{ "id": 8237378, "name": "BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., Plaintiff v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Defendant, and NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, MEDICAL FACILITIES PLANNING SECTION, Defendant, and TOTAL RENAL CARE OF NORTH CAROLINA, LLC and HEALTH SYSTEMS MANAGEMENT, INC., Defendant-Intervenor", "name_abbreviation": "Bio-Medical Applications of North Carolina, Inc. v. North Carolina Department of Health & Human Services", "decision_date": "2006-09-19", "docket_number": "No. COA05-294", "first_page": "483", "last_page": "504", "citations": [ { "type": "official", "cite": "179 N.C. App. 483" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "616 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633595 ], "year": 2005, "pin_cites": [ { "page": "591", "parenthetical": "citing Wiggins v. Pyramid Life Ins. Co., 3 N.C. App. 476, 478, 165 S.E.2d 54, 56 (1969)" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0588-01" ] }, { "cite": "623 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634717 ], "year": 2006, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0620-01" ] }, { "cite": "611 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632677 ], "year": 2005, "pin_cites": [ { "page": "472", "parenthetical": "quoting Thomas v. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), disc. review denied, 304 N.C. 733, 287 S.E.2d 902 (1982)" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0467-01" ] }, { "cite": "623 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634605 ], "year": 2006, "pin_cites": [ { "page": "309", "parenthetical": "\"The Governor has final authority to approve or amend the SMFP, which becomes the binding criteria for review of CON applications.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0307-01" ] }, { "cite": "625 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635092 ], "year": 2006, "pin_cites": [ { "page": "880", "parenthetical": "quoting Data Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 245-46 (2001)" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0877-01" ] }, { "cite": "165 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555541 ], "year": 1969, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0476-01" ] }, { "cite": "172 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320812 ], "year": 2005, "pin_cites": [ { "page": "554", "parenthetical": "citing Wiggins v. Pyramid Life Ins. Co., 3 N.C. App. 476, 478, 165 S.E.2d 54, 56 (1969)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0549-01" ] }, { "cite": "607 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794209, 3799976, 3793513, 3800274, 3796792, 3798971, 3799454 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0191-07", "/nc/359/0191-01", "/nc/359/0191-04", "/nc/359/0191-05", "/nc/359/0191-03", "/nc/359/0191-02", "/nc/359/0191-06" ] }, { "cite": "599 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 885", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000703 ], "year": 2004, "pin_cites": [ { "page": "887" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0885-01" ] }, { "cite": "175 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351954 ], "year": 2006, "pin_cites": [ { "page": "321-22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0320-01" ] }, { "cite": "287 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572482, 8572464, 8572561, 8572531, 8572511 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0733-02", "/nc/304/0733-01", "/nc/304/0733-05", "/nc/304/0733-04", "/nc/304/0733-03" ] }, { "cite": "282 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521484 ], "year": 1981, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0239-01" ] }, { "cite": "170 N.C. App. 78", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004289 ], "year": 2005, "pin_cites": [ { "page": "86", "parenthetical": "quoting Thomas v. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), disc. review denied, 304 N.C. 733, 287 S.E.2d 902 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0078-01" ] }, { "cite": "107 Mass. 555", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2104103 ], "year": 1871, "opinion_index": 0, "case_paths": [ "/mass/107/0555-01" ] }, { "cite": "35 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1945, "pin_cites": [ { "page": "655-56" } ], "opinion_index": 0 }, { "cite": "225 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611950 ], "year": 1945, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0494-01" ] }, { "cite": "175 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351892 ], "year": 2006, "pin_cites": [ { "page": "298-99", "parenthetical": "\"The Governor has final authority to approve or amend the SMFP, which becomes the binding criteria for review of CON applications.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0296-01" ] }, { "cite": "510 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "164" }, { "page": "163" } ], "opinion_index": 0 }, { "cite": "350 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132016 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0039-01" ] }, { "cite": "68 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625437 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0651-01" ] }, { "cite": "131 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "444", "parenthetical": "citing In re Employment Security Com., 234 N.C. 651, 68 S.E.2d 311 (1951)" } ], "opinion_index": 0 }, { "cite": "259 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561548 ], "year": 1963, "pin_cites": [ { "page": "592", "parenthetical": "citing In re Employment Security Com., 234 N.C. 651, 68 S.E.2d 311 (1951)" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0589-01" ] }, { "cite": "85 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "389" } ], "opinion_index": 0 }, { "cite": "241 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609931 ], "year": 1955, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0329-01" ] }, { "cite": "567 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "217", "parenthetical": "quoting Alliance Co. v. State Hospital, 241 N.C. 329, 332, 85 S.E.2d 386, 389 (1955)" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249206 ], "year": 2002, "pin_cites": [ { "page": "165", "parenthetical": "quoting Alliance Co. v. State Hospital, 241 N.C. 329, 332, 85 S.E.2d 386, 389 (1955)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0163-01" ] }, { "cite": "497 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "348 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659811 ], "year": 1998, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0039-01" ] }, { "cite": "308 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522616 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0139-01" ] }, { "cite": "440 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "864", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527161 ], "year": 1994, "pin_cites": [ { "page": "100", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0098-01" ] }, { "cite": "347 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779554, 4776469 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0715-01", "/nc/317/0715-02" ] }, { "cite": "343 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523953 ], "year": 1986, "pin_cites": [ { "page": "384-85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0383-01" ] }, { "cite": "601 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "920", "parenthetical": "citing Va. Electric and Power Co. v. Tillett, 80 N.C. App. 383, 384-85, 343 S.E.2d 188, 190, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986)" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411331 ], "year": 2004, "pin_cites": [ { "page": "340-41", "parenthetical": "citing Va. Electric and Power Co. v. Tillett, 80 N.C. App. 383, 384-85, 343 S.E.2d 188, 190, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0333-01" ] }, { "cite": "458 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790083, 790182, 790069, 790070, 790172 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0359-05", "/nc/340/0359-02", "/nc/340/0359-01", "/nc/340/0359-03", "/nc/340/0359-04" ] }, { "cite": "454 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917278 ], "year": 1995, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0178-01" ] }, { "cite": "545 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "245-46" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433311 ], "year": 2001, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0097-01" ] }, { "cite": "176 