Nesvig v. Nesvig
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| 20050125 |
Richard John Nesvig, Plaintiff, Appellant
and Cross-Appellee
v.
R. Gordon Nesvig, Defendant, Appellee
and Cross-Appellant
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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: |
12/2005 Argument: 12/15/2005 09:30am
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| ND cite: |
2006 ND 66
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| NW cite: |
712 N.W.2d 299
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 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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 Add Docket 20050125 RSS
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| 1 | | 04/08/2005 | |
NOTICE OF APPEAL: 04/07/2005 |
| 2 | | 04/08/2005 | |
ORDER FOR TRANSCRIPT: 04/07/2005 |
| 3 | | 04/08/2005 | |
RETENTION OF RECORD ON APPEAL (Rena DeSautel): 05/27/2005 |
| 4 | | 04/22/2005 | |
NOTICE OF CROSS APPEAL (filed 4-20-05 in trial court) |
| 5 | | 05/28/2005 | |
TRANSCRIPTS DATED 8/10/04; 9/21/04; 10/5/04; 10/8/04; 10/11/04; 10/12/04 (pgs. 110-125); |
| 6 | | 05/28/2005 | |
10/12/04 (pgs. 226-370); 10/13/04; 10/14/04; & 10/15/04 (10 vols.) |
| 7 | | 05/31/2005 | |
DISK - (TRA) (8/10/04; 9/21/04; 10/5/04; 10/8/04; 10/11/04; 10/12/04 (pgs. 110-125); |
| 8 | | 05/31/2005 | |
10/12/04 (pgs. 226-370); 10/13/04; 10/14/04; & 10/15/04 (10 disks) |
| 9 | | 06/02/2005 | |
RECORD ON APPEAL (6 Vols.), including Depositions (6), Exhibits (w/exception of Clerk's Cert. |
| 10 | | 06/02/2005 | |
No. 367 - Def. Exhibit 227 (graph/large poster board), original TRA dated 7-12-02, orig. TRA
|
| 11 | | 06/02/2005 | |
commencing 7-09-02 (5 Vols.), orig. transcripts dated 11-12-02, and 10-14-04. Not rec'd |
| 12 | | 06/02/2005 | |
were Cert. Nos. 152, 267, 372, 406, 411 (shorthand notes), and Nos. 181, 198, 228, 265, 266 |
| 13 | | 06/02/2005 | |
(steno notes) |
| 14 | | 07/01/2005 | |
MOT. EXT/TIME APPELLANT BRIEF |
| 15 | | 07/01/2005 | |
E-FILED MOTION (MAT) |
| 16 | | 07/01/2005 | |
ACTION BY CLERK. Granted: 08/06/2005 |
| 17 | | 08/08/2005 | |
MOTION for Remand to Trial Court for Attempt to Supplement Record Pursuant to N.D.R.App.P. Rule |
| 18 | | 08/08/2005 | |
10(f), (g), and/or (h) (faxed - attached to MAT) |
| 19 | | 08/08/2005 | |
E-FILED MOTION (re remand) |
| 20 | | 08/08/2005 | |
MOT. EXT/TIME APPELLANT BRIEF (faxed - attached to Mot. for remand) |
| 21 | | 08/08/2005 | |
E-FILED MOTION (MAT) |
| 22 | | 08/10/2005 | |
ACTION BY CHIEF JUSTICE (MAT). Granted: 08/25/2005 |
| 23 | | 08/10/2005 | |
Appellee's Resistance to Appellant's Motion for a Second Extension to File Brief (faxed) |
| 24 | | 08/10/2005 | |
E-FILED AE's Resistance to AT's Motion |
| 25 | | 08/10/2005 | |
AE's Motion to Dismiss (faxed - attached to AE's Resistance to AT's Motion) |
| 26 | | 08/10/2005 | |
E-FILED AE's Motion to Dismiss |
| 27 | | 08/10/2005 | |
Appellant's Response to Appellee's reply and Motion to Dismiss (faxed) |
