Nesvig v. Nesvig

• Decision Date: 29 March 2006
• Docket Number: No. 20050125.,20050125.
• Citation: 712 N.W.2d 299,2006 ND 66
• Parties: Richard John NESVIG, Plaintiff, Appellant and Cross-Appellee v. R. Gordon NESVIG, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

Page 299

712 N.W.2d 299

2006 ND 66

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

No. 20050125.

Supreme Court of North Dakota.

March 29, 2006.

COPYRIGHT MATERIAL OMITTED

Henry H. Howe, Howe & Seaworth, Forks, N.D., for plaintiff, appellant and cross-appellee.

Troy Robert Morley (argued) and Patrick Robert Morley (on brief), Morley Law Firm, Ltd., Grand Forks, N.D., for defendant, appellee and cross-appellant.

KAPSNER, Justice.

[¶ 1] Richard Nesvig appealed and Gordon Nesvig cross-appealed from a judgment, entered after a second jury trial, dismissing Richard Nesvig's action against Gordon Nesvig for professional malpractice and breach of fiduciary duty and awarding Gordon Nesvig costs and disbursements. Because we hold the district court did not abuse its discretion in any of its rulings challenged on appeal, we affirm.

I

[¶ 2] Many of the relevant facts are set forth in our prior decision in this case, Nesvig v. Nesvig, 2004 ND 37, 676 N.W.2d 73 ("Nesvig I"), and we will not repeat them except as necessary to assist in resolving the issues raised in this appeal.

[¶ 3] In 1984, Richard Nesvig was severely injured in an automobile accident. Gordon Nesvig represented Richard Nesvig in a personal injury action that ultimately resulted in a net award of $611,768.18 in December 1993. See Nesvig v. Anderson Bros. Constr. Co., 490 N.W.2d 478 (N.D.1992). Gordon Nesvig deposited the money in an interest-bearing money market account naming Richard Nesvig as beneficiary and Gordon Nesvig as trustee. In July 1998, Richard Nesvig petitioned for appointment of a limited and special conservator. Gordon Nesvig filed a concurrence in the need for a conservator, which stated in part that he had been acting as an informal conservator for Richard Nesvig since 1983, and that the portion of Richard Nesvig's brain that allows him to make decisions is impaired. In July 1998, Norwest Bank was appointed as Richard Nesvig's conservator. In August 1998, Gordon Nesvig transferred the remaining balance of $548,100.88 in Richard Nesvig's money market account to the conservatorship.

[¶ 4] In 2000, Richard Nesvig sued Gordon Nesvig, alleging Gordon Nesvig breached a fiduciary duty by investing the money in a money market account instead of some other prudent investment. After an initial trial, a jury returned a special verdict, finding that there was no agreement to invest the money in something other than a money market account, and that Gordon Nesvig acted in good faith in failing to return money to Richard Nesvig.

[¶ 5] In Nesvig I, 2004 ND 37, ¶ 24, 676 N.W.2d 73, this Court reversed and remanded, holding the jury instructions and special verdict erroneously limited the jury's inquiry to whether Gordon Nesvig acted in good faith in failing to return the money to Richard Nesvig and whether there was an agreement to invest the money in something other than a money market account, without consideration of an attorney's obligation to provide advice appropriate for the situation. Because the instructions did not correctly and adequately inform the jury about the applicable law on an essential issue of the case, a new trial was ordered. Id. After a second trial, the jury found there was an attorney-client relationship between the parties, but Gordon Nesvig had not breached a duty to Richard Nesvig.

II

[¶ 6] In his appeal, Richard Nesvig raises a number of issues regarding the district court's pretrial and trial rulings, including a number of evidentiary issues.

A

[¶ 7] Richard Nesvig argues the district court erred in quashing a subpoena issued to his own expert witness, Wendell Herman.

[¶ 8] At the second trial, Wendell Herman was subpoenaed by Richard Nesvig to serve as his expert witness on the issue of damages for Gordon Nesvig's failure to invest Richard Nesvig's funds prudently. Herman, a vice president and senior trust administrator at Wells Fargo Bank, had testified at the first trial as an expert witness; however, sometime before the second trial in October 2004, Herman's employer, Wells Fargo, informed him that he would not be allowed to testify at the second trial because of corporate policy. Herman communicated this in correspondence to Richard Nesvig's attorney as early as June 2004. Herman had previously refused compensation for his expert testimony in the first trial and continued to refuse to accept any payment.

