Weekley v. Wagner , 2012 S.D. LEXIS 11 ( 2012 )

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2012 S.D. 10IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
JEANIE WEEKLEY, Plaintiff and Appellee,
v.
ROBERT J. WAGNER, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JON R. ERICKSON
Judge
* * * *
TODD D. BOYD
GREGORY J. STOLTENBURG of
Gunderson, Evenson, Boyd
Knight & Stoltenburg, LLP Attorneys for plaintiff
Clear Lake, South Dakota and appellee.
RICHARD O. GREGERSON
JAMES A. POWER of
Woods, Fuller, Shultz
and Smith PC Attorneys for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 23, 2011
OPINION FILED 02/08/12
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GILBERTSON, Chief Justice
[¶1.] Robert Wagner (Wagner) appeals a judgment for Jeanie Weekley
(Weekley) in her action for breach of fiduciary duty in the administration of an
estate. We affirm.
Facts and Procedural History
[¶2.] This is the fourth appeal in connection with the estate of Walter L.
Brownlee, Sr. (Brownlee). See In re Estate of Brownlee (Brownlee I), 2002 S.D. 142,
654 N.W.2d 206; Wagner v. Brownlee (Brownlee II), 2006 S.D. 38, 713 N.W.2d 592;
Weekley v. Prostrollo (Brownlee III), 2010 S.D. 13, 778 N.W.2d 823. The historical
facts have been set forth in our prior decisions and are recounted here. Brownlee
died testate on August 17, 1997. Before his death, Brownlee created a trust for the
benefit of his children and grandchildren. He also attempted to transfer some
heavy construction equipment he owned to his son Randy (Randy) by a bill-of-sale.
[¶3.] Brownlee’s will was filed for probate on September 3, 1997. Jerry
Prostrollo (Prostrollo) was appointed as Brownlee’s personal representative on
September 24. Brownlee’s will devised his certificates of deposit, his residence, and
most of his personal property to Weekley, his long-time companion. Most of
Brownlee’s estate, however, passed into the trust he had created for the benefit of
his children and grandchildren.
[¶4.] After Brownlee’s death, disagreements arose between Weekley and
Brownlee’s children. There was a dispute over the validity of the transfer of the
construction equipment, valued at approximately $171,000, to Randy. There was
also a dispute over the respective tax liabilities of the estate and trust. Weekley
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petitioned the circuit court to interpret Brownlee’s will and to set aside the transfer
of the construction equipment. The circuit court issued its decision on these
matters which Weekley and Randy cross-appealed to this Court in Brownlee I. On
November 12, 2002, while Brownlee I was still pending before this Court, Prostrollo
resigned as personal representative of the estate for health reasons and Robert
Wagner (Wagner) was appointed his successor.1
[¶5.] This Court entered its decision in Brownlee I on November 20, 2002.
We affirmed the circuit court’s disallowance of the transfer of the construction
equipment to Randy and further held the state inheritance taxes and federal estate
taxes should be apportioned among the beneficiaries. Following our decision, the
estate commenced an action against Randy and Weekley to recover the construction
equipment and apportion the taxes. Weekley counterclaimed for interest on her
unpaid devise of the certificates of deposit and also sought interest on $25,000 in
personal funds she had provided to help administer the estate. In addition, she
sought an award of more than $76,000 in attorney’s fees incurred in the estate
litigation, including the prior appeal. The circuit court granted Weekley’s request
for attorney’s fees related to her efforts in setting aside the transfer of the
construction equipment, but denied her request for interest on her unpaid devise
and the $25,000 she had provided to help administer the estate. Weekley appealed
the circuit court’s decision to this Court in Brownlee II.
1. Formal letters naming Wagner as the successor personal representative were
not issued until November 25, 2002, or filed until December 5, 2002.
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[¶6.] This Court issued its decision in Brownlee II on April 12, 2006. We
affirmed the circuit court’s denial of Weekley’s attorney’s fees relating to the tax
apportionment issue and denied her request for her appellate attorney’s fees in
Brownlee I on procedural grounds. We also held that the circuit court erred in
denying Weekley interest on her unpaid devise and on the $25,000 she had provided
for administration of the estate. In addition, we awarded Weekley one-half her
request for appellate attorney’s fees for Brownlee II.
