Wilcox v. VERMEULEN

• Citation: 781 N.W.2d 464,2010 SD 29
• Decision Date: 31 March 2010
• Docket Number: No. 25144.,25144.
• Parties: Stacie WILCOX f/k/a Stacie Sheesley, Personal Representative of the Estate of Shane Sheesley, Plaintiff and Appellee, v. Dee Ann VERMEULEN, as Personal Representative of the Estate of Thomas Vermeulen, Defendant and Appellant.
• Court: Supreme Court of South Dakota

781 N.W.2d 464

2010 SD 29

Stacie WILCOX f/k/a Stacie Sheesley, Personal Representative of the Estate of Shane Sheesley, Plaintiff and Appellee, v. Dee Ann VERMEULEN, as Personal Representative of the Estate of Thomas Vermeulen, Defendant and Appellant.

No. 25144.

Supreme Court of South Dakota.

Argued October 6, 2009.

Reassigned January 5, 2010.

Decided March 31, 2010.

COPYRIGHT MATERIAL OMITTED

James W. Olson of Wilson, Olson & Nash, PC, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Dennis W. Finch of Finch Maks, Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

SEVERSON, Justice (on reassignment).

¶ 1. The proceeds from the settlement of multiple wrongful death lawsuits were paid into the Sheesley, Vermeulen, Bielstein Trust (SVB Trust) to be held pending a distribution of the funds. Stacie Wilcox, f/k/a Stacie Sheesley, personal representative of the Estate of Sheesley, brought this declaratory judgment action seeking to divide the corpus of the SVB Trust between its beneficiaries, the Estates of Sheesley and Vermeulen. The trial court distributed the corpus of the SVB Trust, but did not allow Dee Ann Vermeulen, personal representative of the Estate of Vermeulen, to present additional expert testimony in this distribution proceeding based on judicial estoppel. Vermeulen appeals. We affirm.

BACKGROUND

¶ 2. Shane Sheesley, Thomas Vermeulen, and Robert Bielstein died as a result of injuries sustained in an aircraft accident near Mission, South Dakota, on August 23, 2000. The decedents' estates filed wrongful death actions against numerous defendants whose identities are not relevant to this appeal. In deciding to sue, the Estates of Sheesley and Vermeulen retained common attorneys, while the Estate of Bielstein hired separate counsel. One wrongful death lawsuit was initiated in state court in Hughes County, South Dakota, and the other two suits were initiated in federal court in the United States District Court, District of South Dakota.

¶ 3. In order to prove damages in both wrongful death lawsuits, the Estates of Sheesley and Vermeulen hired Donald Frankenfeld, a forensic economist, to testify to the economic losses of the Estates. Neither estate provided expert testimony as to non-economic losses, which include "the loss of decedent's companionship and society as expressed by, but not limited to, the words `advice,' `assistance,' and `protection.'" Zoss v. Dakota Truck Underwriters, 1999 SD 37, ¶ 11, 590 N.W.2d 911, 913-14 (quoting Sander v. Geib, Elston, Frost Prof'l Ass'n, 506 N.W.2d 107, 119 (S.D.1993) (quoting Flagtwet v. Smith, 367 N.W.2d 188, 191 (S.D.1985))).

¶ 4. Before the wrongful death lawsuits were decided on their merits, all parties and lawsuits settled out-of-court. The wrongful death lawsuit brought in state court settled for $2,500,000.00, and the federal lawsuit settled for $950,000.00. Both settlements were approved by the respective courts and placed in the SVB Trust. A separate settlement of $200,000.00 was reached with one defendant. This amount was not placed in the SVB Trust, but was distributed equally between the Estates of Sheesley and Vermeulen prior to the distribution proceeding leading to this appeal. After deduction of the Estate of Bielstein's award, court costs, and attorneys' fees from the SVB Trust, the remaining corpus of the trust ($1,625,872.00) was insufficient to make the Estates of Sheesley and Vermeulen whole. Further, the trust agreement did not provide a formula for dividing the trust corpus, and the parties could not agree on the distribution.

¶ 5. Stacie Wilcox (Wilcox), the personal representative of the Estate of Sheesley, brought this declaratory judgment action in the trial court seeking to divide the corpus of the SVB Trust between the Estates of Sheesley and Vermeulen. Dee Ann Vermeulen (Vermeulen), the personal representative of the Estate of Vermeulen, sought leave of court to present additional expert testimony in this distribution proceeding. In response, Wilcox argued that both parties pursued the defendants together using one team of lawyers and one expert, Frankenfeld; that throughout the litigation, the parties relied on the opinion of Frankenfeld when making trial and settlement decisions; and, that based on a theory of estoppel, Vermeulen was prohibited from taking an "inconsistent position" by proffering a different expert in this distribution proceeding. The trial court agreed and did not allow the additional expert testimony based on judicial estoppel.

