author: MARING, Justice.

text:
    2007 ND 205
    George HSU, M.D., Plaintiff and Appellant v. MARIAN MANOR APARTMENTS, INC., Defendant and Appellee.
    No. 20070040.
    Supreme Court of North Dakota.
    Dec. 20, 2007.
    Jeffrey S. Weikum (argued) of Pagel Weikum Law Firm, Bismarck, for plaintiff and appellant.
    John C. Kapsner (argued) and Kari R. Reichert of Vogel Law Firm, Bismarck, for defendant and appellee.
   MARING, Justice.

[¶ 1] George Hsu appeals the district court’s Judgment of Dismissal granting summary judgment in favor of Marian Manor Apartments, Inc. (“Marian Man- or”). We affirm the district court Judgment of Dismissal.

I

[¶ 2] The underlying facts are undisputed. Hsu began practicing medicine in North Dakota in 1987. Marian Manor, a North Dakota corporation, owns and operates a nursing home in Glen Ullin. Hsu leased a portion of the nursing home facility for use as a medical clinic. The parties entered into a five-year lease commencing February 1, 1991, and terminating on January 31, 1996. Section 27 of the lease provided Hsu an option to renew for three additional five-year terms.

[¶ 3] The lease identified “George S. Hsu, M.D.” as the lessee. The lease recitals provided, “Lessee desires to lease a portion of the premises for the purpose of conducting a business of a medical clinic.” Subsection 8(G) stated, “The Lessee shall obtain and maintain all necessary licenses, certifications, and accreditations as may be necessary to operate.” Subsection 12(4) of the lease provided that any noncompliance of Hsu with a condition of the contract not reasonably curable upon thirty days’ notice constituted a default or breach of the lease. In the event of a default, Subsection 13(1) gave Marian Manor the right to cancel and terminate the lease by providing Hsu at least thirty days’ notice of cancellation and termination.

[¶ 4] Hsu exercised his option to renew twice, extending the lease through January 31, 2005. In addition to operating the clinic at Marian Manor, Hsu operated a clinic in Elgin. Hsu operated both clinics as sole proprietorships. Hsu reported the clinic revenues on his personal tax return.

[¶ 5] The State Board of Medical Examiners temporarily suspended Hsu’s license to practice medicine in March 2004. After his license was suspended, Hsu continued to manage the clinic at Marian Manor. He hired a physician to provide medical services and serve as medical director. He also employed a nurse practitioner and chiropractor to provide services to clinic patients. Hsu billed patients for services rendered by the clinic employees. Hsu paid himself an administrator’s salary. As owner of the clinic, Hsu kept any revenue generated in excess of the wages paid to the clinic employees. On November 19, 2004, Hsu’s license to practice medicine was revoked. On December 15, 2004, Marian Manor advised Hsu that his lease would not be renewed, and that a new tenant would replace him once the lease expired on January 31, 2005.

[¶ 6] Hsu brought a claim against Marian Manor in August 2005, alleging Marian Manor breached the lease by wrongfully refusing to renew it. Marian Manor moved for summary judgment. The district court granted Marian Manor’s motion in December 2006, concluding the lease unambiguously required Hsu to maintain a valid medical license and prohibited Hsu from conducting unlawful activity on the premises. The court also concluded that Hsu’s continued operation of the clinic after revocation of his medical license violated the requirements of the lease and constituted a default that entitled Marian Manor to refuse to renew the lease. Hsu appeals.

II

[¶ 7] Summary judgment is governed by Rule 56, N.D.R.Civ.P. “Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615. Whether a grant of summary judgment was proper is a question of law reviewed de novo by this Court. Id. On appeal, the party opposing the motion for summary judgment is given the benefit of all favorable inferences that can reasonably be drawn from the evidence. Kondrad v. Bismarck Park Dist., 2003 ND 4, ¶ 4, 655 N.W.2d 411.

[¶ 8] Whether a contract is ambiguous is a question of law. Kaler v. Kraemer, 1999 ND 237, ¶ 14, 603 N.W.2d 698. “When a contract is ambiguous, the terms of the contract and the parties’ intent become questions of fact.” Id. Unambiguous contracts are particularly amenable to summary judgment. Kondrad, 2003 ND 4, ¶ 6, 655 N.W.2d 411.

[¶ 9] Contracts are construed to give effect to the parties’ mutual intention at the time of contracting. N.D.C.C. § 9-07-03. Parties’ intentions are to be ascertained from a written contract alone if possible. N.D.C.C. § 9-07-04. A contract is interpreted as a whole so as to give effect to every part: “Each clause is to help interpret the others.” N.D.C.C. § 9-07-06. Words in a contract are to be interpreted in their ordinary sense. N.D.C.C. § 9-07-09. “A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.” N.D.C.C. § 9-07-12.

Ill

[¶ 10] Hsu argues the district court improperly granted Marian Manor’s motion for summary judgment because the lease does not unambiguously require him to personally maintain a valid medical license. Hsu contends that the requirement under Subsection 8(G) of the lease that he “obtain and maintain all necessary licenses, certifications, and accreditations as may be necessary to operate” speaks only to the operation of the medical clinic. Hsu asserts a plain reading of Subsection 8(G) does not require him to personally maintain a medical license. Hsu maintains the lease only requires him to ensure that clinic personnel who provide medical services are properly licensed and certified to do their jobs. Hsu reasons that Subsection 8(G) must have contemplated his employment of personnel and is aimed at ensuring the personnel who actually treat clinic patients are properly licensed.

[¶ 11] Marian Manor argues the district court’s grant of its motion for summary judgment was appropriate because the lease unambiguously requires Hsu to maintain a medical license. Although the term “necessary licenses” is not defined by the lease, Marian Manor asserts that the term can only mean a valid license to practice medicine issued to Hsu by the State Board of Medical Examiners. The lease specifically refers to Hsu as “George S. Hsu, M.D.” The recitals in the lease indicate that Hsu desired to conduct a medical clinic on the premises. The lease refers to Hsu personally, not to his employees. The lease provides, “Lessee shall obtain and maintain all necessary licenses.” Thus, Marian Manor contends the circumstances under which the lease was made evidence that Hsu’s medical license is a “necessary license” Hsu was required to maintain under the terms of the lease.

[¶ 12] In its Memorandum Opinion and Order granting Marian Manor’s motion for summary judgment, the district court concluded that the language of the lease clearly and unambiguously required Hsu to maintain his license to practice medicine and that the revocation of Hsu’s license constituted a breach entitling Marian Man- or to refuse to renew the lease for another five-year term. We agree.

IV

[¶ 13] We hold as a matter of law that the lease between Hsu and Marian Manor unambiguously requires Hsu to maintain his license to practice medicine. As evidenced by the purpose and plain language of the lease, Hsu and Marian Manor mutually intended at the time of contracting that revocation of Hsu’s license to practice medicine would constitute a breach of the lease enabling Marian Manor to refuse renewal of the lease for an additional five-year term.

[¶ 14] Under the plain language of the lease, Hsu was required to maintain his license to practice medicine. The named lessee is “George S. Hsu, M.D.” The use of the suffix “M.D.” indicates that the person is engaged in the practice of medicine. See N.D.C.C. § 43-17-01(3)(d). Section 8(G) of the lease provides: “The Lessee shall obtain and maintain all necessary licenses, certifications, and accreditations as may be necessary to operate” (emphasis added). Hsu’s personal medical license is a “necessary license” Hsu was required by the lease to obtain and maintain.

