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

text:
    2008 ND 48
    Denise D. WHITE, Plaintiff and Appellant, v. ALTRU HEALTH SYSTEM, a North Dakota Corporation; First Care Health Center; P.R. Health Corporation, a North Dakota Corporation; and Jamil R. Tareen, M.D., Defendants and Appellees.
    No. 20070031.
    Supreme Court of North Dakota.
    March 20, 2008.

      Shirley Ann Dvorak (argued), Grand Forks, ND, and Thomas V. Omdahl (on brief), Omdahl Law Office, Grand Forks, ND, for plaintiff and appellant.
    Donna M. Smith (argued) and Randall S. Hanson (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, ND, for defendants and appellees.
   CROTHERS, Justice.

[¶ 1] Denise White appeals the district court’s December 27, 2006 order denying her motion for reconsideration of dismissal, her motion to amend complaint, and her motion to vacate judgment. We conclude the district court abused its discretion by denying White’s motion to vacate and her motion to reconsider because it applied the incorrect version of the statute. We reverse and remand for consideration under N.D.C.C. § 28-01^46 (1997).

I

[¶ 2] Dr. Jamil Tareen, an employee of Altru Health System (“Altru”), performed surgery on White on February 10, 2004 at the First Care Health Center in Park River. The surgery consisted of a diagnostic laparoscopy followed by laparotomy and release of extensive pelvic adhesions. White alleges medical negligence because Tareen’s medical license was restricted at the time of the surgery, a fact she claims was concealed from her. White also claims the surgical procedure caused an injury Tareen failed to properly diagnose or treat. White sought follow-up treatment for the alleged injury in early 2004.

[¶ 3] White served Altru with a summons and complaint on February 8, 2006. Altru served White with interrogatories and requests for production of documents on March 16, 2006. Though the court set a discovery deadline of mid-April 2006, the parties negotiated an extension. White served Altru with answers to the discovery requests on May 18, 2006, well before the agreed-upon deadline of June 1, 2006. One day prior to this service, Altru moved to dismiss White’s complaint, alleging she failed to serve Altru with an expert affidavit supporting her claims as required by N.D.C.C. § 28-01-46. The district court dismissed White’s claim without prejudice on September 22, 2006. White filed a motion for reconsideration of dismissal, a motion to vacate judgment and a motion to amend the complaint. On December 27, 2006, the district court denied all three motions.

II

[¶ 4] White appeals from the December 27, 2006 district court order denying her motion for reconsideration of dismissal, motion to amend complaint and motion to vacate judgment. “The right to appeal is a jurisdictional matter which this Court may consider on its own.” Pratt v. Altendorf, 2005 ND 32, ¶4, 692 N.W.2d 115. Whether an order in a civil proceeding is reviewable by this Court is determined by statute. See N.D.C.C. § 28-27-02. This Court will not consider interlocutory appeals unless it can be affirmatively established the underlying order was “meant to be, in all aspects, final.” Sime v. Tvenge Assoc. Architects, 488 N.W.2d 606, 608 n. 1 (N.D.1992). Ordinarily, an order arising out of a motion to vacate the judgment or a motion to amend the complaint is considered interlocutory and thus not appealable. Industrial Comm’n v. Kuntz, 486 N.W.2d 249, 251 (N.D.1992); Barth v. Schmidt, 472 N.W.2d 473, 474 (N.D.1991). Similarly, motions for reconsideration of dismissal generally are not appealable because they are treated as motions to alter or amend judgments or as a motion to vacate. Dvorak v. Dvorak, 2001 ND 178, ¶ 9, 635 N.W.2d 135. Interlocutory orders are appealable, however, if the Court “deem[s] it to be an appeal from a subsequently entered consistent final order or judgment.” Dvorak v. Dvorak, 2007 ND 79, ¶ 7, 372 N.W.2d 698.

[¶ 5] Here, the underlying judgment is a dismissal without prejudice, which is ordinarily “not appealable because either side may commence another action.” Winer v. Penny Enterprises, Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9. However, “dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum.” Rolette Co. Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶4, 697 N.W.2d 333. The litigation has been effectively terminated and the judgment of dismissal becomes appealable when the statute of limitations has run for the underlying claims. Haugenoe v. Bambrick, 2003 ND 92, ¶ 2, 663 N.W.2d 175.

[¶ 6] Section 28-01-18(3), N.D.C.C., provides a two-year statute of limitations for medical malpractice claims. The statute of limitations “begins to run only when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant’s possible negligence.” Hoffner v. Johnson, 2003 ND 79, ¶10, 660 N.W.2d 909. White’s medical malpractice claim arises out of surgery performed on February 10, 2004. White states she was hospitalized on March 15, 2004 for complications due to the surgery. We conclude for purposes of this appeal only that the statute began to run on or about March 15, 2004, expiring March 15, 2006. Wdiite’s case was dismissed on October 17, 2006, several months after the statute had run. White is foreclosed from starting another action. Because the statute of limitations has expired and dismissal without prejudice has effectively terminated White’s claims, the orders on post-judgment motions are ap-pealable.

Ill

[¶ 7] Motions to amend complaint and motions to vacate judgment are reviewed under an abuse of discretion standard. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 10, 730 N.W.2d 841; Gonzalez v. Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653. While North Dakota law does not formally recognize motions to reconsider, we have treated such motions as motions to alter or amend the judgment under N.D.R.Civ.P. 59(j), which may be reversed if the trial court misinterpreted or misapplied the law. Dinger v. Strata Corp., 2000 ND 41, ¶ 12, 607 N.W.2d 886; Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895.

[¶ 8] The outcome of this case depends upon which version of N.D.C.C. § 28-01-46 is applicable. Section 28-01-46, N.D.C.C., “was ‘designed simply to minimize frivolous [malpractice] claims’ by requiring the plaintiff to obtain an expert opinion supporting [his claims] during [the] early stages of [] litigation.” Larson v. Hetland, 1999 ND 98, ¶12, 593 N.W.2d 785 (quoting Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D.1989)). The 1997 version of the statute reads, in pertinent part, “[t]his section does not apply to alleged lack of informed consent....” N.D.C.C. § 28-01-46 (1997). The 2005 amendment removes this exception. N.D.C.C. § 28-01-46 (2005). Here, two issues affect which version of the statute is applied. First, we determine whether the district court correctly used the version of the statute in effect on the commencement date of White’s action rather than the version in effect on her injury date. Second, we consider whether N.D.C.C. § 28-01-46 should be applied retroactively.

A

[¶ 9] The district court applied the version of N.D.C.C. § 28-01-46 in ef-feet on the commencement date of White’s action. The court relied upon Larson, stating:

“[In Larson t]here was no reference to the date or time of the alleged negligent act, but rather, the Supreme Court referred to the date the action was commenced.
“Here, this action was commenced in February of 2006. The applicable statute in effect in February of 2006 was the 2005 version of N.D.C.C. § 28-01-46, the version relied on in the Order Granting Defendant’s Motion To Dismiss.”

