breach of an oral agreement. The court’s analysis of Count One’s allegations,
however, indicates that it searched the record for the existence of a written agreement or an oral
agreement.
         As indicated in part II.A, supra, paragraph 12 of SJH’s complaint alleged that the parties
“ultimately . . . reached a firm and definitive agreement, as evidenced by writings signed by the
parties that contain all of the material terms of the contract for the purchase and sale of the assets
of the hospital.” Record, vol. 1, no. 1-2, ¶ 12. The Notice of Intent and the Asset Sale
Agreement were appended to the complaint immediately following that allegation, the
implication being that the Asset Sale Agreement was the agreement the parties had reached. In
its brief in opposition to HMA’s motion for summary judgment, SJH, in referring to the January
25, 2006, Letter of Intent the parties submitted to the FTC and the DOJ, stated that the “[p]arties
did not intend the Letter of Intent to alter the prior agreement reached by them at the time they
submitted the Notice [of Intent to the Attorney General]” on December 22, 2005. Record, vol. 6,
no. 116, at 4 (emphasis added).
         In its order granting HMA summary judgment on Count One, the District Court reads
Count One without differentiating between a contract in writing and an oral agreement, stating
that SJH “maintain[s] that the parties entered into a binding contract to consummate the
transaction and that [HMA] was bound, on or before December 22, 2005, when the [Asset Sale
Agreement] was submitted to the Attorney General’s office for approval.” Record, vol. 3, no.
123, at 14 (emphasis added). In the next sentence, the court states the following: “[SJH] posits
that by the time [HMA] withdrew from the transaction in February of 2006, the parties had a
binding, but unconsummated, contract for the sale of the hospital.” Id. (emphasis added).
         In deciding whether summary judgment was appropriate on Count One, we treat SJH as
having alleged that the contract referred to in Count One was entered into by the parties (1) on or
before December 22, 2005, and before the Attorney General received the Notice of Intent and the
unsigned Asset Sale Agreement, or (2) at some time before HMA withdrew from the transaction
in February 2006.


                                                 15
             Case: 11-13069     Date Filed: 01/24/2013   Page: 16 of 31

Asset Sale Agreement, orally agreed to be bound by its terms. The court

discounted altogether SJH’s argument that statements HMA made in news and

press releases between December 27, 2005, and January 24, 2006, and in the

reports filed with the SEC on December 29, 2005, and February 9, 2006,

confirmed that the parties had orally agreed to be bound to the terms of the Asset

Sale Agreement. The court considered the statements lacking in probative value

because they were “ambiguous.” Record, vol. 3, no. 123, at 14. Finally, the court

found that the Letter of Intent conclusively established that HMA was not

contractually bound to purchase the hospital assets. Although HMA “may have

promised that it was interested in acquiring the Hospital,” id. at 26, SJH knew,

when the parties signed the Letter on January 25, 2006, that HMA would not “be

bound [to purchase the facility] until a definitive and binding [Asset Sale

Agreement] was finalized and executed.” Id. at 27.

      The District Court found no merit in the Count Four promissory estoppel

claim on the ground that SJH could not reasonably have relied on HMA’s

representations that it had negotiated a purchase of the hospital assets. SJH knew

that until the parties signed the Asset Sale Agreement (or a substitute thereof),

HMA could back out of the transaction. The court pointed to a checklist SJH’s

attorneys prepared for the closing of the transaction, if and when the Attorney

General gave the transaction his approval, as evidence of that possibility: “[T]he


                                         16
               Case: 11-13069        Date Filed: 01/24/2013       Page: 17 of 31

‘Pre-Closing Checklist’ prepared by [SJH’s] counsel in January of 2006 include[d]

a list of ‘Items to be Done Prior to Closing,’ which indicate[d] that the [Asset Sale

Agreement] still needed ‘[t]o be executed and delivered after [a] favorable report

[is] received from [the] Attorney General.’” Id. at 28 n.24.

                                                C.

       The District Court entered a final judgment for HMA on Counts One, Two,

Four, and Five pursuant to Federal Rule of Civil Procedure 54(b), in accordance

with its order granting HMA’s motion for summary judgment. SJH now appeals

the judgment on Counts One and Four.21 SJH argues, as to Count One, that

summary judgment was inappropriate because a jury reasonably could find that the

parties intended to be bound by the terms of Asset Sale Agreement, even though

they never signed it. SJH argues alternatively, with respect to Count Four, that a

jury reasonably could find HMA estopped to deny that it was obligated to go

forward with the acquisition.