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300871 ], "year": 2006, "pin_cites": [ { "page": "144-45", "parenthetical": "quoting Data Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 245-46 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0142-01" ] }, { "cite": "614 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633141 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "389" } ], "opinion_index": 1, "case_paths": [ "/se2d/614/0385-01" ] }, { "cite": "357 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "708", "parenthetical": "a person aggrieved means one who is adversely affected in respect to legal rights, or is suffering from an infringement or denial of legal rights" } ], "opinion_index": 1 }, { "cite": "86 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128931 ], "year": 1987, "pin_cites": [ { "page": "313", "parenthetical": "a person aggrieved means one who is adversely affected in respect to legal rights, or is suffering from an infringement or denial of legal rights" } ], "opinion_index": 1, "case_paths": [ "/nc-app/86/0308-01" ] }, { "cite": "510 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "162-62" } ], "opinion_index": 1 }, { "cite": "350 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132016 ], "year": 1999, "pin_cites": [ { "page": "44" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0039-01" ] }, { "cite": "573 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "129" } ], "opinion_index": 1 }, { "cite": "356 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511484 ], "year": 2002, "pin_cites": [ { "page": "586-87" } ], "opinion_index": 1, "case_paths": [ "/nc/356/0582-01" ] }, { "cite": "5 U.S. 137", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12121622 ], "weight": 2, "year": 1803, "pin_cites": [ { "page": "163", "parenthetical": "\"where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded\"" }, { "page": "69", "parenthetical": "\"where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded\"" } ], "opinion_index": 1, "case_paths": [ "/us/5/0137-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 1 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "259 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "564" } ], "opinion_index": 1 }, { "cite": "298 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572766 ], "year": 1979, "pin_cites": [ { "page": "484" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0476-01" ] }, { "cite": "408 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "839", "parenthetical": "\"[A] superior court has the inherent power to issue a writ of mandamus to the County Commissioners requiring them to provide adequate court facilities.\"" } ], "opinion_index": 1 }, { "cite": "330 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511545 ], "year": 1991, "pin_cites": [ { "page": "112", "parenthetical": "\"[A] superior court has the inherent power to issue a writ of mandamus to the County Commissioners requiring them to provide adequate court facilities.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0110-01" ] }, { "cite": "91 S.E. 831", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "832", "parenthetical": "distinguishing between discretionary and ministerial actions, holding that a public officer charged with a ministerial duty may be personally liable for negligent breach" } ], "opinion_index": 1 }, { "cite": "173 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269330 ], "year": 1917, "pin_cites": [ { "page": "170", "parenthetical": "distinguishing between discretionary and ministerial actions, holding that a public officer charged with a ministerial duty may be personally liable for negligent breach" } ], "opinion_index": 1, "case_paths": [ "/nc/173/0167-01" ] }, { "cite": "32 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "597", "parenthetical": "officer charged with discretionary duty cannot be liable for negligence, but officer charged with ministerial duty can be liable for misfeasance" } ], "opinion_index": 1 }, { "cite": "224 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615147 ], "year": 1945, "pin_cites": [ { "page": "787", "parenthetical": "officer charged with discretionary duty cannot be liable for negligence, but officer charged with ministerial duty can be liable for misfeasance" } ], "opinion_index": 1, "case_paths": [ "/nc/224/0783-01" ] }, { "cite": "399 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495648, 2499943, 2496788, 2493082, 2500123 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0634-02", "/nc/327/0634-03", "/nc/327/0634-04", "/nc/327/0634-05", "/nc/327/0634-01" ] }, { "cite": "394 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "235-36" } ], "opinion_index": 1 }, { "cite": "99 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524694 ], "year": 1990, "pin_cites": [ { "page": "700" } ], "opinion_index": 1, "case_paths": [ "/nc-app/99/0693-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "889", "parenthetical": "quoting Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 235-36, disc. rev. denied, 327 N.C. 634, 399 S.E.2d 121 (1990)" } ], "opinion_index": 1 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "113", "parenthetical": "quoting Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 235-36, disc. rev. denied, 327 N.C. 634, 399 S.E.2d 121 (1990)" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "403 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "328 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540322, 2539951, 2537810, 2539284, 2545084 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0569-01", "/nc/328/0569-04", "/nc/328/0569-05", "/nc/328/0569-02", "/nc/328/0569-03" ] }, { "cite": "399 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "356" } ], "opinion_index": 1 }, { "cite": "101 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527654 ], "pin_cites": [ { "page": "310" } ], "opinion_index": 1, "case_paths": [ "/nc-app/101/0305-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 }, { "cite": "222 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "423-24", "parenthetical": "The State implicitly consented to the suit when it entered into a valid contract" } ], "opinion_index": 1 }, { "cite": "289 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569569 ], "year": 1976, "pin_cites": [ { "page": "320", "parenthetical": "The State implicitly consented to the suit when it entered into a valid contract" } ], "opinion_index": 1, "case_paths": [ "/nc/289/0303-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-135.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(d)", "parenthetical": "permitting suit for certain contract claims after procedural remedies are exhausted" } ], "opinion_index": 1 }, { "cite": "435 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "312" } ], "opinion_index": 1 }, { "cite": "334 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532572 ], "year": 1993, "pin_cites": [ { "page": "654" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0650-01" ] }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "625" } ], "opinion_index": 1 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "year": 1983, "pin_cites": [ { "page": "534" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0522-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "693" } ], "opinion_index": 1 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "470" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "171 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8435867 ], "year": 2005, "pin_cites": [ { "page": "157" } ], "opinion_index": 1, "case_paths": [ "/nc-app/171/0150-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "627", "parenthetical": "a motion to dismiss for failure to state a claim under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) was converted to a motion for summary judgment when matters outside the pleadings were presented to and not excluded by the court" } ], "opinion_index": 1 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "pin_cites": [ { "page": "205", "parenthetical": "a motion to dismiss for failure to state a claim under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) was converted to a motion for summary judgment when matters outside the pleadings were presented to and not excluded by the court" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "180 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "815", "parenthetical": "The Declaratory Judgment Act permits any person affected by a statute or municipal ordinance to obtain a declaration of his rights