[¶7.] In May 2006, following Brownlee II, Weekley entered into a stipulated
judgment against the estate for $168,223.74, plus post-judgment interest,
representing the amount Weekley was owed for her devise, her attorney’s fees, her
appellate attorney’s fees, and interest due to the delay in receiving her devise. In
August 2006, Weekley brought suit against both Prostrollo and Wagner for breach
of their fiduciary duties in administering the estate.
[¶8.] Weekley’s lawsuit was tried to the circuit court in January 2008. The
parties did not dispute that the estate owed Weekley $168,223.74, however, the
estate did not have the funds to pay her. Weekley argued that because Prostrollo
and Wagner negligently handled certain affairs of the estate, breaching their
fiduciary duties, they should be jointly and severally liable for the loss she suffered.
The circuit court found neither Prostrollo nor Wagner were negligent in their
handling of the tax issues concerning the estate. It further found Prostrollo was not
negligent for failure to take possession of, or to preserve the construction equipment
because Brownlee I, which decided ownership of the equipment, was not issued until
after Prostrollo’s tenure.
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[¶9.] With regard to Wagner, the circuit court found his failure to inspect,
inventory, collect, and manage the construction equipment after issuance of
Brownlee I was a breach of his fiduciary duty.2 However, the circuit court held it
could not reasonably calculate Weekley’s damages against Wagner and awarded her
nothing. Weekley appealed the circuit court’s decision to this Court in Brownlee III.
[¶10.] This Court issued its decision in Brownlee III on February 10, 2010.3
The Court affirmed the circuit court’s determinations as to negligence and breach of
fiduciary duty by Prostrollo and Wagner. However, it reversed the circuit court’s
determination that Weekley failed to prove her damages by Wagner to a reasonable
certainty. Accordingly, it remanded the case to the circuit court with instructions
“to determine with reasonable certainty Weekley’s damages consistent with this
opinion.” Brownlee III, 2010 S.D. 13, ¶ 29, 778 N.W.2d at 831.
[¶11.] Following this Court’s remand in Brownlee III, the circuit court
accepted briefs on the damages issue and conducted a hearing on October 29, 2010.
The court subsequently entered a memorandum opinion and findings of fact and
conclusions of law incorporating its memorandum and calculating Weekley’s
2. Although Brownlee I was issued at about the same time Wagner became
personal representative in November 2002, Wagner did not take possession of
the construction equipment and sell it until September 2006, a delay of
nearly four years. The equipment, valued at approximately $171,000 when
Brownlee’s will was filed for probate in 1997, netted only $26,739.19 at the
time of its sale in 2006.
3. We granted a rehearing in Brownlee III on the limited issue of whether the
Court was properly composed when it decided the case in view of the
retirement of one of the participating justices. We subsequently determined
that the Court was properly composed and that the original opinion should
stand as issued.
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damages. Based upon its calculations, the court entered its judgment for Weekley
on December 29, 2010. The court awarded her damages against Wagner in the
amount of $82,535.14 for her unpaid devise, plus prejudgment interest from
November 25, 2003, through November 2, 2010, in the amount of $57,299.74, and
post-judgment interest commencing November 3, 2010, for a total judgment amount
of $139,834.88. Wagner appeals.
Issue
[¶12.] Whether the circuit court was clearly erroneous in its damages
award.
[¶13.] “[T]he amount of damages to be awarded is a factual issue to be
determined by the trier of fact.” Roth v. Farner-Bocken Co., 2003 S.D. 80, ¶ 26, 667
N.W.2d 651, 662 (quoting Estate of Pamela He Crow, 494 N.W.2d 186, 192 (S.D.
