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An investor who deals in a wide range of collectibles and art objects, from Japanese swords to paintings to ancient pottery, Miller had paid attention to the Sue debacle. He saw it as a cautionary tale: Yes, there was money that could be made with the right T. rex, but you had to be damned sure you had the question of ownership straightened out first.
Miller had never dealt in big-ticket fossils; it was an entirely different market from the art world he knew. Early last year, though, another Denver dealer came to him with an intriguing proposition. The man told him he was working as an agent for Mark Newman, a New York fossil dealer who had a T. rex for sale.
According to the agent, the T. rex had been recently excavated from a ranch in Wyoming by a respected fossil hunter named Japheth Boyce, who was now preparing the bones for display in his shop in South Dakota. Boyce and Newman were planning to sell the bones at the Tucson Gem and Mineral Show, the largest annual gathering of fossil people, in February 2000. Miller could purchase them first, the agent suggested, for $400,000, plus a finder's fee for the agent.
The offer was tempting for several reasons. First, the specimen in question was said to have 25 percent of its skeleton; only seven or eight T. rexes, including Sue and Z-rex, could boast a greater percentage of bones. Second, the price included the cost of preparing the fossil for display, as well as a full-sized resin cast of an adult T. rex skeleton from the Black Hills Institute (such casts cost upwards of $100,000). Plus, the bulk of the money would not be due until the restoration was completed; consequently, Miller's investment would not be tied up for long before he could recoup it by taking the fossil to auction.
Miller decided to put up $10,000 in earnest money. On March 15, 2000, he paid Newman an additional $40,000 in down payment, with the rest of the sale price due upon completion of the preparation work and production of records detailing the history of the fossil's ownership. By that point, Miller had formed a limited partnership, Ty Rex LLC, which consisted of several investors, to fund the purchase.
Michael Grano, a Denver computer specialist and former art dealer who became one of Miller's investors, says the sales contract was structured so that Newman was required to provide a detailed provenance for the fossil. "My concern from day one was title and whether we could sell this thing," he says. "I had been following the Sue story very carefully, and my initial questions were, 'Is it from private land? Do you have good title?' And we were assured that the title was dead-solid perfect."
For weeks after the deal was signed, Miller made phone calls to Newman demanding the ownership records he'd agreed to provide. When no documents came, Miller and his attorney started firing off letters. The initial response was a skimpy letter from Boyce, which stated that Boyce had bought the bones from the landowner, a Wyoming rancher named Robert Stoddard, and sold them to Newman. When Miller pressed for more details, he was informed that Boyce had bought the bones from a "gentleman collector," who'd acquired them from Stoddard.
When did this take place? Who was the "gentleman collector"? Boyce didn't say.
The wrangling went on for months. Much to the dismay of the Denver investors, Boyce still refused to disclose the name of the collector who'd once had an ownership interest in the dinosaur. Eventually, the impasse would prompt Ty Rex to file suit against Newman and Boyce, claiming the pair had misrepresented their find and that Newman had breached his contract by failing to produce records. (Last month, Newman and Boyce filed counterclaims against Miller and Ty Rex, alleging that the group has pursued "frivolous and spurious claims" in an effort to avoid paying the $350,000 balance owed for the purchase.) The immediate effect of the lack of documents, however, was to cloud Ty Rex's hopes of a quick auction of the fossil.
Within days of signing the deal with Newman, Miller and his group had contacted at least three major auction houses -- Christie's, Sotheby's and Butterfield's -- about their T. rex. Butterfield's, the only house that regularly features natural-history items, expressed an interest in marketing Barnum.
"My whole strategy was to get an agreement with Butterfield's," Grano says, "and send it off to auction for anything over half a million. They were very excited; everything sounded great to them. Then it all got screwed up."
How it all got screwed up isn't entirely clear, because Newman, Miller and Butterfield's Herskowitz tell different stories. Newman says he told Miller before the sale that Boyce didn't want the fossil to be sold at auction. Miller denies that there was ever any formal understanding on that point.
"Our idea was to buy it and try to sell it to make some money," Miller says now. "They knew that from the get-go. There was some resistance, particularly from Boyce, to the idea of us auctioning the thing, but there was never a hard and fast stipulation not to do so. Newman at one point told me that he didn't care what we did with the damn thing, just don't tell Boyce. The implication was that Boyce didn't want his former partner, or whoever he got the specimen from, to know what he had sold it for."