#27158-a-LSW
2015 S.D. 52

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA
                                        ****
STEVE SCHULTZ, MARK SCHULTZ,
DAVID SCHULTZ, and THE SCHULTZ
FAMILY TRUST, as Stockholders of
Cosmos of the Black Hills, Inc., a South
Dakota Corporation, and as individuals,
and DONALD SCHULTZ and ELOISE
SCHULTZ as Trustees of the SCHULTZ
FAMILY TRUST, and DAVID SCHULTZ,
as a Director of Cosmos of the Black Hills, Inc.
on behalf of Cosmos of the Black Hills, Inc.
a South Dakota Corporation,                        Plaintiffs and Appellants,

      v.

LYLE SCANDRETT and HEIDI BYBEE,                    Defendants and Appellees.

                                        ****
                    APPEAL FROM THE CIRCUIT COURT OF
                      THE SEVENTH JUDICIAL CIRCUIT
                    PENNINGTON COUNTY, SOUTH DAKOTA
                                        ****
                     THE HONORABLE ROBERT GUSINSKY
                                 Judge
                                        ****
REBECCA L. MANN
DAVID E. LUST of
Gunderson, Palmer, Nelson
 & Ashmore, LLP
Rapid City, South Dakota                           Attorneys for plaintiffs
                                                   and appellants.

JEFFREY G. HURD of
Bangs, McCullen, Butler, Foye
 & Simmons, LLP
Rapid City, South Dakota                           Attorneys for defendants
                                                   and appellees.
                                        ****
                                                   ARGUED ON APRIL 21, 2015
                                                   OPINION FILED 06/24/15
#27158

WILBUR, Justice

[¶1.]        This is a dispute between two families of shareholders owning stock in

Cosmos of the Black Hills, Inc. (“Cosmos”). The Schultzes, the minority

shareholders, brought an action against the Scandretts, the majority shareholders,

alleging breach of fiduciary care, breach of fiduciary loyalty, minority shareholder

oppression, and request for accounting. The jury rendered a verdict in favor of the

Scandretts on the breach of fiduciary duty claims and the circuit court issued

findings of fact and conclusions of law in favor of the Scandretts on the remaining

claims. The Schultzes appeal. We affirm.

                                    Background

[¶2.]        Cosmos, an optical illusion tourist business, is a corporation organized

and existing under the laws of the State of South Dakota. Plaintiffs are minority

shareholders of Cosmos. The individual Plaintiffs are members of the same family

(collectively, “Schultzes”). Don Schultz is married to Eloise Schultz, and they have

four sons: Steve, Mark, David, and Matt. Matt is not a party to this action.

Defendants, Lyle Scandrett and Heidi Bybee, are members of the same family

(collectively, “Scandretts”). Lyle is Heidi’s father. Lyle and his wife, Marlene

Scandrett, along with Heidi and her husband, Kevin Bybee, are the majority

shareholders. Marlene and Kevin are not parties to this action.

[¶3.]        In the early 1950s, Don constructed and opened Cosmos. The premise

of Cosmos is simple: a customer purchases a ticket; walks on an approximately 30–

minute, guided tour; and returns to the gift shop where souvenirs can be purchased.

Initially, Cosmos was operated by either Don and Eloise or Don’s parents, Fred and


                                          -1-
#27158

Marie Schultz. Don stopped working at Cosmos after the summer of 1958. In 1959,

the business was incorporated with Don holding 1,500 shares and his parents

holding 1,500 shares.

[¶4.]        Lyle began working at Cosmos as a tour guide in 1957. Lyle taught

school in Wessington, South Dakota, but worked at Cosmos during the summers

from 1957 through 1959. In 1960, Schultzes hired Lyle to manage Cosmos and

issued him one share of stock to ensure his status as a shareholder. After Cosmos

hired Lyle as manager, Cosmos issued an additional 50 shares to Don. In 1968,

Lyle and Marlene purchased all of the shares owned by Fred and Marie. As a

result, Don and Eloise owned 1,550 shares and Lyle and Marlene owned 1,501

shares out of the total 3,051 outstanding shares.

