Nesvig v. Nesvig

20050125 Richard John Nesvig, Plaintiff, Appellant
and Cross-Appellee
v.
R. Gordon Nesvig, Defendant, Appellee
and Cross-Appellant

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: 12/2005   Argument: 12/15/2005  9:30am
ND cite: 2006 ND 66
NW cite: 712 N.W.2d 299

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. That the Court erred and abused its discretion in denying Richard's motion to strike objection to a subpoena issued to Wendell Herman and in granting the oral motion of Counsel for Wells Fargo to quash a trial subpoena duces tecum, in the complete absence of any evidence being offered in support of the motion.
2.That the Court erred and abused its discretion in denying Richard's motion to extend a Rule 615 N.D.R.Ev. sequestration order to Gordon's expert witness, Grant Shaft.
3.That the Court erred and abused its discretion in ruling that Richard would not be permitted to cross-examine Gordon's expert witness, Grant Shaft, on his previous testimony during his depositions and testimony in Nesvig I, as well as on the Decision rendered in Nesvig I, regarding a non-existent, "good faith defense" to Attorney malpractice, and further erred in failing to ensure that a record was made of the proceedings before the Court, including the argument, evidentiary ruling and offer of proof made by Richard's counsel during the trial.
4.That the Court erred and abused its discretion in ruling that Richard would not be permitted to examine Gordon regarding his utilization of funds, in excess of $300,000 that he received in representing Richard.
5.That it was clearly erroneous, prejudicial, and an abuse of discretion, for the Court to permit exhibits, testimony and arguments that exceeded the express limitations set out by the Court in its Memorandum Decision and Order Granting Plaintiff's Motion in Limine dated 06 October 2004.
6.That it was clearly erroneous, and an abuse of discretion, for the Court to rule that Richard would not be permitted to present limited rebuttal testimony by Richard and Lois Nesvig.
7.That it was clearly erroneous, and an abuse of discretion, for the Court to award Gordon the costs and disbursements which included an expert witness fee for the time Gordon's expert witness, Grant Shaft, listened to the testimony of the witnesses in spite of Richard's motion to the Court to sequester expert witness Grant Shaft.

Appellant's Reply Brief Issues: VI. That the Court did not err or abuse its discretion in denying Gordon's motion to be awarded his costs and disbursements from the first trial, and that Gordon was not, as a matter of law, entitled to any such award based on his fault in regard to the first trial.

Appellee's Statement of the Issues:
I. The trial court did not abuse its discretion in quashing the subpoena issued to Wendell Herman since Richard was attempting to compel the testimony of an unretained expert witness.
II. The trial court did not abuse its discretion in denying Richard's request to sequester Gordon's expert witness Grant Shaft.
III. The trial court did not abuse its discretion by prohibiting Richard from cross-examining Gordon's expert witness Grant Shaft about the Supreme Court ruling.
IV. The trial court did not abuse its discretion in its evidentiary rulings on cross-examination or prohibiting repetitious trial testimony modifying its motion in limine.
A. The trial court properly excluded irrelevant testimony regarding Gordon's handling of funds.
B. The trial court did not abuse its discretion in excluding Richard's rebuttal testimony.
C. The trial court did not abuse its discretion by modifying its motion in limine.
V. The trial court properly awarded costs to Gordon for the second trial.
VI. Gordon should be allowed to recoup the costs of both trials as the prevailing party.

