Lead Opinion
[¶ 1] Denise White appeals the district court’s December 27, 2006 order denying her motion for reconsideration of dismissal, her motion to amend complaint, and her motion to vacate judgment. We conclude the district court abused its discretion by denying White’s motion to vacate and her motion to reconsider because it applied the incorrect version of the statute. We reverse and remand for consideration under N.D.C.C. § 28-01^46 (1997).
I
[¶ 2] Dr. Jamil Tareen, an employee of Altru Health System (“Altru”), performed surgery on White on February 10, 2004 at the First Care Health Center in Park River. The surgery consisted of a diagnostic laparoscopy followed by laparotomy and release of extensive pelvic adhesions. White alleges medical negligence because Tareen’s medical license was restricted at the time of the surgery, a fact she claims was concealed from her. White also claims the surgical procedure caused an injury Tareen failed to properly diagnose or treat. White sought follow-up treatment for the alleged injury in early 2004.
[¶ 3] White served Altru with a summons and complaint on February 8, 2006. Altru served White with interrogatories and requests for production of documents on March 16, 2006. Though the court set a discovery deadline of mid-April 2006, the parties negotiated an extension. White served Altru with answers to the discovery requests on May 18, 2006, well before the agreed-upon deadline of June 1, 2006. One day prior to this service, Altru moved to dismiss White’s complaint, alleging she failed to serve Altru with an expert affidavit supporting her claims as required by N.D.C.C. § 28-01-46. The district court dismissed White’s claim without prejudice on September 22, 2006. White filed a motion for reconsideration of dismissal, a motion to vacate judgment and a motion to amend the complaint. On December 27, 2006, the district court denied all three motions.
II
[¶ 4] White appeals from the December 27, 2006 district court order denying her motion for reconsideration of dismissal, motion to amend complaint and motion to vacate judgment. “The right to appeal is a jurisdictional matter which this Court may consider on its own.” Pratt v. Altendorf,
[¶ 5] Here, the underlying judgment is a dismissal without prejudice, which is ordinarily “not appealable because either side may commence another action.” Winer v. Penny Enterprises, Inc.,
[¶ 6] Section 28-01-18(3), N.D.C.C., provides a two-year statute of limitations for medical malpractice claims. The statute of limitations “begins to run only when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant’s possible negligence.” Hoffner v. Johnson,
Ill
[¶ 7] Motions to amend complaint and motions to vacate judgment are reviewed under an abuse of discretion standard. WFND, LLC v. Fargo Marc, LLC,
[¶ 8] The outcome of this case depends upon which version of N.D.C.C. § 28-01-46 is applicable. Section 28-01-46, N.D.C.C., “was ‘designed simply to minimize frivolous [malpractice] claims’ by requiring the plaintiff to obtain an expert opinion supporting [his claims] during [the] early stages of [] litigation.” Larson v. Hetland,
A
[¶ 9] The district court applied the version of N.D.C.C. § 28-01-46 in ef-
“[In Larson t]here was no reference to the date or time of the alleged negligent act, but rather, the Supreme Court referred to the date the action was commenced.
“Here, this action was commenced in February of 2006. The applicable statute in effect in February of 2006 was the 2005 version of N.D.C.C. § 28-01-46, the version relied on in the Order Granting Defendant’s Motion To Dismiss.”
[¶ 10] Too much significance has been placed on the dates in Larson. Whether the commencement date of the case or the injury date is used was of no consequence in Larson because N.D.C.C. § 28-01-46 (1981) was in effect during both time periods. Larson stands only for the principle that between the commencement date and the date the defendant moves to dismiss, the commencement date controls. More germane authority to the present case is found in Fortier v. Traynor,
[¶ 11] Unless amendments to N.D.C.C. § 28-01-46 are retroactive, the district court should have used the date White’s cause of action accrued in its analysis rather than the commencement date of the action.
B
[¶ 12] Because the injury allegedly occurred while N.D.C.C. § 28-01-46 (1997) was in effect, a later version of the statute may be applied only if the statute is found to warrant retroactive application. The Legislature may give a statute retrospective operation as long as it does not affect substantive rights. See State v. Norman,
[¶ 13] Section 1-02-10, N.D.C.C., states, “No part of this code is retroactive unless it is expressly declared to be so.” While the plain language of this statute is unambiguous, prior case law has held this rule precatory because it is a canon of statutory construction and, therefore, “subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent.” State v. Cummings,
[¶ 14] The approach in Cummings might be correct if the rules of interpretation were of common usage but not actually codified by the Legislature. But these rules of interpretation were codified, and they have the effect of law. See 1A Sutherland, Statutory Construction § 28.8 (6th ed.2002) (stating “everything contained in a codification which is regularly enacted by the legislature has effect as law” except for rare exceptions including statutes that have been declared invalid for constitutional reasons or statutes that involve a defect in procedures of enactment); see also State v. Flatt,
[¶ 15] Despite the legislative restriction on retroactive application, historically this Court has distinguished substantive statutes and procedural statutes when applying N.D.C.C. § 1-02-10. Reiling v. Bhattacharyya,
[¶ 16] First, Reiling explicitly overruled the distinction between substantive and procedural statutes.
