Jack Solomon v. Judy Goffman Cutler ( 2012 )

FILED
NOT FOR PUBLICATION MAR 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACK SOLOMON, No. 10-15969
Plaintiff - Appellant, D.C. No. 2:07-cv-00645-RLH-
PAL
v.
STEVEN SPIELBERG, MEMORANDUM *
Defendant,
and
JUDY GOFFMAN CUTLER,
Counter-defendant -
Appellee,
v.
ART LOSS REGISTER, INC.,
Third-party-defendant -
Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JACK SOLOMON, No. 10-16049
Plaintiff - Appellee, D.C. No. 2:07-cv-00645-RLH-
PAL
v.
STEVEN SPIELBERG,
Defendant,
and
JUDY GOFFMAN CUTLER,
Counter-defendant -
Appellant,
v.
ART LOSS REGISTER, INC.,
Third-party-defendant -
Appellee.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted February 6, 2012
San Diego, California
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Before: McKEOWN and M. SMITH, Circuit Judges, and BREWSTER, Senior
District Judge.**
Jack Solomon appeals the district court’s judgment, following a bench trial,
in favor of Judy Goffman Cutler in this diversity action concerning a dispute over
ownership of the Norman Rockwell painting, Russian Schoolroom (the
“Painting”). On cross-appeal, Cutler challenges the district court’s grant of
summary judgment in favor of Solomon and Art Loss Register, Inc. (“ALR”) on
Cutler’s claims for defamation and intentional tort. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the
factual and procedural history of this case, we repeat only those facts necessary to
resolve the issues raised on appeal.
I. FBI T ELETYPES
Evidentiary rulings are reviewed for abuse of discretion, and will not be
reversed absent prejudice. Watec Co. v. Liu, 403 F.3d 645, 650 n.3 (9th Cir. 2005).
The challenged teletypes were produced by the FBI in response to a subpoena and
are “recorded communications among FBI offices in St. Louis, New Orleans,
Chicago, and New York regarding the location and status of the Russian
Schoolroom in October and November 1988.” The district court did not abuse its
**
The Honorable Rudi M. Brewster, Senior District Judge for the
Southern District of California, sitting by designation.
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discretion in admitting these documents under Federal Rule of Evidence 803(8)(B)
as documents created by agents assigned to investigate the theft of the Painting.
Because this is not a criminal case, Solomon’s arguments regarding constitutional
prohibitions on the admission of matters observed by law enforcement officers are
inapplicable.
The district court also did not abuse its discretion in admitting portions of
the teletypes that relay statements made by Martin Diamond. Fed. R. Evid. 805
(“Hearsay included within hearsay is not excluded under the hearsay rule if each
part of the combined statements conforms with an exception to the hearsay rule
provided in these rules.”). Although the district court did not specifically delineate
its basis for admitting the statements, it explained why the statements attributed to
Diamond were trustworthy and noted that, after twenty years, the evidence was
more probative than any other evidence regarding the FBI’s investigation into the
theft of the Painting. See FTC v. Figgie Int’l Inc., 994 F.2d 595, 608-09 (9th Cir.
1993) (per curiam) (upholding admission under residual exception even where trial
court failed adequately to explain reasoning). In any event, Solomon was not
prejudiced by the admission of these statements because they were all corroborated
by other evidence that Solomon does not challenge. The statements that are
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attributed to Solomon were admissible as party admissions. See Fed. R. Evid.
801(d)(2).
Finally, the sworn declaration from an FBI Records Unit Specialist and the
letter from FBI Associate General Counsel were sufficient to authenticate the
teletypes. See United States v. Estrada-Eliverio, 583 F.3d 669, 673 (9th Cir. 2009)
(“A party need only make a prima facie showing of authenticity so that a
reasonable juror could find in favor of authenticity or identification.” (internal
quotation marks and citation omitted)).
II. D AVID F INE’S T ESTIMONY AND O THER E VIDENCE
The district court did not abuse its discretion in admitting David Fine’s
testimony under Federal Rule of Evidence 807 and ruling that four-month’s notice
provided a fair opportunity to meet the evidence. In any event, because this
evidence was cumulative, any error was harmless. See United States v. Lindsey,
634 F.3d 541, 553 (9th Cir. 2011) (any error in admitting possible hearsay was
harmless because other witnesses testified to the same facts).