       21
          SJH includes one line in the “Statement of the Issues” section of its opening brief
addressing its claim for attorneys’ fees and costs in Count Five: “Did the District Court err in
dismissing [SJH’s] claim for attorneys’ fees and costs . . . .” SJH, however, does not bring up
Count Five or argue its entitlement to attorneys’ fees and costs anywhere else in its brief. We
thus do not address the District Court’s summary judgment on Count Five.


                                                17
                 Case: 11-13069        Date Filed: 01/24/2013       Page: 18 of 31

                                             III.

       In considering SJH’s arguments, we take a different path than the one the

District Court took.22 We start with the historical facts, which are not in dispute.23

They consist of the unsigned Asset Sale Agreement; the Acquisition Act and the

Notice of Intent submitted to the Georgia Attorney General on December 22,

2005, pursuant to that statute; the HSR Act and the regulations promulgated

thereunder; the statements HMA made in its news and press releases and in its

filings with the SEC between December 27, 2005, and February 9, 2006; and the

statements each party made in the Premerger Notification and attachments it filed

with the FTC and the DOJ on January 27, 2006. With these facts in the forefront,

we consider SJH’s appeal of the District Court’s disposition of Count One and

then of Count Four.

                                                    A.

                                                    1.

       Count One incorporates by reference the Asset Sale Agreement.24 Articles 2

and 3 of the Asset Sale Agreement, “Representations and Warranties,” state that

       22
           Because we are reviewing a summary judgment, we consider the historical facts and
draw all justifiable inferences in the light most favorable to SJH. Rice-Lamar v. City of Ft.
Lauderdale, Fla., 232 F.3d 836, 840 (11th Cir. 2000).
       23
           What is in dispute is whether the historical facts yield the inference that, at some point
in time, the parties intended to, and did, enter into an agreement containing the terms of the draft
Asset Sale Agreement they submitted to the Attorney General on December 22, 2005.
       24
            See Record, vol. 1, no. 1-2, at 46–99; Record, vol. 1, no. 1-3, at 1–16.


                                                    18
                Case: 11-13069        Date Filed: 01/24/2013       Page: 19 of 31

the parties “duly and validly executed” the Agreement and that it “constitutes a

valid and binding obligation enforceable [against the respective parties] in

accordance with its terms.” Record, vol. 1, no. 1-2, at 63–64, 72. The Agreement

was not executed, though; the parties failed to sign it. Nor did they bind

themselves to the terms of the Asset Sale Agreement by executing a separate

written agreement that incorporated those terms by reference. The parties did sign

an agreement, the Letter of Intent, but it did not incorporate the terms of the Asset

Sale Agreement. Rather, as the District Court noted, the Letter made clear that

those terms were provisional, that it was the parties’ present “‘intention to finalize

and execute a binding Asset Sale Agreement . . . with those changes (a) which are

required by the Attorney General of the State of Georgia . . . (b) which otherwise

result from the process set forth in the [Acquisition Act] . . . or (c) which are

otherwise agreed upon. . . .’” Record, vol. 3, no. 123, at 15 (citing the Letter of

Intent) (emphasis in original).25

       25
           The Letter of Intent is a contract in the sense that it obligated the parties to perform
certain functions. At the same time, it declared that neither party was bound to the terms of the
Asset Sales Agreement submitted to the Georgia Attorney General on December 22, 2005.
Among other things, the Letter’s fourth paragraph provides that

       (a) Seller consents to Purchaser making the necessary filings and/or notifications
       and (b) Purchaser consents to Seller making the necessary filings and/or
       notifications, if any, with all governmental agencies or authorities which are
       required to be made, including, without limitation, pursuant to the [Acquisition
       Act] or the [HSR Act], in order for Purchaser to acquire the assets as described in
       the Asset Sale Agreement.

Record, vo1. 1, no. 1-5, at 6.


                                                 19
               Case: 11-13069        Date Filed: 01/24/2013       Page: 20 of 31

       In sum, as a claim for breach of a contract in writing, Count One could not

survive summary judgment.26 Whether Count One was sustainable on the theory

that HMA breached an oral agreement incorporating the terms of the Asset Sale

Agreement is another question. We consider it next.

                                                2.

       Although Count One does not explicitly allege that HMA breached an oral

agreement, such allegation is implicit. And SJH’s brief on appeal does not

disavow it, as a fallback position.27 We therefore proceed under the assumption

that Count One alleges that HMA breached an oral agreement that incorporated by

reference the terms of the Asset Sale Agreement.