thereunder." }, { "page": "815", "parenthetical": "the declaratory judgment act permits any person affected by a statute or municipal ordinance to obtain a declaration of his rights thereunder" } ], "opinion_index": 1 }, { "cite": "278 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561294 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "659", "parenthetical": "The Declaratory Judgment Act permits any person affected by a statute or municipal ordinance to obtain a declaration of his rights thereunder." }, { "page": "659", "parenthetical": "the declaratory judgment act permits any person affected by a statute or municipal ordinance to obtain a declaration of his rights thereunder" } ], "opinion_index": 1, "case_paths": [ "/nc/278/0657-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-254", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 20-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 1 }, { "cite": "390 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "340", "parenthetical": "The petitioner, whose driving privilege was mandatorily suspended under N.C. Gen. Stat. \u00a7\u00a7 20-17(2) and 20-19(e), did not have the right to appeal under this Chapter. However, the superior court could review the actions of the Commissioner by issuing a writ of certiorari." } ], "opinion_index": 1 }, { "cite": "326 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306896 ], "year": 1990, "pin_cites": [ { "page": "465", "parenthetical": "The petitioner, whose driving privilege was mandatorily suspended under N.C. Gen. Stat. \u00a7\u00a7 20-17(2) and 20-19(e" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0462-01" ] } ], "analysis": { "cardinality": 1530, "char_count": 50656, "ocr_confidence": 0.747, "pagerank": { "raw": 3.138617998041976e-07, "percentile": 0.8617459936853461 }, "sha256": "62b2bdcb38b642c38d57fa8c22ec56d83861adda646d2e5bea16736685f7036e", "simhash": "1:87a95068f73b3d50", "word_count": 8204 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge SMITH concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., Plaintiff v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Defendant, and NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, MEDICAL FACILITIES PLANNING SECTION, Defendant, and TOTAL RENAL CARE OF NORTH CAROLINA, LLC and HEALTH SYSTEMS MANAGEMENT, INC., Defendant-Intervenor" ], "opinions": [ { "text": "JACKSON, Judge.\nPlaintiff, Bio-Medical Applications of North Carolina, Inc. (\u201cBMA\u201d), appeals from an order issued 16 November 2004 in Wake County Superior Court dismissing BMA\u2019s claims pursuant to North Carolina Rules of Civil Procedure, Rule 12(b)(1), and alternatively, granting summary judgment in favor of defendants, North Carolina Department of Health and Human Services, Division of Facility Services (\u201cDFS\u201d) and North Carolina Department of Health and Human Services, Division of Facility Services, Medical Facilities Planning Section (\u201cthe Planning Section\u201d), and defendant-intervenors, Total Renal Care of North Carolina, Inc. (\u201cTRC\u201d) and Health Systems Management, Inc. (\u201cHSM\u201d).\nOn 1 July 2004, BMA, the sole provider of in-center kidney dialysis services in Wake County, received the July 2004 Semiannual Dialysis Report (\u201cSDR\u201d) prepared by the Planning Section. This report is released twice each year as part of the State Medical Facilities Plan (\u201cSMFP\u201d). The SMFP defines and governs how the need for additional dialysis stations is to be determined. The Planning Section applies the formula established in the SMFP to the data reported to it from the Southeastern Kidney Council (\u201cKidney Council\u201d) to determine whether the various counties are in need of additional dialysis stations. The July 2004 SDR reported that there was a need in Wake County for an additional ten dialysis stations, and gave a deadline for applications to fill that need. Any dialysis provider, including BMA, could apply for a Certificate of Need (\u201cCON\u201d) which is what is required to fill a reported need.\nAfter reviewing the SDR, BMA contacted the Planning Section and was provided with the data upon which the report was based. BMA compared the data it was given to its own numbers and determined that an error had been made in the data reported to the Planning Section by the Kidney Council. The data reported by the Kidney Council showed fifty-two patients at BMA\u2019s Fuquay-Varina facility when there actually were fifty-one. This error resulted in a calculation that the Fuquay-Varina facility was operating at over eighty percent capacity, when use of the correct patient count would have shown the facility was operating at less than eighty percent capacity. Due to the formula used to calculate need, had the correct data been used, the need determination for hew dialysis stations in Wake County would have b\u00e9en zero, rather than ten as reported in the July 2004 SDR. BMA contacted the Planning Section to report this error and was informed that no changes to the SDR could be made based on BMA\u2019s data unless the error was confirmed by the Kidney Council.\nOn 2 July 2004, BMA contacted the Kidney Council regarding the possible data error. The Kidney Council confirmed the error to BMA on 13 July 2004. The Kidney Council informed the Planning Section of the error on 16 July 2004. On 19 July 2004, BMA requested that the Planning Section amend the July 2004 SDR to correct the error in the data reported by the Kidney Council. The Planning Section advised BMA on 20 July 2004 that, after reviewing the request to amend the July 2004 SDR, DFS management had declined to amend the SDR.\nBMA filed a verified Complaint for a Declaratory Judgment, a Permanent and Preliminary Injunction, and Writ of Mandamus on 11 August 2004 where BMA sought to compel the Planning Section to amend the July 2004 SDR to reflect results based on corrected data. BMA further sought to prevent the acceptance of any CON applications based upon the unamended July 2004 SDR. TRC and HSM, providers of in-center kidney dialysis services in counties other than Wake, were allowed to intervene by consent on 25 August 2004.\nDefendants DFS and the Planning Section filed an Answer and Motions to Dismiss and Defendant-intervenors TRC and HMS filed a Motion to Dismiss on 20 September 2004. A hearing on the motions was held at the 12 November 2004 session of Wake County Superior Court. The trial court dismissed BMA\u2019s claims pursuant to North Carolina Rules of Civil Procedure, Rule 12(b)(1), and alternatively, granted summary judgment in favor of defendants DFS and the Planning Section and defendant-intervenors TRC and HMS by order issued 16 November 2004. BMA gave notice of appeal on 15 December 2004.\nBMA argues the following issues on appeal: (1) the trial court erred in dismissing its claims based on the doctrine of sovereign immunity; (2) the Planning Section abused its discretion in failing to amend the SDR; (3) the Governor was not the person or entity with the authority to amend the SDR; (4) the trial court erred in converting defendants\u2019 motions to dismiss to motions for summary judgment; (5) BMA\u2019s claims are not moot; and (6) if not properly before the trial court, BMA\u2019s action may be brought before the Office of Administrative Hearings (\u201cOAH\u201d). For the reasons stated below, we affirm Judge Hight\u2019s order.\nBMA\u2019s first assignment of error contends the trial court erred in dismissing its claims pursuant to the doctrine of sovereign immunity. As a preliminary matter, we address whether the issue of sovereign immunity is properly before this Court.\nIn their Motion to Dismiss, defendants DFS and the Planning Section alleged, inter alia, a lack of subject matter jurisdiction pursuant to North Carolina Rules of Civil Procedure, Rule 12(b)(1), a lack of personal jurisdiction under Rule 12(b)(2) pursuant to the doctrine of sovereign immunity, and failure to state a claim pursuant to Rule 12(b)(6). Defendants TRC and HSM also filed a Motion to Dismiss, in which they alleged, inter alia, a lack of subject matter jurisdiction in part due to sovereign immunity, a lack of personal jurisdiction, and failure to state a claim.\nThe trial court dismissed the action pursuant to Rule 12(b)(1) and alternatively granted summary judgment in favor of defendants and defendant-intervenors, having considered matters outside the verified pleadings. The trial court did not rule on the other grounds for dismissal, such as a lack of personal jurisdiction pursuant to Rule 12(b)(2). The reasons stated for granting dismissal included, inter alia, that the claims were barred by the doctrine of sovereign immunity.