{ "id": 3733741, "name": "THE STATE OF NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE, Plaintiff v. ANNA MARIE THOMPKINS, Executrix of the Estate of Sallie Dye Anthony, Defendant", "name_abbreviation": "State of North Carolina Department of Health & Human Services v. Thompkins", "decision_date": "2010-07-06", "docket_number": "No. COA09-1137", "first_page": "285", "last_page": "290", "citations": [ { "type": "official", "cite": "205 N.C. App. 285" } ], "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": "633 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636464, 12636463 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/633/0678-02", "/se2d/633/0678-01" ] }, { "cite": "630 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635851 ], "year": 2006, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0200-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "447 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "374" } ], "opinion_index": 0 }, { "cite": "337 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549910 ], "year": 1994, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0667-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "418 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "653" }, { "page": "654" }, { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "332 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507867 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "8" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0001-01" ] }, { "cite": "360 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792160, 3798656, 3794250, 3791503, 3793488, 3786647, 3795032, 3796126 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0532-07", "/nc/360/0532-06", "/nc/360/0532-03", "/nc/360/0532-02", "/nc/360/0532-04", "/nc/360/0532-08", "/nc/360/0532-05", "/nc/360/0532-01" ] }, { "cite": "177 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301922 ], "year": 2006, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0629-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] } ], "analysis": { "cardinality": 673, "char_count": 14548, "ocr_confidence": 0.768, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.10949287004763598 }, "sha256": "ff08be7e5ccdbf71151c4cad6399fef91b850072b92fd45d0d5268f1d1057693", "simhash": "1:0b097b26f4ef64c1", "word_count": 2384 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and ROBERT N. HUNTER, JR. concur." ], "parties": [ "THE STATE OF NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE, Plaintiff v. ANNA MARIE THOMPKINS, Executrix of the Estate of Sallie Dye Anthony, Defendant" ], "opinions": [ { "text": "ERVIN, Judge.\nDefendant Anna Marie Thompkins, Executrix of the Estate of Sallie Dye Anthony, appeals from an order awarding summary judgment in favor of the Plaintiff Division of Medical Assistance of the North Carolina Department of Health and Human Services in the amount of $52,575.14. After careful consideration of Defendant\u2019s challenges to the trial court\u2019s judgment in light of the record and the applicable law, we affirm the trial court\u2019s judgment.\nMs. Anthony died on 27 August 2004. Prior to her death, Plaintiff expended a total of $52,575.14 in Medicaid assistance in connection with her nursing home and hospital expenses.\nOn 5 July 2005, Defendant contacted Ida Henry, an employee of Plaintiff\u2019s Estate Recovery Section, and inquired about the \u201cprocess of resolving the debt owed to the Division of Medical Assistance.\u201d According to Ms. Henry, Defendant stated that Ms. Anthony had owned real property at the time of her death that had sufficient value to satisfy the debt in the event that it was sold and that she would contact the tenants who currently occupied the property to ascertain their interest in purchasing it.\nOn 1 July 2008, Defendant qualified as Executrix of Ms. Anthony\u2019s estate. A notice to Ms. Anthony\u2019s creditors was published on 5 July 2008. Plaintiff never received a copy of the notice to creditors; Defendant did not claim to have sent one to Plaintiff.