1992)); see also Lord v. Hy-Vee Food Stores, 2006 S.D. 70, ¶ 31, 720 N.W.2d 443, 454
(stating an award of damages is a factual issue). “Damages must be reasonable and
must be proved with reasonable certainty.” Lord, 2006 S.D. 70, ¶ 31, 720 N.W.2d at
454. Reasonable certainty “requires proof of a rational basis for measuring loss,”
without requiring the trier of fact to speculate. Id. This Court reviews the issue of
damages under the clearly erroneous standard. Roth, 2003 S.D. 80, ¶ 26, 667
N.W.2d at 662 (citing He Crow, 494 N.W.2d at 192).
[¶14.] Wagner essentially repeats his argument from Brownlee III in this
appeal. He asserts Weekley failed to prove her damages with reasonable certainty
and that the record contains no evidence permitting any rational estimate of the
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amount of her damages. Accordingly, he contends the circuit court’s damages
award is clearly erroneous and the judgment in Weekley’s favor should be reversed.
[¶15.] “[A] question of law decided by [this Court] on a former appeal becomes
the law of the case in all its subsequent stages and will not ordinarily be considered
or reversed on a second appeal when the facts and the questions of law presented
are substantially the same.” Bertelsen v. Allstate Ins. Co., 2011 S.D. 13, ¶ 18, 796
N.W.2d 685, 693 (quoting In re Estate of Siebrasse, 2006 S.D. 83, ¶ 16, 722 N.W.2d
86, 90). Based upon the law of the case doctrine, we will not reconsider Wagner’s
recycled arguments from Brownlee III in this appeal. As to the propriety of the
damages award, the circuit court carefully adhered to this Court’s decision in
Brownlee III in calculating damages on remand. It referenced a number of
statements from this Court’s decision in its own memorandum decision and in its
findings of fact and conclusions of law. The court also focused on the conclusion in
Brownlee III that, “Wagner’s inaction damaged Weekley to the extent of her unpaid
devise and interest thereon.” 2010 S.D. 13, ¶ 28, 778 N.W.2d at 831. Finding that
Wagner had stipulated in proceedings leading to the judgment entered after
Brownlee II that Weekley’s unpaid devise was $82,535.14, the court awarded
Weekley that amount as damages.
[¶16.] Also consistent with this Court’s instructions in Brownlee III, the
circuit court awarded Weekley interest on her unpaid devise in the amount of
$57,299.74. This represented interest at the Category B statutory rate (SDCL 54-3-
16(2)) commencing on November 25, 2003, one year after Wagner’s appointment as
successor personal representative. The court found the one-year delay for
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commencing interest represented sufficient time for Wagner to “expeditiously and
efficiently account, inventory, preserve and collect the assets of the estate, including
the construction equipment.” The unpaid devise of $82,535.14 plus the interest of
$57,299.74 after November 25, 2003, yielded the total judgment amount of
$139,834.88.
[¶17.] Wagner relies on a single sentence in the closing paragraph of
Brownlee III as the foundation for his appellate argument. In its closing, this Court
remanded the case to the circuit court to calculate damages with the qualification
that, “Wagner is not liable for the entirety of Weekley’s lost devise and interest, but
only the portion attributable to his inactions.” Brownlee III, 2010 S.D. 13, ¶ 29, 778
N.W.2d at 831. Wagner argues the lack of evidence in the record as to the value of
the construction equipment one year after his appointment as personal
representative (i.e., at the time of his breach) rendered it impossible for the circuit
court to calculate the portion of Weekley’s lost devise “attributable to his inactions.”
Accordingly, he contends Weekley’s damages could not be calculated with
reasonable certainty even by resolving any doubt against Wagner as the breaching
party as also mandated by Brownlee III. Id. ¶ 28.
[¶18.] The circuit court held Wagner liable for the entirety of Weekley’s
unpaid devise, i.e., $82,535.14. However, only if the construction equipment would
have sold for enough to cover the unpaid devise one year after Wagner’s
appointment as personal representative (i.e., in November 2003) would Wagner’s
further delay in recovering and selling the equipment be responsible for the entirety
of the unpaid devise. If the equipment would have sold for less at that time, holding
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Wagner liable for the entire unpaid devise would violate this Court’s charge in
Brownlee III that Wagner be held liable only for “the portion [of the lost devise]
attributable to his inactions.” Id. ¶ 29.
