VERMILLION, S.D. – A dispute over who is the rightful owner of a guitar previously belonging to Elvis Presley will proceed, a federal judge ruled.
The controversy revolves around a Martin D-55 guitar that Elvis broke at a show in St. Petersburg, Fla. on February 14, 1977. It was the last tour for the self-proclaimed “King of Rock and Roll.” He died in the master bathroom of Graceland, his home in Memphis, Tenn., on Aug. 16, 1977.
The guitar, originally given to a female fan, eventually came under ownership of defendant Robert Johnson, a music memorabilia collector.
As recounted by U.S. District Judge Karen Schreier in an opinion published Friday, Johnson signed an agreement to sell the guitar and three others to defendant Larry Moss in February 2008 for $120,000.
The parties agreed to two separate exchanges.
Moss paid $70,000 and took possession of two of the guitars. He planned to pay the remaining $50,000 when Johnson delivered the Martin D-55 and another guitar, Schreier said.
At the time the deal was made, the Elvis guitar was on display at the Rock and Soul Museum in Memphis, and Moss agreed as a condition of the sale that it would remain there through January 2009.
But in November 2008, Schreier said, Johnson took the guitar back and listed it on an auction website. Moss later testified that he saw the guitar on the website, but took no legal action at that time.
In 2012, Johnson contacted the National Museum of Music, based in Vermillion, S.D. about the sale of one instrument and the donation of several others, including the Elvis guitar.
The museum agreed to pay $250,000 for a Gibson Korina Explorer guitar once owned by The Who’s John Entwistle, and to receive the donation of the other instruments, pending their authentication.
The museum received the guitar in February 2013, and in December of that year, Moss contacted the museum stating his claim to the guitar.
A Tennessee state court found in favor of Moss when he sued Johnson for ownership of the guitar, but Schreier says that ruling does not preclude the museum’s current litigation. “During the Tennessee litigation, NMM was unable to assert its claim of ownership, present evidence, cross examine witnesses, or appeal the Tennessee judgment,” she wrote. “NMM was unable to shape the Tennessee litigation in any meaningful way. If NMM is collaterally estopped from making its argument that Moss never acquired title to the guitar, NMM would be deprived of its day in court.”
Schreier found the initial agreement between defendants Johnson and Moss to be “ambiguous” because the term “deliver” could be interpreted in various ways. “The key factual issue in this case is whether Johnson was going to physically deliver the Elvis guitar or whether Moss was going to retrieve the guitar from the Rock and Soul Museum,” Schreier writes, noting that title usually passes at the time of the delivery of the physical product.
Moss, however, “claims the parties agreed that delivery [of the title] would be made without moving the guitar,” based on his agreement to let it remain on display at the Rock and Soul Museum.
The issue of whether the National Music Museum can be classified as a “buyer” is also unresolved. Moss argues the museum is not a buyer because the guitar was “donated,” while the museum claims it is a buyer because it paid $250,000 not just for the Entwistle Gibson but for all the accompanying instruments wrapped into the deal, including the Elvis guitar.
“A reasonable fact finder could conclude that Johnson gave the guitar to NMM as a gift and that NMM is not a buyer,” Schreier wrote. However, she added that a fact finder could also “conclude that the donation section of the agreement is inseparable from the sales section of the agreement.”
The third issue is whether Johnson had the right to take the guitar from the Rock and Soul Museum and bequeath it to the National Music Museum at all. “A reasonable fact finder could believe that Johnson – in essence – stole the guitar when he removed it from the Rock and Soul Museum because he no longer had title to the guitar,” Schreier said. “On the other hand, a reasonable fact finder could find that because Moss had not paid the remaining $50,000 owed to Johnson, Johnson still had title to the guitar and was merely exercising his ownership rights. Or a reasonable fact finder could conclude that Moss acquiesced to Johnson’s possession of the guitar because Moss did not take legal action for several years after he learned that Johnson had removed the guitar from the Rock and Soul Museum.”
Schreier found that “evidence supports both parties’ arguments,” making summary judgment an inappropriate remedy.
Mitchell Peterson of Davenport, Evans, Hurwitz & Smith in Sioux Falls is representing the museum in the case, while Ronald Parsons of Johnson, Janklow, Abdallah, Bollweg & Parsons LLP is local counsel for Moss.
Neither side responded to a request for comment from Courthouse News.
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