[¶ 10] Too much significance has been placed on the dates in Larson. Whether the commencement date of the case or the injury date is used was of no consequence in Larson because N.D.C.C. § 28-01-46 (1981) was in effect during both time periods. Larson stands only for the principle that between the commencement date and the date the defendant moves to dismiss, the commencement date controls. More germane authority to the present case is found in Fortier v. Traynor, 330 N.W.2d 513, 515-16 (N.D.1983). In Fortier, this Court held the applicable law in malpractice actions is the law in effect when the cause of action arises. Id. See also Hoffner, 2003 ND 79, ¶ 11, 660 N.W.2d 909 (holding a cause of action accrues once an injury has occurred and manifested itself); State v. Dimmler, 456 N.W.2d 297, 298 (N.D.1990) (holding the correct date to use when determining the controlling statute is date upon which the claim arose).

[¶ 11] Unless amendments to N.D.C.C. § 28-01-46 are retroactive, the district court should have used the date White’s cause of action accrued in its analysis rather than the commencement date of the action.

B

[¶ 12] Because the injury allegedly occurred while N.D.C.C. § 28-01-46 (1997) was in effect, a later version of the statute may be applied only if the statute is found to warrant retroactive application. The Legislature may give a statute retrospective operation as long as it does not affect substantive rights. See State v. Norman, 2003 ND 66, ¶ 21, 660 N.W.2d 549. However, the legislative direction to make a statute retroactive must be clear.

[¶ 13] Section 1-02-10, N.D.C.C., states, “No part of this code is retroactive unless it is expressly declared to be so.” While the plain language of this statute is unambiguous, prior case law has held this rule precatory because it is a canon of statutory construction and, therefore, “subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent.” State v. Cummings, 386 N.W.2d 468, 471 (N.D.1986). According to the Court in Cummings, if legislative intent can be extrapolated in other ways, N.D.C.C. § 1-02-10 and the other rules of interpretation are simply guidelines.

[¶ 14] The approach in Cummings might be correct if the rules of interpretation were of common usage but not actually codified by the Legislature. But these rules of interpretation were codified, and they have the effect of law. See 1A Sutherland, Statutory Construction § 28.8 (6th ed.2002) (stating “everything contained in a codification which is regularly enacted by the legislature has effect as law” except for rare exceptions including statutes that have been declared invalid for constitutional reasons or statutes that involve a defect in procedures of enactment); see also State v. Flatt, 2007 ND 98, ¶22, 733 N.W.2d 608 (Sandstrom, J., concurring specially) (“The legislature has told us that if a new enactment is to be retroactive, the legislature itself mil 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.”). “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. We are therefore compelled to follow the law, including the rules of statutory interpretation, provided by the Legislature.

[¶ 15] Despite the legislative restriction on retroactive application, historically this Court has distinguished substantive statutes and procedural statutes when applying N.D.C.C. § 1-02-10. Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979). “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.” Id. Reiling rejected this inconsistent approach by establishing two clear, bright-line rules regarding retroactive application of statutes.

[¶ 16] First, Reiling explicitly overruled the distinction between substantive and procedural statutes.

“[Section] 1-02-10, N.D.C.C., applies to all statutes enacted by the legislature regardless of whether they are substantive or procedural. All statutes enacted by the legislature are to be applied prospectively, i.e., they are to be applied only to causes of action that arise after the effective date of the statute, unless the legislature clearly expresses that they are to be applied retroactively.”

Reiling, 276 N.W.2d at 240. Reiling held the language of N.D.C.C. § 1-02-10 is clear and does not include an exception for procedural statutes. Reiling, at 240. This narrow interpretation relieved courts from the arduous task of determining whether a statute is substantive or procedural. Reil-ing states:

“The substantive-procedural distinction is frequently unclear and artificial because few statutes are solely substantive or solely procedural. Because almost all procedural statutes affect substantive rights to some extent, a substantive-procedural decision must be made by balancing the interests on a case-by-case basis without any clear, workable guidelines for determining whether a statute is substantive or procedural.”

Id. It is important to note that while the Reiling rule has been eroded by some recent decisions of this Court, the distinction between substantive and procedural statutes for retroactivity purposes has not been resuscitated. See, e.g., Cummings, 386 N.W.2d 468.

[¶ 17] Second, the holding in Reiling and the return to the plain reading of N.D.C.C. § 1-02-10 require that the Legislature give explicit notice if a statute is to apply retroactively. Reiling, at 240. This is an effective approach, as the Legislature has successfully given this notice when it intended retroactive application of legislation. State v. Davenport, 536 N.W.2d 686, 692 (N.D.1995) (VandeWalle, C.J., concurring and dissenting).

[¶ 18] The Reiling approach has been followed in many cases. E.g., Swenson v. Northern Crop Ins., Inc., 498 N.W.2d 174, 177 n. 2 (N.D.1993); Baranyk v. McDowell, 442 N.W.2d 423, 424 (N.D.1989); Fairmount Twp. Bd. of Supervisors v. Beardmore, 431 N.W.2d 292, 295 (N.D.1988).

[¶ 19] An exception to the Reiling rule was created in the criminal context. Cummings, 386 N.W.2d at 472. Cummings determined that when considering ameliorating penal legislation, courts may infer the Legislature intended retroactivity be-

cause a lesser punishment is the most appropriate penalty for the offense. Id,.; see also State v. Shafer-Imhoff, 2001 ND 146, ¶ 45, 632 N.W.2d 825 (stating amelioration of imprisonment may be retroactive “prior to the final conviction without infringing on the executive branch’s exclusive power to pardon”); cf. Davenport, 536 N.W.2d 686 (holding amended statute of limitation retroactive and criminal charges timely). Because White’s case does not involve an ameliorating penal law, we decline to give an advisory opinion whether that exception should remain viable. State v. Hansen, 2006 ND 139, ¶ 7, 717 N.W.2d 541 (this Court does not provide advisory opinions). When the Cummings exception to the Reiling rule was created, however, it was intended to be very limited:

“We created a narrow exception to the general rule for ameliorating penal legislation. In Cummings, we concluded ‘unless otherwise indicated by the Legislature, an ameliorating amendment to a criminal statute is reflective of the Legislature’s determination that the lesser punishment is the appropriate penalty for the offense.’ Because we found a ‘compelling inference’ that the legislature intended to apply retroactively a penal statute that reduced punishment, we created the exception for ameliorating penal legislation.”

Shafer-Imhoff, at ¶42 (emphasis added) (internal citations omitted). This “narrow exception” has broadened over time, diluting the original bright-line effect of Reiling. This movement away from the bright-line Reiling rule was later described as “mischief.” Smith v. Baumgartner, 2003 ND 120, ¶ 26, 665 N.W.2d 12 (VandeWalle, C.J., dissenting). “[I]t appears the majority has abandoned the Reiling requirement and I fear that the Court will, in the future, be looking in corners and under rocks to find by implication the express intent required by N.D.C.C. § 1-02-10 to apply a statute retroactively.” Smith, at ¶ 27.

[¶ 20] By foregoing Reiling’s bright-line rule, courts have been sent on a search for scraps of evidence suggesting legislative intent. Under N.D.C.C. § 1-02-10 and Reiling, the directive was clear. If a statute is to be retroactive, the Legislature must expressly declare it to be so. See N.D.C.C. § 1-02-10. Allowing this Court’s inference to be a substitute for explicit direction from the Legislature is a precarious proposition which invites unpredictable and inconsistent results.

