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August 8, 1978

Georgia O'KEEFFE, Plaintiff,
Doris BRY, Defendant

The opinion of the court was delivered by: LASKER

For many years during her remarkable and long artistic career, Georgia O'Keeffe employed the services of a commissioned sales agent, Doris Bry. *fn1" Bry was authorized to sell not only O'Keeffe's works of art, which include paintings, watercolors, drawings and pastels, but also the photographic works of Alfred Stieglitz, O'Keeffe's late husband.

After an apparent falling out between the artist and her agent, O'Keeffe terminated the agency (see Exhibit F, Downey Affidavit) and demanded the return of all her works of art, as well as the works of Stieglitz. When Bry refused to honor O'Keeffe's demand, this action was commenced, in May, 1977. O'Keeffe prays for the return of all of her and Stieglitz's works and seeks an accounting by Bry for moneys due on the sale of those works.

Shortly after the filing of the complaint, O'Keeffe moved for a preliminary injunction, requiring that all the relevant artworks (as well as certain ancillary items belonging to her) in Bry's custody be transferred to a safe place. Upon finding, Inter alia, that "Miss O'Keeffe is the owner of the properties for which she seeks replevin or recovery," (Transcript of proceedings of June 10, 1977 at 33), the motion was granted. No order was entered because counsel for Bry represented that his client would comply voluntarily.

 After preliminary relief had been granted, Bry then filed an answer, later superseded by an amended answer, which asserted five counterclaims, for breach of contract and for recovery in Quantum meruit. O'Keeffe moved to dismiss the counterclaims on the grounds that: (1) the contract claims were barred by the statute of frauds and (2) the Quantum meruit claim was precluded by the existence of an express contract covering the services for which equitable restitution was sought. In opposition, Bry argued that with regard to the contract claims, discovery might yield documents satisfying the statute of frauds requirement. As for the allegedly preemptive express contract, Bry contended that examination of the contract alone gave no indication whether the services underlying the Quantum meruit claim were within the ambit of the express agreement. It was claimed that resolution of the Quantum meruit claim involved a question of interpretation, a matter of fact that could not be decided on the motion to dismiss. On August 12, 1977, the motion to dismiss the counterclaims was denied, without prejudice to renewal after completion of the following discovery: (1) the taking of depositions of Bry and Downey (O'Keeffe's personal attorney), and (2) the delivery to the court for In camera inspection of O'Keeffe's wills and trusts (which documents Bry believed would contain the written terms of the oral agreements asserted in her counterclaims).

 Now, after completion of that discovery, as well as production of the wills and trusts for inspection by Bry's counsel, O'Keeffe renews her motion to dismiss the counterclaims pursuant to 12(b)(6), Federal Rules of Civil Procedure, or, in the alternative, to dispose of them by summary judgment. Because Bry has failed to raise a genuine issue of fact that there is any writing sufficient to satisfy the statute of frauds, judgment is granted in O'Keeffe's favor with respect to the first three counterclaims. As for the fourth counterclaim, in Quantum meruit, although it presently appears that it may be barred by the express contract governing the O'Keeffe/Bry business relationship, the question whether services for which Bry seeks additional compensation are covered by the contract raises a genuine issue of material fact that cannot be resolved on the present state of the record. *fn2"


 Before analyzing the impact of the statute of frauds on the counterclaims, two preliminary issues, of discovery and choice of law, must be resolved.


 First, Bry's counsel contends that until O'Keeffe is deposed, it will be impossible to know whether there exists some document sufficient to satisfy the writing requirement. Against the history of this case, this contention appears to be disingenuous.

 At the outset of this litigation, Bry submitted a sworn statement (Bry Affidavit, June 6, 1977) in which she unequivocally identified the documents said to contain the alleged oral agreements: these were the "Harvard Agreement" and O'Keeffe's wills and trusts (Id., at PP 12, 13, 16, quoted Infra at 828; and P 27). Upon our view that production of these extremely personal documents would constitute a possibly unwarranted invasion of O'Keeffe's privacy, we declined to order their immediate transmittal to Bry. Instead, they were submitted for In camera inspection. Review quickly revealed that the documents did not contain the claimed agreements, and this was communicated to Bry's counsel.

 All agreed that the documentation issue ought to be expeditiously resolved, and to this end, Bry's deposition testimony was crucial. However, months passed without any word from Bry's corner how, in light of the court's negative findings with regard to the wills and trusts, Bry expected to establish her contractual counterclaims. (Apparently, substantial delays were experienced in the attempt to depose Bry.) In March, 1978, a conference was called and the court requested that Bry demonstrate how she planned to eliminate the apparent bar of the statute of frauds. At the court's request, and on the basis of Bry's deposition testimony, her counsel submitted a letter with a "list of documents upon which we rely to fulfill the Statute's requirements." *fn3" The list mentions: (1) seventeen documents that were marked at the depositions of Bry and Downey, (2) drafts including the final one of the Harvard Agreement, (3) O'Keeffe's wills and trusts, and (4) ten letters from the correspondence between Downey and O'Keeffe, as to which O'Keeffe asserted the attorney client privilege. *fn4" (The deposition documents and the drafts of the Harvard Agreement, all of which papers Bry's counsel had seen at the time the letter was written, were merely listed. No explanation was offered how they satisfied the statute of frauds.) The newly denominated items were submitted for inspection by the court. Again, it was plain that none of them contained a contractual commitment by Bry to O'Keeffe.

 Nevertheless, disposition of the contractual counterclaims was deferred. A pre-trial conference was held in May, 1978, and at the urging of Bry's counsel, the court agreed to make the wills and trusts available under a protective order. Bry's counsel was instructed to complete their inspection of the documents and to identify those portions of the wills, trusts, and any other writings that, in their view, established compliance with the statute of frauds.

 In response to this straightforward request, Bry's counsel two months later submitted a lengthy affidavit. *fn5" Most of it is unresponsive, but to the extent that the affidavit does not analyze the wills and trusts, it confirms the court's earlier conclusion that those documents do not embody a contractual commitment. Bry's counsel now urges inspection of 82 further documents, which have been withheld under a claim of attorney client privilege, *fn6" and he repeats the need to depose O'Keeffe. As for the requested deposition, no offer of proof is made. Indeed, we can conceive of no purpose that such deposition would serve, except to ask O'Keeffe if she ever executed a writing containing any of the promises alleged by Bry. This question could long since have been resolved by written interrogatory.

 In sum, Bry's position on the identity of the alleged writings has evolved from one of specificity to one of undefined generality.


 Bry suggests that enforceability of the alleged contracts is controlled by New Mexico law, whose statute of frauds is said to present "no possible bar to the contracts pleaded" (Bry Memorandum of July 20, 1977, at 20). New Mexico law might permit the enforcement of some of the contracts alleged by Bry, notwithstanding the ...

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