        SJH faces two hurdles in its attempt to establish the existence of an oral

agreement. First, the record contains no evidence that the parties ever met face-to-


        Further, the parties were charged with “cooperat[ing] with each other concerning the Sale
Transaction (i) in the preparation and submittal of any filings required pursuant [to] the
[Acquisition Act] and (ii) during the course of any public hearings which take place pursuant to
the [Acquisition Act].” Id.
        Many obligations contained in the Letter had already been satisfied, at least in part; the
parties had made the Notice of Intent filing under the Acquisition Act, and SJH had complied
with the Letter’s third paragraph by not negotiating with a third party for the sale of its assets.
And, after signing the Letter, the parties satisfied their obligation to file the Premerger
Notification called for by the HSR Act.
       26
          We point out here that SJH’s complaint does not assert a claim against HMA for the
breach of obligations imposed on it by the Letter of Intent.
       27
           Whether a claim that HMA breached an oral promise to purchase the hospital
assets—on the terms stipulated in Asset Sale Agreement—would succeed in the face of HMA’s
statute of frauds defense is highly questionable. The assets included real estate, and the Georgia
statute of frauds, O.C.G.A. § 13-5-30, requires that, to be enforceable, a promise to purchase land
must be in writing. See supra note 17.


                                                20
             Case: 11-13069     Date Filed: 01/24/2013   Page: 21 of 31

face and agreed to be bound by the terms of the Asset Sale Agreement. Second,

the Letter of Intent expressly supercedes any agreements the parties previously

may have made to that effect. SJH would overcome the first hurdle with the

argument that, for summary judgment purposes, the absence of an oral agreement

made at a particular point in time is of no moment; a jury reasonably could infer

from HMA’s post-December 22, 2005, behavior—the statements it made in its

press and news releases and in its SEC filings and its preparation of the hospital

staff for the change over—that the parties had met and agreed that the transaction

would go forward as provided in the Asset Sale Agreement. SJH would overcome

the second hurdle by arguing that, notwithstanding Letter of Intent language to the

contrary, the parties did not intend that the Letter supercede their agreement to

complete the transaction.

      SJH presented these arguments to the District Court, together, in three parts

of its brief in opposition to HMA’s motion for summary judgment (and in support

of its motion for summary judgment). It stated the following:

      [T]he Letter of Intent was drafted in order to balance the tension
      between the [HSR Act’s] requirement of a signed writing, and the
      Georgia Attorney General’s procedure stating that the agreement
      could not be consummated – signed – until after completion of the
      review process. The facts showing the context in which the parties
      negotiated the Letter of Intent reveal that the parties did not intend the
      Letter of Intent to alter the prior agreement reached by them at the
      time they submitted the Notice [of Intent to the Attorney General].



                                         21
              Case: 11-13069      Date Filed: 01/24/2013    Page: 22 of 31

Record, vol. 6, no. 116, at 4 (emphasis added). Stated another way,

      HMA determined that the parties needed to submit some form of a
      signed, written agreement to the [DOJ] and the [FTC] in order to
      comply with the requirements of the [HSR Act]. The [Acquisition
      Act], however, prevented the parties from consummating their
      agreement prior to completion of the Attorney General review
      process. In an effort not to run afoul of the [Acquisition Act], the
      parties drafted the [Letter of Intent]. . . . [It] was drafted for the
      limited purpose of providing the signed, written agreement required
      by the [HSR Act].

Id. at 12–13 (emphasis added).

      Responding to HMA’s argument that the language of the Letter

conclusively established that an agreement in the form of the Asset Sale

Agreement would not be finalized and executed until after the Attorney General

approved the sale of the hospital assets, SJH repeated this theme:

      HMA seizes upon mischaracterized language in the [Letter of Intent]
      to attempt to nullify all of HMA’s other words and deeds in
      connection with the sale of the Hospital . . . . The “non-binding”
      language included in the [Letter] was intended by the parties to
      prevent the [Letter] from prematurely going “too far” by effectively
      consummating the [Asset Sale Agreement] in violation of the
      [Acquisition Act], while at the same time, complying with the [HSR
      Act’s] premerger notice requirements.

Id. at 36 (emphasis added).

