Case Information
*1 #26104-a-DG
2012 S.D. 35
IN THE SUPREME COURT OF THE
STATE OF SOUTH DAKOTA * * * *
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
* * * *
ANDREW R. DAMGAARD
A. RUSSELL JANKLOW of
Janklow Law Firm, Prof. LLC
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellants.
KYLE L. WIESE
JAMES S. NELSON of
Gunderson, Palmer, Nelson & Ashmore, LLP
Rapid City, South Dakota Attorneys for defendants
and appellees.
* * * *
ARGUED MARCH 19, 2012 OPINION FILED 05/09/12 *2 GILBERTSON, Chief Justice
[¶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. 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. 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. 1 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
1. During her deposition, Detmers initially denied that she received this phone
call. After being confronted with telephone records, Detmers agreed Costner had called her. She then denied that Costner had suggested placement of the statutes at his Deadwood property during this call. During later questioning, she admitted that during the call he talked about The Dunbar location for the statutes.
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, café, 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. 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 “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 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 court concluded Detmers agreed, as demonstrated by her
conduct and actions, to permanent display of the sculptures at Tatanka. On appeal, Detmers does not dispute that she agreed to display the
sculptures at Tatanka. Instead, she asserts that she only agreed to the location
because she had been promised or guaranteed that The Dunbar would still be built.
Detmers cannot point to anything in the record supporting this assertion other than
her own testimony. The circuit court found that Detmers was never promised or
guaranteed that the Dunbar would be built. Costner maintained throughout this
suit that he continues to attempt to build The Dunbar, but cannot promise it will
happen. Detmers has not shown any findings to be clearly erroneous. Furthermore, this action centers around a clause in the contract
addressing what would happen if the resort was not built . The contract itself
contemplates the possibility that The Dunbar might not be built. Detmers cannot
assert that she was not aware that The Dunbar’s future was questionable. Detmers
has not demonstrated that the circuit court’s finding was clearly erroneous. As to
Detmers’ argument that the finding was unnecessary, the court appeared to address
it because it was an issue raised by Detmers through questioning. Detmers asserts that to the extent the court used the testimony of
Patrick Wyss to find that Detmers had not been guaranteed The Dunbar would be
built, the court erred. The court found: “Testimony from Costner and others
associated with The Dunbar and Tatanka projects indicates that although Costner
has been attempting to build The Dunbar for years, and continues to try to build it,
he has never promised Detmers or anyone else that it would actually be built.”
(Emphasis added.) Presumably, Wyss is an “other[] associated with” the projects as
he was the only other person to testify besides Costner and Detmers. Wyss was prepared for trial by Costner’s counsel. He testified as a fact
witness, called adversely as part of Detmers’ case-in-chief. Wyss was sequestered,
so he had not heard Costner’s testimony, given after being called adversely, or
Detmers’ testimony. Detmers’ counsel asked whether, during the time the
sculptures were being placed at Tatanka, “there was not only an understanding by
[Wyss] but an understanding by Peggy Detmers that the Dunbar resort was
ultimately going to be built.” Wyss responded “No.” Detmers’ counsel then
attempted to impeach Wyss with his deposition testimony where he was asked: “So
the placement of the monument back in 2002, there was always an understanding,
and it was being told to Peggy, that the Dunbar was still going to be built at that
time; right?” Wyss responded, “That was my understanding.” Detmers made a motion after trial to strike Wyss’ changed trial
testimony. The court denied the motion. Detmers argues that the court should not
have relied on Wyss’ testimony. A review of Wyss’ testimony reveals the context of
Wyss’ statements and his questioning. During Wyss’ deposition, counsel was
questioning Wyss on whether “the plan was still to build The Dunbar” when the
sculptures were being placed. The context of the questioning shows that Costner
and his team were still working towards building The Dunbar, and the placement of
Tatanka was important to ensure The Dunbar could go forward if investors
committed. Wyss explained at trial that “[t]he context of that conversation was the
planned hotel . . . .” He continued to emphasize that “there were efforts in place to
attempt to get the hotel built.” Wyss’ responses to Detmers’ “impeachment” questions provide the
necessary framework for understanding his answers. The circuit court was able to
witness Wyss and the questioning at trial to determine credibility and the weight
that should be afforded his testimony. We will not second-guess that
determination. Even if the court did err in relying on Wyss’ testimony, Detmers has
not shown that the finding was clearly erroneous in light of the entire record
indicating that Detmers had no reason to assume The Dunbar would be built. Detmers also argues that the circuit court erred as a matter of law in
its construction of the term “elsewhere.” She asserts that “elsewhere” must be
somewhere other than the proposed site for The Dunbar. She suggests that the
circuit court’s conclusion rewrites the contract. Additionally, she argues that if
“elsewhere” is ambiguous, it should be construed against Costner. However,
Detmers asserted before trial, and the court agreed, that the contract was
unambiguous. That decision was not appealed. 2 The circuit court concluded as a matter of law that the regular
meaning of the term “elsewhere” applied. The court noted that Black’s Law
Dictionary defines elsewhere as “in another place, in any other place,” and
Webster’s Dictionary defined it as “in or to another place.” See Black’s Law
Dictionary 560 (8th ed. 2004). Accordingly, there must first be a designated place to
determine if somewhere is “another place.” Paragraph three provides: “ if The
Dunbar is not built within ten (10) years or the sculptures are not agreeably
displayed elsewhere.” (Emphasis added.) The designated place is The Dunbar. The
2. “Whether the language of a contract is ambiguous is . . . a question of law.”