[¶ 15] Viewing the contract in its entirety and under the circumstances in which it was entered into confirms that the parties intended Hsu be required to maintain his license to practice medicine. A small town nursing home facility sought a medical doctor to establish a practice in a portion of its building to provide medical care to the facility’s residents and others in the community. The purpose of the contract was to enable Hsu, the lessee, to provide medical services on the premises of the Marian Manor nursing home facility. The circumstances support that the parties intended Hsu would remain a licensed medical doctor through the duration of the lease. In oral argument, Hsu’s attorney acknowledged that neither party contemplated the possibility Hsu would lose his license to practice medicine. Hsu’s personal license to practice medicine comes under the umbrella of the “necessary licenses, certifications, and accreditations” he was required to maintain under the terms of the lease.

[¶ 16] Revocation of his license constituted a breach of the requirements of the lease. Thus, Marian Manor was entitled under the terms of the lease to refuse to renew the lease for an additional five-year term.

V

[¶ 17] Hsu argues that his operation of the clinic was lawful and did not constitute a breach of lease provisions prohibiting Hsu from engaging in unlawful activity and requiring him to operate the clinic in accordance with all government requirements. Hsu contends that his employment of a physician did not constitute the unlawful practice of medicine. Marian Manor asserts that the legislative adoption of N.D.C.C. § 43-17-42, which expressly allows hospitals to employ physicians without being deemed to have engaged in the unauthorized practice of medicine, signals, by negative implication, legislative adoption of the corporate practice of medicine doctrine. “The corporate practice of medicine doctrine prohibits corporations from providing professional medical services.” Berlin v. Sarah Bush Lincoln Health Center, 179 Ill.2d 1, 227 Ill.Dec. 769, 688 N.E.2d 106, 110 (1997). Thus, Marian Manor maintains that Hsu’s employment of a physician constitutes the unlawful practice of medicine and a breach of the lease. Because we hold that the terms of the lease unambiguously required Hsu to maintain his personal license to practice medicine, we do not reach this issue.

VI

[¶ 18] We, therefore, conclude that Hsu’s license to practice medicine was a “necessary license” Hsu was required to maintain under the terms of the lease. Revocation of his license constituted a breach of the lease enabling Marian Manor ■ to refuse to renew the lease for an additional five-year term. We affirm the district court’s Judgment of Dismissal granting summary judgment in favor of Marian Manor.

[¶ 19] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ, and DONOVAN J. FOUGHTY, D.J. concur.

[¶ 20] The Honorable DONOVAN J. FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2007 SD 134
    Terry BROWN and Susan Brown, Plaintiffs and Appellees, v. James HANSON, Defendant and Appellant.
    No. 24526.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 6, 2007.
    Decided Dec. 26, 2007.

      Dylan A. Wilde, Brady & Pluimer, Spearfish, South Dakota, Attorneys for plaintiffs and appellees.
    Brad P. Gordon, Eric J. Strawn, Tellin-ghuisen & Gordon, P.C., Spearfish, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] James Hanson appeals from a summary judgment granted in a declaratory judgment action in favor of Terry Brown and Susan Brown (Browns) concerning the question of whether Hanson was entitled to rescind a Common Well and Road Easement Agreement (Easement Agreement). We affirm.-

FACTS

[¶2.] Browns and Hanson own adjoining real property in Meade County, South Dakota. A well that provides water to both properties is located on Hanson’s property. On June 14, 2000, Browns and Hanson entered into the Easement Agreement giving Browns the right to access water from the well for domestic purposes only. The Easement Agreement provided as follows:

That it shall be binding upon “Brown, Hanson and their respective heirs, successors, and assigns, and shall be considered to be a covenant running with the land. The parties agree that the well located upon the Hanson property shall be utilized to provide water service to both the Hanson property and the Brown property. The parties each agree to use the water from the well for domestic purposes only and neither party shall sell any water from well, without written consent of the other party.

[¶ 3.] In July of 2006, Browns entered into a purchase agreement to sell their property to a third party. Before the sale was complete, Hanson filed a letter with the Meade County Register of Deeds claiming he had rescinded the Easement Agreement. Browns commenced a declaratory judgment action to determine if Hanson could seek rescission as a remedy. Hanson filed an answer and a counterclaim seeking rescission.

[¶4.] It is undisputed that each year from 2000 to 2005 Browns permitted 15-20 individuals to place their tents and recreational vehicles on their property during the Sturgis Bike Rally. For purposes of summary judgment, the circuit court considered as undisputed fact that Browns had used water for non-domestic, non-residential purposes and thereby had breached the agreement. The only issue before the circuit court was whether Hanson was entitled to the remedy of rescission. Based upon the language of the Easement Agreement, the court determined that the parties did not intend to create a conditional easement but had created a permanent water right. The court determined that the remedy of rescission was not available for breach of the agreement and entered partial summary judgment in favor of Browns and against Hanson. Hanson claims that the circuit court erred when it determined that rescission was not a remedy. The issue on appeal is as follows:

ISSUE

Whether Hanson has the right to seek rescission as a remedy for breach of the Easement Agreement.

STANDARD OF REVIEW

[¶ 5.] “When reviewing a grant of summary judgment, ‘we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.’ ” Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. “All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party.” Hendrix v. Schulte, 2007 SD 73, ¶ 6, 736 N.W.2d 845, 847. Once we determine that the “material facts [are] undisputed, our review is limited to determining” whether the law was correctly applied. Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438. “If any legal basis exists to support the circuit court’s ruling, we affirm.” Johns v. Black Hills Power, Inc., 2006 SD 85, ¶ 4, 722 N.W.2d 554, 556.

ANALYSIS

[¶ 6.] The parties agree that they had an express easement. An easement is “ ‘an interest in the land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists.’ ” Knight v. Madison, 2001 SD 120, ¶ 4, 634 N.W.2d 540, 541 (citing Gilbert v. KTI, Inc., 765 S.W.2d 289, 293 (Mo.Ct.App.1988) (citations omitted)). South Dakota law recognizes a “right of taking water” as an easement “that may be attached to other land as incidents or appurtenances.” SDCL 43-13-2. Additionally, “[t]he extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” SDCL 43-13-5.

[¶ 7.] Here the parties determined the terms of the servitude by a written contract. The written contract involved the well and water main running from the well through three service lines with shut-off valves. One line serviced the home on the Brown property, and the other two lines serviced the home and barn on the Hanson property. The written contract set forth the parties’ “rights and obligations concerning the use of water from the water well.” The agreement provided that the parties would “use the water from the well for domestic purposes only, and neither party shall sell any water from the well, without written consent of the other party.” The agreement also specified that each party was responsible for the maintenance of the service lines on the party’s property and one-half of the cost of electricity and repair and maintenance of the equipment. Other provisions of the agreement involved the right of access to each other’s property and to a trail running across Browns’ property, and apportioned the use and cost of maintenance of an access road.

[¶ 8.] Hanson claims, pursuant to SDCL 43-13-12, that Browns’ use of the water for non-domestic purposes extinguished the water easement because non-domestic water use was incompatible with the nature or exercise of the easement. Hanson claims that since the easement was extinguished, he is entitled to seek rescission as a remedy. In determining the narrow issue of whether Hanson could seek rescission, the circuit court assumed that Browns had breached the Easement Agreement.

[¶ 9.] South Dakota law recognizes rescission of a written contract in certain cases. SDCL 21-12-1. SDCL 53-11-2 provides for rescission of a written contract “in the following cases only:”

(1) If consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, fraud, or undue influence exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party;
(2) If through fault of the party as to whom he rescinds, the consideration for his obligation fails in whole or in part;
(3) If the consideration becomes entirely void from any cause;
(4) If such consideration before it is rendered to him fails in a material respect from any cause; or
(5) By consent of all the other parties.

Id. Since Hanson neither alleged nor provided evidence as to any of the statutory factors, the circuit court correctly concluded that SDCL 53-11-2 did not apply.

