author: VANDE WALLE, Chief Justice. MARING, Justice,

text:
    2003 ND 79
    Monte L. HOFFNER and Kris Hoffner, Plaintiffs and Appellants v. George M. JOHNSON, M.D. and Fargo Clinic/MeritCare, Defendants and Appellees.
    No. 20020208.
    Supreme Court of North Dakota.
    May 12, 2003.

      Lee R. Bissonette (argued), Lambert & Bissonette, Wayzata, MN, Scott K. Pors-borg (appeared), Smith Bakke Oppegard Porsborg Wolf, Bismarck, and Daniel L. Hovland (on brief), for plaintiffs and appellants.
    Angela Elsperger Lord (argued) and Jane C. Voglewede (on brief), Vogel Law Firm, Fargo, for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Monte and Kris Hoffner appealed from a judgment dismissing their claims against Dr. George M. Johnson and Fargo Clinie/MeritCare. We affirm, concluding the six-year statute of repose for medical malpractice is constitutional and bars the claims in this action.

I

[¶ 2] In 1988, Dr. Johnson diagnosed fourteen-year-old Monte Hoffner with Type I diabetes. Monte was hospitalized for a time and, upon discharge, continued receiving treatment for his diabetes. In 1992, Monte again saw Dr. Johnson and underwent additional testing. On May 28, 1992, Dr. Johnson advised Monte in a letter that his diabetes had been cured and Monte did not need to do routine blood sugar testing:

Monte, I feel strongly you have had in the past Type II diabetes, rather than Type I diabetes. You have never had ketones in your urine or diabetic ketoa-cidosis ....
All this means that you have “lost” your diabetes because you lost a lot of weight following your original diagnosis in 1988. The stability of blood sugars and the very small doses of insulin ever since 1988 suggest you have a very unusual circumstance, Type II diabetes of youth (which in itself is rare) followed by “cure” of diabetes because you lost weight and have maintained a high activity level.
You should not need to do blood sugars in the future unless you start to gain a lot of weight. Please be advised when you grow older that diabetes can “return” if you are not careful about what you eat and you gain weight.
Insofar as I am concerned, there is absolutely no reason for insurance programs to cause difficulty for you during enrollment. Again, you have “lost” your Type II diabetes mellitus.

Dr. Johnson did not treat Monte or have any further contact with him after the 1992 letter.

[¶ 3] In December 1999, Monte experienced flu-like symptoms and weight loss. Doctors discovered Monte was still diabetic and recommenced msulin treatments. Monte suffered numerous complications allegedly caused by his untreated diabetes, including loss of vision in both eyes, peripheral neuropathy, cancer, and a pancreas transplant. Monte died on January 4, 2002, at the age of 27.

[¶ 4] On November 20, 2001, shortly before Monte died, he and his wife Kris brought this medical malpractice action against Dr. Johnson and Fargo Clinic/Mer-itCare. Dr. Johnson and Fargo Clinic/MeritCare (collectively “Johnson”) moved for summary judgment under the six-year statute of repose for medical malpractice actions in N.D.C.C. § 28-01-18(3). On June 7, 2002, the court granted Johnson’s motion for summary judgment. Judgment dismissing the action was entered on June 25, 2002, and the Hoffners appealed.

II

[¶5] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. Jundt v. Jurassic Res. Dev., 2003 ND 9, ¶ 23, 656 N.W.2d 15; Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 23, 655 N.W.2d 60. The evidence must be viewed in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Abel v. Allen, 2002 ND 147, ¶ 8, 651 N.W.2d 635; Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 21, 651 N.W.2d 625. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. Kondrad v. Bismarck Park Dist., 2003 ND 4, ¶ 4, 655 N.W.2d 411; Duemeland v. Norback, 2003 ND 1, ¶ 8, 655 N.W.2d 76.

Ill

[¶ 6] The district court granted summary judgment based upon the six-year statute of repose found in N.D.C.C. § 28-01-18(3), which provides in part:

28-01-18. Actions having two-year limitations. The following actions must be commenced within two years after the claim for relief has accrued:
3. An action for the recovery of damages resulting from malpractice; provided, however, that the limitation of an action against a physician or licensed hospital will not be extended beyond six years of the act or omission of alleged malpractice by a non-discovery thereof unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital.

[¶ 7] The “act or omission of alleged malpractice” relied upon by Hoffner is the May 28, 1992, letter from Dr. Johnson informing Monte his diabetes had been cured and he did not need to regularly monitor his blood sugar. Because Hoffner did not commence this action until 9¼ years after the letter, the district court concluded the action was barred by N.D.C.C. § 28-01-18(3). The court rejected Hoffner’s argument that the six-year statute of repose was unconstitutional. On appeal, Hoffner argues the six-year statute of repose violates the equal protection clause.

A

[¶ 8] All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 17, 654 N.W.2d 426; Olson v. Bismarck Parks & Recreation Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864. Any doubt about a statute’s constitutionality must, where possible, be resolved in favor of its validity. State v. Burr, 1999 ND 143, ¶ 9, 598 N.W.2d 147. Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. Id.

B

[¶ 9] In reviewing the constitutionality of N.D.C.C. § 28-01-18(3), we must first resolve a dispute whether the six-year period under the statute is a statute of limitation or a statute of repose. We distinguished the two in Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986) (citations omitted):

Statutes of repose are different from statutes of limitation, although they have comparable effects. A statute of limitation bars a right of action unless it is filed within a specified period of time after an injury occurs. The purpose of a statute of limitation is to prevent “plaintiffs from sleeping on their legal rights to the detriment of defendants”. Dickson, The Statute of Limitations in North Dakota’s Products Liability Act: An Exercise in Futility?, 59 N.D. L.Rev. 551, 556 (1983); State v. Halverson, 69 N.D. 225, 226, 285 N.W. 292, 298 (1939). A statute of limitation period commences either upon the occurrence of an injury, or when the injury is discovered. A statute of limitation must allow a reasonable time after a cause of action arises for the filing of a lawsuit.
A statute of repose terminates any right of action after a specific time has elapsed, regardless of whether or not there has as yet been an injury. A statute of repose period begins to run from the occurrence of some event other than the event of an injury that gives rise to a cause of action and, therefore, bars a cause of action before the injury occurs. A person injured after the statutory period of repose is left without a remedy for the injury.

[¶ 10] The first portion of N.D.C.C. § 28-01-18(3) is a statute of limitation, providing that an action for malpractice must be commenced within two years. The two-year limitation period for malpractice actions is subject to the discovery rule, and the two years 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. Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 12, 599 N.W.2d 253; Zettel v. Licht, 518 N.W.2d 214, 215 (N.D.1994).

[¶ 11] The second part of the statute provides that, in medical malpractice cases only, no cause of action may be brought after six years from the act or omission of alleged malpractice. This part of the statute is a statute of repose. It does not commence from the time of injury, but from the date of the alleged negligent act. Although we have recognized that a medical malpractice action will generally accrue on the date of the alleged negligent act or omission, see Schanilec, 1999 ND 165, ¶ 11, 599 N.W.2d 253, that is not always the case. The occurrence of the negligent act and the injury to the plaintiff will not always be concurrent, and in such cases the cause of action does not accrue until the injury has occurred and manifested itself. This case is just such an example. The gravamen of Hoffner’s argument is that Johnson misdiagnosed Monte’s diabetes and told him he did not need to monitor his blood sugar in the future. It -is unknown whether the “injury” to Monte occurred one week, one year, or more than six years after Johnson’s letter, because we do not know when regular blood sugar monitoring would have indicated Monte needed to go back on insulin or have other treatment. Monte certainly could not have brought a medical malpractice action immediately after Johnson’s letter, because at that point he had not suffered a compensable injury and damages caused by the alleged negligence.

