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O''Keeffe v. Snyder

Decided: July 17, 1980.

GEORGIA O'KEEFFE, PLAINTIFF-RESPONDENT,
v.
BARRY SNYDER, D/B/A PRINCETON GALLERY OF FINE ART, DEFENDANT-APPELLANT, AND ULRICH A. FRANK, THIRD PARTY DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 170 N.J. Super.. 75 (1979).

For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber and Pollock. For affirmance -- Justices Sullivan and Handler. The opinion of the Court was delivered by Pollock, J. Sullivan, J., dissenting. Handler, J., dissenting.

Pollock

This is an appeal from an order of the Appellate Division granting summary judgment to plaintiff, Georgia O'Keeffe, against defendant, Barry Snyder, d/b/a Princeton Gallery of Fine Art, for replevin of three small pictures painted by O'Keeffe. O'Keeffe v. Snyder, 170 N.J. Super. 75 (1979). In her complaint, filed in March, 1976, O'Keeffe alleged she was the owner of the paintings and that they were stolen from a New York art gallery in 1946. Snyder asserted he was a purchaser for value of the paintings, he had title by adverse possession, and O'Keeffe's action was barred by the expiration of the six-year period of limitations provided by N.J.S.A. 2A:14-1 pertaining to an action in replevin. Snyder impleaded third party defendant, Ulrich A. Frank, from whom Snyder purchased the paintings in 1975 for $35,000.

The trial court granted summary judgment for Snyder on the ground that O'Keeffe's action was barred because it was not commenced within six years of the alleged theft. The Appellate Division reversed and entered judgment for O'Keeffe. O'Keeffe, supra, 170 N.J. Super. at 92. A majority of that court concluded that the paintings were stolen, the defenses of expiration of the statute of limitations and title by adverse possession were identical, and Snyder had not proved the elements of adverse possession. Consequently, the majority ruled that

O'Keeffe could still enforce her right to possession of the paintings.

The dissenting judge stated that the appropriate measurement of the period of limitation was not by analogy to adverse possession, but by application of the "discovery rule" pertaining to some statutes of limitation. He concluded that the six-year period of limitations commenced when O'Keeffe knew or should have known who unlawfully possessed the paintings, and that the matter should be remanded to determine if and when that event had occurred. Id. at 96-97.

We granted certification to consider not only the issues raised in the dissenting opinion, but all other issues. 81 N.J. 406 (1979). We reverse and remand the matter for a plenary hearing in accordance with this opinion.

I

The record, limited to pleadings, affidavits, answers to interrogatories, and depositions, is fraught with factual conflict. Apart from the creation of the paintings by O'Keeffe and their discovery in Snyder's gallery in 1976, the parties agree on little else.

O'Keeffe contended the paintings were stolen in 1946 from a gallery, An American Place. The gallery was operated by her late husband, the famous photographer Alfred Stieglitz.

An American Place was a cooperative undertaking of O'Keeffe and some other American artists identified by her as Marin, Hardin, Dove, Andema, and Stevens. In 1946, Stieglitz arranged an exhibit which included an O'Keeffe painting, identified as Cliffs. According to O'Keeffe, one day in March, 1946, she and Stieglitz discovered Cliffs was missing from the wall of the exhibit. O'Keeffe estimates the value of the painting at the time of the alleged theft to have been about $150.

About two weeks later, O'Keeffe noticed that two other paintings, Seaweed and Fragments, were missing from a storage room at An American Place. She did not tell anyone, even Stieglitz, about the missing paintings, since she did not want to upset him.

Before the date when O'Keeffe discovered the disappearance of Seaweed, she had already sold it (apparently for a string of amber beads) to a Mrs. Weiner, now deceased. Following the grant of the motion for summary judgment by the trial court in favor of Snyder, O'Keeffe submitted a release from the legatees of Mrs. Weiner purportedly assigning to O'Keeffe their interest in the sale.