[¶19.] John Foley (Foley), the estate’s attorney, testified the construction
equipment was originally valued at $172,500 in the estate tax return dated May 18,
1998. He further testified legal proceedings for the estate to recover the equipment
were commenced against Randy in January 2004. In the complaint initiating those
proceedings, Foley alleged that after Brownlee I, Randy offered to pay the estate
$140,000 for the construction equipment. Foley testified at trial that Randy made
this offer in May 2003, but that the sale never went through. Foley further testified
that if the sale had gone through, the estate would have been able to satisfy its
obligation to Weekley. However, Foley conceded on cross-examination that the
estate was also seeking attorney’s fees and interest from Randy and that he did not
know everything that was encompassed in Randy’s offer. Ultimately, Foley testified
the equipment was recovered by the estate in August 2006 and that it sold for a net
of $26,739.19 in September 2006.
[¶20.] Wagner testified that when he became personal representative, it was
both his and Foley’s opinion that there was not going to be enough to pay Weekley
even with the equipment. Therefore, Wagner elected to negotiate with Randy for
Randy to purchase the equipment. Wagner testified he began negotiations with
Randy in April 2003. Wagner reported by letter to Weekley’s counsel in June 2003
that if Randy purchased the equipment there would be sufficient funds to pay
Weekley. However, at trial, Wagner disputed Randy’s $140,000 offer for the
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equipment, indicating that the offer was made before his time as personal
representative. Wagner testified Randy was offering $120,000 in June of 2003 to
“settle everything,” “the federal estate tax, the use of the equipment, and the
equipment.” Ultimately, Wagner testified at trial that, in his opinion, the value of
the equipment when he took over as personal representative was $37,750, the gross
amount it ultimately sold for in September 2006.
[¶21.] Prostrollo, a long-time auto dealer, also testified during trial.
Although he did not provide any testimony as to the specific value of the equipment
at the pertinent time, it is notable that his testimony indicated he was familiar with
the equipment when Brownlee was alive, that it was “good equipment,” and that it
was “worth the money that it was [originally] appraised for and then some
probably.”
[¶22.] A circuit court’s findings are clearly erroneous when, after a review of
all the evidence, this Court is “left with a definite and firm conviction that a
mistake [has been] made.” Russo v. Takata Corp., 2009 S.D. 83, ¶ 25, 774 N.W.2d
441, 448. In making its determination, this Court reviews “the evidence in a light
most favorable to the [circuit] court’s findings and resolve[s] all conflicts in the
evidence in its favor[.]” Phipps v. First Fed. Sav. & Loan Ass’n of Beresford, 438
N.W.2d 814, 819 (S.D. 1989). Moreover, in this particular case, any lack of
exactitude in the circuit court’s calculation of damages was because of Wagner’s
delay in timely recovering and selling the estate’s construction equipment. Thus,
any doubt as to the certainty of damages must be resolved against Wagner as the
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breaching party whose acts made computing damages more difficult. See Brownlee
III, 2010 S.D. 13, ¶¶ 28-29, 778 N.W.2d at 831.
