Beaudoin v. South Texas Blood & Tissue Center
Decision Date | 01 March 2004 |
Docket Number | No. 20030148.,20030148. |
Parties | Michael BEAUDOIN, Plaintiff and Appellant v. SOUTH TEXAS BLOOD & TISSUE CENTER, Defendant and Appellee. |
Court | North Dakota Supreme Court |
Kay Nord Hunt (argued), Robert J. King, Jr., and Diane M. Odeen, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, and Orell D. Schmitz, Schmitz & Schmidt, Bismarck, ND, for plaintiff and appellant.
Michael T. Andrews (argued) and H. Patrick Weir, Vogel Law Firm, Bismarck, ND, for defendant and appellee.
[¶ 1] Michael Beaudoin appealed from a judgment dismissing without prejudice his action against South Texas Blood & Tissue Center ("South Texas"). We conclude South Texas was properly served with process, and we reverse and remand for further proceedings.
[¶ 2] Beaudoin had his right patellar tendon surgically replaced on August 23, 2000, in Dickinson, North Dakota, with a tendon removed from a cadaver in Texas. At the request of a Connecticut corporation, South Texas shipped the tendon to Dickinson. Beaudoin sued South Texas, alleging the tendon was not sterile, and that, as a result, he contracted an infection in his right knee. A professional process server delivered a copy of the summons and complaint to Betty Nickerson, South Texas's Executive Office Manager, on August 19, 2002. South Texas did not answer or appear, and a default judgment was entered against it. Relying on N.D.R.Civ.P. 12(b), and N.D.R.Civ.P. 60(b)(i), (iv) South Texas moved to vacate the default judgment and to dismiss the complaint "on the grounds that the Court lacks personal jurisdiction over the defendant."
[¶ 3] South Texas submitted an affidavit of Nickerson stating, in part:
[¶ 4] Charles N. Lambrecht, a professional process server engaged to serve South Texas, stated, in part, in his affidavit:
I was contacted by the law firm of Schmitz and Schmidt to serve a Summons and Complaint on the South Texas Blood & Tissue Center. After receipt of those papers, I proceeded to South Texas Blood & Tissue Center and upon entry, requested of the receptionist a Managing Agent or Director of the corporation. After waiting for a period of time, Betty Nickerson was brought to me and identified as the Executive Office Manager and authorized to accept the papers. I told her I was delivering legal papers on her and she certainly seemed to understand what was happening.
[¶ 5] The trial court ruled South Texas was not properly served and the court, therefore, did not acquire personal jurisdiction over South Texas. The court ordered the default judgment vacated, and it dismissed the action without prejudice. A judgment of dismissal without prejudice was entered on March 31, 2003.
[¶ 6] On appeal, Beaudoin contends (1) the judgment is appealable because the claim is for malpractice and the statute of limitations has run; (2) South Texas was properly served under N.D.R.Civ.P. 4(d); (3) South Texas had sufficient relationships or contacts with North Dakota to subject it to the jurisdiction of North Dakota courts; and (4) the default judgment was valid and should not have been vacated.
[¶ 7] While ordinarily not appealable, "a dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum." Winer v. Penny Enterprises, Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9. A judgment of dismissal without prejudice is appealable if the plaintiff will be barred by the statute of limitations from bringing another action. Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d 1.
[¶ 8] Section 28-01-18(3), N.D.C.C., provides a two-year statute of limitations for "[a]n action for the recovery of damages resulting from malpractice." Malpractice is the failure of one rendering professional services to exercise the degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession, which results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them. Johnson v. Haugland, 303 N.W.2d 533, 538 (N.D.1981). See also Jilek v. Berger Elec., Inc., 441 N.W.2d 660, 661 (N.D.1989)
(. )
[¶ 9] While "any alleged professional malpractice may be framed generally in either tort or contract theory," Johnson, 303 N.W.2d at 539 n. 4, "[i]n a malpractice case, the malpractice statute of limitations controls over statutes of limitations applicable to contract or other tort actions," Jilek, 441 N.W.2d at 661. "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of ... science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience." Sime v. Tvenge Assocs. Architects and Planners, P.C., 488 N.W.2d 606, 609 (N.D.1992) (citations omitted).
[¶ 10] We are satisfied that the harvesting, preservation, and delivery of body parts involves "science or art requiring special skills not ordinarily possessed by lay persons," Sime, 488 N.W.2d at 609, and we, therefore, conclude that this case is governed by the two-year statute of limitations for malpractice prescribed by N.D.C.C. § 28-01-18(3). Thus, "[i]f the dismissal stands, [Beaudoin] will be barred from bringing another action by N.D.C.C. § 28-01-18(3)." Jaskoviak, 2002 ND 1, ¶ 8, 638 N.W.2d 1. We conclude the dismissal without prejudice entered in this case is, therefore, appealable.
[¶ 11] "Valid service of process is necessary to assert personal jurisdiction over a defendant." Gessner v. City of Minot, 1998 ND 157, ¶ 5, 583 N.W.2d 90. Thus, we must determine if South Texas was properly served with process under N.D.R.Civ.P. 4(d), which provides, in part:
[¶ 12] When what is now N.D.R.Civ.P. 4(d)(2)(D) was adopted in 1957, it superseded N.D.R.C.1943, § 28-0606, which provided, in part: "If the defendant in a civil action is a domestic corporation, service of the summons shall be made upon the president, secretary, cashier, or treasurer, or upon a director or a managing or authorized agent thereof." The provision was drawn from C.L.1913, § 7426(4), R.C. 1899, § 5252(4), and R.C. 1895, § 5252(4), which was, in turn, drawn from Code of Civil Procedure § 102, Revised Codes of the Territory of Dakota (1877). The provision was previously codified in Code of Civil Procedure § 86, Laws of Dakota 1867-8, which provided for service of a summons upon a corporation's "president or other head of the corporation, secretary, cashier, treasurer, a director, or managing agent thereof." Volume 1, Revised Codes of the Territory of Dakota (1883), notes the source of § 102 of the Code of Civil Procedure was Wait's Code § 134. At page v of the Preface to the Revised Codes of the Territory of Dakota (1877), the New York source of our provision is also noted:
The [1877 Code of Civil Procedure] originated also in New York, where it was enacted into law. In an abridged form it was enacted in Dakota in 1868, and took effect on the first day of June in that year.
The New York antecedent of our provision for service of process on corporations was enacted in 1848, as part of the Code of Procedure, "known as the `Field Code,'" after David Dudley Field, one of the commissioners on practice and pleadings proposing the code. Mildred V. Coe and Lewis W. Morse, Chronology of the Development of the David Dudley Field Code, 27...
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