[¶ 21] Here, nothing in the statute suggests the amendments to N.D.C.C. § 28-01-46 are intended to apply retroactively. Larson, 1999 ND 98, ¶ 12 n. 1, 593 N.W.2d 785; Peterson v. Kilzer, 420 N.W.2d 754, 755 (N.D.1988); Fortier, 330 N.W.2d at 515-16. “A court abuses its discretion if it ... misinterprets or misapplies the law.” McGhee v. Mergenthal, 2007 ND 120, ¶ 9, 735 N.W.2d 867. Because the injury date occurred on February 10, 2004 and the statute is not retroactive, N.D.C.C. § 28-01-46 (1997) should have been applied.

IV

[¶22] We conclude the district court abused its discretion by denying White’s motion to vacate and her motion to reconsider. The district court applied the incorrect version of the statute to White’s case, and this determination makes it unnecessary for us to consider her other arguments. We reverse and remand this case for consideration under N.D.C.C. § 28-01-46 (1997).

[¶ 23] DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

DALE V. SANDSTROM, J.

I concur in the result.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 24] I agree with much of what Justice Crothers has written for the majority. I was a member of the Court and signed the opinion in Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (1979). As the majority also notes, I did lament, in dissent, the failure to follow Bhattacharyya in subsequent cases. See, e.g., State v. Davenport, 536 N.W.2d 686, 692 (N.D.1995) (VandeWalle, C.J., dissenting); Smith v. Baumgartner, 2003 ND 120, ¶ 26, 665 N.W.2d 12 (VandeWalle, C.J., dissenting). One might therefore assume that I would gleefully sign on to the majority opinion. I do not. Rather, I concur only in the result for the following reasons.

[¶ 25] Bhattacharyya was a noble undertaking that would, once and for all, do away with the analysis of whether a statute was procedural, and therefore to be applied retroactively, or substantive, and therefore to be applied only prospectively. It would establish instead a bright line for those statutes that were to be applied retroactively, within the parameters of the Constitution, and those that were to be applied prospectively only. The “bright line” was to be that after our ruling in Bhattacharyya, the Legislature would henceforth tell us, in no uncertain terms, those statutes which were to be applied retroactively and those statutes which were to be applied prospectively only. The “bright line” never developed. For the most part Bhattacharyya was met with silence from the Legislature. Although the majority justifiably relies on N.D.C.C. § 1-02-10 to hold that no statute is to be applied retroactively unless there is an express declaration of the Legislature, that did not hold true before Bhattacharyya, and it has not held true after that decision. Indeed, the Legislature may intend every procedural statute to apply retroactively since there is no constitutional infirmity to such an application.

[¶ 26] More significant to me, however, is that the blind application of the “bright line” rule established in Bhattacharyya, and now resurrected by the majority, will produce artificial and unintended results. That is the very reason the Court strayed from its holding in Bhattacharyya in such decisions as State v. Cummings, 386 N.W.2d 468 (N.D.1986) and State v. Shafer-Imhoff, 2001 ND 146, 632 N.W.2d 825. Although it might be argued that it is the Legislature, not this Court, which should be concerned about the artificial or unintended effects of legislation, we have consistently held that if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, we will resort to intrinsic aids to determine the actual intent of the Legislature. E.g., Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, 634 N.W.2d 493. It may be a more laborious process for this Court to construe and apply statutes without the “bright line” rule of Bhattacharyya, but I have come to believe that analyzing whether a statute is substantive or procedural is the preferable method of determining legislative intent as to whether a statute should be applied retroactively or prospectively only.

[¶ 27] Nevertheless, under Fortier v. Traynor, 330 N.W.2d 513 (N.D.1983), the applicable law is the law in effect when the cause of action for malpractice arises. The removal of the exception for actions for alleged lack of informed consent in N.D.C.C. § 28-01-46 is substantive, not procedural, and I therefore concur in the result reached by the majority opinion.

[¶ 28] Gerald W. VandeWalle, C.J.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2008 ND 53
    Dustin Scott BUCHHOLTZ, Plaintiff and Appellee v. Director, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.
    No. 20070241.
    Supreme Court of North Dakota.
    March 20, 2008.

      Jesse N. Lange (argued), Aaland Law Office, Fargo, ND, for plaintiff and appel-lee.
    Andrew Moraghan (argued), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appeals a district court judgment reversing a Department decision revoking Dustin Buch-holtz’s driving privileges for 180 days. We reverse the judgment of the district court and reinstate the hearing officer’s suspension of Buchholtz’s license.

I

[¶ 2] On February 21, 2007, at approximately 12:50 a.m., highway patrol officer Trooper Michael Polomny stopped Buch-holtz’s vehicle after noting Buchholtz committed several traffic violations. Trooper Polomny approached the vehicle and smelled alcohol while speaking with Buch-holtz. He also noted Buchholtz’s eyes were bloodshot and his reactions seemed slow. Consequently, Trooper Polomny conducted an SD-2 onsite screening test. Buchholtz failed the test and was arrested for driving under the influence of alcohol. The arrest occurred at 1:04 a.m.

[¶ 3] Upon arrest, Trooper Polomny handcuffed Buchholtz, putting Buchholtz’s hands in front of his body. Trooper Po-lomny testified that, after handcuffing Buchholtz, he patted Buchholtz down, checked his pockets, removed all items from his pockets, placed the items on the front seat of the patrol car, and then put Buchholtz in the backseat of the patrol car. Trooper Polomny then left Buchholtz in the back of the patrol car alone and went to Buchholtz’s vehicle to speak with the passenger to explain Buchholtz had been arrested. The passenger said he felt he should not drive the vehicle and made a few phone calls, attempting to find someone to drive him home. The passenger did not find a ride, and after driving Buch-holtz’s vehicle off to the shoulder of the road, Trooper Polomny allowed the passenger into the front seat of the patrol car and drove the passenger home. Trooper Polomny estimated, and the hearing officer found, that Buchholtz was alone in the car for approximately five minutes while Trooper Polomny spoke with the passenger and moved Buchholtz’s car.

[¶ 4] Trooper Polomny then took Buch-holtz to the jail. During the drive, Trooper Polomny watched Buchholtz in the rear-view mirror. After arriving at the jail, Trooper Polomny recited the implied consent advisory and asked Buchholtz to submit to an Intoxilyzer test. Buchholtz agreed to submit to the test. Trooper Polomny asked Buchholtz if he had anything in his mouth. Buchholtz replied that he did not, and Trooper Polomny checked his mouth and observed that there was nothing in Buchholtz’s mouth.

[¶ 5] The Intoxilyzer test began, and Buchholtz provided the first breath sample at 1:24 a.m. and the second breath sample at 1:29 a.m. Buchholtz’s reported alcohol concentration was .20 percent by weight. Trooper Polomny noted on the test record’s checklist that the twenty-minute waiting period had been ascertained.

[¶ 6] After completing the Intoxilyzer test, Trooper Polomny issued a Report and Notice to Buchholtz. Buchholtz requested an administrative hearing. At the hearing, Buchholtz argued Trooper Polomny failed to comply with the -approved method’s twenty-minute waiting period before administering the Intoxilyzer test because Trooper Polomny was absent for five of the twenty minutes before the test. The hearing officer rejected Buchholtz’s argument, finding that, despite the five-minute period where Trooper Polomny did not actually watch Buchholtz, reasonable inferences supported the conclusion that the twenty-minute waiting period was met, because watching Buchholtz was not the only way the trooper could have ascertained Buchholtz had nothing to eat, drink, or smoke during the twenty-minute period. The hearing officer issued a decision recommending the suspension of Buchholtz’s driving privileges for 180 days.

