State ex rel. Dept. of H.S. v. Broyles, 07C11713.

• Citation: 228 Or. App. 264,208 P.3d 519
• Decision Date: 13 May 2009
• Docket Number: A136521.,07C11713.
• Parties: STATE of Oregon, acting by and through the DEPARTMENT OF HUMAN SERVICES, Plaintiff-Appellant, v. Keith L. BROYLES, in his capacity as personal representative of the Estate of Morris William Broyles, Defendant-Respondent.
• Court: Court of Appeals of Oregon

208 P.3d 519

228 Or. App. 264

STATE of Oregon, acting by and through the DEPARTMENT OF HUMAN SERVICES, Plaintiff-Appellant, v. Keith L. BROYLES, in his capacity as personal representative of the Estate of Morris William Broyles, Defendant-Respondent.

07C11713.

A136521.

Court of Appeals of Oregon.

Argued and Submitted September 3, 2008.

Decided May 13, 2009.

[208 P.3d 520]

Karla H. Alderman, Assistant Attorney General, argued the cause for appellant. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Philip T. Kelley, Silverton, argued the cause for respondent. With him on the brief was Kelley & Kelley.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ORTEGA, Judge.

BREWER, C.J.

Plaintiff, the State of Oregon by and through the Department of Human Services (DHS), brought a claim against the estate of Keith Broyles pursuant to ORS 414.105(2) and ORS 411.795¹ to recover $80,113.95 in medical assistance payments that it made to Broyles between 1972 and 1991. Broyles died in 1991, but probate proceedings were not initiated until June 2006, when DHS filed its claim. Defendant, the personal representative of Broyles's estate, disallowed DHS's claim as untimely and required DHS to file a separate action against the estate. See ORS 115.155.² DHS initiated a proceeding in circuit court, and defendant moved for summary judgment, arguing that the claim was time barred. DHS's response was two-fold: (1) ORS 414.105 and ORS 411.795 do not contain a statute of limitations; rather the applicable statutes are ORS 115.008³ and ORS 115.005(2)(a), and (2) DHS complied with ORS 115.005(2)(a) by presenting its claim to the personal representative within four months of the initiation of probate proceedings.⁴

The trial court granted defendant's motion for summary judgment, concluding that ORS 115.008 barred DHS's claim. DHS appeals and assigns error to the trial court's grant of defendant's motion for summary judgment. There are no disputed material questions of fact and, thus, the decisive issue is whether defendant was entitled to prevail as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). That question is controlled by an interpretation of the relevant statutes. State v. Gaines, 346 Or 160, 171-72, 206 P.3d 1042 (2009). We conclude that DHS's claim is timely. Accordingly, we reverse.

Recovery of public assistance paid on behalf of a decedent pursuant to ORS 414.105(2) is carried out through the procedures set out in the probate code, chapter 115 of the Oregon Revised Statutes. See Dept. of Human Resources v. Payne, 157 Or.App. 612, 617, 970 P.2d 266 (1998) ("The claim provisions of the probate code simply provide the procedures by which claims and ensuing actions against the estate * * * may be pursued."). Here, DHS is attempting to recover public assistance payments from Broyles's estate, which is subject to a probate proceeding; accordingly, DHS's claim is subject to the procedural requirements of the probate code.

Defendant argues that, nonetheless, DHS's claim before the circuit court constituted a separate "action" from the probate proceeding and, thus, is subject to the time limitations set out in ORS chapter 12 regarding actions. Defendant is mistaken. Even if DHS's claim before the circuit court constituted a separate action for purposes of the statutes of limitation,⁵ the limitation periods in ORS chapter 12 are not applicable to such an action.

ORS 12.250 provides that, "[u]nless otherwise made applicable thereto, the limitations prescribed in this chapter shall not apply to actions brought in the name of the state, or any county, or other public corporation therein, or for its benefit." ORS 12.250 thus exempts actions brought in the name of the state from the limitations imposed in ORS chapter 12. As the Supreme Court held in Shasta View Irrigation Dist. v. Amoco Chemicals, 329 Or. 151, 158-59, 986 P.2d 536 (1999), ORS 12.250 refers only to "the limitations prescribed in this chapter" and, thus, "applies only to the limitations contained in ORS chapter 12" unless some other statute makes the exemption applicable outside that chapter. Defendant argues that ORS 115.008, by virtue of its "notwithstanding ORS 12.250" clause, operates to extend the time limitations in ORS chapter 12 to DHS's action here. We disagree. The import of the notwithstanding clause is that, despite the provision in ORS 12.250 that the limitations prescribed in ORS chapter 12 do not apply to actions brought by the state or a public entity, the time limitations set out in ORS chapter 115 are applicable to the state.

