                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   June 28, 2011 Session

                               IN RE FISK UNIVERSITY

                 Appeal from the Chancery Court for Davidson County
                      No. 052994III Ellen H. Lyle, Chancellor


               No. M2010-02615-COA-R3-CV - Filed November 29, 2011


After finding that cy pres relief was available to modify conditions imposed by donor of
artwork which had been gifted to Fisk University, the trial court approved agreements
whereby the Crystal Bridges Museum would purchase a fifty percent interest in the art for
$30 million and would thereafter share in the display and maintenance of the artwork. The
court conditioned approval of the agreements on the requirement that Fisk establish an
endowment of $20 million from the proceeds of sale in furtherance of the donor’s intent to
make the art available for the citizens of Nashville. The Attorney General of Tennessee
appeals, contending that the trial court exceeded the scope of remand and that the court erred
in determining that the agreement with the Crystal Bridges Museum most closely reflects the
donor’s intent. Fisk seeks review of trial court’s requirement that it establish the endowment.
We affirm the trial court’s decision in part, reverse in part, and remand for further
proceedings.

 Tenn R. App. P. 3; Judgment of the Chancery Court Affirmed in Part, Reversed in
                              Part, and Remanded

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which D AVID R. F ARMER, J.,
joined. F RANK G. C LEMENT, J R., J., filed a separate opinion concurring in part and dissenting
in part.

John P. Branham, Stacey A. Garrett, C. David Briley, and C. Michael Norton, Nashville,
Tennessee, for the Appellant, Fisk University.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor
General, Janet M. Kleinfelter, Deputy Attorney General, and William N. Helou, Nashville,
Tennessee, for the Appellee, State of Tennessee.
Thor Y. Urness, Nashville, Tennessee, for the Amici Curiae, Task Force for the Rescue and
Restoration of Fisk University.

                                             OPINION

                               F ACTS AND P ROCEDURAL H ISTORY

       This case comes before this Court for a second time and concerns the continuation of
efforts by Fisk University to modify, under the doctrine of cy pres, certain conditions
attendant to a gift of works of art, known as the Steiglitz Collection (“the Collection”), given
to Fisk by modernist painter Georgia O’Keeffe.1 In the earlier appeal, we reversed the trial
court’s dismissal of the petition for cy pres relief and remanded the case for a determination
on its merits. A thorough discussion of the nature of the proceeding and the factual
background leading to the filing of the cy pres petition is found in Georgia O’Keeffe
Foundation (Museum) v. Fisk University, 312 S.W.3d 1 (Tenn. Ct. App. 2009). We
remanded the case as follows:

       It is premature to determine what cy pres relief, if any, the University may be
       entitled to receive based on the unique facts of this case because the University
       has not established all three prongs of the New York cy pres analysis. At this
       stage of the proceedings, the University has not established whether the change
       of circumstances subsequent to the gift render literal compliance with the
       conditions impossible or impracticable.

       Accordingly, a determination of whether any form of cy pres relief is available
       must be held in abeyance unless and until the trial court, on remand, finds that
       literal compliance with the conditions imposed by Ms. O’Keeffe are
       impossible or impracticable. If cy pres relief is available to the University,
       then the trial court is to fashion a form of relief that most closely approximates
       Ms. O’Keeffe’s charitable intent.

Georgia O’Keeffe Foundation (Museum), 312 S.W.3d at 19–20 (citations omitted).

       A trial was held, and on August 20, 2010, the court entered a Memorandum and Order
holding that Fisk’s financial situation rendered strict compliance with the conditions
impracticable and, as a consequence, cy pres relief was available. The court further held that
Fisk had not demonstrated that the proposed agreement with the Crystal Bridges Museum in


       1
           The Collection is comprised of ninety-seven pieces from the Alfred Stieglitz estate and four
paintings from Ms. O’Keeffe’s personal collection.

                                                 -2-
Bentonville, Arkansas, for which it sought approval, closely approximated Ms. O’Keeffe’s
intent; the court found that eight provisions of the agreement overrode, thwarted, and diluted
Ms. O’Keeffe’s purpose for making the gift. Finding deficiencies with Fisk’s initial
proposal, the court invited the parties to submit additional proposals addressing the display
and maintenance of the Collection.

        In response to the court’s request, the Attorney General filed a proposal which
provided for the creation of a public and private partnership between the State of Tennessee,
the Frist Center for the Visual Arts,2 and the Metropolitan Government of Nashville and
Davidson County, in which the partnership would take temporary control of the Collection
until Fisk had the financial ability to resume its role as custodian of the Collection. By Order
entered September 14, 2010, the court rejected the Attorney General’s proposal due in part
to the fact that the proposal did not provide a long-term solution for the Collection.

       On October 8, 2010, Fisk submitted an Amended and Restated Joint Ownership
Agreement and an Amended and Restated Purchase and Sale Agreement (collectively
referred to as the “Revised Sharing Agreement”)3 with the Crystal Bridges Museum. On
October 22, 2010, the Attorney General submitted a second proposal seeking court approval
of an endowment fund to be established by Fisk alumna Carol Creswell-Betsch at The
Community Foundation of Middle Tennessee with the purpose to “benefit, in perpetuity, the
display and care of the Alfred Stieglitz Collection at the Van Vechten Gallery at Fisk
University.”4



        2
          The Affidavit of William R. Frist, Chairman and President of the Board of Trustees of the Frist
Center for the Visual Arts (“the Frist”), filed as part of the Attorney General’s proposal, states:

        The [Frist] was chartered as a public benefit corporation under the Tennessee Nonprofit
        Corporation Act on March 3, 1998. It opened in April 2001, with a vision “to inspire people
        through art to look at their world in new ways.” The Mission of the [Frist] is “to present and
        originate high quality exhibitions and related educational programs and community outreach
        activities.” The attendance at the [Frist] averages 200,000 visitors per year.
        3
         The trial court referred to these agreements collectively as the “Revised Sharing Agreement” and
we adopt that designation in this opinion.
        4
           The affidavit of Ellen Lehman, president of The Community Foundation, stated that the Foundation
was established to “serve as a leader, catalyst, and resource for philanthropy” and that it “does this by
connecting civic minded individuals, with an interest in philanthropy, with worthy charities.” The fund
established by Ms. Creswell-Betsch would be funded by individuals, organizations, and corporations and was
conditioned on entry of an order in this proceeding approving the Creswell Fund to pay for the display and
care of the Collection at Fisk and denying Fisk’s petition for cy pres relief. After the contingencies were met,
the fund would have a corpus of at least $2,620,000 and would generate $131,000 per year.