[¶5.]        Until 1969, Cosmos paid Lyle $5,000 to manage Cosmos from

Memorial Day to Labor Day each year. In 1969, Don entered into an incentive

compensation agreement with Lyle (“Compensation Agreement”), whereby Lyle

agreed to work at Cosmos throughout the entire year, instead of only part of the

year, in exchange for a new compensation plan. The Compensation Agreement had

two goals: first, “to keep the Cosmos open as early and as late as possible to ‘protect

the property and the business from freeloaders’ and ‘malicious mischief[;]’” second,

“to provide additional income to [Lyle].” In the Compensation Agreement, Lyle’s

salary was reduced from $5,000 to $2,500 per year. The decrease in salary,

however, was offset by Cosmos’s agreement that Lyle would receive most of the

income during the “off-season,” i.e., between Labor Day and Memorial Day. The

Compensation Agreement provided that if Lyle was willing to operate Cosmos


                                          -2-
#27158

during the off-season, then he could keep all of the ticket income less $5 per day for

operating expenses and less any employee wages incurred in the off-season

operations. Lyle also received one-half of the net souvenir sales income after Labor

Day and before Memorial Day. The Compensation Agreement is still in effect

today, with two adjustments: Lyle’s salary has been increased to $10,000 per year,

and Lyle now pays all off-season expenses, rather than just $5 per day.

[¶6.]         In 1972, Lyle expressed concern to Don that if he continued to work as

a minority shareholder, Don and Eloise’s sons could grow up, take control of

Cosmos, and terminate Lyle. In response, Don agreed to grant Lyle a controlling

interest in Cosmos for the purpose of ensuring that Lyle would remain in control of

the company, thereby protecting his employment arrangement. Don and Eloise

decided it was important to retain Lyle because “[w]ith the passage of time it

became clear that the continued success of the business was due to the efforts of

Lyle, as none of the Schultz family was contributing anything more than moral

support.” In August 1972, Cosmos issued 100 additional shares to Lyle. As a

result, Schultzes owned 1,550 shares, and Scandretts owned 1,601 shares. That

difference still exists today.

[¶7.]         Scandretts have been the majority shareholders since 1972. Schultzes

held two of the three board of directors’ seats from Cosmos’s incorporation in 1959

until 2008. In 2008, Heidi was elected to the board of directors. Thereafter, the

board consisted of Lyle, Heidi, and David. Over the years, Don and Eloise gifted

some of their shares to their children: Steve, Mark, David, and Matt. In 2004, Lyle

condensed the corporate minutes into a document entitled the “Historical Record.”


                                          -3-
#27158

The Historical Record outlined the Compensation Agreement. That same year,

Don, Eloise, and David signed a “Shareholders Attachment” that indicated they

were shareholders of Cosmos, that they had read the Historical Record, and that

they were satisfied with the Historical Record as written, thereby ratifying the

Compensation Agreement. In 2009, Don and Eloise assigned their stock to the

Schultz Family Trust. Don acted as the agent for Schultzes in handling matters

relating to Cosmos. Until the fall of 2008, Don had always been the member of the

Schultz family who communicated with Lyle regarding Cosmos. Don told Lyle that

Cosmos was doing well under Lyle’s leadership and that Schultzes were indebted to

Lyle for the success of Cosmos. Prior to the current dispute, Schultzes did not

express to Lyle any dissatisfaction with his management of Cosmos. Since 1989,

the dividends paid to Schultzes have increased by an average of 17.84% per year,

totaling over $3 million.

[¶8.]        In 2005, the shareholders discussed whether to add restrooms and

expand the gift shop. Discussions for this project spanned several years. In 2008,

the shareholders discussed the plans for the gift shop and the addition of a new

deck. The shareholders agreed that Heidi should plan the construction of the gift

shop and deck. When the bids for the project came back higher than expected,

David Schultz expressed concern to Heidi about the cost of the project. Heidi

restructured the expansion and reduced the cost by a third. Schultzes continued to

oppose the expansion. In a letter to Lyle and Heidi from Steve Schultz, Steve

stated, “I am appalled by the way this situation has been managed and by the way

you have treated my parents. This is unacceptable; you need to change your


                                         -4-
#27158

approach or prepare yourselves for a long, painful sequence of shareholder

disputes.” At a board of directors meeting on November 3, 2008, David Schultz said

in a written statement, “[S]teve is wealthy, he is tenacious, and he enjoys

confrontation. [Don] has held him back for 30 years; Steve will fight you to his last

breath and leave instruction in his will to keep the fight going beyond his lifetime.”

Ultimately, the directors voted to approve a plan to expand the gift shop and

restrooms, with Lyle and Heidi voting in favor and David voting against.

[¶9.]        In 2008, Don asked Lyle why dividends had decreased from the

previous year. For the first time, Lyle disclosed to Schultzes information about his,

Heidi’s, and Kevin’s compensation from Cosmos. Schultzes had never requested

this information from Scandretts. Scandretts point out that “[t]he information was

always available.” After receiving this information, Schultzes began asking

questions about management compensation and the financial position of Cosmos.

