Virginia Lawyers Weekly//November 20, 2023
Virginia Lawyers Weekly//November 20, 2023//
Where various descendants disputed who was entitled to four Norman Rockwell paintings, the current possessor of the paintings prevailed. His possession of the property was prima facie proof of ownership that was not sufficiently rebutted by the others
In 1943, Norman Rockwell spent a week at the White House observing and capturing scenes outside the Oval Office. Rockwell ultimately drew four illustrations depicting a collection of individuals waiting for the opportunity to meet with President Roosevelt. Rockwell gave these illustrations, collectively known as and titled “So You Want to See the President?” to Stephen T. Early Sr. as a gift in October 1943, and they were published in The Saturday Evening Post on Nov. 13, 1943.
In this suit, plaintiff William Nile Elam, a grandson of Stephen T. Early Sr., seeks a judgment declaring him the sole owner of the illustrations. Michael S. Early and Stephen T. Early, also grandsons of Stephen T. Early Sr. and plaintiff’s first cousins, as well as Suzanne Early, daughter-in-law to Stephen T. Early Sr. and plaintiff’s aunt by marriage, each claim partial ownership of the illustrations.
The common law provides that possession of property constitutes prima facie evidence of ownership until better title is proven. If the non-possessing party “is able to produce evidence of superior title, the presumption of ownership in the possessor is defeated.” If, on the other hand, the non-possessing party fails to establish superior title to the property, “the presumption of ownership based on possession prevails and relieves a court from having to preside over a ‘historical goose chase.’”
Notwithstanding that plaintiff’s grandparents were in physical possession of the illustrations from 1949 to 1960 and that they were on loan to the White House from 1978 to 2022, the court finds that plaintiff has advanced significant probative evidence that Helen Early Elam had physical possession of the illustrations from 1960 until 1978, when the illustrations were loaned to the White House — or, at a minimum, from 1972 until 1978. Defendants reject this narrative but offer little evidence to contradict it.
Plaintiff is therefore entitled to the benefit of the common law presumption of ownership based on that possession.
Defendants’ argument rests completely on the undisputed fact that there was no delivery of the illustrations to Helen Early Elam until at least 1960 and no evidence of dispossession of the Illustrations by Grandfather Early — elements required to establish the illustrations were given as inter vivos gifts under D.C. law. But defendants’ burden to prove superior title—that is, to affirmatively “produce evidence of superior title” — cannot be sustained by merely alleging that plaintiff lacks evidence about the conversations and intentions of Grandfather Early, who died more than seventy years ago.
Pointing to an absence of evidence on summary judgment can succeed only where such absence demonstrates that plaintiff cannot establish an essential element of his case, on which he will bear the burden of proof at trial. Here, defendants cannot meet their burden to produce evidence of superior title by pointing to the absence of record evidence proving an inter vivos gift. This effort to rebut the presumption fails.
Defendants also attempt to rebut this presumption by advancing a theory of theft by plaintiff. Although “proof of theft would rebut [the possessor’s] presumptive ownership,” defendants have offered no such proof. Not only do defendants fail to “produce evidence of superior title” as is required to rebut the presumption in favor of plaintiff, but the evidence actually supports the conclusion that plaintiff has superior title. The court therefore grants plaintiff’s motion on these claims and denies defendants’ motion for summary judgment.
Defendants also raise several common law counterclaims — conversion, detinue, breach of bailment and civil conspiracy — against plaintiff. With respect to conversion, the court finds that this claim is time-barred and that defendants cannot establish conversion as a matter of law under these facts. For similar reasons, defendants cannot maintain their detinue cause of action against plaintiff.
Next, defendants cannot establish a bailment agreement as a matter of law. And because defendants cannot maintain any of their substantive common law claims, they cannot maintain an action for civil conspiracy, which they allege is predicated on the conversion and breach of bailment claims. Consequently plaintiff is entitled to summary judgment on these counterclaims.
Plaintiff’s motion for summary judgment granted. Defendants’ motion for summary judgment denied.
Elam v. Early, Case No. 1:23-cv-229, Oct. 31, 2023. EDVA at Alexandria (Nachmanoff). VLW 023-3-701. 30 pp.