[¶ 12] Courts in other jurisdictions construing similar statutes have held that the second portion of the statute, barring an action after a set period of years from the alleged negligent act or omission, constitutes a statute of repose. See, e.g., Siler v. Block, 204 Ga.App. 672, 420 S.E.2d 306, 307 (1992); Ferrara v. Wall, 323 Ill.App.3d 751, 257 Ill.Dec. 553, 753 N.E.2d 1179, 1181 (2001); Sills v. Oakland Gen. Hosp., 220 Mich.App. 303, 559 N.W.2d 348, 351-52 (1996); Garcia ex rel. Garcia v. LaFarge, 119 N.M. 532, 893 P.2d 428, 433 (1995); see also Robert W. George, Comment, Prognosis Questionable: An Examination of the Constitutional Health of the Arkansas Medical Malpractice Statute of Repose, 50 Ark. L.Rev. 691, 696 (1998); Patrick E. Sullivan, Note, Medical Malpractice Statute of Repose: An Unconstitutional Deni al of Access to the Courts, 63 Neb. L.Rev. 150, 153-54 (1984); Christopher J. Trombetta, Note, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial Conscience Versus Legislative Will, 34 Vill. L.Rev. 397, 400-01 (1989).

[¶ 13] Because the six-year period under N.D.C.C. § 28-01-18(3) begins to run upon the negligent act or omission, and not from the date of injury, it is a statute of repose. See Hanson, 389 N.W.2d at 321.

C

[¶ 14] Hoffner argues the six-year statute of repose of N.D.C.C. § 28-01-18(3) violates the equal protection clause because it creates an unconstitutional classification by allowing claims by medical malpractice plaintiffs whose injuries were discoverable within six years of the negligent act or omission but barring claims by plaintiffs whose injuries do not occur or manifest themselves within six years.

[¶ 15] In addressing equal protection challenges to statutes of repose, we have recognized that the right to recover for personal injuries is an important substantive right. Dickie v. Farmers Union Oil Co. of LaMoure, 2000 ND 111, ¶ 5, 611 N.W.2d 168; Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733, 736 (N.D.1988); Hanson v. Williams County, 389 N.W.2d 319, 325 (N.D.1986). When a statute is challenged on equal protection grounds and an important substantive right is involved, we apply an intermediate standard of review requiring a close correspondence between the statutory classification and the legislative goals. Olson, 2002 ND 61, ¶ 11, 642 N.W.2d 864; Dickie, at ¶ 5; Bellemare, at 736; Hanson, at 323. In assessing statutory classifications under an equal protection analysis, we may consider unarticulated, as well as articulated, legislative purposes and goals. See State v. Leppert, 2003 ND 15, ¶ 18, 656 N.W.2d 718; Olson, at ¶ 11; Haney v. North Dakota Workers Comp. Bureau, 518 N.W.2d 195, 202 (N.D.1994); Bellemare, at 738.

[¶ 16] Hoffner contends the result in this case should be controlled by our decision in Hanson, in which this Court held the ten-year statute of repose for products liability actions violated equal protection. Johnson counters that this case is more like Bellemare, in which this Court upheld a statute of repose for actions brought against persons who designed, planned, or constructed improvements to real property.

[¶ 17] Hoffner argues that, as in the products liability statute of repose struck down in Hanson, the legislative history for the medical malpractice statute of repose indicates concerns with a perceived insurance crisis. The Court in Hanson concluded that, although there may have been an insurance crisis facing North Dakota products manufacturers, the legislature’s chosen solution to that problem was questionable. Hanson, 389 N.W.2d at 328. Although the legislative history underlying the enactment of the medical malpractice statute of repose in 1975 is based in part upon concerns over availability and cost of malpractice insurance for North Dakota physicians, there are important distinctions between this case and Hanson. When the legislature enacted the products liability statute of repose, the State Insurance Commissioner opposed the bill and specifically testified that the statute of repose would not alleviate the problem of increasing insurance premiums for manufacturers in the state. Hanson, at 329 (Levine, J., specially concurring). By contrast, the Insurance Commissioner supported enactment of the medical malpractice statute of repose, testifying that there was a crisis situation, that insurers were discontinuing writing malpractice coverage, that claims paid were exceeding premiums collected, and that new doctors were unable to purchase malpractice insurance. See Hearing on S.B. 2348 Before the Senate Judiciary Comm., 44th N.D. Legis. Sess. (Feb. 5, 1975) (testimony of J.O. Wigen, North Dakota Insurance Commissioner); Hearing on S.B. 234-8 Before the House Judiciary Comm., 44th N.D. Legis Sess. (March 4, 1975) (testimony of J.O. Wigen, North Dakota Insurance Commissioner) [“House Hearing on S.B. 234-8”]. Other testimony on Senate Bill 2348 indicated a period of repose was needed to set a time beyond which claims could not be made because “evidence becomes more scattered,” and most malpractice claims would be discovered within the period of repose. See House Hearing on S.B. 234-8 (testimony of Rep. Kretschmar).

[¶ 18] There are also similarities between the legislative goals for the statute of repose upheld in Bellemare and the medical malpractice statute of repose at issue in this case. In upholding the statute of repose for designers and constructors of improvements to real property, the Court in Bellemare stressed the potential for virtually unlimited liability for such defendants:

[I]t appears that the Legislature’s intention was simply to limit what would otherwise be virtually unlimited and perpetual exposure to liability for persons engaged in the “design, planning, supervision or observation of construction or construction” of improvements to real property without eliminating liability entirely by affording a reasonable period within which defects might be manifested and suits brought for injuries caused by defects.
Here, we discern no illegal purpose in the goal of obtaining finality resulting in financial security and peace of mind by restricting what would otherwise by virtually unlimited and perpetual exposure to persons engaged in the design, planning, supervision, and observation of construction, or construction of improvements to real property.

Bellemare, 420 N.W.2d at 737-38.

[¶ 19] In contrast to Hanson, which involved liability for defective products which normally have a limited useful life, the Court in Bellemare stressed the longer useful life of improvements to real property:

“Since construction projects generally have expected useful lives of many years or decades, the possibilities for long-term liability for the professional architect or design engineer are enormous.”

Bellemare, 420 N.W.2d at 737 (quoting Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 825 (Colo.1982)). The Court concluded that it was the legislature’s judgment that construction or design defects are likely to be discovered within a reasonable period after completion of the improvement, and the legislature had fixed the period at ten years. Bellemare, at 737. Accordingly, the Court concluded there was a close correspondence between the statutory classification and the legislative goals. Id.

[¶ 20] Like the designers and constructors of improvements to real property, physicians could be subject to virtually unlimited liability without the statute of repose. Just as a construction project may stand for “years or decades,” a person may live for years or decades before an act of medical malpractice manifests itself, raising the possibility of “long-term liability” for the physician or hospital. See Bellemare, 420 N.W.2d at 737.

[¶ 21] We also note that the majority of courts which have addressed this issue have upheld similar medical malpractice statutes of repose challenged on equal protection grounds. See, e.g., Brubaker v. Cavanaugh, 741 F.2d 318, 321-22 (10th Cir.1984) (applying Kansas statute); Jewson v. Mayo Clinic, 691 F.2d 405, 411 (8th Cir.1982) (applying Minnesota statute); Golden v. Johnson Mem’l Hosp., Inc., 66 Conn.App. 518, 785 A.2d 234, 246-48 (2001); Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 437 S.E.2d 308, 309-10 (1993); Valentine v. Thomas, 433 So.2d 289, 292-93 (La.Ct.App.1983); Sills v. Oakland Gen. Hosp., 220 Mich.App. 303, 559 N.W.2d 348, 353 (1996); Cummings v. X-Ray Assocs. of New Mexico, P.C., 121 N.M. 821, 918 P.2d 1321, 1331-33 (1996); Hoffman v. Powell, 298 S.C. 338, 380 S.E.2d 821, 822 (1989); Burris v. Ikard, 798 S.W.2d 246, 249-50 (Tenn.Ct.App.1990). But see DeYoung v. Providence Med. Ctr., 136 Wash.2d 136, 960 P.2d 919, 924-26 (1998) (applying the rational basis test in holding Washington’s eight-year medical malpractice statute of repose violated the privileges and immunities clause of the state constitution). While we recognize that the cases upholding similar medical malpractice statutes of repose have employed a rational basis analysis when considering the constitutionality of their respective provisions, in many instances those jurisdictions do not recognize an intermediate standard of review for classifications involving an important substantive right, and the choice was therefore between only a rational basis standard and strict scrutiny. See Golden, at 247; Craven, at 310; Valentine, at 292.

[¶ 22] In upholding statutes of repose, courts have stressed the need to create a reasonable limit on the legal consequences of a wrong and the difficulty in proof of old claims:

The statute of limitations and repose sections are a way of implementing the public policy of limiting the legal consequences of wrongs to a controllable degree. “There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan'their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability ... and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.”