[¶ 7] Buchholtz appealed the Department’s decision to district court. The district court reversed the decision of the Department and found Trooper Polomny failed to ascertain Buchholtz had nothing to eat, drink, or smoke for at least twenty minutes prior to the Intoxilyzer test because there was “a gap where the Trooper certainly was not looking in his rear view mirror to check on Dustin Buchholtz, and he was not speaking with him or observing him.” Thus, the district court decided there was “certainly a break in the twenty minute time frame” needed for compliance with the approved method. The district court further found it problematic that the transcript from the administrative hearing was not clear about whether Trooper Po-lomny asked Buchholtz if he had anything in his mouth upon arrest and instead “he [Trooper Polomny] says he did that was just prior to commencing the test, and that was approximately at 1:23 a.m.” On these grounds, the district court reversed the Department’s decision.

[¶ 8] The Department appeals, arguing the district court erred in reversing the suspension of Buchholtz’s driving privileges for 180 days.

II

[¶ 9] The Administrative Agencies Practices Act, N.D.C.C. ch. 28-32, governs this Court’s review of administrative license suspensions. Buchholz v. N.D. Dep’t of Transp., 2002 ND 23, ¶ 6, 639 N.W.2d 490 (citing Horn v. N.D. Dep’t of Transp., 2000 ND 131, ¶ 5, 613 N.W.2d 29). The review is limited to the record before the administrative agency. Buchholz, at ¶ 6 (citing Ringsaker v. Director, N.D. Dep’t of Transp., 1999 ND 127, ¶ 5, 596 N.W.2d 328). “We give deference to the administrative agency’s findings and will not make independent findings or substitute our judgment for that of the agency.” Hanson v. Director, N.D. Dep’t of Transp., 2003 ND 175, ¶ 7, 671 N.W.2d 780 (citing Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161). Instead, this Court determines only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. Sonsthagen, at ¶ 7. “Although our review is limited to the record before the administrative agency, the district court’s analysis is entitled to respect if its reasoning is sound.” Hanson, at ¶ 7 (quoting Obrigew-itch v. Director, N.D. Dep’t of Transp., 2002 ND 177, ¶ 7, 653 N.W.2d 73) (internal quotations omitted). Questions of law are fully reviewable on appeal. Hanson, at ¶ 7. This Court is required to affirm an administrative agency’s decision 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. § 28-32-46.

[¶ 10] “The admissibility of an In-toxilyzer test result is governed by N.D.C.C. § 39-20-07(5).” Johnson v. N.D. Dep’t of Transp., 2004 ND 59, ¶ 11, 676 N.W.2d 807 (citing Buchholz, at ¶ 7). The relevant portion of this statute provides:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director’s designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director’s designee.

N.D.C.C. § 39-20-07(5). “Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed.” Buchholz, at ¶ 7 (citing McPeak v. Moore, 545 N.W.2d 761, 764 (N.D.1996)). “ ‘However, “scrupulous” compliance does not mean “hypertechnical” compliance.’ ” Buchholz, at ¶ 7 (quoting City of West Fargo v. Hawkins, 2000 ND 168, ¶ 16, 616 N.W.2d 856).

[¶ 11] The issue in this case is the State Toxicologist’s approved method for administering a breath test with an Intoxi-lyzer; the approved method requires that “[b]efore proceeding, the operator must ascertain that the subject has had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.... ” Approved Method to Conduct Breath Tests with the Intoxilyzer 5000 KB-EP, dated July 1, 2006. In order to comply with the approved method, Trooper Polomny had to “ascertain” Buch-holtz had nothing to eat, drink, or smoke within the twenty minutes leading up to the collection of the breath samples. The district court held Trooper Polomny had not ascertained Buchholtz had nothing to eat, drink, or smoke within twenty minutes of the test because (1) Trooper Polomny did not maintain continuous observation of Buchholtz for the twenty-minute period between arrest and testing and (2) Trooper Polomny did not check Buchholtz’s mouth upon arrest to ensure there was nothing in his mouth at the start of the period.

[¶ 12] This Court has “noted that ‘observing’ the subject is not the only manner of ‘ascertaining’ that the subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.” Buchholz, at ¶ 10 (citing State v. Chihanski, 540 N.W.2d 621, 624 (N.D.1995)). In Johnson, 2004 ND 59, ¶ 18, 676 N.W.2d 807, the defendant argued that “there was no testimony provided to establish that he was continuously observed by the officer from the point of administration of the S-D2 test until the point of the Intoxilyzer test.” This Court explained that “[although there was no testimony that the officer constantly observed Johnson, observation is not the exclusive method of ascertaining whether the twenty-minute requirement has been met.” Johnson, at ¶ 18 (citing Chihanski, 540 N.W.2d at 624). In Johnson, the Court explained that “a fact-finder can draw reasonable inferences from the evidence” and that “[i]t is not unreasonable for a fact-finder to infer that a person who had been handcuffed behind his back and had remained in police custody would have had nothing to eat, drink, or smoke during that time.” Id. (citations omitted). While Buchholtz’s hands were not handcuffed behind his body, he was patted down, his pockets were emptied, all items retrieved from his pockets were placed on the front seat of the patrol car, and he was placed in the back seat during the five-minute period in which Trooper Polomny was not actually watching him. These facts, like those in Johnson, would permit a reasonable fact-finder to infer Buchholtz did not put anything in his mouth during this five-minute period.

[¶ 13] Regarding the district court’s concern for Trooper Polomny’s failure to check Buchholtz’s mouth upon arrest, this Court has “conclude[d] the State Toxicologist’s approved method does not require test operators to ask subjects if they have anything in their mouths or to check their mouths prior to administering the test.” Buchholz, 2002 ND 23, ¶ 12, 639 N.W.2d 490. The Court “encouraged” test operators to check the mouths of those whom they test, but declined to impose such a requirement. Id. Therefore, the fact that Trooper Polomny did not check Buch-holtz’s mouth at the time of arrest does not suggest he failed to comply with the approved method.

[¶ 14] Because scrupulous, but not hy-pertechnical, compliance is required and because a fact-finder may draw reasonable inferences based on the evidence presented, the district court erred in reversing the decision of the Department. The Department established the Intoxilyzer test was fairly administered in accordance with the approved method. We reverse the judgment of the district court and reinstate the hearing officer’s suspension of Buchholtz’s license.

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


author: CROTHERS, Justice. MARING, Justice,

text:
    2008 ND 49
    Minnie MAKEDONSKY, Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 20070183.
    Supreme Court of North Dakota.
    March 20, 2008.
    Rehearing Denied April 17, 2008.

      Damian J. Huettl, Larson, Latham and Huettl, L.L.P., Bismarck, N.D., for appellant.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee.
   CROTHERS, Justice.

[¶ 1] Minnie Makedonsky appeals from a district court judgment affirming a North Dakota Department of Human Services’ decision denying her application for Medicaid benefits. She argues the Department erred in deciding assets transferred to her daughters by her attorney-in-fact were available to her for purposes of determining her Medicaid eligibility. We hold a preponderance of evidence supports the Department’s findings that a presumption of undue influence regarding the transfers was not rebutted and that assets transferred to Makedonsky’s daughters by her attorney-in-fact were available to her for purposes of determining her Medicaid eligibility. We affirm.