That notwithstanding clause was included in ORS 115.008 in response to our decision in Payne.⁶ In Payne, we held that ORS 12.250 exempted the state from the 30-day limitation period set out in ORS 115.145(1).⁷ We based that holding on our earlier decision in City of Medford v. Budge-McHugh Supply Co., 91 Or.App. 213, 754 P.2d 607, rev. den., 306 Or. 661, 763 P.2d 152 (1988), in which we held that ORS 12.250 was applicable outside of ORS chapter 12, despite the "in this chapter" language. Specifically, we applied the exemption in ORS 12.250 to claims brought under ORS 30.905. In doing so, we rejected the argument that "ORS 12.250 applies only to limitations in chapter 12." Budge-McHugh Supply Co., 91 Or. App. at 218-19, 754 P.2d 607. However, the Supreme Court rejected that reasoning in Shasta, 329 Or. at 158-59, 986 P.2d 536 (holding that ORS 30.905 did not make ORS 12.250 applicable to claims brought under that statute because ORS 12.250 applies only to limitations contained in ORS chapter 12). Accordingly, even without ORS 115.008, we would be constrained from applying the exemption contained in ORS 12.250 to the limitations periods set out in ORS chapter 115, because no statute expressly makes ORS 12.250 applicable to the provisions of that chapter.

ORS 115.008 further provides that, "except as otherwise specifically provided in this chapter, all statutes of limitation and other time limitations imposed under this chapter apply to actions brought in the name of the state." (Emphasis added.) Defendant argues that the reference to "all statutes of limitations" necessarily refers to the limitations contained in ORS chapter 12. Again, we disagree.

Defendant grounds his interpretation in the doctrine of the last antecedent. According to that doctrine, defendant contends, the phrase "imposed under this chapter" refers only to the term "time limitations," and not to the term "all statutes of limitations." In Baker v. City of Lakeside, 343 Or. 70, 75, 164 P.3d 259 (2007), the Supreme Court, citing to State v. Webb, 324 Or. 380, 927 P.2d 79 (1996), stated that the doctrine of the last antecedent provides that, "[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." (Internal quotation marks omitted.) That doctrine applies only where no contrary intention on the part of the legislature appears; where statutory context indicates that a meaning other than that suggested by the doctrine was intended by the legislature, the legislature's intention will control. See Rash v. McKinstry Co., 160 Or.App. 131, 135-36, 981 P.2d 343 (1999), rev'd on other grounds, 331 Or. 665, 20 P.3d 197 (2001) (concluding that statutory context provided meaning of the statute, rejecting alternative meaning derived from the doctrine of the last antecedent). Such is the case here. The statutory context of ORS 115.008 demonstrates that, where the legislature intends to refer to statutes of limitation located outside the probate code, it does so specifically. For example, ORS 115.004(5) provides:

"Except as provided in subsection (6) of this section, an action under this section against a personal representative, the surety for a personal representative or an interested person shall be commenced within two years after the death of the decedent or within the statute of limitations applicable to the claim, whichever is earlier."

By providing that certain types of claims are subject to both the statute of limitations applicable to those claims and a statute of limitations supplied by the probate code, the legislature has demonstrated an awareness of the existence of statutes of limitation outside the code, specifically referred to them, and specified how they interact with the statutes of limitations provided by the code. See, e.g., ORS 115.004(5) (requiring compliance with the statute of limitations applicable to the claim or the time limitation in ORS 115.004(5), whichever is earlier); ORS 115.005(2) (requiring compliance with both the statute of limitations applicable to the claim and the time limitations in ORS 115.005(2)(a)). Nothing in the statutory context of ORS 115.008 supports defendant's assertion that the legislature intended to incorporate all statutes of limitation — wherever codified and regardless of the nature of the claim — into the probate code, merely by using the term "statute of limitations."

Moreover, to the extent that ORS 115.008 was enacted to legislatively abrogate our decision in Payne, the statute tracks the language of our opinion that referred to the time limitation at issue, contained in ORS 115.145, as a "statute of limitations." See Payne, 157 Or.App. at 617, 970 P.2d 266. Thus, by referring to both statutes of limitations and "other time limitations," the legislature in ORS 115.008, ensured that this court's interpretation of ORS 12.250's exemption would not be applicable to the probate code, regardless of how the code's timelines were labeled. As discussed, the Supreme Court in Shasta effectively superseded our interpretation of ORS 12.250 in Payne; nevertheless, nothing in Payne and nothing in the statutory context...