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Wednesday, March 21, 2012

Dances with Bison: South Dakota Supreme Court Hears Contract Case against Kevin Costner

Earlier this week, the South Dakota Supreme Court heard an appeal in a breach of contract case against Kevin Costner.  An artist, Peggy Detmers, sued Costner because she was displeased with where he placed her 17 bronze sculptures of bison and American Indians (pictured here).  The case includes questions such as whether "elsewhere" means "anywhere." Also, parol evidence issues.  It is an opinion to watch for.

Here's a summary from Boston.com:

A lawyer for Kevin Costner told the South Dakota Supreme Court on Monday that the actor did not breach a contract with an artist when he placed commissioned sculptures of bison and American Indians at a different site than originally was agreed upon.

The Hollywood superstar, who filmed much of his Academy Award-winning movie "Dances with Wolves" in South Dakota, paid Peggy Detmers $300,000 to make 17 bronze sculptures for a resort called The Dunbar he planned in the state's Black Hills. The resort never was built and the sculptures are instead at his Tatanka attraction near Deadwood.

Detmers said she spent more than six years creating the artwork and gave Costner a price break because she anticipated selling smaller sculptures at the resort.

Detmers claims that because The Dunbar was not built and the sculptures were not "agreeably displayed elsewhere," as the contract stipulates, that the sculptures should be sold and she should be entitled to 50 percent of the proceeds.

But a circuit judge ruled last July that Detmers indicated her approval of the Tatanka location by participating in the site's development and several events related to its opening. The Tatanka site houses the sculptures, a museum and a visitor center.

Kyle Wiese, one of two lawyers representing Costner at Monday's hearing, noted Detmers took part in the construction and mock up process and ground breaking ceremony at Tatanka in June 2003.

"All of this conduct -- taking part in the dedication ceremony and giving a speech -- indicated she was agreeable to put these sculptures at this location for the long term," Wiese said. He added that Costner said he would not have put nearly $6 million of his own money into building the Tatanka site if Detmers had not been agreeable to the location.

The Tatanka site is located on 85 acres of land next to 915 acres of land where Costner had envisioned building The Dunbar.

Detmers' lawyer, Andrew Damgaard, concedes Detmers agreed to the placement in 2003 at Tatanka. But he said she was under the impression The Dunbar still would be built.

"It's very clear from the record that people were telling her the resort was intended to be built, that it was intended to be built on that property," he said.

Costner did not attend the argument, which as I understand from the audio recording was held at University of South Dakota Law School.  Here is the list of issues on appeal.  Here's a good summary of the appeal.  And, finally, a link to the audio recording of the argument is found on this page.

[Meredith R. Miller]

http://lawprofessors.typepad.com/contractsprof_blog/2012/03/dances-with-bison-south-dakota-supreme-court-hears-contract-case-against-kevin-costner.html

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Comments

And a previous ContractsProf Blog post re: ambiguity here...

http://lawprofessors.typepad.com/contractsprof_blog/2011/07/dances-with-ambiguity.html

Posted by: Heidi R. Anderson | Mar 26, 2012 7:30:59 PM

Yes, thanks Heidi!

Posted by: Meredith R. Miller | Mar 27, 2012 12:42:01 PM

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