United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
E. SCHREIER, UNITED STATES DISTRICT JUDGE
National Music Museum: America's Shrine to Music (NMM)
brings suit against Larry Moss and Robert Johnson. NMM seeks
a declaratory judgment that it is the legal owner of a Martin
D-35 guitar that was formerly owned by Elvis Presley. A bench
trial was held on August 2, 2016. The court finds that NMM is
the legal owner of the Martin D-35 guitar.
following facts have been established by the greater weight
of the evidence:
Johnson and Larry Moss have known each other for 35 years.
Docket 58 at 142. They first met because of their interest in
historic memorabilia. Id. at 141. Their mutual
interest in collectables led to a friendship and business
relationship. See Id. at 141-42, 219-220. Prior to
2008, Moss had purchased 15-20 pieces of memorabilia from
Johnson. Id. at 219-220. Johnson would contact Moss
whenever Johnson came across pieces Moss would enjoy.
Id. at 219. This arrangement led to Moss's
interest in the Martin D-35 guitar.
summer of 2007, Johnson contacted Moss about acquiring three
guitars once owned by Elvis, including the Martin D-35
guitar. Id. at 148. The original agreement involved
Moss paying $95, 000 for all three guitars. Id. at
149. Johnson would negotiate the purchase between Moss and a
third-party seller. Id. at 148-49.
Johnson met with the third-party seller, Johnson called Moss
twice giving him updates on the purchase. Id. at
149. During the first call, Johnson said the price had gone
down to $90, 000. Id. On the second call, Johnson
said, “I might have it down to $88, 000. I'll let
you know. In the meantime, you need to wire me the
money.” Id. Moss, however, never sent the
money because Johnson never told him where to send the money
or how to send it. Id. at 150. Johnson and Moss had
no further contact that day. Id. at 149-50. Five to
six days later, when Johnson finally called Moss, Johnson
claimed the deal did not go through because Moss failed to
wire the money. Id. at 151. While testifying at
trial, Moss described the situation as “no harm, no
foul.” Docket 58 at 156. Moss explained, “Well,
we never had a deal. I never gave him the money. He never
gave me any guitars. There was no deal.” Id.
in 2007, Moss saw a news article featuring Johnson and the
three Elvis guitars that Moss had agreed to buy. Id.
at 152. Moss accused Johnson of lying about the availability
of the guitars, the cost of the guitars, and whether the deal
over the guitars happened as originally planned. Id.
at 155-56; see also Exhibit 1. About six months
later, on February 12, 2008, Johnson met with Moss to discuss
the sale of additional music memorabilia. Id. at
162. They eventually came to an agreement that Moss would pay
Johnson $120, 000 for four guitars: three guitars connected
to Elvis and one guitar once owned by Sonny Burgess. Exhibit
4. Moss typed up the contract and organized the transaction
into two parts. Id. Part one involved Moss paying
$70, 000 to Johnson and taking immediate possession of two of
the guitars. Id. Part two of the transaction
required Johnson to deliver the two remaining guitars-one of
which was the Martin D-35 guitar-by April 12, 2009.
Id. Upon delivery, Moss would pay Johnson $50, 000.
testified that he was unable to take possession of the Martin
D-35 guitar on the day of the meeting because the guitar was
on display at the Rock ‘n' Soul Museum in Memphis,
Tennessee. Exhibit 14. Johnson told Moss that the Martin D-35
was scheduled to be at Rock ‘n' Soul until January
2009 because of a previous agreement Johnson had made with
the museum. Docket 58 at 164-65. Johnson asked Moss not to
retrieve the Martin D-35 from Rock ‘n' Soul so
Johnson would avoid an embarrassing situation. Docket 58 at
169-70. Moss agreed that he would not retrieve the guitar.
Id. At trial, Moss testified that he did not want to
cause Johnson any embarrassment by telling Rock ‘n'
Soul he owned the guitar. Id.
the end of 2008, Johnson took the Martin D-35 from Rock
‘n' Soul. Exhibit 14. About three months later,
Moss visited Rock ‘n' Soul and saw that the Martin
D-35 was gone. Docket 58 at 222. At that time, Moss did not
contact Johnson about the guitar. Id. at 223. Moss
did not tell Rock ‘n' Soul that he was the owner of
the Martin D-35. See Docket 58 at 225. The April
2009 delivery date passed without Johnson making delivery,
and at that time, Moss did not start any legal proceedings
against Johnson. Id. at 183, 227. From February 2009
to July 2009, Moss did not contact Johnson. Id. at
that year, Johnson learned that the Martin D-35 was being
auctioned online by Alexander Historical Auctions.
Id. at 183; Exhibit 8. In a July 9 email exchange
between Moss and Rock ‘n' Soul, Moss learned that
Johnson removed the Martin D-35 from Rock ‘n' Soul
to be “refurbished.” Exhibit 8. In the same email
exchange, Moss sent Rock ‘n' Soul a link to the
Alexander website, where the guitar was being auctioned.
Id. Although the guitar was set for auction in July
2009, the auction was postponed until October of that year.
Docket 58 at 186; Exhibits 11, 12.
to the auction, Moss contacted Alexander's and asked them
to remove the Martin D-35 from the auction. Exhibit 12. Moss
did not take any further action to stop the auction. During
the auction, no one bid above the reserve price, and the
Martin D-35 was not sold. Exhibit 12; see Docket 58
at 185, 188-89. After the auction, Moss followed up with
Alexander's on October 27, 2009, and November 2, 2009,
trying to learn who owned the Martin D-35. Exhibits 12, 13.
In his October 27 email, Moss wrote, “The ownership of
that guitar is very much disputed at this point and I would
like to try to resolve it before the courts get
involved.” Exhibit 12. Moss never received a
substantive response from Alexander's. Docket 58 at
183-184. Again, Moss did not start legal proceedings against
Johnson. And Moss did not ask Johnson to deliver the Martin
D-35 to him.
December 2009, Johnson sent Moss a string of emails about the
auction at Alexander's. Exhibits 11, 15, 16. Johnson
forwarded Moss the description Alexander's used to
promote the Martin D-35. Exhibit 11. Johnson also forwarded
Moss Johnson's email to Alexander's detailing the
damage allegedly done to the Martin D-35 while it was at
Alexander's. Exhibits 15, 16. Moss did not ask Johnson to
deliver the Martin D-35 to him.
six months pass, and Johnson emailed Moss again on June 15,
2010. Exhibit 18. Johnson asked Moss about his interest in
the Martin D-35. Id. Johnson explained that he
needed to satisfy his investors if Moss wanted to get the
guitar. Exhibit 18. Johnson also said that he has a lawsuit
pending against Alexander's for the damage to the guitar.
Id. A few weeks later, Johnson emailed Moss ...