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JOHN v. SOTHEBY'S INC.

August 1, 1994

ERICA P. JOHN, Plaintiff,
v.
SOTHEBY'S INC., a foreign corporation, Defendant, v. JULIAN NAVA, Intervenor.


Edelstein


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 The prior pleadings in this action have been amended by the parties to eliminate several claims. (Plaintiff's Proposed Pretrial Order ("PPTO"), at P 1; Intervenor's Proposed Pretrial Order ("IPTO"), at P 1). Plaintiff's sole claim for relief is as follows: John claims "ownership of the Painting equally with the Estate of her late ex-husband, Harry John." (PPTO, at P 4A.). Intervenor's sole claim for relief is as follows: "Nava claims full title to the Painting." (IPTO, at P 4B).

 This Court tried this action without a jury in April 1994. Plaintiff and intervenor each called a single witness to testify at trial. In addition, intervenor read into the record portions of the deposition testimony of a witness who was not available to testify at trial, plaintiff's late ex-husband. Finally, the Parties offered documentary evidence. Pursuant to Federal Rule of Civil Procedure 52, this Opinion shall constitute the Court's written findings of fact and conclusions of law.

 FINDINGS OF FACT

 Plaintiff called a single witness to testify at trial, Erica P. John. Although John obviously has an interest in the outcome of this suit, I found her to be a credible witness. Intervenor also called a single witness, Thomas J. Jeffers. I did not find Mr. Jeffers to be a credible witness. Mr. Jeffers' demeanor on the witness stand, as well as his evident bias, undermined his credibility and drew into question the veracity of his testimony.

 Plaintiff currently resides in the State of Wisconsin. (Trial Transcript ("Tr."), at 14). Plaintiff and Harry John ("H. John") were married on September 22, 1956, and lived in Wisconsin during their marriage. (Tr., at 14). Shortly before plaintiff and H. John were married, H. John founded a company called Sacred Pictures Company ("Sacred"), which reproduced religious paintings and sold calendars incorporating those reproductions. (Tr., at 16, 68). H. John also founded and was president of a private charitable foundation, DeRance Inc. (Tr., at 17). During the course of her marriage to H. John, plaintiff worked with H. John at Sacred (Tr., at 16-17, 71-72), and served as a director of DeRance Inc. (Tr., at 18). Both of these companies were located in Wisconsin. (Tr., at 16-17, 23).

 During their marriage, plaintiff and H. John purchased several works of art. (Tr., at 19). The Painting was purchased by plaintiff and H. John in New York in 1960 after they viewed it at an exhibition held in Wisconsin. (Tr., at 19-20, 22; Plaintiff's Trial Exhibit ("PExh.") 7, 8). The Painting was the marital property of plaintiff and H. John and, as such, was jointly owned by them during their marriage. (Tr., at 19-24; PExh. 2, 3).

 On November 4, 1985, plaintiff and H. John were divorced in the State of Nevada. (Tr., at 14, 23). Upon the conclusion of the divorce proceeding in Nevada, an action was commenced in Wisconsin for the division of plaintiff's and H. John's marital property. (Tr., 23; PExh. 2, 3).

 In or around June 1985, H. John entered into a contract that purports to convey to intervenor any interest H. John had in the Painting. That contract, dated June 21, 1985 ("the June 21 Agreement"), is signed by H. John and reads:

 
I, HARRY G. JOHN, In consideration of $ 10.00 and other valuable consideration, hereby bargain, sell, and assign all of my right, title and interest in and to the Rembrant [sic] Painting, known as the "Christus" to DR. JULIAN NAVA, Ph.D., which is presently in possession of the Milwaukee Museum of Art, and I hereby authorize and direct the Museum to turn over possession of said painting to DR. JULIAN NAVA, Ph.D.

 (IExh. A). H. John testified by deposition that he sold the Painting to Nava and that the agreement, dated June 21, 1985, memorializes that transaction. (Tr., at 71).

 On January 4, 1989, plaintiff and H. John signed a Final Marital Settlement Agreement ("Settlement Agreement"). (PExh. 2). The Settlement Agreement was approved by the Family Court on February 8, 1989, and judgment was entered by the Family Court on that date. (PExh. 2).

 As relevant to this action, the Settlement Agreement provides:

 
VII. Paintings. The parties acknowledge that they have ownership of a painting by the artist Salvador Dali entitled "Jesus Christ" and another painting entitled "Christus" attributed to the artist Rembrandt Van Rijn. These paintings shall be placed for auction sale at Sotheby's New York City, New York at the next regularly scheduled action in May, 1989. . . . After costs of sale and reimbursement to art dealer . . . net proceeds from the sale of the paintings shall be divided equally between the parties.

 (PExh. 2, at 4-5).

 Pursuant to the terms of the Settlement Agreement, the Painting was consigned to Sotheby's on February 27, 1989. (PExh. 1). As already discussed, the Painting was withdrawn from auction when Nava presented to Sotheby's a claim of ownership in the Painting. H. John died on December 19, 1992. (Tr., at 14).

 CONCLUSIONS OF LAW

 A. Evidentiary Issues

 1. Admissibility of Trial Exhibits

 During the trial of this action, this Court reserved decision on the admissibility of four proposed trial exhibits. Specifically, the Court reserved decision on the admissibility of PExh. 6(id.); *fn1" Intervenor's Trial Exhibit ("IExh.") B(id.); IExh. C(id.); IExh. E(id.).

 PExh. 6(id.) is a two-page summary captioned "FEES AND EXPENSES ASSOCIATED WITH SALE OF REMBRANDT," to which is attached approximately seventy-two pages of what appear to be invoices from plaintiff's attorneys. This collection of documents was offered by plaintiff to show plaintiff's "attorney's fees which she has gone to in an effort to obtain possession of the ...


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