Golden, 785 A.2d at 241 (quoting Sanborn v. Greenwald, 39 Conn.App. 289, 664 A.2d 803, 811-12 (1995)).

[¶ 23] We conclude there is a close correspondence between the statutory classification and the legislative goals, and accordingly the six-year medical malpractice statute of repose of N.D.C.C. § 28-01-18(3) does not violate equal protection.

IV

[¶ 24] Hoffner argues Johnson should be precluded from relying upon the six-year statute of repose under the doctrine of equitable estoppel.

[¶ 25] Equitable estoppel may operate to preclude application of statutes of limitation or repose as a defense by one who has misled another, thereby inducing that person to not file a claim within the statutory period. See Snortland v. State, 2000 ND 162, ¶ 15, 615 N.W.2d 574; Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 24, 590 N.W.2d 454; In re Estate of Helling, 510 N.W.2d 595, 596-97 (N.D.1994). The doctrine of equitable estoppel is codified at N.D.C.C. § 31-11-06, which provides:

When a party, by that party’s own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.

See Narum, at ¶ 24; American Ins. Co. v. Midwest Motor Express, Inc., 554 N.W.2d 182, 188 (N.D.1996); Estate of Helling, at 597; Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 908 (N.D.1992).

[¶ 26] To successfully implement the doctrine of equitable estoppel to preclude application of a statute of limitation or repose, the plaintiff has the burden of proving (1) the defendant made statements intending the plaintiff would rely on them; (2) the plaintiff in fact relied on them, and as a result failed to commence her action within the prescribed period; and (3) the statements were made prior to the expiration of the statutory period. Narum, 1999 ND 45, ¶ 24, 590 N.W.2d 454; American Ins. Co., 554 N.W.2d at 188; Burr, 492 N.W.2d at 908. In addition, the defendant’s conduct must amount to “some form of affirmative deception.” Narum, at 1124. As noted in Krueger v. St. Joseph’s Hosp., 305 N.W.2d 18, 25 (N.D.1981):

Estoppel, in the context where it is urged as a defense to the statute of limitations, is concerned with the actions of one guilty of wrongdoing and operates to preclude the application of the statute of limitations as a defense by the wrongdoer.

[¶ 27] In support of her assertion of equitable estoppel, Hoffner relies solely upon Johnson’s May 28, 1992, letter advising Monte that his diabetes had been cured and that he no longer needed to regularly monitor his blood sugar levels. In essence, Hoffner relies upon the very act she claims constituted malpractice to also equitably estop Johnson from asserting a defense under the statute of repose. While Johnson’s statements may arguably have constituted negligence, they do not constitute an affirmative deception intended to induce Hoffner to fail to timely commence a medical malpractice action. See American Ins. Co., 554 N.W.2d at 188.

[¶ 28] Cases from other jurisdictions similarly conclude that the alleged underlying act of medical malpractice cannot also provide the basis for equitable estop-pel to defeat a statute of limitations defense. See Rowell v. McCue, 188 Ga.App. 528, 373 S.E.2d 243, 245-46 (1988) (mere misdiagnosis insufficient to support equitable estoppel); Dasha v. Maine Med. Ctr., 665 A.2d 993, 995 (Me.1995) (misdiagnosis insufficient to support equitable estoppel); Duncan v. Augter, 286 Or. 723, 596 P.2d 555, 560 (1979) (the treatment or operation whose failure provides the basis of the plaintiffs complaint cannot provide the basis for equitable estoppel). As noted by the court in Duncan, at 560, allowing a plaintiff to assert equitable estoppel based solely upon discovery of the allegedly unprofessional treatment would be a “bootstrap justification for a delayed claim.”

[¶ 29] We conclude the district court did not err in concluding Johnson was not equitably estopped from asserting the defense of the statute of repose.

V

[¶ 30] Hoffner urges this Court to adopt the continuous treatment rule and to hold that the statutes of limitation and repose under N.D.C.C. § 28-01-18(3) were tolled by a continuing course of treatment. This Court has never adopted the continuous treatment rule in medical malpractice cases. See Schanilec v. Grand Forks Clinic Ltd., 1999 ND 165, ¶ 21, 599 N.W.2d 253. We need not determine whether to adopt the rule because we conclude that, were we to adopt the doctrine, the rule would not apply under the undisputed facts in this case.

[¶ 31] The continuous treatment doctrine is premised upon an ongoing and continuous relationship between patient and physician. Schanilec, 1999 ND 165, ¶ 21, 599 N.W.2d 253; Wheeler v. Schmid Labs., Inc., 451 N.W.2d 133, 138 (N.D.1990); Froysland v. Altenburg, 439 N.W.2d 797, 799 (N.D.1989). We have explained the rationale for the rule:

The reasons underlying the rule are that a patient must trust a physician to remain in his care and that during that care, the patient is not likely to suspect negligent treatment. It is the trust relationship that may make discovery of a claim difficult. The Minnesota Court of Appeals has summarized the appropriate factors for determining when treatment ends:
“(1) whether there is a relationship between physician and patient with regard to the illness; (2) whether the physician is attending and examining the patient; and (3) whether there is something more to be done.”

Wheeler, at 138 (quoting Krause v. Farber, 379 N.W.2d 93, 96 (Minn.Ct.App.1985)).

[¶ 32] The continuing treatment doctrine requires an active physician-patient relationship, and is not triggered by actions such as the patient continuing on prescribed medications, return visits to merely check the patient’s condition, or monitoring without additional treatment. See Harlfinger v. Martin, 435 Mass. 38, 754 N.E.2d 63, 75 (2001). Thus, we concluded that the rule did not apply when two years had passed since the patient had last been seen by the doctor. Schanilec, 1999 ND 165, ¶¶ 22-23, 599 N.W.2d 253. In Wheeler, this Court concluded the rule did not apply even though the patient continued on medication prescribed by the doctor for eight years after her last personal contact with the doctor and had a subsequent routine examination by a nurse practitioner at the clinic. In Froysland, this Court held the rule did not apply where the anesthesiologist who allegedly had been negligent during a first surgery again participated in a second surgery more than two years later. The Court concluded that “continuous treatment anticipates something more than an isolated act of added attention by the physician more than two years after the initial conduct charged as injurious.” Froysland, 439 N.W.2d at 800.

[¶ 33] In this case, more than 9½ years passed from the last contact between Dr. Johnson and Monte and commencement of this action. There were no follow-up visits, monitoring of Monte’s condition, or other continuous treatment. In fact, their last contact, the May 1992 letter, clearly indicates that no further ongoing doctor-patient relationship was anticipated. The letter informed Monte that he had been cured and no further treatment or monitoring was necessary unless he gained weight. Dr. Johnson was no longer “attending and examining” Monte, and there was not “something more to be done.” Wheeler, 451 N.W.2d at 138. If anything, this case represents the antithesis of continuing treatment.

[¶ 34] We conclude that, if the continuous treatment rule were adopted, it would not apply in this case to toll the statutes of limitation or repose.

YI

[¶ 35] We have considered the remaining issues raised by Hoffner and find them to be without merit. The judgment is affirmed.

[¶ 36] DALE V. SANDSTROM, J., and ALLAN L. SCHMALENBERGER, District Judge, concur.

[¶ 37] The Honorable ALLAN L. SCHMALENBERGER, District Judge, sitting in place of KAPSNER, J., disqualified.

MARING, Justice,

dissenting.

[¶ 38] I respectfully dissent. I also apply the intermediate standard of review, but I reach a different result. I conclude the diverse treatment of injured persons bears no close correspondence to any legislative goal and, therefore, violates the equal protection clause of the North Dakota Constitution. N.D. Const, art. I, § 21.