[¶23.] Based upon these standards and the foregoing evidence and testimony,
we hold that the circuit court’s damages award is not clearly erroneous. Both
Foley’s and Wagner’s testimony generally supports the view that, had Wagner
timely recovered and sold the estate’s construction equipment by November 2003,
the proceeds would have been sufficient to cover Weekley’s unpaid devise. Wagner
himself advised Weekley’s counsel by letter in June 2003 that if Randy purchased
the equipment, there would be sufficient funds to “make payment to [Weekley].” In
view of that advice at the time, Wagner’s later opinion at trial, offering a much
lower value for the equipment and describing some of it as “junk,” rings hollow.4
4. The dissents ignore the current procedural posture of this case. Justice
Zinter criticizes Weekley and the circuit court for ignoring the supposed
mandate of this Court on remand in Brownlee III that Weekley prove her
damages with reasonable certainty. This Court did not, however, remand in
Brownlee III for a new trial on damages or for the taking of additional
evidence on damages. The significant point of disagreement in Brownlee III
was whether Weekley presented sufficient evidence in the first trial to
establish her damages. The circuit court held that she did not and awarded
her nothing. Over two dissents on this very point in Brownlee III, the
majority of this Court held the circuit court erred in that determination,
stating: “That sufficient evidence has been presented for the court to
determine the extent of Weekley’s damages is supported by this Court’s
decision in Brownlee II, where we found that Weekley was damaged as a
result of the estate’s actions in failing to timely recover the construction
equipment.” Brownlee III, 2010 S.D. 13, ¶ 27, 778 N.W.2d at 831 (emphasis
added). And further: “It is reasonable for the finder of fact to consider that
because Weekley was entitled to recover interest under SDCL 21-1-13.1 for
being damaged by the estate’s failure to recover the construction equipment,
Wagner’s inaction damaged Weekley to the extent of her unpaid devise and
interest thereon.” Id. ¶ 28. On these foundations, this Court remanded in
Brownlee III with instructions for the circuit court to “determine with
(continued…)
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Appellate Attorney’s Fees
[¶24.] Weekley’s counsel has filed a motion for an award of appellate
attorney’s fees in the amount of $2,973.30. Although counsel has submitted an
itemized statement of legal services rendered per SDCL 15-26A-87.3, he has cited
no authority for an award of fees on a claim of negligence and breach of fiduciary
duty by a personal representative. Therefore, as in Brownlee III, the motion for fees
is waived. 2010 S.D. 13, ¶ 30, 778 N.W.2d at 831.
_________________________
(…continued)
reasonable certainty Weekley’s damages consistent with this opinion.” Id. ¶
29. It was undoubtedly for these reasons that the circuit court’s findings and
conclusions on remand dutifully echoed this and other language quoted from
Brownlee III. The circuit court could not, however, view Brownlee III as a
remand for a new trial on damages because Brownlee III did not say that and
such a disposition would have violated the string of authorities cited in
footnote 9 of Justice Zinter’s dissent forbidding a “second bite at the apple.”
See, e.g., State v. Mollman, 2003 S.D. 150, ¶ 12, 674 N.W.2d 22, 27
(prohibiting the party with the burden of proof from having another “bite at
the apple” because he was given ample opportunity to prove his claim but
failed to do so); see also Stugelmayer v. Ulmer, 260 N.W.2d 236, 240 (S.D.
1977) (denying the plaintiff/appellant’s request for this Court to remand the
case to the circuit court for a further determination of damages where the
plaintiff initially failed to show any damages and should not be given another
opportunity to do so). Although both dissents criticize the absence of
evidence and findings on remand as to the value of the equipment at the time
of the breach, such evidence was deemed not to be decisive in Brownlee III.
See Brownlee III, 2010 S.D. 13, ¶ 25, 778 N.W.2d at 830 (holding the circuit
court “mistakenly concluded” Weekley failed to prove her damages with
reasonable certainty because she presented no evidence of the equipment’s
value at the time of Wagner’s breach). Thus, the circuit court was clearly
confined on remand after Brownlee III to the evidence it already had before
it, evidence this Court had already held was sufficient to determine
Weekley’s damages. That is the evidence we set forth above and, in
conjunction with the presumptions set forth in Brownlee III concerning
resolution of damages issues against the party making that task more
difficult, the evidence we hold to be sufficient here to support the circuit
court’s damages award. See Brownlee III, 2010 S.D. 13, ¶ 28, 778 N.W.2d at
831.
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[¶25.] Affirmed.
[¶26.] SEVERSON, Justice, and MEIERHENRY, Retired Justice, concur.
[¶27.] KONENKAMP and ZINTER, Justices, dissent.
[¶28.] WILBUR, Justice, did not participate.
KONENKAMP, Justice (dissenting).