| 28 | | 08/10/2005 | |
ACTION BY CHIEF JUSTICE (Motion to Remand). Denied |
| 29 | | 08/10/2005 | |
NO ACTION TAKEN (Re Mot. to Dismiss) |
| 30 | | 08/25/2005 | |
APPELLANT APPENDIX |
| 31 | | 08/25/2005 | |
Supplemental Appendix |
| 32 | | 09/12/2005 | |
MOT. EXT/TIME APPELLANT BRIEF (faxed copy) |
| 33 | | 09/12/2005 | |
E-FILED MOTION (Mot/Ext/ATB) |
| 34 | | 09/13/2005 | |
ACTION BY ACTING CHIEF JUSTICE. Granted: 09/07/2005 |
| 35 | | 09/07/2005 | |
APPELLANT BRIEF |
| 36 | | 09/07/2005 | |
DISK - atb (e-mailed) |
| 37 | | 09/14/2005 | |
Faxed letter from Mr. Howe dated 9-14-05 RE: page 61 & 496 from ATA were inadvertently skipped |
| 38 | | 09/14/2005 | |
Faxed letter from Patrick Morley dated 9-14-05 RE: objection to Mot/Permit/Filing/ATB |
| 39 | | 09/30/2005 | |
SUPPLEMENTAL CLERK'S CERTIFICATE DATED SEPT. 29, 2005 (ENTRIES 435-438) |
| 40 | | 10/03/2005 | |
MOT. EXT/TIME APPELLEE BRIEF |
| 41 | | 10/03/2005 | |
ACTION BY CLERK (MAE, w/understanding OA will be heard in Dec.). Granted: 11/07/2005 |
| 42 | | 11/07/2005 | |
APPELLEE BRIEF |
| 43 | | 11/07/2005 | |
APPELLEE APPENDIX |
| 44 | | 11/15/2005 | |
Corrected TOA & pages 4, 12, 15, 18, 19, 20, 21, & 22 for AEB |
| 45 | | 11/15/2005 | |
Corrected TOC for AEA & pages 23 & 24 for AEA |
| 46 | | 11/15/2005 | |
DISK - aeb |
| 47 | | 11/23/2005 | |
MOT. EXT/TIME REPLY BRIEF (faxed) |
| 48 | | 11/23/2005 | |
E-FILED MOTION (Mot/Ext/Time/RYB) (faxed) |
| 49 | | 11/23/2005 | |
ACTION BY Chief Deputy CLERK (MRY). Granted: 12/02/2005 |
| 50 | | 11/29/2005 | |
MOTION to Postpone OA; Aff. of Counsel in Support; letter dated 9-14-05 from Gladys Schmitt (faxed) |
| 51 | | 11/29/2005 | |
E-FILED MOTION (re OA) |
| 52 | | 11/30/2005 | |
ACTION BY CHIEF JUSTICE (Mot. to Postpone OA). Denied |
| 53 | | 12/12/2005 | |
MOT. EXT/TIME Appellant's REPLY BRIEF (e-filed) |
| 54 | | 12/12/2005 | |
E-FILED MOTION (Mot/Ext/RYB of Appellant) |
| 55 | | 12/13/2005 | |
ACTION BY CHIEF JUSTICE (MRY). Granted: 12/12/2005 |
| 56 | | 12/12/2005 | |
REPLY BRIEF of Appellant/Cross-Appellee |
| 57 | | 12/12/2005 | |
DISK - ryb (e-mailed) |
| 58 | | 12/15/2005 | |
APPEARANCES: Henry H. Howe; Troy R. Morley, R. Gordon Nesvig |
| 59 | | 12/15/2005 | |
ARGUED: Howe; Morley |
| 60 | | 12/15/2005 | |
ORAL ARGUMENT WEBCAST |
| 61 | | 12/27/2005 | |
MOT. EXT/TIME REPLY BRIEF (AE/Cross-AT R. Gordon Nesvig) |
| 62 | | 12/27/2005 | |
ACTION BY CLERK (Reply Brief of AE/Cross-Appellant). Granted: 01/06/2006 |
| 63 | | 01/06/2006 | |
REPLY BRIEF of Appellee/Cross-Appellant |
| 64 | | 01/09/2006 | |
DISK - RY2 (Reply Brief of Appellee/Cross-Appellant) |
| 65 | | 03/29/2006 | |
DISPOSITION: AFFIRMED |
| 66 | | 03/29/2006 | |
UNANIMOUS OPINION: Kapsner, Carol Ronning |
| 67 | | 03/29/2006 | |
Costs on appeal taxed in favor of appellee |
| 68 | | 04/04/2006 | |
Judgment Mailed to Parties |
| 69 | | 05/09/2006 | |
MANDATE |
| 70 | | 05/12/2006 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |