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Behrens v. Behrens6/22/2005
the information when deciding whether to take the proposed course of action.
(Emphasis added). The trial court further instructed:
Instruction 46:
An attorney has a duty to disclose to the client the proposed course of action, the material benefits and risks, the likelihood those risks will occur and the consequences. If an alternative is reasonably appropriate, the attorney has a duty to disclose the material benefits and risks associated with that alternative as well.
(Emphasis added). The trial court finally instructed the jury to determine whether Wedmore possessed and used the knowledge, skill and care which attorneys have a duty to provide "based on the testimony and evidence given by members of the legal profession who testified as expert witnesses."
[ .] Although the trial court's instructions did not specifically mention a duty to refer, they did allow the jury to decide this issue because they instructed that: (1) Wedmore had the duty to disclose a proposed course of action, including the material benefits and risks, and the likelihood those risks wouldill occur and the consequences; (2) if alternatives were reasonably appropriate, Wedmore also had the duty to disclose the material benefits and risks associated with alternatives; (3) Wedmore had the duty to disclose all material information necessary for the client to make an informed decision, which information the attorney should know that a reasonable client would attach significance to, when deciding the proposed course of action; and (4) the standard of skill and care should be determined by Behrens' experts who testified at trial. We believe that these instructions were adequate to allow the jury to decide this issue because, as Behrens concede, the duty to refer to a specialist arises "if under the particular circumstances a reasonable and prudent attorney would do so." See Horne v. Peckham, 158 CalRptr 714 (CalCtApp 1979), disapproved on other grounds by ITT Small Business Finance Corp. v. Niles, 885 P2d 965 (Cal 1994).
[ .] Under the trial court's instructions, Behrens were permitted to argue, and the jury was permitted to find, that Wedmore should have known that if the Initial Agreement was not binding, a reasonable client in Behrens position would attach significance to the consequences of a bankruptcy . If the jury so found, it was further permitted to find for Behrens if Wedmore failed to advise of those consequences and appropriate alternatives in the event of a bankruptcy. Therefore, although not specifically referring to a specialist, the trial court's instructions permitted the jury to find for Behrens if this transaction reasonably required service of a specialist, but that that level of skill and care was not provided. Because the instructions as a whole adequately explained the law to the jury, there was no prejudicial error. Parker, 2002 SD 29, , 641 NW2d at 120, declined to follow on other grounds by Martin, 2004 SD 82, 683 NW2d at 399.
5. Whether admission of a business appraisal was prejudicial error.
[ .] Before selling their business, Behrens asked Ketel, Thorstenson & Co., an accounting firm, to perform an appraisal. In performing the appraisal, Ketel Thorstenson sent a letter to Loewen asking for Loewen's estimate of the value of Behrens Mortuary. Ketel Thorstenson used this and other information to determine the fair market value of Behrens Mortuary. Ketel Thorstenson ultimately provided Behrens with an "Informal Business Valuation Report."
[ .] Wedmore offered the appraisal during his cross-examination of Don Behrens to prove his opinion of the value of the business. Although Behrens objected, the trial
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