\n\u201c \u2018[A]n appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject matter jurisdiction.\u2019 \u201d Davis v. Dibartolo, 176 N.C. App. 142, 144-45, 625 S.E.2d 877, 880 (2006) (quoting Data Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 245-46 (2001)). Although the trial court gave several reasons why BMA\u2019s claims were barred by the doctrine of sovereign immunity, it did not rule on the Rule 12(b)(2) motions. Neither defendants nor defendant-intervenors brought cross assignments of error to the trial court\u2019s failure to make a 12(b)(2) ruling. The scope of review on appeal is limited to those assignments of error properly set forth in the record on appeal. N.C. R. App. R 10(a) (2006). To properly preserve a question for appellate review a party must request, and receive, a ruling on the question from the trial court. N.C. R. App. P. 10(b)(1) (2006). As there was no ruling by the trial court on the issue of personal jurisdiction, and there was no error assigned, the matter is not properly before this Court.\nWe next consider whether sovereign immunity may properly be addressed under a grant of summary judgment.\nA defendant may show that summary judgment is proper by \u201c(1) proving that an essential element of the plaintiff\u2019s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.\u201d James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). As sovereign immunity is an affirmative defense, the issue may properly be addressed pursuant to the grant of summary judgment.\n\u201cA trial court\u2019s ruling on a motion for summary judgment is reviewed de novo as the trial court rules only on questions of law.\u201d Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 340-41, 601 S.E.2d 915, 920 (2004) (citing Va. Electric and Power Co. v. Tillett, 80 N.C. App. 383, 384-85, 343 S.E.2d 188, 190, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986)). \u201cSummary judgment is proper where \u2018the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d Dept. of Transportation v. Idol, 114 N.C. App. 98, 100, 440 S.E.2d 863, 864 (1994) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)). The questions for determination on appeal when a motion for summary judgment is granted are, \u201cwhether on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law.\u201d Id. (citing Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983)).\nUnder the doctrine of sovereign immunity, the State can only be sued \u201cwith its consent or upon its waiver of immunity.\u201d Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414 (1998). When sovereign immunity is waived by statute, the State may \u201c \u2018be sued only in the manner and upon the terms and conditions prescribed.\u2019 \u201d Kawai Am. Corp. v. University of N.C. at Chapel Hill, 152 N.C. App. 163, 165, 567 S.E.2d 215, 217 (2002) (quoting Alliance Co. v. State Hospital, 241 N.C. 329, 332, 85 S.E.2d 386, 389 (1955)). There is no right of appeal from a decision of a State administrative agency unless such right is granted by statute. In re Assessment of Sales Tax, 259 N.C. 589, 592, 131 S.E.2d 441, 444 (1963) (citing In re Employment Security Com., 234 N.C. 651, 68 S.E.2d 311 (1951)).\nBMA argues that under the circumstances of this case this action is expressly permitted by two separate statutes and, accordingly, the doctrine of sovereign immunity is inapplicable. First, BMA contends that the Administrative Procedure Act (\u201cAPA\u201d) allows suit against State agencies when appropriate relief is not available through the administrative and judicial review process. In support of this position, BMA specifically relies upon the following language contained in the APA:\nNothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.\nN.C. Gen. Stat. \u00a7 150B-43 (2003). BMA ignores, however, the preceding language of that statute. In its entirety the statute provides:\nAny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute. Nothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.\nId. At no time does BMA assert that it is \u2014 and clearly it is not \u2014 a person aggrieved by a final decision in a contested case, which is a prerequisite for this statute to apply.\nFurther, the trial court made the following findings of fact, which we hold are supported by sufficient evidence:\n4.The State Medical Facilities Plan is specifically excluded from the definition of a rule. N.C. Gen. Stat. \u00a7 150B-2(8a)(k). As acknowledged by Plaintiff in its Complaint, the SDR is part of the State Medical Facilities Plan.Therefore, the SDR is not a rule.\n11. It is clear, as a matter of law, neither Defendants nor any of their individual employees or agents named by Plaintiff have authority to amend the July 2004 SDR as requested by Plaintiff, as that authority lies with the Governor of North Carolina. Frye Regional Medical Center, Inc. v. Hunt, 350 N.C. 39, [46-47,] 510 S.E.2d 159, 164 (1999). There is no allegation or evidence tending to show that Plaintiff ever made a proper request for the Governor to amend the July 2004 SDR.\nPursuant to Frye, the Governor has the authority to amend the SMFP, and in the instant case, there is no evidence indicating that such a request was made to or denied by the Governor. As the SDR is a part of the SMFP, it is only logical that the Governor is the proper party with the authority to amend the SDR. BMA sought to have the Planning Section amend the report, when in actuality, the Governor was the proper party to whom the proposed amendment should have been addressed.\nThe dissent suggests that the majority\u2019s allowing the use of the defense of sovereign immunity abrogates any remedy for a party aggrieved by the State. This is not the case. We merely are presented by a set of facts in this case in which sovereign immunity is appropriate and, accordingly, have permitted application of the defense.\nThere is nothing in this opinion which abrogates or seeks to abrogate the proper application of the APA \u2014 which provides a more than adequate remedy to a party aggrieved by the State in many instances. Moreover, there is nothing in this opinion that abrogates or seeks to abrogate the proper application of the Declaratory Judgment Act\u2014 another remedy available to parties aggrieved by the State in certain instances. In this case, however, neither remedy is available as plaintiff did not seek an amendment to the SMFP as prescribed by Frye\u2014 by seeking an amendment through the Governor.\nThe dissent seems to suggest that the plan is a fluid document, subject to constant updating via the agency\u2019s ministerial duties. We cannot agree. Instead, the enabling statute seems to suggest that the plan is a snapshot in time intended to enable the Department to \u201c[djevelop policy, criteria, and standards for health service facilities planning[,]\u201d among other things. N.C. Gen. Stat. \u00a7 131E-177(4) (2003). Frye was clear on this point. It is the role of the Department of Health and Human Services and the State Health Coordinating Council to\n\u201cprepare\u201d or \u201cdevelop\u201d the SMFP. N.C. [Gen. Stat.] \u00a7\u00a7 131E-176(25), 131E-177(4). The Governor\u2019s role is to \u201capprove\u201d the SMFP. N.C. [Gen. Stat.] \u00a7 131E-176(25). Read in context, these statutes suggest that the Governor\u2019s role is to make the final decision concerning the SMFP\u2019s contents after it has been developed and prepared by the Department and the Council.\nFrye, 350 N.C. at 44, 510 S.E.2d at 163. This Court recently has reiterated that authority in Good Hope Health Sys., L.L.C. v. N.C. Dep\u2019t of Health and Human Serv., 175 N.C. App. 296, 298-99, 623 S.E.2d 307, 309 (2006) (\u201cThe Governor has final authority to approve or amend the SMFP, which becomes the binding criteria for review of CON applications.\u201d).\nBMA further contends that this action is authorized statutorily pursuant to the CON statute, North Carolina General Statutes, section 131E-188 (2003). BMA cites specifically to subsections (a) and (b) which authorize suit against the Department of Health and Human Services in an administrative proceeding or in court regarding decisions to \u201cissue, deny, or withdraw a certificate of need[.]