#26177-aff in pt, rev in pt & rem-JKK

2013 S.D. 15

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                        ****
RICHARD BAILEY, TRUSTEE OF
THE CURLEY AND ROSE HAISCH
CHARITABLE REMAINDER TRUST
DATED DECEMBER 7, 2002, FOR THE
TRUST AND ITS CHARITABLE
BENEFICIARIES and RICHARD
BAILEY and VICTOR SCHMITZ,
CO-PERSONAL REPRESENTATIVES
OF THE ESTATE OF ROSE HAISCH,
DECEASED, and of HOLLIS HAISCH,
a/k/a CURLEY HAISCH, DECEASED,                 Plaintiffs and Appellees,

      v.

RAYMOND J. DULING a/k/a JOE
DULING, LYNNE A. DULING, PRAIRIE
WINDS REALTY, MULEHEAD RANCH,
and DULING FINANCIAL SERVICES,                 Defendants and Appellants.


                                        ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                        ****

                      THE HONORABLE JOHN L. BROWN
                                 Judge

                                        ****



                                               ARGUED ON AUGUST 28, 2012

                                               OPINION FILED 02/06/13
MURRAY OGBORN
THOMAS NEVILLE of
Ogborn Mihm, LLP
Denver, Colorado            Attorneys for plaintiffs and
                            appellees Richard Bailey and
                            Victor Schmitz Co-Personal
                            Representatives of the Estate of
                            Rose Haisch, deceased, and of
                            Hollis Haisch, a/k/a Curley
                            Haisch, deceased.

     and

JOHN C. QUAINTANCE of
Sioux Falls, South Dakota   Attorney for plaintiff
                            and appellee Richard Bailey,
                            Trustee of the Curley and Rose
                            Haisch Charitable Remainder
                            Trust dated December 7, 2002,
                            for the Trust and its Charitable
                            Beneficiaries.

MARK V. MEIERHENRY
WILLIAM E. BLEWETT of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota   Attorneys for defendants
                            and appellants.
#26177

KONENKAMP, Justice

[¶1.]        Plaintiffs brought suit against defendants for negligence,

misrepresentation, and breach of fiduciary duties. A jury awarded plaintiffs

$1,568,200, including punitive damages. Defendants appeal.

                                    Background

[¶2.]        Lying along the Missouri river near Bonesteel, South Dakota, the

Mulehead Ranch was reputed, at one time, to be one of the largest ranches in South

Dakota. Hollis “Curley” Haisch grew up on the Mulehead. In the 1950s, he and his

wife, Rose, bought the ranch from Curley’s father. In Curley and Rose’s care, the

ranch flourished, allowing them to build a substantial estate. Although they had no

children to whom they could pass on their wealth, they were generous to their

extended family members and the surrounding communities. Their wills, executed

in the 1990s, reflected a desire to leave a substantial charitable legacy.

[¶3.]        In 1993, Raymond Joseph (Joe) Duling became the Haisches’ financial

advisor. At the time, Joe Duling owned and operated Duling Financial Services in

Gregory. A realtor and broker, he also owned Prairie Winds Realty with his wife,

Lynne. Joe Duling’s family and the Haisches were friends. They often attended

gatherings together. Joe spoke on Curley’s behalf at various charitable functions.

In a codicil to his will, Curley gave an option to purchase the Mulehead to Joe’s

father, Edward Duling (and Edward’s heirs). According to Joe, Curley wanted to

control who could and would own the ranch. In fact, Curley hired Attorney Rick

Johnson to draft another codicil to his will declaring that neither Jack Gunvordahl

nor any of his heirs could purchase it. Curley held a grudge against Jack from the


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#26177

time when Curley was on the Whetstone Township Board of Supervisors, and the

township was sued over road maintenance. See Willoughby v. Grim, 1998 S.D. 68,

581 N.W.2d 165.

[¶4.]        In the 1990s, Rose’s health began to decline. She was diagnosed with

uterine cancer and suffered from diabetes and macular degeneration. Curley also

started to slow down; he was no longer active on the ranch. Their niece, Margaret

Bailey, and her husband, Rich, became their caretakers. Tom Fernau managed the

ranch as Curley’s hired hand. By 2000, Curley and Rose decided to move into an

assisted living facility, the Haisch Haus, in Bonesteel. Joe Duling remained their

financial advisor, counseling them on their wills and gifts. Joe also carried out

Curley’s decisions to lend money to friends and relatives.

[¶5.]        When Curley was 90 years old, he decided to sell the ranch. In May

2002, he signed a listing agreement with Joe Duling, offering the property for sale

at $4.8 million. At that time, the ranch comprised some 4,320 acres of pasture land,

35 acres of farmland, 350 acres of irrigated land, and 20 acres of producing gravel

pit. Shortly after the listing, Curley decided to retain a life estate in the gravel pit,

and reduced the listing price to $4 million.

[¶6.]        Joe Duling received the first offer to purchase the property on July 24,

2002 for $3 million, including the gravel pit. Joe presented the offer to Curley, Rich

Bailey, and Tom Fernau. Curley declined the offer and countered with $4 million.

