Ackre v. Chapman & Chapman, P.C.

20100044 Robert Ackre, Plaintiff and Appellant
v.
Chapman & Chapman, P.C., Defendant and Appellee

Appeal from: District Court, Northeast Judicial District, Rolette County
Judge Michael G. Sturdevant
Nature of Action: Other (Civil)
Counsel:
Appellant: Larry Michel Baer
Appellee: Patrick W. Durick
Appellee: Zachary Evan Pelham
Term: 05/2010   Argument: 05/06/2010  9:30am
ND cite: 2010 ND 167
NW cite: 788 N.W.2d 344

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Issues: Appellant's Statement of the Issues:
I. Does a North Dakota treating Hospital which provides treatment of a tort victim's injuries, acquire a statutory first lien upon the tort claims of its patients? This questions is answered through a series of sub-parts.
A. On February 10, 2004, did Trinity Hospital possess a statutory first lien interest over the tort settlement proceeds held by the Chapman Law Firm?
B. Does a treating hospital acquire a first lien interest?
C. Must a ND Hospital take any affirmative action to perfect its lien interest?
D. Was the Hospital Lien still enforceable on the date of tort payment settlement?
E. Is the amount of a North Dakota hospital lien, after Medicare tenders conditional payment, the gross amount billed?
II. Has the State of North Dakota has statutorily modified the Common Law "Collateral Source Rule" applicable to tort victim recovery of expenses paid by third parties in cases in which the tort victim has paid no premium to earn entitlement?
A. Does North Dakota's statutory collateral source rule requires exclusion of third party payments made for the benefit of Medicare recipients under Medicare, Part B?
III. Has the Federal Government Modified the Common Law "Collateral Source Rule" applicable to tort victim recovery from tortfeasor?
IV. Is Medical insurance coverages provided by the United States Department of Health and Human Services under the Medicare program "secondary" insurance coverage to all legislatively defined "primary" insurances?
V. Does the fraudulent collection of assets known to belong to a third party creates a constructive trust for the benefit of the third party.
VI. IS DEFENDANT LIABILITY TO MR. ACKRE?
A. Does Attorney misconduct creates a civil action for the benefit of all parties injured thereby, including competing attorneys?
B. Does a law firm which engages in Deceptive Acts or Practices, Fraud, False Pretense, False Promise, or Misrepresentation, with the Intent that others rely thereon in connection with the sale of the attorney's legal services is, like any other merchant of services, subject to private enforcement of the Unlawful Sales or Advertising Practices Act ?

Reply Brief Issues
I. North Dakota is a "notice pleading" jurisdiction.
II. Until unconditionally paid in full, a hospital lien is not discharged.
III. Purpose of the federal and state law is to deny a tort victim double recovery windfalls.
IV. The provisions of section 27-13-08, N.D.C.C., "Misconduct of Attorney" are not limited in scope to actions in deceit
V. It is premature to address the nature and scope of damages.

Appellee's Statement of the Issues:
1. Whether the District Court erred in holding that Mr. Ackre was not a protected party or third party beneficiary entitled to the protection offered by  27-13-08, N.D.C.C.
a. Whether Mr. Ackre's arguments concerning Medicare were presented in the Court below and should be considered by this Court.
2.Whether the District Court erred in holding that the Chapman law firm did not commit any unlawful sales practices under 51-15-02 and 51-15-09, N.D.C.C.
3. Assuming arguendo, Chapman & Chapman's liability for reimbursement of medical expenses, whether Mr. Ackre can prove any damages

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Docket entries:
102/05/2010 NOTICE OF APPEAL: 01/29/2010
202/24/2010 RECORD ON APPEAL
302/24/2010 APPELLANT BRIEF & Addendum
402/24/2010 APPELLANT APPENDIX
502/24/2010 DISK - atb (e-mailed)
603/08/2010 Additional copies of pages for the ATA & unbound originals of ATB, Addendum & ATA
703/17/2010 1st Supplemental Clerk's Certificate dated 3-12-10 (Entry Nos. 31-33)
803/17/2010 Copies of Judgment of Dismissal & Amended NOA for ATA
903/19/2010 2nd Supplemental Clerk's Certificate of Record dated March 17, 2010 (Entry Nos. 34-36).
1003/29/2010 MOT. EXT/TIME APPELLEE BRIEF
1103/29/2010 ACTION BY CLERK (w/understanding oral argument will be in May). Granted: 04/12/2010
1204/12/2010 APPELLEE BRIEF
1304/12/2010 DISK - AEB
1404/19/2010 NOTICE OF ORAL ARGUMENT SENT
1504/29/2010 REPLY BRIEF of Appellant
1604/29/2010 DISK - RYB (e-mailed)
1705/06/2010 APPEARANCES: Larry M. Baer and Robert Ackre; Patrick W. Durick and Zachary E. Pelham
1805/06/2010 ARGUED: Baer; Durick
1905/06/2010 ORAL ARGUMENT WEBCAST
2008/16/2010 CITATION OF SUPPLEMENTAL AUTHORITIES.
2108/31/2010 DISPOSITION: AFFIRMED
2208/31/2010 SPLIT OPINION: Kapsner, Carol Ronning
2308/31/2010 (CONCURRING SPECIALLY): Sandstrom, Dale V.: CONCUR
2408/31/2010 Costs on appeal taxed in favor of appellee
2509/01/2010 Judgment E-Mailed to Parties
2609/13/2010 PETITION FOR REHEARING & ADDENDUM
2709/13/2010 DISK-PER (E-MAILED)
2809/16/2010 Letter from Larry Baer dated 9-14-10 RE: Supplemental Clarification of PER
2909/21/2010 Letter from Patrick Durick dated 9-21-10 regarding Mr. Baer's letter dated 9-14-10
3010/19/2010 ACTION BY SUPREME COURT (PER). Denied
3111/01/2010 MANDATE
3211/08/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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