“[Section] 1-02-10, N.D.C.C., applies to all statutes enacted by the legislature regardless of whether they are substantive or procedural. All statutes enacted by the legislature are to be applied prospectively, i.e., they are to be applied only to causes of action that arise after the effective date of the statute, unless the legislature clearly expresses that they are to be applied retroactively.”
Reiling,
“The substantive-procedural distinction is frequently unclear and artificial because few statutes are solely substantive or solely procedural. Because almost all procedural statutes affect substantive rights to some extent, a substantive-procedural decision must be made by balancing the interests on a case-by-case basis without any clear, workable guidelines for determining whether a statute is substantive or procedural.”
Id. It is important to note that while the Reiling rule has been eroded by some recent decisions of this Court, the distinction between substantive and procedural statutes for retroactivity purposes has not been resuscitated. See, e.g., Cummings,
[¶ 17] Second, the holding in Reiling and the return to the plain reading of N.D.C.C. § 1-02-10 require that the Legislature give explicit notice if a statute is to apply retroactively. Reiling, at 240. This is an effective approach, as the Legislature has successfully given this notice when it intended retroactive application of legislation. State v. Davenport,
[¶ 18] The Reiling approach has been followed in many cases. E.g., Swenson v. Northern Crop Ins., Inc.,
[¶ 19] An exception to the Reiling rule was created in the criminal context. Cummings,
“We created a narrow exception to the general rule for ameliorating penal legislation. In Cummings, we concluded ‘unless otherwise indicated by the Legislature, an ameliorating amendment to a criminal statute is reflective of the Legislature’s determination that the lesser punishment is the appropriate penalty for the offense.’ Because we found a ‘compelling inference’ that the legislature intended to apply retroactively a penal statute that reduced punishment, we created the exception for ameliorating penal legislation.”
Shafer-Imhoff, at ¶42 (emphasis added) (internal citations omitted). This “narrow exception” has broadened over time, diluting the original bright-line effect of Reiling. This movement away from the bright-line Reiling rule was later described as “mischief.” Smith v. Baumgartner,
[¶ 20] By foregoing Reiling’s bright-line rule, courts have been sent on a search for scraps of evidence suggesting legislative intent. Under N.D.C.C. § 1-02-10 and Reiling, the directive was clear. If a statute is to be retroactive, the Legislature must expressly declare it to be so. See N.D.C.C. § 1-02-10. Allowing this Court’s inference to be a substitute for explicit direction from the Legislature is a precarious proposition which invites unpredictable and inconsistent results.
[¶ 21] Here, nothing in the statute suggests the amendments to N.D.C.C. § 28-01-46 are intended to apply retroactively. Larson,
IV
[¶22] We conclude the district court abused its discretion by denying White’s motion to vacate and her motion to reconsider. The district court applied the incorrect version of the statute to White’s case, and this determination makes it unnecessary for us to consider her other arguments. We reverse and remand this case for consideration under N.D.C.C. § 28-01-46 (1997).
I concur in the result.
Concurrence Opinion
concurring in the result.
[¶ 24] I agree with much of what Justice Crothers has written for the majority. I was a member of the Court and signed the opinion in Reiling v. Bhattacharyya,
[¶ 25] Bhattacharyya was a noble undertaking that would, once and for all, do away with the analysis of whether a statute was procedural, and therefore to be applied retroactively, or substantive, and therefore to be applied only prospectively. It would establish instead a bright line for those statutes that were to be applied retroactively, within the parameters of the Constitution, and those that were to be applied prospectively only. The “bright line” was to be that after our ruling in Bhattacharyya, the Legislature would henceforth tell us, in no uncertain terms, those statutes which were to be applied retroactively and those statutes which were to be applied prospectively only. The “bright line” never developed. For the most part Bhattacharyya was met with silence from the Legislature. Although the majority justifiably relies on N.D.C.C. § 1-02-10 to hold that no statute is to be applied retroactively unless there is an express declaration of the Legislature, that did not hold true before Bhattacharyya, and it has not held true after that decision. Indeed, the Legislature may intend every procedural statute to apply retroactively since there is no constitutional infirmity to such an application.
[¶ 26] More significant to me, however, is that the blind application of the “bright line” rule established in Bhattacharyya, and now resurrected by the majority, will produce artificial and unintended results. That is the very reason the Court strayed from its holding in Bhattacharyya in such decisions as State v. Cummings,
[¶ 27] Nevertheless, under Fortier v. Traynor,
[¶ 28] Gerald W. VandeWalle, C.J.