\nOn 10 July 2008, Ms. Anthony\u2019s devisees sold the real property that Ms. Anthony owned at the time of her death to High Point University for $110,000. The deed reflecting this transaction was recorded at Book 6922, Page 1937 in the Guilford County Register of Deeds\u2019 office on 5 August 2008. With the exception of $6,079.62 applied toward funeral bills, legal fees, and administrative expenses, the proceeds from the sale of the property were retained by Ms. Anthony\u2019s devisees. On 10 November 2008, Defendant filed a final accounting with the Office of the Clerk of Superior Court of Guilford County, North Carolina, which was approved on 8 December 2008. Upon approval of final account, the personal representative was discharged.\nBy means of a letter dated 8 December 2008, Plaintiff transmitted a claim for reimbursement of the cost of the medical and skilled care services provided to Ms. Anthony to the Clerk of Superior Court of Guilford County. Defendant denied Plaintiff\u2019s claim on the grounds that it had not been presented within the time limitations specified in N.C. Gen. Stat. \u00a7 28A-19-3(f).\nOn 31 March 2009, Plaintiff filed a complaint alleging that Ms. Anthony \u201chad received Medicaid services in the form of nursing home services and hospital services\u201d in the total amount of $52,575.14 and that \u201c[t]he provided services subjected [decedent\u2019s] estate to the Estate Recovery Plan of the State of North Carolina pursuant to N.C. Gen. Stat. \u00a7 108A-70.5 . ...\u201d As a result, Plaintiff alleged that it was entitled to the entry of judgment against Defendant in the amount of $52,575.14, plus penalties and interest. In an answer filed on 10 June 2009, Defendant asserted as an affirmative defense, among other things, that Plaintiff\u2019s claim was barred by the provisions of N.C. Gen. Stat. \u00a7 28A-19-3(f). On the same date, Defendant filed a motion for summary judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 56. On 10 July 2009, the trial court entered an order granting summary judgment in favor of Plaintiff on the grounds that, \u201c[i]n order for the governmental purpose to be barred by a statute of limitations, the statute must expressly include the State in the limitation,\u201d and that \u201c[t]he provisions of N.C. Gen. Stat. \u00a7 28A-19-3(f), cited by Defendant as the applicable statute of limitations, do not expressly include the State in the limitation.\u201d The trial court also concluded that N.C. Gen. Stat. \u00a7 28A-19(3)(a) and N.C. Gen. Stat. \u00a7 28A-19-3(b), \u201cwhich are referenced in subsection (f), also do not expressly include the State in the limitation.\u201d As a result, the trial court entered \u201cjudgment against Defendant in the amount of $52,575.14,\u201d with each party to \u201cbear its own costs in relation to this action.\u201d\nOn appeal, Defendant argues that the trial court erred in granting summary judgment to Plaintiff and denying Defendant\u2019s summary judgment. More specifically, Defendant contends that the trial court erroneously entered summary judgment in favor of Plaintiff based upon a misapplication of the doctrine of nullum tempus occurritt regi. We disagree.\nSummary judgment is appropriate if \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2007). In considering a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citation omitted). We review a trial court\u2019s decision to grant summary judgment using a de novo standard of review. Durham Land Owners Ass\u2019n v. County of Durham, 177 N.C. App. 629, 632, 630 S.E.2d 200, 202, disc. review denied, 360 N.C. 532, 633 S.E.2d 678 (2006).\nThe doctrine of nullum tempus occurritt regi \u201csurvives in North Carolina and applies to exempt the State and its political subdivisions from the running of time limitations unless the pertinent statute expressly includes the State.\u201d Rowan County v. U.S. Gypsum Co., 332 N.C. 1, 8, 418 S.E.2d 648, 653 (1992). The Supreme Court has adopted a two-pronged test for use in determining whether the doctrine nullum tempus occurritt regi applies to cases in which the State was a party in order to reconcile the doctrine with N.C. Gen. Stat. \u00a7 1-30, \u201cwhich provides that limitations apply to the State \u2018in the same manner as to actions by or for the benefit of private parties.\u2019 \u201d Rowan County, 332 N.C. at 19, 418 S.E.2d at 654.\nIf the function at issue is governmental, time limitations do not run against the State or its subdivisions unless the statute at issue expressly includes the State. If the function is proprietary, time limitations do run against the State and its subdivisions unless the statute at issue expressly excludes the State.