                                                      -3-
        The court entered a Memorandum and Order on November 3, 2010, in which it
approved the Revised Sharing Agreement, thereby permitting Fisk to sell a fifty percent
undivided interest in the Collection to the Crystal Bridges Museum for $30 million; approval
was conditioned on Fisk establishing an endowment for the Collection with $20 million of
the sale proceeds. The order also allocated $10 million of the proceeds of sale for Fisk to use
at its discretion and required court approval of future sales, exchanges, or transfers of the
Collection. On November 9, 2010, the court amended the November 3, 2010 order, adding
additional findings of fact and reasoning for its approval of Fisk’s Revised Sharing
Agreement and for its creation of the $20 million endowment.

         The Attorney General contends that the trial court erred by exceeding the scope of
remand and failing to adhere to the law of the case, and that it abused its discretion in
approving the Revised Sharing Agreement. Fisk seeks review of trial court’s requirement
that it establish the endowment.

                                        S TANDARD OF R EVIEW

       In our earlier opinion, we pointed out that New York law controls the substantive
issues in the case, while Tennessee law controls resolution of procedural issues;
consequently, we review the trial court’s findings of fact de novo, accompanied by a
presumption of correctness, unless the preponderance of the evidence is otherwise. See
Tenn. R. App. P. 13(d). Our review of the trial court’s determinations regarding questions
of law is de novo with no presumption of correctness. See Staples v. CBL Associates, Inc.,
15 S.W.3d 83, 88 (Tenn. 2000); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).
Discretionary decisions are reviewed under the abuse of discretion standard.5


        5
         A thorough discussion of this standard is set forth in Lee Med., Inc. v. Beecher, 312 S.W.3d 515
(Tenn. 2010) thusly:

                 The abuse of discretion standard of review envisions a less rigorous review of the
        lower court’s decision and a decreased likelihood that the decision will be reversed on
        appeal. Beard v. Bd. of Prof’l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009); State ex
        rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness
        that the decision being reviewed involved a choice among several acceptable alternatives.
        Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not
        permit reviewing courts to second-guess the court below, White v. Vanderbilt Univ., 21
        S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their discretion for the lower
        court’s, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970
        S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review does not,
        however, immunize a lower court’s decision from any meaningful appellate scrutiny. Boyd
        v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).
                                                                                               (continued...)

                                                   -4-
                                              D ISCUSSION

                               I. A VAILABILITY OF C Y P RES R ELIEF

       As noted in our earlier decision, consideration of a request for cy pres relief is a two-
step process. Georgia O’Keeffe Foundation (Museum), 312 S.W.3d at 16–17. First, the
court must determine if cy pres relief is available; if so, the second step requires the court to
determine if the proposed modification closely approximates the donor’s charitable intent.
The first step has three prongs and requires the court to find: (1) that the gift is charitable in
nature; (2) that the donor had a general, rather than specific charitable purpose in mind; and
(3) that circumstances have changed such as to render compliance with the conditions
impracticable. In re Hummel, 805 N.Y.S.2d 236 (2005). In the first appeal, we determined


       5
           (...continued)

                Discretionary decisions must take the applicable law and the relevant facts into
       account. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358
       (Tenn. 2008); Ballar d v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). An abuse of
       discretion occurs when a court strays beyond the applicable legal standards or when it fails
       to properly consider the factors customarily used to guide the particular discretionary
       decision. State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its discretion
       when it causes an injustice to the party challenging the decision by (1) applying an incorrect
       legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision
       on a clearly erroneous assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526
       (Tenn. 2009); Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d at
       358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d at 42.

                To avoid result-oriented decisions or seemingly irreconcilable precedents, reviewing
       courts should review a lower court’s discretionary decision to determine (1) whether the
       factual basis for the decision is properly supported by evidence in the record, (2) whether
       the lower court properly identified and applied the most appropriate legal principles
       applicable to the decision, and (3) whether the lower court's decision was within the range
       of acceptable alternative dispositions. Flautt & Mann v. Council of Memphis, 285 S.W.3d
       856, 872–73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen. Signal Controls, Inc. v.
       Service Constr. Co., No. 87–136–II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988)
       (No Tenn. R. App. P. 11 application filed)). When called upon to review a lower court’s
       discretionary decision, the reviewing court should review the underlying factual findings
       using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and
       should review the lower court’s legal determinations de novo without any presumption of
       correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004);
       Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524–25 (Tenn. 2010).


                                                    -5-
the second prong of the first step, i.e., that Ms. O’Keeffe had a general charitable intent.6
The case was remanded for the court to determine whether it was impracticable to comply
with the conditions of the gift and, if so, to fashion relief closely resembling Ms. O’Keeffe’s
general intent.

        In accordance with the order of remand, the court held a trial and determined that, due
to Fisk’s financial situation, it was impracticable for Fisk to comply with Ms. O’Keeffe’s
condition that the Collection be maintained at and displayed by Fisk. In making this
determination, the trial court relied on the testimony of Fisk’s President, Hazel O’Leary, who
testified regarding the University’s finances and discussed the many cuts that had been
implemented in an effort to reduce expenses, such as eliminating educational programming
for students, reducing the salary of faculty and staff, and mortgaging buildings on campus.
When asked whether Fisk was “viable” in light of its financial challenges, President O’Leary
stated, “No, not at all.” President O’Leary’s testimony in this regard was uncontradicted.
An exhibit introduced through the testimony of President O’Leary showed that the annual
cost to maintain and display the Collection is $131,000; she testified that this expense was
unsustainable for Fisk, in light of its financial challenges. In addition to the testimony of
President O’Leary, annual financial statements of Fisk from June 2004 through June 2009
and the financial audit of the University as of June 30, 1950 were introduced.