      In short, SJH argues that HMA’s words and deeds in connection with the

sale of the Hospital—specifically, HMA’s press and news releases, the SEC

reports it filed, and the steps it took at the hospital to acquaint the staff with its



                                            22
               Case: 11-13069       Date Filed: 01/24/2013   Page: 23 of 31

protocols and to prepare for the change over—constituted proof sufficient to

enable a jury to infer that HMA and SJH reached a meeting of the minds and thus

exchanged promises for the purchase and sale of the hospital assets. And the same

evidence would permit the jury to find that the Letter of Intent was not intended to

render those promises legally ineffective.

      In advancing these arguments, SJH overlooks the Premerger Notifications

the parties filed with the FTC and the DOJ two days after they signed the Letter of

Intent. These filings describe the transaction the parties anticipated consummating

if the Attorney General approved it, and as far as we can tell, they contain the last

written statements either party made before HMA abandoned the transaction. The

District Court, in its order granting HMA summary judgment, did not consider the

Premerger Notifications in its analysis of SJH’s claims for relief in Counts One

and Four. What the parties said in the Premerger Notifications, though, is highly

relevant in determining whether, before submitting the unsigned Asset Sale

Agreement to the Georgia Attorney General for his approval, the parties orally

agreed to be bound by its terms.

      The HSR Act required the parties to notify the FTC and the DOJ of the

transaction they planned to consummate because the assets involved exceeded $50

million in value.28 They provided such notice on January 27, 2006, after signing

      28
           See supra note 9 and accompanying text.


                                              23
               Case: 11-13069         Date Filed: 01/24/2013         Page: 24 of 31

the Letter of Intent. According to the regulation governing the filing of a

Premerger Notification, the “notification [had to] contain an affidavit, attached to

the front of the notification, attesting that a contract, agreement in principle or

letter of intent to . . . acquire has been executed, and further attesting to the good

faith intention of the person filing the notification to complete the transaction.”29

       The Premerger Notification form that each party filed contained a heading,

“DESCRIPTION OF ACQUISITION.” Under the heading in the form it filed,

SJH stated, in pertinent part, the following:

       Pursuant to a Letter of Intent, executed on January 26, 2006 (Exhibit
       3(d)(1) at Tab 1), [HMA] will acquire the assets of [SJH]. The Letter
       of Intent represents the parties' intention to execute a binding Asset
       Sale Agreement (attached hereto as Exhibit 3(d)(2) at Tab 2), which
       is pending review and approval by the Attorney General of the State
       of Georgia pursuant to the [Acquisition Act]. HMA will pay
       $75,000,000 in cash (subject to adjustment) in consideration for the
       assets.

       ....

       This transaction is conditioned upon, among other things: (1) the
       expiration or early termination of any applicable waiting period under
       the Hart-Scot-Rodino Antitrust Improvement Act of 1976; (2) the

       29
          Section 803.5 of Title 16 of the Code of Federal Regulation, titled “Affidavits
required,” states in pertinent part:

       (b). . . [T]he notification required by the act shall contain an affidavit, attached to
       the front of the notification, attesting that a contract, agreement in principle or
       letter of intent to . . . acquire has been executed, and further attesting to the good
       faith intention of the person filing notification to complete the transaction.

16 C.F.R. § 803.5 (2012).


                                                 24
             Case: 11-13069     Date Filed: 01/24/2013   Page: 25 of 31

      receipt of all required governmental authorizations from all
      applicable governmental entities; and (3) other customary conditions
      to closing. The parties intend to close this transaction as soon as
      practicable after the expiration of early termination of the waiting
      period under the Hart-Scott-Rodino Act and the satisfaction and/or
      waiver of all the other conditions to closing.

Record, vol. 4, no. 103, Ex. 210, at 5.

      In the form it filed, HMA stated under the same heading the following, in

pertinent part:

      Pursuant to the Letter of Intent, executed on January 25, 2006,
      [HMA] intends to acquire the assets of [SJH]. HMA will pay
      $75,000,000 in cash (subject to adjustment) in consideration for the
      assets.

      ....

      This transaction is conditioned upon, among other things: (1)
      execution of a definitive agreement; (2) the expiration or early
      termination of any applicable waiting period under the Hart-Scott-
      Rodino Antitrust Improvements Act of 1976; (3) the receipt of all
      required governmental authorizations from all applicable
      governmental entities; and (4) other customary conditions to closing
      that will be contained in the definitive agreement. The parties intend
      to close this transaction as soon as practicable after the expiration or
      early termination of the waiting period under the Hart-Scott-Rodino
      Act and satisfaction and/or waiver of all the other conditions to
      closing.

Record, vol. 4, no. 103, Ex. 288, at 6.