At the 2009 board of directors’ meeting, David made a motion to set the manager’s

salary for the entire year at $60,000 and eliminate the off-season bonus. The

motion failed for lack of a second.

[¶10.]       On September 21, 2011, Schultzes filed the present action against

Scandretts alleging breach of fiduciary care, breach of fiduciary loyalty, minority

shareholder oppression, and request for accounting. Schultzes claimed that the

Compensation Agreement was adverse to the best interests of Cosmos and the

shareholders. They further contended that while Lyle’s compensation has increased

dramatically, his management responsibilities have decreased upon the hiring of

Heidi and Kevin and other hourly employees. Finally, Schultzes argued that


                                          -5-
#27158

Scandretts engaged in self-dealing, misused corporate assets, paid themselves

unjustified salaries and benefits, and acted in bad faith against Cosmos and its

shareholders.

[¶11.]       This case was tried from May 7 to May 9, 2014. The fiduciary duty

claims were tried to the jury, while the oppression and accounting claims were tried

to the circuit court. The jury returned a verdict in favor of Scandretts on the

fiduciary duty claims. On July 1, 2014, the circuit court issued findings of fact,

conclusions of law, and a judgment in favor of Scandretts on the remaining claims.

Schultzes appeal and raise the following issues for our review:

             1.     Whether the circuit court erred when it instructed the
                    jury that “South Dakota law does not allow a shareholder
                    to use the fiduciary duty concept to rewrite an original
                    deal he or she made with the corporation.”

             2.     Whether the circuit court erred when it declined to
                    instruct the jury on employment-at-will concepts and that
                    officers and directors have a duty to terminate a contract
                    entered into by the corporation if the contract becomes
                    against the best interests of the corporation.

             3.     Whether the circuit court erred when it declined to
                    instruct the jury that directors owe a fiduciary duty of
                    undivided and unselfish loyalty to the corporation.

                                Standard of Review

[¶12.]       “A trial court has discretion in the wording and arrangement of its jury

instructions[.]” Vetter v. Cam Wal Elec. Coop., Inc., 2006 S.D. 21, ¶ 10, 711 N.W.2d

612, 615. But “no court has discretion to give incorrect, misleading, conflicting, or

confusing instructions.” State v. Whistler, 2014 S.D. 58, ¶ 13, 851 N.W.2d 905, 910

(quoting State v. Zephier, 2012 S.D. 16, ¶ 9, 810 N.W.2d 770, 772). Thus, “we

generally review a trial court’s decision to grant or deny a particular instruction

                                          -6-
#27158

under the abuse of discretion standard.” Id. (quoting State v. Hauge, 2013 S.D. 26,

¶ 17, 829 N.W.2d 145, 150). “To constitute reversible error, an instruction must be

shown to be both erroneous and prejudicial, such that ‘in all probability they

produced some effect upon the verdict and were harmful to the substantial rights of

a party.’” Id. (quoting State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125).

“The jury instructions are to be considered as a whole, and if the instructions when

so read correctly state the law and inform the jury, they are sufficient.” State v.

Doap Deng Chuol, 2014 S.D. 33, ¶ 31, 849 N.W.2d 255, 263 (quoting Hauge, 2013

S.D. 26, ¶ 17, 829 N.W.2d at 150-51).

                                        Analysis

[¶13.]       1.     Whether the circuit court erred when it instructed the
                    jury that “South Dakota law does not allow a shareholder
                    to use the fiduciary duty concept to rewrite an original
                    deal he or she made with the corporation.”

[¶14.]       Schultzes claim that the circuit court erred when it instructed the jury,

over their objection, as follows:

             South Dakota law does not allow a shareholder to use the
             fiduciary duty concept to rewrite an original deal he or she made
             with the corporation.

Instruction 27. The court relied on language from Mueller v. Cedar Shore Resort,

Inc., 2002 S.D. 38, 643 N.W.2d 56, in formulating Instruction 27. In that case, we

said, “We are not prepared to allow a shareholder to use the fiduciary duty concept

to rewrite the original deal he or she made with the corporation, a modification that

the original parties to the transaction almost certainly would not have chosen.” Id.

¶ 28, 643 N.W.2d at 67. Schultzes contend that the language from Mueller, as

applied in Instruction 27, was “taken out of context, applied incorrectly, and [was]

                                          -7-
#27158

misleading and confusing.” Schultzes further allege, as evidence of prejudice, that

their “entire breach of fiduciary duty claims were effectively taken away from the

jury” because “[t]he jury had no choice but to find for Scandretts[.]” Thus, Schultzes

contend the case should be reversed and remanded for a new trial. 1

                                      A. Context

[¶15.]         Schultzes argue that Instruction 27 took the cited language in Mueller

“out of context.” They argue that as a result, the jury was misled into believing that

the passage from Mueller was “black letter law.” In order to determine the context

of Mueller and Instruction 27, we first consider the fiduciary duty of care and

loyalty as it relates to majority and minority shareholders.

