Ferebee v. Hobart

#24918, 25130-PER CURIAM
2009 SD 102

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
#24918

GEORGE FEREBEE, Petitioner and Appellant,

v.

STEVEN HOBART, Respondent and Appellee.

# 25130

GEORGE FEREBEE, Petitioner and Appellee.

v.

STEVEN HOBART, Respondent and Appellant.

* * * *

APPEALS FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOHN J. DELANEY
Judge

* * * *
TIMOTHY R. JOHNS
Johns & Kosel, Prof. LLC Attorneys for
Lead, South Dakota George Ferebee.

LINDA LEA M. VIKEN
Viken Law Firm Attorneys for
Rapid City, South Dakota Steven Hobart.
* * * *

CONSIDERED ON BRIEFS
AUGUST 24, 2009

OPINION FILED 11/24/09
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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 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, __ NW2d __.

[¶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 NW2d 509.

1. This is also a companion case to Hobart v. Ferebee, 2009 SD 101, ___ NW2d
___.
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[¶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, __ NW2d __.

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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 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

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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

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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 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 NW2d 843, 846. This applies as well to rulings on motions in limine. See

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Dahlin v. Holmquist, 766 P2d 239, 241 (Mont 1988); Gray v. Allen, 677 SE2d 862,

865 (NCCtApp 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 NW2d 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 111, ¶ 8, 616 NW2d 88, 91 (res judicata disallows

reconsidering an issue that was actually litigated or that could have been raised

and decided in a prior action).

[¶14.] This Court specifically addressed the role of res judicata in protection

order cases in White v. Bain, 2008 SD 52, 752 NW2d 203, another case of feuding

neighbors. In that case, Bain commenced her harassment of the Whites with a

series of offensive letters and phone calls. The Whites sought a protection order

which was denied. Bain then assaulted Mrs. White in her home and the Whites

again sought a protection order which was granted. The order was granted, in part,

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on the basis of the letters from Bain previously deemed insufficient for a protection

order. On appeal, Bain challenged the trial court’s reliance on the letters on the

grounds of res judicata. This Court rejected that argument, holding that the trial

court appropriately took judicial notice of the first protection order proceeding

during the second proceeding for purposes of background information.

[¶15.] In reaching our decision in White, we paid heed to principles of res

judicata as applied to claims arising out of continuing or renewed conduct such as

that of Bain. We held that, in such cases, evidence of underlying activity from a

prior claim may be admissible to prove a new claim, but that the emphasis must be

on acts committed subsequent to the prior claim because, absent those acts, res

judicata would bar the new claim. Accordingly, we concluded: “Because of Bain's

subsequent acts, however, we hold that res judicata did not bar the second action or

the trial court from considering her collection letters as part of the basis for

determining that stalking took place.” White, 2008 SD 52, ¶ 21, 752 NW2d at 209

(emphasis original).

[¶16.] The trial court here followed the same course as the trial court in

White. The trial court made clear numerous times that, despite granting Hobart’s

motion in limine, it was taking judicial notice of all of the prior protection order

proceedings between Ferebee and Hobart and that it had carefully reviewed the

records in those cases consisting of hundreds of pages of material. Thus, the trial

court’s order in limine did not exclude all evidence of the prior claims between

Ferebee and Hobart, but simply excluded the introduction of new or additional

evidence relevant to those claims. Under the circumstances of this case, the

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introduction of new or additional evidence of the prior claims would clearly have

risked confusion of the issues, undue delay, waste of time and needless presentation

of cumulative evidence. See Fiechuk, 2009 SD 62, ¶ 8, 769 NW2d at 846 (quoting

SDCL 19-12-3 (Rule 403)). The trial court’s ruling quite properly avoided these

risks and kept the focus of the case where it needed to be, on the subsequent acts of

harassment allegedly committed by Hobart and relevant to Ferebee’s new claim for

a protection order.