O'Keeffe testified on depositions that at about the same time as the disappearance of her paintings, 12 or 13 miniature paintings by Marin also were stolen from An American Place. According to O'Keeffe, a man named Estrick took the Marin paintings and "maybe a few other things." Estrick distributed the Marin paintings to members of the theater world who, when confronted by Stieglitz, returned them. However, neither Stieglitz nor O'Keeffe confronted Estrick with the loss of any of the O'Keeffe paintings.

There was no evidence of a break and entry at An American Place on the dates when O'Keeffe discovered the disappearance of her paintings. Neither Stieglitz nor O'Keeffe reported them missing to the New York Police Department or any other law enforcement agency. Apparently the paintings were uninsured, and O'Keeffe did not seek reimbursement from an insurance company. Similarly, neither O'Keeffe nor Stieglitz advertised the loss of the paintings in Art News or any other publication. Nonetheless, they discussed it with associates in the art world and later O'Keeffe mentioned the loss to the director of the Art Institute of Chicago, but she did not ask him to do anything because "it wouldn't have been my way." O'Keeffe does not contend that Frank or Snyder had actual knowledge of the alleged theft.

Stieglitz died in the summer of 1946, and O'Keeffe explains she did not pursue her efforts to locate the paintings because she was settling his estate. In 1947, she retained the services of Doris Bry to help settle the estate. Bry urged O'Keeffe to report the loss of the paintings, but O'Keeffe declined because "they never got anything back by reporting it." Finally, in 1972, O'Keeffe authorized Bry to report the theft to the Art

Dealers Association of America, Inc., which maintains for its members a registry of stolen paintings. The record does not indicate whether such a registry existed at the time the paintings disappeared.

In September, 1975, O'Keeffe learned that the paintings were in the Andrew Crispo Gallery in New York on consignment from Bernard Danenberg Galleries. On February 11, 1976, O'Keeffe discovered that Ulrich A. Frank had sold the paintings to Barry Snyder, d/b/a Princeton Gallery of Fine Art. She demanded their return and, following Snyder's refusal, instituted this action for replevin.

Frank traces his possession of the paintings to his father, Dr. Frank, who died in 1968. He claims there is a family relationship by marriage between his family and the Stieglitz family, a contention that O'Keeffe disputes. Frank does not know how his father acquired the paintings, but he recalls seeing them in his father's apartment in New Hampshire as early as 1941-1943, a period that precedes the alleged theft. Consequently, Frank's factual contentions are inconsistent with O'Keeffe's allegation of theft. Until 1965, Dr. Frank occasionally lent the paintings to Ulrich Frank. In 1965, Dr. and Mrs. Frank formally gave the paintings to Ulrich Frank, who kept them in his residences in Yardley, Pennsylvania and Princeton, New Jersey. In 1968, he exhibited anonymously Cliffs and Fragments in a one day art show in the Jewish Community Center in Trenton. All of these events precede O'Keeffe's listing of the paintings as stolen with the Art Dealers Association of America, Inc. in 1972.

Frank claims continuous possession of the paintings through his father for over thirty years and admits selling the paintings to Snyder. Snyder and Frank do not trace their provenance, or history of possession of the paintings, back to O'Keeffe.

As indicated, Snyder moved for summary judgment on the theory that O'Keeffe's action was barred by the statute of limitations and title had vested in Frank by adverse possession. For purposes of his motion, Snyder conceded that the paintings had been stolen. On her cross motion, O'Keeffe urged that the

paintings were stolen, the statute of limitations had not run, and title to the paintings remained in her.

II

In general, cross motions for summary judgment do not "obviate a plenary trial of disputed issues of fact, where such exists; nor do cross-motions constitute a waiver by the litigants to such a trial." Rotwein et al. v. General Accident Group & Cas. Co., 103 N.J. Super. 406, 424-425 (Law Div.1968). Cross motions do not warrant granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law. 6 Moore's Federal Practice (2d ed. 1976), § 56.13 at 341. Cross motions for summary judgment do not preclude the existence of issues of fact. Id. at 345. Although a defendant may assert that, according to his theory of the case, the material facts are undisputed, he must be allowed to show that if plaintiff's theory is adopted there remains a genuine issue of material fact. See Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784 (2d Cir. 1946), cert. den. 328 U.S. 870, 66 S. Ct. 1383, 90 L. Ed. 1640 (1946). Where there are cross motions for summary judgment, a party may make concessions for the purposes of his motion that do not carry over and support the motion of his adversary. 6 Moore's, supra, § 56.13 at 344. Eagle v. Louisiana and Southern Life Insurance Company, 464 F.2d 607, 608 (10th Cir. 1972); Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948).