It was rejected. In September 2002, Joe was in Curley’s room at the Haisch Haus,

with Rich and Tom. Joe verbally offered Curley $1 million for the Ranch, plus

$600,000 for the chattels, with an option to purchase the gravel pit for $1 million


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#26177

after Curley’s death. He told Curley that his offer represented all he and Lynne

could afford. According to Joe, Curley decided to accept Joe’s offer because Curley

wanted Joe and his family to have the ranch. The offer was not reduced to writing.

Additional third-party offers were received over the next several months.

[¶7.]         In September 2002, Kelly Bailey, who worked for Curley as a teenager,

offered $2.5 million for the ranch and chattels, excluding the gravel pit. Joe

presented the offer to Curley, Rich, and Tom. Curley rejected it. According to Joe,

Curley would not accept the offer because Curley believed Jack Gunvordahl was

behind Kelly’s financing. Curley rejected another offer in October 2002 for $2.5

million, including the gravel pit.

[¶8.]         At some point after listing the ranch for sale, Joe, in his capacity as

financial advisor, suggested to Curley that he and Rose form a Charitable

Remainder Trust (CRT or Trust), into which the ranch and chattels could be gifted. 1




1.      Attorney Pat Goetzinger, a trust law expert, testified:

              The charitable remainder trust is a specialized trust. And in a
              charitable remainder trust what we’re doing is tapping into
              federal tax law that allows us to be charitable, to encourage
              philanthropy, that encourages us to engage in philanthropic
              planning in return for receiving certain tax breaks, income tax
              breaks, gift tax breaks, federal estate tax breaks as a result of
              forming the trust.
              ...
              And if it’s a properly formed charitable remainder trust, one
              that qualifies as a tax exempt trust under federal law, good
              things happen. Good things happen. And one good thing that
              happens is that when we make a transfer of an asset to that
              type of a trust, a tax exempt qualified charitable remainder
              trust, we get a [charitable deduction.] And a charitable
              deduction is a good thing because we can use that charitable
                                                                    (continued . . .)
                                           -3-
#26177

Joe explained that he had learned about CRTs during a South Dakota Community

Foundation (SDCF) seminar and believed it would be beneficial for the Haisches.

Curley agreed.

[¶9.]        Joe hired Curley’s attorney, Rick Johnson, to draft the CRT for Curley

and Rose. The CRT would be called The Curley and Rose Haisch Charitable




__________________
(. . . continued)
               deduction to offset our other income that we would otherwise
               pay income tax on. So that’s a good thing.

             The other thing that happens when we transfer our assets to
             this trust is that as a result of transferring it to a charitable
             remainder trust, and the trust being a tax exempt entity, if the
             trust sells the assets in compliance with the laws set forth under
             the IRS tax code, then the sale proceeds of that sale will incur no
             income tax. It will be an income-tax-free sale; no income tax.
             ...
             The next component of the CRT, if I may just step up, is upon
             the sale, sale proceeds come into the CRT. So money comes back
             in, real property goes out to the buyer, money comes back in.
             It’s not subject to tax, don’t have to pay tax so I’ve got a hundred
             percent of the sale proceeds available inside this trust to be used
             according to the trust terms.

             In a standard CRT a requirement of federal law is that you must
             have a non-charitable beneficiary be the income recipient of the
             income stream that is required to be part of these trust
             instruments. And the policy is the federal government wants
             these sale proceeds to be kicked out, put back into the stream of
             commerce, put back into somebody’s pocket so they have to pay
             tax on it and then they can then turn around and spend it,
             consume it, use it, save it, build the next great fortune. But
             that’s the trade-off. That’s the trade-off.
             ...
             The earnings off the trust principal will be subject to income tax.
             And it’s those earnings, a percentage of them, however the donor
             wants to direct it, but those earnings need to be kicked out and
             tax needs to be paid on them.

                                          -4-
#26177

Remainder Trust dated December 7, 2002. Attorney Johnson asked two CPAs to

review the draft, one being Tim Dean. Dean told Rick that there were potential

defects. On November 18, 2002, Joe contacted the SDCF and spoke with Stephanie

Judson, the associate director. Joe asked her if the SDCF would look at the draft.

Judson agreed, and Joe sent it to her. Judson later testified that she called Joe the

same day and told him she found problems with the Trust. Joe did not recall the

discussion. Nonetheless, Judson sent the Trust draft to Tom Adam, counsel for the

SDCF, highlighting the concerns she had. At some point thereafter, Adam, Judson,

and Johnson conferred by telephone about the Trust. On December 9, 2002, Adam

sent Judson a letter outlining the defects in the Trust.