[¶17.] Even if the trial court did err in some respect with its order in limine,

we must also consider the prejudice to Ferebee. See e.g. Kostel v. Schwartz, 2008

SD 85, ¶ 22, 756 NW2d 363, 374; State v. Cottier, 2008 SD 79, ¶ 30, 755 NW2d 120,

132. Based upon its review of the extensive records in the prior cases and the

record and evidentiary hearing in the present case, the trial court was well aware of

the status of the parties and their posture toward one another. As the court found

in this regard:

[V]irtually all of the pre-July 31 incidents cited by
[Ferebee] are specifically raised and/or addressed in prior
proceedings, the remainder could have been and should
have been so addressed. Given the countless motions,
hearings, orders and appeals, neither party can claim a
lack of opportunity or knowledge. To the extent that
those events may add flavor or spice to this proceeding,
the Court has taken notice of them and is keenly aware of
their flavor. It neither needs nor desires further evidence
as to those incidents. The Court is simply not going to
rehash a dozen years of hostility when the multiple
claims, counterclaims, rebuttals and arguments have
already been presented on far too many occasions.

[¶18.] In view of the trial court’s familiarity with this case and its history as

well as with the parties, it is difficult to see how evidence of one more act or even a

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series of acts by Hobart would have changed the outcome of Ferebee’s protection

order proceeding. The court was well aware that both parties had been at fault in

their hostile relationship. The court specifically found that they had both engaged

in a “neighbors’ war” for as long as they had known each other, that both parties

had asserted a threat of guns, and that Hobart had not always acted or reacted

“irenically” 2 toward Ferebee. Nevertheless, the court found Ferebee the more

problematic of the two in maintaining their feud. The court found that Ferebee

could not accept any adverse ruling, that he continually sought reconsideration of

issues, that he had a self-righteous perception that any contrary view was wrong

and that Hobart had not demonstrated a similar degree of antagonism and

insistence. The court further found that Ferebee was given to more “Philippic

complaints” 3 and had a far more violent temper than Hobart. In that regard, the

court found that Ferebee had twice made threats involving guns against Hobart in

front of law enforcement officials and that he had even been threatening to, and

obnoxious with, law enforcement officers he had called for help. The court found

these actions indicative of a dangerous and threatening personality.

[¶19.] These findings and the court’s other findings in a similar vein

demonstrate that it was not so much an insufficiency of evidence of misconduct on

the part of Hobart that led to the denial of Ferebee’s protection order, but that

2. “Irenic” is defined as “[p]romoting peace; conciliatory.” The American
Heritage College Dictionary 717 (3rd ed 1997).

3. “Philippic” is defined in relevant part as, “[a] harsh, often insulting verbal
denunciation; a tirade.” The American Heritage College Dictionary 1026 (3rd
ed 1997).
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Ferebee was himself guilty of so much misconduct between the parties. A

protection order is a form of injunction and an injunction is an equitable remedy.

See Sjomeling v. Stuber, 2000 SD 103, ¶ 11, 615 NW2d 613, 616 (stating that

protection orders are a form of injunction); Durkee v. Van Well, 2002 SD 150, ¶ 13,

654 NW2d 807, 813 (stating that injunction is an equitable remedy). Those who

seek equity must do equity and come into court with clean hands. Quick v. Samp,

2005 SD 60, ¶ 16, 697 NW2d 741, 747 (citing Himrich v. Carpenter, 1997 SD 116,

¶¶ 21 – 2, 569 NW2d 568, 573). Those who do not should be left in the position in

which the court finds them. Id. Such was the result for Ferebee here.

[¶20.] Based upon the foregoing, even if the trial court did abuse its

discretion in limiting evidence of some additional act or acts of misconduct by

Hobart, the limitation was not ultimately prejudicial to Ferebee’s request for a

protection order in view of his own history of misconduct.

ISSUE TWO

[¶21.] Whether the trial court abused its discretion in awarding
Hobart attorney’s fees under SDCL 15-17-51.

[¶22.] Ferebee argues that the trial court erred in concluding that Hobart

was entitled to an award of attorney’s fees under SDCL 15-17-51. An award of

attorney’s fees is reviewed under the abuse of discretion standard of review.

Parsley v. Parsley, 2007 SD 58, ¶ 15, 734 NW2d 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 v. Reynick, 2009 SD 3, ¶ 13,

760 NW2d 139, 143 (citing Hahne v. Burr, 2005 SD 108, ¶ 22, 705 NW2d 867, 874).

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[¶23.] SDCL 15-17-51 provides:

If a civil action or special proceeding is dismissed and if
the court determines that it was frivolous or brought for
malicious purposes, the court shall order the party whose
cause of action or defense was dismissed to pay part or all
expenses incurred by the person defending the matter,
including reasonable attorney’s fees.