[¶ 10.] Consequently, Hanson’s counterclaim for a judgment of rescission is equitable in nature. See Northwest Realty Co. v. Carter, 338 N.W.2d 669, 672 (S.D.1983). “Generally, equity will not take jurisdiction to declare a rescission where a party has an adequate and complete remedy at law.” Id. Further, the maxim consistently recognized and reiterated in the South Dakota courts, the federal courts and the United States Supreme Court is that “a court of equity abhors forfeitures, and will not lend its aid to enforce them.” Jones v. New York Guaranty & Indem. Co., 101 U.S. 622, 628, 25 L.Ed. 1030 (1879) (refusing contract rescission on equity maxims).

[¶ 11.] The circuit court determined that the easement was permanent in nature. The Browns-Hanson Easement Agreement was not limited to a set number of years nor was it contingent on subsequent happenings. In Steele v. Pfeifer, we stated that where,

[t]here is no limitation set out in the terms of the easement or grant, either in years, or upon a happening of a particular event as a contingency ... it has generally been held to be permanent in nature and would continue in operation forever, unless abandoned by non-use. This is particularly true where words of inheritance are used, (citations omitted).

310 N.W.2d 782, 786-87 (SD 1981). Although Hanson does not challenge that the easement is permanent, he claims it was extinguished by Browns’ misuse.

[¶ 12.] South Dakota law sets forth the conditions of extinguishment. The statute provides: “A servitude is extinguished by the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.” SDCL 43-13-12. “The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement.” SDCL 43-13-3. “The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” SDCL 43-13-5. The extent of the servitude in this case is determined by the terms of the Easement Agreement. This Court stated in Knight v. Madison, “[u]n-der [SDCL 43-13-5], neither the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement.” 2001 SD 120, ¶ 6, 634 N.W.2d 540, 542 (citation omitted); Boyer v. Dennis, 2007 SD 121, 742 N.W.2d 518. A grantee may not “increase the amount or extent” of use of an easement “beyond what was originally intended and embraced in the grant.” Halsrud v. Brodale, 247 Iowa 273, 72 N.W.2d 94, 98 (1955).

[¶ 13.] For extinguishment to occur pursuant to SDCL 43-13-12, Browns’ “performance of any act” (commercial use of the water) would have to be “incompatible with [the servitude’s] nature or exercise.” SDCL 43-13-12. Since the term “incompatible” is not defined in the statute we rely on its plain and ordinary meaning. “Incompatible” is defined by the Merriam-Webster dictionary as “incapable of association or harmonious coexistence.” http//: www.merriam-webster.com, last visited December 21, 2007. The express terms of the Easement Agreement limited the water use to domestic purposes only. Thus, the question is whether Browns’ acts of using the water for more than domestic purposes is “incompatible;” that is, whether it is incapable of association or harmonious coexistence, with the “nature or exercise” of the easement. See id.

[¶ 14.] We have not had an occasion to apply SDCL 43-13-12 to facts involving misuse or overuse of an easement. In Hofmeister v. Sparks, the issue involved whether nonuse extinguished an easement. 2003 SD 35, ¶ 13, 660 N.W.2d 637, 641. We determined that “mere nonuse” was insufficient and that the statute required “an affirmative act of abandonment on the part of the owner of the easement to extinguish the easement.” Id.; see also Graves v. Dennis, 2004 SD 137, 691 N.W.2d 315.

[¶ 15.] Other jurisdictions with similar statutes have used a severability test to determine whether misuse or overuse extinguishes an easement. California Civil Code § 811 (Extinguishment of Servi-tudes) is identical to SDCL 43-13-12. The California Code provides, “servitude is extinguished ... (3) By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.” Id. California courts interpret incompatibility as follows: “The courts have interpreted this incompatibility as necessitating a permanent interference or an act of a nature such that thereafter exercise of the easement cannot be made without severe burden upon the servient tenement.” Buechner v. Jonas, 228 Cal.App.2d 127, 132, 39 Cal.Rptr. 298 (1964) (citing Lux v. Hoggin, 69 Cal. 255, 4 P. 919 (1884) (emphasis in original)). Courts have not extinguished easements if the increased burden can be severed from the dominant tenant’s entitlement and the easement can be restored to its contemplated use. See, Crimmins v. Gould, 149 Cal.App.2d 383, 392, 308 P.2d 786, 792 (1957); Buechner, 228 Cal.App.2d 127, 39 Cal.Rptr. 298; Halsrud, 72 N.W.2d at 98.

[¶ 16.] In Halsrud v. Brodale, the Iowa Supreme Court stated that, “[t]he general rule does not permit forfeitures for a misuse [] of the easement unless it is impossible to sever the increased burden in such a way as to preserve to the owner of the dominant tenement that to which he is entitled.” 72 N.W.2d at 100-01. The Iowa Court found under the facts of the case that the proper remedy for misuse of the easement was an injunction rather than extinguishment. Id. at 99-100. We also find the severability test helpful in determining whether misuse compels extin-guishment.

[¶ 17.] Here, Browns’ unauthorized use (commercial use of the water) can be severed from the authorized domestic use described in the Easement Agreement. Hanson has not alleged nor shown that his domestic use was disturbed or diminished by the Browns’ unauthorized use, that Browns’ unauthorized use caused a permanent or severe burden on him, or that the residential and commercial uses were “incompatible” under the plain meaning of the term. Consequently, the unauthorized use was not of such a nature that it caused the easement to be extinguished.

[¶ 18.] Based on the determination that Browns’ breach of the Easement Agreement did not extinguish the easement, the circuit court entered declaratory judgment that Hanson could not seek rescission as a remedy. We agree and affirm the circuit court on this issue. In conjunction with the declaratory judgment, the court also dismissed Hanson’s counterclaim, which requested rescission. Hanson claims that the court erred when it dismissed his counterclaim sua sponte.

[¶ 19.] “Sua sponte orders of summary judgment will be upheld only when the party against whom judgment will be entered was given sufficient notice and an adequate opportunity to demonstrate why summary judgment should not be granted.” Myers v. Tursso Co., Inc., 496 F.Supp.2d 986, 993 (N.D.Iowa 2007) (citations omitted). However, sua sponte orders are appropriate where “the court’s ruling on issues properly raised forecloses as a matter of law the claim on which the court wishes to grant summary judgment sua sponte.” Id.; In re Estate of Steffen, 467 N.W.2d 490 (S.D.1991) (upholding a sua sponte grant of summary judgment on the issue of ownership rights in the marital home where a property settlement agreement was dispositive).

[¶ 20.] Hanson based his request for rescission solely on the claim that Browns’ actions extinguished the Easement Agreement as a matter of law. Without extin-guishment, Hanson’s request for rescission had no basis. The court’s ruling on the declaratory judgment precluded Hanson, as a matter of law, from succeeding against Browns on his counterclaim for rescission. The evidence regarding the declaratory judgment action did not differ from the evidence Hanson would have presented on his counterclaim. The court considered the evidence in the light most favorable to Hanson. Both actions — the request for declaratory judgment and the counterclaim — required a determination of whether Hanson was entitled to rescind the Easement Agreement. Once the circuit court determined that Hanson was not entitled to rescind, Hanson’s counterclaim for rescission was precluded as a matter of law. Consequently, the circuit court did not err in sua sponte dismissing Hanson’s counterclaim.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZIN-TER, Justices, concur.


author: HALBROOKS, Judge.

text:
    Irene HOFFMAN, et al., Respondents, v. NORTHERN STATES POWER COMPANY, d/b/a Xcel Energy, Appellant.
    No. A06-2275.
    Court of Appeals of Minnesota.
    Jan. 22, 2008.

      Vincent J. Esades, Lori A. Johnson, Scott W. Carlson, Heins Mills & Olson, P.L.C., Minneapolis, MN, Charles S. Sie-gel (pro hac vice), Waters & Kraus, LLP, Dallas, TX, for respondents.
    Timothy R. Thornton, Thomas J. Basting, Jr., Briggs and Morgan, P.A., Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; STONEBURNER, Judge; and MINGE, Judge.
   OPINION

HALBROOKS, Judge.