¶ 6. At the hearing concerning the distribution of the SVB Trust and other settlement proceeds, the trial court made findings of fact based on the stipulated record from the previous state and federal cases. The stipulated record included the depositions and testimony of the two widows and the economic expert, Frankenfeld. Ryan Vermeulen and Karla Vermeulen Taylor, Vermeulen's children, also testified at this hearing to aid the trial court in determining non-economic losses. Based on the economic losses determined by Frankenfeld and the non-economic losses determined by the trial court, the trial court distributed 87% of the SVB Trust to the Estate of Sheesley (Stacie Wilcox and Shelbie Sheesley Wilcox) and 13% to the Estate of Vermeulen. The trial court allocated 9.75% of the Estate of Vermeulen to Dee Ann Vermeulen, 1.95% to Ryan Vermeulen, and 1.3% to Karla Vermeulen Taylor.

STANDARD OF REVIEW

¶ 7. "Admission of expert testimony is within the broad discretion of the trial court." Thompson v. Mehlhaff, 2005 SD 69, ¶ 21, 698 N.W.2d 512, 519 (citing Schrader v. Tjarks, 522 N.W.2d 205, 209 (S.D.1994); Stormo v. Strong, 469 N.W.2d 816, 820 (S.D.1991)). "A trial court's evidentiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion." Id. ¶ 21, 698 N.W.2d at 519-20 (citing Stormo, 469 N.W.2d at 820). As this Court noted in State v. Asmussen: "With regard to the rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of evidence, not when it merely allows or refuses questionable evidence." 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citing State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996))). "In addition to showing an abuse of discretion, Vermeulen must show that the excluded evidence might and probably would have resulted in a different verdict." Thompson, 2005 SD 69, ¶ 21, 698 N.W.2d at 520 (citing Schrader, 522 N.W.2d at 209-10). Finally, the proponent of excluded evidence must make the substance of the evidence known to the trial court by making an offer of the excluded evidence at trial or prior to trial by an offer of proof.¹Id. (citing Joseph v. Kerkvliet, 2002 SD 39, ¶ 7, 642 N.W.2d 533, 535 (quoting State v. Norville, 23 S.W.3d 673, 685 (Mo.Ct.App.2000))).

ANALYSIS AND DECISION

¶ 8. 1. Whether the trial court erred by applying judicial estoppel to deny Vermeulen's motion to offer additional expert testimony.

¶ 9. We must first address Vermeulen's argument that the trial court erred by denying her motion to offer additional expert testimony in this distribution proceeding. Wilcox argued that based on a theory of estoppel, Vermeulen was prohibited from taking an "inconsistent position" by proffering a different expert for distribution purposes.

To create an estoppel, there must have been some act or conduct upon the part of the party to be estopped, which has in some manner misled the party in whose favor the estoppel is sought and has caused such party to part with something of value or do some other act relying upon the conduct of the party to be estopped, thus creating a condition that would make it inequitable to allow the guilty party to claim what would otherwise be his legal rights.

A-G-E Corp., v. State, 2006 SD 66, ¶ 32, 719 N.W.2d 780, 789 (quoting Western Cas. and Sur. Co. v. Am. Natl. Fire Ins. Co., 318 N.W.2d 126, 128 (S.D.1982) (quoting Somers v. Somers, 27 S.D. 500, 504, 131 N.W. 1091, 1093 (1911))). "Estoppel will be applied against a party `who by his words or conduct takes positions inconsistent with his rights, unfairly misleading others into detrimental reliance.'" Id. (quoting Harms v. Northland Ford Dealers, 1999 SD 143, ¶ 17, 602 N.W.2d 58, 62) (additional citations omitted).

¶ 10. The trial court ruled that because both parties pursued the defendants together with one expert and relied on that expert's opinion in making trial and settlement decisions, Vermeulen was judicially estopped from offering a different expert in this distribution action. This Court has considered the following elements in deciding whether to apply judicial estoppel:

The later position must be clearly inconsistent with the earlier one; the earlier position was judicially accepted, creating the risk of inconsistent legal determinations; and the party taking the inconsistent position would derive an unfair advantage or impose an unfair detriment to the opponent if not estopped.

Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 SD 82, ¶ 34, 700 N.W.2d 729, 737 (quoting Watertown Concrete Prod., Inc. v. Foster, 2001 SD 79, ¶ 12, 630 N.W.2d 108, ¶ 12-13 (citing New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 1814-15, 149 L.Ed.2d 968, 977)) (additional citations omitted). Vermeulen now argues that the retention of a separate expert was necessary because Frankenfeld did not consider the non-economic losses to the parties or the economic losses to Vermeulen's children.

¶ 11. Wilcox brought this declaratory judgment action because the trust agreement did not provide a formula for dividing the trust corpus and the parties could not agree on the distribution. The trial court addressed two tasks in this action. First, the complaint was filed under SDCL 21-24-5 to divide the corpus of the SVB Trust between its beneficiaries,² the Estates of Sheesley and...