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Inc. v. North Carolina Department of Health and Human Services, Division of Child Development

Court of Appeals of North Carolina

January 7, 2020

NANNY'S KORNER DAY CARE CENTER, INC., Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF CHILD DEVELOPMENT, Defendant.

          Heard in the Court of Appeals 17 October 2019.

          Appeal by Plaintiff from order entered 21 December 2018 by the North Carolina Industrial Commission. I.C. No. TA-26087

          Ralph T. Bryant, Jr., for Plaintiff-Appellant.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Charles Whitehead, for Defendant-Appellee.

          COLLINS, JUDGE.

         Nanny's Korner Day Care Center, Inc. ("Plaintiff"), appeals from order entered on 21 December 2018 by the North Carolina Industrial Commission dismissing Plaintiff's claim against the North Carolina Department of Health and Human Services, Division of Child Development ("Defendant"), under the North Carolina Tort Claims Act. Because Plaintiff's claim is barred by the statute of limitations, we affirm.

         I. Factual and Procedural History

         This is the third time the parties have been before this Court in the last five years. A detailed factual history of this case can be found at Nanny's Korner Day Care Ctr., Inc. v. N.C. Dep't of Health & Human Servs., 825 S.E.2d 34 ( N.C. Ct. App. 2019) ("Nanny's Korner II"). The facts relevant to this case are as follows:

         On 23 April 2010, Defendant notified Plaintiff that Defendant had decided to issue administrative disciplinary action based on substantiation by the Robeson County Department of Social Services that child abuse had occurred at Plaintiff's day care facility. Defendant then issued a notice of administrative action to Plaintiff on 15 June 2010, invoking disciplinary action. Plaintiff appealed Defendant's decision through the administrative appeal process, first to the Office of Administrative Hearings, then to Wake County Superior Court, and then to this Court. On 20 May 2014, this Court held that Defendant had violated Plaintiff's rights by not conducting an independent investigation into the alleged child abuse, and reversed Defendant's decision. Nanny's Korner Care Ctr. v. N.C. Dep't of Health & Hum. Servs., 234 N.C.App. 51, 64, 758 S.E.2d 423, 431 (2014) ("Nanny's Korner I").

         On 23 January 2017, Plaintiff filed a claim with the Industrial Commission under the Tort Claims Act, seeking $600, 000 in compensatory and consequential damages due to Defendant's negligent failure to conduct an independent investigation prior to initiating disciplinary action. Defendant responded by filing a motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on the ground, inter alia, that Plaintiff failed to file the tort affidavit within three years of Defendant's 15 June 2010 administrative action, as required by the Tort Claims Act. After a hearing on 19 April 2017, Deputy Commissioner Robert J. Harris issued an order on 4 May 2017, dismissing Plaintiff's claim with prejudice because the claim was barred by the statute of limitations. Plaintiff appealed to the Full Commission (the "Commission").

         The Commission conducted a hearing on 18 October 2017. On 21 December 2018, the Commission issued an order dismissing Plaintiff's claim with prejudice, holding that the claim was barred by the statute of limitations. The Commission concluded that "the time period for Plaintiff to bring a claim for damages under the Tort Claims Act began on 15 June 2010 and its Affidavit, filed on 23 January 2017, fell outside of the Tort Claims Act's three-year statute of limitations."

         Plaintiff timely filed notice of appeal to this Court.

         II. Discussion

         Plaintiff argues that the Commission erred by dismissing Plaintiff's claim as barred by the Tort Claims Act's three-year statute of limitations. Plaintiff contends that (1) the statute of limitations was tolled while Plaintiff exhausted administrative remedies; (2) the Court of Appeals' May 2014 decision in Nanny's Korner I signified Plaintiff's exhaustion of administrative remedies and, accordingly, marked the beginning of ...


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