By certified question pursuant to Minn. R. Civ.App. P. 103.03(i), the district court asks (1) whether the filed-rate doctrine bars respondents’ action and (2) whether the primary-jurisdiction doctrine requires the district court to defer resolution of the services required by the applicable tariffs to the responsible administrative agency. Because respondents’ claim for damages, along with either specific performance or injunctive relief, amounts to an attack on tariffs filed with the appropriate regulatory entity, we answer the first certified question in the affirmative, reverse the district court’s denial of a motion to dismiss on that ground, and remand to the district court for entry of judgment. Because our answer to the first certified question is dispositive, we do not reach the second certified question.

FACTS

Appellant Northern States Power Company, d/b/a Xcel Energy (NSP), provides electrical service to customers located in Minnesota, North Dakota, and South Dakota. The relationship between NSP and its customers is regulated by tariffs authorized by the utility regulatory agencies of the three states. The tariffs set forth the rates that NSP charges for services as well as the obligations of NSP and its customers to each other. All three states have identical tariffs.

In Minnesota, the legislature has established a comprehensive system for the regulation of utilities. Minn.Stat. §§ 216B.01-216B.82 (2006). Enforcement of the regulations prescribed therein is delegated to the Minnesota Public Utilities Commission (MPUC), which is charged with providing Minnesota consumers with reasonable energy rates. Minn. Stat. §§ 216B.01, 216B.08. All public utilities must file their rates, tolls, tariffs, and charges, along with all rules and contracts that will affect those rates, tolls, tariffs, and charges, with the MPUC. Minn.Stat. § 216B.05. The MPUC is charged with setting rates that are reasonable and are not prejudicial or discriminatory. Minn. Stat. § 216B.03.

On March 15, 2006, respondents Irene and David Hoffman, Jerry Ustanko, and Mulungeta Endayehu filed a complaint in district court, individually and “on behalf of all of [NSP’s] residential electric customers in Minnesota, North Dakota and South Dakota.” Respondents alleged that NSP violated its contractual obligation to maintain “points of connection” between its wires and its customers’ homes.

According to respondents, NSP initially connects a customer to its system by affixing wires to lugs within the customer’s meter box. After securing this connection, NSP installs a seal on the meter box to prevent access by the customer, a measure provided for in the tariffs. Respondents contend that over time, these connections can become corroded, loose, or both, causing a fire hazard. They argue that NSP is obligated under the tariffs to inspect and maintain its electrical wiring up through and including this connection point. The applicable tariffs provide:

The service conductors as installed by the Company from the distribution line to the point of connection with the customer’s service entrance conductors will be the Company’s property and will be maintained by the Company at its own expense.
The customer will provide for the safekeeping of the Company’s meters ....
ALL WIRING AND EQUIPMENT ON CUSTOMER’S SIDE OF THE POINT OF CONNECTION, EXCEPT METERING EQUIPMENT, WILL BE FURNISHED, INSTALLED, AND MAINTAINED AT THE CUSTOMER’S EXPENSE....

(Emphasis added.) Respondents argue that they pay for maintenance of the points of connection through a “basic service charge” included in the monthly bill that they receive from NSP. They seek damages equal to the value of the inspections and maintenance that they claim are required and also seek either injunctive relief or specific performance requiring NSP to maintain the points of connection going forward.

On August 16, 2006, NSP moved for judgment on the pleadings, arguing that two principles of regulatory law, the filed-rate doctrine and the primary-jurisdiction doctrine, required the district court to decline jurisdiction over the case. The district court denied this motion on November 1, 2006. But on November 18, 2006, the district court certified two questions to this court: (1) whether the filed-rate doctrine bar respondents’ claims and (2) whether the primary-jurisdiction doctrine requires the court to defer resolution of the services required by the applicable tariffs to the responsible administrative agency. This certified appeal follows.

ISSUES

I. Did the district court properly certify the application of the filed-rate doctrine as an important and doubtful question?

II. Does the filed-rate doctrine bar respondents’ claim?

ANALYSIS

I.

Before addressing the merits of the parties’ arguments, we must determine whether there is proper jurisdiction for this appeal. Respondents argue that the applicability of the filed-rate doctrine is not an issue that is appropriate for certification under Minn. R. Civ.App. P. 103.03(i), which allows an appeal from the denial of a motion to dismiss upon the district court’s certification of questions as “important and doubtful.” See In re Welfare of Child of L.M.L., 730 N.W.2d 316, 319 (Minn.App.2007). This court independently reviews whether a certified question is important and doubtful. Id.

A question is important if “(1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial.” Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 884 (Minn.2000). “[A] great deal of importance should be placed on whether reversal of the question will terminate the proceedings.” Id.

“A question is ‘doubtful’ only if there is no controlling precedent. That the question is one of first impression is not, however, of itself sufficient to justify certification ... there [must be] substantial ground for a difference of opinion.” Emme v. C.O.M.B., Inc., 418 N.W.2d 176, 179-80 (Minn.1988). Parties may not use the certification process as a substitute for the normal appellate process or to secure an advisory opinion. Jadea v. Coca-Cola Bottling Co., 580 N.W.2d 27, 30 (Minn.1998).

Whether the filed-rate doctrine bars respondents’ claim is important. The district court properly determined that certification could terminate potentially lengthy proceedings, a factor of primary importance under Jostens. See Jostens, 612 N.W.2d at 884. This is particularly true here, because uncertainty in the law makes any decision of the district court subject to reversal. In addition, because respondents are attempting to certify a class, if allowed to proceed this case could have impact throughout Minnesota and beyond into North and South Dakota.

The question is also doubtful. Minnesota courts have only held that one prior action was barred based on the filed-rate doctrine. Schermer v. State Farm Fire & Cas. Co., 721 N.W.2d 307 (Minn.2006). No Minnesota appellate court has addressed the filed-rate doctrine in the context of the utility rates at issue here. Further, there appears to be a split among federal authorities as to whether the doctrine precludes claims that are seeking no more than interpretation and enforcement of the terms of a tariff. Compare H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992), with Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1166 (9th Cir.2002).

Because whether the filed-rate doctrine bars respondents’ claim is an important and doubtful question, we hold that certification is appropriate under rule 103.03(i). It is therefore unnecessary to reach NSP’s argument that immediate review is also appropriate under rule 103.03(j). A certified question is a question of law, which we review de novo. B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821 (Minn.2003).

II.

The filed-rate doctrine, as applied by the United States Supreme Court for more than a century, forbids a regulated entity from charging its customers a rate other than the one duly filed with the appropriate regulatory authority. See H.J. Inc., 954 F.2d at 488 (citing Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 2930, 69 L.Ed.2d 856 (1981)); see also Tex. & Pac. R.R. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). As a necessary corollary to this rule, customers are precluded from challenging in court the reasonableness of a filed rate. See Keogh v. Chicago & Nw. R.R., 260 U.S. 156, 165, 43 S.Ct. 47, 50, 67 L.Ed. 183 (1922) (holding that filed-rate doctrine precluded antitrust claim by shipper against carrier seeking to recover a portion of the filed rate). This preclusion against suit extends to claims challenging the services provided in exchange for a filed rate. See AT & T Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 223, 118 S.Ct. 1956, 1963, 141 L.Ed.2d 222 (1998). As the United States Supreme Court has explained, “Rates ... do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for excessive rates can be couched as a claim for inadequate services and vice versa.” Id.

The Minnesota Supreme Court adopted the filed-rate doctrine in Schermer, 721 N.W.2d at 319. In Schermer, the appellant-insureds brought suit against the providers of their homeowners’ insurance, alleging that a policy provision providing for a surcharge based on the age of the dwelling was unfairly discriminatory. 721 N.W.2d at 310-11. The supreme court reviewed the history and underpinnings of the filed-rate doctrine and held that it applied to the Minnesota insurance industry and precluded the claims asserted by the plaintiffs. Id. at 317.

