Denise D. WHITE, Plaintiff and Appellant, v. ALTRU HEALTH SYSTEM, a North Dakota Corporation; First Care Health Center; P.R. Health Corporation, a North Dakota Corporation; and Jamil R. Tareen, M.D., Defendants and Appellees.
No. 20070031
Supreme Court of North Dakota.
March 20, 2008.
2008 ND 48; 746 N.W.2d 173
[¶ 67] Although acknowledging at 18 that “[c]ourts exercise only a limited review in appeals from administrative agency decisions,” the majority has effectively usurped the function of claimant‘s counsel by raising and deciding an issue expressly disavowed by counsel, usurped the function of the expert medical witnesses by drawing its own conclusions from the medical evidence, and usurped the function of the ALJ and the agency by ignoring the evidence presented by the one medical expert who actually provided an opinion on the issue and concluding the agency‘s findings of fact did not adequately address the issue. Applying the limited scope of review authorized by
[¶ 68] DALE V. SANDSTROM and DANIEL J. CROTHERS, JJ., Concur.
Shirley Ann Dvorak (argued), Grand
Donna M. Smith (argued) and Randall S. Hanson (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, ND, for defendants and appellees.
CROTHERS, Justice.
[¶ 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
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
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, 2005 ND 32, ¶ 4, 692 N.W.2d 115. Whether an order in a civil proceeding is reviewable by this Court is determined by statute. See
[¶ 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., 2004 ND 21, ¶ 6, 674 N.W.2d 9. However, “dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff‘s chosen forum.” Rolette Co. Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶ 4, 697 N.W.2d 333. The litigation has been effectively terminated and the judgment of dismissal becomes appealable when the statute of limitations has run for the underlying claims. Haugenoe v. Bambrick, 2003 ND 92, ¶ 2, 663 N.W.2d 175.
[¶ 6] Section
III
[¶ 7] Motions to amend complaint and motions to vacate judgment are reviewed under an abuse of discretion standard. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 10, 730 N.W.2d 841; Gonzalez v. Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653. While North Dakota law does not formally recognize motions to reconsider, we have treated such motions as motions to alter or amend the judgment under
[¶ 8] The outcome of this case depends upon which version of
A
[¶ 9] The district court applied the version of
“[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
[¶ 11] Unless amendments to
B
[¶ 12] Because the injury allegedly occurred while
[¶ 13] Section
[¶ 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, 2007 ND 98, ¶ 22, 733 N.W.2d 608 (Sandstrom, J., concurring specially) (“The legislature has told us that if a new enactment is to be retroactive, the legislature itself will expressly declare it to
[¶ 15] Despite the legislative restriction on retroactive application, historically this Court has distinguished substantive statutes and procedural statutes when applying
[¶ 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, 276 N.W.2d at 240. Reiling held the language of
“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, 386 N.W.2d 468.
[¶ 17] Second, the holding in Reiling and the return to the plain reading of
[¶ 18] The Reiling approach has been followed in many cases. E.g., Swenson v. Northern Crop Ins., Inc., 498 N.W.2d 174, 177 n. 2 (N.D.1993); Baranyk v. McDowell, 442 N.W.2d 423, 424 (N.D.1989); Fairmount Twp. Bd. of Supervisors v. Beardmore, 431 N.W.2d 292, 295 (N.D.1988).
[¶ 19] An exception to the Reiling rule was created in the criminal context. Cummings, 386 N.W.2d at 472. Cummings determined that when considering ameliorating penal legislation, courts may infer the Legislature intended retroactivity be
“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, 2003 ND 120, ¶ 26, 665 N.W.2d 12 (VandeWalle, C.J., dissenting). “[I]t appears the majority has abandoned the Reiling requirement and I fear that the Court will, in the future, be looking in corners and under rocks to find by implication the express intent required by
[¶ 20] By foregoing Reiling‘s bright-line rule, courts have been sent on a search for scraps of evidence suggesting legislative intent. Under
[¶ 21] Here, nothing in the statute suggests the amendments to
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
[¶ 23] DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.
DALE V. SANDSTROM, J. I concur 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, 276 N.W.2d 237, 239 (1979). As the majority also notes, I did lament, in dissent, the failure to follow Bhattacharyya in subsequent cases. See, e.g., State v. Davenport, 536 N.W.2d 686, 692 (N.D.1995) (VandeWalle, C.J., dissenting); Smith v. Baumgartner, 2003 ND 120, ¶ 26, 665 N.W.2d 12 (VandeWalle, C.J., dissenting). One might therefore assume that I would gleefully sign on to the majority opinion. I do not. Rather, I concur only in the result for the following reasons.
[¶ 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
[¶ 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, 386 N.W.2d 468 (N.D.1986) and State v. Shafer-Imhoff, 2001 ND 146, 632 N.W.2d 825. Although it might be argued that it is the Legislature, not this Court, which should be concerned about the artificial or unintended effects of legislation, we have consistently held that if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, we will resort to intrinsic aids to determine the actual intent of the Legislature. E.g., Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, 634 N.W.2d 493. It may be a more laborious process for this Court to construe and apply statutes without the “bright line” rule of Bhattacharyya, but I have come to believe that analyzing whether a statute is substantive or procedural is the preferable method of determining legislative intent as to whether a statute should be applied retroactively or prospectively only.
[¶ 27] Nevertheless, under Fortier v. Traynor, 330 N.W.2d 513 (N.D.1983), the applicable law is the law in effect when the cause of action for malpractice arises. The removal of the exception for actions for alleged lack of informed consent in
[¶ 28] Gerald W. VandeWalle, C.J.
GERALD W. VANDE WALLE
CHIEF JUSTICE