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Docket entries:
104/08/2005 NOTICE OF APPEAL: 04/07/2005
204/08/2005 ORDER FOR TRANSCRIPT: 04/07/2005
304/08/2005 RETENTION OF RECORD ON APPEAL (Rena DeSautel): 05/27/2005
404/22/2005 NOTICE OF CROSS APPEAL (filed 4-20-05 in trial court)
505/28/2005 TRANSCRIPTS DATED 8/10/04; 9/21/04; 10/5/04; 10/8/04; 10/11/04; 10/12/04 (pgs. 110-125);
605/28/2005 10/12/04 (pgs. 226-370); 10/13/04; 10/14/04; & 10/15/04 (10 vols.)
705/31/2005 DISK - (TRA) (8/10/04; 9/21/04; 10/5/04; 10/8/04; 10/11/04; 10/12/04 (pgs. 110-125);
805/31/2005 10/12/04 (pgs. 226-370); 10/13/04; 10/14/04; & 10/15/04 (10 disks)
906/02/2005 RECORD ON APPEAL (6 Vols.), including Depositions (6), Exhibits (w/exception of Clerk's Cert.
1006/02/2005 No. 367 - Def. Exhibit 227 (graph/large poster board), original TRA dated 7-12-02, orig. TRA
1106/02/2005 commencing 7-09-02 (5 Vols.), orig. transcripts dated 11-12-02, and 10-14-04. Not rec'd
1206/02/2005 were Cert. Nos. 152, 267, 372, 406, 411 (shorthand notes), and Nos. 181, 198, 228, 265, 266
1306/02/2005 (steno notes)
1407/01/2005 MOT. EXT/TIME APPELLANT BRIEF
1507/01/2005 E-FILED MOTION (MAT)
1607/01/2005 ACTION BY CLERK. Granted: 08/06/2005
1708/08/2005 MOTION for Remand to Trial Court for Attempt to Supplement Record Pursuant to N.D.R.App.P. Rule
1808/08/2005 10(f), (g), and/or (h) (faxed - attached to MAT)
1908/08/2005 E-FILED MOTION (re remand)
2008/08/2005 MOT. EXT/TIME APPELLANT BRIEF (faxed - attached to Mot. for remand)
2108/08/2005 E-FILED MOTION (MAT)
2208/10/2005 ACTION BY CHIEF JUSTICE (MAT). Granted: 08/25/2005
2308/10/2005 Appellee's Resistance to Appellant's Motion for a Second Extension to File Brief (faxed)
2408/10/2005 E-FILED AE's Resistance to AT's Motion
2508/10/2005 AE's Motion to Dismiss (faxed - attached to AE's Resistance to AT's Motion)
2608/10/2005 E-FILED AE's Motion to Dismiss
2708/10/2005 Appellant's Response to Appellee's reply and Motion to Dismiss (faxed)
2808/10/2005 ACTION BY CHIEF JUSTICE (Motion to Remand). Denied
2908/10/2005 NO ACTION TAKEN (Re Mot. to Dismiss)
3008/25/2005 APPELLANT APPENDIX
3108/25/2005 Supplemental Appendix
3209/12/2005 MOT. EXT/TIME APPELLANT BRIEF (faxed copy)
3309/12/2005 E-FILED MOTION (Mot/Ext/ATB)
3409/13/2005 ACTION BY ACTING CHIEF JUSTICE. Granted: 09/07/2005
3509/07/2005 APPELLANT BRIEF
3609/07/2005 DISK - atb (e-mailed)
3709/14/2005 Faxed letter from Mr. Howe dated 9-14-05 RE: page 61 & 496 from ATA were inadvertently skipped
3809/14/2005 Faxed letter from Patrick Morley dated 9-14-05 RE: objection to Mot/Permit/Filing/ATB
3909/30/2005 SUPPLEMENTAL CLERK'S CERTIFICATE DATED SEPT. 29, 2005 (ENTRIES 435-438)
4010/03/2005 MOT. EXT/TIME APPELLEE BRIEF
4110/03/2005 ACTION BY CLERK (MAE, w/understanding OA will be heard in Dec.). Granted: 11/07/2005
4211/07/2005 APPELLEE BRIEF
4311/07/2005 APPELLEE APPENDIX
4411/15/2005 Corrected TOA & pages 4, 12, 15, 18, 19, 20, 21, & 22 for AEB
4511/15/2005 Corrected TOC for AEA & pages 23 & 24 for AEA
4611/15/2005 DISK - aeb
4711/23/2005 MOT. EXT/TIME REPLY BRIEF (faxed)
4811/23/2005 E-FILED MOTION (Mot/Ext/Time/RYB) (faxed)
4911/23/2005 ACTION BY Chief Deputy CLERK (MRY). Granted: 12/02/2005
5011/29/2005 MOTION to Postpone OA; Aff. of Counsel in Support; letter dated 9-14-05 from Gladys Schmitt (faxed)
5111/29/2005 E-FILED MOTION (re OA)
5211/30/2005 ACTION BY CHIEF JUSTICE (Mot. to Postpone OA). Denied
5312/12/2005 MOT. EXT/TIME Appellant's REPLY BRIEF (e-filed)
5412/12/2005 E-FILED MOTION (Mot/Ext/RYB of Appellant)
5512/13/2005 ACTION BY CHIEF JUSTICE (MRY). Granted: 12/12/2005
5612/12/2005 REPLY BRIEF of Appellant/Cross-Appellee
5712/12/2005 DISK - ryb (e-mailed)
5812/15/2005 APPEARANCES: Henry H. Howe; Troy R. Morley, R. Gordon Nesvig
5912/15/2005 ARGUED: Howe; Morley
6012/15/2005 ORAL ARGUMENT WEBCAST
6112/27/2005 MOT. EXT/TIME REPLY BRIEF (AE/Cross-AT R. Gordon Nesvig)
6212/27/2005 ACTION BY CLERK (Reply Brief of AE/Cross-Appellant). Granted: 01/06/2006
6301/06/2006 REPLY BRIEF of Appellee/Cross-Appellant
6401/09/2006 DISK - RY2 (Reply Brief of Appellee/Cross-Appellant)
6503/29/2006 DISPOSITION: AFFIRMED
6603/29/2006 UNANIMOUS OPINION: Kapsner, Carol Ronning
6703/29/2006 Costs on appeal taxed in favor of appellee
6804/04/2006 Judgment Mailed to Parties
6905/09/2006 MANDATE
7005/12/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
7108/20/2014 EXPUNGED - Nonpermanent record items destroyed

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