Shuttie v. Festa Restaurant, Inc., 90-85
| Decision Date | 14 August 1990 |
| Docket Number | No. 90-85,90-85 |
| Citation | 566 So.2d 554 |
| Parties | 15 Fla. L. Weekly D2036, 14 UCC Rep.Serv.2d 119 Zois SHUTTIE, Appellant, v. FESTA RESTAURANT, INC., Festa Caterer's Inc., and Roberto Iglesias, Appellees. |
| Court | Florida District Court of Appeals |
Shutts & Bowen, and Maxine M. Long, Kenny Nachwalter & Seymour and Scott E. Perwin, Miami, for appellant.
Carlos A. Lopez, Jr., Coral Gables, and Virginia M. Best, Fort Lauderdale, for appellees.
Jean S. Perwin, Miami, for the South Florida Art Center, Allied Arts of North Miami, Artifacts Artist Group, Bakehouse Art Complex, Inc., Florida Artists Group, Continuum Gallery, Inc., Women's Caucus for Art, Miami Chapter, and the Entertainment Arts and Sports Law Section of The Florida Bar, as amicus curiae.
Before BARKDULL, NESBITT and FERGUSON, JJ.
The plaintiff appellant filed an action in Replevin to recover certain paintings. After the cause was at issue, the matter by agreement, was referred to a General Master. Following receipt of evidence and legal memorandum, the General Master rendered a Report which reads in part as follows:
"The following facts emerged without dispute:
Plaintiff Zois Shuttie was the artistic creator of the subject sixteen (16) paintings; as such, plaintiff was the original owner of the subject artwork.
One John Guggenheim, formerly a local art dealer, owned and operated "The Guggenheim Collection" (formerly known as "The Guggenheim Gallery") in an exclusive area of Coral Gables. Mr. Guggenheim was not made a party to this action and did not appear as a witness. The plaintiff first met Guggenheim in late 1986 at Cafe des Artes in Miami Beach. At that time Guggenheim had just opened a gallery at the Bakery Centre in South Miami, Florida. By expression or intended implication, Mr. Guggenheim appears to have led many local residents to believe he was a member of the Guggenheim family of New York City, nationally renown as patrons of the arts. Guggenheim, accordingly, received much local recognition and attention, publicly and socially, while falsely representing himself to be related to the famous art patrons. This reputation circulated widely among local residents, artists, patrons and critics.
Prior to Mr. Guggenheim's unanticipated, sudden disappearance from this community in 1988, neither the plaintiff- Plaintiff testified that at the request of Mr. Guggenheim, possession of the subject paintings (together with others) was given to John Guggenheim in November 1986, July 1987 and again in August 1987. In each instance, possession was conferred upon Guggenheim as agent for the plaintiff for display and for sale on consignment in the "Gallery" (or "Collection"). There was no issue respecting Guggenheim's initial authority as Shuttie's agent, to sell all consigned paintings, including the subject pieces, at the prices originally agreed upon between plaintiff and Guggenheim.
artist nor Festa's representative, Roberto Iglesias knew or had reason to question Guggenheim's true identity or professional credentials.
The subject sixteen (16) specific paintings appear, among others, enumerated on plaintiff's Exhibits 1, 2, and 3. The specific sixteen (16) are also set forth by title and price on defendant's Exhibit 1.
Regarding Exhibits 1, 2, 3, the plaintiff testified that these abbreviated, single sentence sheets represent the written "consignment agreements" by which The Guggenheim Gallery (later Collection) undertook possession of subject paintings as his agent.
There are no other written terms of the consignment. All other terms of these consignment relationships were oral in nature or assumed to be generally understood by persons in the artist/art dealer business.
Plaintiff testified that the above described "consignments" to his agent Guggenheim carried full power for Guggenheim to convey title to each of the paintings to third parties.
Testimony of plaintiff indicated that neither he, nor to his knowledge, Guggenheim, affixed to any of the consigned works a sign or tag or other identifiable indicia which stated, alerted or otherwise provided notice to third persons that any of the artist's displayed work was being sold subject to a contract of consignment. Nor was any sign or notice posted which might generally so advise prospective purchasers.
Defendant Iglesias likewise testified that no such tag, sign, or other notice was affixed to any painting or otherwise generally posted advising him individually, or as representative of defendant Festa, of the consignment status and relationship between Shuttie and Guggenheim.
Defendant Iglesias, individually and as representative of Festa, testified that Guggenheim (whom he knew only as a socially prominent restaurant customer and as the reputed Gallery owner) approached him in late November 1987 and suggested that the subject sixteen (16) paintings be displayed in Festa restaurant. There would be no cost except the maintenance of insurance thereon. Should any customer wish to purchase a painting, such person would have been referred to Mr. Guggenheim at the Gallery. In the event a sale was consummated, Festa was to receive a twenty (20%) percent commission or fee based upon the sale price. No such sales or referrals ever occurred. The transfer and installation at Festa occurred on November 29, 1987 where said paintings yet remain.
According to testimony of defendants Iglesias and Festa, evidence of this transfer by Guggenheim to Festa is a two (2) page document dated November 29, 1987 on letterhead stationary of "The Guggenheim Collection" (Defendant Exhibit 1). That document lists sixteen (16) paintings by Zois Shuttie, showing a price for each. The document states: "The following works have been loaned by the Guggenheim Collection for display and possible sale". Signatures attesting the transaction by John C. Guggenheim (The Guggenheim Collection) and Roberto Iglesias (Festa Restaurant) appear. It also directs the maintenance of fire and theft insurance while the property remains in the possession of Festa.
Plaintiff's testimony, uncontradicted, was that the above transfer to Festa represented a violation of the terms of his "Consignment" to Guggenheim.
Mr. Iglesias testified without contradiction that Mr. Guggenheim represented to him that the sixteen (16) paintings were from his personally owned collections and Plaintiff testified that he first learned that agent Guggenheim was violating the purported consignment terms as early as mid-November, 1987, upon information that certain of his paintings were being displayed without his permission in the Cafe des Artes on Miami Beach.
Iglesias had no knowledge to the contrary and believed the same. It is further noted that Mr. Iglesias had no knowledge of Mr. Shuttie, and indeed first met him on or about March 5, 1988, after Mr. Guggenheim had unexplainedly departed the Dade County, Florida area.
By letter dated November 22, 1987 Shuttie reflected his indignation and requested "... your returning them to me; thus keeping for your use only a few, upon a new consignment." No answer was received. On December 2, 1987, by letter, plaintiff declared "I have, therefore, decided to retrieve all of my paintings from your gallery ..." Guggenheim responded by letter of December 4, 1987, somewhat equivocally acknowledging Shuttie's discontent. A subsequent letter to Shuttie dated January 19, 1988 was of similar tenor.
Meanwhile, in reliance on its possession of the subject sixteen (16) paintings as and for security, Festa loaned Guggenheim the total sum of $25,000 ($4,000 mid-December 1987; $6,000 late December 1987; $15,000 January 8, 1988).
During the foregoing period, Shuttie further learned that three of his paintings were also being held in New York City by one Mr. Reynolds, as collateral for a $30,000 loan to Guggenheim.
On February 5, 1988, Guggenheim personally visited Shuttie's apartment and returned several paintings, evidenced by a receipt therefor. Shuttie's efforts to recover the consignments (including the three (3) held in ...
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