[¶16.]         This Court has recognized that majority, dominant, or controlling

shareholders, or a group of shareholders acting together to exercise effective control,

owe a fiduciary duty to minority shareholders in a closely held corporation. See

Mueller, 2002 S.D. 38, ¶¶ 26-30, 643 N.W.2d at 66-67 (applying this rule); Hayes v.

N. Hills Gen. Hosp., 1999 S.D. 28, ¶¶ 51-52, 590 N.W.2d 243, 252-53 (recognizing

the rationale that “officers and directors have a fiduciary duty when dealing with

minority shareholders[,]” and that this “rationale supports the adoption of a



1.       At the outset, we question both parties’ extensive reliance on the doctrine of
         minority shareholder oppression in support of their arguments on this issue.
         This issue relates to an instruction to the jury regarding fiduciary duty, not
         minority shareholder oppression. Moreover, minority shareholder oppression
         was tried before the circuit court, not the jury. Thus, any applicability of
         minority shareholder oppression to this issue is suspect. Furthermore, the
         parties disagree on whether Schultzes appealed the issue of minority
         shareholder oppression. Scandretts argue that Schultzes did not “appeal the
         Findings of Fact and Conclusion[s] of Law or Judgment on their claims for
         minority shareholder oppression or accounting.”

                                           -8-
#27158

fiduciary duty between dominant shareholders and minority shareholders”). The

fiduciary duty that majority shareholders owe to minority shareholders in a closely

held corporation “is characterized by a high degree of diligence and due care, as well

as the exercise of utmost good faith and fair dealing.” Mueller, 2002 S.D. 38, ¶ 26,

643 N.W.2d at 66. This fiduciary duty, however, is limited in certain circumstances.

In Mueller, we stated that “the scope of the fiduciary duty owed by a family-owned

corporation that has gifted its shares to the shareholders is somewhat more limited

than that duty owed in the context of a traditional close corporation.” Id. ¶ 28, 643

N.W.2d at 66-67. In cases where the minority shareholders received their shares by

gift or inheritance, the minority shareholders are only entitled to “decent” conduct

by the majority shareholders. Id.

[¶17.]       Instruction 27 originated from a section in Mueller discussing the

application of the “decent” conduct standard to minority shareholder fiduciary duty

claims:

             Because of the potential for abuse, the scope of the fiduciary
             duty owed by a family-owned corporation that has gifted its
             shares to the shareholders is somewhat more limited than that
             duty owed in the context of a traditional close corporation. . . .
             [W]here the shareholders receive their stock by gift and invest
             no capital, the shareholders’ minimum economic return and
             right of participation become limited. Hamilton, supra at § 8.25.
             We are not prepared to allow a shareholder to use the fiduciary
             duty concept to rewrite the original deal he or she made with the
             corporation, a modification that the original parties to the
             transaction almost certainly would not have chosen. To do so
             would significantly undermine a primary method of tax
             planning and wealth sharing by holding family business owners
             hostage, subject to the demands of every gifted shareholder,
             whether reasonable or not. Therefore, the question is whether
             [the minority shareholders] have identified in the record
             sufficient evidence to demonstrate that the conduct of the
             individually named directors, under these circumstances,

                                         -9-
#27158

             amounted to something below the “decentness” standard set
             forth above.

2002 S.D. 38, ¶ 28, 643 N.W.2d at 66-67 (emphasis added). The cited language in

Mueller merely explained why the “decent” conduct standard, rather than the

traditional standard, was appropriate in cases where the minority shareholders in a

closely held corporation received their shares by gift or inheritance. Id. Instruction

27, however, treated this language as a rule of law. Accordingly, the passage from

Mueller was taken out of context as it was stated in Instruction 27.

                             B. Incorrect Application

[¶18.]       Schultzes further argue that Instruction 27 was “applied incorrectly.”

We agree. As given, the language in Instruction 27 was broader than the cited

language in Mueller. Instruction 27 provided, “South Dakota law does not allow a

shareholder to use the fiduciary duty concept to rewrite an original deal he or she

made with the corporation.” (Emphasis added.) The language cited from Mueller in

Instruction 27, however, only pertained to gifted shareholders, not all shareholders.

