3:49 p.m. - A Mandan attorney is not giving up easily with his legal battle against a man he claims hijacked his computers with a virus.

Attorney John Gosbee wants damages from Rob Martinson, an Atlanta man he alleges infected his computers at home and at work with spyware.

Gosbee said the virus caused the drawer of his compact disc drive to open and close, changed his Internet home page and created several pop-up messages directing him to buy products to kill the virus.

"Basically what happened is I was minding my own business … and my computer went haywire," Gosbee said.

Gosbee lost his case in January in South Central District Court in Mandan against Martinson and companies Gosbee said are controlled by Martinson.

South Central District Judge Ronald Hilden granted a summary judgment in the case after Martinson's attorneys alleged the virus was caused by Martinson's marketing affiliates.

Gosbee was ordered to pay $200 in costs to Martinson for the lawsuit.

On Tuesday, Gosbee argued before the Court of Appeals that he should be granted a hearing to dispute $145 of the costs and also to argue why he should be allowed to amend his complaint, which would allow the lawsuit to be reconsidered.

The trial court denied Gosbee's objections over the costs and his motion to amend the complaint.

Mitchell Armstrong, an attorney for Martinson, said Gosbee has produced no evidence that Martinson was responsible for infecting his computer and that he had eight months to file an amended complaint.

"He waited until the trial judge granted a motion for dismissal," Armstrong said.

Armstrong said a hearing would be futile.

Gosbee said legal rules allow him a hearing.

"The rules mean what they say," Gosbee said.

Gosbee wants to make his lawsuit a class action suit, claiming he knew of at least 87 victims across the United States and other countries.

"Basically, I want Martinson's head," Gosbee told the Tribune.

The Court of Appeals, a panel of three surrogate judges that handles cases for the Supreme Court, took the case under advisement.

Gosbee has been involved in other privacy-related lawsuits before.

He helped a Mandan man collect $13,000 in February from a telemarketer for an unwanted call and he sued a company in 2001 for clogging up his e-mail with unwanted sales messages.

(Reach Tom Rafferty at 223-8482 or tom.rafferty@bismarcktribune.com)