Nesvig v. Nesvig
Richard John Nesvig, Plaintiff and Appellant
R. Gordon Nesvig, Defendant and Appellee
Northeast Central Judicial District,
Grand Forks County
Judge Debbie Gordon Kleven
|Nature of Action:||Contracts|
|Term:||10/2003  Argument: 10/27/2003|
|ND cite:||2004 ND 37|
676 N.W.2d 73
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1. That it was clearly erroneous, and an abuse of discretion, for the Court to include a "good faith" defense in the verdict form, when no such defense or exception is recognized or permitted in professional malpractice cases.
2. That it was clearly erroneous, and an abuse of discretion, for the Court to permit a "good faith" exception in the verdict form, while simultaneously ruling that Richard could not present testimony or evidence regarding alleged bad faith acts by Gordon.
3. That the Court erred in failing to hold that Gordon Nesvig had a duty, as an attorney and fiduciary, to properly advise Richard regarding the management of Richard's funds, resulting in a loss to Richard of $335,650 in earnings that could have been realized from a properly managed investment plan.
4. That the Court erred in failing to hold, as a matter of law, that Gordon Nesvig, having solicited and accepted entrusted funds from Richard, had a separate duty as a fiduciary to "prudently invest" Richard's funds, and breached this duty by leaving them in a money market account for almost 5 years.
5. That the Court erroneously interpreted, and misapplied, the law in denying Plaintiff's Rule 59/60 motions for new trial and/or Amended Judgment.
Appellee's Statement of the Issues:
1. The Court was correct in including the "good faith" inquiry in the special verdict form.
2. The Court properly excluded testimony about R. Gordon Nesvig's alleged acts of bad faith.
3. The Court properly recognized that R. Gordon Nesvig, an attorney, was bound by Rule 1.15 of the North Dakota Rules of Professional Conduct, and the determination of whether or not Richard Nesvig had instructed R. Gordon Nesvig to invest in anything other than an interest-bearing trust account was a question of fact for the jury.
4. The Court properly interpreted, and applied, the law when denying Richard Nesvig's Rule 59/60 motions for a new trial and/or amended judgment.
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|1||02/12/2003 NOTICE OF APPEAL: 02/10/2003|
|2||02/12/2003 ORDER FOR TRANSCRIPT (letter from Henry Howe dated 2-10-03): 02/10/2003|
|3||02/14/2003 Corrected Notice of Filing of the Notice of Appeal|
|4||02/14/2003 Acknowledgment of Order for Transcript & Request for Retention of Record: 04/01/2003|
|5||03/31/2003 TRANSCRIPTS Commencing July 9, 2002 (5 Vol.) and November 12, 2002|
|6||04/01/2003 DISK - TRAs of July 9, 2002 (5 Vol) and Nov. 12, 2002 (4 Disks)|
|7||04/02/2003 RECORD ON APPEAL (3 vols.), Exhibits, Depos. (6) & Trans. (1). NOT REC'D: #152-Shorthand notes)|
|8||05/14/2003 MOT. EXT/TIME APPELLANT BRIEF|
|9||05/14/2003 ACTION BY CLERK. Granted: 06/09/2003|
|10||06/09/2003 APPELLANT BRIEF|
|11||06/16/2003 APPELLANT APPENDIX|
|12||06/17/2003 DISK - ATB|
|13||06/30/2003 MOT. EXT/TIME APPELLEE BRIEF|
|14||06/30/2003 Letter from Henry Howe that he has not objection|
|15||06/30/2003 ACTION BY CLERK. Granted: 07/21/2003|
|16||07/17/2003 MOT. EXT/TIME APPELLEE BRIEF, Brief in Support & Affidavit in Support|
|17||07/17/2003 ACTION BY CLERK. Granted: 07/29/2003|
|18||07/29/2003 APPELLEE BRIEF|
|19||07/29/2003 APPELLEE APPENDIX|
|20||07/30/2003 DISK - AEB|
|21||10/02/2003 Request for Media Coverage (AP) e-mail dated 10-02-03 from Dale Wetzel (APPROVED)|
|22||10/27/2003 APPEARANCES: Henry H. Howe, Richard Nesvig; Patrick R. Morley, Troy Morley (law clerk), and|
|23||10/27/2003 R. Gordon Nesvig|
|24||10/27/2003 ARGUED: Howe; Morley|
|25||10/27/2003 ORAL ARGUMENT WEBCAST (Vol. Y; Page 161)|
|26||02/25/2004 DISPOSITION: REVERSED AND REMANDED|
|27||02/25/2004 SPLIT OPINION: VandeWalle, Gerald W.|
|28||02/25/2004 (CONCUR in result): Maring, Mary Muehlen: CON/RES|
|29||02/25/2004 Costs on appeal taxed in favor of appellant|
|30||02/26/2004 Judgment Mailed to Parties|
|31||03/09/2004 Mot. Ext/Time Petition for Rehearing|
|32||03/09/2004 ACTION BY CLERK (MPR). Granted: 03/29/2003|
|33||03/25/2004 Faxed letter dated 3-25-04 from Mr. Morley (no petition for rehearing will be filed)|
|35||04/05/2004 Original letter dated 3-25-04 from Mr. Morley (no petition for rehearing will be filed)|
|36||03/31/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|37||12/01/2009 EXPUNGED - Nonpermanent record items destroyed|