Charash v. Oberlin College, 92-3952

• Decision Date: 20 January 1994
• Docket Number: No. 92-3952,92-3952
• Citation: 14 F.3d 291
• Parties: 88 Ed. Law Rep. 1011, 1994 Fed.App. 11P Helen CHARASH, Plaintiff-Appellant, v. OBERLIN COLLEGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 291

14 F.3d 291

88 Ed. Law Rep. 1011, 1994 Fed.App. 11P

Helen CHARASH, Plaintiff-Appellant, v. OBERLIN COLLEGE, Defendant-Appellee.

No. 92-3952.

United States Court of Appeals Sixth Circuit.

Argued Oct. 5, 1993.

Decided Jan. 20, 1994.

E. John Bryztwa, Cavitch, Familo & Durkin, Cleveland, OH, Marc S. Moller (briefed), David L. Fiol (argued), Kreindler & Kreindler, New York City, for plaintiff-appellant.

John L. Keyse-Walker (argued and briefed), Kurt D. Anderson, Fauver, Tattersall & Gallagher, Elyria, OH, for defendant-appellee.

Before: JONES and SILER, Circuit Judges; and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge.

This case requires us to apply Ohio's choice of law rules in a diversity action by a New Jersey resident against an Ohio not-for-profit corporation. Because the plaintiff charges the defendant with converting property included in the estate of a New York resident at the time of her death, and allegedly misappropriated by a New York resident before delivery to the defendant, the plaintiff contends that the substantive law of New York controls the issues raised by her complaint. Applying an Ohio statute of limitations, the district court found the action time-barred and granted the defendant's motion for summary judgment.

On appeal, as in the district court, the plaintiff argues that under New York law her cause of action did not accrue until she discovered the misappropriation and the wrongful detention of the property by the defendant and made a demand on the defendant for return of the property, which was refused. If this method of determining the accrual date were applied the complaint would be timely under both New York and Ohio applicable statutes of limitations. For the reasons that follow we conclude that the district court correctly determined that the substantive law of Ohio governs the issues raised by the complaint and properly applied the Ohio statute of limitations. Nevertheless, we believe summary judgment was improper because a genuine issue of material fact exists as to the accrual date of the cause of action. Thus, we vacate the judgment and remand for further proceedings.

I.

The case concerns works of art created by Eva Hesse, who was little known at the time of her death in 1970, but whose reputation as an artist of merit has grown significantly in recent years.

A.

The plaintiff, Helen Charash, sister of Eva Hesse, is the only surviving relative and her sole heir at law. (Ms. Hesse was separated from her husband and he has waived all claims to her estate, including works of art). Ms. Charash was appointed administratrix of the Hesse estate by the New York County Surrogate. She brought this suit in the United States District Court for the Northern District of Ohio in her individual capacity more than twenty years after her sister's death.

The complaint charges the defendant Oberlin College with converting approximately 44 drawings by Eva Hesse that allegedly were "misappropriated" by Donald Droll, a New York art dealer and advisor to both Ms. Hesse and Ms. Charash. According to the complaint, Donald Droll, who has since died, gave the drawings to his brother, Philip Droll, who, in turn, donated them to Oberlin. According to the complaint, Oberlin never advised the plaintiff of the gift from Philip Droll through Donald Droll, although the plaintiff was in frequent contact with Oberlin representatives and, in fact, had herself given many Hesse art works to the college.

Finally, the complaint states that the plaintiff advised Oberlin that neither of the Droll brothers was authorized to transfer possession of the drawings to the college. Although Ms. Charash demanded that Oberlin return the drawings, the college refused to do so, and this action followed.

B.

The parties engaged in extensive discovery. In her deposition Ms. Charash stated that she inventoried Ms. Hesse's possessions shortly after her death, but because there was so much she did not catalogue all of the art works. Ms. Hesse lived in a New York artist's loft and it was necessary to remove her property sometime after her death. Ms. Charash stated that she saw a trunk in her sister's living quarters and that it was filled with drawings. She did not make an inventory of the contents of the trunk, though she testified that the drawings were of the "type" or "genre" of those given to Oberlin by the Drolls. The trunk disappeared according to Ms. Charash, either from her sister's loft or from the warehouse to which the Hesse property was removed, and she forgot about it and the drawings in it for several years. She stated that the trunk "resurfaced" at a gallery where Donald Droll worked, and that together she and Droll emptied it and put the contents in gallery drawers.

