Fisk University must make good on a promise to display and care for a priceless collection of art and photographs given it in 1949 by the late Georgia O’Keeffe or it may be forced to surrender the collection to O’Keeffe heirs who have been trying to capture parts of its for more than two years, a Tennessee judge declared Thursday.
In a final memorandum and order that was critical of Fisk attorneys and university President Hazel O’Leary, Tennessee Chancery Court Judge Ellen Hobbs Lyle found Fisk had “breached” the covenants governing its possession of the 101-piece Stieglitz Collection. The infractions have not risen, however, to a level that would warrant a court order that Fisk forfeit the works to the Georgia O’Keeffe Museum of Santa Fe, N.M., Lyle ruled.
To ensure they don’t, Lyle imposed a “permanent, mandatory injunction” against Fisk with three key provisions. The order prevents Fisk from ever selling the Stieglitz. It gave Fisk an October 6, 2008 deadline to completely remove the collection from storage and return it to display in the Carl Van Vechten Gallery on the Fisk campus. The court also imposed “notice requirements” on Fisk regarding loans of the collection and Fisk’s ability to care for it over the long term.
“Noncompliance with the injunction carries a threat of finding of contempt punishable by fines, payments of damages and attorneys fees, and forfeiture of the collection,” Lyle wrote in her 21-page decision. She noted that one of the “practical effects” of her injunction is that it provides parties who suspect Fisk has again “breached” the conditions “a much shorter and straightforward proceeding” to take the collection from the school.
Officials at Fisk and the O’Keeffe Museum could not be reach late Thursday for comment. At a trial in Nashville last month over their dispute and in earlier statements, spokesmen for both groups said they would appeal Lyle’s ruling, if she did not rule in their favor.
The ruling was a tough blow to the O’Keeffe Museum, successor to Ms. O’Keeffe’s estate. It has spent hundreds of thousands of dollars over the past two years trying to wrest control of key parts of the collection, first by entering a financial deal with Fisk to settle their court dispute then, after a rebuttal by Judge Lyle, seeking outright return of the whole collection.
It was a win and loss for Fisk. It too has spent hundreds of thousands of dollars trying unsuccessfully to have the court declare Fisk has sole control over the collection so it, Fisk, could sell parts or all of the collection to raise badly needed funds for the school.
When that failed, Fisk then tried unsuccessfully to win court approval to sell parts of it to the O’Keeffe Museum. Last fall, it tried to win court approval to sell half ownership of the collection to the Crystal Bridges Museum in Arkansas, a new museum founded and controlled by Wal-Mart fortune heiress Alice Walton.
Throughout the process, Fisk has repeatedly claimed its deteriorating finances were such that Fisk could no longer afford to care for and display the collection and function as an institution of higher learning. Lyle cited that argument in expressing her dissatisfaction with Fisk’s conduct in this case.
She said Fisk had failed to tell the court at the start of the litigation that the school had agreed to a “no sale” condition in 1949 when it accepted the collection as a gift. More recently, she said, Fisk attorneys and O’Leary have provided contradictory testimony to the court regarding the school’s ability to take care of the collection.
Before the February trial and after Fisk had received a $1 million cash infusion in December from the Andrew Mellon Foundation, Fisk attorneys and Ms. O’Leary had asserted Fisk could not afford to take care of the collection and needed to proceed with its sale to the Crystal Bridges Museum for $30 million. Those assertions were made before Lyle in early February banned any sale of the collection or interest in it.
At trial in mid-February, O’Leary said the Mellon money had made it possible to restore the Van Vechten Galley and put the art on display again, if ordered by the court. She also declared Fisk had no interest in selling the collection. The earlier omission of the “no sale” restriction and O’Leary’s witness stand declaration that contradicted her deposition testimony given twice before the trial promoted Lyle to accuse O’Leary and the Fisk lawyers of being “self serving with the facts.”
Despite her findings of fault on the part of Fisk, Judge Lyle said they stemmed from the school’s deteriorating financial condition, adding there was “no proof” of physical damage or lack of maintenance of the collection by Fisk. Still, she was adamant about keeping a close watch over the school due to its financial condition and its proven attempts to violate its public trust as steward of the collection.
“Were the interests of Fisk, the institution, the only ones the court is required to consider, Fisk’s lapses might be dispositive of reversion,” Judge Lyle said. “But the court must also consider the public interest when dealing with reversion of a charitable gift. …The court is further required to consider that the law does not favor forfeiture. Courts of equity are cautioned to be conservative and use the least drastic remember in fashioning and equitable remedy.”
Thus, she concluded, “The appropriate equitable remedy is to leave the collection at Fisk but with the weight and authority of a permanent mandatory injunction that protects against the sale of the collection, establishes deadlines and provides notice requirements.”
Judge Lyle also ordered Fisk to pay court costs in the case, as it was the losing party.
Complying with the ruling will cost Fisk thousands of dollars, in addition to its legal costs. At the same time, it will allow the school to showcase to the public and use for educational purposes for its students one of the most impressive collections of modern art in the Southeast. The collection, which includes paintings by O’Keeffe and Marsden Hartley among others, is valued at more than $70 million. It has been in storage at another museum in Nashville since the fall of 2005.
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