Ferebee v. Hobart, No. 24918.

CourtSupreme Court of South Dakota
Writing for the CourtPer Curiam
Citation776 N.W.2d 58,2009 SD 102
Docket NumberNo. 24918.,No. 25130.
Decision Date24 November 2009
PartiesGeorge FEREBEE, Petitioner and Appellant, v. Steven HOBART, Respondent and Appellee. George Ferebee, Petitioner and Appellee. v. Steven Hobart, Respondent and Appellant.
776 N.W.2d 58
2009 SD 102
George FEREBEE, Petitioner and Appellant,
v.
Steven HOBART, Respondent and Appellee.
George Ferebee, Petitioner and Appellee.
v.
Steven Hobart, Respondent and Appellant.
No. 24918.
No. 25130.
Supreme Court of South Dakota.
Considered on Briefs August 24, 2009.
Decided November 24, 2009.

[776 N.W.2d 59]

Timothy R. Johns, Johns & Kosel, Prof. LLC, Lead, South Dakota, Attorney for George Ferebee.

Linda Lea M. Viken, Viken Law Firm, Rapid City, South Dakota, Attorney for Steven Hobart.

PER CURIAM.


[¶ 1.] George Ferebee appeals a trial court judgment and order denying his petition for a protection order against Steven Hobart and granting Hobart attorney's fees. Hobart appeals that part of the

776 N.W.2d 60

judgment and order denying his motion for a permanent injunction as a sanction against Ferebee. The appeals have been consolidated for purposes of briefing and a decision by this Court.1 We affirm.

FACTS
Background

[¶ 2.] This is another set of appeals arising out of a long-standing feud between rural Pennington County neighbors George Ferebee (Ferebee) and Steven Hobart (Hobart). Some of the same background is provided here as in Hobart, 2009 SD 101, 776 N.W.2d 67.

[¶ 3.] Ferebee and Hobart have had a series of serious disputes for well over two decades. During that time, they have exchanged numerous accusations and complaints about insolent, devious, destructive and even assaultive behavior. For example, Hobart once accused Ferebee of making death threats against his family. Ferebee reported on another occasion that Hobart's son tried to hit him with an automobile. Ultimately, Hobart and Ferebee obtained protection orders against each other and, later, extensions of those orders. In 2003, Hobart obtained a new protection order against Ferebee, which Ferebee appealed to this Court. Ferebee obtained a reversal of some of the provisions of that order in this Court's decision in Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d 509.

[¶ 4.] Following the 2004 Hobart decision, Ferebee began a campaign of litigation against Hobart by filing numerous motions for reconsideration, modification, or clarification of various aspects of the protection orders in place between the two men. As soon as the trial court would decide one motion and resolve one matter, Ferebee would immediately follow it up with a new motion and an allegedly new issue for consideration. In reality, Ferebee simply recycled many of his prior arguments and attempted to relitigate matters previously decided. Nevertheless, these tactics generated extensive paperwork and a number of trial court hearings. Thus, a relatively straightforward protection order case grew into a five volume court file. While Ferebee did receive some assistance and advice from counsel in his litigation, most of his work was pro se while Hobart retained counsel and incurred extensive attorney's fees.

[¶ 5.] Ultimately, the trial court denied a motion by Ferebee to dismiss Hobart's protection order and awarded Hobart attorney's fees related to the motion. This generated a number of additional pro se motions by Ferebee and, eventually, his appeal of the attorney's fee award to this Court. By order, this Court reversed and remanded the award for the trial court to hold a hearing and enter findings of fact and conclusions of law to support it. This was accomplished over the same course of time that the court was ruling on a number of Ferebee's other pro se motions in the case. The final judgments and orders on these matters were appealed in Hobart, 2009 SD 101, 776 N.W.2d 67.

Ferebee's Petition for a Protection Order

[¶ 6.] On October 30, 2007, while the above proceedings relating to Hobart's protection order against Ferebee were still pending, Ferebee filed his own petition for a protection order against Hobart. In the ensuing litigation, Ferebee utilized the same tactics previously employed in contesting Hobart's protection order and barraged the court and opposing counsel with numerous pro se motions and requests, sometimes issuing multiple pleadings and

776 N.W.2d 61

letters on the same day. Ferebee would not accept a ruling or an answer. As soon as the trial court addressed one of his motions or concerns, Ferebee would follow it up with another motion or letter, often simply rephrasing or reformulating previous arguments. All of this paperwork required a response from opposing counsel and further attention by the court. The continuation of these tactics generated another three volume court file and more attorney's fees for Hobart.

[¶ 7.] A persistent point of contention in the case was Ferebee's attempt to go back to the beginning of his dispute with Hobart to establish the grounds for his protection order. Ferebee's forty-six page petition and attachments contained numerous rambling allegations of misconduct by Hobart dating back some twenty years. Most of these allegations had been the subject of previous litigation between Ferebee and Hobart as part of the prior protection order proceedings between them. Nevertheless, Ferebee persisted in efforts to relitigate these matters and to call witnesses to testify about them. The trial court refused to accede to this tactic and, on Hobart's motion, issued an order in limine limiting the scope of the testimony in the case to incidents occurring on or after July 31, 2007. Ferebee strenuously resisted this order even up to the time of the protection order hearing. During the hearing itself, he spent considerable time continuing to contest the order in limine even in the face of repeated instructions from the trial court to proceed.

[¶ 8.] Following the protection order hearing on February 8, 2008, the trial court entered findings of fact and conclusions of law denying and dismissing Ferebee's petition for a protection order and awarding Hobart attorney's fees incurred in resisting the petition. The court's findings and conclusions generated another wave of pro se filings by Ferebee including motions for sanctions and various letters and inquiries to the court.