Ms. Charash testified that she did not learn that Oberlin had the drawings until 1988, when a friend who was writing a book about Eva Hesse visited Oberlin and reported to her that the college had on display a much larger collection of Hesse drawings than he had expected to find. She then traveled to Oberlin with her current advisor, Barry Rosen, and was shocked to learn for the first time that Donald Droll had given Oberlin, either directly or through his brother, 95 or 100 Hesse drawings. According to Ms. Charash, she never knew Droll had such a large number of her sister's drawings, and he was never authorized to make the gifts.

Ms. Charash also testified that she was certain her sister had not given the drawings to Droll, that it was contrary to her usual practice. She filed affidavits from friends and acquaintances of Hesse's to the same effect. Ms. Charash stated in answer to an interrogatory that all the art works of Eva Hesse were the sole property of the artist or herself.

C.

In cross-examining Ms. Charash, Oberlin attempted to establish that she had both actual and constructive notice that the drawings were in Oberlin's possession many years before filing this action in 1991. At the deposition Oberlin's counsel produced the catalogue for a "retrospective" on the work of Eva Hesse, issued in 1981 or 1982, when Oberlin arranged that show. Ms. Charash testified that both she and Donald Droll worked with Oberlin in arranging the show. She acknowledged receiving copies of the catalogue and stated that she believed she read it. The foreword to the catalogue stated that Oberlin received "major portions of her [Hesse's] artistic estate as very generous gifts from her sister, Helen Charash, and her friend and dealer, Donald Droll." Ms. Charash testified that she did not grasp the significance of "gifts" as connected to Droll, because she had made major gifts of Hesse art to Oberlin and Droll had been involved in the transfers.

When asked about a 1982 bulletin from the Oberlin art museum that referred to 44 Hesse drawings, "gift of Philip Droll through Donald Droll," Ms. Charash said she had never seen the bulletin before it was filed as an exhibit. She said she received "a lot of stuff" from the museum. If she had seen this listing of 44 prints from Donald Droll, she would have done something about it. She also denied ever seeing a letter from Barry Rosen to Oberlin in 1984 requesting a list of all gifts to the museum from Donald or Philip Droll. Rosen testified that the letter was written in connection with his efforts to learn of Donald Droll's activities; that it was not written in behalf of Ms. Charash. He stated that he did not read the lists sent him by Oberlin in July 1984, that he did not put the lists in the Hesse file, and that he never discussed them with Ms. Charash.

The plaintiff acknowledged writing to Donald Droll in 1984 about "recent misunderstandings." She testified that these misunderstandings related to various activities of Droll in connection with their efforts to bring the Hesse works of art together, and her decision to sell some Hesse sculptures. At the time she wrote the letter, according to Ms. Charash, she had no idea that Droll had ever had a large number of her sister's drawings in his possession or that he had given them to Oberlin.

Despite the listings in the catalogue and bulletin, it was "incomprehensible" to Ms. Charash that no one from Oberlin had ever "verbally communicated" to her the fact of the Droll gifts. She had meetings in New York with Ellen Johnson, curator of modern art at the Oberlin art museum and correspondence with William Olander, acting director, about her own contributions to the Hesse show, and neither one ever told her of the gift of the drawings.

The record contains some conflicting references to the date of the Donald/Philip Droll gift. It appears, on balance, that it occurred late in 1981.

II.

A choice of law determination is required because of Ms. Charash's argument that New York law controls. The laws of Ohio and New York disagree on the question of which party has the burden of proof in conversion and replevin actions. Ohio law places the burden on the plaintiff to prove that there was in fact a conversion of her property. Burson v. Peoples Bank, No. 16-92-31, 1993 WL 373523, (Ohio App. 3d Dist., Sept. 1, 1993). New York, on the other hand, holds that people deal with property at their own risk, and therefore the defendant must prove that his or her title is valid. In other words, the defendant must prove that there was no conversion. Solomon R. Guggenheim Foundation v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991).

We review de novo a district court's determination of state law. Salve Regina College v. Russell, 499 U.S. 225-231, 111 S.Ct. 1217-1221, 113 L.Ed.2d 190 (1991); National Union Fire Ins. Co. v. Watts, 963 F.2d 148, 150 (6th Cir.1992). We likewise review a district court's grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991).

A.

It is well-settled that a federal court sitting in diversity must apply the choice of law rules of the state in which it sits. Klaxon Co. v....