The Appellate Division accepted O'Keeffe's contention that the paintings had been stolen. However, in his deposition, Ulrich Frank traces possession of the paintings to his father in the early 1940's, a date that precedes the alleged theft by several years. The factual dispute about the loss of the paintings by O'Keeffe and their acquisition by Frank, as well as the other subsequently described factual issues, warrant a remand for a plenary hearing. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954).

In reversing the cross motions for summary judgment, the Appellate Division erred in accepting one of two conflicting versions of material fact: the theft of the paintings in March,

1946 as asserted by O'Keeffe as against the possession of the paintings by the Frank family since the early 1940's. Instead of recognizing the existence of this controversy, the Appellate Division misconstrued Snyder's concession that the paintings had been stolen. That concession was made to enable the trial court to determine Snyder's motion for summary judgment that title had passed by adverse possession. The concession was not available to resolve O'Keeffe's cross motion for summary judgment. Hence, there is an issue of material fact, whether the paintings were stolen, that compels remand for trial.

Without purporting to limit the scope of the trial, other factual issues include whether (1) O'Keeffe acquired title to Seaweed by obtaining releases from the legatees of Mrs. Weiner; (2) the paintings were not stolen but sold, lent, consigned, or given by Stieglitz to Dr. Frank or someone else without O'Keeffe's knowledge before he died; and (3) there was any business or family relationship between Stieglitz and Dr. Frank so that the original possession of the paintings by the Frank family may have been under claim of right.

III

On the limited record before us, we cannot determine now who has title to the paintings. That determination will depend on the evidence adduced at trial. Nonetheless, we believe it may aid the trial court and the parties to resolve questions of law that may become relevant at trial.

Our decision begins with the principle that, generally speaking, if the paintings were stolen, the thief acquired no title and could not transfer good title to others regardless of their good faith and ignorance of the theft. Joseph v. Lesnevich, 56 N.J. Super. 340, 346 (App.Div.1959); Kutner Buick, Inc. v. Strelecki, 111 N.J. Super. 89, 97 (Ch.Div.1970); see Ashton v. Allen, 70 N.J.L. 117, 119 (Sup.Ct.1903). Proof of theft would advance O'Keeffe's right to possession of the paintings absent other considerations such as expiration of the statute of limitations.

Another issue that may become relevant at trial is whether Frank or his father acquired a "voidable title" to the paintings under N.J.S.A. 12A:2-403(1). That section, part of the Uniform Commercial Code (U.C.C.), does not change the basic principle that a mere possessor cannot transfer good title. 2 Anderson, Uniform Commercial Code (2d ed. 1971) § 2-403:6 at 41 (Anderson). Nonetheless, the U.C.C. permits a person with voidable title to transfer good title to a good faith purchaser for value in certain circumstances. N.J.S.A. 12A:2-403(1). If the facts developed at trial merit application of that section, then Frank may have transferred good title to Snyder, thereby providing a defense to O'Keeffe's action. No party on this appeal has urged factual or legal contentions concerning the applicability of the U.C.C. Consequently, a more complete discussion of the U.C.C. would be premature, particularly in light of our decision to remand the matter for trial.

On this appeal, the critical legal question is when O'Keeffe's cause of action accrued. The fulcrum on which the outcome turns is the statute of limitations in N.J.S.A. 2A:14-1, which provides that an action for replevin of goods or chattels must be commenced within six years after the accrual of the cause of action.

The trial court found that O'Keeffe's cause of action accrued on the date of the alleged theft, March, 1946, and concluded that her action was barred. The Appellate Division found that an action might have accrued more than six years before the date of suit if possession by the defendant or his predecessors satisfied the elements of adverse possession. As indicated, the Appellate Division concluded that Snyder had not established those elements and that the O'Keeffe action was not barred by the statute of limitations.

