994 N.W.2d 445
S.D.2023Background
- In the early 1990s Kevin Costner commissioned Peggy Detmers to create 17 large bronze sculptures for a planned resort, The Dunbar. After slow progress, the parties executed a written Agreement in 2000 addressing royalties, copyrights, and display/sale contingencies.
- Paragraph 3 of the Agreement provided that if The Dunbar was not built within ten years or the sculptures were not "agreeably displayed elsewhere," Costner would sell the sculptures, split profits 50/50 after recouping costs, and assign the copyrights to Detmers; the ten-year phrase grammatically modifies only the Dunbar-built event.
- The parties later agreed to display the sculptures at Tatanka, a separate attraction on related property. In 2012 (Detmers I), the circuit court and this Court held the sculptures were "agreeably displayed elsewhere" at Tatanka, so paragraph 3 had not been triggered.
- In 2021 Costner listed the Tatanka property for sale, excluding the sculptures and stating they "will be relocated by seller." Detmers sued for anticipatory breach and sought a declaratory judgment that a relocation or sale would trigger paragraph 3.
- The circuit court granted Costner summary judgment on res judicata and held he had no further obligations under the Agreement; it denied Detmers summary judgment on anticipatory breach. On appeal the Supreme Court of South Dakota affirmed in part, reversed in part, and remanded.
- The Supreme Court held res judicata did not bar Detmers’ suit, paragraph 3’s "not agreeably displayed elsewhere" is ongoing (not time-limited), Costner retained a contingent obligation that could be triggered by a unilateral relocation/sale, but Detmers did not prove anticipatory breach as a matter of law; the case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res judicata | Detmers: prior litigation only decided whether Tatanka qualified as "elsewhere"; new dispute about relocation was not litigable earlier. | Costner: prior final judgment resolved the Agreement and bars relitigation. | Court: Res judicata does not apply; the new dispute (rights after Tatanka placement / future relocation) was not decided in Detmers I. |
| Contract interpretation — continuing obligation under ¶3 | Detmers: ¶3’s sale-trigger applies whenever sculptures are not "agreeably displayed elsewhere," with no time limit; Tatanka placement did not extinguish the contingency. | Costner: once Tatanka was agreed as "elsewhere," his ¶3 duties were fully performed; ten-year limitation applied. | Court: ¶3 is unambiguous; "within ten (10) years" modifies only building The Dunbar, not "displayed elsewhere." The "not agreeably displayed elsewhere" condition is ongoing and can trigger ¶3 if parties do not agree on a display location. |
| Anticipatory breach | Detmers: Costner’s listing saying sculptures "will be relocated" is an unequivocal intent to refuse future performance, entitling her to summary judgment. | Costner: listing does not establish an unequivocal refusal to perform; any sale/relocation would trigger ¶3 rather than constitute a contractual breach. | Court: Denied summary judgment for Detmers. The listing at most signals the contingent obligation may vest; it does not show an unequivocal future refusal to perform so as to constitute anticipatory breach as a matter of law. |
| Ripeness | Detmers: dispute is ripe because Costner’s listing creates imminent conflict about rights under the Agreement. | Costner: claims not ripe until actual relocation or sale occurs. | Court: Claims are ripe—there is a live controversy over rights and whether Costner’s actions amount to anticipatory breach. |
Key Cases Cited
- Detmers v. Costner, 814 N.W.2d 146 (S.D. 2012) (prior appeal holding the sculptures were "agreeably displayed elsewhere" at Tatanka)
- Healy Ranch, Inc. v. Healy, 978 N.W.2d 786 (S.D. 2022) (summary judgment standard and res judicata framework)
- Weitzel v. Sioux Valley Heart Partners, 714 N.W.2d 884 (S.D. 2006) (definition and effect of a condition precedent)
- Union Pac. R.R. v. Certain Underwriters at Lloyd’s London, 771 N.W.2d 611 (S.D. 2009) (definition and consequences of anticipatory repudiation)
- J. Clancy, Inc. v. Khan Comfort, LLC, 955 N.W.2d 382 (S.D. 2021) (express contracts preclude implied promises)
- Prunty Constr., Inc. v. City of Canistota, 682 N.W.2d 749 (S.D. 2004) (entire contract must be construed to give meaning to all provisions)
- Johnson v. Coss, 667 N.W.2d 701 (S.D. 2003) (principles for determining condition precedent)
- Garrett v. BankWest, Inc., 459 N.W.2d 833 (S.D. 1990) (implied covenant of good faith and fair dealing)