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Hall v. Gascard

United States District Court, D. New Hampshire

July 27, 2018

Andrew Hall, Plaintiff
Lorettann Gascard and Nikolas Gascard, Defendants

          Lawrence B. Gormley, Esq.

          Ted Poretz, Esq.

          Jeffrey Christensen, Esq.

          William B. Pribis, Esq.


          Steven J. McAuliffe United States District Judge

         Plaintiff, Andrew Hall, is a collector of post-war and contemporary art. Over a two-year period beginning in 2009, he purchased twenty-four works of art from the defendants, Lorettann Gascard and her son, Nikolas Gascard. Hall says he purchased some of those pieces directly from the Gascards, while others were acquired indirectly through auction houses to which the Gascards had consigned the works. And, says Hall, the Gascards affirmatively represented that each of the twenty-four works he purchased was an original piece produced by the American artist Leon Golub. In early 2015, however, Hall discovered that all of those twenty-four works are forgeries.

         In this action, Hall advances six common law and statutory claims against the Gascards: fraud (count one); conspiracy to defraud (count two); breach of warranty (count three); breach of contract (count four); unjust enrichment (count five); and unfair and deceptive trade practices, in violation of New Hampshire's Consumer Protection Act (count six). The Gascards move for summary judgment, asserting that they are entitled to judgment as a matter of law as to each of Hall's claims.

         For the reasons discussed, the Gascards' motion for summary judgment is granted as to Hall's UCC warranty claims. Additionally, because Hall concedes that his Consumer Protection Act claim and his common law breach of contract claim fail to state viable causes of action, those claims are dismissed.[1]

         Standard of Review

         When ruling on a motion for summary judgment, the court is “obliged to review the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” Block Island Fishing, Inc. v. Rogers, 844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In this context, a factual dispute “is ‘genuine' if the evidence of record permits a rational factfinder to resolve it in favor of either party, and ‘material' if its existence or nonexistence has the potential to change the outcome of the suit.” Rando v. Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).

         Consequently, “[a]s to issues on which the party opposing summary judgment would bear the burden of proof at trial, that party may not simply rely on the absence of evidence but, rather, must point to definite and competent evidence showing the existence of a genuine issue of material fact.” Perez v. Lorraine Enters., 769 F.3d 23, 29-30 (1st Cir. 2014). In other words, “a laundry list of possibilities and hypotheticals” and “[s]peculation about mere possibilities, without more, is not enough to stave off summary judgment.” Tobin v. Fed. Express Corp., 775 F.3d 448, 451-52 (1st Cir. 2014). See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


         The factual background to this dispute is set forth in the court's prior order (document no. 19) and need not be recounted in detail. It is sufficient to note that Hall purchased numerous paintings from Nikolas Gascard and his mother, Lorettann Gascard, each of which was a purported original work of the American painter Leon Golub. The Gascards made various statements explicitly attesting to the authenticity of each work and/or made historical statements about the works' provenance that strongly implied they were authentic, original works of Golub (e.g., “Acquired directly from the artist” or “Acquired directly from the artist by descent to the present owner”). They were not original works. Instead, they were all high-quality forgeries - sufficient to fool even sophisticated art houses (e.g., Sotheby's and Christie's), as well as the (alleged) artist's own son, Stephen Golub. See Email from Stephen Golub dated Nov. 4, 2010 (document no. 46-17) at 2. Moreover, Hall asserts that both Lorettann Gascard and Nikolas Gascard knew that each piece was a forgery when they sold it to him. In support of that claim, Hall notes, for example, that Nikolas Gascard admits that he fabricated the names for each work that was sold to Hall. Nikolas also admits that he invented the date on which Golub allegedly painted each of the works. See generally Deposition of Nikolas Gascard (document no. 46-5) at 124-29. Hall also points to other evidence demonstrating that Nikolas Gascard misled various auction houses and potential purchasers about how he and/or his mother came into possession of various works. See, e.g., Id. at 93-98, 177-80.

         In total, Hall purchased twenty-four paintings from the Gascards (either directly or through an intermediary, such as an auction house), for a total purchase price well in excess of $600, 000. Hall has settled claims against both Sotheby's and Christie's. What remain, then, are his claims against the Gascards arising out of his purchase of sixteen forged paintings directly from them, and one purchased from Artnet (on consignment from the Gascards), for a total purchase price of approximately $468, 000.


         In support of their motion for summary judgment, the Gascards advance several arguments. First, they say Hall's claims are untimely and barred by the statute of limitations. Second, they assert that Hall has not sufficiently demonstrated that he justifiably relied upon the Gascards' allegedly false statements regarding the various works' provenance (indeed, the Gascards claim that Hall had an independent duty to verify the authenticity of each work and his reliance upon their various representations of authenticity and/or provenance was neither reasonable nor justifiable). Finally, they say that there is no evidence of any intent to defraud on their part. In short, the Gascards seem to be suggesting that they are as shocked as anyone that all the works they sold to Hall (as well as various other purchasers) over the years, for hundreds of thousands of dollars, are forgeries.[2]

         I. Statute of Limitations.

         Hall asserts that it was not until 2015 that he first had reason to suspect that at least some of the paintings he purchased from the Gascards are forgeries. Prior to that, he says he had no reason to doubt their authenticity. For example, he points out that he hosted an event at his home in late 2010, at which he displayed some of the fake works he had acquired from the Gascards. Attending that event were a No. of Golub “aficionados, ” including Golub's son, Stephen, and Golub's former studio manager, Samm Kunce. Neither man raised any question about the potential authenticity of those works. See Exhibit O to plaintiff's memorandum (document no. 46-17) at 2-3.

         In November of 2014, the Hall Art Foundation - a non-profit organization operated by Hall - began planning an exhibition of the works of Golub that Hall had acquired over the years. As part of that preparation, the foundation's executive director sent images of all the works proposed for exhibition to the Nancy Spero and Leon A. Golub Foundation for the Arts. He asked the Golub Foundation to verify the names and dates of all the subject works. In February of 2015, the Golub Foundation responded that although it had records relating to most of those works, it had nothing relating to the pieces that Hall had purchased from the Gascards. See Exhibit R to plaintiff's memorandum (document no. 46-20) (“Unfortunately, the Foundation does not recognize the remainder of the works on your list”). That, ...

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