[¶10.]       On December 7, 2002, in Attorney Johnson’s office, with Johnson,

another firm attorney, and Joe present, Curley and Rose executed the Trust,

unchanged from its original draft. The Ranch was then transferred to the Trust,

and Rich Bailey was named the Trustee. On December 15, 2002, Rich, as the

Trustee, signed a listing agreement with Joe, making Joe the listing agent for the

Trust. Then, on December 31, 2002, the Trustee signed a contract for sale and an

option agreement, selling the ranch and granting an option to purchase the gravel

pit to Joe and Lynne Duling. The agreement contained a provision declaring that

Joe “fully explained to the Trustee and the Haischs [sic] the potential conflict of

interest” he had in purchasing the property. And it was agreed that “any conflict”

arising “by virtue of Duling’s status as a sales broker on this property” was “waived”

and “both the Trustee and the Haischs [sic] believe[d] that this sale price [was] the

best offer that they [could] reasonably expect to receive in the reasonably near


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#26177

future for [the] property.” Before executing the contract for sale and option

agreement, Joe and Lynne had already taken over control and management of the

Mulehead. Closing was on March 3, 2003.

[¶11.]        On April 11, 2003, Joe became the Trust’s financial advisor. Also in

the spring, Vic Schmitz became the Trust’s CPA, and filed a tax return for 2002. At

some point thereafter, he noticed defects in the Trust and informed the Trustee. No

changes were made. In 2005, Schmitz involved the SDCF and attorney Pat

Goetzinger. Together, with the assistance of another CPA (Michael Miranda), they

identified multiple defects, namely the lack of a non-charitable beneficiary,

distributions for a fixed amount rather than a percentage, and Curley’s retention of

a life estate in the gravel pit.

[¶12.]        In 2006, the Trustee retained Attorney Jack Gunvordahl of Burke to

bring suit against Joe and Lynne, Prairie Winds Realty, Duling Financial Services,

and the Mulehead Ranch (defendants) on behalf of the Trust and on behalf of Rose

and Curley (plaintiffs). 2 The complaint alleged negligence, negligent

misrepresentation, breach of fiduciary duties, fraud and deceit, civil conspiracy, and

unjust enrichment. Defendants moved for summary judgment, relying on the

waiver clause in the contract for sale. At first, the circuit court granted summary

judgment in part, but after plaintiffs’ first motion for reconsideration and petitions

for intermediate appeals were denied, the court granted plaintiffs’ second motion for

reconsideration in January 2011.




2.       On March 27, 2007, Rose died. Curley died on January 15, 2009.

                                          -6-
#26177

[¶13.]       Before trial, plaintiffs learned that defendants had advertised to

auction the Mulehead and its gravel pit. Joe and Lynne had not yet exercised their

right under the option agreement to purchase the gravel pit. Plaintiffs’ counsel sent

defendants a cease and desist letter on January 21, 2011. Defendants did not

respond. Attorneys Murray Ogborn and Darla J. Gabbitas prepared and signed a

Request for Temporary Restraining Order and contacted Circuit Judge John Brown,

to schedule a meeting the next day. In the communication, Judge Brown became

aware the meeting was for a temporary restraining order (TRO), but did not know

the substance of plaintiffs’ request. Since he was not going to be in Pierre the next

day, February 4, 2011, Judge Brown offered to meet in Rapid City, where he had

another engagement.

[¶14.]       The meeting took place in a conference room at Attorney Pat

Goetzinger’s law firm, though Mr. Goetzinger did not meet with the judge. Rather,

Attorney Gabbitas traveled from Colorado for the meeting, presented the judge with

the TRO request, and explained the reasons for seeking it. Ms. Gabbitas then left

the room and Judge Brown reviewed the documents. Plaintiffs averred that notice

was given to defendants by email on the same day, February 4. Perhaps to justify

the lack of adequate notice to opposing counsel, the TRO request alleged that

“Plaintiffs were not notified of this auction by the Dulings or counsel.” No record

was made of the meeting. After Judge Brown indicated that parts of the proposed

order were unacceptable, it was amended, and he granted the TRO, prohibiting the

auction sale. He ordered that a hearing for a permanent injunction be held within

ten days. But the parties later settled the issue and the TRO was dismissed. On


                                          -7-
#26177

February 15, 2011, defendants sold the Mulehead and the gravel pit at auction to

Kelly Bailey for $4.6 million.

[¶15.]         Affronted by Judge Brown’s ex parte meeting with plaintiffs’ counsel at

the law firm in Rapid City, defendants moved the judge to disqualify himself from

further proceedings and to vacate his previous orders. Defendants argued that

Judge Brown initiated and invited the ex parte communication, to defendants’

prejudice. Plaintiffs responded that the ex parte communication was warranted

under the law, that TROs are characteristically ex parte, and that defendants failed

to establish prejudice. After a hearing, Judge Brown declined to disqualify himself.

We denied defendants’ subsequent petition for an intermediate appeal.

[¶16.]         In preparation for trial, defendants moved in limine to prevent

plaintiffs from presenting evidence on what damages plaintiffs might suffer if the

IRS were to take action against the Estate and Trust. The circuit court questioned

the speculative nature of these damages but decided to allow the evidence

nonetheless.