Since the alleged theft occurred in New York, a preliminary question is whether the statute of limitations of New York or New Jersey applies. The New York statute, N.Y. Civ. Prac. Law § 214 (McKinney), has been interpreted so that the statute of limitations on a cause of action for replevin does not begin to run until after refusal upon demand for the return of the goods.

Menzel v. List, 49 Misc. 2d 300, 267 N.Y.S. 2d 804 (Sup.Ct.1966), aff'd as modified, 28 A.D. 2d 516, 279 N.Y.S. 2d 608 (App.Div.1966), third party claim reversed on other grounds, 24 N.Y. 2d 91, 246 N.E. 2d 742, 298 N.Y.S. 2d 979 (Ct.App.1969). Here, O'Keeffe demanded return of the paintings in February, 1976. If the New York statute applied, her action would have been commenced within the period of limitations.

The traditional rule to determine which of two statutes of limitations is applicable is that the statute of the forum governs unless the limitation is a condition of the cause of action. See Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176 (1962). However, this Court has discarded the mechanical rule that the statute of limitations of the forum must be employed in every suit on a foreign cause of action. Heavner v. Uniroyal, Inc., 63 N.J. 130, 140-141 (1973). Heavner set out five requirements for barring an action by applying a statute of limitations other than the appropriate New Jersey statute: (1) the cause of action arose in the other state; (2) the parties are all present in and amenable to jurisdiction in the other state; (3) New Jersey has no substantial interest in the matter; (4) the substantive law of the other jurisdiction is applicable, and (5) the limitations' period of the other jurisdiction has expired at the time of the commencement of the suit in New Jersey. Id. at 141. The Heavner rule provides a limited and special exception to the general rule that the rule of the forum determines the applicable period of limitations. Raskulinecz v. Raskulinecz, 141 N.J. Super. 148, 153 (Law Div.1976). In the present case, none of the parties resides in New York and the paintings are located in New Jersey. On the facts before us, it would appear that the appropriate statute of limitations is the law of the forum, N.J.S.A. 2A:14-1. On remand, the trial court may reconsider this issue if the parties present other relevant facts.

IV

On the assumption that New Jersey law will apply, we shall consider significant questions raised about the interpretation of N.J.S.A. 2A:14-1. The purpose of a statute of limitations

is to "stimulate to activity and punish negligence" and "promote repose by giving security and stability to human affairs". Wood v. Carpenter, 101 U.S. 135, 139, 25 L. Ed. 807, 808 (1879); Tevis v. Tevis, 79 N.J. 422, 430-431 (1979); Fernandi v. Strully, 35 N.J. 434, 438 (1961). A statute of limitations achieves those purposes by barring a cause of action after the statutory period. In certain instances, this Court has ruled that the literal language of a statute of limitations should yield to other considerations. Compare, e.g., Velmohos v. Maren Engineering Corp., 83 N.J. 282, 293 (1980) with Galligan v. Westfield Centre Service, Inc., 82 N.J. 188, 192-193 (1980).

To avoid harsh results from the mechanical application of the statute, the courts have developed a concept known as the discovery rule. Lopez v. Swyer, 62 N.J. 267, 273-275 (1973); Prosser, The Law of Torts (4 ed. 1971), § 30 at 144-145; 51 Am.Jur. 2d, Limitation of Actions, § 146 at 716. The discovery rule provides that, in an appropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action. Burd v. New Jersey Telephone Company, 76 N.J. 284, 291-292 (1978). The rule is essentially a principle of equity, the purpose of which is to mitigate unjust results that otherwise might flow from strict adherence to a rule of law. Lopez, supra, 62 N.J. at 273-274.

This Court first announced the discovery rule in Fernandi, supra, 35 N.J. at 434. In Fernandi, a wing nut was left in a patient's abdomen following surgery and was not discovered for three years. Id. at 450-451. The majority held that fairness and justice mandated that the statute of limitations should not have commenced running until the plaintiff knew or had reason to know of the presence of the foreign object in her body. The discovery rule has since been extended to other areas of medical malpractice. See, e.g., Lopez, supra (alleged negligent radiation therapy following a radical mastectomy for breast cancer); Yerzy v. Levine, 108 N.J. Super. 222 (App.Div.), aff'd per curiam as modified, 57 N.J. 234 (1970) (negligent severance by surgeon of bile duct).