Solomon’s remaining claims regarding other potentially inadmissable
evidence are conclusory statements unsupported by legal argument and are thus
insufficient to preserve the claims. See Fed. R. App. P. 28(a)(9); Entm’t Research
Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir.1997) (“We
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will not manufacture arguments for an appellant, and a bare assertion does not
preserve a claim . . . .” (citation omitted)).
III. F ACTUAL F INDINGS
We review the district court’s findings of fact after a bench trial for clear
error. Bertelsen v. Harris, 537 F.3d 1047, 1056 (9th Cir. 2008). Solomon does not
offer any credible argument undermining the district court’s finding that he had
constructive notice of the sale. The 1988 auction was widely publicized, as was
Cutler’s subsequent purchase of the Painting. According to the record, an FBI
agent contacted Solomon directly to inform him of the sale. Given the substantial
evidence in the record, the district court’s finding was not clearly erroneous.
The district court also did not clearly err in finding that Cutler’s
investigation into the provenance of the Painting met the appropriate standard of
care. Prior to the purchase, Cutler looked at the provenance provided by the
auction house catalogue, called the Norman Rockwell Museum to ascertain
whether museum officials had any additional information, and consulted Norman
Rockwell: The Definitive Catalogue by Laurie Norton Moffatt, where she saw
similar provenance to that provided in the auction house catalogue. These
inquiries met reasonable commercial standards, which depend on the facts and
circumstances surrounding the sale. See Morgold, Inc. v. Keeler, 891 F. Supp.
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1361, 1368 (N.D. Cal. 1995) (stating that New York law requires an art dealer to
take reasonable steps to inquire into a painting’s title).
IV. C HOICE OF L AW D ETERMINATIONS R EGARDING C ONSENT
We do not reach the issue of whether the district court erred in applying
Nevada law to Solomon’s equitable claims seeking title and possession of the
Painting as Solomon would not prevail under either New York or Nevada law. See
Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 431 (N.Y. 1991)
(noting that the defense of laches is still available even though New York’s statute
of limitations for conversion does not begin to toll until the true owner demands,
and is refused, return of the artwork).
V. C UTLER’S D EFAMATION C ROSS A PPEAL
We do not reach the issue of whether Missouri or Nevada law applies to
Cutler’s defamation claim because she cannot prevail under either state’s law.
Under Missouri law, expressions of opinion are privileged under the First
Amendment’s guarantee of freedom of speech. State ex rel. Diehl v. Kintz, 162
S.W.3d 152, 155 (Mo. Ct. App. 2005). Likewise, under Nevada law, statements of
opinion cannot form the basis of a defamation claim. See Pegasus v. Reno
Newspapers, Inc., 57 P.3d 82, 87 (Nev. 2002). However, expressions of opinion
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may suggest that the speaker knows certain facts to be true or may imply that facts
exist, which will be sufficient to render the message defamatory if false. Id. at 88.
Solomon’s statement regarding what Cutler “should have” or “could have”
done are expressions of opinion and, as such, are not actionable. As the district
court noted, “Solomon’s statement that Cutler could have done more research
before buying the painting . . . is an opinion based on Solomon’s view of the
circumstances surrounding Cutler’s purchase.” Accordingly, summary judgment
was appropriate.
VI. C UTLER’S INTENTIONAL T ORT C LAIM
New York law requires a plaintiff to prove that she suffered special damages
when she seeks to recover for intentional tort. Chen v. United States, 854 F.2d
622, 627 (2d Cir. 1988). Cutler testified that she has not lost any clients as a result
of ALR’s actions or the publicity generated by the case. She also provided no
evidence that ALR’s actions caused her to incur any additional attorney’s fees. On
appeal, Cutler does not point to any other special damages; thus, the district court
did not err.
VII. M OTION FOR S ANCTIONS
Though sanctions are available for frivolous appeals, such relief is granted
only if the result is obvious or if the claims of error are wholly without merit.
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Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 621 F.3d
981, 991 (9th Cir. 2010). Because Cutler’s arguments are not wholly without
merit, ALR’s motion for sanctions is denied.
AFFIRMED; MOTION FOR SANCTIONS DENIED.
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