(Emphasis added).

[¶24.] Ferebee argues that his petition for a protection order was well

grounded in law and in fact and, therefore, was not frivolous or malicious so as to

entitle Hobart to an award of attorney’s fees under SDCL 15-17-51.

[¶25.] With regard to attorney’s fees, the trial court found that this action

was part of a continuing effort by Ferebee to harass Hobart, that Ferebee

demonstrated the attributes of a “righteous zealot” in his efforts to have Hobart

submit to his dictates, and that he flooded Hobart with every conceivable complaint

and accusation in hopes that one would strike home. The court further found

Ferebee “indefatigable” in his pursuit of Hobart and that his complaints were

unreasonable and frivolous. The court found “much” of Ferebee’s petition for a

protection order and his subsequent motions part of a “long line of frivolous and

unnecessary multiple filings addressing issues previously litigated or without a

sufficient legal basis.” In addition, the court found that Ferebee had Hobart

responding to multiple actions and motions in multiple courts including cases before

two different judges in the Seventh Circuit and cases before the U.S. District Court

and Eighth Circuit Court of Appeals. The court went on to detail Ferebee’s

numerous cases and motions before these courts, noting that a majority of his

motions dealt with issues that were res judicata. The court also noted that U.S.

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District Court Judge Bogue had issued an order prohibiting Ferebee from filing any

more motions at the district court level.

[¶26.] The trial court observed that, as a result of Ferebee’s extensive

litigation, Hobart had incurred over $90,000 in attorney’s fees while Ferebee,

representing himself pro se, had little cost. With specific regard to the standards of

frivolousness and maliciousness, the court found:

The continual litigation stems from Mr. Ferebee’s
intransigent view that he is right and Mr. Hobart, Judge
Davis, Judge Fuller, the South Dakota Supreme Court,
and Judge Bogue (and this Court) are all wrong in their
positions and rulings. The very nature of Mr. Ferebee’s
continual litigation is frivolous and malicious since Mr.
Ferebee continues to raise the same issues over and over,
even though the issues have been previously decided in
Mr. Hobart’s favor.

[¶27.] These and other similar findings by the trial court are well supported

by the voluminous record. Simply paging through the boxes of court files

establishes the nonsensical and repetitious nature of most of Ferebee’s pleadings

and his innumerable letters and requests to the court. As the trial court found,

Ferebee would simply not take “no” for an answer. If one motion or letter or inquiry

failed to obtain a result Ferebee found satisfying, he would immediately follow it up

with another motion or letter, and then another, and another, and so on. While

some of these practices could perhaps be attributed to Ferebee’s pro se status and

lack of familiarity with proper procedures, Ferebee can claim no advantage from his

status. See Oesterling v. Oesterling, 354 NW2d 735, 736 – 37 (SD 1984)(granting a

party an indulgence for lack of familiarity with the rules of pleading and practice

would grant liberties not accorded those who seek out counsel to represent them).

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Moreover, these tactics, employed in multiple court files in different courts at the

state and federal level at the same time, plainly exhibit a strategy designed to

utilize the court system and rules of procedure as tools to further harass and

intimidate Hobart as much as to obtain valid redress for a wrong.

[¶28.] Clearly Ferebee’s campaign of aggressive and harassing pro se

litigation against Hobart fell within the bounds of frivolous and malicious litigation

as defined by law. See Pioneer Bank & Trust, 2009 SD 3, ¶ 15, 760 NW2d at 143

(frivolousness connotes an improper motive or legal position so wholly without merit

as to be ridiculous, and maliciousness exists where the primary motive of a claim is

hostility or ill will).

[¶29.] Based upon the trial court’s detailed findings as to the frivolousness

and maliciousness of Ferebee’s action and the record support for those findings,

there was no abuse of discretion by the trial court in awarding Hobart attorney’s

fees under SDCL 15-17-51.

ISSUE THREE

[¶30.] Whether the trial court abused its discretion in denying
Hobart’s motion for a permanent injunction against Ferebee.