\nId. (emphasis in original). Since Defendant has not argued that the State\u2019s claim arises from a non-governmental activity and since she has argued that the relevant statutory provision expressly includes the State, she has implicitly conceded that the claim that the State has advanced here arises from a governmental function. In this case, Defendant contends that the time limitation has run because the applicable provision, N.C. Gen. Stat. \u00a7 28A-19-3(a), \u201cexpressly includes the State.\u201d As a result, the ultimate issue before us revolves around the proper construction of N.C. Gen. Stat. \u00a7 28A-19-3(a).\nN.C. Gen. Stat. \u00a7 28A-19-3(a) provides, in pertinent part, that:\nAll claims against a decedent\u2019s estate which arose before the death of the decedent, except contingent claims based on any warranty made in connection with the conveyance of real estate and claims of the United States and tax claims of the State of North Carolina and subdivisions thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, secured or unsecured, founded on contract, tort, or other legal basis, which are not presented to the personal representative or collector pursuant to [N.C. Gen. Stat. \u00a7] 28A-19-1 by the date specified in the general notice to creditors as provided for in [N.C. Gen. Stat. \u00a7] 28A-14-l(a) or in those cases requiring the delivery or mailing of notice as provided for in [N.C. Gen. Stat. \u00a7] 28A-14-l(b), within 90 days after the date of the delivery or mailing of the notice if the expiration of said 90 day period is later than the date specified in the general notice to creditors, are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent.\nAccording to Defendant, N.C. Gen. Stat. \u00a7 28A-19-3(a) begins by including \u201call claims\u201d within its coverage. As a result of the fact that N.C. Gen. Stat. \u00a7 28A-19-3(a) then excludes \u201ctax claims of the State of North Carolina and subdivisions thereof,\u201d Defendant argues that the statute covers all other claims asserted on behalf of the State, including the type of claim advanced by Plaintiff in this case. According to Plaintiff, this construction of N.C. Gen. Stat. \u00a7 28A-19-3(a) is consistent with the underlying policy justification for statutes of this nature, which is that \u201cin the normal course of events there should be a specified time period after which claims against an estate can no longer be filed, even if the creditor is the State of North Carolina or one of its subdivisions.\u201d Furthermore, Defendant contends that including Plaintiff\u2019s claim within the scope of the claims barrable by N.C. Gen. Stat. \u00a7 28A-19-3(a) does not impose an unfair burden on Plaintiff given the fact that it will learn of a beneficiary\u2019s death when the flow of benefit payments stops and given that it has the authority to obtain the appointment of a personal representative pursuant to N.C. Gen. Stat. \u00a7 28A-5-2(b)(l) against whom its claim for reimbursement can be asserted. We do not find Defendant\u2019s construction of argument to be persuasive.\nThe fundamental problem with Defendant\u2019s argument is that it rests upon an inference of inclusion, rather than an express inclusion of the sort contemplated by Rowan County. The American Heritage Dictionary 2d College Edition defines \u201cexpress\u201d as \u201cdefinitely and explicitly stated;\u201d \u201cparticular;\u201d and \u201cspecific.\u201d A reference to \u201call claims\u201d is simply not an express reference to claims brought by the State. Nothing in N.C. Gen. Stat. \u00a7 28A-I9-3(a) \u201cexplicitly\u201d and \u201cspecifically\u201d states that claims by the State are subject to the claim presentation requirement created by that statutory provision. The only reference to claims brought by the State or other governmental agencies in N.C. Gen. Stat. \u00a7 28A-19-3(a) is the express exclusion for \u201ctax claims of the State and subdivisions thereof.\u201d Although Defendant\u2019s argument that this express exclusion of tax-related claims implies that all other governmental claims are included within the statutory bar, that argument rests on an implied rather than an express exclusion of the type required by Rowan County. As a result, given the General Assembly\u2019s failure to explicitly subject the State to the bar created by N.C. Gen. Stat. \u00a7 28A-19-3(a), we conclude under these facts that the trial court correctly determined that the \u201cdoctrine of nullum tempus occurritt regi exempts the State from any statute of limitation defense\u201d because the State was otherwise not \u201cexpressly included in the statute of limitation.