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Nesvig v. Nesvig2/25/2004
eep an eye over his shoulder and prevent him from throwing away his money.
As intimated, I do not feel he needs a conservator at this time. In fact, it is felt he would fight the appointment of a conservator.
It is also felt unless his funds are returned to this state under at least partly his supervision he will have me or some other attorney commence litigation to get this accomplished. Rick requests the funds be transferred to the Norwest Bank in Hillsboro, ND. Hope you will immediately arrange for this to be done.
Am sure in view of his family relation with you, it is understood you feel some obligation to keep him from foolishly spending this money if it is returned to this jurisdiction.
[ ] 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.
[ ] 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.
II.
[ ] 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 Gordon Nesvig had a duty as an attorney and a fiduciary to properly advise him regarding management of the money. Richard Nesvig claims Gordon Nesvig assumed control over the money as a fiduciary and had a duty to invest the money under the prudent investor rule. Richard Nesvig claims he sustained $335,650 in damages because Gordon Nesvig failed to prudently invest the money. Gordon Nesvig responds the issue in this case was not legal malpractice, but whether he followed N.D.R. Prof. Conduct 1.15 in holding and distributing the money as requested by Richard Nesvig and whether there was an agreement between Richard and Gordon Nesvig to invest the money in something other than the money market account. Gordon Nesvig argues good faith was a proper element for the jury to consider under N.D.R. Prof. Conduct 1.15.
[ ] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. Rittenour v. Gibson, 2003 ND 14, 15, 656 N.W.2d 691. We review jury instructions as a whole to determine their correctness. Id. Instructions will be allowed if, as a whole, they advise a jury of the law on essential issues in the case. Id. Special verdict forms are governed by N.D.R.Civ.P. 49(a), and a trial court has broad discretion over the nature and
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