[¶29.] Once again, we should remand this case because the circuit court failed
to determine with reasonable certainty the extent of Weekley’s damages
attributable to Wagner’s breach. Even though doubts in calculating such damages
are to be resolved against Wagner, the circuit court was still required to identify
evidence to support how Wagner’s breach with respect to the equipment damaged
Weekley. After our last remand, however, the court merely quoted language from
Brownlee III and concluded that Weekley was in fact damaged by Wagner to the full
extent of her devise. The court then valued Weekley’s devise based on a stipulation
Wagner executed in his capacity as personal representative of the Estate. How that
stipulation proves that Wagner’s inaction with respect to the equipment caused
$82,535.14 in damages to Weekley is not evident from the court’s findings of fact
and conclusions of law.
[¶30.] A possible reason the circuit court failed to analyze the evidence to
reach a damages valuation can be found in the court’s statement in its
memorandum decision that “[t]he issue to be determined in this case was the
amount of compensation to be awarded to the defendant for the breach of duty to
provide her with her devise.” Brownlee III, however, held that Wagner breached his
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duty to take possession of or preserve the equipment after Brownlee I. 2010 S.D.
13, ¶ 29, 778 N.W.2d 823, 831. We further recognized that while that breach
damaged Weekley, it did not necessarily damage her to the full extent of her devise.
Indeed, Wagner is only liable to Weekley for $82,535.14 if the equipment would
have sold for $82,535.14 or more a year after Wagner was appointed as the personal
representative. Looking at the court’s memorandum decision, findings of fact and
conclusions of law, there is no evidence cited on the value of the equipment.
Because the circuit court did not identify evidence to support its damages award,
the court failed to follow this Court’s directive from Brownlee III, and the case
should be reversed and remanded.
ZINTER, Justice (dissenting).
[¶31.] Weekley’s damage theory is that if “the construction equipment [had]
been timely collected and preserved there would have been sufficient sums to pay
Weekley her [entire] devise and pay the costs of administration and debts of the
estate.” There is no dispute that the only alleged delay occurred between November
2003 and September 2006. Had I participated5 in Weekley v. Prostrollo (Brownlee
III), 2010 S.D. 13, 778 N.W.2d 823, I would have joined the dissent. See id. ¶¶ 35-
49 (Jensen, Cir. J., dissenting in part) (concluding that the circuit court did not
clearly err in finding that Weekley failed to prove with reasonable certainty that
5. I recused myself in Brownlee III for a conflict unrelated to Wagner’s liability
for damages caused by his delay in collecting and selling the construction
equipment. The conflict does not exist in this appeal.
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she did not receive her entire unpaid devise as a result of Wagner’s delay in selling
the equipment). In my view, the circuit court’s original decision, which was
reviewed in Brownlee III, was correct. It was correct because Weekley introduced
no evidence from which the value of the equipment at the time she claimed it should
have been sold could have been determined. Indeed, her position at the first trial
was that she had no “duty to have to show what the value of the equipment was at
the time Mr. Wagner took over.” Unquestionably, as the party claiming damages
for negligence and breach of fiduciary duty, Weekley had the duty to prove her
theory of damages.
[¶32.] But if we are to follow Brownlee III, we must follow all of it, especially
Brownlee III’s mandate that on remand Weekley had the duty to prove damages
with reasonable certainty. This Court very clearly warned that “Wagner [was] not
liable for the entirety of Weekley’s lost devise and interest, but only the portion
attributable to his inactions. Accordingly, the matter [was] remanded for the circuit
court to determine with reasonable certainty Weekley’s damages consistent with
this opinion.” Id. ¶ 29 (majority opinion).
[¶33.] Notwithstanding this explicit mandate, on remand, Weekley identified
no evidence from which one could attribute the portion of the devise that was lost
due to Wagner’s inaction in collecting and selling the equipment from 2003 to 2006.
