Hadland v. Schroeder, 10221

• Decision Date: 24 November 1982
• Docket Number: No. 10221,10221
• Citation: 326 N.W.2d 709
• Parties: Kathleen A. HADLAND, Plaintiff and Appellant, v. John O. SCHROEDER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 709

326 N.W.2d 709

Kathleen A. HADLAND, Plaintiff and Appellant, v. John O. SCHROEDER, Defendant and Appellee.

Civ. No. 10221.

Supreme Court of North Dakota.

Nov. 24, 1982.

H.H. Galloway, Grand Forks, for plaintiff and appellant.

A. Fred Arnason, Grand Forks, for defendant and appellee; argued by Joel F. Arnason, Grand Forks.

PAULSON, Justice.

Kathleen A. Hadland appeals from a summary judgment granted April 15, 1982, to John O. Schroeder by the District Court of Grand Forks County. The summary judgment dismissed with prejudice Hadland's claim which sought to establish the paternity of her child, to recover expenses for the birth of her child, and for child support. We reverse the summary judgment and remand the case for proceedings not inconsistent with this opinion.

On May 21, 1978, Kathleen A. Hadland, an unmarried woman, gave birth to a male child. In August 1978, Hadland served a summons and complaint upon John O. Schroeder, alleging that Schroeder was the father of her child and seeking monetary damages for medical expenses and child support. Schroeder answered denying the allegations in Hadland's complaint. Schroeder's denial was based on the fact that he had undergone a vasectomy in April 1972, six years prior to the birth of Hadland's child.

Following an unsuccessful attempt to settle the matter, Hadland filed a note of issue on November 13, 1981. On March 11, 1982, Schroeder filed a motion for summary judgment pursuant to Rule 56 of the North Dakota Rules of Civil Procedure. The motion for summary judgment was heard by the District Court of Grand Forks County on March 24, 1982. Attached to the affidavit of Schroeder's counsel in support of the motion for summary judgment was a letter from Dr. Conrad D. Doce, the urologist who had performed the vasectomy on Schroeder in 1972. In his letter, Dr. Doce described the vasectomy and stated that two postoperative sperm counts had been performed, neither of which showed evidence of sperm cells. The first postoperative sperm count was performed June 14, 1972, six weeks after the operation. The second sperm count was performed July 6, 1978, after the birth of Hadland's child, and disclosed the presence of no sperm cells in a random sample. Dr. Doce also stated in his letter, dated November 5, 1978, that in light of the absence of sperm cells in the two semen analyses performed, he concluded Schroeder could not possibly have fathered a child at any time during the period from June 14, 1972, to July 6, 1978.

Hadland's attorney submitted an affidavit in opposition to the motion for summary judgment, attached to which was a letter from Dr. Theodore E. Johnsrude dated September 11, 1981, stating that conception subsequent to a vasectomy is possible, as recanalization occurs in approximately 0.6% of vasectomies. ¹

In his argument at the summary judgment hearing, Schroeder presented a second letter from Dr. Johnsrude dated October 19, 1981, ² which was sent in response to a letter from Schroeder's attorney seeking another opinion on the matter of the possibility of conception occurring following a vasectomy. In his letter of October 19, 1981, Dr. Johnsrude declined to give any opinion but stated that because he and Dr. Doce were associated in the same Clinic, he advised Schroeder's attorney to "obtain an unbiased opinion from another urologist from another city". Schroeder also argued to the court that he had been married to two different women since the date of his vasectomy and neither wife had become pregnant despite normal marital relations during the course of each marriage.

Hadland argued that Schroeder had refused to comply with an agreement to submit to a blood test and that, because Hadland and her child had submitted to blood tests, the court should order Schroeder to submit to a blood test as well. Hadland also argued that because she had submitted a letter stating that conception following a vasectomy was possible, regardless of the opinion of Schroeder's doctor, the question of paternity was still a fact question upon which summary judgment could not be properly granted.