I

[¶ 2] Minnie Makedonsky entered a nursing home in Kidder County in August 2002, and the parties stipulated that at all times relevant to her claim for Medicaid benefits, she was mentally competent and capable of understanding her business affairs, but she had physical deficiencies requiring nursing home care. On August 22, 2002, after entering the nursing home, Minnie Makedonsky executed a durable power of attorney, appointing her daughter, JoAnn Makedonsky, as her attorney-in-fact. Between November 2002 and September 2005 JoAnn Makedonsky, as her mother’s attorney-in-fact, gifted more than $159,000 in assets to Minnie Makedonsky’s four daughters, JoAnn Makedonsky, Carol Schwindt, Rose Mack, and Donita Endrud. On September 8, 2005, Minnie Makedon-sky executed a “statement of intention to gift,” stating she had freely and voluntarily made those gifts to her daughters and she was not influenced by anyone, including JoAnn Makedonsky, in making those gifts.

[¶ 3] In February 2006, Minnie Make-donsky applied for Medicaid benefits with Kidder County Social Services. The county denied her application, concluding she had made disqualifying transfers of assets. Minnie Makedonsky appealed to the Department of Human Services.

[¶ 4] After an administrative hearing, an administrative law judge (“ALJ”) recommended affirming the county’s decision. The ALJ said JoAnn Makedonsky was a trustee for Minnie Makedonsky under N.D.C.C. § 59-01-08. The ALJ further said any transaction by which a trustee obtains any advantage from a beneficiary is presumed to be entered into without sufficient consideration and is a result of undue influence under N.D.C.C. § 59-01-16. The Department adopted the ALJ’s recommendation and found JoAnn Makedonsky had not rebutted the presumption of undue influence because Minnie Makedonsky had not testified at the administrative hearing to substantiate Minnie’s intent to gift her assets or to explain how she intended to pay for her nursing home costs. The Department concluded Minnie Makedon-sky’s testimony would have been the best evidence to rebut the presumption of undue influence and JoAnn Makedonsky’s hearsay testimony about her mother’s intent was not credible. The Department was not convinced by Minnie Makedon-sky’s claim that, before she signed the statement of intention to gift, she had intended to gift her assets to her daughters. The Department recognized an applicant for Medicaid benefits must make a good-faith effort to pursue available legal actions to have assets made available for purposes of Medicaid eligibility. The Department determined Minnie Makedon-sky had a cause of action to have the gifted assets returned to her until she signed the statement of intention to gift on September 8, 2005, because under N.D. Admin. Code § 75-02-02.1-33.1(8), “a transfer is complete when the individual ... making the transfer has no lawful means of undoing the transfer or requiring a restoration of ownership.” It decided Minnie Makedonsky made a disqualifying transfer when she executed the statement of intention to gift on September 8, 2005, which was within the thirty-six month look-back period of her February 2006 application for Medicaid benefits. Based on the value of the disqualifying transfer, the ALJ recommended that Minnie Makedonsky’s period of ineligibility for Medicaid benefits was from September 2, 2005, through July 15, 2008. The Department adopted the ALJ’s recommendation, and the district court affirmed the Department’s decision.

II

[¶ 5] “ ‘When a decision of an administrative agency is appealed from the district court to this Court, we review the decision of the agency.’ ” Martin v. Stutsman County Soc. Servs., 2005 ND 117, ¶ 8, 698 N.W.2d 278 (quoting Steen v. North Dakota Dep’t of Human Servs., 1997 ND 52, ¶ 7, 562 N.W.2d 83). Under N.D.C.C. § 28-32-49, we review an administrative agency’s decision in the same manner as the district court, and we must affirm the agency’s decision 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 [N.D.C.C. eh. 28-32] 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. § 28-32-46.

[¶ 6] “Our review of an agency’s decision is limited; we will not make independent findings of fact or substitute our judgment for that of the agency,” and we will not reverse an agency’s decision unless its findings are not supported by a preponderance of the evidence. J.P. v. Stark County Soc. Servs. Bd., 2007 ND 140, ¶ 9, 737 N.W.2d 627. In considering whether an agency’s findings of fact are supported by a preponderance of the evidence, we decide “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.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). “Questions of law are fully renewable.” Gustafson v. North Dakota Dep’t of Human Servs., 2006 ND 75, ¶ 6, 712 N.W.2d 599.

Ill

[¶ 7] Minnie Makedonsky argues the Department erred in counting assets she gifted to her four daughters through her attorney-in-fact before the applicable look-back period. She asserts the gifts were effective on the date the transfers occurred and not in September 2005, when she signed the statement of intention to ratify the gifts because the ratification related back to the actual date of the transfers. She contends JoAnn Makedonsky was authorized to gift the assets under N.D.C.C. § 30.1-30-06, which allows an attorney-in-fact to make gifts if the attorney-in-fact has authority to perform any act the principal may perform. She claims the Department erred in counting the assets gifted by JoAnn Makedonsky to the other three daughters because Minnie Makedonsky had a confidential relationship with only JoAnn Makedonsky and not with the other three daughters. She argues the evidence establishes the presumption of undue influence was successfully rebutted and the assets were not available to her for purposes of her Medicaid eligibility.

[11S] The Department counters that a Medicaid applicant must take affirmative steps showing an asset cannot be made available and that the date Minnie Make-donsky signed the statement of intention to gift, September 8, 2005, was the date she relinquished her legal right to sue for the return of assets gifted by her attorney-in-fact. The Department argues that evidence supports its findings that Minnie Makedonsky made a disqualifying transfer when she signed the statement of intention to gift and that she did not rebut the presumption of undue influence that arose when her attorney-in-fact gained an advantage from her. The Department contends the assets were available to Minnie Make-donsky for purposes of her Medicaid eligibility.

[¶ 9] In Estate of Pladson v. Traill County Soc. Servs., 2005 ND 213, ¶¶ 10-11, 707 N.W.2d 473, we outlined the legal framework for assessing an applicant’s eligibility for Medicaid benefits:

“Generally, a person without sufficient assets to meet the cost of necessary medical care and services is eligible for Medicaid benefits. Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 9, 634 N.W.2d 506. The Medicaid program is intended to be a payor of last resort, and available resources must be exhausted before Medicaid will pay for an individual’s care. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 18, 574 N.W.2d 859. An applicant for Medicaid benefits must prove eligibility. Roberts [v. North Dakota Dep’t of Human Servs.], 2005 ND 50, ¶ 7, 692 N.W.2d 922. Under the Department’s rules for determining Medicaid eligibility, a one-person unit is eligible for Medicaid benefits if the total value of that person’s assets does not exceed $3,000. N.D. Admin. Code § 75-02-02.1-26(l)(a); Linser v. Office of Attorney General, 2003 ND 195, ¶ 7, 672 N.W.2d 643. An ‘asset’ is defined as ‘any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with possessory rights.’ N.D. Admin. Code § 75-02-02.1-01(2). Although certain assets are exempt or excluded from consideration, see N.D. Admin. Code §§ 75-02-02.1-27 and 75-02-02.1-28, other assets that are ‘actually available’ must be considered in determining the applicant’s eligibility for Medicaid. N.D. Admin. Code § 75-02-02.1-25(1); Estate of Gross v. North Dakota Dep’t of Human Servs., 2004 ND 190, ¶ 8, 687 N.W.2d 460. Assets are ‘actually available’ under N.D. Admin. Code § 75-02-02.1-25(1) when the assets are at the disposal of the applicant, recipient, or responsible relative who has a legal interest in a liquidated sum and that person has the legal ability to make the sum available for support, maintenance, or medical care.” Estate of Gross, at ¶ 8.
“Determining whether an asset is ‘actually available’ for purposes of Medicaid eligibility is largely a fact-specific inquiry depending on the circumstances of each case. Linser, 2003 ND 195, ¶ 11, 672 N.W.2d 643. The ‘actually available’ requirement must be interpreted reasonably, and the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact, not legal fiction. Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 11, 640 N.W.2d 704.”