        Although the finding of impracticability has not been appealed by the parties,7 we
have thoroughly reviewed the record and find that the evidence does not preponderate against
the court’s holding that the financial condition of Fisk renders strict compliance with the
conditions attendant to the gift impracticable. Consequently, the court did not err in holding
that cy pres relief was available.8

                                         II. S COPE OF R EMAND

       After determining the threshold issue of impracticability and rejecting the original
proposal with the Crystal Bridges Museum in its order of August 20, the court received the
Revised Sharing Agreement from Fisk and the Attorney General’s proposals and analyzed
them to determine the extent to which the proposals approximated Ms. O’Keeffe’s intent.


        6
            The first prong of the test—that the gift is charitable in nature—was not contested.
        7
          Amici curiae assert that the present financial condition of Fisk does not support application of the
cy pres doctrine.
        8
         See In re Application of Bd. of Trs. of the Huntington Free Library & Reading Room, 771 N.Y.S.2d
69, 71 (N.Y. App. Div. 2004) (approving the lower court’s finding of impracticability in light of donee’s
concession that it was not able to meet custodial responsibilities attendant to the gift).

                                                     -6-
In its Memorandum and Order of November 3, 2010, the trial court approved the Revised
Sharing Agreement. In so doing, the court concluded that connecting the Collection to Fisk
was a motivating factor in Ms. O’Keeffe’s decision to make the gift, that it was a “defining
characteristic of the Collection,” and that locating the exhibit at Fisk became a part of her
“full dispositional design.” The Attorney General contends that in reaching these
conclusions the trial court erroneously reopened the issue of Ms. O’Keeffe’s charitable
intent, thereby exceeding the scope of remand. We do not agree that the trial court exceeded
the scope of remand or that its holding in this regard was contrary to the law of the case.

       N.Y. Est. Powers & Trusts Law § 8-1.1 states in part pertinent to the issues in this
appeal:

       (c)(1) . . . whenever it appears to such court that circumstances have so
       changed since the execution of an instrument making a disposition for
       religious, charitable, educational or benevolent purposes as to render
       impracticable or impossible a literal compliance with the terms of such
       disposition, the court may, on application of the trustee or of the person having
       custody of the property subject to the disposition and on such notice as the
       court may direct, make an order or decree directing that such disposition be
       administered and applied in such manner as in the judgment of the court will
       most effectively accomplish its general purposes, free from any specific
       restriction, limitation or direction contained therein; provided, however, that
       any such order or decree is effective only with the consent of the creator of the
       disposition if he is living.

Divining a donor’s “full dispositional design” is appropriate in applying the statute, which
has been characterized as “New York’s statutory articulation of cy pres and equitable
deviation.” Bd. of Trs. of Museum of Am. Indian, Heye Found. v. Bd. of Trs. of the
Huntington Free Library and Reading Room, 610 N.Y.S.2d 488, 494 (N.Y. App. Div. 1994).
Evidence of the donor’s “full dispositional design” relates to the statutory responsibility of
the court to “make an order or decree directing that such disposition be administered and
applied in such manner as in the judgement of the court will most effectively accomplish its
general purpose. . . .” N.Y. Est. Powers & Trusts Law § 8-1.1(c)(1).

       In the earlier appeal, we did not reach the second step in the cy pres analysis, i.e.,
whether the proposed modification closely approximated the donor’s charitable intent. The
importance of discerning a donor’s “full dispositional design” in the second step of the
analysis was articulated as follows:




                                              -7-
       [W]hile a court in the exercise of the cy pres power may disregard specifically
       prescriptions, limitations or directions respecting the way in which the
       dispositional purposes are to be achieved [ ], it may do so only insofar as such
       variance facilitates or is at least compatible with the realization of the full
       dispositional design.

Heye Found., 610 N.Y.S.2d at 499 (emphasis added). The trial court’s analysis and finding
of Ms. O’Keeffe’s full dispositional design in the second step of the analysis was in
furtherance of the court’s responsibility to apply § 8-1.1(c)(1) and is not inconsistent with,
or violative of, the earlier holding that Ms. O’Keeffe had a general charitable intent. The
trial court did not deviate from the order of remand in making these additional findings.

                                   III. D ISPOSITIONAL D ESIGN

      Having determined that Georgia O’Keeffe’s full dispositional design was a proper
scope of inquiry for the court, we address the court’s findings in that regard.

        In making the gift to Fisk, Ms. O’Keeffe implemented two provisions of Mr.
Stieglitz’s will, one of which allowed Ms. O’Keeffe to transfer all of Mr. Stieglitz’s art
during her lifetime and the other requiring the recipient to hold the art “under such
arrangements as will assure to the public, under reasonable regulations, access thereto to
promote the study of art.” The gift to Fisk was accompanied by various conditions, including
a prohibition on sale of any of the objects in the Collection. Other conditions, set forth in
correspondence from Ms. O’Keeffe to Fisk’s President Charles Johnson, reflected Ms.
O’Keeffe’s condition that the Collection be kept intact and her concerns relating to
maintaining the particular works comprising the Collection. See Georgia O’Keeffe
Foundation (Museum), 312 S.W.3d at 6–7.

        As noted by the trial court, at the time of the gift, the South was segregated by race
and locating the Collection at Fisk was unique. Despite the de jure racial segregation
existing in the 1940s and 1950s, whites visited on the Fisk campus for various cultural and
intellectual pursuits. See Marybeth Gasman and Edward Epstein, Modern Art in the Old
South: The Role of the Arts in Fisk University’s Larger Curriculum, 31 E DUC. R ESEARCHER
13 (March 2002).9 The selection of Fisk was also unique in that, while five of the six


       9
              Clearly, Fisk University, through its gallery and programs was exposing
              students and faculty from all over the South to modern art and, thus, was
              one of the most significant cultural venues in the area. But more
              importantly, the gallery and the various other cultural institutions at Fisk,
                                                                                              (continued...)

