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It’s a bird, it’s a plane, it’s… New York’s Statute of Limitations

November 17, 2016

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In world where each new Marvel motion picture conquers the box office, it’s easy to forget that many of these characters grew out of the imagination of comic book artists and writers from the 1960s. Wally Wood—having the hallmark alliterative name common to many superhero alter-egos—was one of those artists that left his mark on the industry in the likes of Stan Lee and Jack Kirby. Although Wood’s life ended tragically, his style and format for comic books are still used today.
At the time of Wood’s death 1981, his will bequeathed his bank accounts to his ex-wife Tatjana Wood, but all of his published and unpublished artwork was to go to his friend, John Robinson. An aficionado and biographer of Wood, J. David Spurlock, created Wallace Wood Properties, LLC to obtain the rights from Robinson for all of Wood’s work.  In 2006, Spurlock interviewed Tatjana and noticed many pieces of Wood’s artwork in her apartment. In 2009, Spurlock reviewed a copy of Wood’s will, which explicitly bequeathed all of his artwork to Robinson. In 2013, Spurlock demanded that Tatjana return all of the artwork in her apartment, whether published or not. Tatjana refused the demand, and Spurlock commenced an action for conversion and replevin in 2014.
The district court granted Tatjana’s motion to dismiss the complaint because Spurlock’s conversion and replevin action was time-barred by New York’s 3 year statute of limitations. On appeal in the Second Circuit, Spurlock argued the action was timely based on the “demand and refusal” rule—whereby an action against a good faith purchaser of stolen property accrues once the true owner makes a demand and is refused. Because Spurlock demanded and was refused the return of Wood’s artwork from Tatjana in 2013, he argued the statute of limitations did not begin to run until 2013. In addition, Spurlock sought equitable tolling of the statute of limitations because of Tatjana’s alleged fraudulent concealment of Wood’s artwork.
In <em><a href="">Wallace Wood Properties, LLC v. Wood</a></em>, the Second Circuit Court of Appeals affirmed the district court, holding Spurlock’s conversion and replevin action is time-barred by the statute of limitations. The Court applied two important caveats to the “demand and refusal” rule. First, where the sought after property was held in bad faith or unlawfully, the limitations period begins to run immediately from the time of unlawful possession. Thus, if a party possesses property unlawfully, it is of no moment when a demand and refusal are made, only when the party took unlawful possession. Second, if the current possessor deals with the contested property openly, as if it were his/her own, then the “demand and refusal” rule does not apply.
Although Spurlock specifically alleged Tatjana was not a thief, the Second Circuit looked to the allegations in the complaint to determine whether the caveats to the “demand and refusal” rule apply. According to the Court, the complaint was permeated with allegations that Tatjana knew she was not the rightful owner of the artwork, and that she fraudulently concealed the identity and possession of Wood’s artwork. Based on these allegations, the Court held Tatjana was a bad-faith or unlawful possessor, and the statute of limitations began to run when she took possession of the contested property around 2005. Further, Tatjana’s open display of Wood’s work in her apartment indicated she considered the property her own, thereby satisfying the other caveat to the “demand and refusal” rule.
The Court may have applied the “demand and refusal” rule if Spurlock did not include such specific and detailed allegations. Instead, the verbose allegations regarding Tatjana’s bad-faith possession may have had the opposite effect of that intended by Spurlock’s attorney. Perhaps if Spurlock and his attorneys heeded the advice of Wally Wood’s famous “22 Panels That Always Work!!” (pictured below), things could have played out differently. In that work, Wood satirized what comic book artists have to do when “some dumb writer has a bunch of lame characters sitting around and talking for page after page!” Clearly, Wood was partial to more concise writing.
<a href=""><img class="alignnone wp-image-9939" src="" alt="22 Panels That Always Work!!" width="509" height="393" /></a>
Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please call or email Brian Gibbons at <a href="">Brian Gibbons</a> for additional information.

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