Estate of Pepper v. Whitehead

• Decision Date: 31 July 2012
• Docket Number: No. 11–2764.,11–2764.
• Parties: ESTATE OF Nell G. PEPPER, by the administrator for both Estates, Norma DEEBLE; Estate of Sterling Gary Pepper, by the administrator for both Estates, Norma Deeble, Appellants, v. Nancy Pease WHITEHEAD; Pease Family Partnership, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

686 F.3d 658

ESTATE OF Nell G. PEPPER, by the administrator for both Estates, Norma DEEBLE; Estate of Sterling Gary Pepper, by the administrator for both Estates, Norma Deeble, Appellants,

v.Nancy Pease WHITEHEAD; Pease Family Partnership, Appellees.

No. 11–2764.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2012.

Filed: July 31, 2012.

Matthew Grant Sease, argued, Des Moines, IA, David Rittgers, on the brief, Clive, IA, for appellants.

Brant M. Leonard, argued, Fred Richard Lyford, on the brief, Des Moines, IA, for appellees.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Plaintiffs, the Estate of Sterling Gary Pepper and the Estate of Nell G. Pepper (the Estates), appeal the district court's order granting Nancy Pease Whitehead and the Pease Family Partnership's (the defendants) motion for summary judgment. We reverse and remand.

I.

The parties find themselves in a dispute over the rights to an extensive collection of Elvis Presley memorabilia (the collection). The collection was amassed by Sterling Gary Pepper, Jr. (Gary), who had a deep love for Elvis's music, developed a close personal friendship with Elvis (often referred to as the “King of Rock and Roll”), and served as Elvis's fan club president. ¹ Gary often found himself at the center of Elvis's personal life, sitting at the head table at Elvis and Priscilla Presley's wedding reception, posing for photographs with the young couple at Graceland after the birth of their daughter, Lisa Marie, and receiving front row seats to many Elvis concerts.

In 1971, Gary's father, Sterling Gary Pepper, Sr. (Gary, Sr.), died of a heart attack while on security guard duty at the Graceland gates. His death left only Gary's mother, Nell Pepper (Nell), to care for Gary, who suffered from cerebral palsy. Gary's condition adversely affected his daily life, rendering him unable to walk, use his hands, or speak in a manner that could be understood by many persons other than Nell. Nell eventually found herself unable to care for Gary because of the severe depression and periodic manic states she suffered from following Gary, Sr.'s death. Her condition deteriorated to such an extent that she frequently defecated on the floor when upset, ran away from home, constantly banged on doors for lengthy periods, stopped cleaning Gary's wet bed, and allowed the house to fall into a state of squalor.

Meanwhile, in 1974, Nancy Pease Whitehead's (Nancy's) love of Presley's music caused her to move from her home in Cedar Rapids, Iowa, to Memphis, Tennessee, to enable her to absorb the local culture of her idol's hometown. Nancy, a licensed practical nurse, frequently spent her days hoping to catch a glimpse of Elvis at the gates of Graceland, where one day she was approached by Carl Nichols, a member of Presley's inner circle. Aware of Nell's inability to care for Gary, Nichols informed Nancy that Gary and Nell needed assistance.

Upon learning of Gary and Nell's needs, Nancy began assisting them in 1976 at their modest two-bedroom bungalow on Eva Street. Nancy slept on the living room couch, worked to improve the home's conditions, assisted Gary with physical therapy, and taught him how to swim and drive. By all accounts, Nancy provided care that was steadfast, loyal, and true. Recognizing the need for additional assistance, Nancy eventually invited her mother, Helen, and brother, Dennis, to also move from Cedar Rapids to Memphis, and the two of them began living with Nancy, Gary, and Nell at the Eva Street house, supporting themselves on Helen, Gary, and Nell's social security and Gary's fan club income. Finding the home inadequate for their needs, the five moved to a house on Dolan Street, next to the home of Presley's father, Vernon Presley, fulfilling Gary's wish of being nearer to Graceland.² The house met their every need, and the five lived there together as a family.

Elvis died on August 16, 1977. The death of Gary's idol wrought great change in the lives of the Dolan Street household. On October 28, 1977, Gary and Nell received notice from Vernon Presley that Elvis's estate, charged with the duty of conserving assets for its beneficiaries, could no longer keep Gary on its payroll. At that point, without means of financial support beyond Gary, Nell, and Helen's social security checks, Nancy concluded that they could not afford to continue living in Memphis. Gary and Nancy's relationship became strained when Gary opposed a surgery that Nancy believed he needed to reduce his spasticity. Nancy and Helen eventually decided to return to Cedar Rapids, where Nancy's brother had a house that Nancy, Helen, Dennis, Gary, and Nell could reside in for free. Concerned for Gary and Nell's health and convinced that they would not want to live in the only Memphis nursing home that would take them, Nancy invited them to move to Cedar Rapids with her, Helen, and Dennis. All moved to Cedar Rapids in April of 1978.

