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Nesvig v. Nesvig2/25/2004
scope of written questions submitted to the jury. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 165 (N.D. 1985). Although we review a trial court's use of a special verdict under the abuse-of-discretion standard, a court's exercise of discretion is necessarily based on the evidence presented and the issues involved in the case. Id.
[ ] The trial court instructed the jury on (1) responsibility for conduct, see N.D.J.I. - Civil 2.01, (2) Richard Nesvig's burden to prove by the greater weight of the evidence that Gordon Nesvig breached a professional standard of care or a fiduciary duty and that the breach proximately caused damages, (3) the elements of a legal negligence and a breach of fiduciary duty claim, see N.D.J.I. - Civil 15.00, (4) a lawyer's standard of care, see N.D.J.I. - Civil 15.15, (5) a lawyer's obligation to "abide by a client's decisions concerning the objectives of representation, and, where appropriate, consult with the client as to the means by which they are to be pursued," and (6) there was "no exception to, or reduction in, the duty owed by a fiduciary because of any family relationship." The court instructed the jury on fiduciary duty:
It is undisputed that a fiduciary relationship exits in an attorney-client relationship. It is also undisputed that a trustee has a fiduciary relationship with the property owner.
If you find there was an agreement between Richard John Nesvig and R. Gordon Nesvig to invest the funds in something other than a money market account than R. Gordon Nesvig is deemed a trustee.
The court instructed the jury that a "trustee" shall invest and manage trust assets under the "prudent investor rule" and hindsight did not determine a trustee's compliance with the prudent investor rule.
[ ] In language tracking N.D.R. Prof. Conduct 1.15(a) and (b), the court also instructed the jury on safekeeping property:
A lawyer is required by law to hold the property of a client that is in the lawyer's possession in connection with a representation separate from the lawyer's own property. A lawyer holding money of a client is required to deposit such funds in an interest-bearing trust account in a bank, trust company, saving and loan association, or credit union in an account in which withdrawals or transfers can be made by the depositing attorney without delay.
Upon receiving, in connection with a representation, funds or other property in which a client has an interest, a lawyer shall promptly notify the client. Unless an agreement has been reached with the client, a lawyer shall promptly deliver to the client any funds the client is entitled to receive and, upon request by the client, shall promptly render a full accounting regarding such funds.
The special verdict and the jury's answers provided: We, the jury duly impaneled and sworn in the above matter, make the following answers to the questions asked by the court:
. Did R. Gordon Nesvig fail to return all or some of the funds to Richard John Nesvig when requested to do so by Richard?
ANSWER: Yes __*___ No _____
. If your answer to Question No. 1 is "Yes", was R. Gordon Nesvig acting in good faith when he failed to return the funds?
ANSWER: Yes __*___ No _____
. Was there an agreement between Richard John Nesvig and R. Gordon Nesvig to invest the funds in something other than a money market account?
ANSWER: Yes _____ No __*___
(If your answer to Question No. 1 and No. 2 is "Yes", and your answer to No. 3 is "No", or if your answer to Question No. 2 is "Yes", and your answer to No. 3 is "No", then do not answer qu
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