Instead, Weekley continued to take the position that she had no duty to prove her
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theory of damages.6 Weekley argued that Wagner v. Brownlee (Brownlee II), 2006
S.D. 38, 713 N.W.2d 592, and Brownlee III had “conclusively established” that
Weekley’s causally related damages were the full amount of the devise, and the only
reason for the remand was to calculate interest. But there is no language in
Brownlee III to support this argument. Had there been such language in Brownlee
III, there would have been no need for this Court’s remand and unequivocal
warning that Wagner was not liable for the entire amount of the devise, but only for
the portion that could be proven to be attributable to Wagner’s delay in collecting
and selling the equipment between 2003 and 2006.
[¶34.] In this appeal, Weekley continues with her argument that she had no
duty to prove causally related damages. Thus, she fails to even cite evidence from
the trial or remand hearing that could support a claim that the value of the
equipment declined by any amount between 2003 and 2006. Although this Court
relies on testimony from Foley and Wagner to support a diminution in value claim,
that testimony was not relied upon by either Weekley in her brief to this Court or
the circuit court in its findings of fact and conclusions of law following the hearing
on remand. That is most likely because Foley’s and Wagner’s testimony does not
establish that the failure to pay the entire amount of the unpaid devise was
attributable to a devaluation of the equipment occurring between 2003 and 2006.
6. In light of Weekley’s continuing legal position that she had no obligation to
prove the amount of her lost devise that was attributable to Wagner’s
inactions, I find no fault with the fact that Wagner has repeated much of “his
argument from Brownlee III in this appeal.” Cf. supra ¶ 14.
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[¶35.] In the first trial, Wagner did testify that Randy Brownlee offered
$120,000 in June 2003 to “settle everything,” which included the purchase of the
equipment. Foley also indicated that Randy made an offer of $140,000 in May 2003,
which would have been enough to pay Weekley’s devise. However, the record
reflects that at the time of those offers, the estate was also suing Randy for
attorney’s fees, compensation for his use of the equipment, interest, and a
substantial federal estate tax obligation Randy had failed to pay. And, neither
Foley nor Wagner was asked to separate the amount offered for the equipment from
the amount offered to settle all other claims against Randy. Therefore, Wagner’s
and Foley’s testimony did not purport to establish the amount by which the value of
the equipment declined between the time Weekley contended it should have been
sold in 2003 and the time it actually sold in 2006.7
[¶ 36.] Moreover, the question in this appeal is whether on remand from
Brownlee III, the circuit court’s findings now identify with reasonable certainty that
the equipment declined in value between 2003 and 2006 in an amount equal to or
exceeding Weekley’s unpaid devise. This Court finds in the affirmative, concluding
that the circuit court was not “clearly erroneous.” Supra ¶ 23. But the clearly
erroneous standard of review does not apply because the circuit court entered no
7. The Court notes that Wagner wrote a letter to Weekley’s attorney in June
2003, indicating that Randy Brownlee’s purchase of the equipment would be
sufficient “to pay Weekley.” Supra ¶ 20. Actually, the letter stated that if
Randy purchased the equipment there would be sufficient funds “to make
payment” to Weekley. The letter does not, however, indicate the amount of
that payment or to which of the various claims against Randy the payment
would be applied. The letter proves no decline in value of the equipment
occurring between November 2003 and September 2006.
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evidentiary “findings of fact” supporting that conclusion. The circuit court’s
material “findings” consist of nothing but conclusions of law, i.e., quotations from
Brownlee III.
[¶ 37.] The Court contends that the circuit court’s “findings” are sufficient
because they “echoed [Brownlee III] and other language quoted from [that
decision].” See supra note 4. The Court also indicates that the circuit court should
be affirmed because no retrial was ordered, and the evidence today’s majority
identifies (the Wagner and Foley evidence) together with the presumptions against
Wagner are “sufficient to determine Weekley’s damages.” See id. The Court is
incorrect.