Defendants contend that sometime between Elvis's death and the move to Cedar Rapids, John Tate—Nell's nephew and Gary's cousin—traveled from his California home to Memphis, where he visited them on February 3, 1978. ³ Defendants contend that the purpose of Tate's visit was to help Gary consider the above-mentioned surgery. John Tate at some point discussed with the Peppers the possibility of moving Gary and Nell to California as a solution to their care needs. It is unclear to what extent items of the collection were displayed at the Dolan Street house at the time of Tate's visit or whether ownership of the items on display was discussed, though Nancy testified in her deposition that Tate knew of the full extent of the collection.

Also accompanying Gary, Nell, Nancy, Helen, and Dennis to Cedar Rapids was Gary's vast collection of Elvis-related memorabilia. In the summer of 1978, Gary and Nell entered a Cedar Rapids nursing home, which Nancy considered a “holding area” until the Tates could come to take Gary and Nell to California. Gary brought some of his memorabilia to the nursing home, with the remainder of the collection staying at Nancy's home.

At some point, Gary and Nancy discussed the future of the collection. In her deposition testimony, Nancy explained that Gary told her to “keep it for him,” and that she did not interpret Gary's statement as transferring possession or gifting the collection to her. Whitehead Dep. at 138. Nancy further testified that she never thought that the collection belonged to her and that Gary “never actually gave” the collection to her. Id. Rather, Gary left the collection at Nancy's house for Nancy to “watch over it” while he planned his upcoming move to California and determined his living arrangements there. Id. at 55. In addition, Nancy testified, “I thought, you know, maybe he wanted it sent to him later when he knew where he was going to be going.” Id. at 138. The record does not suggest any contemplation of a finite length of time that Nancy was to hold the property for Gary, or of a specified time for Gary to demand that the property be returned. In any event, according to Nancy, Gary did not want the collection thrown away, so she saved it.

In the fall of 1978, John Tate and his mother, Rebecca Tate (Nell's sister), came to Cedar Rapids from their California home and removed Gary and Nell from the nursing home. Rebecca, after packing all of Gary and Nell's belongings that were in the nursing home, drove the two to California, while John returned by plane. According to John, he believed that the items in the nursing home were “the extent of [Gary's] personal property.” John Tate Aff. ¶ 5. Gary took with him to California the memorabilia that he had brought to the nursing home, which consisted of a 14–karat gold bracelet given to Gary by Elvis inscribed “FROM E.P. 12/25/65”; two gold rings; a Rolex Oyster watch given to Gary by Elvis; autographed record covers; Sun Studios records; a home video of Priscilla Presley's baby shower; a “G.I. Blues” album cover autographed by Elvis and his manager, “The Colonel”; photographs of Elvis, Gary, and Nell; and a letter and envelope from Elvis to Gary sent from Germany. The Tates did not inform Nancy of their trip to Cedar Rapids to move Gary and Nell to California. Nancy did not learn of the move until she stopped by the nursing home one night to feed Gary, only to discover that he and Nell were gone.

Gary and Nell remained in California until their deaths on March 29, 1980, and December 29, 1982, respectively. According to John Tate and Norma Deeble (another cousin of Gary's), while living in California, Gary and Nell never had any conversations with them about the existence of the collection in Iowa, and there is no evidence in the record that Gary or Nell discussed the collection with any relatives after moving to California. Gary and his family did not communicate with Nancy after the move to California. Neither Nancy nor anyone from her family contacted Gary's family upon hearing of Gary's death, though Nancy testified that she would have attempted to contact the family had she known where they were. She made no effort to locate the family, but agreed that “a reasonable person would have tried to contact the family.” Whitehead Dep. at 57. Defendants do not dispute that in April of 1980, Nancy received a copy of Gary's obituary, which stated where Gary died, the hospital at which he died, and the funeral home where arrangements were being made, as revealed in the following obituary for Gary, which appeared in a Memphis newspaper on March 31, 1980:

Gary Pepper, a cerebral palsy victim who endeared himself to many Elvis Presley fans because of his longtime adoration of Presley, died Saturday in Long Beach, Calif.

Mr. Pepper, 48, who moved to Long Beach from Memphis about two years ago, died at 11:30 a.m. at Alameda (Calif.) Hospital.

“He's still getting fan letters from people wanting to know where he was. He hadn't been well for about...