Detmers v. Costner

1

2023 S.D. 40

PEGGY A. DETMERS, Plaintiff and Appellant, v. KEVIN COSTNER, Defendant and Appellee.

No. 30117-SRJ

Supreme Court of South Dakota

August 2, 2023

ARGUED MARCH 22, 2023

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE ERIC J. STRAWN Judge

ANDREW R. DAMGAARD of Woods, Fuller, Shultz & Smith, P.C. Sioux Falls, South Dakota, A. RUSSELL JANKLOW of Johnson, Janklow & Abdallah, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

STACY R. HEGGE CATHERINE A. SEELEY of Gunderson, Palmer, Nelson & Ashmore, LLP Pierre, South Dakota

DANIEL E. ASHMORE of Gunderson, Palmer, Nelson & Ashmore, LLP Rapid City, South Dakota Attorneys for defendant and appellee.

JENSEN, CHIEF JUSTICE

[¶1] In the early 1990s, Kevin Costner commissioned Peggy Detmers to create 17 large, bronze sculptures of buffalo and Lakota warriors on horseback to display at The Dunbar, a luxury resort Costner planned to build on property he owned near Deadwood, South Dakota. Detmers commenced litigation against Costner in 2008, after The Dunbar had not been built alleging that Costner was required to sell the sculptures and split the profits with Detmers pursuant to the terms of a prior written agreement (Agreement) because the parties had not agreed on an alternative location for display of the sculptures. The circuit court rejected Detmers' claim and found that the parties had agreed to permanently display the sculptures at Tatanka, another project Costner developed on some of the same property where The Dunbar was to be built. This Court affirmed. Detmers v. Costner, 2012 S.D 35, 814 N.W.2d 146 (Detmers I).

[¶2] In 2021, Detmers brought the current action against Costner alleging that his sale-listing for Tatanka constituted an anticipatory breach of the agreement to permanently display the sculptures at Tatanka. In the alternative, Detmers sought a declaratory judgment that selling the Tatanka property and relocating the sculptures would trigger Costner's obligation to sell the sculptures under the terms of the Agreement. The parties filed cross motions for summary judgment. The circuit court granted summary judgment in favor of Costner and denied Detmers' motion. Detmers appeals. We affirm in part, reverse in part, and remand.

Factual and Procedural History

[¶3] In 1994, Detmers began her work on the sculptures pursuant to an oral agreement with Costner. By 2000, believing progress had not been made toward developing The Dunbar, Detmers refused to finish the sculptures. Costner and Detmers negotiated and entered into the Agreement on May 5, 2000. As part of the Agreement, Costner agreed to pay Detmers additional compensation, clarified Detmers' royalty rights on reproductions of the sculptures, and provided her with certain rights regarding the display of the sculptures.

[¶4] The parties' arguments in this appeal focus on three paragraphs of the Agreement:

2. Although I will be the sole owner of all rights in the sculptures, including the copyright, in the sculptures, you will always be attached through your royalty participation. Because I believe that the sculptures are a valuable asset, I feel strongly that it is important that you maintain your 20% of gross retail price royalty on future sales of fine art reproductions (5% of gross retail price royalty on mass market reproductions selling for under $200). However, should you desire to sell that interest to me at some point in the future, I would be happy to discuss that with you in good faith.

3. 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 [or] 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. 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. In the meantime, until the sculptures are put on display, I will permit you to market and sell reproductions and you can retain eighty percent 80% of the gross retail sales price and pay 20% to me. Once the sculptures are put on public display in public view, agreed upon by both parties (but with the final decision to be made by me if we do not agree), the percentages will reverse, 80% of the gross retail sales price to me and 20% to you. The marketing must proceed as outlined below.

[¶5] Costner and Detmers began looking for alternative locations to display the sculptures in 2002, after the sculptures were completed but construction on The Dunbar had not started. Costner eventually suggested permanently displaying the sculptures on a portion of the property originally intended to be part of The Dunbar. This project came to be known as Tatanka and included a visitor center, gift shop, cafe interactive museum, and nature walkways to accompany the sculptures.

[¶6] In 2008, Detmers sued Costner, seeking an order requiring Costner to sell the sculptures and disburse the sale proceeds consistent with paragraph three of the Agreement. She alleged that this provision of the Agreement had been triggered because The Dunbar had not been built and the sculptures were "not agreeably displayed elsewhere[.]" She claimed she had not agreed to the permanent display of the sculptures at Tatanka in the absence of The Dunbar and that Tatanka was not "elsewhere" under the terms of the Agreement. In response, Costner argued he had spent millions of dollars to develop Tatanka and that he and Detmers agreed to permanently place the sculptures at Tatanka, as an alternate location for the display of the sculptures under paragraph three.

[¶7] The trial in Detmers I commenced more than ten years after the parties executed the Agreement. Although The Dunbar had not been built, the circuit court found that Detmers and Costner had agreed to permanently display the sculptures at Tatanka. The court concluded that the sculptures were "agreeably displayed elsewhere" as Tatanka constituted "elsewhere" under the unambiguous terms of the Agreement. Based upon this determination, the circuit court denied Detmers' claim that Costner was required to sell the sculptures pursuant to paragraph three of the Agreement and expressed that Costner had "fully performed under the terms of the [Agreement]." Detmers appealed the decision, arguing that she only agreed to the location because she had been promised The Dunbar would still be built. This Court affirmed, holding that "[t]he 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." Id. ¶ 24, 814 N.W.2d at 151.

[¶8] In the decade that followed, Detmers continued to receive royalties from replicas of the sculptures sold at Tatanka. Meanwhile, construction on The Dunbar never began, and Costner sold all the property surrounding Tatanka that had been intended for The Dunbar. In the fall of 2021, Costner listed the real estate upon which Tatanka is located for sale online. The listing expressly excluded the sculptures from the sale and indicated that they "will be relocated by seller."

[¶9] In November 2021, Detmers brought the current action, claiming the real estate listing and statement concerning the relocation of the sculptures constituted an anticipatory breach of the agreement to display the sculptures at Tatanka. Detmers also included a count for declaratory judgment asking the court to determine her rights under the Agreement and specifically to determine that closing Tatanka or relocating the sculptures from Tatanka would trigger Costner's obligation to sell the sculptures and assign the copyright to Detmers.

[¶10] The parties filed cross motions for summary judgment, and the circuit court heard oral arguments on the motions. Detmers argued that Costner was required by Detmers I to permanently maintain the sculptures at Tatanka and that his decision to move them was an anticipatory breach of the agreement to permanently display the sculptures at Tatanka as a matter of law. Costner argued that Detmers' claim was barred under the doctrine of res judicata because Detmers I fully resolved all the issues involving the parties' obligations under the Agreement. Alternatively, Costner argued that he had fully performed under the terms of the Agreement after the parties agreed to locate the sculptures "elsewhere" and that he was not obligated to maintain the sculptures at Tatanka. He also argued the claims for anticipatory breach were not ripe.

[¶11] The circuit court granted Costner's motion for summary judgment based upon res judicata, and alternatively, based on its determination that the reference to the "permanent" display of the sculptures in Detmers I did not obligate Costner to continue to display the sculptures at Tatanka in perpetuity. The court also determined that the "agreeably displayed elsewhere" language in the Agreement did not "constitute a continuing right or obligation" and that once the parties agreed to display the sculptures at Tatanka, Costner fully performed his obligations under the Agreement. Detmers appeals, raising three issues which we state as follows:

1. Whether the circuit court erred in concluding Detmers' claims are barred by the doctrine of res judicata.

2.

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