\u201d This statute clearly is inapplicable as there has been no decision by the Department of Health and Human Services regarding the issuance, denial or withdrawal of a CON. BMA argues that this statute should be applied nonetheless in this case as the refusal to amend the SDR \u201cset the process in motion\u201d that ultimately would result in the granting or denial of a CON. This is beyond the terms and conditions for the waiver of immunity prescribed by the statute and therefore does not support a waiver of immunity under the circumstances of this case.\nAs the State has not consented to suit in this case and there is no statutory waiver of sovereign immunity under this set of circumstances, we hold that the doctrine of sovereign immunity applies in this case. BMA further argues that its rights under both the State and federal constitutions have been violated and, therefore, its claims should not be precluded on the basis of sovereign immunity. However, BMA did not allege violation of its constitutional rights in either its Complaint or proposed Amended Complaint. Although BMA did allege in its Response to Defendant and Defendant-Intervenors\u2019 Motion to Dismiss that its constitutional rights had been violated, this allegation was insufficient to overcome the defense of sovereign immunity because the right allegedly violated is not constitutionally protected. See Coleman v. Whisnant, 225 N.C. 494, 506, 35 S.E.2d 647, 655-56 (1945).\nBMA alleged in its Response to the Motion to Dismiss that its constitutional rights were violated in that it \u201cwill lose both patients and the income they provide[.]\u201d \u201c \u2018Every one has [the] right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoyance.\u2019 \u201d Id. (quoting Walker v. Cronin, 107 Mass. 555 (1871)).\nIn the case sub judice, there is no indication in the record, nor argument from BMA, that BMA is precluded from applying for a CON for the additional ten dialysis stations identified by the SDR. In fact, BMA made such an application for the additional stations. Accordingly, BMA is not being prevented from benefitting from \u201cthe fruits and advantages of [its] own enterprise, industry, skill and credit,\u201d but is merely being required to compete for such benefit.\nAs BMA has no constitutional right to be protected from lawful competition, it is unable to overcome defendant\u2019s sovereign immunity on constitutional grounds. Accordingly, the trial court properly granted summary judgment in favor of defendants DFS and Planning Section and defendant-intervenors TRC and HSM.\nBMA argues in the alternative that this Court should hold that its action may properly be heard before the OAH. The parties have stipulated, however, that BMA has exhausted all of its administrative remedies. \u201c \u2018Stipulations are judicial admissions and are therefore binding in every sense, preventing the party who agreed to the stipulation from introducing evidence to dispute it and relieving the other party of the necessity of producing evidence to establish an admitted fact.\u2019 \u201d In re I.S., 170 N.C. App. 78, 86, 611 S.E.2d 467, 472 (2005) (quoting Thomas v. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), disc. review denied, 304 N.C. 733, 287 S.E.2d 902 (1982)). However, parties to an action may not stipulate to give a court subject matter jurisdiction, where no such jurisdiction exists. Pineville Forest Homeowners Ass\u2019n v. Portrait Homes Co., 175 N.C. App. 320, 321-22, 623 S.E.2d 620, 623 (2006); see also Northfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924, disc. review denied, 359 N.C. 191, 607 S.E.2d 278 (2004). Thus, the parties could not simply stipulate that they had exhausted all administrative remedies in order for the trial court to have jurisdiction over the matter.\nAs it was stipulated that BMA already had exhausted its administrative remedies, the issue of whether BMA\u2019s action could properly be heard before OAH was not before the trial court and no evidence on that issue was presented. Accordingly, no assignment of error could be, or was, made pertaining to the trial court\u2019s failure to make a ruling on the issue. As previously stated, the scope of review on appeal is limited to those assignments of error set forth in the record on appeal. N.C. R. App. P. 10(a) (2006). To properly preserve a question for appellate review a party must request, and receive, a ruling on the question from the trial court. N.C. R. App. P. 10(b)(1) (2006). As this issue was not before the trial court, the trial court could not have made a ruling on it. Accordingly, this matter is not properly before this Court.\n\u201cIt is not the role of the appellate courts to render advisory opinions in matters that are not properly before them.\u201d Carolinas Med. Ctr. v. Employers & Carriers Listed in Exhibit A, 172 N.C. App. 549, 554, 616 S.E.2d 588, 591 (2005) (citing Wiggins v. Pyramid Life Ins. Co., 3 N.C. App. 476, 478, 165 S.E.2d 54, 56 (1969)). The question of whether BMA\u2019s action could properly be brought before the OAH is not properly before this Court and to address that issue would result in the rendering of an advisory opinion. Accordingly, the merits of this argument are not considered.\nBecause we have determined that the trial court did not err in granting summary judgment in favor of defendants DFS and Planning Section and defendant-intervenors TRC and HSM on sovereign immunity grounds, it is unnecessary to reach BMA\u2019s remaining assignments of error.\nAffirmed.\nJudge SMITH concurs.\nJudge TYSON dissents in a separate opinion.", "type": "majority", "author": "JACKSON, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion affirms the trial court\u2019s grant of summary judgment in favor of defendants and defendant-intervenors and holds that Bio-Medical Applications of North Carolina, Inc.\u2019s (\u201cBMA\u201d) claims, and judicial review thereof, are barred by sovereign immunity. Because sovereign immunity does not bar judicial review of BMA\u2019s claims, I vote to reverse the trial court\u2019s order. I respectfully dissent.\nI. Background\nOn 1 July 2004, North Carolina Department of Health and Human Services, Division of Facility Services (\u201cDFS\u201d) published the July 2004 Semiannual Dialysis Report (\u201cSDR\u201d) which determined a need for ten additional dialysis stations in Wake County as a result of data provided by the Kidney Council to North Carolina Department of Health and Human Services, Division of Facility Services, Medical Facilities Planning Section (\u201cthe Planning Section\u201d). On 1 July 2004, Jim Swann (\u201cSwann\u201d), Regional Director of Health Services for BMA, contacted Jim Keene (\u201cKeene\u201d), a planner with the Planning Section. Swann noted an error in the data which indicated fifty-two patients were receiving services at BMA\u2019s Fuquay-Varina dialysis facility, when the actual census was only fifty-one patients.\nBut for the Kidney Council\u2019s error, no additional need determination would have occurred, and the utilization of existing dialysis stations would have remained below eighty percent. Keene recalculated the dialysis station need, but failed to make any changes in the SDR based on the corrected data Swann provided. On 2 July 2004, Swann contacted the Kidney Council, which acknowledged the correct census was fifty-one patients. Later that day, Swann spoke with Keene to see whether the Kidney Council had contacted him to correct the miscalculation. Swann discovered the Kidney Council had not yet contacted Keene.\nOn 13 July 2004, the Kidney Council contacted Swann, confirmed that the reported patient census was erroneous, and stated it would contact the Planning Section. On 16 July 2004, Jenna Krisher, the Executive Director of the Kidney Council, sent an e-mail to Keene admitting the error and stated the correct patient census for BMA\u2019s Fuqu\u00e1y-Varina facility was fifty-one patients as of 31 December 2003.\nOn 19 July 2004, Swann sent a letter to Keene and requested DFS amend the SDR to reflect the actual census of fifty-one patients. On 20 July 2004, Keene responded in a letter and stated in pertinent parts:\n[T]he Agency relies on data provided by the Southeastern Kidney Council (SEKC) for the \u201cSemiannual Dialysis Reports (SDR).\u201d The timeline for production of each issue of that report is established in the State Medical Facilities Plan. The timeline for the \u201cJuly 2004 SDR\u201d indicated that data for the period ending December 31, 2003 would be reported by the SEKC on May 12, 2004 for the report to be published on July 1, 2004. The Agency must adhere to this timeline.