#25891-a-DG

2012 S.D. 10

                        IN 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
#25891

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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