Increasing acceptance of the principle of the discovery rule has extended the doctrine to contexts unrelated to medical malpractice. See, e.g., Diamond v. New Jersey Bell Telephone Co., 51 N.J. 594, 596-597 (1968) (discovery rule applicable in negligent installation of an underground conduit causing flooding of plaintiff's property); New Mkt. Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 425 (1968) (discovery rule applicable to negligently prepared survey discovered eleven years after the act); Brown v. College of Medicine and Dentistry, 167 N.J. Super. 532, 536-537 (Law Div.1979) (dicta would permit action for lost wages pursuant to breach of union's duty to represent fairly bargaining unit even though action instituted beyond period of limitations); McCoy Co., Inc. v. S.S. "Theomitor III ", 133 N.J. Super. 308 (Law Div.1975) (discovery rule permits untimely amendment of complaint to include subsidiary corporations where parent company had been sued within limitations' period); Gibbins v. Kosuga, 121 N.J. Super. 252 (Law Div.1972) (cause of action allowed under N.J.S.A. 2A:14-1 when plaintiffs discovered nine years after closing that well was not located on their property). See also Rosenau v. City of New Brunswick, 51 N.J. 130, 139-140 (1968) (discovery rule discussed as applying to cause of action under N.J.S.A. 2A:14-1 for damage to plaintiff's home fourteen years after installation of defective water meter).

The statute of limitations before us, N.J.S.A. 2A:14-1, has been held subject to the discovery rule in an action for wrongful detention of shares of stock. Federal Insurance Co. v. Hausler, 108 N.J. Super. 421, 426 (App.Div.1970). In Hausler, the defendant purchased preferred stock of a corporation through a stockbroker. On March 9, 1961, the broker erroneously sent to the customer a certificate for common stock of greater value. The broker discovered the error in December, 1961, but did not learn the identity of the customer's account in which the error was made until November, 1962. Defendants refused to exchange the common stock for the preferred stock. Plaintiff, a bonding company subrogated to the broker's rights, instituted an action on July 2, 1968, within six years of the date on which the broker learned the identity of the defendants as the customers who

wrongfully received the common stock, but more than six years after the broker knew it had a cause of action. Judge Goldmann, writing for a unanimous court, reversed the grant of a summary judgment for defendants and remanded the matter for a full trial to determine whether (1) the broker knew or reasonably should have known of the error and the defendants' identity in December, 1961 and (2) defendants knew of the mistake from the beginning and fraudulently concealed it. Overruling the trial court which had concluded "[t]his is not a good case in which to apply the discovery rule", Judge Goldmann found the discovery rule applicable. Id. at 424, 426.

Similarly, we conclude that the discovery rule applies to an action for replevin of a painting under N.J.S.A. 2A:14-1. O'Keeffe's cause of action accrued when she first knew, or reasonably should have known through the exercise of due diligence, of the cause of action, including the identity of the possessor of the paintings. See N. Ward, Adverse Possession of Loaned or Stolen Objects -- Is Possession Still 9/10ths of the Law?, published in Legal Problems of Museum Administration (ALI-ABA 1980) at 89-90.

We leave to the discretion of the trial judge whether to conduct a preliminary hearing to determine whether O'Keeffe is entitled to the benefit of the discovery rule. Ordinarily that determination would be made in a preliminary hearing out of the presence of the jury. Lopez, supra, 62 N.J. at 275. But if much of the evidence adduced at the hearing will be the same as that adduced at trial, the judge may elect to receive the evidence in the course of the trial and decide the limitations question at the end of the plaintiff's case or at the conclusion of all evidence. If that procedure is adopted, the trial judge should exclude the jury when the anticipated evidence relates only to the limitations issue, as receipt of that evidence in the presence of the jury might prejudice another party. Id. at 275 n. 3.

In determining whether O'Keeffe is entitled to the benefit of the discovery rule, the trial court should consider, among others, the following ...


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