      Under the heading “SUBMIT A COPY OF THE MOST RECENT

VERSION OR AGREEMENT (or letter of intent to . . . acquire),” both parties

cited to, and provided copies of, the Letter of Intent and the unsigned Asset Sale


                                          25
                Case: 11-13069       Date Filed: 01/24/2013       Page: 26 of 31

Agreement. Record, vol. 4, no. 103, Ex. 210, at 7; Record, vol. 4., no. 103, Ex.

288, at 8.

      We assume that the parties prepared and filed the Premerger Notifications

after reading the following FTC interpretation of the HSR Act’s requirements, as

amplified by the rules promulgated pursuant to the Act:30

      The act requires the parties to certain acquisitions of . . . assets to
      notify the FTC and the DOJ and to wait a specified period of time
      before consummating the transaction. The purpose of the act and the
      rules is to ensure that such transactions receive meaningful scrutiny
      under the antitrust laws, with the possibility of an effective remedy
      for violations, before consummation.

      ....

      Section 803.5(b) requires that “ * * * (f) . . . the notification required
      by the act shall contain an affidavit * * * attesting that a contract,
      agreement in principal or letter of intent to . . . acquire has been
      executed, and * * * to the good faith intention of the person filing
      notification to complete the transaction.” Section 803.6(a) of the
      rules states that “The notification required by the act shall be certified
       * * *.”

      One of the primary purposes of these requirements—particularly that
      of certification—is to preserve the evidentiary value of the filing.
      30
           See 15 U.S.C. § 18a(d), titled “Commission rules”:

      The [FTC], with the concurrence of the Assistant Attorney General and by rule in
      accordance with [the Administrative Procedure Act, 5 U.S.C. § 553 (2006)],
      consistent with the purposes of this section --

             (1) shall require that the notification required under subsection (a) of this
             section be in such form and contain such documentary material and
             information relevant to a proposed acquisition as is necessary and appropriate
             to enable the [FTC] and the Assistant Attorney General to determine whether
             such acquisition may, if consummated, violate the antitrust laws . . . .


                                                26
                    Case: 11-13069       Date Filed: 01/24/2013         Page: 27 of 31

          The Statement of Basis and Purpose . . . for § 803.6 states that ‘‘ * * *
          the certification is intended to estop the person on whose behalf the
          report is filed from later denying the completeness or accuracy of the
          information provided on the form in the event that either enforcement
          agency seeks to introduce any such information into evidence in any
          proceeding.’’ 43 FR 33511 (July 31, 1978). The certification
          requirement is also intended to place responsibility on an individual
          to ensure that information reported is true, correct, and complete and
          that the form is filled out in accordance with the act and the rules. Id.

          The affidavit requirement is intended to ensure that several important
          prerequisites are met before the review process begins. . . . In
          consensual transactions, the parties must . . . attest that a contract,
          letter of intent, or agreement in principal has been executed. Id. Its
          contents also ensure that the parties intend to consummate the
          acquisition and are not using the notification process to vet a purely
          hypothetical transaction with the agencies. Id. at 33511.

64 Fed. Reg. 51764 (Sept. 24, 1999) (emphasis added).31

          The Premerger Notifications are certified under penalty of perjury. Section

1001 of Title 18 of the United States Code makes it a felony to, among other

things, make a “materially false . . . statement or representation” “in any matter

within the jurisdiction of the executive . . . branch of the Government of the

United States.”32 The statements the parties made in the Premerger Notifications

          31
               The word “person” includes entities such as SJH and HMA. See 16 C.F.R. § 801.1
(2012).
          32
               The text of 18 U.S.C. § 1001 (2006) reads, in pertinent part:

          (a) . . . whoever, in any matter within the jurisdiction of the executive . . . branch of
          the Government of the United States, knowingly and willfully --

                   (1) falsifies, conceals, or covers up by any trick, scheme, or device a
                   material fact;
                   (2) makes any materially false, fictitious, or fraudulent statement or


                                                     27
              Case: 11-13069         Date Filed: 01/24/2013        Page: 28 of 31

constitute statements or representations in a matter within the jurisdiction of the

executive branch.

      The record contains no evidence to the effect that the parties failed to

comply with the HSR Act and the implementing regulations; the information they

provided the FTC and the DOJ about their contractual relationship, as depicted in

the Letter of Intent, was complete and accurate. As stated in the Letter, it was

their “intention to finalize and execute a binding Asset Sale Agreement in the . . .

form attached to th[e] Letter of Intent.” Record, vol. 1, no. 1-5, at 5. After reading

these words and assuming that the parties filed the Premerger Notifications

intending to complete the transaction, the FTC and the DOJ would assume that if

the Georgia Attorney General approved the transaction as depicted in the

Agreement, the transaction would close.

