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Rogath v. Siebenmann

Rogath v. Siebenmann

United States Court of Appeals for the Second Circuit

August 28, 1997, Argued ; November 10, 1997, Decided

Docket Nos. 96-9300, 96-9481

Opinion

 [*262]  McLAUGHLIN, Circuit Judge:

BACKGROUND

This case revolves around a painting, entitled "Self Portrait,"  [**2]  supposedly painted in 1972 by a well-known English artist, Francis Bacon.

In July 1993, defendant Werner Siebenmann sold the Painting to plaintiff David  [*263]  Rogath for $ 570,000. In the Bill of Sale, Siebenmann described the provenance of the Painting and warranted that he was the sole owner of the Painting, that it was authentic, and that he was not aware of any challenge to its authenticity.

Problems arose three months later when Rogath sold the Painting to Acquavella Contemporary Art, Inc., in New York, for $ 950,000. Acquavella learned of a challenge to the Painting's authenticity and, on November 1, 1993, requested that Rogath refund the $ 950,000 and take back the Painting. Rogath did so, and then sued Siebenmann in the Southern District of New York (Batts, J.) for breach of contract, breach of warranty and fraud.

Rogath moved for partial summary judgment on the breach of warranty claims, and the district court granted his motion. See Rogath v. Siebenmann, 941 F. Supp. 416, 422-24 (S.D.N.Y. 1996). The court concluded that (1) Siebenmann was unsure of the provenance of the Painting when he sold it to Rogath; (2) he was not the sole owner of the Painting; and (3) when he [**3]  sold the Painting to Rogath he already knew of a challenge to the Painting's authenticity by the Marlborough Fine Art Gallery in London. See id. The court awarded Rogath $ 950,000 in damages, the price at which he had sold it to Acquavella. See id. at 424-25. The court dismissed, sua sponte, Rogath's remaining claims for fraud and breach of contract "in light of the full recovery on the warranties granted herein." Id. at 425. Finally, a few days later, the court denied Rogath's motion to attach the money that Siebenmann had remaining from the proceeds of the initial sale to Rogath.

Siebenmann appeals the grant of partial summary judgment. Rogath cross-appeals the denial of his motion for attachment and the dismissal of his fraud and breach of contract claims.

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129 F.3d 261 *; 1997 U.S. App. LEXIS 32142 **; 34 U.C.C. Rep. Serv. 2d (Callaghan) 63

DAVID ROGATH, Plaintiff-Appellant-Cross-Appellee, v. WERNER E.R. SIEBENMANN, Defendant-Appellee-Cross-Appellant.

Prior History:  [**1]  Defendant appeals from an order of the United States District Court for the Southern District of New York (Batts, J.) granting plaintiff's motion for partial summary judgment on his claim of breach of warranty. Plaintiff cross-appeals from the portion of the court's order dismissing, sua sponte, his claims of fraud and breach of contract, and from the court's denial of his motion for attachment.

Disposition: Order granting Rogath's motion for partial summary judgment is vacated, and the case is remanded to the district court for disposition not inconsistent with this opinion.

CORE TERMS

Painting, authenticity, seller, warranties, buyer, Gallery, provenance, bill of sale, express warranty, breach of warranty, district court, partial summary judgment, ambiguous, questions, bargain, promise, courts, doubts

Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment, Appellate Review, General Overview, Standards of Review, Judgments, Partial Summary Judgment, Business & Corporate Compliance, Contracts Law, Breach, Breach of Warranty, Commercial Law (UCC), Sales (Article 2), Contracts Law, Sales of Goods, Warranties, Contract Provisions, Contract Terms, Subject Matter, Definitions, Goods, Express Warranties, Types of Contracts, Contract Interpretation, Ambiguities & Contra Proferentem, Defenses, Ambiguities & Mistakes