[¶ 38.] First, as previously mentioned, the Wagner and Foley evidence was not
relied upon by the circuit court, and even if it was, it does not establish the amount
the equipment declined in value during the relevant three-year period. More
importantly, relying upon the predecessors to SDCL 15-6-52, this Court has long
held that “[w]hen issues of fact are triable by the court, the parties are entitled to a
finding of fact upon each material issue of ultimate fact properly presented by the
pleadings.” Ellens v. Lind, 65 S.D. 620, 277 N.W. 40, 42 (1937). But the circuit
court’s quotations from Brownlee III are insufficient as a matter of law to constitute
findings of fact. SDCL 15-6-52(a) requires that “[i]n all actions tried upon the facts
without a jury or with an advisory jury, the court shall . . . find the facts specially
and state separately its conclusions of law thereon.” Clearly, the circuit court’s
quotations of this Court’s conclusions in Brownlee III are not findings of historical
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fact on the material issue in the case; i.e., the amount by which the equipment
declined in value between 2003 and 2006.8
[¶39.] Because “the circuit court . . . [failed to] determine with reasonable
certainty Weekley’s damages consistent with” the remand requirement that
“Wagner [was] not liable for the entirety of Weekley’s lost devise and interest, but
only the portion attributable to his inactions,” Brownlee III, 2010 S.D. 13, ¶ 29, 778
N.W.2d at 831, I would reverse.9 Weekley erred as a matter of law in taking the
8. Considering this Court’s decision in Brownlee III together with Weekley’s
position that she had no obligation to prove the decline in value of the
equipment at trial or on remand, the circuit court cannot be faulted for
entering “findings of fact” on remand consisting of quotations from Brownlee
III. Cf. Justice Konenkamp’s dissent ¶¶ 29-30 (observing that the circuit
court “was still required to identify evidence to support how Wagner’s breach
with respect to the equipment damaged Weekley,” but there are no findings
citing evidence on the value of the equipment) (emphasis added). Although
Weekley had the burden of proof on this issue, she did not argue to the circuit
court that there was evidence from the trial or the remand hearing
establishing the value of the equipment at the time she claimed it should
have been sold. Indeed, Weekley fails to argue that such evidence exists in
her brief to this Court. Because of this failure and Weekley’s erroneous legal
position, the circuit court was provided no historical facts upon which it could
have entered evidentiary findings attributing a loss in value attributable to
the period between November 2003 and September 2006.
9. I do not join Justice Konenkamp’s view that this matter should be remanded
yet again for a third opportunity for Weekley to prove her claim. “It is well
established that a plaintiff is limited to only one opportunity to prove its
claim.” City of Danbury v. Dana Inv. Corp./Lot No. GO8065, 257 Conn. 48,
57-58, 776 A.2d 438, 443 (2001) (noting that a further remand is not
warranted where, following one hearing on remand, the plaintiff was given
the opportunity to present evidence on its claim but failed to do so). We
follow the same rule. See State v. Mollman, 2003 S.D. 150, ¶ 12, 674 N.W.2d
22, 27 (prohibiting the party with the burden of proof from having another
“bite at the apple” because he was given ample opportunity to prove his claim
but failed to do so); State v. Aspen, 412 N.W.2d 881, 884 (S.D. 1987)
(observing that having “failed in its first evidentiary showing,” the party with
(continued…)
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position at trial and on remand that she had no duty to prove her theory of damages
when suing for negligence and breach of fiduciary duty. Even though Brownlee III
held that Weekley suffered some damages in fact, she did not even attempt to fulfill
her duty of proving the amount of those damages with reasonable certainty by
establishing that the failure to pay her entire unpaid devise was caused by a decline
in the value of the equipment occurring between November 2003 and September
2006.10 I therefore dissent.
_________________________
(…continued)
the burden of proof “must be prevented from ameliorating its weak and
deficient original evidentiary proof to now” be entitled to another hearing to
prove its claim).
10. In light of Weekley’s legal position that she had no duty to prove her theory of
damages, one need not review the factual evidence supporting the circuit
court’s original decision. However, it is noteworthy that if one reviews all of
the evidence in the original trial record, including the testimony of Jerry
Prostrollo concerning the value of the equipment around the time of Walter
Brownlee’s death, it is more likely that most of the devaluation of the
equipment occurred during the six years between 1997 and 2003 than the
three years between 2003 and 2006.
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