[¶31.] As a remedy for Ferebee’s ongoing pattern of filing frivolous and

harassing legal pleadings and documents, Hobart sought a permanent injunction to

prohibit Ferebee from filing any motion, petition, pleading, or new lawsuit against

him without leave of the court. The trial court denied the motion. Hobart contests

the denial.

Granting or denying an injunction rests in the sound
discretion of the trial court. We will not disturb a ruling
on injunctive relief unless we find an abuse of discretion.

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An abuse of discretion can simply be an error of law or it
might denote a discretion exercised to an unjustified
purpose, against reason and evidence.

Halls v. White, 2006 SD 47, ¶ 4, 715 NW2d 577, 579 (quoting Hendrickson v.

Wagners, Inc., 1999 SD 74, ¶ 14, 598 NW2d 507, 510 – 11). Further, in reviewing a

trial court’s decision on an injunction, this Court reviews the trial court’s findings of

fact under the clearly erroneous standard, but gives no deference to its conclusions

of law. Halls, 2006 SD 47, ¶ 4, 715 NW2d at 579 (citing Hendrickson, 1999 SD 74, ¶

9, 598 NW2d at 509).

[¶32.] With regard to the injunction issue, the trial court found that Ferebee

had established a litigious course of conduct over a period of nearly ten years in

front of three different circuit court judges, the South Dakota Supreme Court, the

United States District Court for South Dakota, and the United States Court of

Appeals for the Eighth Circuit. The court further found that Ferebee’s positions in

these cases were often unsupported by law or barred by res judicata and collateral

estoppel and, therefore, his pleadings and other documents were filed for frivolous

and malicious reasons. Despite these findings, the trial court denied Hobart an

injunction, determining that “pecuniary compensation to Hobart in the form of

attorney’s fees and/or monetary sanctions” would be more appropriate than a

permanent injunction.

[¶33.] There was no abuse of discretion by the trial court in its decision. As

the facts of this matter demonstrate, the relationship between Ferebee and Hobart

is extremely tense and the trial court is better placed than this Court to resolve

which remedies might best address the situation and serve to defuse it rather than

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exacerbate it. Moreover, Hobart acknowledges in his brief that the various trial

courts have only recently begun to award him attorney’s fees for Ferebee’s frivolous

court filings and many of those fees are now on appeal to this Court. Thus, Ferebee

has yet to feel the full weight of attorney’s fee sanctions for his frivolous filings and

it cannot yet be determined what effect those sanctions may have on his litigious

conduct. Thus, the trial court was well placed in determining that it was better to

give those sanctions an opportunity to work before imposing an even more severe

sanction on Ferebee such as an injunction. See Cutshaw v. Karim, 256 NW2d 566,

568 – 69 (SD 1977)(stating that the extraordinary remedy of an injunction will not

lie where the plaintiff has another adequate remedy). See also e.g. Morning Star

Baptist Church v. James City County Police, 480 FSupp2d 853, 862 (EDVa

2007)(affirming the imposition of a pre-filing injunction where the pro se plaintiff’s

litigation history showed that a monetary sanction alone would not deter his future

abuse of judicial process).

CONCLUSIONS

[¶34.] Based upon the foregoing analysis, the trial court did not abuse its

discretion in granting Hobart’s motion in limine or in awarding Hobart attorney’s

fees under SDCL 15-17-51, nor did the trial court abuse its discretion in denying

Hobart’s motion for a permanent injunction.

Appellate Attorney’s Fees

[¶35.] Hobart has filed a motion for appellate attorney’s fees related to

Ferebee’s appeal of the attorney’s fees the trial court awarded to Hobart under

SDCL 15-17-51. The motion is accompanied by an itemized statement of costs

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incurred and legal services rendered. Based upon the above conclusions, Hobart is

eligible for appellate attorney’s fees on the portion of the appeal related to SDCL 15-

17-51. See Flugge v. Flugge, 2004 SD 76, ¶ 38, 681 NW2d 837, 846 – 47.

Accordingly, Hobart is granted appellate attorney’s fees of $3,651.81.

[¶36.] Affirmed.

[¶37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

MEIERHENRY and SEVERSON, Justices, participating.

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