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Hobart v. Ferebee

November 24, 2009

STEVEN HOBART, PETITIONER AND APPELLEE,
v.
GEORGE FEREBEE, RESPONDENT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE A. P. FULLER Judge.

Per curiam.

CONSIDERED ON BRIEFS AUGUST 24, 2009

[¶1.] George Ferebee appeals three orders awarding Steven Hobart attorney's fees totaling $12,445.91 incurred in responding to a series of motions brought by Ferebee in a protection order case. The appeals have been consolidated for purposes of briefing and a decision by this Court.*fn1 We affirm.

FACTS

Background

[¶2.] These appeals arise out of a long-standing feud between rural Pennington County neighbors George Ferebee (Ferebee) and Steven Hobart (Hobart). The two men have had a series of serious disputes for well over two decades. During that time, they have exchanged numerous accusations and complaints about insolent, devious, destructive, and even assaultive behavior. For example, Hobart once accused Ferebee of making death threats against his family. Ferebee reported on another occasion that Hobart's son tried to hit him with an automobile. Ultimately, Hobart and Ferebee obtained protection orders against each other and, later, extensions of those orders. In 2003, Hobart obtained a new protection order against Ferebee which Ferebee appealed to this Court. Ferebee obtained a reversal of some of the provisions of that order in this Court's decision in Hobart v. Ferebee, 2004 SD 138, 692 NW2d 509.

[¶3.] Following the 2004 Hobart decision, Ferebee began a campaign of litigation against Hobart by filing numerous motions for reconsideration, modification, or clarification of various aspects of the protection orders in place between the two men. As soon as the trial court would decide one motion and resolve one matter, Ferebee would immediately follow it up with a new motion and an allegedly new issue for consideration. In reality, Ferebee simply recycled many of his prior arguments and attempted to relitigate matters previously decided. Nevertheless, these tactics generated extensive paperwork and a number of trial court hearings. Thus, a relatively straightforward protection order case grew into a five volume court file. While Ferebee did receive some assistance and advice from counsel in his litigation, most of his work was pro se while Hobart retained counsel and incurred extensive attorney's fees.

Ferebee's Motion to Dismiss Hobart's Protection Order

[¶4.] Against the above backdrop, on September 10, 2007, Ferebee filed a motion to dimiss a protection order granted to Hobart, claiming that the order had expired. Hobart resisted on res judicata grounds, alleging that the duration of the protection order was fixed in a previous order appealed to this Court, that the duration of the order was an issue in the appeal, and that this Court summarily affirmed the order. A hearing was held on Ferebee's motion to dismiss on September 28, 2007, and the trial court denied the motion, agreeing with Hobart's position. During the hearing, Hobart's counsel announced her intention to seek attorney's fees from Ferebee. Counsel subsequently served a written motion for attorney's fees in the amount of $1,445.18 which the trial court granted without a hearing. Ferebee appealed the award of attorney's fees to this Court claiming that the trial court erred in granting the fees without a hearing. This Court agreed and entered an order of reversal (without an opinion) on May 27, 2008. As part of its order, this Court remanded the matter of attorney's fees to the trial court for a hearing and the entry of findings of fact and conclusions of law necessary to support an award of attorney's fees.

Ferebee's Motion for Rule 11 Corrections or Sanctions

[¶5.] While the foregoing appeal of the original attorney's fee award was pending before this Court, Ferebee filed a pro se motion with the trial court captioned, "Motion for Rule 11 Corrections or if Needed Rule 11 Sanctions for Motion for Attorney's Fees." In his motion, Ferebee sought Rule 11 sanctions*fn2 against Hobart claiming that Hobart's original motion for attorney's fees failed to comport with the law. Hobart resisted, arguing that the trial court had no jurisdiction to hear a motion relating to the original attorney's fee award because of Ferebee's pending appeal of the issue before this Court. A hearing was held on Ferebee's motion on February 13, 2008. After the hearing, the trial court denied Ferebee's motion for Rule 11 sanctions and granted Hobart attorney's fees of $688.50. Ferebee appealed the judgment and order denying Rule 11 sanctions and granting Hobart attorney's fees to this Court on May 5, 2008.

[¶6.] After entry of this Court's order of May 27, 2008, reversing and remanding the original attorney's fee award, Hobart filed a motion for limited remand of Ferebee's appeal of the judgment and order denying Rule 11 sanctions and granting Hobart attorney's fees. Hobart asserted that no hearing was held on the attorney's fees and that this Court's order of remand of the original attorney's fee award meant that a hearing should also have been held as to attorney's fees on the Rule 11 motion. Hobart sought the limited remand for purposes of holding a hearing and the entry of findings of fact and conclusions of law to support his award of attorney's fees. Although this Court initially denied the limited remand, it subsequently reconsidered and granted the motion on July 9, 2008.

Ferebee's Motion for Determinations and Rationale Thereof

[¶7.] On May 9, 2008, while both of the above matters were still pending before this Court, Ferebee served yet a third pro se motion captioned "Motion for Determinations and Rationale Thereof." By this motion, Ferebee requested that the trial court provide the rationale for its earlier judgment and order denying him Rule 11 sanctions and granting Hobart attorney's fees. Hobart resisted the motion, sought its dismissal, and further sought an award of attorney's fees under Rule 11. A hearing was held on Ferebee's motion on May 27, 2008, and the trial court orally denied and dismissed it and awarded Hobart attorney's fees of $446.20. However, after learning of this Court's order of May 27 reversing and remanding the original attorney's fee award to Hobart, the trial court entered an order granting a separate hearing on the issue of attorney's fees related to Ferebee's "Motion for Determinations and Rationale Thereof."

Consolidated Hearing on Attorney's Fees

[ΒΆ8.] On July 23, 2008, the trial court scheduled a consolidated hearing on all of the outstanding attorney's fee issues between Hobart and Ferebee that had been remanded by this Court to the trial court or that remained pending before the trial court. Accordingly, the hearing, held on August 26, 2008, considered attorney's fees related to: Ferebee's original motion to dismiss Hobart's protection order; Ferebee's ...


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