                                                  -8-
recipients of the entire Stieglitz collection were museums, Fisk was the only university.
Consistent with the fact that Fisk did not have the resources generally available to a museum,
correspondence between Ms. O’Keeffe and President Johnson after the gift was completed
showed continuing efforts on the part of Ms. O’Keeffe’s to ensure that the Collection had
appropriate facilities and was being properly maintained. By locating the Collection at Fisk,
Ms. O’Keeffe was also able to fulfill Mr. Stieglitz’s second instruction by allowing the public
living in the South to view and study modern art, which was denominated “this new art.” Id.
at 13.10

       In making gifts of the entire Stieglitz artwork to various institutions, Ms. O’Keeffe
exercised a general charitable intent; she made the conscious decision that exposure to the
Collection in the South would be at Fisk. There is no doubt that placing the art at Fisk was
a strong social statement and integral to Ms. O’Keeffe’s general intent to expose Nashville
and the South to the art. The trial court’s finding that the art would not be in Nashville, or
the South, but for Fisk is fully supported by the evidence. We affirm the court’s holding that
a secondary consideration and motivating factor in Ms. O’Keeffe’s dispositional design was
the placement of the Collection at Fisk; the trial court properly considered this factor in its
cy pres determination.

  IV. T HE F INDING THAT THE A GREEMENT WITH THE C RYSTAL B RIDGES M USEUM M OST
                      C LOSELY R ESEMBLED M S. O’K EEFFE’S INTENT

       In the earlier appeal, we instructed the trial court that, “[i]f cy pres relief is available
to the University, then the trial court is to fashion a form of relief that most closely
approximates Ms. O’Keeffe’s charitable intent.” After determining that cy pres relief was
available, the trial court solicited proposals from the parties to aid the court in fashioning an
appropriate remedy. In the November 3, 2010 Memorandum and Order, the trial court
discussed the competing proposals and examined each in light of Ms. O’Keeffe’s full
dispositional design. The court found that Fisk’s revised proposal not only more closely
approximated Ms. O’Keeffe’s charitable intent, but that it also “greatly enhances Ms.



        9
            (...continued)
                    . . . became meeting points for Blacks and Whites within the then -
                    segregated South.

Gasman and Epstein, supra, at 17.
        10
          “[Ms. O’Keeffe] obviously felt it important to expose southern audiences to modern art and she
wanted to do so in an institution that would serve both Blacks and Whites.” Gasman and Epstein, supra, at
13.

                                                    -9-
O’Keeffe’s purpose that the public be given access to the Collection to promote the study of
art.”

       In reviewing the trial court’s decision, we are mindful that “the application of the cy
pres doctrine involves a great measure of judicial discretion.” In re Bd. of Trs. of Huntington
Free Library & Reading Room, 771 N.Y.S.2d 69, 71 (N.Y. App. Div. 2004) (citing Sherman
v. Richmond Hose Co. No. 2, 230 N.Y. 462, 473 (1921)). The trial court’s determination that
Fisk’s revised proposal was the form of cy pres relief that most closely approximates Ms.
O’Keeffe’s intent required the court to choose among several possible alternatives. Thus,
the decision to adopt Fisk’s proposal was a discretionary one which we will review under the
abuse of discretion standard. In utilizing this standard we review the evidence in the light
most favorable to the decision. Gonsewski v. Gonsewski, M2009-00894-SC-R11CV, 2011
WL 4116654 at *3 (Tenn. Sept. 16, 2011) (citing Wright, 337 S.W.3d at 176; Henderson,
318 S.W.3d at 335). We consider the proposals and the trial court’s reasoning for accepting
or rejecting them in turn.

        The Attorney General’s first proposal, submitted September 10, 2010, provided that
the Frist Center would take custody of the Collection and display the art in gallery space
devoted solely to the Collection until Fisk was financially able to resume its role as caretaker
of the art. By Order entered September 14, the court rejected this proposal, holding, inter
alia, that it did not provide a long-term solution to keep the Collection in Nashville full-time
as the proposal was “merely hypothetical at this point.”

       The second proposal of the Attorney General involved an endowment to be funded
by donations from individuals, organizations, and corporations which would produce income
sufficient to pay Fisk’s annual costs of displaying and maintaining the Collection and which
would be administered by The Community Foundation. Donations to the fund were
contingent “upon a final, non-appealable order being entered in this matter approving the use
of the Pearl Creswell Fund to pay for the full-time display and care of the Collection in the
Van Vechten Gallery at Fisk and denying Fisk’s petition for cy pres relief.” The court
declined to adopt this proposal stating:

       [A]dopting either of the proposals of the Attorney General would
       unnecessarily frustrate the unique dispositional design of Ms. O’Keeffe’s
       charitable gift. The Attorney General’s proposals only take into account half
       of the problem in this case. The deficiency with the proposals of the Attorney
       General is that they provide no money for Fisk, the institution. Both of the
       Attorney General’s proposals fail to account for Ms. O’Keeffe’s design that
       locating the Stieglitz Collection at Fisk University was important in her
       decision to bring the collection to Nashville.

                                              -10-
        Next, the trial court examined the Revised Sharing Agreement and determined that
it most closely approximated Ms. O’Keeffe’s charitable intent. The court identified two key
elements that informed its decision to accept Fisk’s proposal: “(1) the superior resources of
the Crystal Bridges Museum to provide this important Collection excellent support and
access to the public, and (2) Fisk and Crystal Bridges have modified their agreements to
assure that the Collection retains a presence in Nashville.” Moreover, the court found the
proposal enhanced Ms. O’Keeffe’s purpose of sharing the Collection with Nashville and the
South.

