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Behrens v. Behrens6/22/2005
court admitted the appraisal because Behrens had previously produced it as his sworn response to an interrogatory asking his opinion of the value of the business.
[ .] We review a trial court's evidentiary rulings under an abuse of discretion standard. Novak v. McEldowney, 2002 SD 162, , 655 NW2d 909, 912 (citations omitted). "An evidentiary ruling will not be overturned unless error is 'demonstrated ...... shown to be prejudicial error.' Error is prejudicial when, 'in all probability ...... produced some effect upon the final result and affected rights of the party assigning it.'" Id. (internal citations omitted). Thus, in order to prevail on appeal, Behrens must show both that the trial court abused its discretion and that the error was prejudicial.
[ .] Behrens argue that the trial court abused its discretion by concluding that through the mere production of the appraisal in discovery, Behrens waived their right to an evidentiary objection. Behrens contend that " document does not become admissible simply by being produced in response to a discovery request." We generally agree. However, this evidence was not admitted solely because it was produced in discovery. It was introduced because it was Don Behrens' sworn opinion of value. Therefore, it was admissible for reasons other than the fact that it was simply produced in discovery.
[ .] We also reject Behrens' broad argument that "conclusions contained in an appraisal cannot generally be sought from a party other than the person who prepared it." Although we acknowledge the potential foundational problems in admitting Ketel Thorstenson's work product as Behrens' opinion, Don Behrens adopted this valuation opinion in his answers to interrogatories. Moreover, a business or property owner is clearly qualified to testify to the value of his business or property. See Geo. A. Clark & Son, Inc. v. Nold, 85 SD 468, 474, 185 NW2d 677, 680 (1971). Therefore, because Don Behrens had previously adopted the appraisal as his sworn opinion of the business's market value, it was admissible as Behrens' opinion.
6. Whether Behrens were entitled to a mistrial based upon Wedmore's method of presenting exhibits.
[ .] As part of his defense, Wedmore presented binders of exhibits he intended to introduce during his direct examination. Wedmore gave the binders to the trial court and Behrens and requested permission to distribute them to the jury. Behrens objected because they had not had the opportunity to review the documents. The trial court recessed and gave Behrens time to review the documents. After the recess, the trial court permitted Wedmore to distribute the binders to the jury, and Behrens did not renew their objection. However, after Wedmore began his defense, it became apparent that exhibits in the jurors' binders were mis-numbered, and because of the resulting confusion, the trial court removed the binders from the jury. Behrens subsequently moved for a mistrial, claiming that jurors had paged through the binders and, as a result, had looked at at least one exhibit that was not admitted into evidence.
[ .] "The trial court's denial of a motion for mistrial is reviewed under the abuse of discretion standard." State v. Owens, 2002 SD 42, , 643 NW2d 735, 758 (citing State v. Winckler, 260 NW2d 356, 368 (SD 1977)). A denial of a mistrial will be affirmed "absent an 'abuse of discretion resulting in clear prejudice.'" United States v. Gutierrez, 351 F3d 897, 902 (8thCir 2003) (citation omitted).
[ .] Although we do not condone a jury's receipt of documents before their admission, Behrens have failed to establish an abuse of discretion or prejudice. Initially, it must be noted th
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