\n[T]he current Agency practice regarding revision of need determinations based on changes in inventory, a different but parallel issue, does not allow a need determination to be \u201creduced if the relevant inventory is adjusted upward 60 days or less prior to the applicable \u2018Certificate of Need Application Due Date.' \u201d Applications for need determinations in the \u201cJuly 2004 SDR\u201d are due on September 15, 2004. Even if an amendment was recommended, there is not sufficient time for 60 days advance notice to other interested parties.\nThe Agency will adhere to the timelines as published in the State Medical Facilities Plan.\n(Emphasis supplied).\nUnder the July 2004 SDR, the due date for Certificate of Need (\u201cCON\u201d) Applications was 15 September 2004, with a scheduled 1 October 2004 review date. DFS failed to amend the July 2004 SDR, and began accepting applications for CONs. BMA filed suit against defendants seeking a declaratory judgment, preliminary and permanent injunctions, and petition for writ of mandamus. On 13 September 2002, Judge Howard Manning issued a temporary injunction, which \u201cprohibited [defendants] from issuing a certificate of need to any person for the development or operation of any dialysis stations in Wake County as a result of the [ten]-station county need determination set forth in the July 2004 SDR . . . .\u201d\nOn 16 November 2004, Judge Henry W. Hight, Jr., converted defendants\u2019 Rule 12(b)(1) motion to dismiss into a motion for summary judgment, granted summary judgment in favor of defendants, and dismissed BMA\u2019s claims for lack of subject matter jurisdiction due to sovereign immunity. Plaintiff appeals.\nII. Issues\nOn appeal, BMA argues: (1) the trial court erred in dismissing its claims based on the doctrine of sovereign immunity; (2) the Planning Section abused its discretion in failing to amend the SDR; (3) the Governor was not the person or entity with the authority to amend the SDR; (4) the trial court erred in converting defendants\u2019 motion to dismiss to a motion for summary judgment; (5) BMA\u2019s claims are not moot; and (6) if not properly before the trial court, BMA\u2019s action may be brought before the Office of Administrative Hearings.\nThe majority\u2019s opinion erroneously affirms the trial court\u2019s grant of summary judgment on the grounds of sovereign immunity.\nIII. Standing\nA. \u201cPerson Aggrieved\u201d\nUnder N.C. Gen. Stat. \u00a7 150B-43 (2005):\n[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article, in which case the review shall be under such other statute. Nothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.\n(emphasis supplied).\nA \u201cperson aggrieved\u201d is defined as \u201cany person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.\u201d N.C. Gen. Stat. \u00a7 150B-2(6) (2005); see Carter v. N.C. State Bd. of Registration, 86 N.C. App. 308, 313, 357 S.E.2d 705, 708 (1987) (a person aggrieved means one who is adversely affected in respect to legal rights, or is suffering from an infringement or denial of legal rights).\nBMA is an aggrieved party because BMA\u2019s in-center dialysis services are adversely affected by the Planning Section\u2019s refusal to amend the SDR. DFS illegally allowed CON applications to be filed when the utilization of dialysis stations remained below eighty percent.\nB. \u201cContested Case\u201d\nA contested case is defined as:\nan administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person\u2019s rights, duties, or privileges, including licensing or the levy of a monetary penalty. \u201cContested case\u201d does not include rulemaking, declaratory rulings, or the award or denial of a scholarship, a grant, or a loan.\nN.C. Gen. Stat. \u00a7 150B-2(2) (2005); see Davis v. Hiatt, 326 N.C. 462, 465, 390 S.E.2d 338, 340 (1990) (The petitioner, whose driving privilege was mandatorily suspended under N.C. Gen. Stat. \u00a7\u00a7 20-17(2) and 20-19(e), did not have the right to appeal under this Chapter. However, the superior court could review the actions of the Commissioner by issuing a writ of certiorari.).\nBMA appeals from a contested case because the Planning Section\u2019s failure to amend the SDR affects BMA\u2019s rights, duties, and privileges in the required utilization of in-center dialysis services. All parties stipulated BMA exhausted any administrative remedies available to adjudicate the issues raised in its complaint.\nBMA correctly invoked judicial remedies available under the statutes and case law to test the validity of DFS\u2019s administrative action and inaction. N.C. Gen. Stat. \u00a7 150B-43. BMA has standing under N.C. Gen. Stat. \u00a7 150B, The Declaratory Judgment Act, N.C. Gen. Stat. \u00a7 1-254, and established case law to assert these claims and the trial court possessed jurisdiction to review and rule on BMA\u2019s claims. See Bland v. City of Wilmington, 278 N.C. 657, 659, 180 S.E.2d 813, 815 (1971) (The Declaratory Judgment Act permits any person affected by a statute or municipal ordinance to obtain a declaration of his rights thereunder.).\nIV. Standard of Review\nThe trial court converted defendants\u2019 motion to dismiss into a motion for summary judgment by reviewing affidavits and other documents outside of the pleadings. See N.C.R. Civ. P. 56(c) (2005); Stanback v. Stanback, 297 N.C. 181, 205, 254 S.E.2d 611, 627 (1979) (a motion to dismiss for failure to state a claim under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) was converted to a motion for summary judgment when matters outside the pleadings were presented to and not excluded by the court).\nThe movant for summary judgment has the burden of establishing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Hines v. Yates, 171 N.C. App. 150, 157, 614 S.E.2d 385, 389 (2005). The movant can meet the burden by either: (1) Proving that an essential element of the opposing party\u2019s claim is nonexistent or (2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim. Id.\nWhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\nId. \u201cOn appeal, an order allowing summary judgment is reviewed de novo.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).\nV. Sovereign Immunity\nThe majority\u2019s opinion holds the trial court properly granted summary judgment because it was without subject matter jurisdiction under the doctrine of sovereign immunity. I disagree.\nIt is well-established that a state and its agencies may not be sued unless sovereign immunity is waived. Guthrie v. State Ports Authority, 307 N.C. 522, 534, 299 S.E.2d 618, 625 (1983). \u201c[North Carolina] has expressly waived sovereign immunity for various types of civil actions.\u201d Ferrell v. Dep\u2019t of Transp., 334 N.C. 650, 654, 435 S.E.2d 309, 312 (1993); see, e.g., N.C. Gen. Stat. \u00a7 143-135.3(d) (2005) (permitting suit for certain contract claims after procedural remedies are exhausted).\nOur Supreme Court has held that the State may also implicitly waive its immunity through conduct. See Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 423-24 (1976) (The State implicitly consented to the suit when it entered into a valid contract); see also N.C. Gen. Stat. \u00a7 143-291(a) (2005) (sovereign immunity waived by enactment of the North Carolina Tort Claims Act: \u201cIf the Commission finds that there was negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages that the claimant is entitled to be paid[.]\u201d); Bell Arthur Water Corp. v. N.C. Dep\u2019t of Transp., 101 N.C. App. 305, 310, 399 S.E.2d 353, 356 (The State implicitly waived immunity by law requiring DOT to compensate injured party), disc. rev. denied, 328 N.C. 569, 403 S.E.2d 507 (1991).\nA. Ministerial versus Discretionary Duties\nNorth Carolina case law distinguishes between discretionary duties and ministerial duties under the immunity doctrine. \u201cDiscretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are \u2018absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.\u2019 \u201d Meyer v. Walls, 347 N.C. 97, 113, 489 S.E.2d 880, 889 (1997) (quoting Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 235-36, disc. rev. denied, 327 N.C. 634, 399 S.E.2d 121 (1990)).\nSovereign, governmental, or public officer immunity generally only applies to discretionary actions, not to ministerial actions. See Miller v. Jones, 224 N.C. 783, 787, 32 S.E.2d 594, 597 (1945) (officer charged with discretionary duty cannot be liable for negligence, but officer charged with ministerial duty can be liable for misfeasance); Hipp v. Ferrall, 173 N.C. 167, 170, 91 S.E. 831, 832 (1917) (distinguishing between discretionary and ministerial actions, holding that a public officer charged with a ministerial duty may be personally liable for negligent breach).