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RAYMOND A. RUSSELL,
Trustee of the Russell Trust dated 4/5/89
Plaintiff.
vs.
KRISTINA LEE ANDERSON, et al.,
Defendants.
AND RELATED CROSS-ACTION
Two things have already occurred which
necessarily limit the scope of this decision in relation to the pleadings.
First, in the cross-complaint relief in the alternative for rescission and
damages is sought. During the trial cross-complainant elected to proceed
for damages as opposed to rescission. Secondly, cross- complainant seeks
damages based upon what are argued to be breaches of express warranties in
the sales contract regarding various individuals who purportedly certified
or authenticated the violin, e.g. Rolland Feller. However,
cross-complainant presented no evidence as to what the damages for any
such breach would be, and rescission is no longer a remedy. Likewise,
since rescission is no longer a remedy, it makes no legal difference that
Mr. Russell may not have disclosed to either Ms. Anderson or Mr. Woodall
Mr. Reuning's opinion about the authenticity of the violin unless his
opinion is correct.
Given the above, it is necessary for the Court to
determine as a matter of fact whether the violin is a well constructed
composite or a repaired original. If the violin is as asserted by the
plaintiff, the cross-complainant is not entitled to any relief.
This factual issue is largely a contest between
the testimonies of Christopher Reuning and Harry Duffy. Mr. Reuning is
obviously qualified, and the Court can identify no particular reason why
he would not be candid. However, it was the Court's strong impression was
that his testimony was a reiteration of what he had been told by Charles
Beare. Mr Beare was not a witness, and a hearsay objection was sustained
as to his opinion. As an expert, Mr. Reuning can take into consideration
the opinion of another expert, but the strength of Mr. Reuning's opinion
is diluted by Mr. Beare's unavailability to be cross-examined.
Mr. Duffy is also well qualified. Although it can be argued that Mr. Duffy
has personal motivation to defend his earlier opinions, the Court does not
find that he is the type of person who would not acknowledge his prior
errors if they were pointed out to him. Mr. Duffy also has the benefit of
the documentary history of the violin possessed by Mr. Russell. The Court
finds that by a preponderance of the evidence that the violin is an
original Guadagnini, although repaired and not of collector's
quality.
Defendant repudiated the contract by advising Mr.
Russell that she was unable to perform in October, 2000. Indeed the issues
about the authenticity of the violin did not arise until after the
litigation commenced and the cross-complaint had been filed. The entire
contract balance is accelerated. The Court is unable to identify either by
contract or by statute any entitlement that plaintiff has in asserting
title to or security in the violin.
Plaintiff is entitled to judgment for the entire
contract balance plus costs. Cross-complainant is entitled to nothing on
her cross-complaint. Cross-defendants are entitled to their costs.
Mr. Schmidt shall prepare a form of judgment and
submit same to Mr. Smith pursuant to Rule 391.
DATED: Sept. 25,
2001 SAMUEL S. STEVENS,
Judge of the Superior Court
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