Id. Furthermore, the circuit court did not determine whether the Schultz Family

Trust, and Don and Eloise Schultz as trustees of the Schultz Family Trust, were

gifted shareholders. The court stated, because “[t]here was no evidence presented

at trial regarding the Schultz Family Trust,” “[i]t is unclear whether the Schultz

Family Trust is to be considered an original shareholder, or a subsequent

shareholder receiving by gift.”

[¶19.]       Moreover, in Mueller, we stated that “[w]e are not prepared to allow a

shareholder to use the fiduciary duty concept to rewrite the original deal he or she

made with the corporation[.]” 2002 S.D. 38, ¶ 28, 643 N.W.2d at 67 (emphasis

                                         -10-
#27158

added). In this case, the Compensation Agreement was not the original deal that

the gifted shareholders made with the corporation. There was neither testimony

nor argument at trial as to Schultzes’ “deal” as gifted shareholders. It appears that

the original deal the gifted shareholders entered into with Cosmos was that in

return for not investing capital or resources, they would receive limited economic

return and limited right of participation. Thus, in addition to being too broad,

Instruction 27 had nothing to do with Schultzes’ claims as Schultzes were not

making any claim in this lawsuit based on their “deal” with the corporation.

[¶20.]       Our conclusion that Instruction 27 did not accurately reflect the

language cited in Mueller is reinforced by a review of Robert W. Hamilton, Business

Organizations: Unincorporated Businesses and Closely Held Corporations § 8.35

(1996), which is the authority relied on in Mueller in support of adopting the

“decent” conduct standard. Hamilton does not state that a shareholder is precluded

from using the fiduciary duty concept to rewrite the original deal he or she made

with the corporation. Instead, Hamilton said that “[t]he fiduciary principle also has

a significant capacity for mischief, since it may be utilized by a sophisticated

investor to obtain a court order in effect rewriting the original ‘deal’ he cut with the

corporation.” Id. (emphasis added). Hamilton reasons that “[l]aw and economics

scholars have . . . criticized the cases creating a special fiduciary duty on the ground

that it imposes an ex post duty that the parties to the transaction almost certainly

would not have selected if they had considered what term to include in their

corporate ‘contract.’” Id. Based on Hamilton’s treatise and Mueller, we conclude

that Instruction 27 was incorrectly applied in this case.


                                          -11-
#27158

                          C. Misleading and Confusing

[¶21.]       Schultzes also contend that Instruction 27 “confused and misled” the

jury. Because Instruction 27 incorrectly applied Mueller and took the cited

language out of context, we agree with Schultzes that Instruction 27, if read in

isolation, may have misled and confused the jury. Vetter, 2006 S.D. 21, ¶ 10, 711

N.W.2d at 615 (“[N]o court has discretion to give incorrect, misleading, conflicting,

or confusing instructions.”). Consequently, the circuit court erred when it allowed

Instruction 27.

                                    D. Prejudice

[¶22.]       To constitute prejudicial error, however, an instruction must be

prejudicial in addition to erroneous. See Whistler, 2014 S.D. 58, ¶ 13, 851 N.W.2d at

910 (quoting Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d at 125). “Erroneous instructions

are prejudicial under SDCL 15-6-61 when in all probability they produced some

effect upon the verdict and were harmful to the substantial rights of a party.”

Vetter, 2006 S.D. 21, ¶ 10, 711 N.W.2d at 615. “[W]hen the question is whether a

jury was properly instructed overall, that issue becomes a question of law

reviewable de novo. Under this de novo standard, ‘we construe jury instructions as

a whole to learn if they provided a full and correct statement of the law.’” Id.

(footnote omitted).

[¶23.]       We are not convinced that Schultzes were prejudiced by Instruction 27.

The jury instructions, when viewed as a whole, fully and correctly stated the law

and informed the jury on the fiduciary duty of care and loyalty. Jury Instructions

19, 20, and 21 informed the jury on the applicable fiduciary duty:


                                         -12-
#27158

                                    Instruction 19

             All officers and directors of a corporation, whether Plaintiff or
             Defendants, owe a fiduciary duty to the corporation and its
             shareholders. They are required to use a high degree of
             diligence and due care and of the utmost good faith and fair
             dealing in the exercise of their fiduciary duties to shareholders.
             They must act in good faith and refrain from transactions in
             which they receive an improper personal benefit.

                                    Instruction 20

             Each member of the Cosmos board of directors is required to act
             in good faith and in a manner the director reasonably believes to
             be in the best interests of the corporation when discharging his
             or her duties. The members of the board of directors, when
             becoming informed in connection with their decision-making
             function or devoting attention to their oversight function, shall
             discharge their duties with the care that a person in a like
             position would reasonably believe appropriate under similar
             circumstances.

