Van Klootwyk v. Baptist Home

20020325 Michelle Van Klootwyk, Jim
Wilhelm, Greg Wilhelm, as
heirs and representatives
of the Estate of Gladys Wilhelm,
deceased; and Michelle Van
Klootwyk, Jim Wilhelm, and
Greg Wilhelm, as survivors
of Gladys Wilhelm, deceased, Plaintiffs and Appellants
v.
Baptist Home, Inc., a North
Dakota non-profit corporation, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Donald L. Jorgensen
Nature of Action: Malpractice
Counsel:
Appellant: Chapman and Chapman, P.C.
Appellee: Storslee Law Firm, P.C.
Term: 04/2003   Argument: 04/08/2003  9:30am
ND cite: 2003 ND 112
NW cite: 665 N.W.2d 679

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Issues: Appellant's Statement of the Issues:
I. Did the trial court err in its determination that an action, commenced by Plaintiffs against a nursing home, was covered by the provisions of Section 28-01-46, N.D.C.C.?
II. Did the trial court err in declining to accept the Affidavit of Plaintiffs' expert witness, in satisfaction of the requirements of Section 28-01-46, N.D.C.C., even though Plaintiffs claimed surprise arising from the failure of said statute to make any reference to an action against a nursing home, and even though discovery depositions of the nursing home's employees were not completed until approximately eighty-five (85) days prior to the filing of the Affidavit?
III. Did the trial court err in allowing the Defendant to recover the costs of expert witnesses, even though the Defendant failed to move for a dismissal, under Section 28- 01-46, N.D.C.C., until seventeen (17) months after commencement of the action?

Appellee's Statement of the Issues:
1. Did the District Court err by dismissing the Plaintiffs' Complaint without prejudice?
2. Was the District Court's award of costs to the defendant an abuse of discretion?

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Docket entries:
111/26/2002 NOTICE OF APPEAL: 11/22/2002
211/26/2002 ORDER FOR TRANSCRIPT: 11/22/2002
312/17/2002 TRANSCRIPT DATED July 12, 2002
412/18/2002 RECORD ON APPEAL
512/19/2002 DISK - TRA (7-12-02)
601/10/2003 Amended Notice of Appeal (filed 1-8-03 in lower court)
701/10/2003 Supplemental Clerk's Certificate dated 1-8-03 (Entry Nos. 42-28)
801/23/2003 MOT. EXT/TIME APPELLANT BRIEF
901/23/2003 ACTION BY CLERK. Granted: 02/05/2003
1002/05/2003 APPELLANT BRIEF
1102/05/2003 APPELLANT APPENDIX
1202/05/2003 DISK - atb
1302/10/2003 Corrected pages 38, 39, 50, & 51 for ATA (inserted)
1403/06/2003 APPELLEE APPENDIX
1503/11/2003 APPELLEE BRIEF
1603/11/2003 DISK - aeb (e-mailed)
1703/28/2003 REPLY BRIEF
1803/28/2003 DISK of RYB
1904/08/2003 APPEARANCES: Charles L. "Casey" Chapman; Steven A. Storslee
2004/08/2003 ARGUED: Chapman; Storslee (Vol. Y; Page 105)
2104/08/2003 ORAL ARGUMENT WEBCAST
2207/16/2003 DISPOSITION: REVERSED AND REMANDED
2307/16/2003 SPLIT OPINION: Neumann, William A.
2407/16/2003 (CONCUR): Kapsner, Carol Ronning: CONCUR
2507/16/2003 (JOIN CONCUR): Sandstrom, Dale V.: JN/CON
2607/16/2003 (JOIN CONCUR): VandeWalle, Gerald W.: JN/CON
2707/16/2003 (JOIN CONCUR): Maring, Mary Muehlen: JN/CON
2807/17/2003 Order/Judgment Mailed to Parties
2908/07/2003 MANDATE
3008/12/2003 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3109/09/2008 EXPUNGED - Nonpermanent record items destroyed

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