APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA HONORABLE JON R. ERICKSON Judge
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON AUGUST 23, 2011
[¶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 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.*fn1
[¶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.
[¶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.
[¶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.*fn2 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.*fn3 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 ...