\nThe proper action to require an agency to perform a ministerial duty is a declaratory judgment and a petition for writ of mandamus, both of which were asserted by BMA in its complaint. N.C. Gen. Stat. \u00a7 1-254 (2005); see Bland v. City of Wilmington, 278 N.C. 657, 659, 180 S.E.2d 813, 815 (1971) (the declaratory judgment act permits any person affected by a statute or municipal ordinance to obtain a declaration of his rights thereunder); see also Ragan v. County of Alamance, 330 N.C. 110, 112, 408 S.E.2d 838, 839 (1991) (\u201c[A] superior court has the inherent power to issue a writ of mandamus to the County Commissioners requiring them to provide adequate court facilities.\u201d).\nUnder N.C. Gen. Stat. \u00a7 131E-177(1) (2005):\nthe Department of Health and Human Services is designated as the State Health Planning and Development Agency for the State of North Carolina, and is empowered to exercise the following powers and duties: (1) To establish standards and criteria or plans required to carry out the provisions and purposes of this Article and to adopt rules pursuant to Chapter 150B of the General Statutes, to carry out the purposes and provisions of this Article.\n(Emphasis supplied).\nWhen reviewing criteria for a CON, \u201c[t]he Department is authorized to adopt rules for the review of particular types of applications that will be used_\u201d N.C. Gen. Stat. \u00a7 131E-183(b) (2005).\nUnder both Chapter 150B, Administrative Procedure Act, and Chapter 131E, Certificate of Need, the North Carolina Administrative Code delegates rule making to defendants and sets out the procedure to be used for changes in need determinations. N.C. Admin. Code tit. 10A, 14B.0155(b) (2006); N.C. Admin. Code tit. 10A, 14A.0102 (2006). The plain language of the Administrative Code states:\n(1) The need determinations in 10A NCAC 14B.0156 through 10A NCAC .0181 shall be revised continuously by the Medical Facilities Planning Section throughout the calendar year to reflect all changes in the inventories of:\n(D) dialysis stations\nas those changes are reported to the Medical Facilities Planning Section. However, need determinations in 10A NCAC 14B .0156 through 10A NCAC 14B .0181 shall not be reduced if the relevant inventory is adjusted upward 30 days or less prior to the first day of the applicable review period.\n(2) Inventories shall be updated to reflect:\n(G) corrections of errors in the inventory as reported to the Medical Facilities Planning Section.\n(4) Need determinations resulting from changes in inventory shall be available for a review period to be determined by the Certificate of Need Section, but beginning no earlier than 60 days from the date of the action identified in Subparagraph (b)(2) of this Rule, except for dialysis stations which shall be determined by the Medical Facilities Planning Section and published in the next Semiannual Dialysis Report. Notice of the scheduled review period for the need determination shall be mailed by the Certificate of Need Section to all persons on the mailing list for the State Medical Facilities Plan, no less than 45 days prior to the due date for submittal of the new applications.\nN.C. Admin. Code tit. 10A, 14B.0155(b)(l)-(4) (2006) (emphasis supplied).\nWe apply the rules of statutory construction when interpreting a statute, ordinance, or administrative code. Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979). The principal rule of statutory construction is the legislature\u2019s intent controls. Id. A statute that is clear and unambiguous must be construed using its plain language. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). Here, the Administrative Code\u2019s plain language states that the Planning Section shall continuously revise need determinations. Under the statutes and the Administrative Code, the Planning Section lacked discretion to determine whether to amend the SDR and was ministerially required to correct and update inventories \u201cto reflect. . . .(G) corrections of errors in the inventory as reported . . . .\u201d N.C. Admin. Code tit. 10A, 14B.0155(b)(2)(g). The .Administrative Code\u2019s mandatory language requires that the Planning Section shall perform ministerial duties. Id.\nIn addition to failing to perform a ministerial act required by the Administrative Code regulations, DFS and the Planning Section also waived any defense of sovereign immunity. In their answer to BMA\u2019s complaint, defendants stated:\n20. Defendants admit that had the final, audited count of in-center dialysis patients that was reported by the [Kidney Council] to CMS shown that there were 51 patients at BMA\u2019s Fuquay Varina facility as of December 31, 2003, there would not have been a need determination for ten dialysis stations in Wake County reported in the July 2004 SDR.\n24. Defendants admit that Keene did confirm to Swann that Swann was using the correct mathematical steps to calculate need, that Keene told Swann that he could not accept patient data from Swann and that Keene stated that all data for the SDR must come through the [Kidney Council].\n27. Director Fitzgerald... stated that he was not inclined to seek an amendment to the July 2004 SDR, although he had not made his final decision on the matter at that time.\n30. Defendants admit that the Planning Section received the e-mail attached as Exhibit B to the Complaint.\n48. Defendants admit that after publication of the July, 2004 SDR, the Planning Section was contacted by the [Kidney Council] and informed that [the Kidney Council] had received additional information which indicated that 51 patients were receiving dialyses at BMA\u2019s Fuquay-Varina facility on December 31, 2003.\n51. Defendants admit that had the audited data reported to CMS by the [Kidney Council] shown 51 patients dialyzing at BMA\u2019s Fuquay Varina facility as of December 31, 2003, there would have been no need determination for dialysis stations in Wake. County reported in the July 2004 SDR.\n(Emphasis supplied).\nDefendants admitted they received the corrected census count from the Kidney Council for fifty-one patients on 2 July 2004. Defendants also admitted: (1) the Kidney Council was the sole provider of this information; (2) they received revised information in July 2004; (3) more than thirty days prior to the first date of review for the CON applications; (4) and within forty-five days prior to the due date for submittal of the new CON applications. See N.C. Admin. Code tit. 10A, 14B.0155(b) (2006). Defendants also admitted no need was shown for additional dialysis stations in Wake County, given the corrected census count of fifty-one patients and a utilization rate below eighty percent for existing dialysis stations.\nUnder the plain language of the Administrative Code, defendants were ministerially required to continuously revise need determinations. See N.C. Admin. Code tit. 10A, 14B.0155(b) (\u201cthe need determinations . . . shall be revised continuously by the . . . Planning Section throughout the calendar year . . . .\u201d (emphasis supplied)). The execution of this specific ministerial duty arose from fixed and admitted facts and regulations pursuant the Administrative Code.\nDefendants\u2019 duty to revise need determinations was not discretionary and did not invoke immunity. Defendants\u2019 refusal to correct the erroneous data and cancel the application process was unlawful, arbitrary, and capricious. The trial court erred in granting summary judgment in favor of defendants based upon sovereign immunity.\nVI. The Governor\u2019s Authority to Amend\nThe majority\u2019s opinion states, \u201c[p]ursuant to Frye, the Governor has the authority to amend the SMFP .... [T]he Governor is the proper party with the authority to amend the SDR.\u201d\nThe Frye Court states, \u201cthe Governor has the authority to make substantive changes by amending the SMFP to ensure that its provisions are properly executed under the statutes.\u201d Frye Regional Medical Facility v. Hunt, 350 N.C. 39, 44, 510 S.E.2d 159, 162-62 (1999). Frye does not state that the Governor has the sole authority to amend the SMFP, or that his authority is required to amend an SDR. The reliance of majority\u2019s opinion on Frye to support its conclusion is misplaced. Neither Frye nor the statutes contemplate or require BMA to petition the Governor to amend the SDR prior to seeking and obtaining judicial relief.