 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Behrens v. Behrens6/22/2005
rvices for which he was retained, and that Behrens could not be contributorily negligent by failing to anticipate or guard against Wedmore's negligence that was within the scope of his post-Initial Agreement representation.
[ .] We finally observe that the modified contributory negligence instructions were supported by the evidence. A number of Wedmore's expert witnesses testified that because of the terms of the Initial Agreement, an attorney exercising due care could not have obtained a more favorable result in the bankruptcy . Wedmore's experts first opined that if a client came in and stated that they had made a "deal" for the sale of their business, had signed an agreement, and it looked like the Initial Agreement in this case, the standard of care was that an attorney would conduct himself as if they had made a binding agreement. Another expert opined that "having no evidence that the clients were telling me to get out of this agreement," he would treat the agreement as a starting point, i.e., what the client wanted, and he would try to get it closed. Another expert indicated that Behrens had negotiated their best deal before they came to see Wedmore, and as such, the next step for a transaction lawyer was to get the deal closed.
[ .] With respect to getting additional collateral or security in anticipation of bankruptcy , Wedmore introduced expert testimony that an attorney's duty to get more security was dependent upon when that attorney came into the transaction. In this case, there was evidence that because the Initial Agreement indicated that the storage facility and the mortuary were to be delivered free and clear of any liens or encumbrances, Wedmore went "out on a limb" to even ask for additional security for his clients. Another expert indicated that because Behrens did not come to Wedmore early on to ask how to negotiate this sale, there were "a lot of things they didn't do that precluded [Wedmore] from having the opportunity to look at a lot of things." Finally, with respect to the proximate cause of Behrens' loss, one expert, who has practiced bankruptcy law since 1978, opined that Behrens were actually paid more in the bankruptcy than the value of their collateral, and therefore, even if there had been a stacking of mortgages, Behrens' recovery in bankruptcy would not have changed.
[ .] Thus, there was evidence that Behrens' conduct in negotiating the Initial Agreement without professional assistance was the sole proximate cause of their loss. Considering this expert testimony, the jury could have found that the Initial Agreement was binding, that it proximately caused Behrens' damages, and that nothing Wedmore did in his subsequent representation contributed to Behrens' loss. Under these circumstances, the trial court did not err in giving its contributory negligence instructions.
b. Assumption of the Risk
[ .] In order to assume the risk of one's own loss, a person must know that the danger exists, appreciate the character of the danger, and "voluntarily accept such risk by having a sufficient amount of time, knowledge, and experience to make an intelligent choice." Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, , 641 NW2d 112, 117 (citations omitted), declined to follow on other grounds by State v. Martin, 2004 SD 82, 683 NW2d 399. Behrens contend that they could not have assumed the risk because they knew nothing about bankruptcy .
[ .] This contention requires us to consider whether Behrens could have been charged with knowledge of the risk by negotiating the Initial Agreement without the assistance of counsel. On that issue, we observe that Wedmore's expert testimony indicated that experienced business people shou
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|