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Fisk Trial Ends With All Parties Set to Appeal Outcome

NASHVILLE — A Tennessee judge on Thursday promised to resolve an expensive, running dispute between Fisk University and the Georgia O’Keeffe Museum over the fate of the priceless Stieglitz Collection of art and pictures within 30 days as a trial over the matter came to a close with both sides pledging a ruling against them would most certainly be appealed to a higher court.

For some two years, Fisk has been trying to raise money by unloading pieces of the collection or selling part ownership in it, only to be frustrated at every turn by Judge Ellen Hobbs Lyle of the Chancery Court of Tennessee, the judicial branch that oversees wills, estates and trusts.

Lyle has ruled against Fisk in a succession of major decisions in the past year, saying all of its various plans violate the specific “in tact, no sale, no loan” conditions imposed on Fisk when it agreed to accept the 101-piece collection in 1949 as a gift from the late artist Georgia O’Keeffe.

Fisk has also run afoul of the Tennessee Attorney General. He has opposed Fisk’s attempts for many of the same reasons as Lyle.

Lyle gave no hint of her inclinations after hearing two days of evidentiary testimony and closing arguments Thursday over whether Fisk should be forced to hand the collection over to the O’Keeffe Museum of Santa Fe, N.M., or allowed to keep it with orders it comply with the strict terms of the O’Keeffe gift.

Lyle’s decision could have a major impact on the eventual fate of the prized collection and the financially beleaguered college. Still, she acknowledged at various points during trial she wanted to make sure the record was complete for appeal purposes.

The events of this week’s trial were most unusual.

Fisk reversed its long held position it could not afford to keep and exhibit the collection, a declaration that prompted lawyers for the O’Keeffe Museum to accuse Fisk of flip flopping as the legal landscape changes. 

 After nearly two years of actively trying to unload the most valuable parts of the collection, Fisk President Hazel O’Leary, one of only two live witnesses in the trial, took the witness stand Wednesday and declared Fisk wants to keep the Stieglitz Collection and is prepared to quickly complete renovation of its Carl Van Vechten Gallery and display the entire collection as early as this fall, if ordered to do so by the court.

O’Leary told the court Fisk was experiencing a dramatic reversal of fortune since December, when it received an infusion of funds – $1 million — from the Andrew Mellon Foundation. The Mellon aid has spurred others to give, she told the court.

Now, O’Leary said, the school is receiving “an extraordinary infusion of cash” that has allowed it to pay immediate debts and allocate about $250,000 to complete renovation of the Carl Van Vechten Galley where the Stieglitz Collection was housed until the gallery was shut in November 2005 and the collection put in storage. O’Leary also said if funds continue to flow to the school at the current pace, Fisk would finish the school’s fiscal year, ending June 30, with a surplus.

Illuminating her statement after testifying, O’Leary said Fisk has raised $3.3 million since its 2008 fiscal year began last July — 150 percent ahead of giving for the comparable period a year before that. That excludes $1 million it received from the Mellon Foundation in December.

When asked by a lawyer for Tennessee Attorney General whether Fisk had any intent of abandoning the Stieglitz Collection if the court bars it from selling the collection, O’Leary said, “absolutely not. There is no circumstance under which we would not comply.”

O’Keeffe Museum lawyers were having no part of Fisk’s presentation.

William Harbison, chief lawyer for the museum, contended Fisk was trying to appease the court for the moment but still has the same goal in mind for the future — “monetizing the collection.”

“Your honor, things you file in the court record are supposed to be accurate,” Harbison said, referring to various filings Fisk has made as recently as two weeks ago saying it could not honor the Stieglitz conditions and meet its other obligations as an institution of higher learning.

“The facts can’t be true for one purpose and false for another,” he said, repeatedly spicing his comments with the assertion Fisk only wants to keep the collection to sell all or parts of it to raise money.

“This important art collection is being held hostage in order to monetize it,” Harbison said.

Fisk lawyers countered they suspect the O’Keeffe museum would do precisely what it accuses Fisk of planning, should it get its hands on the collection. It’s widely known the museum primarily wants the Stieglitz Collection to secure the coveted “Radiator Building – Night, New York,” a painting by O’Keeffe worth about $25 million in today’s art market. The entire collection is estimated to be worth about $71 million.

Despite the oratory, Judge Lyle, a seasoned jurist known for her depth of research and clarity in reasoning, is likely to focus heavily on the volumes of documents — several thousand pages of letters, memorandums, notes, minutes of board meetings, wills, income tax returns, construction plans, depositions and affidavits — that made up the more than 100 exhibits entered into evidence during the trial. Those documents substituted for many of the deceased witnesses and others not called to testify in person.

Lyle will be guided, as she has explained in earlier rulings in this case, by New York law as it pertains to gifts, as O’Keeffe was a resident of New York when she gave Fisk the collection in 1949.

There are several likely outcomes. Judge Lyle could find Fisk has breached the conditions of the gift and order the collection turned over to the O’Keeffe Museum. In that case Fisk and the state would appeal. She could find Fisk has breached the conditions of the gift and give it time to comply with the conditions or surrender. In the latter case, Fisk would win and lose, and the institution and the O’Keeffe museum would appeal. Fisk would `win’ by being able to keep a collection it wants to sell but `lose’ because it can’t sell it. 

Appeal of Judge Lyle’s ruling on the whole case, including the order barring Fisk from selling, would most certainly cost Fisk and the O’Keeffe museum several more years in court, not to mention added legal costs. Currently, local legal experts estimate Fisk and the O’Keeffe museum have each incurred in excess of half a million dollars in costs for legal services.

“We believe strongly in our case,” said Fisk spokesman, Ken West, when asked why Fisk would appeal, if it were ordered to surrender the collection or honor the original conditions of the gift.

“We have no interest in harming Fisk,” said Saul Cohen, the Santa Fe lawyer who is president of the O’Keeffe Museum and attended most of the trial, seated by his battery of lawyers. “It’s not an intention or goal of ours. We don’t think (our claim) should (harm Fisk). We think Fisk can raise money in other ways.”

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