                                    Instruction 21

             Majority shareholders of a closely held corporation occupy a
             fiduciary position in respect to the minority shareholders.
             Majority shareholders owe a fiduciary duty of care and a
             fiduciary duty of loyalty to the minority shareholders requiring
             diligence, due care and the exercise of the utmost good faith and
             fair dealing. Majority shareholders must act in good faith and
             refrain from transactions in which the majority shareholder
             receives an improper personal benefit.

[¶24.]       Instructions 19, 20, and 21 allowed Schultzes to present their theory of

the case despite the inclusion of Instruction 27. At trial, the jury viewed the total

amount of compensation received by Lyle, Heidi, Marlene, and Kevin. The jury

listened to testimony from Lyle that he continued to receive his same salary even

after Heidi assumed many of his responsibilities as manager. The jury heard

testimony that Scandretts paid themselves benefits including daycare, vehicles, cell



                                         -13-
#27158

phones, health insurance, and personal vacations. The jury listened to testimony

from Lyle indicating that he may have engaged in self-dealing. 2

[¶25.]         Schultzes argued during closing arguments that this evidence

demonstrated that Scandretts did not act in the best interests of Cosmos

(Instruction 20) or act with diligence, due care and the exercise of the utmost good

faith and fair dealing (Instructions 19 and 21). Certainly, the jury could have found

that Scandretts were not acting in good faith and in a manner in the best interests

of Cosmos notwithstanding Instruction 27. Nonetheless, Schultzes complain that a

juror who followed Instruction 27 would have believed that South Dakota law does

not require a majority shareholder, director, or officer of a corporation to review,

revise, or terminate his compensation agreement. But Instructions 19, 20, and 21

clearly instructed the jurors that Scandretts had a duty to refrain from improper

personal benefit, which could certainly include consideration of the Compensation

Agreement. Consequently, contrary to their argument, Schultzes’ fiduciary duty

claims were not “effectively taken away from the jury with [Instruction 27].”

[¶26.]         In fact, it appears the jury instructions were actually more favorable to

the Plaintiffs than the law required. The jury instructions in this case did not

instruct on the “decent” conduct standard in Mueller, 2002 S.D. 38, ¶ 28, 643




2.       The Plaintiffs alleged that Lyle engaged in self-dealing by charging rent to
         the corporation for use of two billboards on his property. He purchased
         property adjacent to Cosmos for $1,000 and charged Cosmos $1,000 a year to
         rent the land. In addition, he charged Cosmos $10,000 a year to lease two
         billboards for a total of $11,000 rent.

                                           -14-
#27158

N.W.2d at 67. 3 Rather, the circuit court instructed the jury that Scandretts owed

Schultzes the traditional fiduciary duty of care and loyalty. In Mueller, the

plaintiffs claimed that certain individually named directors, who were also the

majority shareholders, breached their fiduciary duty owed to them as minority

shareholders. Id. ¶¶ 25-33, 643 N.W.2d at 66-67. We held that because the

plaintiffs were gifted their shares and because the corporation was a closely held

corporation, “the question is whether [the plaintiffs] have identified in the record

sufficient evidence to demonstrate that the conduct of the individually named

directors, under these circumstances, amounted to something below the ‘decentness’

standard[.]” Id. ¶ 28 643 N.W.2d at 67.

[¶27.]         Likewise, in this case, the Defendants are individually named directors

and are members of a family who, collectively, are the majority shareholders.

Plaintiffs Steve, Mark, and David received their shares of the corporation by gift


3.       Schultzes contend that Mueller created a distinction between “family-owned”
         corporations and closely held corporations and, as a result, the “decent”
         conduct standard only applies to “family-owned” corporations. Because
         Schultzes and Scandretts are two separate families, Schultzes argue that the
         “decent” conduct standard did not apply to them. This interpretation is not
         supported by Mueller nor is it consistent with existing law. While Mueller
         did state that “the scope of the fiduciary duty owed by a family-owned
         corporation that has gifted its shares to the shareholders is somewhat more
         limited than that duty owed in the context of a traditional close
         corporation[,]” 2002 S.D. 38, ¶ 28, 643 N.W.2d at 66-67 (emphasis added), it
         is clear from the context of the decision that this Court did not intend to
         create a distinction between family-owned corporations and traditional
         closely held corporations. Rather, we created a distinction between close
         corporations that gifted its shares to shareholders and traditional close
         corporations where the shareholders did not receive their shares by gift or
         inheritance. Id. The close corporation in Mueller just so happened to also be
         a closely held, family-owned corporation. Furthermore, Hamilton, supra
         ¶ 20, § 8.25, recognized no such distinction between family-owned
         corporations and traditional closely held corporations.