In its memorandum decision granting Schroeder's motion for summary judgment, the district court noted that, although not specifically stated in the pleadings, this is an action brought pursuant to the provisions of the Uniform Parentage Act, Chapter 14-17 of the North Dakota Century Code. The district court went on to note that it is impossible for a man who has had a successful vasectomy to father a child. The court also stated that it considered that the October 19, 1981, letter of Dr. Johnsrude did effectively withdraw the opinion contained in his letter of September 11, 1981, in which he stated that conception after a vasectomy is possible. Relying upon the statement contained in the letter of Dr. Doce regarding the negative results of the two sperm analyses, the fact that Dr. Doce performed both the surgery and the sperm tests, and Dr. Doce's opinion that Schroeder could not possibly be the father of Hadland's child, the district court concluded that no genuine issues of material fact remained to be tried and that Schroeder was entitled to judgment as a matter of law. The motion for summary judgment was granted and judgment was entered accordingly on April 15, 1982. From this judgment Hadland appeals.

In oral argument before our court there was some discussion as to whether or not Hadland had appealed from the memorandum decision of the district court, rather than from the judgment entered in the matter on April 15, 1982. We have previously held that there is no right to appeal from a memorandum decision which is not intended to be a final order. Chas. F. Ellis Agency, Inc. v. Berg, 214 N.W.2d 507, 510 (N.D.1974). Unless an appeal is from an appealable order or judgment, this court is without jurisdiction and must dismiss the appeal. Chas. F. Ellis Agency, Inc. v. Berg, supra.

Hadland's notice of appeal reads as follows:

"PLEASE TAKE NOTICE that the Plaintiff, Kathleen A. Hadland, hereby appeals to the North Dakota Supreme Court for an Order vacating the Memorandum Decision Granting Defendant's Motion for Summary Judgment and granting the Plaintiff to go forward with a trial. The said Memorandum Decision was dated March 26, 1982, and signed by Honorable Kirk Smith, and entered by the Clerk of District Court on the 15th day of April, 1982.

"Dated this 14th day of May, 1982."

Hadland's notice of appeal does not state that she is appealing from the memorandum decision, rather, she appeals for an order vacating the grant of summary judgment. The notice of appeal also specifies the date the judgment was entered in this matter. Although the language of Hadland's notice of appeal is somewhat unusual, we conclude that Hadland is appealing from the judgment entered April 15, 1982, and not from the memorandum decision of March 26, 1982.

Thus, the sole issue presented for our consideration is whether or not the district court properly granted summary judgment against Hadland.

In Erickson v. Farmers Union Mut. Ins. Co., 311 N.W.2d 579, 580 (N.D.1981), this court restated the standard for reviewing an appeal from a summary judgment which had been previously stated in Benson County Coop. Credit Union v. Central Livestock, 300 N.W.2d 236, 239 (N.D.1980):

" 'On appeal from a summary judgment, the evidence must be viewed in a light most favorable to the party against whom the summary judgment was granted. [Citation omitted.] This court cannot decide disputed issues of material fact; it may only determine whether a genuine issue exists and whether the law was applied correctly. Accordingly, we reverse the grant of a summary judgment motion if it appears from the record that there is an unresolved issue of material fact. Summary judgment is not appropriate if the moving party is not entitled to judgment as a matter of law or if reasonable differences of opinion exist as to the inference to be drawn from undisputed facts. [Citations omitted.] Under Rule 56(c), North Dakota Rules of Civil Procedure, we may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits in determining whether or not there is a genuine issue of material fact.' "

The trial court did not properly grant summary judgment against Hadland. Viewing the evidence in the light most favorable to Hadland, we do not agree with the district court that no genuine issue of material fact exists. Under the facts presented here, Schroeder was not entitled to summary judgment as a matter of law.

Hadland contends that the district court improperly took judicial notice of the fact that it was impossible for Schroeder to father a child after having undergone a vasectomy in 1972. However, a careful reading of the district court's memorandum decision reveals that the court did not take judicial notice that it was impossible for Schroeder to father a child because h...