[¶17.]         A jury trial was held in August 2011. Multiple witnesses testified,

including several experts who testified on CRTs, as well as the duties of real estate

and financial advisors. Plaintiffs alleged that Joe exerted undue influence over

Curley and Rose to gain ownership of the Mulehead. Plaintiffs further claimed that

Joe, as the couple's financial advisor and real estate agent, breached his fiduciary

duties. Moreover, plaintiffs argued that while Duling did not draft the Trust, he

was aware it had defects and was negligent and breached his duties to the Estate

and Trust. Plaintiffs asserted that the Trust and Estate were damaged by the (1)


                                           -8-
#26177

unwarranted commission paid to Joe, (2) the value that would have gone to the

Trust had Joe paid fair market value for the ranch, and (3) the tax consequences the

Estate and Trust have incurred and will incur.

[¶18.]       Defendants responded that the sale of the Mulehead to Joe and Lynne

was what Curley and Rose wanted, and that, as a whole, the price they paid was

fair. While Joe acknowledged he improperly charged and retained a commission on

the sale of the option (the gravel pit), he did not believe he breached any fiduciary

duties to Curley, Rose, or the Trust.

[¶19.]       At the close of the case, defendants requested a jury instruction on the

limitation periods applicable to IRS claims for unpaid taxes from estates or trusts.

Defendants thought the jury should be instructed that there is a three-year, six-

year, or an unlimited limitations period depending on the circumstances. The court

denied the instruction. Defendants also requested an instruction on the doctrine of

quasi-estoppel. Defendants argued that plaintiffs should be estopped from

asserting that the Trust was defective because the Trust’s CPA and Trustee took a

position with the IRS from 2003 through 2011 that the Trust was valid. The court

found the doctrine inapplicable.

[¶20.]       In rendering its verdict, the jury completed a form finding that Joe was

professionally negligent both as a real estate broker to the Estate and as a financial

advisor to the Trust. It further found that Joe breached his fiduciary duties to the

Haisches and the Trust, and negligently and fraudulently misrepresented facts to

the Haisches, and negligently misrepresented facts to Rich Bailey, the Trustee, but

did not fraudulently misrepresent facts to him. Lynne, doing business as Prairie


                                          -9-
#26177

Winds Realty, was found vicariously liable for Joe’s negligence. The jury found that

Joe and Lynne Duling were unjustly enriched as a result of the sale of the ranch to

them, and that Joe’s wrongful acts and omissions caused harm to the Estate and

Trust. The jury awarded $500,000 to the Trust, plus $568,200 in exemplary

damages, and $500,000 to the Estate.

[¶21.]         Defendants appeal asserting (1) Judge Brown was required to

disqualify himself because of his improper ex parte meeting with plaintiffs’ counsel;

(2) it was error to refuse defendants’ proposed instruction on the defense of quasi-

estoppel; (3) evidence of speculative tax damages was admitted in error and the

court’s refusal to give defendants’ proposed tax damages instruction was erroneous;

(4) the court erred when it held that Joe owed a duty to the Trust before its

creation; (5) the court erred when it held that SDCL 15-2-14.6 and SDCL 15-2-14.7

did not apply; and (6) the court abused its discretion when it admitted evidence of

previous offers on the ranch. 3

               1. Judicial Disqualification

[¶22.]         “A fair trial before a fair judge is indispensable to due process.” Marko

v. Marko, 2012 S.D. 54, ¶ 19, 816 N.W.2d 820, 826 (citing Caperton v. A.T. Massey

Coal Co., Inc., 556 U.S. 868, 876, 129 S. Ct. 2252, 2259, 173 L. Ed. 2d 1208 (2009)

(citation omitted)). Defendants contend that they were denied due process when



3.       A court’s decision to refuse a requested jury instruction is reviewed for an
         abuse of discretion. State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d 285, 288
         (citation omitted). Evidentiary rulings are reviewed for an abuse of
         discretion. Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62
         (citation omitted). Rulings on summary judgment are reviewed de novo.
         Horne v. Crozier, 1997 S.D. 65, ¶ 5, 565 N.W.2d 50, 52.

                                           -10-
#26177

Judge Brown met ex parte with opposing counsel and then declined to disqualify

himself. We have often held that recusal decisions are discretionary, but while

discretion enters into the consideration, discretion forms only a part of the decision.

“A judge exercises discretion in deciding whether the facts and circumstances fit

within the disqualifying criteria.” Id. ¶ 18. But once a judge answers the question

affirmatively, discretion ends and the judge must step aside. Id. (citations omitted).

By rule, judges having knowledge of a ground for self-disqualification must

disqualify themselves on their own motion under SDCL 15-12-37, regardless of a

request to do so.

[¶23.]       Defendants maintain that Judge Brown initiated or invited the ex

parte contact when he suggested a meeting in Rapid City at a law firm affiliated in

this case with plaintiffs’ counsel. No prejudice need be shown and recusal is

mandatory, defendants argue, because Judge Brown invited or initiated the ex

parte communication. See O’Connor v. Leapley, 488 N.W.2d 421, 423 (S.D. 1992).

Defendants further contend that plaintiffs and Judge Brown could have easily given

defendants notice of the meeting. It had been scheduled the day before and

Attorney Gabbitas had time to fly to Rapid City from Colorado. Even if prejudice is

not presumed, defendants contend, prejudice exists under the facts of this case, and

the judge abused his discretion when he failed to disqualify himself. Judge Brown

conceded that his TRO “may have granted some tactical advantage in [the]

negotiation process” for the ultimate sale of the ranch.