\u201d Thus, the trial court\u2019s order should be, and hereby is, affirmed.\nAFFIRMED.\nJudges STROUD and ROBERT N. HUNTER, JR. concur.\n. Ms. Anthony\u2019s devisee\u2019s were Jamaal Ageel Thompkins, Tamara Anderson, LaShandra McClendon Denson, and Rodrigues Denson.\n. Although the Defendant raised as a defense N.C. Gen. Stat. \u00a7 28A-17-12(b) to the claims of the State, neither the trial court nor the parties have raised this issue on appeal. We have, therefore, not addressed the issues arising from the application of this statute.\n. Since Ms. Anthony\u2019s estate was opened more than three years after her death, the directly-applicable statutory provision is that set out in N.C. Gen. Stat. \u00a7 28A-19-3(f), which provides that \u201c [a]ll claims barrable under the provisions of [N.C. Gen. Stat. \u00a7 28A-19-3(a)] and [N.C. Gen. Stat. \u00a7 28A-19-3(b)] shall, in any event, be barred if first publication or posting of the general notice to creditors as provided for in [N.C. Gen. Stat. \u00a7] 28A-14-1 does not occur within three years after the death of the decedent.\u201d Given that N.C. Gen. Stat. \u00a7 28A-19-3(b) relates to claims \u201cwhich arise at or after the death of the decedent,\u201d that statutory provision has no relation to the present dispute. As a result, if the State\u2019s claim had been barrable under N.C. Gen. Stat. \u00a7 28A-19-3(a), the fact that more than three years had elapsed since Ms. Anthony\u2019s death would have prevented its assertion against Defendant even if no notice had been published or delivered.\n. Technically speaking, N.C. Gen. Stat. \u00a7 28A-19-3 is a \u201cnon-claim statute\u201d rather than a statue of limitation. Ragan v. Hill, 337 N.C. 667, 671, 447 S.E.2d 371, 374 (1994).\n. At one point in her brief, Defendant appears to acknowledge the inconsistency of this underlying policy argument with the Supreme Court\u2019s decision that North Carolina adheres to the doctrine of nullum tempus occurritt regi by commenting that, \u201c[i]f this appeal were before the Supreme Court[,] it would present an excellent fact situation for review of the Rowan County v. U.S. Gypsum, Co. decision ... .\u201d However, given that this Court is bound by the decisions of the Supreme Court, Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985), we are not, as Defendant implicitly acknowledges, in a position to entertain a challenge to the continuing validity of the doctrine in question. Thus, we will not address Defendant\u2019s policy argument in our opinion.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joel L. Johnson, for the State.", "Morgan, Herring, Morgan, Green and Rosenblutt, LLP, by John Haworth, for defendant-appellant." ], "corrections": "", "head_matter": "THE STATE OF NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE, Plaintiff v. ANNA MARIE THOMPKINS, Executrix of the Estate of Sallie Dye Anthony, Defendant\nNo. COA09-1137\n(Filed 6 July 2010)\nStatutes of Limitation and Repose\u2014 recovery of costs of Medicaid assistance \u2014 doctrine of nullum tempus occurritt regi\nThe trial court did not err by awarding summary judgment in favor of plaintiff Department of Health and Human Services in the amount of $52,575.14 for Medicaid assistance in connection with decedent\u2019s nursing home and hospital expenses based upon application of the doctrine of nullum tempus occurritt regi, which exempts the State and its political subdivisions from the running of time limitations on claims unless the pertinent statute expressly includes the State. The General Assembly failed to explicitly subject the State to the bar created by N.C.G.S. \u00a7 28A-19-3(a).\nAppeal by defendant from judgment entered 10 July 2009 by Judge Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 10 December 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Joel L. Johnson, for the State.\nMorgan, Herring, Morgan, Green and Rosenblutt, LLP, by John Haworth, for defendant-appellant." }, "file_name": "0285-01", "first_page_order": 313, "last_page_order": 318 }