[¶ 10] An asset need not be in hand to be “actually available,” and an applicant may be required to initiate appropriate legal action to make the asset available. Linser v. Office of Attorney Gen., 2003 ND 195, ¶ 11, 672 N.W.2d 643; Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 11, 640 N.W.2d 704; Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶¶ 13-14, 634 N.W.2d 506; Post v. Cass County Soc. Servs. Bd., 556 N.W.2d 661, 664-65 (N.D.1996). If an applicant has a colorable legal action to obtain assets through reasonable legal means, the assets are available and the burden is on the applicant to show a legal action would be unsuccessful. Linser, at ¶ 11; Opp, at ¶¶ 22-23; Post, at 665.

[¶ 11] Minnie Makedonsky’s claim involves whether the transfers by her attorney-in-faet to her daughters were gifts. A valid gift requires an intention by the donor to then and there give the property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee. Bellon v. Bellon, 244 N.W.2d 227, 228 (N.D.1976); In re Paulson’s Estate, 219 N.W.2d 132, 134 (N.D.1974); In re Kaspari’s Estate, 71 N.W.2d 558, 567 (N.D.1955); Zeman v. Mikolasek, 75 N.D. 41, 53, 25 N.W.2d 272, 279 (1946). The pivotal issue in this case involves whether Minnie Makedonsky intended to gift her property when the transfers were made.

[¶ 12] JoAnn Makedonsky, as Minnie Makedonsky’s attorney-in-fact, had a relation of personal confidence with Minnie Makedonsky, and JoAnn Makedonsky is deemed a trustee under N.D.C.C. § 59-01-08, the statute in effect when these transactions occurred. See 2007 N.D. Sess. Laws ch. 549, § 27 (repealing N.D.C.C. ch. 59-01 and adopting Uniform Trust Code). Although JoAnn Makedon-sky had authority to gift Minnie Makedon-sky’s property under N.D.C.C. § 30.1-30-06, that authority must be construed together with other statutes regarding obligations of an attorney-in-fact and trustee. See In re Estate of Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842 (statutes construed as a whole and harmonized to give meaning to related provisions). All transactions between a trustee and a beneficiary, including gifts, are presumed to be without sufficient consideration and under undue influence. N.D.C.C. § 59-01-16. See 2007 N.D. Sess. Laws ch. 549, § 27 (repealing N.D.C.C. ch. 59-01 and adopting Uniform Trust Code).

[¶ 13] Minnie Makedonsky had the burden of rebutting the presumption that the gifts were made without sufficient consideration and under undue influence. See Estate of Zins, 420 N.W.2d 729, 731 (N.D.1988). Although Minnie Makedon-sky asserts some of the gifts were to daughters other than the attorney-in-fact, the Department claims, “[t]ransfers to close family members are and always must be suspect, for a number of reasons, not the least of which is the likelihood of collusion resulting in a subsequent redistribution of the assets to the Attorney-in-Fact.” According to JoAnn Makedonsky, the daughters “plan[ned] to divide [equally] anything, any assets that are still available at the time of Minnie’s passing.” The Department decided JoAnn Makedonsky had not rebutted the presumption of undue influence because Minnie Makedonsky had not testified at the administrative hearing to substantiate Minnie Makedon-sky’s intent to gift her assets or explain how she intended to pay for her nursing home costs. The Department acknowledged that JoAnn Makedonsky testified she called her mother each time a transfer was made and Minnie Makedonsky would ask if she had transferred the property yet. The Department decided, however, Minnie Makedonsky’s testimony would have been the best evidence to rebut the presumption of undue influence and JoAnn Makedonsky’s hearsay testimony about her mother’s intent was not credible. The Department rejected Minnie Makedon-sky’s assertion that, before she signed the statement of intention to gift, she had intended to gift her assets to her daughters. The Department concluded Minnie Make-donsky had not carried her burden of establishing eligibility for Medicaid benefits.

[¶ 14] This record contains credible evidence supporting the Department’s findings that Minnie Makedonsky did not intend to gift her assets to her daughters when those transfers were made, including the Department’s reliance on Minnie Mak-edonsky’s failure to testify at the administrative hearing, which the Department found raised questions about JoAnn Make-donsky’s credibility, and the testimony about the daughters’ “plan” to divide the assets equally after Minnie’s death. In assessing credibility, the Department was entitled to draw an adverse inference from Minnie Makedonsky’s failure to testify at the administrative hearing. See Seco, Inc. v. Carney Rig & Trucking Co., 166 N.W.2d 397, 402-03 (N.D.1969); Rozan v. Rozan, 129 N.W.2d 694, 709 (N.D.1964); Scherbenske v. Maier, 71 N.W.2d 770, 775 (N.D.1955). The parties also stipulated that, at all times relevant to this proceeding, Minnie Makedonsky was mentally competent and capable of understanding her business affairs, but that she had physical deficiencies requiring nursing home care. Although Minnie Makedonsky may have had the capacity to make these gifts when they were made, her attorney-in-fact made these transfers, which implicated the presumption of undue influence and factual issues about her intent. There is evidence supporting the Department’s credibility and factual determinations regarding the transfers and Minnie Make-donsky’s intent, and we do not reweigh that evidence.

[¶ 15] We also reject Minnie Makedon-sky’s claim that her ratification of the gifts in September 2005 was retroactive to the actual date of the transfers under Matter of Mehus’ Estate, 278 N.W.2d 625, 630 (N.D.1979) and Askew v. Joachim Mem’l Home, 234 N.W.2d 226, 237 (N.D.1975). A principal’s valid ratification can relate back to the date an agent transferred the principal’s property. See Mehus, at 630; Askew, at 237. Here, however, the Department found Minnie Makedonsky lacked intent when the transfers were made and the gifts were revocable until she executed the statement of intention to gift. This case is about Medicaid eligibility under the Department’s regulations, and those regulations provide that “[a] [disqualifying] transfer is complete when the individual ... has no lawful means of undoing the transfer or requiring a restoration of ownership.” N.D. Admin. Code § 75-02-02.1-33.1(8). We conclude the Department’s Medicaid regulations control the date of a disqualifying transfer for purposes of Minnie Makedonsky’s eligibility for Medicaid benefits.

[¶ 16] “Recognizing the constitutional doctrine of separation of powers, our standard of review in cases such as this does not allow us to make independent findings of fact or to substitute our judgment for that of the agency fact finder.” Linser, 2003 ND 195, ¶ 11, 672 N.W.2d 643 (citing Wagner v. Sheridan County Soc. Servs. Bd., 518 N.W.2d 724, 729 (N.D.1994)). Evidence in this record supports the Department’s findings that Minnie Makedonsky did not intend to gift her assets, that the presumption of undue influence was not rebutted, and that Minnie Makedonsky failed to establish her eligibility for Medicaid benefits. A reasoning mind could reasonably conclude, as the Department did, that Minnie Makedonsky did not intend to gift her assets, that the presumption of undue influence was not rebutted, and that Minnie Makedonsky’s assets were actually available to her until she executed the statement of intention to gift on September 8, 2005. Under the Department’s Medicaid regulations, her action constitutes a disqualifying transfer within the look-back period and disqualifies her from receiving Medicaid benefits.