In so holding, the supreme court emphasized the separation-of-powers purposes underlying the filed-rate doctrine, noting that “ratemaking is a legislative function.” Id. at 314 (citing Nw. Bell Tel. Co. v. State, 299 Minn. 1, 28, 216 N.W.2d 841, 857 (1974)). The supreme court identified a common theme in the United States Supreme Court cases according deference to administrative determinations. Id. at 311-12 (citing Keogh, 260 U.S. at 163, 43 S.Ct. at 49-50; Ark. La. Gas Co., 453 U.S. at 573, 101 S.Ct. at 2927). The supreme court compared this deferential basis for the filed-rated doctrine with its own precedent according deference to the rate-making function. See id. at 313-14. The supreme court further recognized that “courts are ill equipped to retroactively reallocate rates among ratepayers, by modifying the rates for some ratepayers but not for others.” Id. at 315. Approving these underpinnings of the filed-rate doctrine, the supreme court in Schermer concluded that the doctrine applied to preclude the plaintiffs’ claims challenging their insurance rates. Id.

The holding in Schermer applies with equal force here. While Schermer arose in the context of the insurance industry, respondents do not dispute that the adoption of the filed-rate doctrine should extend to the public-utilities context. Instead, respondents argue that their claims are not precluded by the doctrine because they do not challenge the rates charged by NSP, but rather assert that NSP failed to provide a service — the maintenance of the points of connection — that is required by the tariff. They further assert that they do not seek a refund of the rate paid, but rather contract damages for the value of services promised but not provided.

We reject this latter distinction as no more than semantic. In determining the application of the filed-rate doctrine, our focus is on “the impact the court’s decision will have on agency procedures and rate determinations.” H.J., 954 F.2d at 489 (collecting United States Supreme Court cases holding that common-law damages claims are precluded). And, here, as in Schermer, respondents underestimate the extent to which a judicial decision in their favor would interfere with rate-making. See 721 N.W.2d at 314. Whether properly characterized as a request for additional services or enforcement of the tariff “as it stands,” respondents’ claims will inevitably impact the rate-making process between NSP and the MPUC. Public-utility rate setting is a complex process, involving the agency’s review and careful balancing of multiple factors affecting the regulated entity’s appropriate rate of return. See Nw. Bell, 299 Minn. at 5-6, 216 N.W.2d at 846 (describing the process). A judgment from the court in this matter — whether or not it merely construes the tariff — will interfere with the rate-making process. See Schermer, 721 N.W.2d at 307 (citing Peoples Nat. Gas Co. v. Minn. Pub. Utils. Comm’n, 369 N.W.2d 530, 535 (Minn.1985)) (recognizing that “the regulations of rates is an ‘intricate, ongoing process’ and interference by a court ‘may set in motion an ever-widening set of consequences and adjustments’ which courts are powerless to address”).

Respondents rely on two federal decisions that they claim support the permissibility of claims that merely seek to enforce the terms of a tariff. See Brown, 277 F.3d at 1166; Lipton v. MCI WorldCom, Inc., 135 F.Supp.2d 182, 182 (D.D.C.2001). But these cases do not control our analysis, because the application of the filed-rate doctrine to rates set by a Minnesota agency is an issue of state law. See Schermer, 721 N.W.2d at 312-13 (explaining that “the adoption and application of the doctrine to rates filed with state agencies is a matter of state law and is not controlled by federal precedent”); see also State v. Employers Ins. of Wausau, 644 N.W.2d 820, 828 (Minn.App.2002) (noting that federal interpretations of state law are not binding on state courts). Nor do we find them persuasive. Both Broum and Lipton held that the filed-rate doctrine was not implicated by claims merely seeking to enforce the terms of a tariff. Neither decision, however, explains how such a claim is any less invasive upon the administrative rate-making process. Nor do they address the separation-of-powers principles that the supreme court found crucial in Schermer.

In sum, we conclude that respondents’ breach-of-contract claim against NSP is precluded by the filed-rate doctrine, as adopted and applied by the Minnesota Supreme Court in Schermer. As the agency charged by statute with approving rates, MPUC is in the best position to determine whether the point of connection must be maintained and, if so, by whom. If respondents petitioned MPUC to hold that NSP must maintain the points of connection, and MPUC concluded in respondents’ favor, it is also the entity with the power to consider the costs of such a burden, adjust the rate accordingly, and enforce that rate. See Minn.Stat. § 216B.16, subd. 5 (2006). Accordingly, respondents’ claim under Minnesota law should be dismissed.

As we noted above, the application of the filed-rate doctrine to rates approved by a state agency is a matter of state law. And the question raised here does not appear to have been addressed by the North Dakota or South Dakota courts. Determining whether the filed-rate doctrine applies under these states’ laws would not only invade the province of the courts of those states to interpret their laws in the first instance, but could upset the administrative schemes designed by their legislatures to govern public utilities. Under principles of comity, we decline to resolve this issue as a matter of first impression under the law of these foreign jurisdictions. See Reed v. Univ. of N. Dakota, 543 N.W.2d 106, 110 (Minn.App.1996) (affirming, on grounds of comity, dismissal of lawsuit brought by North Dakota resident against North Dakota university). Accordingly, the claims under North Dakota and South Dakota law should be dismissed as well.

DECISION

Because we determine that (1) under Minnesota law the filed-rate doctrine applies to preclude respondents’ claim and (2) under principles of comity, the claims under North Dakota and South Dakota law should be dismissed, we reverse the district court’s denial of the motion to dismiss and remand for entry of judgment in NSP’s favor.

Certified question answered in the affirmative, reversed and remanded.

      . As the supreme court recognized in Schermer, public utilities are a model regulated industry, in which much of the jurisprudence underlying the filed-rate doctrine has arisen. 721 N.W.2d at 313-14 (summarizing Minnesota courts’ deferential treatment of rate-making function).


author: SANDSTROM, Justice. CROTHERS, Justice, dissenting.

text:
    2007 ND 206
    MANITOBA PUBLIC INSURANCE CORPORATION, Plaintiff and Appellant v. DAKOTA FIRE INSURANCE COMPANY, Defendant and Appellee.
    No. 20070061.
    Supreme Court of North Dakota.
    Dec. 20, 2007.

      Michael T. Rengel, Pemberton, Sorlie, Rufer and Kershner, P.L.L.P., Fergus Falls, MN, for plaintiff and appellant.
    Robert B. Stock (argued) and Carlton J. Hunke (appeared), Vogel Law Firm, Fargo, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Manitoba Public Insurance Corporation appeals from summary judgment in favor of Dakota Fire Insurance Company in Manitoba Public’s attempt to seek a court order directing Dakota Fire to enter into binding intercompany arbitration under N.D.C.C. § 26.1-41-17. Because Manitoba Public is seeking only a procedural remedy, which has been repealed, we affirm.

I

[¶ 2] On August 6, 2000, a motor vehicle driven by Heather Unrau was struck by a motor vehicle driven by Kasha Chris-tianson on County Road 1 in Pembina County. At the time of the accident, Un-rau had basic no-fault insurance coverage from Manitoba Public, and Christianson had liability coverage from Dakota Fire. Following the accident, Manitoba Public paid no-fault benefits to Unrau. The payments continued until August 2006. Manitoba Public then sought reimbursement for the payments from Dakota Fire under N.D.C.C. § 26.1-41-17, which provided:

Equitable allocation of losses among insurers. A basic no-fault insurer may recover no-fault benefits paid to or for the benefit of an injured person from the motor vehicle liability insurer of a secured person if:
1. The injured person has sustained a serious injury; or
2. The injury results from an accident involving two or more motor vehicles, at least one of which is a motor vehicle weighing more than six thousand five hundred pounds [2948.35 kilograms] unloaded.
The right of recovery and the amount thereof must be determined on the basis of tort law without regard to section 26.1-41-08 by agreement between the insurers involved, or, if they fail to agree, by binding intercompany arbitration under procedures approved by the commissioner. The amount of recovery under this section may not exceed the limits of liability of the secured person’s motor vehicle liability insurance policy or other security, reduced by the amount of the liability for tort claims against the secured person covered by the policy or other security.