[¶ 39] The majority states: “In assessing statutory classifications under an equal protection analysis, we may consider unar-tdculated, as well as articulated, legislative purposes and goals.” It cites to State v. Leppert, 2003 ND 15, ¶ 18, 656 N.W.2d 718; Olson v. Bismarck Parks and Recreation Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864; Haney v. North Dakota Workers Comp. Bureau, 518 N.W.2d 195, 202 (N.D.1994); Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733, 738 (N.D.1988). However, a reading of those cases reveals Leppert and Haney are cases in which we applied a rational-basis standard of review to a claim of denial of equal protection. Leppert, at ¶ 18; Haney, at 201. When we review an equal protection challenge using the rational-basis standard of review, we have said: “[I]t is not necessary that the Legislature have articulated the purpose or rationale supporting the classification, providing there is an identifiable purpose which the Legislature may have reasonably considered in adopting the classification.” Baldock v. North Dakota Workers Comp. Bureau, 554 N.W.2d 441, 446 (N.D.1996) (citing NL Indus., Inc. v. North Dakota State Tax Comm’r, 498 N.W.2d 141, 149 (N.D.1993)); accord Haney, at 202; Leppert, at ¶ 18; State v. Knoefler, 325 N.W.2d 192, 195 (N.D.1982). “‘The Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.’ ” NL Indus., Inc., at 149 (quoting Nordlinger v. Hahn, 505 U.S. 1, 15-16, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). Thus, even when the statute and legislative history is silent, the Court can review if the purpose “ ‘may reasonably have been the purpose and policy’ of the relevant governmental decisionmaker.” NL Indus., Inc., at 149 (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-29, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959)). Considering any conceivable purpose is part of the inquiry in the rational-basis standard of review, but not in the intermediate standard of review. For the proposition that any conceivable purpose can be used in an equal protection analysis under the intermediate standard of review, the majority opinion cites to two cases, Olson, 2002 ND 61, ¶ 11, 642 N.W.2d 864, and Bellemare, 420 N.W.2d at 738, Although Olson is a case in which we apply an intermediate standard of review, the cases cited for the proposition that we may consider unarticulated legislative purposes are both cases in which we apply the rational-basis standard of review. See Olson, at ¶ 11 (citing Haney, 518 N.W.2d at 202 and Knoefler, 325 N.W.2d at 195).

[¶ 40] In Bellemare, we cite to Herman v. Magnuson, 277 N.W.2d 445, 453-54 (N.D.1979), for the proposition that we can conceive legislative goals that are not stated in the statute or legislative history. Bellemare, 420 N.W.2d at 738. Herman and Bellemare are both authored by the author of this majority opinion. Again, although we purport in Herman to apply an intermediate standard of review, we find unstated legislative goals to uphold the constitutionality of the statute by citing to goals set forth in a Colorado decision and an Alabama decision, both of which applied the rational-basis test in their analysis. 277 N.W.2d at 453-54.

[¶41] I cannot find any case law or treatise that supports using the rational-basis analysis of determining a “legitimate state interest” as a quid pro quo for determining a “legislative goal” under the intermediate standard of review. Under the rational-basis standard, our Court can review any identifiable purpose that may conceivably have been that of the Legislature. Under our strict scrutiny standard of review, the burden is on the state to articulate a “compelling governmental interest” that justifies the classification. See Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 433 (N.D.1988) (outlining the standards for judicial scrutiny of equal protection claims). If our Court is not going to require under the intermediate standard of review some articulation of a legislative goal in either the statute or legislative history, then we should no longer use this standard as a guise for a “heightened” standard of review. If the majority has applied a more vigorous standard of review than rational-basis, I cannot discern it. The majority opinion professes to apply an intermediate standard of review, but in effect, applies a rational-basis standard of review.

[¶ 42] The United States Supreme Court is using an intermediate standard of review in equal protection cases “that is not as difficult for the government to meet as the compelling interest test, but which involves far less deference to the legislature than does the rationality test.” Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law — Substance and Procedure § 18.3, at 219 (3d ed.1999). Our Court recognized this development in Johnson v. Hassett, 217 N.W.2d 771, 776 (N.D.1974), and concluded that such standard was similar to our intermediate standard of review. See also Arneson v. Olson, 270 N.W.2d 125, 133 (N.D.1978). The United States Supreme Court in United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), in applying this intermediate standard of review states that: “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” In the present case, the legislative history makes it crystal clear that the statute of repose was designed to remedy the rising cost of malpractice insurance. Hearing on S.B. 2348 Before the Senate Judiciary Comm., 44th N.D. Legis. Sess. (Feb. 5, 1975) (testimony of H.W. Wheeler, Counsel for the North Dakota Medical Association). The majority, recognizing its weakness under Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986), and Dickie v. Farmers Union Oil Co. of LaMoure, 2000 ND 111, 611 N.W.2d 168, uses its professed authority to find “unarticulated” legislative goals to conclude that the Legislature must have intended “to limit what would otherwise be virtually unlimited and perpetual exposure to liability” and “to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” The first “unarticulated” goal is taken from Bellemare, 420 N.W.2d at 737, and the second is taken from Golden v. Johnson Mem’l Hosp., Inc., 66 Conn.App. 518, 785 A.2d 234, 241 (2001), a decision using the rational-basis test to determine “legitimate state interest.”

[¶ 43] Our Court’s decisions in Hanson and Dickie correctly apply the intermediate standard of review to an equal protection challenge to a statute. Hanson, 389 N.W.2d 319; Dickie, 2000 ND 111, 611 N.W.2d 168. The issue in both Hanson and Dickie is whether the statute of repose in the Product Liability Act is unconstitutional under the equal protection clause of the North Dakota Constitution. In both cases, we found it unconstitutional. Hanson, at 330; Dickie, at ¶ 13. In Han son, we quoted the statute, N.D.C.C. § 28-01.1-01, which indicated the goals of the Legislature:

4. The legislative assembly finds that the number of lawsuits and claims for damages and the amount of judgements and settlements arising from defective products has substantially increased in recent years. Because of these increases, the insurance industry has drastically increased the cost of products liability insurance. The effect of increased insurance premiums and increased claims has increased product cost through manufacturers, wholesalers, and retailers passing the cost of premiums to the consumer. Certain product manufacturers are discouraged from continuing to provide and manufacture certain products because of the high cost and possible unavailability of products liability insurance.
5. Because of these recent trends and for the purpose of alleviating the adverse effects which these trends are producing in the manufacturing industry, it is necessary to protect the public interest by enacting measures designed to encourage private insurance companies to continue to provide products liability insurance.
6. It is the purpose of sections 28-01.1-01 through 28-01.1-05 to provide a reasonable time within which actions may be commenced against manufacturers, while limiting the time to a specific period for which products liability insurance premiums can be reasonably and accurately calculated; and to provide other procedural changes to expedite early evaluation and settlement of claims.

Hanson, at 327-28 (emphasis added). In Hanson, the same legislative goals, now cited by the majority to justify the classification under the medical malpractice statute of repose, were identified; i.e., a “ ‘crisis’ facing North Dakota manufacturers because of unaffordable” or unavailable “products liability insurance,” a need for early evaluation and settlement of claims and the ability for persons “to plan their affairs with a reasonable degree of certainty” as a matter of policy. Hanson, at 327-28; see also ‘Dickie, at ¶ 7. In Hanson and Dickie, we concluded that there was no close correspondence between the “legislative goal of providing certainty in litigation or of reducing insurance costs” and the classifications established by the products liability statute of repose. Dickie, at ¶ 7; see also Hanson, at 328. Our Court could not find any showing within the statute, the testimony before the legislative committees, or the data submitted:

that litigation brought by victims injured more than 10 years from the initial date of purchase of a product or 11 years from its manufacture, as compared to persons injured within those time periods, has caused inequity, unfairness, or unreasonable exposure and unpredictability for manufacturers or suppliers in civil litigation. There is simply no demonstration by the testimony or evidence submitted to the legislature which shows harm or prejudice to sellers and manufacturers resulting from damage awards against them for injuries incurred more that 10 years from initial purchase or 11 years from manufacture of defective products. We, therefore, hold there is not a close correspondence between the legislative objectives under N.D.C.C. § 28-01.3-08 and the classification created thereunder to withstand an equal protection challenge under N.D. Const, art. I, § 21.

Dickie, at ¶ 9 (emphasis added); see also Hanson, at 329 (Levine, J., specially concurring) (“No one ... was able to present data that established a close correspondence between eliminating claims for relief of persons injured by products after ten years from sale, and controlling the rising premiums for products liability insurance”).

