Nesvig v. Nesvig

20030041 Richard John Nesvig, Plaintiff and Appellant
v.
R. Gordon Nesvig, Defendant and Appellee

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Debbie Gordon Kleven
Nature of Action: Contracts
Counsel:
Appellee: Morley Law Firm, Ltd.
Appellant: Howe & Seaworth
Term: 10/2003   Argument: 10/27/2003  10:45am
ND cite: 2004 ND 37
NW cite: 676 N.W.2d 73

Listen to recording of oral argument in MP3 format

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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Docket entries:
102/12/2003 NOTICE OF APPEAL: 02/10/2003
202/12/2003 ORDER FOR TRANSCRIPT (letter from Henry Howe dated 2-10-03): 02/10/2003
302/14/2003 Corrected Notice of Filing of the Notice of Appeal
402/14/2003 Acknowledgment of Order for Transcript & Request for Retention of Record: 04/01/2003
503/31/2003 TRANSCRIPTS Commencing July 9, 2002 (5 Vol.) and November 12, 2002
604/01/2003 DISK - TRAs of July 9, 2002 (5 Vol) and Nov. 12, 2002 (4 Disks)
704/02/2003 RECORD ON APPEAL (3 vols.), Exhibits, Depos. (6) & Trans. (1). NOT REC'D: #152-Shorthand notes)
805/14/2003 MOT. EXT/TIME APPELLANT BRIEF
905/14/2003 ACTION BY CLERK. Granted: 06/09/2003
1006/09/2003 APPELLANT BRIEF
1106/16/2003 APPELLANT APPENDIX
1206/17/2003 DISK - ATB
1306/30/2003 MOT. EXT/TIME APPELLEE BRIEF
1406/30/2003 Letter from Henry Howe that he has not objection
1506/30/2003 ACTION BY CLERK. Granted: 07/21/2003
1607/17/2003 MOT. EXT/TIME APPELLEE BRIEF, Brief in Support & Affidavit in Support
1707/17/2003 ACTION BY CLERK. Granted: 07/29/2003
1807/29/2003 APPELLEE BRIEF
1907/29/2003 APPELLEE APPENDIX
2007/30/2003 DISK - AEB
2110/02/2003 Request for Media Coverage (AP) e-mail dated 10-02-03 from Dale Wetzel (APPROVED)
2210/27/2003 APPEARANCES: Henry H. Howe, Richard Nesvig; Patrick R. Morley, Troy Morley (law clerk), and
2310/27/2003 R. Gordon Nesvig
2410/27/2003 ARGUED: Howe; Morley
2510/27/2003 ORAL ARGUMENT WEBCAST (Vol. Y; Page 161)
2602/25/2004 DISPOSITION: REVERSED AND REMANDED
2702/25/2004 SPLIT OPINION: VandeWalle, Gerald W.
2802/25/2004 (CONCUR in result): Maring, Mary Muehlen: CON/RES
2902/25/2004 Costs on appeal taxed in favor of appellant
3002/26/2004 Judgment Mailed to Parties
3103/09/2004 Mot. Ext/Time Petition for Rehearing
3203/09/2004 ACTION BY CLERK (MPR). Granted: 03/29/2003
3303/25/2004 Faxed letter dated 3-25-04 from Mr. Morley (no petition for rehearing will be filed)
3403/26/2004 MANDATE
3504/05/2004 Original letter dated 3-25-04 from Mr. Morley (no petition for rehearing will be filed)
3603/31/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3712/01/2009 EXPUNGED - Nonpermanent record items destroyed

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