[¶ 3] In April 2005, the North Dakota legislature repealed N.D.C.C. § 26.1-41-17, to be effective August 1, 2005. On August 1, 2006, Manitoba Public sent a fax and e-mail to EMC Insurance Companies demanding binding intercompany arbitration under N.D.C.C. § 26.1-41-17. Dakota Fire didn’t respond to the demand for arbitration. Thereafter, on August 3, 2006, Manitoba Public filed a district court action seeking binding intercompany arbitration under N.D.C.C. § 26.1-41-17.

[¶ 4] Dakota Pire moved for summary judgment, asserting Manitoba Public failed to file a proper request for binding inter-company arbitration before the repeal of N.D.C.C. § 26.1-41-17. Manitoba Public also moved for summary judgment, claiming it was entitled to binding intercompany arbitration under N.D.C.C. § 26.1-41-17, because it began making payments of no-fault benefits prior to the repeal of N.D.C.C. § 26.1-41-17. The district court granted summary judgment in favor of Dakota Fire. The court found Manitoba Public did not file a claim for binding intercompany arbitration under Rule 19 of the “North Dakota Auto Accident Reparations Act Binding Intercompany Arbitration Rules and Procedures Manual” prior to August 1, 2005. The court concluded Manitoba Public was not entitled to binding intercompany arbitration under N.D.C.C. § 26.1-41-17.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Manitoba Public’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] “ ‘Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result.’ ” University Hotel Development, LLC v. Dusterhoft Oil, Inc., 2006 ND 121, ¶ 8, 715 N.W.2d 153 (quoting Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46). Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of a claim on which it will bear the burden of proof at trial. Hopfauf v. Hieb, 2006 ND 72, ¶ 6, 712 N.W.2d 333. Whether a district court properly grants summary judgment is a question of law, which is reviewed de novo on the entire record. Johnson v. Nodak Mutual Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45.

Ill

[¶ 7] Manitoba Public argues it was entitled to binding intercompany arbitration as a matter of law under N.D.C.C. § 26.1-41-17 because it began making no-fault payments to its insured prior to August 1, 2005. To begin an arbitration proceeding under N.D.C.C. § 26.1-41-17, an insurer had to follow the procedure as established by the insurance commissioner. The procedure to begin an arbitration proceeding was contained in Rule 19 of the “North Dakota Auto Accident Reparations Act Binding Intercompany Arbitration Rules and Procedures Manual,” which stated:

Commencement. An arbitration proceeding is commenced by the local representative of an insurer filing an arbitration notice (three copies) with the administrator of the Committee. At the same time, three copies of the arbitration notice are to be submitted by the applicant directly to the local'representative of the other involved insurer. If there is more than one respondent in a case, the applicant shall so indicate on the original and all copies of the arbitration notice and send three copies thereof to each respondent.

N.D. Admin. Code § 45-05-08(19)(a). In this case, Manitoba Public did not file a proper request under N.D. Admin. Code § 45-05-08(19)(a). It just sent an e-mail and fax to Dakota Fire demanding arbitration.

[¶ 8] Section 26.1-41-17, N.D.C.C., was repealed on August 1, 2005, and N.D. Admin. Code § 45-05-08 was repealed on January 1, 2006. Section 26.1-41-17, N.D.C.C., did not create a vested right to binding intercompany arbitration upon payment of no-fault benefits. A vested right is an immediate or fixed right to present or future enjoyment that does not depend upon an uncertain event. Sjostrand v. North Dakota Workers Compensation Bureau, 2002 ND 125, ¶ 14, 649 N.W.2d 537. There is no vested right to a specific remedy. Kessler v. Thompson, 75 N.W.2d 172, 178 (N.D.1956). See also Estate of Kjorvestad, 375 N.W.2d 160, 170 (N.D.1985) (“It is axiomatic that procedural modes, as distinguished from substantive rights, are not vested and are subject to repeal, modification or change.”); In re T.F., 2004 ND 126, ¶ 39, 681 N.W.2d 786 (when new rules affect only a remedy and not a vested right, they may be applied to pending litigation (Sandstrom, J., concurring specially)). See Gibson v. Miami Valley Milk Producers, Inc., 157 Ind.App. 218, 299 N.E.2d 631, 641 (Ct.App.1973); see also Perez v. Marshall, 946 F.Supp. 1521, 1530 (S.D.Cal.1996) (finding that no vested right existed in a statutory scheme that defined the scope of relief and that applying a law that changes the type of review does not divest a person of a vested constitutional right); Fowler v. State of Texas, 991 S.W.2d 258, 261 (Tex.Crim.App.1999) (finding that although the right to appeal constitutes a vested and substantive right, the procedure for review is not a vested and substantive right); United States v. Daychild, 357 F.3d 1082, 1106 (9th Cir.2004) (finding that reliance on a former standard of review when making the decision whether to appeal is not substantive enough to warrant protection under the Due Process Clause).

[¶ 9] The dissent argues we are retroactively applying the repeal of N.D.C.C. § 26.1-41-17. Dissent at ¶ 15. We are merely applying the law that existed at the time Manitoba Public filed its suit to compel the remedy of binding inter-company arbitration. “The repeal of remedial statutes is interpreted under the common-law principles of construction, for in those jurisdictions in the United States where general saving statutes do exist, they contemplate only substantive rights and do not operate to save the remedies granted by a statute when that statute is repealed.” 1A Norman J. Singer, Sutherland Statutory Construction, § 23:41 (6th ed.) (collecting cases); see, e.g., People v. Bradley, 64 Cal.App.4th 386, 75 Cal.Rptr.2d 244, 250 (1998) (“The repeal of a statute which provides a remedy to a party is fully prospective and applies to pending actions.”); Kjorvestad, supra, 375 N.W.2d at 170. Manitoba Public sued Dakota Fire on August 3, 2006, over a year after N.D.C.C. § 26.1-41-17 was repealed. Its suit was not even pending at the time of the repeal. Because the remedy of binding intercompany arbitration was unavailable when Manitoba Public’s suit was filed, we are unable to enforce that remedy in favor of Manitoba Public.

[¶ 10] Arguably, the first paragraph of former N.D.C.C. § 26.1-41-17 created a substantive right to recover no-fault benefits that became vested upon payment of the benefits. But Manitoba Public is not seeking a recovery as such of its no-fault benefits paid in this action. It is seeking only binding intercompany arbitration, a procedural remedy that has been repealed. Manitoba Public never sought as relief a recovery of its no-fault benefits. Therefore, we need not address whether Manitoba Public had a substantive right to recover its no-fault benefits under N.D.C.C. § 26.1-41-17.

IV

[¶ 11] We affirm the summary judgment.

[¶ 12] GERALD W. VANDE WALLE, C.J., DONOVAN J. FOUGHTY, D.J., concur.

[¶ 13] The Honorable DONOVAN J. FOUGHTY, District Judge, sitting in place of KAPSNER, J., disqualified.

CROTHERS, Justice,

dissenting.

[¶ 14] I respectfully dissent.

[¶ 15] The decisive issue in this case is application of N.D.C.C. § 26.1-41-17. I believe the majority has erred by retroactively applying that provision.