       The Attorney General contends that the trial court rejected both of the Attorney
General’s proposals because neither provided money to Fisk and argues that the Revised
Sharing Agreement fails to most closely approximate Ms. O’Keeffe’s charitable intent
because, inter alia, it allows for the sale of an interest in the Collection, contrary to the no-
sale condition.

        As an initial matter, the Attorney General’s proposals were not rejected on the sole
basis that they did not provide money for Fisk. In determining which proposal most closely
approximated Ms. O’Keeffe’s dispositional design, the court considered a number of factors,
including the extent to which the proposal benefitted Fisk financially. The language in the
November 3 Memorandum cited by the Attorney General, wherein the court stated that the
Attorney General’s proposals were deficient “because they provide no money for Fisk,” was
in the context of the court’s holding that those proposals did not adhere to Ms. O’Keeffe’s
full dispositional design. While the question of whether Ms. O’Keeffe intended to
financially benefit Fisk was germane in determining whether either proposal accomplished
the general purpose of the gift, see N.Y. Est. Powers & Trusts Law § 8-1.1(c)(1), a finding
that Ms. O’Keeffe had a specific intent to financially benefit Fisk was not a prerequisite for
approval or cause for rejection of any proposal and we do not construe the trial court’s
language in the manner suggested.11


       11
            As noted in our earlier opinion:

       We acknowledge the fact that Ms. O’Keeffe had a specific purpose in mind and that she
       imposed specific conditions on the gifts, but a specific purpose and the imposition of
       specific conditions does not mean that the gifts were motivated by a specific intent, as that
       term is applied in a cy pres analysis. See, e.g., In re Estate of Othmer, 815 N.Y.S.2d at 447.
       Thus, the fact that Ms. O’Keeffe had a specific purpose and imposed specific conditions
       does not alter the fact that the motivation for the gifts to the University was to promote the
       study of art in Nashville and the South.

Georgia O’Keeffe Foundation (Museum), 312 S.W.3d at 18.


                                                   -11-
      The purpose of the arrangement between Fisk and Crystal Bridges Museum, stated in
the Amended and Restated Joint Ownership Agreement, is as follows:

       The purpose and overarching principle of this Agreement is to advance the
       educational purpose of the Collection and in service of that purpose (a) to
       provide access to the Collection for study and public appreciation; (b) to
       preserve, protect and promote the integrity and well-being of the Collection;
       (c) to advance the importance, study and understanding of the Collection; (d)
       to safeguard and expand the artistic legacy of the artists whose works are
       included in the Collection; (e) to generally serve the best interests of the
       Collection and (f) to enable the public in Nashville and the South to have an
       opportunity to study the Collection in order to promote the general study of art.

       To address Ms. O’Keeffe’s condition that the Collection be displayed intact, the
Revised Sharing Agreement provides that the Collection will be displayed at the institutions
on a rotating basis so that it will be available on the Fisk campus during at least two years of
each student’s four year matriculation at Fisk. With respect to the maintenance and display
conditions, the agreement establishes a “Collection Committee”12 and charges that
committee, when determining what is in the best interest of the Collection, to “take into
account the conditions originally set out by Georgia O’Keeffe . . . .” In accordance with the
original conditions, no item of work included in the Collection may be sold or exchanged,
no item of work may be added to the Collection, and the Collection will be known, in
perpetuity, as the “Alfred Stieglitz Collection.” Not only will the artwork be displayed in
accordance with Ms. O’Keeffe’s original conditions, it will be displayed in accordance with
the “best art museum industry practices . . . and with general adherence to the American
Association of Museums (the “AAM”) guidelines . . . .” In addition, the Court’s November




       12
            The Collection Committee will be composed of the following five members:

                 (i) the person who is serving as chief curator of Crystal Bridges;
                 (ii) the person who is serving as chief curator (or museum director) of the
                 Fisk University Galleries;
                 (iii) a conservator versed in the diverse media of the Collection, proposed
                 by Crystal Bridges after consulting with Fisk, and approved by Fisk and
                 Crystal Bridges;
                 (iv) a noted scholar on American Modernism, proposed by Crystal Bridges
                 after consulting with Fisk, and approved by Fisk and Crystal Bridges; and
                 (v) a person with significant experience in the art museum industry,
                 proposed by Crystal Bridges after consulting with Fisk, and approved by
                 Fisk and Crystal Bridges.

                                                    -12-
3 order makes any further sale, exchange or transfer by either Fisk or the Bridges Museum
subject to court approval.

        The Revised Sharing Agreement is comprehensive and detailed; the arrangement with
the Bridges Museum gives Fisk access to the resources of a museum to support its
responsibilities relative to the Collection as well as its educational mission to expose students
and the South to the Collection. While each proposal reflected, in some measure, Ms.
O’Keeffe’s charitable intent, the holding that the Revised Sharing Agreement most closely
approximated her intent is supported by the evidence. The court did not err in its application
of the appropriate legal principles, and did not abuse its discretion in modifying the no-sale
condition and approving the Revised Sharing Agreement.

               V. T HE IMPOSITION OF C ONDITIONS ON F ISK’S U SE OF F UNDS

        In the November 3, 2010 Memorandum and Order, the court held that the
modifications to the Revised Sharing Agreements satisfied objections the court had put forth
in the August 20 and September 14 orders and stated that the court was “ready to modify the
no-sale condition of the gift and approve the Revised Sharing Agreements.” Finding that
none of the proceeds of sale were designated by Fisk for the Collection and that Fisk did not
state specific plans for the distribution of the $30 million proceeds of sale, the trial court
required Fisk to establish an endowment of $20 million from the proceeds as a condition of
its approval of the Revised Sharing Agreements. The court ordered Fisk to use the income
from the fund, which the court estimated to be $1 million annually, “to pay [its] obligations
under the . . . Revised Sharing Agreements; to maintain the Van Vechten Gallery and its
attendant needs such as security, staff, parking, etc.; and to fulfill its mission of providing the
Nashville public access to the Collection and promoting the study of art.” The court allowed
Fisk to use the remainder of the funds generated under the Revised Sharing Agreement in its
discretion.