[¶24.]       Canon 3B(7) on ex parte communications provides in part:

             A judge shall not initiate, permit, or consider ex parte
             communications, or consider other communications made to the

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#26177

               judge outside the presence of the parties concerning a pending or
               impending proceeding except that:
               ...
               (e)   A judge may initiate or consider any ex parte
                     communications when expressly authorized by law to do
                     so[.]

SDCL ch. 16-2, App. Canon 3B(7) (emphasis added). In O’Connor, we quoted the

Nebraska Supreme Court for the proposition that prejudice is presumed whenever a

judge initiates or invites an ex parte communication. 488 N.W.2d at 423 (citing

Nebraska v. Barker, 420 N.W.2d 695, 699 (Neb. 1988)); see also State v. Thorsby,

2008 S.D. 100, ¶ 13, 757 N.W.2d 300, 304. Barker involved an improper and

unauthorized ex parte communication between the sentencing judge and the

victim’s family. 420 N.W.2d at 699.

[¶25.]         Here, in response to a request for a meeting to petition for a TRO,

Judge Brown, because he would be in Rapid City, suggested that plaintiffs’ counsel

meet with him there. South Dakota law expressly authorizes the granting of an ex

parte TRO. 4 SDCL 15-6-65(b). While there may be instances when prejudice occurs



4.       SDCL 15-6-65(b) provides, in part:

               Where no provision is made by statute, a temporary restraining
               order may be granted without written or oral notice to the
               adverse party or his attorney only if:

               (1)   It clearly appears from specific facts shown by affidavit or
                     by the verified complaint that immediate and irreparable
                     injury, loss, or damage will result to the applicant before
                     the adverse party or his attorney can be heard in
                     opposition; and
               (2)   The applicant’s attorney certifies to the court in writing
                     the efforts, if any, which have been made to give the
                     notice or the reasons supporting his claim that notice
                     should not be required.

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#26177

because a judge invites or initiates an ex parte communication, the circumstances

here do not suggest that Judge Brown initiated the contact. See Cook v. State, 36

P.3d 710, 727-28 (Alaska Ct. App. 2001); State ex rel. Irby v. Israel, 302 N.W.2d 517,

524-25 (Wis. Ct. App. 1981); see also United States v. Hackett, 638 F.2d 1179, 1188

(9th Cir. 1980). Defendants argue that meeting outside his circuit with plaintiffs’

counsel at a law firm affiliated with counsel for plaintiffs shows all the more how

egregious his ex parte contact was. Maybe a more neutral location might have been

the county courthouse in Rapid City, yet considering the conditions — his review of

the documents alone in the law firm’s conference room — the location seems

substantively insignificant. To make disqualification imperative because a judge

suggested a meeting in the community where the judge would be at the time of the

sought after TRO, would be extreme and would endanger the protections SDCL 15-

6-65(b) affords to parties claiming immediate and irreparable harm.

[¶26.]       Defendants maintain, however, that the ex parte communication was

unwarranted because plaintiffs’ compliance with SDCL 15-6-65(b) was wholly

inadequate. In particular, defendants condemn plaintiffs’ TRO request, in which

plaintiffs failed to inform Judge Brown of the reasons notice to defendants should

not be required. Indeed, our statute specifically requires attorneys to certify “to the

court in writing the efforts, if any, which have been made to give the notice or the

reasons supporting [the] claim that notice should not be required.” SDCL 15-6-

65(b)(2). That was not done. Furthermore, plaintiffs were required to submit a

written undertaking. SDCL 15-6-65(c). That was not done, either. Plaintiffs

simply failed to comply with the statutory requirements for a TRO. We find it


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#26177

especially troubling that plaintiffs’ counsel, knowing that defendants were

represented, made no effort to give proper notice. This case had been ongoing for

years. Plaintiffs identify no obstacles that would have prevented notice. They

waited until the day of the meeting with the judge and then emailed defendants a

copy of the TRO request, when plaintiffs knew the date and time of the meeting at

least the day before. This was all the more problematic when there was no effort

made at the time of the meeting with Judge Brown even to telephone defendants’

counsel.

[¶27.]       Nevertheless, the flaws in the process and insufficiency of notice have

little bearing on our review of whether Judge Brown was required to disqualify

himself. Even when a TRO is improvidently granted, judicial error will not perforce

become an ethics violation. Our inquiry here is not whether Judge Brown erred in

granting the TRO, but whether an improper ex parte communication occurred. In

hindsight, perhaps these circumstances might have suggested more circumspection

on Judge Brown’s part in asking why opposing counsel should not have been

participating. But the fault here lies with plaintiffs’ attorneys, Ogborn and

Gabbitas. Their less than conscientious (if not calculating) performance had far

more to do with any appearance of impropriety than Judge Brown’s actions.

Nothing he did amounted to a clear violation of judicial ethics requiring recusal.

