APPEALS FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE JOHN J. DELANEY Judge.
CONSIDERED ON BRIEFS AUGUST 24, 2009
[¶1.] George Ferebee appeals a trial court judgment and order denying his petition for a protection order against Steven Hobart and granting Hobart attorney's fees. Hobart appeals that part of the judgment and order denying his motion for a permanent injunction as a sanction against Ferebee. The appeals have been consolidated for purposes of briefing and a decision by this Court.*fn1 We affirm.
[¶2.] This is another set of appeals arising out of a long-standing feud between rural Pennington County neighbors George Ferebee (Ferebee) and Steven Hobart (Hobart). Some of the same background is provided here as in Hobart, 2009 SD 101, __ NW2d __.
[¶3.] Ferebee and Hobart 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.
[¶4.] 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.
[¶5.] Ultimately, the trial court denied a motion by Ferebee to dismiss Hobart's protection order and awarded Hobart attorney's fees related to the motion. This generated a number of additional pro se motions by Ferebee and, eventually, his appeal of the attorney's fee award to this Court. By order, this Court reversed and remanded the award for the trial court to hold a hearing and enter findings of fact and conclusions of law to support it. This was accomplished over the same course of time that the court was ruling on a number of Ferebee's other pro se motions in the case. The final judgments and orders on these matters were appealed in Hobart, 2009 SD 101, __ NW2d __.
Ferebee's Petition for a Protection Order
[¶6.] On October 30, 2007, while the above proceedings relating to Hobart's protection order against Ferebee were still pending, Ferebee filed his own petition for a protection order against Hobart. In the ensuing litigation, Ferebee utilized the same tactics previously employed in contesting Hobart's protection order and barraged the court and opposing counsel with numerous pro se motions and requests, sometimes issuing multiple pleadings and letters on the same day. Ferebee would not accept a ruling or an answer. As soon as the trial court addressed one of his motions or concerns, Ferebee would follow it up with another motion or letter, often simply rephrasing or reformulating previous arguments. All of this paperwork required a response from opposing counsel and further attention by the court. The continuation of these tactics generated another three volume court file and more attorney's fees for Hobart.
[¶7.] A persistent point of contention in the case was Ferebee's attempt to go back to the beginning of his dispute with Hobart to establish the grounds for his protection order. Ferebee's forty-six page petition and attachments contained numerous rambling allegations of misconduct by Hobart dating back some twenty years. Most of these allegations had been the subject of previous litigation between Ferebee and Hobart as part of the prior protection order proceedings between them. Nevertheless, Ferebee persisted in efforts to relitigate these matters and to call witnesses to testify about them. The trial court refused to accede to this tactic and, on Hobart's motion, issued an order in limine limiting the scope of the testimony in the case to incidents occurring on or after July 31, 2007. Ferebee strenuously resisted this order even up to the time of the protection order hearing. During the hearing itself, he spent considerable time continuing to contest the order in limine even in the face of repeated instructions from the trial court to proceed.
[¶8.] Following the protection order hearing on February 8, 2008, the trial court entered findings of fact and conclusions of law denying and dismissing Ferebee's petition for a protection order and awarding Hobart attorney's fees incurred in resisting the petition. The court's findings and conclusions generated another wave of pro se filings by Ferebee including motions for sanctions and various letters and inquiries to the court.
Hobart's Motion for an Injunction and for Dismissal of Ferebee's Petition
[¶9.] On April 9, 2008, Hobart filed a motion for a permanent injunction against Ferebee as a sanction to prohibit further frivolous court filings by him. While that motion was pending, the court inadvertently entered a form order dismissing Ferebee's petition for a protection order. Nothing was contained in the order regarding attorney's fees or Hobart's motion for an injunction. Because of these omissions, Hobart moved the court to set aside its order of dismissal for correction of clerical mistakes pursuant to SDCL 15-6-60(a). A hearing was held on the motion on May 12, 2008, during which the court conceded errors and omissions in its order and indicated an intention to set it aside. A further hearing on the issue was set but, before that hearing could be held Ferebee served notice of entry of the court's order of dismissal and a notice of appeal of the order to this Court. This necessitated a motion ...