                                          -15-
#27158

similar to the plaintiffs in Mueller. As we noted above, the circuit court did not

determine whether the Schultz Family Trust was an original shareholder or a

subsequent shareholder by gift. Thus, while the circuit court correctly instructed

the jury that the Defendants, as officers and directors, owed the traditional

fiduciary duty of care and loyalty to the corporation (Instruction 19), it is unclear

whether the Defendants owed that same fiduciary duty of care to all of the Plaintiffs

as gifted minority shareholders in a closely held corporation. At the very least,

Steve, Mark, and David, as gifted minority shareholders in a closely held

corporation, were only entitled to the limited “decent” conduct standard from the

Defendants as majority shareholders and directors. See id. Thus, in light of all the

reasons provided herein, we conclude that Schultzes failed to demonstrate that they

were prejudiced by Instruction 27. Whistler, 2014 S.D. 58, ¶ 13, 851 N.W.2d at 910

(quoting Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d at 125).

[¶28.]       2.     Whether the circuit court erred when it declined to
                    instruct the jury on employment-at-will concepts and
                    that officers and directors have a duty to terminate a
                    contract entered into by the corporation if the contract
                    becomes against the best interests of the corporation.

[¶29.]       Schultzes next argue that the circuit court erred when it “denied three

interrelated instructions proposed by [them]” because, “[t]hrough the denial of these

instructions, [they] were prevented from arguing to the jury that Lyle’s

compensation arrangement was an employment at-will arrangement that could be

modify [sic] if it subsequently became adverse to the corporation.” The refusal to

give these instructions, Schultzes argued, “also prevented the jury from determining

if [Schultzes] had a duty to analyze the salaries of Marlene, Heidi and Kevin in


                                          -16-
#27158

relation to the best interests of the corporation.” The three proposed jury

instructions provided:

                                Proposed Instruction 15

             The length of time which an employer and employee adopt for
             the estimation of wages is relevant to a determination of the
             term of employment.

                                Proposed Instruction 16

             An employment contract having no specified term may be
             terminated at will, or in other words, at any time, and for any
             reason or for no reason, by the employee of the employer.

                                Proposed Instruction 17

             If a contract entered into by a corporation becomes against the
             best interests of the corporation and the corporation can
             terminate the contract under the contract terms, then the
             officers and the directors of a corporation have a duty to
             terminate the contract.

[¶30.]       Schultzes’ theory for proposing the above three jury instructions, as

evidenced by the language in the instructions, was that Lyle was an at-will

employee of Cosmos and, therefore, he had a fiduciary “duty to terminate [his own

employment] contract” because his contract was no longer in “the best interests of

the corporation[.]” Schultzes advance no authority to support this argument. Nor

do we find any authority that supports this argument. As we have said, the “failure

to cite authority is fatal.” Steele v. Bonner, 2010 S.D. 37, ¶ 35, 782 N.W.2d 379, 386.

Proposed Instruction 17 is an incorrect statement of the fiduciary duty for officers

and directors of a corporation. See SDCL 47-1A-830. Instead, the correct standard

is that “[a]n officer or director of a corporation has a fiduciary duty to act in a

manner that he reasonably believes is in [the corporation’s] best interests.”


                                           -17-
#27158

Lindskov v. Lindskov, 2011 S.D. 34, ¶ 15, 800 N.W.2d 715, 719 (emphasis added).

See also SDCL 47-1A-830 (“Each member of the board of directors, when

discharging the duties of a director, shall act in good faith and in a manner the

director reasonably believes to be in the best interests of the corporation.”). Jury

Instruction 20 stated, “Each member of the Cosmos board of directors is required to

act in good faith and in a manner the director reasonably believes to be in the best

interests of the corporation when discharging his or her duties. Therefore, the jury

was instructed on the correct standard.