       Fisk contends that the court abused its discretion when it conditioned its approval of
the agreements on the requirement that Fisk establish the $20 million endowment. Fisk also
asserts that the court abused its discretion when, based on the court’s conclusion that $10
million would solve Fisk’s financial problems and the court’s concern regarding
“monetization” of the Collection, the court limited the amount of the sale proceeds that Fisk
would have to use at its discretion to $10 million.

       A. Creation of the Endowment

        In construing and applying N.Y. Est. Powers & Trusts Law § 8-1.1(c)(1), the trial
court is vested with “a great measure of judicial discretion.” In re Huntington, 771 N.Y.S.2d

                                               -13-
at 71. The statute is to be construed and applied “to prevent the failure of a charitable
disposition while there remains a general purpose of disposition possible of
accomplishment.” Id. at 75. The court’s discretion is to be exercised to reach a disposition
that “will most effectively accomplish [the gift’s] general purposes.” N.Y. Est. Powers &
Trusts Law § 8-1.1(c)(1). We apply the abuse of discretion standard in our review. Lee
Med., 312 S.W.3d at 515.13

          With regard to the requirement that Fisk establish an endowment for the art, the court
stated:

          The reason the Court has included as part of its plan a requirement that Fisk
          use $20 million of the sale proceeds for an endowment is to secure the
          Collection, independent of Fisk, and to assure that the Collection stays in
          Nashville the full 50% of the time retained under the Crystal Bridges Revised
          Sharing Agreements. This aspect of the order is in keeping with the O’Keeffe
          intent of providing Nashvillians access to the Collection.

Although the court did not make specific findings of fact with reference to the endowment
requirement, the court stated:

          During the August 2010 trial, Exhibit 207 was introduced into evidence. It
          established that the cost of Fisk using the “Best Practices” with respect to the
          Collection would require about $1.3 million a year. The income from the
          endowment, then, will be adequate for Fisk to fulfill its obligations to the
          Collection.14

       Exhibit 207 is a chart created by Fisk in response to an interrogatory requesting that
Fisk “identify . . . what Fisk would need (i.e., money, including how much is necessary;
altered display schedule; altered art maintenance requirement; etc) to address each of the


          13
           We review the trial court’s exercise of discretion to determine: (1) whether the factual basis is
properly supported by the evidence in the record; (2) whether the trial court properly identified and applied
the most appropriate legal principles applicable to the decision; and (3) whether the decision was within the
range of acceptable alternative decisions. Lee Med., 312 S.W.3d at 515 (citing Flautt & Mann v. Council
of Memphis, 285 S.W.3d 856, 872–73 (Tenn. Ct. App. 2008)).
          14
           Similarly, in the November 9, 2010 Memorandum and Order the court explained that “[r]equiring
Fisk to use the $1 million or less annual endowment income in accordance with trial exhibit 207 will enable
Fisk to meaningfully share the Collection with its students, Nashville and the South as intended by Ms.
O’Keeffe.”


                                                    -14-
respective reasons compliance is impracticable or impossible listed in Interrogatory __.” The
chart contains columns identified on the exhibit as “Best Practices Costs” and “Fisk Actual
Expenses” in which specific annual expenses of operating the gallery were itemized. The
costs listed in the “Best Practices Costs” column totaled over $5 million; counsel stipulated
that recurring costs in this column were $1,380,054. The total in the “Fisk Actual Expenses”
column is $131,160.15

       In testimony regarding Exhibit 207, and how it was compiled, President O’Leary
referred to the “Best Practices Costs” column as “the wish list” and stated:

                Q. Does this represent the galleries’ staff answer to the interrogatory
        the attorney general posed? Does this represent the galleries’ staff thoughts on
        the amount of money required to comply with the conditions?
                A. I do not believe so. I believe it is just as I have represented it, an
        effort on the part of the staff to list a list of things that they would like to have
        provided for in the gallery.

She also testified that “there’s no budget approved nor any contemplation” relative to the
“Best Practices Costs” and that the “Fisk Actual Expenses” column is “what Fisk actually
does.”

        The exhibit and the testimony relative to it do not support a finding that $1 million per
year is required for Fisk to maintain and display the art in accordance with Ms. O’Keeffe’s
conditions. Exhibit 207 identifies costs that clearly go beyond compliance with the
conditions of the gift; indeed, the trial court found that Exhibit 207 is a “wish list” which
would “provide support and promotion of the Collection in the nature of education and




       15
          A summary of Exhibit 207, showing the cost items and their amount is appended to this opinion.
Other items on Exhibit 207, not shown on the appended summary, relate to display timelines and
maintenance schedules and have no monetary figure.

                                                 -15-
outreach beyond the minimum $131,000 required as basic maintenance for the Collection.” 16

        Counsel did not identify in their stipulation the items which constituted recurring
costs, thereby making a determination of what costs were actually necessary to comply with
Ms. O’Keeffe’s conditions difficult.17 There was no explanation of the difference between
the $131,000 President O’Leary testified as being the annual cost to maintain and display the
collection, which served as the basis of the court’s finding of impracticability, and the $1.3
million stipulated as recurring “Best Practices Costs.” Moreover, the exhibit reflects costs
in both the “Best Practices Costs” and “Fisk Actual Expenses” columns which were
determined without consideration of the effect of the approval of the Revised Sharing
Agreement—with the attendant responsibilities assumed by the Bridges Museum and the
Collection Committee—on the costs necessary to comply with Ms. O’Keeffe’s conditions.
In addition, it does not appear that the court considered the effect of Ms. Alice Walton’s
pledge to Fisk of $1 million, the proceeds of which are to be devoted to develop and
implement a plan to update and renovate the Van Vechten Gallery and to establish an
endowment fund for the maintenance of the gallery, on the cost of Fisk’s continuing
obligations.