[¶ 9] In a pretrial ruling quashing the trial subpoena for Herman, the district court determined Richard Nesvig was attempting to secure the expert opinion of an unretained expert by use of a subpoena. The district court held that although Richard Nesvig offered Herman consideration in exchange for his expert testimony at the first trial, Herman refused payment, which did not alter Herman's status as an unretained expert at the second trial. The district court also found Richard Nesvig knew Herman would be unavailable to provide expert testimony at the second trial, almost four months before that trial began. The court held it was to Richard Nesvig's own detriment that he failed to seek another expert.

[¶ 10] N.D.R.Civ.P. 45(c)(4)(iv), addresses the subpoenaing of unretained experts, and states:

On timely motion, the court by which a subpoena was issued shall quash or modify a subpoena that

....

(iv) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party.

[¶ 11] We have often said that where a state rule is adopted from a federal rule, we may consider the federal courts' interpretation of the federal rule as persuasive authority for construing our state rule. See Matrix Props. Corp. v. TAG Invs., 2002 ND 86, ¶ 13, 644 N.W.2d 601; City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 11, 575 N.W.2d 440; see also N.D.R.Civ.P. 1, Explanatory Note.

[¶ 12] We review the district court's decision to quash a subpoena for an abuse of discretion. See Moore v. State, 2006 ND 8, ¶ 5 (holding trial court did not abuse its discretion in quashing subpoena); State v. Jensen, 333 N.W.2d 686, 692 (N.D. 1983) (holding denial of applications for order compelling discovery and for subpoenas duces tecum was not abuse of discretion). An abuse of discretion by the district court is never assumed, and the burden is on the party seeking relief affirmatively to establish it. Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 7, 660 N.W.2d 558. The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.; Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175. The party seeking relief must show more than the district court made a "poor" decision, but that it positively abused the discretion it has under the rule. Flattum-Riemers, at ¶ 7. We will not overturn the district court's decision merely because it is not the decision we may have made if we were deciding the motion. Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681.

[¶ 13] The language of Rule 45(c)(3)(B)(ii), Fed.R.Civ.P., which is identical to N.D.R.Civ.P. 45(c)(4)(iv), was adopted to address a growing problem of the use of subpoenas to compel the giving of evidence and information by unretained experts, and to provide appropriate protection for the intellectual property of non-party witnesses. See Klay v. All Defendants, 425 F.3d 977, 984 (11th Cir.2005) (discussing the advisory committee notes and explaining the concerns for adopting Rule 45(c)(3)(B)); Heffron v. District Court of Oklahoma County, 77 P.3d 1069, 1082 (Okla.2003) (observing that the rule, rather than being concerned with fairness between litigants to the underlying litigation, has as its purpose the protection of the unretained, non-occurrence expert). The advisory committee notes to Fed. R.Civ.P. 45(c)(3)(B)(ii) reflect the concern of the drafters that the subpoena power could be used to deprive expert witnesses of the opportunity to bargain for the value of their services:

Clause (c)(3)(B)(ii) provides appropriate protection for the intellectual property of the non-party witness; it does not apply to the expert retained by a party, where information is subject to the provisions of Rule 26(b)(4). A growing problem has been the use of subpoenas to compel the giving of evidence and information by unretained experts. Experts are not exempt from the duty to give evidence, even if they cannot be compelled to prepare themselves to give effective testimony, but compulsion to give evidence may threaten the intellectual property of experts denied the opportunity to bargain for the value of their services. Arguably the compulsion to testify can be regarded as a "taking" of intellectual property. The rule establishes the right of such persons to withhold their expertise, at least unless the party seeking it makes the kind of showing required for a conditional denial of a motion to quash as provided in the final sentence of subparagraph (c)(3)(B); that requirement is the same as that necessary to secure work product under Rule 26(b)(3) and gives assurance of reasonable compensation.

Fed.R.Civ.P. 45(c)(3)(B)(ii), Advisory Committee Notes (citations omitted). Thus the party seeking the compelled testimony must show a substantial need for the testimony or material which cannot be otherwise met without undue hardship, and the party must assure reasonable compensation to the person to whom the subpoena is addressed. Id. The advisory committee notes also provide the following factors to guide a court in whether to exercise its discretion to compel testimony of an unretained expert:

[T]he degree to which the expert is being called because of his knowledge of facts relevant to the case rather...