[¶ 44] In the present case, the legislative history and the statute are likewise devoid of any showing that litigation brought by victims of medical malpractice whose injury manifests itself more than six years from the initial act or omission of the alleged malpractice, as compared to persons injured within that time frame, has “caused inequity, unfairness, or unreasonable exposure and unpredictability” for physicians. Dickie, 2000 ND 111, ¶ 9, 611 N.W.2d 168. Similar to Justice Levine’s observation in Hanson, there is no evidence that establishes “a close correspondence between eliminating claims for relief of persons injured by [medical malpractice] after [six] years ... and controlling the rising premiums for [medical malpractice] insurance.” Hanson, 389 N.W.2d at 329 (Levine, J., specially concurring). As we stated in Hanson and reiterated in Dickie, “when we are dealing with human life and safety we believe that more is required for a justification than a reference to the economics of suppliers of goods.” Hanson, at 328; Dickie, at ¶ 13.

[¶ 45] It must be noted that in Arneson, our Court held the Medical Malpractice Act, N.D.C.C. ch. 26-40.1 (1977) unconstitutional. Ameson, 270 N.W.2d at 126. We concluded that the legislative limitation of recovery to a maximum of $300,000 arising from any one occurrence is violative of the equal protection provision of the North Dakota Constitution. Id. at 136. The general purposes of the Act were stated to be:

“to assure the availability of competent medical and hospital services to the public in North Dakota at reasonable costs; to provide prompt and efficient methods for eliminating the expense involved in nonmeritorious malpractice claims; to provide adequate compensation to patients with meritorious claims; and to encourage physicians to enter the practice of medicine in North Dakota and remain in such practice as long as they are qualified to do so. The legislative assembly finds that the exercise of the sovereign and police power of this state for the good of the majority of its citizens is necessary to improve the availability of medical care, to assure its competency, and to reduce the cost thereof.” Sec. 26-40.1 01, N.D.C.C.

Id. at 127. We noted that “[i]n recent years, a number of States have reacted to what is described as a ‘medical malpractice crisis,’ and have adopted various kinds of statutes in response.” Id. at 130. We applied our intermediate standard of review. Id. at 133. We said:

When we examine the legislative purpose of the Act, we find that the incidence of malpractice claims in North Dakota is far lower than the average in the United States.... Evidence in the present case shows that one of the largest insurance companies is accepting applications for malpractice insurance in North Dakota, and using rates lower than the national averages.... One comparison of rates given to the Legislature shows that premiums in North Dakota are the sixth lowest in the United States.

Arneson, at 136. Our Court could not find an “availability or cost crisis” in North Dakota. Id. Our Court concluded that, although told there was a medical malpractice crisis, there was no evidence of such crisis and that the $300,000 limitation on recovery was a violation of the equal protection provision of the North Dakota Constitution. Id. Our Court held that the limitation of recovery of seriously damaged or injured victims of medical negligence did not promote the aims of the statute and violated the equal protection clause of the North Dakota Constitution. Id.

[¶ 46] In the present case, we should “question the solution” as we did in Hanson, 389 N.W.2d at 328 and Dickie, 2000 ND 111, 611 N.W.2d 168. We should be “concerned about statutes which arbitrarily deny one class of persons important substantive rights to life and safety which are available to other persons.” Hanson, at 328. As Justice Levine stated in her special concurrence in Hanson,

If we do not understand the causes of a problem, even conceding that a problem exists, I do not believe that legislation, which destroys the important substantive rights of a class of persons whose misfortune it was to be injured by a product over ten years old satisfies equal protection. There can be no close correspondence between a statutory classification such as we have here and a legislative objective when that objective is grounded on guesswork, frustration, and little more than a wing and a prayer.

Id. at 329.

[¶47] The majority claims there is a distinction between Hanson and this case. It claims the Insurance Commissioner opposed the legislation in Hanson and testified in favor of it in this case. The legislative history reveals the Insurance Commissioner testified:

It is in a crisis situation. One company has decided to go out of the malpractice insurance business and others are threatening to do so. If a physician cannot get this type of insurance he is not going to be able to practice. There are now only nine companies who write this kind of insurance, and statistics show that they are paying more claims than the premiums they collect, so it is a losing proposition for them. These statistics are for the nation and we do not have North Dakota statistics. This insurance rate in North Dakota is still fairly low, but there has already been a 100% increase.

Hearing on S.B. 2348 Before the Senate Judiciary Comm., 44th N.D. Legis. Sess. (Feb. 5, 1975) (testimony of Bud Wigen, State Insurance Commissioner). The fact that the Insurance Commissioner testified there was a national medical malpractice insurance “crisis” is not the point, however. The point is that there is no testimony, no data, and no evidence to support any relationship, let alone a “close correspondence,” between the classification, which denies recovery to those injured by medical malpractice more than six years after the act of malpractice, and the alleged national medical malpractice insurance “crisis.” We are without any factual basis for the correlation between the limitation of recovery and the national medical malpractice crisis. The Insurance Commissioner said he did not have any North Dakota statistics and that the insurance rate in North Dakota is still “fairly low.” Hearing on S.B. 234-8, supra (testimony of Bud Wigen, State Insurance Commissioner). The record does not establish a “crisis” in North Dakota. The Insurance Commissioner testified the reason Aetna was going to discontinue their policies in North Dakota was that they were prevented from raising their rates in another state. Hearing on S.B. 2348, supra (testimony of Bud Wigen, State Insurance Commissioner).

[¶ 48] The majority opinion attempts to distinguish Hanson and contends this case is more like the majority author’s opinion in Bellemare. The majority reasons that because a person may live for decades before an act of medical malpractice manifests itself in an injury, there is a “possibility” of long-term liability. Therefore, this case is more like an improvement to real estate, which has a longer life than to a defective product, which has a limited useful life. Our Court, in Dickie, however, identified a different “crucial distinction between the classification of potential defendants.” Dickie, 2000 ND 111, ¶ 10, 611 N.W.2d 168. On the one hand, there are “[architects, contractors, engineers, and inspectors ... [who] do not have continuing control over or involvement with the maintenance of the improvement after ... initial construction.” Id. (quoting Bellemare, 420 N.W.2d at 738). On the other hand, there are “ [suppliers and manufacturers ... [who] can ... maintain high quality control standards in the controlled environment of the factory.” Id. The majority places physicians who are directly charged with the health, welfare, and safety of human beings in the same classification as architects who design improvements to real property, the construction of which is participated in by many. I do not agree.

[¶ 49] Finally, all of the cases from other jurisdictions cited by the majority in support of its conclusion that the medical malpractice statute of repose is constitutional use the rational-basis standard of review.

[¶ 50] Some courts, however, have found medical malpractice statutes of repose unconstitutional where exceptions were granted. See Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 830-31 (1980) (holding the medical malpractice statute violates the equal protection provisions of the New Hampshire Constitution under an intermediate level of scrutiny); Austin v. Litvak, 682 P.2d 41, 44 (Colo.1984) (applying the rational-basis test and holding the three-year statute of repose violated equal protection). Other states have held their medical malpractice statutes of repose to be unconstitutional on other grounds. See Martin v. Richey, 711 N.E.2d 1273, 1285 (Ind.1999) (holding that the statute of repose as applied to this particular plaintiff violated the privileges and immunities clause of the state constitution because the misdiagnosed plaintiff had a disease with a long latency period which prevented her from discovering the malpractice within the statutory two-year period); McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 19 (Ky.1990) (holding that the five-year medical malpractice state of repose violated the open courts provisions of the state constitution); Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626, 629 (1987) (holding that the four-year statute of repose “as applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates the right-to-a-remedy provision of ... the Ohio Constitution”); DeYoung v. Providence Medical Center, 136 Wash.2d 136, 960 P.2d 919, 926 (1998) (applying rational-basis review and holding that the eight-year statute of repose violated the privileges and immunities clause of the state constitution); Kohnke v. St. Paul Fire & Marine Ins. Co., 140 Wis.2d 80, 410 N.W.2d 585, 588 (Ct.App.1987) (holding that the five-year statute of repose as applied, violated the right-to-a-remedy clause of the state constitution); cf. Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961, 967 (1984) (not reaching the issue, but advising that “any statute which bars a cause of action before it could legitimately be brought abrogates rather than limits the cause of action” offending the state constitution).

[¶ 51] In conclusion, I am of the opinion that the analysis of Hanson is correct and that “[s]ome rational basis must be advanced for the selection of the period of years for ‘bar’ or ‘repose,’ other than the economic interests ...” of insurance companies and physicians. Hanson, 389 N.W.2d at 328. I would hold the statute unconstitutional and remand the case for further proceedings.

[¶ 52] WILLIAM A. NEUMANN, J., concur.

      . Monte Hoffner died while the action was pending in district court. Although a copy of his death certificate was entered in the record, the parties failed to move for substitution of his estate as a party under N.D.R.Civ.P. 25(a). After we raised the issue during oral argument, Kris Hoffner filed a written motion seeking substitution of Monte's estate as a party under N.D.R.App.P. 43(a). Johnson responded with a motion to dismiss because Kris Hoffner had failed to move for substitution of a party within ninety days after the death was suggested upon the record, as required by N.D.R.Civ.P. 25(a)(1).
      We deny Kris's motion to substitute the estate under N.D.R.App.P. 43(a). By its terms, the rule allows substitution "[i]f a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court.” The intent of the rule is to provide a mechanism for substitution for a party who dies after the proceedings in the district court have concluded.
      We need not reach Johnson’s motion to dismiss the appeal. Even if we were to dismiss Monte Hoffner’s claims for failure to properly substitute a party under N.D.R.Civ.P. 25(a), Kris Hoffner’s claims would remain and need to be addressed. Because we conclude Kris Hoffner’s claims are barred by the statute of repose, and Monte Hoffner’s claims would of necessity also be barred, it is unnecessary to resolve Johnson’s motion to dismiss.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2003 SD 39
    Shirley M. THOMAS, Plaintiff, v. George W. THOMAS, Defendant, and Gail Thomas, Plaintiff and Appellee, v. Shirley M. Thomas, Defendant and Appellant, and George W. Thomas, Defendant.
    Nos. 22548, 22566.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided April 16, 2003.

      Dedrich R. Koch of Kinney & Koch, LLP Spearfish, South Dakota, Attorneys for appellees.
    Benjamin J. Eicher of Wallahan & Eicher, Rapid City, South Dakota, Attorneys for appellant.
   SABERS, Justice.

[¶ 1.] This case arises out of a consolidated action which involved the divorce of Shirley Thomas (Shirley) and George Thomas (George), lawsuits arising from the attempted sale of George and Shirley’s marital home, and a quiet title action brought by Gail Thomas (Gail) against Shirley and George. Gail is George’s daughter from a previous marriage. The only parties remaining at this juncture are Gail and Shirley. Shirley appeals 1) the propriety of the court’s hearing on Gail’s motion for waste; 2) the award of damages for waste and property taxes; and 3) the court’s denial of an offset or credit for improvements. By notice of review, Gail appeals 4) the trial court’s partial denial of damages for waste; 5) the denial of prejudgment interest on the property tax award; 6) the trial court’s denial of treble damages for waste; and 7) the denial of Rule 11 sanctions against Shirley’s counsel. We affirm in part and reverse in part and remand to the trial court for orders in accordance with this decision.

FACTS

[f 2.] Shirley and George were divorced in January, 2000. Among the issues addressed by the court in the divorce action was title to the parties’ marital home. In 1996, George and Shirley deeded the property to Gail, with Shirley retaining a life estate. Without joining Gail as a party, the divorce court repudiated the property transfer to Gail, finding that the self-executing provisions of the warranty deed had not taken place. The court ordered that the home be either listed or sold at auction with the proceeds to be divided by the parties with 67% going to George and 37% going to Shirley. Shirley moved out of the residence and placed the home for sale. Buyers were found who were willing to pay $100,000, the value set by the divorce court, for the home.

[¶ 3.] A title search by the potential buyers revealed Gail’s deed, and Gail was requested to execute a quit claim deed in favor of the prospective buyers. She refused and in August, 2000 she brought a quiet title action. At a hearing in October, 2000, Judge Fitzgerald ordered Shirley to pay the property taxes on the home for 1999, to return and reinstall any fixtures she had removed, to refrain from removing any other fixtures, and to commit no waste on the property. Shirley was to remain as the life tenant, with all of those duties and rights during the pendency of the action.

[¶ 4.] After the death of the trial court judge, Judge Kern was assigned to the case. In July, 2001, she directed the parties to file a statement of all contested issues and dispositive motions. Disposition of the claims was scheduled to occur on September 6, 2001. George, Gail and Shirley filed summary judgment motions. At the hearing, the trial court upheld the warranty deed of the property to Gail and quieted titled in her name. She then reduced the value of Shirley’s interest in the home into a money judgment against George. The sale of the home was quashed. On October 3, 2001, the court entered findings of fact and conclusions of law and an order granting Gail’s motion for partial summary judgment. On October 4, 2001, the court entered an order granting summary judgment to Shirley against George. Shirley was given a judgment sum against George for $34,678.19 for her interest in the property. .

[¶ 5.] On November 25, 2001, Gail filed a motion for waste and property taxes. She alleged that Shirley was liable to her for waste and for taxes incurred on the property during 2000 and 2001. On March 6 and 27, 2002, the court heard testimony on the motions. The court awarded Gail property taxes and other waste damages totaling $3,724.14 with prejudgment interest on everything but the property tax award. Shirley brought a motion for reconsideration and both sides sought Rule 11 sanctions against opposing counsel and parties. The court denied all of the motions. On July 9, 2002, the court entered findings of fact and conclusions of law and its judgment.

[¶ 6.] Shirley appeals raising the following issues:

1. Whether the circuit court had jurisdiction to proceed on Gail’s motion for waste after a final judgment was entered in the quiet title action.
2. Whether the circuit court erred in holding Shirley liable for waste and property taxes.
3. Whether the circuit court erred in failing to grant Shirley an offset or credit against the judgment for improvements she made to the property.

[¶ 7.] By notice of review, Gail raises the following issues:

4. Whether the circuit court erred when it denied Gail recovery for damages related to the entertainment center and light fixtures.
5. Whether the circuit court erred in denying prejudgment interest on the award of property taxes.
6. Whether the circuit court abused its discretion in denying treble damages against Shirley for waste.
7. Whether the circuit court erred in refusing to impose Rule 11 sanctions against counsel for Shirley.

We affirm the trial court on Issues 1, 2, 3, 4 and 6 and reverse and remand Issues 5 and 7.

STANDARD OF REVIEW

[¶ 8.] A trial court’s findings of fact will not be set aside unless they are clearly erroneous. Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 4, 562 N.W.2d 888, 890; Shedd v. Lamb, 1996 SD 117, ¶ 17, 558 N.W.2d 241, 244. We review conclusions of law under a de novo standard, with no deference to the trial court’s conclusions of law. Id.

[¶ 9.] 1. WHETHER THE CIRCUIT COURT HAD JURISDICTION TO PROCEED ON GAIL’S MOTION FOR WASTE AFTER A FINAL JUDGMENT WAS RENDERED IN THE QUIET TITLE ACTION.

[¶ 10.] On October 4, 2001, the trial court entered a judgment granting Gail partial summary judgment and quieting title in her name. None of the parties appealed that decision. On November 30, 2001, Gail filed a “Motion for Waste and Property Damage” and “Affidavit of Gail Thomas” alleging specific instances of waste. These papers were served on Shirley and George’s attorneys. No complaint or summons was filed for an action for waste.

[¶ 11.] Shirley argues that the judgment quieting title to the property in Gail was a final judgment and therefore the trial court was without jurisdiction to hear the motion requesting damages for waste. She asserts that since Gail did not make a motion under SDCL 15-6-60 for relief from a final judgment, the circuit court erred in allowing the motion for waste. However, SDCL 15-6-60 is inapplicable. Gail was not seeking relief from the judgment quieting title. Rather, she was requesting damages under SDCL 21-7-1. Therefore, the question is not whether Gail was entitled to relief from the judgment quieting title, but whether the trial court abused its discretion in reopening the proceedings.

