## Facts

- Kevin Costner planned a South Dakota resort project known as “The Dunbar” and hired sculptor Peggy A. Detmers (and her company, Detmers Studios, Inc.) to create large bronze bison sculptures intended for display at the resort’s entrance.
- As construction delays mounted, Detmers questioned whether the resort would be completed and stopped work on the sculptures.
- In 2000, the parties entered a new written agreement (a letter agreement signed by Detmers) under which Detmers agreed to finish the sculptures and Costner provided additional compensation and addressed future rights and contingencies.
- The 2000 agreement stated that if The Dunbar was not built within ten years “or the sculptures [were] not agreeably displayed elsewhere,” Costner would give Detmers 50% of the profits from a sale of the sculptures after recouping his costs.
- Costner did not build The Dunbar, but later developed “Tatanka: Story of the Bison,” a visitor center and museum located on part of the land originally planned for the resort.
- Costner decided to place the sculptures at Tatanka. Detmers participated in that decision and worked with Costner on planning and placement of the sculptures at the site.
- Tatanka opened in 2003 with the sculptures displayed there.
- After the resort remained unbuilt, Detmers sued Costner for breach of contract and sought declaratory and specific relief, including an order requiring a sale of the sculptures and payment of the contract’s 50% profit share.
- Detmers argued that Tatanka was not “elsewhere” because it was on property intended for The Dunbar, and she contended the contract’s sale/profit provision had been triggered. Detmers also testified she did not tell Costner that she disagreed with placing the sculptures at Tatanka.

## Issues

1. Whether the sculptures were “agreeably displayed elsewhere” under the 2000 agreement when they were installed at Tatanka with Detmers’s participation and without a contemporaneous objection.
2. Whether Tatanka qualified as “elsewhere” within the meaning of the contract even though it was located on part of the property originally associated with The Dunbar plan.
3. Whether, given the “agreeably displayed elsewhere” language, Costner had a contractual duty to sell the sculptures and pay Detmers 50% of profits when The Dunbar was not built within ten years.

## Decision

- After a bench trial, the circuit court entered judgment for Costner.
- The court found that the sculptures were “agreeably displayed elsewhere” because Detmers participated in the Tatanka placement and did not timely object to that display location.
- The court concluded that Tatanka was “elsewhere” for purposes of the agreement, even though it was on part of the land once contemplated for the resort.
- Because the “agreeably displayed elsewhere” condition was satisfied, the court held the contract did not require Costner to sell the sculptures or share 50% of profits from a sale.

## Legal Principles

- Contract interpretation begins with the agreement’s language read in context; if a term is not defined, the court may consider the parties’ actions and dealings to determine meaning.
- A party’s conduct in carrying out a contract term—such as participating in planning and placement of a display—may show agreement to that performance, especially when paired with silence or lack of timely objection.
- A location term like “elsewhere” may be interpreted according to the contract’s purpose and the parties’ arrangement, not solely by parcel lines, when the contract does not set a geographic boundary.
- A contingency clause tied to completion of a planned project does not, without clear language, create a guarantee the project will be built; the contract may allow an alternative performance (here, an agreed alternate display).

## Conclusion

The circuit court ruled for Costner because the evidence showed Detmers agreed to the sculptures’ installation at Tatanka and did not object at the time, making Tatanka an “elsewhere” display under the 2000 agreement; as a result, the agreement’s sale-and-profit-sharing remedy was not triggered and Costner had no duty to sell the sculptures or remit 50% of sale profits.


Detmers v. Costner, Civ. 09-60 (2011)