Ash v. Traynor

990330 Arthur Ash, Victor Baumgartner,
Simon Bosch, Jack Bullinger,
Berndean Coppin, Claude Hudson,
Emma Loeb, Reuben Magstadt,
William Schell, Esther Schmidt,
Dorothy Sigl, Donald Simenson,
Elaine Speaks, and Anton Weichel, Claimants and Appellees
v.
J. Patrick Traynor, in his
Official Capacity as Executive
Director of the North Dakota
Workers Compensation Bureau,
and the State of North Dakota,
acting through the North Dakota
Workers Compensation Bureau, Appellants

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Benny A. Graff
Nature of Action: Workers Compensation
Counsel:
Appellee: Dietz & Little Lawyers
Appellant: Zuger Kirmis & Smith
Appellee: Larson Law Firm
Amicus curiae: Paul D. Johnson
Amicus curiae: Schneider & Schneider
Term: 02/2000   Argument: 02/10/2000  1:30pm
ND cite: 2000 ND 75
NW cite: 609 N.W.2d 96


Issues: Appellant's Statement of the Issues:
1. Whether the statutory prohibition against "seek[ing] or obtain[ing] costs or attorney's fees from both the bureau and the claimant relative to the same legal services" was violated when the claimants' attorney collected a one- third contingent fee from the claimants and billed the Bureau for the same services.
2. Whether the appellants have failed to exhaust administrative remedies.

Appellee's Statement of the Issues:
I. Whether N.D.C.C., Section 65-02-08 precludes an attorney from accepting a contingency fee from a client, and assigning the hourly fee shifted to the Bureau by a prevailing party, to the benefit of the client.
II. Whether this legal question must be delayed due to the doctrine of exhaustion of administrative remedies.

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Docket entries:
111/03/1999 NOTICE OF APPEAL: 11/01/1999
211/03/1999 This case is consolidated w/990331. Make all docket entries, except disposition, in this case.
311/30/1999 RECORD ON APPEAL w/separates 4 (admin roa(1 vol & black binder)) & 66 (addendum admin roa (3 vol))
411/30/1999 6(atb), 11(aeb), 40-43(Mot/brief/etc), 67(atb), 68(aeb))
512/13/1999 MOT. EXT/TIME APPELLANT BRIEF (faxed letter dated 12-13-99 from Lawrence King)
612/13/1999 ACTION BY CLERK. granted: 12/17/1999
712/15/1999 Letter from Brent Edison dated 12-14-99 RE: there was not hearing at the administrative level;thus
812/15/1999 no trans. to be submitted & p. 147 was forwarded to be inserted into Cert/Record of Workers Comp.
912/17/1999 APPELLANT BRIEF
1012/17/1999 attached addendum to ATB
1112/17/1999 APPELLANT APPENDIX
1212/17/1999 DISK - ATB
1301/14/2000 APPELLEE BRIEF
1401/14/2000 APPELLEE APPENDIX
1501/14/2000 DISK - AEB (Quick View Plus)
1601/14/2000 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
1701/14/2000 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF (ND Trial Lawyers Association)
1801/18/2000 ACTION BY CHIEF JUSTICE. Granted
1901/18/2000 (granting of Motion does not extend to participation in OA)
2001/18/2000 AMICUS CURIAE BRIEF (ND Trial Lawyers Association)
2101/18/2000 DISK - ACB (ND Trial Lawyers)
2201/24/2000 SITTING WITH THE COURT: Foughty, Donovan John
2301/28/2000 REPLY BRIEF of Appellant
2401/28/2000 DISK - RYB
2502/10/2000 APPEARANCES: Brent J. Edison; Dean J. Haas
2602/10/2000 ARGUED: Edison; Haas (Vol. W; page 230)
2704/10/2000 DISPOSITION: AFFIRMED
2804/10/2000 UNANIMOUS OPINION: Kapsner, Carol Ronning
2904/10/2000 Costs on appeal taxed under Section 65-10-03, NDCC
3004/10/2000 Order/Judgment Mailed to Parties
3105/05/2000 MANDATE
3205/09/2000 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3302/28/2007 EXPUNGED - Nonpermanent record items destroyed

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