[¶ 12.] We have held that, “[t]he reopening of a case to receive additional evidence is a matter within the trial court’s discretion and will not be disturbed on appeal except for an abuse of diseretion[.]” Rosen’s Inc. v. Juhnke, 513 N.W.2d 575, 576 (S.D.1994) (quoting 75 AMJur2d Trial § 379 (1991)); see also, Endres v. Endres, 532 N.W.2d 65, 72 (S.D.1995). The test to determine whether the court abused its discretion in reopening or refusing to reopen the case is “‘whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’ ” Rosen’s, 513 N.W.2d at 576, (quoting Myron v. Coil, 82 S.D. 180, 185, 143 N.W.2d 738, 740 (1966) (additional citations omitted)). The trial court possesses “wide discretion in passing on a motion to reopen, and such discretion is to be liberally exercised in behalf of allowing the whole case to be presented, for the best advancement of the ends of justice.” Rosen’s, 513 N.W.2d at 577 (quoting 88 CJS Trial § 108 (1955)).

[¶ 13.] Undoubtedly, it would have been better procedure for Gail to have filed a complaint and summons under a new heading, or filed a specific motion to reopen the case. However, it was not abuse of discretion for the court to reopen the case to hear evidence on waste.

[¶ 14.] Even assuming that the order quieting title in Gail was a final judgment and that on that basis the trial court erred in denying Shirley’s motion to dismiss Gail’s motion for waste, that error was harmless. SDCL 15-6-61 provides:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

In this case, vacating the trial court’s order allowing Gail damages for waste would serve no purpose but to prolong an already lengthy and contentious battle between these parties.

[¶ 15.] Regardless of whether the quiet title order was a final judgment, Gail would still have been entitled to bring a new complaint and commence an action for waste under a separate heading. Gail would not have been barred by res judica-ta from filing a new suit for waste damages under SDCL 21-7-1 because although the parties in this action are the same, there is no privity of issues. See generally, Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256 (1936). The issue decided in the quiet title action was to whom title to the property belonged. The motion for waste was a new issue, specifically whether Shirley was liable for waste damages for the time she held the property as a life tenant. The waste issue could not have been contemplated or ruled on during the September 6 hearing because until the court’s holding on the title, Gail had no legally cognizable rights in the property and therefore could not have determined if there was waste, and if so, the extent thereof. Furthermore, Judge Fitzgerald’s order of November 15, 2000 specifically ordered Shirley to return all fixtures and to not commit waste on the property. A suit for damages for waste was the only recourse Gail had to enforce this order and to recover for damages to her property. There has been no showing that the trial court abused its discretion in allowing the case to be reopened.

[¶ 16.] 2. WHETHER THE CIRCUIT COURT ERRED IN HOLDING SHIRLEY LIABLE FOR WASTE AND PROPERTY TAXES.

[¶ 17.] Shirley alleges that the trial court erred in finding her liable for several incidents of waste and property taxes.

[¶ 18.] SDCL 43-8-2 provides in part that “[t]he owner of a life estate must keep the building and fences in repair from ordinary waste[.]” The trial court found that Shirley failed in this duty by allowing and directing substandard electrical wiring installation by an independent contractor.

[¶ 19.] Both parties’ arguments are premised in part on the question of whether Shirley, as employer of the independent contractor, is liable for the contractor’s negligence in installing the wiring. These arguments miss the mark. Shirley was found liable not for negligence in the repairs done, but rather in damages for waste. Therefore, the arguments as to who is responsible for the work of the contractor are irrelevant. The dispositive question is whether the faulty wiring constitutes waste. We hold that it does.

[¶ 20.] SDCL 43-8-1 provides, “[t]he owner of a fife estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance ” (emphasis supplied). Shirley’s actions with regard to the wiring did injury to Gail’s inheritance. First, Shirley hired a contractor to do electrical work who was not an electrical contractor as required by SDCL 36-16-14. Second, Shirley failed to have the work inspected after it was finished as required by SDCL 36-16-15. Third, Shirley faded to repair the faulty wiring. These failures created a dangerous condition on the property that required Gail to pay the costs of inspection and repair and Shirley is responsible for the damage as life tenant. There has been no showing that the trial court erred in allowing damages for the repair of the defective wiring.

[¶ 21.] The trial court found Shirley liable for payment of property taxes on the home for the year 2000 and for part of 2001. Shirley alleges the trial court erred in this decision.

[¶22.] SDCL 43-8-2 provides in part that the “owner of a life estate must ... pay the taxes and other annual charges, and a just proportion of extraordinary assessments benefiting the whole inheritance.” As a matter of law, Shirley retained her life estate in the property until the trial court terminated it on October 3, 2001 in the quiet title action. Thus, according to the statute, she was responsible for taxes on the property.

[¶ 23-3 Shirley contends that since she left the property after Judge Davis’ order to sell the home, she did not enjoy the benefits of the life tenancy and therefore should not be responsible for the burdens. However, nothing in the South Dakota code indicates that absence from the premises relieves a life tenant from his or her duties to the remainderman. Furthermore, in Estate of Jackson, even though the life tenant was confined to a nursing home, this Court still indicated that she retained the duty not to commit waste. In re Estate of Jackson, 508 N.W.2d 374, 375 (S.D.1993) (citing SDCL 43-8-1). Finally, although Shirley argues that the legal issue to be determined is whether a life tenant who does not occupy the property is liable for waste, she supplies no authority for the Court’s consideration on this issue. Shirley’s decision to vacate the property did not relieve her of her duty not to commit waste and to pay the property taxes for the time she was legally entitled to use and enjoyment of the property. Shirley has shown no error in the trial court’s allowance of damages for the property taxes Shirley failed to pay.

[¶ 24.] 3. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO GRANT SHIRLEY AN OFFSET OR CREDIT AGAINST THE JUDGMENT FOR IMPROVEMENTS SHE MADE TO THE PROPERTY.

[¶ 25.] In the divorce proceeding, Judge Davis found that Shirley had made improvements to the home valued at approximately $6000.00. Shirley argues that the trial court erred in refusing to grant her a credit or an offset of Gail’s recovery in that amount. The general rule at common law is that a life tenant who makes improvements on the realty with knowledge of her title is presumed to have made those improvements for her own benefit and cannot recover for those improvements from the remaindermen. Johnson v. Hendrickson, 71 S.D. 392, 398, 24 N.W.2d 914, 917 (1946). Furthermore, Shirley was already compensated for those improvements in the divorce action. Judge Davis took the value of the improvements into consideration when he determined Shirley’s contribution to the marital estate. Finally, Shirley cited no authority either here or before the trial court for the proposition that a life tenant is entitled to such an offset. Without such authority, Shirley fails to show that the trial court erred when it denied her a credit or an offset for improvements she made to the property.

[¶ 26.] 4. WHETHER THE CIRCUIT COURT ERRED WHEN IT DENIED GAIL RECOVERY FOR DAMAGES RELATED TO THE ENTERTAINMENT CENTER AND LIGHT FIXTURES.

[¶ 27.] By notice of review, Gail argues that the trial court erred when it denied her damages for removal of an entertainment center and light fixtures from the property.

[¶ 28.] The entertainment center was built specifically for the home and was attached to a wall in the home by two screws. Gail argues that these facts should have led the court to the conclusion that the entertainment center was a fixture which Shirley was not permitted to remove from the home but nonetheless did.

[¶ 29.] At the first hearing on the quiet title action, Judge Fitzgerald ordered Shirley to return and reinstall the fixtures she removed from the home. The entertainment center had already been removed from the house. Gail argues that she is entitled to damages for the cost of reinstal-lation of the entertainment center. Shirley contends that she was expressly ordered on June 20, 2000, by Judge Davis to sell the entertainment center. The record does not support this assertion. Shirley was ordered, on June 22, 2000, to either return the entertainment center to the home or to pay George one-half of its value.

[¶ 30.] The record reveals that on August 15, 2000, George consigned the entertainment center and it was sold at auction. The sale price was divided between Shirley and George. Therefore, by the time Judge Fitzgerald ordered the return of removed fixtures, the parties to the divorce had already complied with Judge Davis’ order and split the proceeds of the entertainment center. Thus, Gail’s reliance on Judge Fitzgerald’s order to return and reinstall fixtures is misplaced. Judge Fitzgerald’s order could not have applied to the entertainment center because this issue had already been disposed of and ruled upon in the divorce proceeding.

[¶ 31.] Furthermore, we can find no error in the trial court’s determination that the entertainment center was not a fixture. SDCL 43-33-1 provides,

A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.

