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National Music Museum: America's Shrine to Music v. Johnson

United States District Court, D. South Dakota, Southern Division

January 23, 2017




         The 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.


         The following facts have been established by the greater weight of the evidence:

         Robert 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.

         In the 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.

         The day 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. at 154-55.

         Later 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. Id.

         Moss 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.

         Toward 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 223.

         Later 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.

         Prior 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.

         In 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.

         Another 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 ...

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