[¶ 16] Section 1-02-10, N.D.C.C., provides, “No part of this code is retroactive unless it is expressly declared to be so.” Absent express direction from the Legislature that a statute applies retroactively, the applicable law is that which was in effect when a cause of action arose, regardless of the law’s substantive or procedural nature. Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979). Here, the Legislature neither hinted at nor directed retroactive application of N.D.C.C. § 26.1-41-17. Absent that declaration, this Court should not countenance retroactive repeal of the law. Yet that is what the majority effectuates by its ruling.

[¶ 17] The majority concludes our law permits substantive and procedural statutes to be treated differently for purposes of retroactivity. Majority Opinion at ¶ 1. This substantive versus procedural analysis apparently carried the day prior to Reiling. 276 N.W.2d at 239 (“During the past eighty years this court has followed the rule that a substantive statute may not be applied retroactively in the absence of specific legislative intent, but has rendered varied decisions regarding the retroactivity of procedural statutes.”). In Reiling, however, this Court returned to the plain reading of section 1-02-10, N.D.C.C., that we do not distinguish between substantive and procedural statutes. The Court in Reiling also explained that, because retro-activity is not favored under the law, and because the determination of whether a statute is substantive or procedural “must be made by balancing the interests on a case-by-case basis without any clear, workable guidelines,” there is no distinction between substantive and procedural statutes regarding retroactivity. Id. at 240. 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 be so. If this rule is to be changed, that too is the function of the legislature. This fundamental principle is as old as the constitution and as enduring as our American democracy.”).

[¶ 18] I believe the majority errs in retreating to the pre-Reiling distinction between procedural and substantive statutes and, apparently, treatment of the former as presumptively retroactive. In response to this dissent, the majority argues at ¶ 9 it is “merely applying the law that existed at the time Manitoba Public filed its suit....” That is precisely the problem. Utilizing the law in effect on filing ignores that people everywhere act based on the law that exists at the time of their acts. Utilizing the law in effect on filing ignores that insurance companies perform underwriting and set premiums based on the law that exists at the time the risk is insured. Allowing a change of law after the act is done, and after a risk is evaluated and undertaken, does a disservice to society at large because it removes the certainty the law is supposed to provide.

[¶ 19] In addition, the section of Sutherland’s Statutory Construction relied upon by the majority at ¶ 9 states that a common-law principle of construction should be applied to the repeal of remedial statutes. The North Dakota Legislature, however, has forbidden such common-law treatment. “In this state there is no common law in any case in which the law is declared by the code.” N.D.C.C. § 1-01-06. Sutherland also acknowledges the common-law approach is not followed in every jurisdiction: “As the application of [the common-law] rule frequently results in manifest hardship, the [repealed] provision is sometimes treated as substantive even though in other cases similar provisions may be classified as remedial. This apparent inconsistency is not too surprising when it is considered that no clear line separates substance and procedure.” 1A Norman J. Singer, Sutherland Statutory Construction, § 23.41 (6th ed.2002).

[¶ 20] I also part ways with the majority because their holding extinguishes, or at least has the potential to extinguish, Manitoba’s vested, substantive right to recover. Our law provides that “[n]o provision contained in this code may be so construed as to impair any vested right or valid obligation existing when it takes effect.” N.D.C.C. § 1-02-30. I believe legislative action repealing an existing statute can be fairly considered a “provision contained in this code” so that usurpation of a vested right via repeal of a remedy would be unlawful. Any doubt should be settled by this Court’s holding that “[statutory amendments may not operate retrospectively to abrogate a vested right or a valid obligation.” Gregory v. North Dakota Workers Comp., 1998 ND 94, ¶25, 578 N.W.2d 101. The reason is that vested rights create property interests which can be destroyed only upon compliance with due process requirements. Baeth v. Hoisveen, 157 N.W.2d 728, 731 (N.D.1968).

[¶ 21] Section 26.1-41-17, N.D.C.C., provided that a “basic no-fault insurer may recover no-fault benefits paid to or for the benefit of an injured person from the motor vehicle liability insurer of a secured person” under the listed circumstances. This statute created a basic no-fault insurer’s right to recover certain no-fault benefits it paid to an injured insured. The statute provided that “[t]he right of recovery and the amount thereof must be determined on the basis of tort law....” Id. Prior to repeal, the procedure for recovery was binding intercompany arbitration — but the substantive right to recover was controlled by tort law.

[¶ 22] Under North Dakota law, the right to recover “on the basis of tort law” vested when the cause of action arose. Larson v. Norkot Mfg. Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33 (quoting Budd v. Nixen, 6 Cal.3d 195, 98 Cal.Rptr. 849, 491 P.2d 433, 438 (1971)). A cause of action accrues once an injury has occurred and has manifested itself. Hoffner v. Johnson, 2003 ND 79, ¶ 11, 660 N.W.2d 909. Here, the injuries giving rise to the insurer’s payments stem from an August 6, 2000 motor vehicle accident. Thus, the law in effect on that date should apply, and Manitoba should be recognized as having had a vested right to recover upon payment of benefits that satisfied the requirements of N.D.C.C. § 26.1-41-17, notwithstanding subsequent legislative repeal of the procedure or method for that recovery.

[¶ 23] Finally, the repeal of N.D.C.C. § 26.1-41-17 was not an isolated revision, but was part of a larger undertaking to reform North Dakota’s no-fault insurance laws. Hearing on S.B.204.7 Before the House Transportation Comm., 59th N.D. Legis. Sess. (Mar. 3, 2005) (testimony of Rob Hovland, Chairman of Association of North Dakota Insurers). In addition to the repeal of N.D.C.C. § 26.1-41-17, this same bill amended five other statutes. 2005 N.D. Sess. Laws ch. 274 (codified at N.D.C.C. §§ 23-12-14, 26.1-41-01, 26.1-41-09, 26.1-41-11 and 26.1-41-12). Retroactive treatment of N.D.C.C. § 26.1-41-17 begs the question whether the other amendments must likewise be applied retroactively. Such treatment becomes troublesome because the other amendments affect rights that appear more substantive in nature. See, e.g., N.D.C.C. § 26.1-41-01 (altering the definitions of “accidental bodily injury” and “occupying” to be more exclusive). The fact that several statutes were amended or repealed in one bill bespeaks caution when declaring retroactive treatment of one of the affected laws. I do not see that the majority has considered this impact or that it has exercised that caution.

[¶ 24] Ultimately, the impact of prospective treatment under the posture of this case is less than clear. Manitoba commenced this action to compel intercom-pany arbitration under section 26.1-41-17, N.D.C.C. The district court dismissed the case because it concluded Manitoba’s right to arbitrate terminated when section 26.1-41-17 was repealed. I would hold the district court’s conclusion to be a misapplication of law for the reasons stated above and would reverse and remand. On remand, I expect there might be questions whether Manitoba timely demanded arbitration, whether Manitoba has a remedy other than arbitration, whether Manitoba’s claims are time barred, and perhaps others. However, those questions have not been addressed by the district court, and neither I nor this Court should be guessing whether one of those — or other — issues might be dispositive.

[¶ 25] DANIEL J. CROTHERS and MARY MUEHLEN MARING, JJ., concur.

      . EMC Insurance Companies is the parent company of Dakota Fire. EMC will hereinafter be referred to as "Dakota Fire.”


author: SANDSTROM, Justice.

text:
    2008 ND 10
    James LENO, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20070213.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Justin J. Vinje, Vinje Law Firm, Bismarck, N.D., for petitioner and appellant.
    Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] James Leno appeals a district court judgment affirming an administrative hearing officer’s decision to suspend his driving privileges for driving under the influence of alcohol. We affirm.

I

[¶ 2] Bismarck Police Officer John But-man arrested Leno for driving under the influence of intoxicating liquor. Leno was transported to the Bismarck Police Department, where an Intoxilyzer test showed he had an alcohol concentration of 0.12 percent by weight. Leno requested a hearing in front of the Department of Transportation to contest the suspension of his driving privileges.

