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Peggy A. Detmers and Detmers Studios, Inc v. Kevin Costner and the Dunbar

May 9, 2012

PEGGY A. DETMERS AND DETMERS STUDIOS, INC., A SOUTH DAKOTA CORPORATION,
PLAINTIFFS AND APPELLANTS,
v.
KEVIN COSTNER AND THE DUNBAR, INC., A SOUTH DAKOTA CORPORATION, DEFENDANTS AND APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE RANDALL L. MACY Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice

ARGUED MARCH 19, 2012

[¶1.] In 2008, Peggy Detmers and Detmers Studios, Inc. (collectively "Detmers") brought suit against Kevin Costner and The Dunbar, Inc. (collectively "Costner"). The suit sought declaratory judgment regarding an agreement on the placement of sculptures Costner had commissioned from Detmers. After a bench trial, the court granted judgment in favor of Costner. Detmers appeals. We affirm.

FACTS

[¶2.] In the early 1990s, Costner envisioned building a luxury resort called "The Dunbar" on property he owned near Deadwood, South Dakota. After discussions, Costner commissioned Detmers to design 17 buffalo and Lakota warrior sculptures, intending to display them at The Dunbar's entrance. The bronze sculptures are 25% larger than life-size and depict three Lakota warriors on horseback pursuing 14 buffalo at a "buffalo jump." Detmers and Costner orally agreed that she would be paid $250,000 and would receive royalty rights in the sculptures' reproductions, which were to be marketed and sold at The Dunbar's gift shop. When The Dunbar had not been built in the late 1990s, Detmers stopped working on the sculptures.

[¶3.] After several months of negotiations, on May 5, 2000, Costner sent Detmers a letter detailing an agreement that would provide her additional compensation in exchange for completing the sculptures. Detmers agreed and signed the letter as requested, creating a binding contract. As part of the agreement, Costner paid Detmers an additional $60,000, clarified royalty rights on reproductions, and provided her certain rights regarding display of the sculptures. Paragraph three of the agreement, which is at issue in this case, provides:

Although I do not anticipate this will ever arise, if The Dunbar is not built within ten (10) years or the sculptures are not agreeably displayed elsewhere, I will give you 50% of the profits from the sale of the one and one-quarter life scale sculptures after I have recouped all my costs incurred in the creation of the sculptures and any such sale. The sale price will be at our above standard bronze market pricing. All accounting will be provided. In addition, I will assign back to you the copyright of the sculptures so sold (14 bison, 3 Lakota horse and riders). [¶4.] Paragraph four of the agreement provides: "We will locate a suitable site for displaying the sculptures if The Dunbar is not under construction within three (3) years after the last sculpture has been delivered to the mold makers." Because the resort was not under construction within three years after the last sculpture had been delivered, Detmers and Costner began looking for display locations as required by paragraph four. Detmers suggested locations in Hill City, while Costner considered locations near Deadwood. [¶5.] On January 23 or 24, 2002, Costner called Detmers and they discussed permanently placing the sculptures at a site on Costner's property where he intended to build The Dunbar.*fn1 The project became known as "Tatanka." Costner hired landscape architect Patrick Wyss to design Tatanka. Costner instructed Wyss to keep Detmers informed and involved in the design process. Detmers was influential in the sculptures' placement at Tatanka, including suggesting and implementing wood "mock-ups" to predetermine the exact location of each sculpture. Detmers, Costner, and Wyss were all present when the sculptures were placed at Tatanka. Tatanka was funded solely by Costner and is a separate legal entity from The Dunbar. In addition to the sculptures, Tatanka consists of a visitor center, gift shop, cafe, interactive museum, and nature walkways. Both Detmers and Costner spoke at Tatanka's grand opening in June 2003, expressing enthusiasm and pride in the attraction.

[¶6.] In 2008, Detmers brought suit against Costner, seeking a declaratory judgment that she did not agree to the placement of the sculptures as required by paragraph three of their May 2000 contract. For relief, Detmers sought an order requiring Costner to sell the sculptures with the proceeds dispersed consistent with paragraph three. Detmers claimed that because The Dunbar had not been built within ten years and the sculptures were not "agreeably displayed elsewhere," she was entitled to 50% of the proceeds from the sale of the sculptures.

[¶7.] Before trial, Costner moved to use parol evidence. Detmers objected, requesting a ruling that the May 2000 contract was unambiguous and parol evidence was therefore inadmissible. The circuit court concluded that the May 2000 contract was unambiguous and denied Costner's motion to admit parol evidence. The sole issue at the bench trial was whether the sculptures were "agreeably displayed elsewhere." Costner, Detmers, and Wyss testified at trial.

[¶8.] After post-trial briefing, the court granted judgment in favor of Costner. The court maintained its earlier conclusion that the May 2000 contract was unambiguous. The court concluded that "'[e]lsewhere,' as used in the contract, clearly means at a site other than The Dunbar." Additionally, "[b]ecause The Dunbar has not been built, any site is elsewhere, i.e., somewhere other than The Dunbar. The placement of the sculptures at Tatanka is elsewhere." The court also concluded: "Detmers actions following the decision to place the sculptures at Tatanka indicate that she agreed to display them at that location. . . ." Detmers appeals.

STANDARD OF REVIEW

[¶9.] "We will not set aside a trial court's findings of fact unless they are clearly erroneous." Alto Twp. v. Mendenhall, 2011 S.D. 54, ¶ 9, 803 N.W.2d 839, 842. "[W]e review conclusions of law under a de novo standard, with no deference to the trial court's conclusions of law." Id.

ANALYSIS

[ΒΆ10.] We restate and consolidate Detmers' issues on appeal to whether the circuit court erred in determining that the sculptures were "agreeably displayed elsewhere," as required under the contract. Under paragraph three, Detmers would only be entitled to specific performance if The Dunbar was not built or the sculptures were not "agreeably displayed elsewhere." The issue at trial was whether Detmers agreed to displaying the sculptures at Tatanka, which is a factual inquiry. The circuit ...


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