Hobart v. Ferebee, No. 24885.

CourtSupreme Court of South Dakota
Writing for the CourtPer Curiam
Citation776 N.W.2d 67,2009 SD 101
PartiesSteven HOBART, Petitioner and Appellee, v. George FEREBEE, Respondent and Appellant.
Docket NumberNo. 25081.,No. 24885.
Decision Date24 November 2009
776 N.W.2d 67
2009 SD 101
Steven HOBART, Petitioner and Appellee,
v.
George FEREBEE, Respondent and Appellant.
No. 24885.
No. 25081.
Supreme Court of South Dakota.
Considered on Briefs August 24, 2009.
Decided November 24, 2009.

[776 N.W.2d 69]

Linda Lea M. Viken, Viken Law Firm, Rapid City, South Dakota, Attorney for petitioner and appellee.

Timothy R. Johns, Johns & Kosel, Prof. LLC, Lead, South Dakota, Attorney for respondent and appellant.

PER CURIAM.


[¶ 1.] George Ferebee appeals three orders awarding Steven Hobart attorney's fees totaling $12,445.91 incurred in responding to a series of motions brought by Ferebee in a protection order case. The appeals have been consolidated for purposes of briefing and a decision by this Court.1 We affirm.

FACTS
Background

[¶ 2.] These appeals arise out of a long-standing feud between rural Pennington County neighbors George Ferebee (Ferebee) and Steven Hobart (Hobart). The two men 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.

[¶ 3.] 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

776 N.W.2d 70

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.

Ferebee's Motion to Dismiss Hobart's Protection Order

[¶ 4.] Against the above backdrop, on September 10, 2007, Ferebee filed a motion to dismiss a protection order granted to Hobart, claiming that the order had expired. Hobart resisted on res judicata grounds, alleging that the duration of the protection order was fixed in a previous order appealed to this Court, that the duration of the order was an issue in the appeal, and that this Court summarily affirmed the order. A hearing was held on Ferebee's motion to dismiss on September 28, 2007, and the trial court denied the motion, agreeing with Hobart's position. During the hearing, Hobart's counsel announced her intention to seek attorney's fees from Ferebee. Counsel subsequently served a written motion for attorney's fees in the amount of $1,445.18 which the trial court granted without a hearing. Ferebee appealed the award of attorney's fees to this Court claiming that the trial court erred in granting the fees without a hearing. This Court agreed and entered an order of reversal (without an opinion) on May 27, 2008. As part of its order, this Court remanded the matter of attorney's fees to the trial court for a hearing and the entry of findings of fact and conclusions of law necessary to support an award of attorney's fees.

Ferebee's Motion for Rule 11 Corrections or Sanctions

[¶ 5.] While the foregoing appeal of the original attorney's fee award was pending before this Court, Ferebee filed a pro se motion with the trial court captioned, "Motion for Rule 11 Corrections or if Needed Rule 11 Sanctions for Motion for Attorney's Fees." In his motion, Ferebee sought Rule 11 sanctions2 against Hobart claiming that Hobart's original motion for attorney's fees failed to comport with the law. Hobart resisted, arguing that the trial court had no jurisdiction to hear a motion relating to the original attorney's fee award because of Ferebee's pending appeal of the issue before this Court. A hearing was held on Ferebee's motion on February 13, 2008. After the hearing, the trial court denied Ferebee's motion for Rule 11 sanctions and granted Hobart attorney's fees of $688.50. Ferebee appealed the judgment and order denying Rule 11 sanctions and granting Hobart attorney's fees to this Court on May 5, 2008.

[¶ 6.] After entry of this Court's order of May 27, 2008, reversing and remanding the original attorney's fee award, Hobart filed a motion for limited remand of Ferebee's appeal of the judgment and order denying Rule 11 sanctions and granting Hobart attorney's fees. Hobart asserted that no hearing was held on the attorney's fees and that this Court's order of remand of the original attorney's fee award meant that a hearing should also have been held as to attorney's fees on the Rule 11 motion. Hobart sought the limited remand for purposes of holding a hearing and the entry of findings of fact and conclusions of law to support his award of attorney's fees. Although this Court initially denied the limited remand, it subsequently reconsidered and granted the motion on July 9, 2008.

Ferebee's Motion for Determinations and Rationale Thereof

[¶ 7.] On May 9, 2008, while both of the above matters were still pending before

776 N.W.2d 71

this Court, Ferebee served yet a third pro se motion captioned "Motion for Determinations and Rationale Thereof." By this motion, Ferebee requested that the trial court provide the rationale for its earlier judgment and order denying him Rule 11 sanctions and granting Hobart attorney's fees. Hobart resisted the motion, sought its dismissal, and further sought an award of attorney's fees under Rule 11. A hearing was held on Ferebee's motion on May 27, 2008, and the trial court orally denied and dismissed it and awarded Hobart attorney's fees of $446.20. However, after learning of this Court's order of May 27 reversing and remanding the original attorney's fee award to Hobart, the trial court entered an order granting a separate hearing on the issue of attorney's fees related to Ferebee's "Motion for Determinations and Rationale Thereof."

Consolidated Hearing on Attorney's Fees

[¶ 8.] On July 23, 2008, the trial court scheduled a consolidated hearing on all of the outstanding attorney's fee issues between Hobart and Ferebee that had been remanded by this Court to the trial court or that remained pending before the trial court. Accordingly, the hearing, held on August 26, 2008, considered attorney's fees related to: Ferebee's original motion to dismiss Hobart's protection order; Ferebee's motion for Rule 11 corrections or sanctions; and, Ferebee's motion for determinations and rationale thereof.

