Nesvig v. Nesvig
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| 20030041 |
Richard John Nesvig, Plaintiff and Appellant
v.
R. Gordon Nesvig, Defendant and Appellee
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| Appeal from: |
District Court,
Northeast Central Judicial District,
Grand Forks County
Judge Debbie Gordon Kleven |
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Nature of Action: |
Contracts
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| Counsel: |
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| Term: |
10/2003 Argument: 10/27/2003 10:45am
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| ND cite: |
2004 ND 37
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| NW cite: |
676 N.W.2d 73
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
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)
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| 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) |
| 34 | | 03/26/2004 | |
MANDATE |
| 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 |