IV

[¶ 17] We affirm the judgment affirming the Department’s decision.

[¶ 18] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, J., concur.

MARING, Justice,

dissenting.

[¶ 19] I respectfully dissent. I would reverse the district court judgment and remand this matter to the North Dakota Department of Human Services for a rede-termination of Minnie Makedonsky’s (“Makedonsky”) eligibility for Medicaid benefits. Because Makedonsky made completed gifts without undue influence, she has no legal ability to make the gifted property available under N.D. Admin.Code § 75-02-02.1-25. The Statement of Intention to Gift signed by Makedonsky acknowledged that she made those gifts and, even if treated as a mere ratification, it related back to the date of the transfers Makedonsky made to her daughters. I would further hold that the amounts transferred before the thirty-six month look-back period and acknowledged or ratified by the Statement of Intention to Gift were not available to her for purposes of determining her Medicaid eligibility.

[¶ 20] The majority opinion makes the same error of law the ALJ made. The majority misinterprets N.D. Admin. Code §§ 75-02-02.1-25 and 75-02-02.1-33.1(8) and ignores agency law.

[¶ 21] Assets that are “actually available” must be considered in determining eligibility for Medicaid. N.D. Admin. Code § 75-02-02.1-25(1). Assets are “actually available” when “the assets are at the disposal of the applicant, recipient, or responsible relative who has a legal interest in a liquidated sum and that person has the legal ability to make the sum available for support, maintenance, or medical care.” Estate of Pladson v. Traill Co. Social Services, 2005 ND 213, ¶ 10, 707 N.W.2d 473 (citing Estate of Gross v. North Dakota Dep’t of Human Servs., 2004 ND 190, ¶ 8, 687 N.W.2d 460); see N.D. Admin. Code § 75-02-02.1-25. “Interpretation of the ‘actually available’ requirement must be reasonable, and the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact, not legal fiction.” Opp v. Ward Co. Social Services Bd., 2002 ND 45, ¶ 11, 640 N.W.2d 704 (emphasis added). The majority relies on the premise that until Make-donsky signed the Statement of Intention to Gift she could have brought a legal action to have the gifts returned to her. The majority ignores that her legal cause of action would have been unsuccessful.

[¶ 22] Makedonsky made gifts to her daughters, including the daughter who executed some of the gift documents as Mak-edonsky’s agent. A gift is a transfer of personal property made voluntarily and without consideration. N.D.C.C. § 47-11-06. The requirements for a valid inter vivos gift are: (1) an intent to give; (2) delivery of the gift, either actual or constructive; and (3) an acceptance of the gift by the donee. Kolouch v. Bond, 219 N.W.2d 132, 134 (N.D.1974). The record indicates that those requirements are met. All documents necessary to transfer the gifted items and to record the transfer of the real property interests appear of record. The transfers were complete and Makedonsky, as the donor of completed gifts, had no legal ability to compel the return of the property. See Zeman v. Mikolasek, 75 N.D. 41, 53, 25 N.W.2d 272, 279 (1946) (quoting Ramsdell v. Warner; 48 N.D. 96, 183 N.W. 281, 283 (1921) (stating “To have the effect of a valid gift, therefore, the transfer of possession and title must be absolute and go into immediate effect, so far as the donor can make it so by intent and delivery, and must be so complete that if he again resumes control over it without consent of the donee he becomes liable as a trespasser.”)).

[¶ 23] Some of the documents to complete the gifts were executed by daughter JoAnn Makedonsky, Makedonsky’s agent under a Durable Power of Attorney, and not merely under the statute as the majority asserts in ¶ 12. “Every act which legally may be done by or to any person may be done by or to the agent of such person.” N.D.C.C. § 3-02-01. The mere fact the gifts were completed through an agent does not negate the effectiveness of the act. The exception to this is when an agent violates the agent’s duty in circumstances giving rise to a presumption of undue influence. The Department wants Makedonsky to bring a lawsuit attacking the transfer on the basis of a statutory rebuttable presumption that the gifts to JoAnn Makedonsky, as trustee, were without sufficient consideration and made under undue influence.

[¶24] Under N.D.C.C. § 59-01-16 (2006), a transaction whereby a trustee gains an advantage from the beneficiary is “presumed to be entered into by the latter without sufficient consideration and under undue influence.” See 2007 N.D. Sess. Laws ch. 549, § 27 (repealing N.D.C.C. ch. 59-01 and enacting the N.D. Uniform Trust Code, § 59-09-01 et. seq.). When an agent gains such an advantage, the burden is on the agent to rebut the presumption. Mehus v. Mehus, 278 N.W.2d 625, 632 (N.D.1979). In this case, the presumption of undue influence arose because Makedonsky’s agent, her daughter JoAnn, received gifts from Makedonsky. This presumption was overcome, however, when Makedonsky executed the Statement of Intention to Gift. By signing the Statement, Makedonsky made clear that it was her intent to give, that she made the gifts, and that she was under no compulsion to do so. The Department accepts the validity of the Statement because it treats the date on which the Statement was signed as the date Makedonsky relinquished her right to reclaim the gifts. Because the gifts were valid and the presumption of undue influence was overcome, Makedon-sky has no legal ability to compel the return of the property. To suggest otherwise would be to suggest that Makedonsky must perjure herself in order to attempt to undo an intentional, completed gift. That would involve a legal impropriety, not a legal obligation. Makedonsky has no legal interest in the gifted property and no legal ability to obtain the assets. See Zeman, 75 N.D. 41, 25 N.W.2d 272. Those given away outside the look-back period are not available under N.D. Admin. Code § 75-02-02.1-25 for purposes of determining eligibility.

[¶ 25] The majority treats the Statement of Intention to Gift as a mere ratification although its content indicates it was not intended merely to ratify the prior acts of Makedonsky’s agent, but rather to show that the acts previously done through her agent were, in fact, Makedonsky’s own acts at the time they were made. The Statement provides, in part:

I, Minnie Makedonsky, state and memorialize that, as a reflection of my love and affection, I made previous gifts of cash, life insurance, and a remainder interest in my home totaling $148,703.77 to my children, including my daughter and attorney-in-fact, JoAnn Makedon-sky. I was not influenced by anyone, including JoAnn, in any way to make these gifts and I did it freely and voluntarily. Likewise, I intend to continue making future gifts of my assets to my children, including JoAnn, or any other child that may serve as my attorney-in-fact, and my intention to make future gifts to my children or any trusts in which my children are beneficiaries has not been influenced by any of my children in any way.

(Emphasis added.)

[¶ 26] Makedonsky, therefore, established that any legal action brought within the thirty-six month look-back period would have been unsuccessful. The transfers were made by Makedonsky, as a matter of fact, on their original dates.

[¶ 27] The Department has stipulated that Makedonsky was a competent individual and accepts this Statement as Make-donsky’s valid act. For purposes of eligibility, the Department cannot have it both ways. It cannot treat the Statement of Intention to Gift as a valid act, a document of legal significance executed by a competent person, but ignore its contents. The Statement is clear that Makedonsky herself made those gifts, that it was her intention to do so, and she was not under undue influence.

