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Behrens v. Behrens6/22/2005
ct. Rather, they were contingencies that customarily accompany binding contracts such as (1) "satisfactory completion of a due diligence review," (2) " uyer obtaining financing," and (3) "approval by the Board of Directors." It is also significant that these contingencies did not fail, and therefore, they did not make the Initial Agreement unenforceable. See Johnson v. Coss, 2003 SD 86, , 667 NW2d 701, 705-706.
[ .] Because the Initial Agreement contained mutual promises, and because the mutual promises and the promise to pay were both sufficient consideration, Lane v. Travelers Indem. Co., 1997 SD 58, , 563 NW2d 423, 427 (citations omitted), the trial court did not err in declining to grant summary judgment on the allegation of failure ofto receive consideration. See Heinert v. Home Federal Sav. & Loan Ass'n, 444 NW2d 718, 721 (SD 1989) (citation omitted).
e. Conclusion
[ .] There was evidence that the Initial Agreement was a binding contract that was extended. The Initial Agreement included parties capable of contracting, their consent to essential terms, a lawful object, and sufficient consideration. The Initial Agreement also included specific provisions relating to additional details like environmental matters, OSHA, ADA, title insurance, financial statements, inventory, and debt. Considering the terms of the Initial Agreement, summary judgment in favor of Behrens was precluded as a matter of law. Additionally, because of the numerous disputes of fact concerning contract formation, the trial court correctly submitted that issue to the jury.
2. Whether the trial court improperly instructed the jury on contributory negligence and assumption of the risk.
[ .] Wedmore argued that Behrens were contributorily negligent and assumed the risk by entering into the Initial Agreement without obtaining legal advice. Wedmore introduced expert testimony that the terms of the Initial Agreement were binding and prevented him from negotiating terms that would better collateralize the note. Therefore, over Behrens' objection, the trial court instructed the jury that contributory negligence and assumption of the risk were defenses to Behrens' malpractice claim.
[ .] Our review of jury instructions is settled.
Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law. If, as a whole, the instructions misled, conflicted, or confused, then reversible error occurred. The party charging that an instruction was given in error has the dual burden of showing that the instruction was erroneous and prejudicial. An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.
First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, , 686 NW2d 430, 448 (internal citations omitted).
a. Contributory Negligence
[ .] Behrens assert that the contributory negligence instructions were improper because their negligence, if any, in negotiating the Initial Agreement was made before Wedmore was hired. Behrens argue that "if a professional accepts a duty to serve a client, the professional is [thereafter] liable for negligence in the performance of that duty regardless of how or why the client got involved in the matter in which the professional was retained." We generally agree.
[ .] As the Utah Supreme Court noted:
pre-existing condition that a professional is called upon to resolve cannot be the cause, either proximate or direct, of the professional's failure to exercise an appropriate standard
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