Pankratz v. Hoff , 2011 S.D. 69, ¶ 10 n.*, 806 N.W.2d 231, 235 n.*. Even if this Court were to decide that the contract was ambiguous, the language of the contract, in addition to the findings of the circuit court, support judgment for Costner.
circuit court concluded that “elsewhere” meant at a place other than The Dunbar.
And because The Dunbar had not been built, Tatanka was elsewhere.
[¶19.] Costner points out that the circuit court and Detmers both assign
“elsewhere” its ordinary meaning, i.e., “in another place.” The analysis diverges on
whether “in another place” means another place from The Dunbar itself or from The
Dunbar’s intended site. Costner asserts that the circuit court was correct in
concluding that “elsewhere” is in a place other than The Dunbar resort itself, which,
according to the language, must be built . The land could not be built, but the resort
could. Furthermore, the terms of the contract plainly do not say The Dunbar site. “Contract interpretation is a question of law” reviewed de novo.
Clarkson & Co. v. Cont’l Res., Inc. , 2011 S.D. 72, ¶ 10, 806 N.W.2d 615, 618. “When
interpreting a contract, ‘this Court looks to the language that the parties used in
the contract to determine their intention.’” Id. ¶ 15, 806 N.W.2d at 619 (quoting
Pauley v. Simonson , 2006 S.D. 73, ¶ 8, 720 N.W.2d 665, 667-68). “When the words
of a contract are clear and explicit and lead to no absurd consequences, the search
for the parties’ common intent is at an end.” Nelson v. Schellpfeffer , 2003 S.D. 7, ¶
8, 656 N.W.2d 740, 743. The plain words of the contract unequivocally provide that if The
Dunbar was not built or the sculptures were not agreeably displayed elsewhere,
then Detmers would be entitled to the relief described in paragraph three.
“Elsewhere” must be understood in relation to the named place in the contract –
The Dunbar. Costner is correct that to accept Detmers argument would rewrite the
contract to include The Dunbar’s intended location as well as the resort itself. This
we will not do. See Culhane v. W. Nat’l Mut. Ins. Co. , 2005 S.D. 97, ¶ 27, 704
N.W.2d 287, 297 (“[W]e may neither rewrite the parties’ contract nor add to its
language . . . .”). As a matter of law, the court did not err in its conclusion that
Tatanka was elsewhere from The Dunbar. This conclusion is supported by giving
the terms in the parties’ contract their plain and ordinary meaning.
[¶22.] Detmers also alleges that the court was clearly erroneous in finding
that Tatanka was intended to be separate and distinct from The Dunbar. She
points to newspaper articles and testimony in the record indicating that if The
Dunbar is built, Tatanka would be part of the resort property.
[¶23.] The record and numerous exhibits support the circuit court’s finding
that Tatanka is separate from The Dunbar. Testimony reinforced that Tatanka was
constructed and managed as a separate legal entity from The Dunbar proposal. In
her response to Costner’s proposed findings of fact, Detmers concedes that Tatanka
is a stand-alone site. Detmers has not demonstrated that the court was clearly
erroneous or made an error of law in determining that Tatanka was separate from
The Dunbar.
CONCLUSION The circuit court did not err or make any clearly erroneous factual
findings in determining that the sculptures are “agreeably displayed elsewhere,” in
the absence of a guarantee from Costner that The Dunbar would be built.
Furthermore, the circuit court did not err in concluding that Tatanka was
“elsewhere” under the language of the contract. We affirm. KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.