Trial Court's Decision and Appeal

[¶ 9.] Following the consolidated hearing on attorney's fees, the trial court entered separate findings of fact, conclusions of law and judgments and orders awarding Hobart a total of $12,445.91 in attorney's fees incurred in responding to Ferebee's three motions. Ferebee appealed these judgments and orders in a notice of appeal filed December 10, 2008. The appeals have been consolidated for purposes of briefing and a decision by this Court.3

STANDARDS OF REVIEW

[¶ 10.] Under SDCL 15-6-11(e), appeals pursuant to SDCL 15-6-11(a) through 15-6-11(d) are considered "without any presumption of the correctness of the trial court's findings of fact and conclusions of law." Rather, an award of sanctions under these provisions is reviewed for abuse of discretion. Pioneer Bank & Trust v. Reynick, 2009 SD 3, ¶ 13, 760 N.W.2d 139, 143 (citing Hahne v. Burr, 2005 SD 108, ¶ 22, 705 N.W.2d 867, 874). An award of attorney's fees is also reviewed under the abuse of discretion standard. Parsley v. Parsley, 2007 SD 58, ¶ 15, 734 N.W.2d 813, 817-18. "An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Pioneer Bank & Trust, 2009 SD 3, ¶ 13, 760 N.W.2d at 143 (citing Hahne, 2005 SD 108, ¶ 22, 705 N.W.2d at 874).

ISSUE ONE

[¶ 11.] Whether the trial court abused its discretion in granting Hobart attorney's fees incurred in responding to Ferebee's motion for determinations and rationale thereof.

[¶ 12.] Ferebee argues that the trial court abused its discretion in granting Hobart attorney's fees incurred in responding

776 N.W.2d 72

to Ferebee's motion for determinations and rationale thereof because Hobart failed to file a motion for attorney's fees in compliance with the "safe harbor provisions" of SDCL 15-6-11(c)(1)(A).

[¶ 13.] SDCL 15-6-11(c)(1)(A) provides in pertinent part:

A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate § 15-6-11(b). It shall be served as provided in § 15-6-5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

[¶ 14.] This rule...

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5 practice notes
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • 24 Noviembre 2009
    ...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 [¶ 3.] Ferebee and Hobart have had a series of serious disputes for well over two decades. During that time, they have exchanged numerous ......
  • Johnson v. Miller, No. 26188.
    • United States
    • Supreme Court of South Dakota
    • 15 Agosto 2012
    ...subjectively knowing that there is no basis, that claim or defense could be deemed frivolous. See Hobart v. Ferebee, 2009 S.D. 101, ¶ 28, 776 N.W.2d 67, 75 (affirming award of attorney's fees after repeated motions were made on previously litigated issues). The claim or defense might also b......
  • Smizer v. Drey, No. 27192.
    • United States
    • Supreme Court of South Dakota
    • 6 Enero 2016
    ...law specifically directs that an appeal under Rule 11 is reviewed for an abuse of discretion. Hobart v. Ferebee, 2009 S.D. 101, ¶ 10, 776 N.W.2d 67, 71 ; Pioneer Bank & Tr. v. Reynick, 2009 S.D. 3, ¶ 13, 760 N.W.2d 139, 143 ; Hahne v. Burr, 2005 S.D. 108, ¶ 22, 705 N.W.2d 867, 874 ; Prunty ......
  • Hiller v. Hiller, 28294
    • United States
    • Supreme Court of South Dakota
    • 24 Octubre 2018
    ...15-6-37(a)(4)(A) where circuit court’s findings "sufficiently justified the imposed sanctions"); Hobart v. Ferebee , 2009 S.D. 101, ¶ 28, 776 N.W.2d 67, 75 (affirming attorney fees award for frivolous or malicious filing under SDCL 15-17-51 where circuit court’s findings detailed conduct of......
  • Request a trial to view additional results
5 cases
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • 24 Noviembre 2009
    ...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 [¶ 3.] Ferebee and Hobart have had a series of serious disputes for well over two decades. During that time, they have exchanged numerous ......
  • Johnson v. Miller, No. 26188.
    • United States
    • Supreme Court of South Dakota
    • 15 Agosto 2012
    ...subjectively knowing that there is no basis, that claim or defense could be deemed frivolous. See Hobart v. Ferebee, 2009 S.D. 101, ¶ 28, 776 N.W.2d 67, 75 (affirming award of attorney's fees after repeated motions were made on previously litigated issues). The claim or defense might also b......
  • Smizer v. Drey, No. 27192.
    • United States
    • Supreme Court of South Dakota
    • 6 Enero 2016
    ...law specifically directs that an appeal under Rule 11 is reviewed for an abuse of discretion. Hobart v. Ferebee, 2009 S.D. 101, ¶ 10, 776 N.W.2d 67, 71 ; Pioneer Bank & Tr. v. Reynick, 2009 S.D. 3, ¶ 13, 760 N.W.2d 139, 143 ; Hahne v. Burr, 2005 S.D. 108, ¶ 22, 705 N.W.2d 867, 874 ; Prunty ......
  • Hiller v. Hiller, 28294
    • United States
    • Supreme Court of South Dakota
    • 24 Octubre 2018
    ...15-6-37(a)(4)(A) where circuit court’s findings "sufficiently justified the imposed sanctions"); Hobart v. Ferebee , 2009 S.D. 101, ¶ 28, 776 N.W.2d 67, 75 (affirming attorney fees award for frivolous or malicious filing under SDCL 15-17-51 where circuit court’s findings detailed conduct of......
  • Request a trial to view additional results

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