Nesvig v. Nesvig
Decision Date | 25 February 2004 |
Docket Number | No. 20030041,20030041 |
Parties | Richard John Nesvig, Plaintiff and Appellant v. R. Gordon Nesvig, Defendant and Appellee. |
Court | North Dakota Supreme Court |
Henry H. Howe, Howe & Seaworth, 421 DeMers Avenue, Grand Forks, N.D. 58201, for plaintiff and appellant.
Patrick R. Morley, Morley Law Firm, Ltd., P.O. Box 14519, Grand Forks, N.D. 58208-4519, for defendant and appellee.
[¶1] Richard Nesvig appealed from a judgment entered upon a jury verdict dismissing his action against Gordon Nesvig for breach of a fiduciary duty. We hold the jury instructions and special verdict erroneously limited the jury's consideration of Richard Nesvig's claims for legal malpractice and breach of a fiduciary duty. We reverse the judgment and remand for further proceedings.
[¶2] Richard Nesvig, a self-employed farmer living near Buxton, North Dakota, was severely injured in a 1984 automobile accident in Traill County. Gordon Nesvig, Richard Nesvig's cousin and an attorney in Cottage Grove, Minnesota, represented Richard Nesvig in settlement negotiations with the automobile insurer and in a personal injury action against Traill County and Anderson Brothers Construction. See Nesvig v. Anderson Bros. Constr. Co., 490 N.W.2d 478 (N.D. 1992). As a result of a settlement with the automobile insurer, Richard Nesvig received $235,000. Gordon Nesvig deducted attorney fees and other expenses, and, through an investment broker, deposited $175,000 of that settlement in a Franklin fund for Richard Nesvig.
[¶3] In the action against Traill County and Anderson Brothers, Richard Nesvig settled with Anderson Brothers for $50,000 and obtained a 1993 jury verdict of more than $900,000 against Traill County. After deductions for attorney fees and other expenses, Richard Nesvig received a net award of $611,768.18 in December 1993, and Gordon Nesvig deposited the money in a Minneapolis bank in an interest bearing money market account that listed Richard Nesvig as beneficiary and Gordon Nesvig as trustee. There was no written documentation between Gordon and Richard Nesvig regarding the deposit of the money in the interest bearing money market account.
[¶4] According to Richard Nesvig, he met with Gordon Nesvig in East Grand Forks in December 1993 to endorse a check for the money:
[¶5] According to Gordon Nesvig, he did not believe Richard Nesvig could manage the money and he received specific instructions from Richard Nesvig about the money:
[¶6] Gordon Nesvig testified he did not send Richard Nesvig statements regarding the money market account, but he normally had monthly telephone conversations with him regarding money. According to Gordon Nesvig, in early 1995 he discovered the money market account was earning interest at a lower rate than expected and he informed the bank:
[¶7] Richard Nesvig testified that, in March 1995, he sent Gordon Nesvig information for his 1994 taxes and a handwritten letter asking for a copy of his monthly statement and indicating he According to Richard Nesvig, he got a July 1995 statement from Gordon Nesvig, and he never got another monthly statement or $1,000.00 a month after his handwritten letter to Gordon Nesvig. According to Richard Nesvig, he was unable to get money from Gordon Nesvig when he wanted it.
[¶8] In November 1997, George Longmire, on behalf of Richard Nesvig, wrote Gordon Nesvig:
[¶9] In July 1998, Richard Nesvig petitioned for appointment of a "limited and special conservator." Gordon Nesvig filed a "concurrence in the need for conservator" which stated he had been acting as an "informal conservator" for Richard Nesvig since 1983 and "the portion of [Richard Nesvig's] brain that allows him to make decisions is impaired." Gordon Nesvig's concurrence stated Richard Nesvig needed a conservator who would say no to most of his requests and Gordon Nesvig had intended to make different investments, but Richard Nesvig did not want any funds at risk, did not want funds tied up for extended periods of time, and had recently indicated he wanted control of his funds, and Gordon Nesvig therefore "decided to wait until the situation stabilized." In July 1998, Norwest Bank was appointed as conservator for Richard Nesvig. In August 1998, Gordon Nesvig transferred the $548,100.88 balance in Richard Nesvig's money market account to the conservatorship.
[¶10] Richard Nesvig subsequently sued Gordon Nesvig, alleging Gordon Nesvig breached a fiduciary duty to Richard Nesvig by investing his money in the money market account instead of some other prudent investment. A jury returned a special verdict finding there was no agreement between Richard and Gordon Nesvig to invest the money in something other than the money market account, and Gordon Nesvig acted in good faith in failing to return money to Richard Nesvig.
[¶11] Richard Nesvig argues on appeal to this Court that the trial court erred in including a good faith defense in the special verdict form, because good faith is not a defense to a professional malpractice action. He argues ...
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