[¶ 3] During the administrative hearing, the officer testified to the circumstances of the stop and arrest of Leno. The officer testified that he is certified to use the Intoxilyzer 5000 KB-EP, that he is familiar with the approved method for conducting a breath test, and that he followed the approved method. The Department offered, among other documents, the list of certified operators, the list of approved devices, the State Toxicologist’s approved method for using the Intoxilyzer 5000 KB-EP, the standard solution certificate, and the test record and checklist for the driver. Leno objected to the introduction of the Intoxilyzer test record, claiming the test was not fairly administered.

[¶ 4] Leno introduced evidence indicating the Intoxilyzer 5000 KB-EP machine used in this case was inspected at the Office of Attorney General Crime Lab and the test was administered at the Bismarck Police Department. Leno also introduced evidence from the Intoxilyzer 5000 KB-EP student manual stating that a calibration check must be completed each time the machine is moved. There was no evidence presented by the Department as to whether a calibration check had been completed after the machine was moved. The hearing officer overruled Leno’s objection, concluding the approved method to conduct breath tests takes precedence over the student manual. The hearing officer found the Intoxilyzer testing was done in accordance with the State Toxicologist’s approved method, with results showing an alcohol concentration of 0.12 percent within two hours of the observed time of driving. Leno’s driving privileges were suspended for 365 days. Leno appealed the hearing officer’s decision to the district court, which affirmed the hearing officer’s decision.

[¶ 5] Leno timely requested an administrative hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the Department of Transportation’s decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 39-20-06. Leno filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32^49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of a decision to suspend a driver’s license. Kiecker v. N.D. Dep’t of Transp., 2005 ND 23, ¶ 7, 691 N.W.2d 266. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, must affirm an agency’s order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
N.D.C.C. § 28-32^6.

[¶ 7] In Kiecker, we discussed our standard of review of an administrative agency’s decision.

On appeal, courts “must review an appeal from the determination of an administrative agency based only on the record filed with the court.” When reviewing an administrative agency’s factual findings, “we do not make independent findings of fact or substitute our judgment for that of the agency.” We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. “An agency’s decisions on questions of law are fully reviewable.”

2005 ND 23, ¶ 8, 691 N.W.2d 266 (citations omitted).

Ill

[¶ 8] On appeal, Leno argues the Department of Transportation was required to show that the Intoxilyzer 5000 machine had been recalibrated following its move; otherwise, the test could not be considered fair. In Kiecker, we held the Department was not required to show the Intoxilyzer machine had been recalibrated to prove the Intoxilyzer test was fairly administered. Id. at ¶ 11; see also City of Grand Forks v. Scialdone, 2005 ND 24, ¶ 7, 691 N.W.2d 198 (“Neither N.D.C.C. § 39-20-07(5) nor the approved method promulgated by the State Toxicologist mentions either the student manual or anything about completing checks on the calibration when an Intoxilyzer 5000 machine is moved. We conclude that evidence of such checks is not a foundational requirement for showing an Intoxilyzer 5000 test was administered in accordance with the approved method for conducting the test or for admission of the test result into evidence.”).

[¶ 9] Leno’s argument here appears to. be that although the test results were properly admitted, the finding that the test results established an alcohol concentration above the legal limit is against the weight of the evidence because the evidence does not establish that the machine had been recalibrated after a move. Under N.D.C.C. § 28-32-46(5), we will reverse an agency’s decision if its findings of fact are not supported by a preponderance of the evidence. When deciding whether a preponderance of the evidence supports an agency’s findings, we do not re-weigh the evidence or substitute our judgment for that of the agency. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. Id. We conclude the Department’s findings that the Intoxilyzer test was done in accordance with the State Toxicologist’s approved method and that Leno had an alcohol concentration above the legal limit are supported by the preponderance of the evidence.

IV

[¶ 10] The district court’s judgment is affirmed.

[¶ 11] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2008 ND 11
    Ryan KOBLE, Plaintiff and Appellee v. Jamie KOBLE, Defendant and Appellant.
    No. 20070198.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Anne E. Summers, (argued), Dyer & Summers, P.C., Bismarck, N.D., for plaintiff and appellee.
    Loren Cay McCray, (argued), Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Jamie Koble appeals from a district court divorce judgment awarding custody of the parties’ two minor children to Ryan Koble. We affirm, concluding the district court’s findings of fact on child custody are not clearly erroneous.

I

[¶ 2] Jamie and Ryan Koble were married in 2001, and the parties’ relationship was at times tumultuous. Shortly after the marriage, the parties engaged in a physical altercation and Jamie Koble was arrested for assault. Ryan Koble also admitted he had an affair with a 16-year-old girl during the early stages of the marriage. The parties separated for nine months, during which time their first child was born. The parties ultimately reconciled, and a second child was born in 2003.

[¶ 3] Conflicting evidence was presented regarding the parties’ relative childcare and housekeeping skills. Ryan Koble claimed that Jamie Koble did not keep their house clean, that dishes and clothes were scattered around the house, and that he would regularly spend more than an hour cleaning house after returning home from his night-shift job at a manufacturing plant. Ryan Koble also claimed Jamie Koble' provided inadequate care for the children, resulting in injuries to the children. Jamie Koble countered by claiming that the children had also suffered injuries while in Ryan Koble’s care.

[¶ 4] In May 2006, Ryan Koble filed a summons and complaint for divorce and obtained an ex parte interim order granting him custody of the parties’ children. Following a hearing, the district court continued interim custody of the children with Ryan Koble. After a trial in April 2007, the district court found that the best interests of the children would be served by awarding custody to Ryan Koble. Jamie Koble received extensive visitation.

II

[¶ 5] Jamie Koble appeals from the judgment awarding custody to Ryan Ko-ble, alleging the district court’s findings of fact on child custody are clearly erroneous.

[¶ 6] We outlined our standard of review of child custody decisions in Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157 (citations omitted):

We exercise a limited review of child custody awards. A district court’s decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.

As we summarized in L.C.V. v. D.E.G., 2005 ND 180, ¶ 9, 705 N.W.2d 257, “[t]he district court’s choice for custody between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the district court when its determination is supported by the evidence.” The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. Id. at ¶ 3.

Ill

[¶ 7] In making an initial custody determination, the district court must apply the factors listed in N.D.C.C. § 14-09-06.2(1) and award custody of the child to the person who will better promote the best interests and welfare of the child. N.D.C.C. § 14-09-06.1; Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565; L.C.V., 2005 ND 180, ¶ 3, 705 N.W.2d 257; Shaw v. Shaw, 2002 ND 114, ¶5, 646 N.W.2d 693. The district court in this case appropriately considered the factors under N.D.C.C. § 14-09-06.2(1) and made a separate finding of fact on each one. The court found that factor c (disposition of the parent to provide food, clothing, and medical care), factor d (stable environment and continuity), factor e (permanence of custodial home), and factor m (other relevant factors) favored Ryan Koble; factor f (moral fitness) favored Jamie Koble; and the remaining factors favored neither party-

[¶ 8] Jamie Koble, as the complaining party, has failed to demonstrate on appeal that any of the court’s findings of fact on child custody are clearly erroneous. The district court was presented with two fit, but imperfect, parents, and performed the difficult task of assessing the evidence and the credibility of the witnesses to make the “close calls” while applying the factors enumerated in N.D.C.C. § 14-09-06.2(1). There is evidence in the record to support the district court’s findings of fact, including its ultimate finding that the best interests of the children would be better served by awarding custody to Ryan Koble.

IV

[¶ 9] We conclude the district court’s findings of fact on child custody are not clearly erroneous, and we affirm the judgment awarding custody of the children to Ryan Koble.

[¶ 10] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE Y. SANDSTROM, JJ., concur.