Detmers v. Costner Civ.

09-60 (Fourth Judicial Circuit, South Dakota 2011)

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Nature of the Case

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Facts

D envisioned building a resort in Deadwood. The resort was to be named The Dunbar. D dreamed of a five-star hotel, walking trails, a golf course, and tennis courts. D wanted to include bison sculptures as a centerpiece for the entryway to the hotel. D purchased 1000 acres of property just north of Deadwood. D commissioned P to build the sculpture that D dreamed of. It was to have 14 bison and 3 Lakota Warriors on horseback with each sculpture being 25% larger than life scale. P claims she reduced her fee from $1,000,000 to $250,000 in exchange for royalty rights on reproductions. D only admits that it was his intention to market the reproductions at the Dunbar hotel. P and D orally agreed that she would be paid $250,000 and would receive royalty rights in the sculptures' reproductions. When The Dunbar had not been built in the late 1990s, P stopped working on the sculptures. Several months of negotiations ensured and on May 5, 2000, D sent a letter detailing an agreement that would provide her additional compensation in exchange for completing the sculptures. P agreed and signed the letter as requested, creating a binding contract. D paid P an additional $60,000, clarified royalty rights on reproductions, and provided her with certain rights regarding the display of the sculptures. Paragraph three of the agreement 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). Things did not go well for the venture and in the early 2000s the parties began looking for alternative locations for the sculptures. On January 23 or 24, 2002, D called P and discussed permanently placing the sculptures at a site on D's property where he intended to build The Dunbar. This project was known as “Tatanka.” D hired landscape architect Patrick Wyss to design Tatanka. Wyss was to keep P informed and involved in the design process. P was influential in the placements at Tatanka, including suggesting and implementing wood “mock-ups” to predetermine the exact location of each sculpture. P, D, and Wyss were all present when the sculptures were placed at Tatanka. Tatanka also consists of a visitor center, gift shop, café, interactive museum, and nature walkways. P and D both spoke at Tatanka's grand opening in June 2003, expressing enthusiasm and pride in the attraction. P initially denied that she received the January phone call and denied but later admitted to D's version of the events. D spent $6 million building the attraction. P made her reduced fee claim known relying on The Dunbar being built. P also claimed that D represented during the building of the Tanaka that The Dunbar would still be built. D denied this claim. In 2008, P brought suit seeking a declaratory judgment that she did not agree to the placement of the sculptures as required by paragraph three of the May 2000 contract. P requested specific performance. P claimed 50% of the proceeds from the sale of the sculptures. She requested damages of $690,000 and the transfer of copyright in all reproductions life-size or smaller. The issue to be determined was whether the art was agreeably displayed elsewhere pursuant to the contract. P claims that because The Dunbar could still be built and that the Tatanka was built to be so incorporated the art had not been placed elsewhere. D moved to use parol evidence. P 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 D's motion to admit parol evidence. The sole issue at the bench trial was whether the sculptures were “agreeably displayed elsewhere.” P, D, and Wyss testified at trial.