Hobart's Motion for an Injunction and for Dismissal of Ferebee's Petition

[¶ 9.] On April 9, 2008, Hobart filed a motion for a permanent injunction against Ferebee as a sanction to prohibit further frivolous court filings by him. While that motion was pending, the court inadvertently entered a form order dismissing Ferebee's petition for a protection order. Nothing was contained in the order regarding attorney's fees or Hobart's motion for an injunction. Because of these omissions, Hobart moved the court to set aside its order of dismissal for correction of clerical mistakes pursuant to SDCL 15-6-60(a). A hearing was held on the motion on May 12, 2008, during which the court conceded errors and omissions in its order and indicated an intention to set it aside. A further hearing on the issue was set but, before that hearing could be held Ferebee served notice of entry of the court's order of dismissal and a notice of appeal of the order to this Court. This necessitated a motion by Hobart for this Court to remand the case to the trial court for further consideration of the matters left pending by the trial court's erroneously granted order of dismissal. This Court entered its order of remand on July 25, 2008.

Hearing on Remand and Appeal

[¶ 10.] On November 14, 2008, the trial court held its hearing on remand of the case from this Court. Issues considered included: Hobart's motion to set aside the trial court's erroneously granted order of dismissal; Hobart's motion for an injunction against Ferebee; and Hobart's motion for attorney's fees. On December 8, 2008, the trial court entered findings of fact, conclusions of law and a judgment and order: granting Hobart's motion to set aside its previous order dismissing Ferebee's

776 N.W.2d 62

petition for a protection order; denying Ferebee's petition for a protection order and dismissing his case with prejudice; denying Ferebee's motion for sanctions; granting Hobart total attorney's fees in the matter of $18,199.68; and denying Hobart's motion for a permanent injunction against Ferebee. Ferebee appeals the denial and dismissal of his petition for a protection order and the award of attorney's fees to Hobart. Hobart appeals the denial of an injunction against Ferebee.

ISSUE ONE

[¶ 11.] Whether the trial court abused its discretion in granting Hobart's motion in limine.

[¶ 12.] Ferebee argues that the trial court erred in granting Hobart's motion in limine excluding evidence of alleged acts of harassment by Hobart occurring prior to July 31, 2007. This Court reviews a decision to admit or deny evidence under the abuse of discretion standard. Fiechuk v. Wilson Trailer Co., Inc., 2009 SD 62, ¶ 8, 769 N.W.2d 843, 846. This applies as well to rulings on motions in limine. See Dahlin v. Holmquist, 235 Mont. 17, 766 P.2d 239, 241 (1988); Gray v. Allen, 677 S.E.2d 862, 865 (N.C.Ct.App.2009). Although relevant evidence is generally admissible, SDCL 19-12-2 (Rule 402), it may be excluded "`if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'" Fiechuk, 2009 SD 62, ¶ 8, 769 N.W.2d at 846 (quoting SDCL 19-12-3 (Rule 403)). Trial courts are vested with wide discretion in their evidentiary rulings and this discretion is afforded as well in a court's balancing of unfair prejudice against probative value. Id.

[¶ 13.] The trial court's ruling on the motion in limine was based upon its determination that acts of alleged harassment between the parties occurring before July 31, 2007, were raised or could have been raised in the prior protection order proceedings between them. Accordingly, the court determined that evidence of those acts must be excluded in the present case under principles of res judicata. See Ramos v. Weber, 2000 SD...

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16 practice notes
  • State v. Miller, No. 27198.
    • United States
    • Supreme Court of South Dakota
    • December 7, 2016
    ..."This Court reviews a decision to admit or deny evidence under the abuse of discretion standard." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidenc......
  • State v. Miller, #27198
    • United States
    • Supreme Court of South Dakota
    • December 7, 2016
    ..."This Court reviews a decision to admit or deny evidence under the abuse of discretion standard." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, andPage 14 clearly against reason and ......
  • State v. Bausch, No. 27526.
    • United States
    • Supreme Court of South Dakota
    • January 4, 2017
    ...N.W.2d 100, 105 ) (citations omitted). "This applies as well to rulings on motions in limine." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." State......
  • Jas Enters., Inc. v. BBS Enters., Inc., Nos. 26414
    • United States
    • Supreme Court of South Dakota
    • July 17, 2013
    ...“This Court reviews a decision to admit or deny evidence under the abuse of discretion standard.” Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62 (citing Fiechuk v. Wilson Trailer Co., Inc., 2009 S.D. 62, ¶ 8, 769 N.W.2d 843, 846). “This applies as well to rulings on motions in li......
  • Request a trial to view additional results
16 cases
  • State v. Miller, No. 27198.
    • United States
    • Supreme Court of South Dakota
    • December 7, 2016
    ..."This Court reviews a decision to admit or deny evidence under the abuse of discretion standard." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidenc......
  • State v. Miller, #27198
    • United States
    • Supreme Court of South Dakota
    • December 7, 2016
    ..."This Court reviews a decision to admit or deny evidence under the abuse of discretion standard." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, andPage 14 clearly against reason and ......
  • State v. Bausch, No. 27526.
    • United States
    • Supreme Court of South Dakota
    • January 4, 2017
    ...N.W.2d 100, 105 ) (citations omitted). "This applies as well to rulings on motions in limine." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." State......
  • Jas Enters., Inc. v. BBS Enters., Inc., Nos. 26414
    • United States
    • Supreme Court of South Dakota
    • July 17, 2013
    ...“This Court reviews a decision to admit or deny evidence under the abuse of discretion standard.” Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62 (citing Fiechuk v. Wilson Trailer Co., Inc., 2009 S.D. 62, ¶ 8, 769 N.W.2d 843, 846). “This applies as well to rulings on motions in li......
  • Request a trial to view additional results

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