[¶28.]       As to any personal bias or prejudice, Judge Brown indicated on the

record at the hearing requesting his disqualification that he did not harbor any bias

or prejudice against defendants. See Marko, 2012 S.D. 54, ¶ 24, 816 N.W.2d at 827-

28; see Code of Judicial Conduct, SDCL ch. 16-2, App., Canon 3E(1)(a). And, from


                                         -14-
#26177

our review of the record, we detect no “objective evidence of personal bias.” Marko,

2012 S.D. 54, ¶ 24, 816 N.W.2d at 827. The TRO information given to Judge Brown

related, not to the substance of the case, but to whether defendants should be

temporarily prevented from selling the ranch. In the end, this case was tried to a

jury, and the jurors were not exposed to information imparted at the ex parte

meeting that could have created a risk of improper influence. See Cook, 36 P.3d at

728. Thus, defendants have established neither bias nor prejudice. Judge Brown’s

decision to decline recusal is affirmed.

              2. Quasi-Estoppel

[¶29.]        At trial, defendants proposed a jury instruction on the doctrine of

quasi-estoppel. It provided that the doctrine “prohibits a party from asserting, to

another’s disadvantage, a claim inconsistent with a position previously taken in

front of the Internal Revenue Service.” Defendants asserted that Rich Bailey, as

the Trustee, and Vic Schmitz as the Trust’s CPA, prepared, signed, and filed tax

returns with the IRS for the years 2003 through 2011, swearing that the Trust was

a valid CRT, when, since at least 2006, they knew that the Trust was potentially

defective. Defendants contend that while gaining the advantageous tax treatment

of a valid Trust, but attacking its validity in court and asserting its potential future

tax burdens, plaintiffs took inconsistent positions to defendants’ disadvantage. The

court denied the instruction, and defendants now contend that they were

prejudiced.

[¶30.]        Plaintiffs respond that the doctrine is inapplicable because defendants

were not parties to the transactions they claim gave rise to the defense. Plaintiffs


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cite several cases for the proposition that quasi-estoppel cannot apply unless there

is mutuality of the parties. See Warner Indep. Sch. Dist. v. Brown Cnty. Bd. of Ed.,

85 S.D. 161, 166, 179 N.W.2d 6, 8 (1970); see also Neiman-Marcus Grp., Inc. v.

Dworkin, 919 F.2d 368, 372 (5th Cir. 1990); Whitacre P’ship v. Boisignia, Inc., 591

S.E.2d 870, 892-93 (N.C. 2004). Plaintiffs further argue that defendants played an

active role in suggesting the creation of the Trust, were advised it was defective,

and took no steps to correct the problems. Thus, according to plaintiffs, defendants

are not entitled to assert the defense.

[¶31.]       Quasi-estoppel is an equitable remedy, applicable when a party

maintains a position inconsistent with a position previously acquiesced in, or of

which the party accepted a benefit, and these inconsistent positions are to another’s

disadvantage. Fed. Land Bank v. Houck, 68 S.D. 449, 460, 4 N.W.2d 213, 218-19

(1942) (quoting 31 C.J.S. Estoppel § 107). The doctrine “has its basis in election,

ratification, affirmance, acquiescence, or acceptance of the benefits[.]” Id. Intended

to prevent parties from benefiting by taking two clearly inconsistent positions to

avoid certain obligations or effects, the doctrine is sometimes used interchangeably

with judicial and equitable estoppel, but it is more closely akin to judicial estoppel.

See, e.g., Am. Mfrs. Mut. Ins. Co. v. Payton Lane Nursing Home, Inc., 704 F. Supp.

2d 177, 193 (E.D. N.Y. 2010) (discussing judicial estoppel and stating that quasi-

proceedings are equivalent, i.e., the IRS); see also Long v. Turner, 134 F.3d 312, 318

(5th Cir. 1998). For purposes of our analysis, we borrow the principles of judicial

estoppel, since it is so similar to, and perhaps analytically indistinguishable from,

quasi-estoppel. Regardless of its pedigree, quasi-estoppel is an equitable doctrine,


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and therefore, must be given a reasonable interpretation and applied to promote

equity. Mahoney–Buntzman v. Buntzman, 909 N.E.2d 62, 66 (N.Y. 2009).

[¶32.]         Although plaintiffs assert that privity between the parties is lacking

here and there must be privity for the doctrine to apply, this view has not been

uniformly adopted. “A thorough review of judicial estoppel cases from other

jurisdictions reveals that three principal factors are considered by most courts in

applying the doctrine: prior success, privity, and reliance or prejudice. However,

even as far as these factors are concerned, the courts appear to be hopelessly split.” 5

Indeed, South Dakota has never formulated the appropriate test to be applied when

quasi-estoppel is raised. Yet “[a]lmost all courts recognize the distinct public policy

objectives of the different estoppel doctrines and hold that privity of the parties,

reliance, and prejudice, generally recognized elements of equitable estoppel, are

inapplicable to the doctrine of judicial estoppel.” 6

[¶33.]         The “only clear ‘majority’ rule requires that a party’s prior inconsistent

assertion be judicially adopted before judicial estoppel can be successfully

invoked.” 7



5.       Michael D. Moberly & Laura L. Farley, Blowing Hot and Cold on the Frozen
         Tundra: A Review of Alaska’s Quasi-Estoppel Doctrine, 15 Alaska L. Rev. 281,
         297 (1998).