[¶31.]         While a director or officer may have a fiduciary duty in certain

instances to revise his employment contract when discharging his duties as an

officer or director if he reasonably believes it is in the best interests of the

corporation to act in this manner, see SDCL 47-1A-830, there is no requirement that

a director must “terminate” his own employment contract when the contract

“becomes against the best interests of the corporation.” Clearly, an endorsement of

Proposed Instruction 17 would lead to troubling results as it would presumably

require, in almost all conceivable circumstances, directors and officers to reduce

their salaries “in the best interests of the corporation.” 4 Accordingly, the circuit




4.       The parties in this case dispute whether Lyle was an at-will employee.
         Citing Mueller, 2002 S.D. 38, ¶ 20 n.4, 643 N.W.2d at 64 n.4, Schultzes argue
         that “employee/shareholders in a closely-held corporation are at-will.”
         Scandretts, on the other hand, cite Mueller, 2002 S.D. 38, ¶ 15, 643 N.W.2d at
         63, and Landstrom v. Shaver, 1997 S.D. 25, ¶ 44, 561 N.W.2d 1, 10, for the
         proposition that “[c]losely-held corporations are not free to terminate the
         employment of the owners ‘at-will.’” Because of our conclusion that the
         circuit court did not abuse its discretion in refusing the proposed jury
         instructions, we need not determine whether Lyle was an at-will employee.

                                           -18-
#27158

court did not abuse its discretion in refusing Schultzes’ proposed instructions. See

State v. Walton, 1999 S.D. 80, ¶ 9, 600 N.W.2d 524, 528.

[¶32.]         3.     Whether the circuit court erred when it declined to
                      instruct the jury that directors owe a fiduciary duty of
                      undivided and unselfish loyalty to the corporation.

[¶33.]         For their third and final assignment of error, Schultzes argue that the

circuit court erred when it refused to give Schultzes’ Proposed Instruction 18:

               The fiduciary duty owed by a Director to minority shareholders
               requires an undivided and unselfish loyalty to the Corporation
               and also requires that there be no conflict between the Director’s
               fiduciary duty and self-interest.

Schultzes argue that this instruction on the fiduciary duty of loyalty should have

been given to the jury because “Lyle was not putting the corporation above his own

self-interests (i.e. his Compensation Agreement) which was a breach of his fiduciary

duty of loyalty.” Moreover, Schultzes contend that Lyle did not disclose to the

shareholders the amount of compensation he was paid or the information needed to

calculate his compensation before they signed the Historical Record in 2004,

thereby ratifying the Compensation Agreement.

[¶34.]         Schultzes argue that the circuit court “should have granted this

instruction describing the fiduciary duty of loyalty as it is a proper statement of law

and there was sufficient evidence in the record supporting a breach of the duty of

loyalty.” 5 However, the court did instruct the jury on the fiduciary duty of loyalty in



5.       We are not persuaded that Proposed Instruction 18 was a correct statement
         of the law. Schultzes cite the following language from Mueller in support of
         the instruction: “Hallmark behavior of such a breach [of fiduciary duty of
         loyalty] includes the failure to disclose information, director or shareholder
         self-dealing, making fraudulent misrepresentations regarding past or future
                                                                (continued . . .)
                                             -19-
#27158

Instructions 19, 20, and 21. The court explicitly indicated to the jury that “[t]here is

no dispute the defendants owed a fiduciary duty of . . . loyalty to the [P]laintiffs[.]”

Instructions 19, 20, and 21 fully set out the law on the fiduciary duty of loyalty.

[¶35.]       The circuit court “has a duty to instruct the jury on applicable law

where the theory is supported by competent evidence.” Jahnig v. Coisman, 283

N.W.2d 557, 560 (S.D. 1979). The court does not commit error, however, when it

“refuses to amplify instructions which substantially cover the principle embodied in

the requested instruction.” State v. Klaudt, 2009 S.D. 71, ¶ 20, 772 N.W.2d 117,

123. The instructions given to the jury regarding the duty of loyalty correctly and

adequately explained the fiduciary duty of loyalty as it related to this case.

Consequently, Schultzes’ rejected jury instruction merely amplified instructions

that covered the duty of loyalty. Id. We conclude the circuit court did not err when

it rejected Schultzes’ proposed jury instruction.

                                      Conclusion

[¶36.]       Jury Instruction 27, which was worded more broadly than the cited

language in Mueller and incorrectly applied in this case, did not prejudice

Schultzes. The jury instructions, when viewed as a whole, adequately instructed

the jury of Scandretts’ fiduciary duty of care and loyalty. Lastly, the circuit court

did not err in rejecting certain proposed jury instructions by Schultzes where no


________________________
(. . . continued)
         events, and surreptitious conduct or communications.” 2002 S.D. 38, ¶ 29,
         643 N.W.2d at 67. This language does not support the broad proposition in
         Schultzes’ proposed jury instruction that the duty of loyalty “requires that
         there be no conflict between the Director’s fiduciary duty and self-interest.”
         (Emphasis added.)

                                           -20-
#27158

authority was cited in support of the instructions and the instructions merely

amplified other jury instructions. We affirm.

[¶37.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




                                        -21-
