APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JANINE M. KERN Judge.
The opinion of the court was delivered by: Severson, Justice (on reassignment).
[¶1.] The proceeds from the settlement of multiple wrongful death lawsuits were paid into the Sheesley, Vermeulen, Beilstein 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.
[¶2.] Shane Sheesley, Thomas Vermeulen, and Robert Beilstein 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 Beilstein 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 NW2d 911, 913-14 (quoting Sander v. Geib, Elston, Frost Prof'l Ass'n, 506 NW2d 107, 119 (SD 1993) (quoting Flagtwet v. Smith, 367 NW2d 188, 191 (SD 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 Beilstein'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.
[¶7.] "Admission of expert testimony is within the broad discretion of the trial court." Thompson v. Mehlhaff, 2005 SD 69, ¶21, 698 NW2d 512, 519 (citing Schrader v. Tjarks, 522 NW2d 205, 209 (SD 1994); Stormo v. Strong, 469 NW2d 816, 820 (SD 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 NW2d at 519-20 (citing Stormo, 469 NW2d 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 NW2d 580, 586 (citing State v. Guthrie, 2001 SD 61, ¶30, 627 NW2d 401, 415 (citing Koon v. United States, 518 US 81, 100, 116 SCt 2035, 2047, 135 LEd2d 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 NW2d at 520 (citing Schrader, 522 NW2d 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.*fn1 Id. (citing Joseph v. Kerkvliet, 2002 SD 39, ¶7, 642 NW2d 533, 535 (quoting State v. Norville, 23 SW3d 673, 685 (MoCtApp 2000))).
[¶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 NW2d 780, 789 (quoting Western Cas. and Sur. Co. v. Am. Nat'l Fire Ins. Co., 318 NW2d 126, 128 (SD 1982) (quoting Somers v. Somers, 27 SD 500, 504, 131 NW 1091, 1093 (1911))). "Estoppel will be applied against a party 'who by [his] words or conduct take[s] positions inconsistent with [his] rights, unfairly misleading others into detrimental reliance.'" Id. (quoting Harms v. Northland Ford Dealers, 1999 SD 143, ¶17, 602 NW2d 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:
[T]he 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 NW2d 729, 737 (quoting Watertown Concrete Prod., Inc. v. Foster, 2001 SD 79, ¶12, 630 NW2d 108, 112-13 (citing New Hampshire v. Maine, 532 US 742, 750, 121 SCt 1808, 1814-15, 149 LEd2d 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,*fn2 the Estates of Sheesley and Vermeulen. A second related issue was the allocation between the two beneficiaries of the Estate of Sheesley and among the three beneficiaries of the Estate of Vermeulen based on SDCL 21-5-8.*fn3
[¶12.] The trial court divided the corpus of the SVB Trust between its beneficiaries with 87% to the Estate of Sheesley and 13% to the Estate of Vermeulen. The amount of distribution to each estate was based on the trial court's determination of pecuniary loss to each estate. "[P]ecuniary losses include both economic and non-economic losses[.]" Dakota Plains A.G. Ctr., L.L.C. v. Smithey, 2009 SD 78, ¶13, 772 NW2d 170, 177 (citing Zoss, 1999 SD 37, ¶¶11-15, 590 NW2d at 913-14). In the present action, non-economic loss was based primarily on the testimony of family members. Frankenfeld testified to economic loss using life expectancy and estimations of earning capacity. The Estate of Sheesley's damages were calculated as greater than the Estate of Vermeulen's damages because Sheesley was younger and had more years of lost earnings, and also because Sheesley had a greater earning capacity than Vermeulen.
[¶13.] The trial court also allocated each estate between or among its beneficiaries. The allocation within the Estate of Sheesley between its two beneficiaries, the wife and daughter of Sheesley, was delayed pending appointment of a guardian ad litem as the daughter, Shelby Sheesley Wilcox, was a minor. This matter was not appealed. The trial court allocated loss among the beneficiaries of the Estate of Vermeulen with 75% to Vermeulen's wife, Dee Ann Vermeulen; 15% to his son, Ryan Vermeulen; and 10% to his daughter, Karla Vermeulen Taylor. The allocation among the beneficiaries of the Estate of Vermeulen was not appealed.
[¶14.] In wrongful death actions, damages may be awarded proportionally based on pecuniary injuries under SDCL 21-5-7.*fn4 "[P]ecuniary injury encompasses more than strictly economic losses[.]" Dakota Plains A.G. Ctr., 2009 SD 78, ¶29, 772 NW2d at 181 (quoting Zoss, 1999 SD 37, ¶11, 590 NW2d at 913). "[I]t includes 'the loss of decedent's companionship and society as expressed by, but not limited to, the words "advice," "assistance," and "protection," but without consideration for the grief and mental anguish suffered by the beneficiaries because of the wrongful death.'" Id. (quoting Zoss, 1999 SD 37, ¶11, 590 NW2d at 913-14).
[¶15.] The parties submitted evidence relevant to their pecuniary losses at trial in this distribution action. This evidence included the testimony of Ryan Vermeulen and Karla Vermeulen Taylor. The trial court also considered stipulations, exhibits, and transcripts of testimony of Wilcox, Vermeulen, and Frankenfeld in depositions and at trial in proceedings before the Sixth Judicial Circuit Court, Hughes County, South Dakota, and in discovery in United States District Court, District of South Dakota, Southern Division. Finally, the trial court considered Frankenfeld's report and the summary of the case submitted by attorney Bart Banks, who represented both parties in the wrongful death actions. Both parties submitted briefs and argument of counsel.
[¶16.] Prior to trial, Vermeulen moved to submit further expert testimony on economic damages, but he did not make an offer of proof as to the substance of the proposed evidence, explain how that evidence would assist the trial court, or even name an expert. To be admissible, an expert's opinion must assist the trier of fact.*fn5
SDCL 19-15-2. Vermeulen focuses on Frankenfeld's testimony concerning the economic portion of the pecuniary injury. Frankenfeld calculated the economic loss suffered by each estate based on Sheesley's and Vermeulen's lost earning potential over what would have been their expected life span. Economic loss generally is comprised of lost lifetime earnings. No evidence was presented to support economic loss ...