6.       Eugene R. Anderson & Nadia V. Holober, Preventing Inconsistencies in
         Litigation with a Spotlight on Insurance Coverage Litigation: The Doctrines of
         Judicial Estoppel, Equitable Estoppel, Quasi-Estoppel, Collateral Estoppel,
         “Mend the Hold,” “Fraud on the Court” and Judicial and Evidentiary
         Admissions, 4 Conn. Ins. L.J. 589, 632-33 (1997-1998).

7.       Blowing Hot and Cold, supra note 5, at 297.

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Sometimes called the “prior success rule,” the doctrine applies to parties who have

unequivocally and successfully asserted a position in a prior proceeding; thus, they

are estopped from asserting an inconsistent position in a subsequent proceeding.

See Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982) (dealing with

judicial estoppel). “Most circuits have refused to apply the doctrine of judicial

estoppel unless the inconsistent assertion in the subsequent litigation was adopted

in some manner by the court in the prior litigation.” Stevens Tech. Servs., Inc. v. SS

Brooklyn, 885 F.2d 584, 588 (9th Cir. 1989) (citations omitted). See also Wilcox v.

Vermeulen, 2010 S.D. 29, ¶ 10, 781 N.W.2d 464, 468 (citation omitted) (judicial

estoppel requires that the “earlier position was judicially accepted”). On the

question of prior success, the problem with defendants’ argument is that there was

no resolution from the IRS on whether the Trust was valid. Plaintiffs filed annual

tax returns for the Trust, but plaintiffs’ experts testified that the Trust was

defective, would have to be amended, and will incur adverse tax consequences as a

result. There was no conclusive evidence that plaintiffs gained an advantage by

filing annual returns based on the supposition that the Trust was valid.

Furthermore, defendants’ proposed instruction stated that the doctrine applies

when a party has asserted or “taken [an inconsistent] position.” This proposed

instruction was incomplete. For the rule to apply, the “[p]rior success is measured .

. . in terms of . . . whether a [tribunal or agency] adopted the party’s original

assertion.” 8 Merely advancing an earlier inconsistent position is not enough. There

had to have been some showing that the IRS adopted the validity of the Trust in


8.    Blowing Hot and Cold, supra note 5, at 297.

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receiving the annual returns. Therefore, equity does not demand the application of

quasi-estoppel in this case.

             3. Tax Damages and Instruction

[¶34.]       Defendants argue that the court abused its discretion when it admitted

evidence related to the tax consequences plaintiffs might suffer as a result of the

defects in the Trust. In defendants’ view, the tax damages sought by plaintiffs were

speculative, contingent, and uncertain because the IRS had not taken action against

the Estate or Trust, never informed the Estate or Trust that deficiencies existed,

and never opined that the Trust was defective. Plaintiffs, on the other hand, argue

that they have already suffered certain tax damages as a result of the defective

Trust. Moreover, they rely on testimony from their tax experts that the Trust will

be rescinded at some point in the future, which could expose the Trust and Estate to

adverse tax consequences.

[¶35.]       Once the fact of damages has been established, uncertainty over the

amount of damages is not fatal to recovery. Weekley v. Prostrollo, 2010 S.D. 13, ¶

24, 778 N.W.2d 823, 830. Damages are speculative, not when the amount is

uncertain, but when the fact of damages is uncertain. Id. Here, plaintiffs have

established the fact they have been damaged, and the amount, but only as it relates

to some tax consequences. Plaintiffs presented evidence that the Estate filed an

amended return and paid $35,000 in back income taxes because the Trust was

defective. Witnesses also testified that as a result of the defective Trust, plaintiffs

have incurred $29,000 in accounting fees and $53,600 in legal fees to correct the

errors. One expert testified that the defective Trust caused plaintiffs to lose the


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benefit of charitable contribution deductions, totaling $121,000. These amounts

were not speculative, contingent, or uncertain.

[¶36.]         On the other hand, the tax consequences plaintiffs might face if the

Trust were rescinded are speculative and contingent. Plaintiffs’ witnesses testified

about what the IRS might do if the IRS were to take action against the Estate and

Trust. They also said the IRS might take no action, meaning the Estate and Trust

would face no tax consequences. Any award rooted in what the IRS might assess if

the Trust is rescinded is a prospective damages award, based on future events that

may or may not occur. It is not like future unknown medical expenses in a personal

injury action, in which one has the fact the plaintiff is injured. Here, the fact of

damages (injury) is predicated on a hypothetical event, IRS action. The IRS might

never assess arrearages, penalties, or impose other consequences as a result of the

defective Trust, and therefore, plaintiffs will not be harmed. Due to the speculative,

contingent, and uncertain nature of these damages, the court should have excluded

this evidence.