        The larger question is whether and to what extent the court could sua sponte mandate
that Fisk establish an endowment as part of the court’s approval of the application for cy pres
relief. This is a unique issue and precedent is scarce. Creation of an endowment for the
Collection was not a condition of Ms. O’Keeffe’s or of Fisk’s acceptance of the gift and
there is nothing in the correspondence between Ms. O’Keeffe and the various Fisk officials
to indicate that an endowment was ever contemplated. In addition, although exposure to the
art for Fisk students, Nashville, and the South was a purpose of the gift, there were no
conditions specifically addressing how the Collection would be utilized in conjunction with


        16
             The November 9 Memorandum notes:

                What Fisk’s curator would like to do with the Collection, if Fisk had the funds, was
        established through trial exhibit 207 and the testimony of President O’Leary. The Court
        finds that exhibit 207 is a “wish list” prepared by Fisk. Trial exhibit 207 is a plan to add
        student guides (“docents”) and staffing for the guides; a curator of education for Fisk
        students, visitors to Fisk and outreach to educate Nashville and the region about the
        Collection; grant writers; membership services; graphic and exhibition designers; student
        guide education training for ten guides biannually as a summer program; resources such as
        computers and printers; and dedicated fundraising opportunities.
        17
           For instance, while the utilities and gallery maintenance entry in the “Best Practices Costs”
column is $200,000 per year, President O’Leary testified that these cost items are “maintained and [are] part
of Fisk’s maintenance budget,” and it is not clear what the costs of maintenance and display will be to Fisk
during the years that the Collection is on display at the Bridges Museum.

                                                    -16-
the educational program of the University. N.Y. Est. Powers & Trusts Law § 8-1.1(c)(1)
only grants the court the authority to modify the terms of a gift in order to prevent the gift
from failing and to accomplish its general purpose. Heye Found., 610 N.Y.S.2d at 499.18
The court’s primary role is to approve or disapprove a particular proposal or determine an
alternative to the testator’s or grantor’s disposition. Any deviation from the original
dispositional plan must be pursuant to a plan that is “sufficiently detailed to provide the
necessary assurance that the original dispositional design will be, to the extent practicable,
effectively carried forward.” Id.; see In re Estate of Wilson, 451 N.Y.S.2d 891, 894 (1982)
(“Both statutory mandate and controlling case law require that any modification of the terms
of the trust must result in provisions which most closely approximate the expressed intent of
the testator.”).

        The court explained its rationale for requiring the endowment as follows:

        The concept of the endowment is twofold. As to income generated from the
        investment and the endowment, it assures that Fisk can always fulfill its
        obligations under the Crystal Bridges Revised Sharing Agreements and to the
        Collection. That in turn assures that the Collection stays in Nashville 50% of
        the time. As to preserving the corpus of the $20 million in the form of
        endowment, the purpose is to make sure the 50% “Nashville” interest, retained
        under the Revised Sharing Agreements, is financially secure, independent of
        Fisk’s financial fortunes.

In the November 9 memorandum the court elaborated on its reasoning for requiring the
endowment and restricting the use of funds generated from the endowment and identified
three reasons: to fund the expenses outlined in Exhibit 207; to ensure that Fisk did not breach
or default on its monetary obligations under the Revised Sharing Agreement; and to “further
separate[] the Collection and the endowment from Fisk, the institution, if Fisk is placed into
bankruptcy.”

        Although it was appropriate for the court to consider the extent to which Ms.
O’Keeffe’s dispositional design would be carried forward in the future, the court exceeded
its statutory authority to free the gift “from [a] specific restriction, limitation or direction”
when it decreed how the proceeds of sale would be spent and the manner in which the funds
would be accounted. The practical effect of the court’s ruling was to require Fisk to
implement the elements of the Exhibit 207 “wish list” and to interfere with Fisk’s operational


        18
           “Consideration of the relative efficacy of alternative dispositional plans is appropriate only after
the threshold finding or impracticability or impossibility has been made and only then within the limitations
prescribed by the statute.” Id. at 499.

                                                     -17-
lines of authority and prerogatives as an institution of higher education to design and manage
its educational program, deploy its assets, and utilize its employees. After the no-sale
condition was lifted, the remaining conditions related to maintenance and display of the art;
while the expenditures in Exhibit 207 may be desirable, they were not necessary to comply
with the conditions of the gift. The court has no authority under the statute and the facts of
this case to effectively decree the manner by which the Collection would be used by Fisk in
furtherance of its educational mission.

       Similarly, there is no authority for the court to require that the “50% ‘Nashville’
interest, retained under the Revised Sharing Agreements” be “financially secure, independent
of Fisk’s financial fortunes.” We do not agree with the court’s statement that the possibility
of Fisk being placed into bankruptcy by a creditor “had to be considered by the court in
formulating a plan for the Collection.” Unlike the broad powers available to a court of
chancery in exercising traditional equitable jurisdiction, the court’s authority in decreeing cy
pres relief is restricted. The only consideration before the court was whether additional
modifications to the conditions imposed on the gift were necessary to accomplish its
purposes; that authority does not extend to decreeing that the Collection must be treated
separately from other university assets.

        Accordingly, we reverse the requirement that Fisk establish a $20 million endowment
for the Collection and remand the case for reconsideration of whether, in light of the
approval of the Revised Sharing Agreement, further measures are necessary to accomplish
the purposes of the gift. As part of the reconsideration, the court and the parties should
consider the effect of the court’s approval of the Revised Sharing Agreement as well as the
results to be achieved by the implementation of the renovation plan and endowment
contemplated by the Alice Walton pledge of $1 million on the continuing obligations of Fisk
to comply with the conditions imposed by Ms. O’Keeffe, and to allow Fisk the opportunity
to set forth how those obligations will be met in the future.19 In holding that, under the facts
of this case, the court’s authority does not extend to requiring an endowment, we do not
preclude the court from approving an endowment or other dedicated source of support in the
event such a proposal is presented .