There is no dispute that this entertainment center was attached to the wall with two screws. However, the record does not support a finding that the entertainment center was in fact a permanent fixture. First, testimony at trial indicated that this unit could have been a free standing unit. Second, Forrest Dale Lewis, the person commissioned to build the entertainment center, testified that the screws were only put in at the top of the cabinet to insure that it would not topple over. Finally, in discussing the use of the screws, Lewis testified, “It was not classified as what I understand real property to be because it was not permanently affixed to the building.” (emphasis supplied). This does not support a finding that the entertainment center was a permanent fixture and therefore the trial court committed no error in refusing to award damages for the entertainment center.

[¶ 32.] Prior to the divorce action, the home contained a crystal chandelier and a wagon wheel chandelier. Gail argues that the court erred in denying her damages for light fixtures because both chandeliers were removed from the home prior to Gail taking possession. The record reveals that George took the wagon wheel chandelier. Shirley received the crystal chandelier as a gift from a former husband and she removed it from the property while the divorce was pending. The trial court refused to award waste damages on this issue 1) because George had the wagon wheel chandelier and 2) low grade light fixtures had been placed in the home. We find no error in the court’s decision on this issue and affirm.

[¶38.] 5. WHETHER THE CIRCUIT COURT ERRED IN DENYING PREJUDGMENT INTEREST FOR THE AWARD OF PROPERTY TAXES.

[¶ 34.] Gail contends that the court erred in denying her an award of prejudgment interest on the property taxes. SDCL 21-1-13.1 provides in part,

[a]ny person entitled to recover damages ... is entitled to recover interest thereon from the day that the loss or damage occurred ... [t]he court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs.

We have acknowledged that SDCL 21-1-13.1 makes an award of prejudgment interest mandatory rather than discretionary. Advine v. Mercedes-Benz of No. Amer., 2001 SD 3, ¶ 29, 620 N.W.2d 608, 614. The circuit court erred in failing to award prejudgment interest on the property taxes. While the trial court’s belief that the mass of litigation left no one entirely certain as to who owed property taxes is true, the statute is clear and the trial court retains no discretion to deny prejudgment interest. We reverse the trial court’s holding on this issue and remand for a determination of the amount of prejudgment interest owed by Shirley.

[¶ 35.] 6. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN DENYING TREBLE DAMAGES AGAINST SHIRLEY FOR WASTE.

[¶ 36.] Gail argues that the trial court erred in denying her claim for treble damages against Shirley. SDCL 21-7-1 provides:

[i]f a conservator, tenant for life or years, joint tenant, or tenant in common of real property, commits waste thereon, any person aggrieved by the waste may bring an action against him, in which action there may be judgment for treble damages, forfeiture of the estate of the party offending, and eviction from the premises.

We have held that treble damages are to be awarded under this statute only when they are supported by a finding that the waste was willful, wanton or malicious or in utter disregard for the rights of those who were thereafter to take possession of the property. Regan v. Moyle Petroleum Co., 344 N.W.2d 695, 697 (S.D.1984). Gail asserts that Shirley’s actions were in “utter disregard for [Gail’s] rights.” The trial court, sitting as the trier of fact, found otherwise. The statute makes the imposition of treble damages discretionary, and Gail has shown no abuse of discretion in the trial court’s decision. The trial court is affirmed on this issue.

[¶ 37.] 7. WHETHER THE CIRCUIT COURT ERRED IN DENYING RULE 11 SANCTIONS AGAINST SHIRLEY’S COUNSEL.

[¶ 38.] SDCL 15-6-ll(a) provides in part,

[e]very pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name[.] [T]he signature of an attorney or party constitutes a certificate by him ... that it is not interposed for any improper purpose, such as to harass, embarrass another party or person, or to cause unnecessary delay or needless increase in the cost of litigation.

SDCL 15-6-11(b) provides that if any submission is signed or filed in violation of 15-6-ll(a), the court, upon motion or its own initiative, “shall impose upon the person who signed or filed it ... an appropriate sanction!.]”

[¶ 89.] Gail asserts that the trial court erred in refusing to impose sanctions against Shirley’s attorney, Benjamin J. Eicher. Specifically, she asserts that in various writings before the trial court, Eicher made assertions and statements for the primary purpose of embarrassing and insulting Gail and her attorney. We agree. A sample of the statements submitted to the court by Eicher show that Eicher went beyond zealous advocacy. For example, in the document entitled “Shirley Thomas’ Reply to Gail Thomas’ Brief in Support of Motion for Waste and Property Taxes,” Eicher made the following comments:

“Gail’s attempt to avoid any burden at all from her great bounty ... is shockingly greedy, to put it bluntly.”
“Gail continues to not only want her pound of flesh, but wants all of the blood associated with it.”
“Gail’s greed is stunningly bold.”
“... [Gail’s] adamant persistence in trying to make Shirley accountable, belies an active, rancid animosity against Shirley which not only defies logic but apparently knows no bounds.”
“Then, to make certain that her fangs are fully bared for all to see, Gail hurls yet another dose of acidic bile at Shirley.”
“Gail’s despicable greed should not be rewarded.”

[¶ 40.] Eicher also included in his brief entitled “Shirley Thomas’ Memorandum of Law for Reconsideration,” his thoughts on the competence and intelligence of opposing counsel. An excerpt from this brief supports Gail’s assertion that the writing was done for the purpose of embarrassing her counsel:

Our present system is clogged with specious claims by novice lawyers. It is clogged with positions which have no basis in fact or law, as if ‘lawyering’ means to disagree with whatever the other side says ... When the undersigned thinks of what his mentor ... would have said had the undersigned taken the positions adopted here in this case by Gail and her counsel, it is not an exaggeration to say that a long lecture in ‘good lawyering’ would have occurred. However, without mentoring and without an eye toward quality practicing, Gail and her counsel simply fire away with a blunderbuss as much buckshot as possible, even if it is improper, unmerited, groundless or just plain wrong-with the comfort of knowing that all the court will do is reject the position ... Just like a child who grows up undisciplined because the parents failed to provide appropriately strict guidance, when lawyers dump their half-baked or completely uninvestigated contentions on the courtroom floor without correction, then it’s no wonder that they never learn to do things differently (i.e.correctly) next time.

[¶ 41.] In defense of his offensive statements, Eicher argues that there have been instances in which this Court has denied sanctions where the attorneys have said “worse” things about opposing counsel. The fact that other attorneys have behaved badly is not an adequate defense for Eicher’s behavior.

[¶ 42.] It is presumed that attorneys will act as vigorous advocates for their clients. However, personal attacks on opposing parties and their counsel do not fall within the bounds of vigorous advocacy. Eicher blatantly impugned the competence, intelligence, experience and ability of opposing counsel and he made frankly offensive and unwarranted personal attacks on Gail. His writings added nothing to the determination of legal issues and only worked to inflame opposing counsel. This issue is remanded to the trial court for imposition of appropriate sanctions against Eicher for his uncivil behavior.

ATTORNEY FEES

[¶ 43.] Shirley has petitioned the Court for $365.58 in appellate attorney fees in accordance with SDCL 15 — 6—11(d). This statute provides in part that “[Reasonable attorney’s fees and costs shall be awarded to the successful party on appeal” in cases where Rule 11 sanctions are at issue. Because she did not prevail on appeal, Shirley is not entitled to attorney fees and costs.

[¶ 44.] We affirm Issues 1, 2, 3, 4, and 6. Issue 5 is reversed and remanded for calculation and award of prejudgment interest. Issue 7 is reversed and remanded for imposition of appropriate Rule 11 sanctions.

[¶ 45.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 46.] MILLER, Retired Justice, sitting for KONENKAMP, Justice, disqualified.

       Eicher argues that this Court may not review this question because the circuit court entered no findings of fact and conclusions of law as to this issue pursuant to SDCL 15-6-11(c). However, the findings of fact and conclusions of law specifically incorporate the trial court’s oral rulings and as such, sufficiently address the issue of sanctions. At the hearing on April 22, 2002, where the court issued its rulings on all issues, the court addressed sanctions against Eicher stating in part, ”[i]t [is] unfortunate that this litigation has been so contentious. Part of that animosity comes from the parties themselves. And Counsel, it appears to the court, became embroiled in that animosity between the litigants.”