[¶37.]         As to potential future tax consequences, defendants requested an

instruction on the controlling limitation periods for when the IRS may seek money

from plaintiffs in connection with defects in the Trust. Defendants claim their

proposed instruction is a valid statement of the law. 9 The applicable limitation



9.       The proposed instruction provided: “The Internal Revenue Service must
         assess a tax or attempt to collect unpaid taxes and penalties within three
         years after a return is filed. In cases of fraudulent or criminal conduct by a
         taxpayer, the Internal Revenue Service may collect unpaid taxes within six
         years. These limitation periods begin to run the day after the taxpayer files a
         return.” In addition, during settlement of instructions, defendants conceded
                                                                      (continued . . .)
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periods could have precluded some or all of plaintiffs’ future tax consequences.

Without an instruction on these limitation periods the jury could have concluded

that plaintiffs’ exposure to future losses would be indefinite. Plaintiffs’ own experts

could not agree on when the applicable limitation periods expired. Ordinarily,

statutes of limitation questions are for juries to resolve. One Star v. Sisters of St.

Francis, Denver, Colo., 2008 S.D. 55, ¶ 12, 752 N.W.2d 668, 675 (citations omitted).

The circuit court erred in failing to give a proper instruction on the statutes of

limitation applicable to plaintiffs’ claims for future tax consequences.

             4. Duty to the Trust

[¶38.]       Before trial, defendants moved for summary judgment on the Trust’s

claims against Joe Duling “as a financial advisor for the [Trust].” Defendants note

that the Trust did not exist until December 7, 2002, and therefore, Joe and the

Trust had no professional relationship and Joe owed no duty to the Trust. Indeed,

Joe owed no legal duty to the Trust until its creation. Plaintiffs presented evidence,

however, that Joe knew the Trust had problems, both before and after its creation,

and did nothing to inform the Trustee. If the jury believed this evidence, the jury

could have found Joe liable based on acts occurring after the Trust’s creation.

Moreover, Joe’s actions, statements, and undertakings before the creation of the

Trust are relevant to prove whether he breached his duties to the Trust after

December 7, 2002.


__________________
(. . . continued)
         that a clause would have to be added to the instruction dealing with the
         limitation period applicable if no return had been filed. Even with this
         addition, the circuit court disallowed the instruction.

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              5. SDCL 15-2-14.6 and SDCL 15-2-14.7

[¶39.]        Defendants assert error when the court refused to grant them partial

summary judgment on plaintiffs’ real-estate based claims because plaintiffs failed to

bring their action against defendants within three years of any occurrence of

malpractice, error, omission, or mistake. See SDCL 15-2-14.6; SDCL 15-2-14.7.

Defendants argue that because the Haisches transferred the ranch to the Trust on

December 7, 2002, the latest date the Estate could have brought suit against

defendants was December 7, 2005. Defendants also assert that they owed no

realtor duty to the Trust after it was sold to Joe, which was on March 3, 2003.

Defendants finally contend that the continuous professional representation doctrine

cannot be used to extend the limitations period for the realtor-based claims.

[¶40.]        SDCL 15-2-14.6 provides that “[n]o action may be brought against a

licensed real estate broker . . . for malpractice, error, mistake, or omission, . . .

unless it is commenced within three years of the occurrence of the alleged

malpractice, error, mistake, or omission. This section is prospective in application.”

SDCL 15-2-14.7 applies the same period to a broker’s real estate company.

However, the intent of the Legislature is clear: “This section is prospective in

application.” SDCL 15-2-14.6 and SDCL 15-2-14.7 were enacted on February 25,

2004. Plaintiffs’ claims against defendants for Joe’s actions as a real estate agent

accrued between May 2, 2002, when Curley signed a listing agreement with Joe,

and March 7, 2003, the date the ranch was sold to Joe by the Trust. SDCL 15-2-

14.6 and SDCL 15-2-14.7 were not in effect at that time, and therefore, did not

apply.


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                6. Evidence of Previous Offers

[¶41.]          Defendants argue that previous offers received for the Mulehead were

inadmissible to show the value of the ranch. Evidence of past offers does not

establish the fair market value of property. In re Dissolution of Midnight Star

Enterp., 2006 S.D. 98, ¶¶ 19-22, 724 N.W.2d 334, 338-39. But plaintiffs presented

evidence of the previous offers to prove Joe breached his duties to the Estate and

Trust. This evidence demonstrated that the Haisches received offers for

considerably more than that offered by Joe, that Joe knew what Curley could have

received for the sale of the ranch and gravel pit, and that Joe did not have Curley’s

best interests in mind while acting as his real estate agent and financial advisor.

One prospective buyer, Mert Lund, testified that when he suggested to Joe that he

(Lund) was willing to pay the asking price of $4.8 million, Joe Duling responded,

“Oh God, you don’t want to do that. I can get it for you for cheaper than that.” For

these purposes, the evidence was admissible.

[¶42.]          Affirmed in part, reversed in part, and remanded for a new trial on

damages.

[¶43.]          GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and GIENAPP, Retired Circuit Court Judge, concur.

[¶44.]          GIENAPP, Retired Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.




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