[¶ 28] Even if the Statement of Intention to Gift is treated merely as a ratification, the law applicable to ratifications indicates that the ratification would relate back to the date of transfer, thus treating those gifts made outside the look-back period as not available for purposes of determining eligibility.

Elf 29] The majority ignores the legal effect of a ratification. The Statement made in September 2005, if a ratification of the gifts, related back to the actual date of the transfers. Ratification is “[t]he affir-mance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.” Askew v. Joachim Mem’l Home, 234 N.W.2d 226, 237 (N.D.1975) (quoting Restatement (Second) of Agency § 82, at 210 (1958)). Ratification is equivalent to an original grant of authority. 12 Richard A. Lord, Williston on Contracts § 35:22, at 272-73 (4th ed.1999) (citation omitted). Ratification “relates back and supplies original authority to execute the contract.” Id. at 270; see also Lewis v. Washington Metro. Area Transit Auth., 463 A.2d 666, 672 (D.C.App.1983) (principal “is bound by the agent’s act nunc pro tunc”). As is explained in the Restatement (Second) of Agency,

The concept of ratification is not a legal fiction, but denotes the legal consequences which result from a series of events beginning with a transaction inoperative as to the principal, and ending in an act of validation. The statement that there is a relation back to the time of the original act is fictitious in form, but in effect, it is a statement of liabilities. The concept is unique .... it operates as if the transaction were complete at the time and place of the first event, rather than the last ....

Restatement (Second) of Agency § 82 cmt. c. (1958) (emphasis added).

[¶ 30] When these ratification principles are applied to Makedonsky, the ratification by Makedonsky of any gifts made before the look-back period would relate back to the date of the original transfers and would supply original authority to execute the transfers. Thus, the dates on which those transfers were made would remain the dates on which the transfers occurred for purposes of determining Mak-edonsky’s Medicaid eligibility. The effective dates of the gifts would not be September 2005, the date on which she signed the Statement of Intention to Gift.

[¶ 31] To support its rejection of Make-donsky’s claim that her ratification of the gifts in September 2005 was retroactive to the actual date of the transfers, the majority cites Mehus v. Mehus, 278 N.W.2d 625 (N.D.1979), and Askew v. Joachim Mem’l Home, 234 N.W.2d 226 (N.D.1975). Neither of these cases addresses whether a principal’s subsequent ratification of an agent’s act relates back to the date of the agent’s original unauthorized act. Both cases are distinguishable from Makedon-sky’s case.

[¶ 32] In Mehus, we affirmed a district court decision affirming an order of a county probate court that a son who served as coattorney-in-fact for his mother was not entitled to savings certificates he purchased with his mother’s assets and held with his mother as a joint tenant with right of survivorship. 278 N.W.2d 625. We reached that conclusion because the son did not overcome the statutory presumption of undue influence. Id at 634. The son purchased the saving certificates. Id. at 628. The mother ratified the son’s purchase of the savings certificates by implication. Id at 631. However, we held that the trial court’s finding that the son failed to overcome the presumption of undue influence was not clearly erroneous. Id at 633. In this case, even if the Statement is treated as a mere ratification, it is express, not implied. The Statement itself, accepted by the Department, is the “credible evidence that the fact presumed does not exist” as required by N.D.R.Ev. 301 and there is no evidence in the record to the contrary.

[¶ 33] In Askew, the board of directors of an association that operated a retirement home did not expressly ratify an agreement entered into by the association’s president with another party. 234 N.W.2d 226. We held that the agreement was enforceable because it was ratified by the board of directors by implication. Id at 239. Evidence of ratification existed because the board of directors “acted in such a manner that it voluntarily assumed the responsibility of the terms of the originally unauthorized agreement ... without making reasonable inquiry into the nature of the terms contained in that agreement.” Id at 238. Like Mehus, whether the board’s ratification related back to the date of the initial agreement between the board of director’s agent and the third party was not at issue in Askew.

[¶ 34] Here, the ALJ did not question the validity of Makedonsky’s Statement of Intention to Gift executed subsequent to the transfers to her daughters and impliedly found Makedonsky made an express ratification of the gifts. The recommended findings of the ALJ adopted by the Department and affirmed by the district court stated,

Minnie had the right to have the assets returned to her until she signed the Statement of Intention to Gift on September 8, 2005.... The gifts were revocable until Minnie executed the Statement of Intention to Gift, at which time she ratified the gifts and her statement became in effect, her release of her chose in action.

The ALJ then concluded that “the transfer became complete when Minnie signed the Statement of Intention to Gift on September 8, 2005.” The ALJ wrote,

In this case, the disqualifying transfer occurred when Minnie executed the Statement of Intention to Gift on September 8, 2005, and no longer had any lawful means of undoing the transfers or requiring a restoration of ownership of her assets. It was on that date that she gave up the right to revoke the gifts and have her assets returned to her. That date falls within the thirty-six month look-back date. Therefore, the assets transferred by her attorney-in-fact are considered disqualifying transfers under Medicaid rules in N.D. Admin. Code § 75-02-02.1-33.1.

(emphasis added).

[¶ 35] When the ALJ considered whether Makedonsky overcame the presumption of undue influence, the ALJ failed to consider the effect of an express ratification of the transfers. A principal can consent to conduct by an agent that would otherwise constitute a breach of the agent’s duty. Restatement (Third) of Agency § 8.06 (2006). The Restatement provides that a principal’s consent will be valid, provided,

(a) in obtaining the principal’s consent, the agent
(i) acts in good faith,
(ii) discloses all material facts that the agent knows, has reason to know, or should know would reasonably affect the principal’s judgment unless the principal has manifested that such facts are already known by the principal or that the principal does not wish to know them, and
(iii) otherwise deals fairly with the principal; and
(b) the principal’s consent concerns either a specific act or transaction, or acts or transactions of a specified type that could reasonably be expected to occur in the ordinary course of the agency relationship.

Id. When “a principal consents after-the-fact to action taken by an agent that would otherwise breach the agent’s fiduciary duty to the principal, the principal has the opportunity to assess what the agent has done with a degree of specificity not available before the agent takes action.” Id. at cmt. b.

[¶ 36] Here, if Makedonsky’s Statement is treated as a ratification, the validity of which the ALJ acknowledges in the recommended findings and conclusions, the Statement rebutted the presumption of undue influence, related back to the original date of the transfers to Makedonsky’s daughters and supplied original authority to execute the transfers. Makedonsky had the opportunity to assess the earlier transfers to her daughters. The Statement of Intention to Gift reveals that Makedonsky “freely and voluntarily” consented to the transfers, and “freely and voluntarily” executed the Statement of Intention to Gift. Her “ratification” of the transfers related back to the original date on which the transfers occurred. Makedonsky established there was no viable legal action to compel the return of the property. Thus, any of the transfers at issue in this case made before the thirty-six month look-back period were not relevant to Makedon-sky’s Medicaid eligibility determination.

[¶ 37] For these reasons, I would reverse the district court judgment and the decision of the North Dakota Department of Human Services and would remand for a redetermination of Minnie Makedonsky’s eligibility for Medicaid benefits. The property transferred before the thirty-six month look-back period was not available to her for purposes of determining her Medicaid eligibility.

[¶ 38] MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ dissent.