      By filing the Premerger Notifications, the parties represented the following

as true: (1) the Asset Sale Agreement would not become a binding, enforceable

contract until signed by the parties; (2) the Letter of Intent superceded any

agreements—whether written or oral—that may have existed between the parties

regarding HMA’s acquisition of the hospital assets; (3) the parties had a good faith

              representation; or
              (3) makes or uses any false writing or document knowing the same to
              contain any materially false, fictitious, or fraudulent statement or entry;

      shall be fined under this title, imprisoned not more than 5 years . . . .



                                                28
               Case: 11-13069       Date Filed: 01/24/2013       Page: 29 of 31

intention to complete the transaction and were not using the notification process to

vet a purely hypothetical transaction with the agencies. To this end, the parties

were obligated to attend the hearing the Georgia Attorney General had scheduled

for February 13, 2006, and to cooperate with each other in presenting the case for

HMA’s acquisition.33

       In light of the foregoing, we find no error in the District Court decision to

grant HMA summary judgment on Count One.

       SJH is nonetheless convinced that HMA should be held to account in

damages for representing to the public over a considerable period of time that it

was acquiring the hospital assets and for inducing SJH to change its position in

reliance on such representation. SJH states its case for damages on that theory in

Count Four, to which we now turn.

                                               B.

       SJH contends that a jury, once informed of HMA’s conduct after it joined

SJH in seeking the Attorney General’s approval of the transaction, could

reasonably find HMA estopped to deny that it was obligated to purchase the

hospital assets on the terms set out in the Agreement. For, in addition to

announcing to the public on six occasions—via news and press releases and SEC


       33
           SJH does not seek in Count One to recover damages for HMA’s breach of its Letter of
Intent obligation to attend the hearing and join SJH in urging the Attorney General to approve the
acquisition.


                                               29
               Case: 11-13069     Date Filed: 01/24/2013   Page: 30 of 31

filings—that it had “negotiated an agreement” to acquire the 231-bed St. Joseph

Hospital, HMA took several steps toward completing the acquisition. HMA met

with the hospital staff, held training sessions for the purpose of acquainting the

staff with HMA protocols and the operation of its computer system, which it

installed, and applied to have licenses transferred from SJH to HMA.

         A jury, as lay persons, might be persuaded to hold HMA accountable for

engaging in such conduct. The proper application of the doctrine of promissory

estoppel to this record, however, would mean that the jury would not decide the

claim.

         Promissory estoppel is codified in Georgia as O.C.G.A. § 13–3–44(a),

which reads as follows:

         [a] promise which the promisor should reasonably expect to induce
         action or forbearance on the part of the promisee or a third person and
         which does induce such action or forbearance is binding if injustice
         can be avoided only by enforcement of the promise.

O.C.G.A. § 13–3–44(a) (2012).

         The District Court read SJH’s Count Four claim as follows:

         [SJH] assert[s] that “HMA promised to purchase the assets of [SJH]
         and reasonably expected to and did induce [SJH] to rely on its
         promise.” (Comp. ¶ 36.) More specifically, [SJH] allege[s] that [it]
         “reasonably relied on HMA’s repeated promises and public
         statements that HMA agreed to purchase the Assets of [SJH],” and
         “injustice may be avoided only by enforcing the promise made . . . by
         HMA to purchase” the Hospital. (Id. ¶¶ 37, 40.)



                                           30
               Case: 11-13069     Date Filed: 01/24/2013   Page: 31 of 31

Record, vol. 3, no. 123, at 25.

       The court held that the claim failed because the Letter of Intent “clearly

reflects the parties’ intentions not to be bound until a definitive and binding [Asset

Sale Agreement] was finalized and executed.” Id. at 27. We agree. The Letter of

Intent coupled with SJH’s representation in the Premerger Notification filed with

the FTC and the DOJ—that the parties would not execute a “binding Asset Sale

Agreement” until the Georgia Attorney General approved it—establishes as a

matter of law that SJH could not reasonably rely on HMA’s “promise” to purchase

its hospital assets.


                                          IV.

       For the reasons stated above, we find no reason for disturbing the District

Court’s judgment on Counts One and Four of SJH’s complaint. The judgment is,

accordingly,

       AFFIRMED.




                                           31