\nThe Administrative Code states, \u201c[t]he ne\u00e9d determinations . . . shall be revised continuously by the Medical Facilities Planning Section throughout the calendar year to reflect all changes in the inventories of . . . dialysis stations.\u201d N.C. Admin. Code tit. 10A, 14B.0155(b)(l)(D) (2006) (emphasis supplied). Under the plain language of the Administrative Code, the Planning Section has the authority, a duty, and \u201cshall\u201d continuously revise the SDR. Id.\nVII. Conclusion\nThe practical effect of the majority\u2019s decision is to remove from judicial review and remedy a state administrative agency\u2019s decision under the guise of sovereign immunity. N.C. Admin. Code tit. 10A, 14B.0155(b). The North Carolina General Assembly expressly waived sovereign immunity by enacting N.C. Gen. Stat. \u00a7 150B-43 and the Declaratory Judgment Act, N.C. Gen. Stat. \u00a7 1-254. A state agency cannot assert sovereign immunity as a defense to claims by an aggrieved party adversely affected by that agency\u2019s action or inaction. Judge Manning expressly recognized the availability of judicial review and issued an injunction, a judicial remedy, to prevent DFS from proceeding to issue certificates of need based on erroneous data which generated the need. Nothing in the record shows DFS defended or objected to entry of this injunction based upon an assertion of sovereign immunity.\nThe Administrative Code clearly requires defendants to correct the SDR when erroneous data is timely brought to its attention as a ministerial duty. BMA\u2019s requested remedies of declaratory judgment and petition for writ of mandamus are expressly recognized by N.C. Gen. Stat. \u00a7 150B-43, the Declaratory Judgment Act, and prior precedents.\nBMA\u2019s requested review and remedies have been recognized for centuries as an inherent right and authority of the Judicial Branch and under the North Carolina Constitution to compel a governmental agency to perform a ministerial duty owed to BMA. See N.C. Const., Art. I, \u00a7 18 (\u201cAll courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.\u201d); Marbury v. Madison, 5 U.S. 137, 163, 2 L. Ed. 60, 69 (1803) (\u201cwhere there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded\u201d); Augur v. Augur, 356 N.C. 582, 586-87, 573 S.E.2d 125, 129 (2002) (\u201cWe believe it more consistent with the [declaratory judgment] statute to vest [trial] courts with discretion in the first instance, because facts bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within their grasp. . . .\u201d).\nBMA immediately presented DFS with undisputed proof of the erroneous data. DFS admitted, using the corrected data, it possessed neither power nor authority under the statutes or Administrative Code to solicit CON applications for additional dialysis stations in Wake County, if the utilization rate was below eighty percent. The corrected data was furnished to DFS well within the time period required in the Administrative Code to cancel the solicitation. See N.C. Admin. Code tit. 10A, 14B.0155(b). DFS was required to correct the error and to cancel the solicitation for CON applications as a ministerial duty.\nIt is undisputed that DFS received the corrected patient census long before the Administrative Code and statutes would have allowed additional beds to be added under a new CON.\nThe Judicial Branch and the General Court of Justice possesses the statutory jurisdiction to review defendants decision and power to compel defendants to comply with the statutes and Administrative Code to correct its admitted error. Sovereign Immunity does not remove jurisdiction to prevent the court\u2019s review of BMA\u2019s claims. The majority\u2019s opinion is an unprecedented abdication of the court\u2019s essential statutory and constitutional duty to provide judicial review .and remedies to BMA\u2019s claims.\nThe trial court erred in granting summary judgment for defendants based on sovereign immunity. The trial court\u2019s order should be reversed. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Kennedy Covington Lobdell & Hickman, LLP, by Gary S. Qualls, plaintiff-appellant.", "Attorney General Roy A. Cooper, III, by Assistant Attorney General Thomas M. Woodward, for NCDHHS Division of Facility Services and NCDHHS Division of Facility Services Medical Facilities Planning Section, defendants-appellees.", "Poyner & Spruill LLP, by Thomas R. West and Pamela A. Scott, for Total Renal Care of North Carolina. LLC, defendant-intervenor-appellee; and Bode, Call & Stroupe, L.L.P., by S. Todd Hemphill, for Health Systems Management, Inc., defendant-intervenor-appellee." ], "corrections": "", "head_matter": "BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., Plaintiff v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Defendant, and NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, MEDICAL FACILITIES PLANNING SECTION, Defendant, and TOTAL RENAL CARE OF NORTH CAROLINA, LLC and HEALTH SYSTEMS MANAGEMENT, INC., Defendant-Intervenor\nNo. COA05-294\n(Filed 19 September 2006)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error\nAlthough plaintiff contends the trial court erred by dismissing its claims under the doctrine of sovereign immunity, the issue of sovereign immunity was not properly before the Court of Appeals because: (1) an appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject mater jurisdiction; and (2) there was no ruling by the trial court on the issue of personal jurisdiction, and there was no assigned error.\n2. Immunity\u2014 sovereign \u2014 summary judgment\nSovereign immunity may properly be addressed under a grant of summary judgment, because: (1) defendant may show that summary judgment is proper by proving that an essential element of plaintiff\u2019s case is nonexistent, showing through discovery that plaintiff cannot produce evidence to support an essential element of his claim, or showing that plaintiff cannot surmount an affirmative defense which would bar the claim; and (2) sovereign immunity is an affirmative defense.\n3. Hospitals and Other Medical Facilities; Immunity\u2014 amendment of dialysis report \u2014 sovereign immunity\nSovereign immunity precluded claims by plaintiff, the sole provider of in-center kidney dialysis services in Wake County, seeking to compel the Medical Facilities Planning Section of the Division of Facilities Services of the Department of Health and Human Services to amend the July 2004 Semiannual Dialysis Report (SDR) which concluded that ten additional dialysis stations were needed in the county, to correct erroneous patient census data so as to support a conclusion that no additional dial- . ysis stations were needed, and to prevent the acceptance of any Certificate of Need (CON) applications based upon the unamended July 2004 SDR, because: (1) sovereign immunity for plaintiffs claims was not waived by N.C.G.S. \u00a7 150B-43 of the Administrative Procedure Act since plaintiff was not a person aggrieved by a final administrative decision in a contested case, and plaintiff failed to exhaust its administrative remedies by requesting that the SDR be amended by the Governor, who has the authority to amend the State Medical Facilities Plan and thus to amend the SDR; (2) sovereign immunity was not waived by the Certificate of Need (CON) statute, N.C.G.S. \u00a7 131E-188, since there has been no decision by the Department of Health and Human Services regarding the inssuance, denial or withdrawal of a CON, even if the SDR would set in motion the process that would ultimately result in the granting or denial of a CON; and (3) plaintiff cannot overcome defendant\u2019s sovereign immunity on constitutional grounds since it has no constitutional right to be protected from lawful competition and may apply for a CON for the additional ten dialysis stations.\nJudge Tyson dissenting.\nAppeal by plaintiff from order entered 16 November 2004 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 2 November 2005.\nKennedy Covington Lobdell & Hickman, LLP, by Gary S. Qualls, plaintiff-appellant.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Thomas M. Woodward, for NCDHHS Division of Facility Services and NCDHHS Division of Facility Services Medical Facilities Planning Section, defendants-appellees.\nPoyner & Spruill LLP, by Thomas R. West and Pamela A. Scott, for Total Renal Care of North Carolina. LLC, defendant-intervenor-appellee; and Bode, Call & Stroupe, L.L.P., by S. Todd Hemphill, for Health Systems Management, Inc., defendant-intervenor-appellee." }, "file_name": "0483-01", "first_page_order": 515, "last_page_order": 536 }