        B. Order Relative to the Proceeds of Sale

       With respect to the court’s holding that Fisk could have access to only $10 million of
the sale proceeds, the court explained:


        19
             In its discussion, the court noted that Fisk “states no specific plans for the distribution of the $30
million.”


                                                       -18-
       The Court’s order provides that $10 million of the sale proceeds shall be paid
       to Fisk for it to spend at its discretion. This provision of the order derives
       from the proof Fisk provided during the August 20 trial on its financial
       condition. . . . that financial condition includes that Fisk has zero dollars in
       unrestricted endowment, all of its buildings are mortgaged, its bills total $2
       million, it runs a $2 million deficit annually, and its endowment totals only
       $3.7 million. The $10 million will enable Fisk to address its immediate debt
       and, with that clearance, plan how the University shall secure its future.

       In light of our reversal of the court’s requirement that Fisk establish an endowment
with $20 million of the sale proceeds and remand for further consideration, we reverse the
court’s order that limits the availability of funds to Fisk to $10 million.

                                        C ONCLUSION

       For the foregoing reasons, we affirm the trial court’s approval of the Revised Sharing
Agreement. We reverse the order requiring Fisk to establish an endowment of $20 million
from the proceeds of sale and limiting the funds available to Fisk from the proceeds to $10
million. The case is remanded for further proceedings in accordance with this opinion.




                                           ___________________________________
                                           RICHARD H. DINKINS, JUDGE




                                             -19-
Items                                               Best Practices   Fisk Actual
                                                    Costs            Expenses
Stieglitz Collection

Prohibits proper conservation of objects.                            0.00
Should be shown on rotation schedule

Conservation: (budget to cover possible issues      $20,000.00/yr    TBD
with works in various media: paper, paintings,
photographs, sculpture, etc.) Conservation
specialist needed for works in various media for
Stieglitz Collection
Paper Conservator
Painting Conservator
Photographs Conservator
African Artifacts Conservator

Additional Storage space for objects – works on     $10,000.00       0.00
paper, paintings, when not being exhibited

Acid Free-Archival Storage Boxes for works on       $5,000.00        0.00
paper

HVAC & Fire Prevention Systems                      See Below

Other Costs

Salaries (Includes 28% fringes)                     N/A              N/A

Director of Museum                                  $108,800         $85,000

Administrative Assistant to the Director            $44,800          $35,840

Curator of American & European Art                  $83,200          0.00

Associate Curator of African/Tribal Art             $64,000          0.00

Associate Curator of Decorative Arts                $64,000          0.00

Associate Curator Prints, Drawings &                $44,800          0.00
Photographs

Curator of Education                                $64,000          0.00

Associate Curator of Education                      $58,411          0.00


                                              -1-
Items                                                Best Practices   Fisk Actual
                                                     Costs            Expenses
Docent Co-ordinator                                  $32,000          0.00

Collection Registrar                                 $57,600          0.00

Collection Preparator                                $44,800          0.00

Associate Preparator                                 $34,560          0.00

Art Handlers                                         $34,560          0.00

Security Personnel                                   $26,600          0.00

Conservator/Conservation Consultant                  $64,000          0.00

Administrative Assistant                             $32,000          0.00

Graphic/Exhibitions Designer                         $51,200          0.00

Grant Writer                                         $51,200          0.00

Editor / Publicist                                   $64,000          0.00

Membership Services Manager                          $60,160          0.00

Facility Needs (100/sq. ft. @ $290/ sq. ft.)         $290,000.00      0.00

Staff Office Space (14 Offices,                      $830,000.00      xxx
average size 22’ x 27’)

Art Conservation Lab (2 Rooms, 30’ x 45’)            $130,000.00      0.00

Classroom spaces (2 Spaces, 30’ x 30’)               $90,000.00

Art Storage (Expanding Rack storage shelves          $260,000.00      0.00
for 3D objects) (40’ x 65’)

Exhibition prep work space (45’ x 65’)               $295,500.00      xxx

Personal Computers (20 @ $2500 ea.)                  $50,000.00       $7,500.00

Photocopy machines (2)                               $4000.00         0.00

Office Supplies (paper, stationery, print inks,
etc.)
Publication quality laser printers (2) @ $800 ea.    $1600.00         0.00

Office Furniture (desk, chairs, etc.)                $40,000.00       xxx

                                               -2-
Items                                                  Best Practices      Fisk Actual
                                                       Costs               Expenses
Personal laser printers (5) @ $180 ea.                 $900.00             0.00

Record Storage (file cabinets) 25 (2-drawer) @         $2,500.00           $300.00
$100 ea.

Record Storage (file cabinets) 15 (4-drawer) @         $9,000.00           $2400.00
$600 ea.

Utility service carts 6 @ $120 ea.                     $720.00             $120.00

Art Installation & Conservation Materials

Lab Equipment (Conservation lab, sinks, easels,        $25,000.00          0.00
luminaries, UV lanterns, spotting tables, suction
tables, washing equipment, etc.)

Art transport vehicle (delivery van, small             $30,000.00          0.00
moving truck with covered storage)

Research library (35’ x 40’)                           $140,000.00         0.00

Exhibition galleries (5 - average size: 110’ x         $1,430,000.00
130’)

Stieglitz Collection Catalogue (Color                  $30,000.00          0.00
Reproductions, Complete Collection)

Docent Education / Training Course (Course             $10,000.00 / yr.
held bi-annually during Summer semester (10
docents)

Exhibition Signage                                     $850.00             0.00
1 Didactic signage (32” x 40” silk screened
board)
8 Medium Artists bio labels (17”H x 11”W)
101 Wall labels (3” H x 5” W)

Utilities                                              $65,362.77 / yr.

Gallery Maintenance                                    $200,000.00 / yr.   TBD
  Lighting
  Painting
  Floors
  HAV (Heating, Air and Ventilation)

                                                 -3-
Structural (Roof Facades, Windows, etc.)
Plumbing
Electrical
Grounds




                                           -4-
