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Hall v. Gascard

United States District Court, D. New Hampshire

April 22, 2019

Andrew Hall
v.
Lorettann Gascard and Nikolas Gascard

          Lawrence B. Gormley, Esq.

          Ted Poretz, Esq.

          Jeffrey Christensen, Esq.

          William B. Pribis, Esq.

          ORDER

          Steven J. McAuliffe United States District Judge.

         Plaintiff prevailed in this civil art fraud case, and he now seeks an award of reasonable attorney's fees necessarily incurred in vindicating his rights. Defendants object.

         The plaintiff, Andrew Hall, bought a No. of paintings directly from defendant Nikolas Gascard, and a few paintings from others that Nikolas put into the art market. Hall thought the paintings he bought were works by the late artist Leon Golub. He thought so primarily because Nikolas unequivocally represented that the works he sold to Hall were by Golub and, based on Nikolas's representations, the other sellers also represented that the works they sold were by Golub. The trial evidence, however, was quite persuasive: the paintings purchased by Hall were crude fakes. Leon Golub did not create them.

         There was also some credible evidence pointing to defendant Lorettann Gascard as the suspect most likely to have created the fakes. Lorettann was an art history professor and artist, who studied under Golub decades ago, and who claimed a long-standing friendship with Golub before he died. But Hall's counsel did not (understandably) press the question of who created the works, focusing instead on their inauthenticity and the Gascards' knowing and intentional involvement in selling them.

         The defense was anemic, resting almost entirely on defendants' testimony and cross-examination of Hall's art expert. The Gascards recounted Lorettann's intermittent personal relationship with the artist and her interest in his work; suggested that her former husband (Nikolas's father) had an interest in Golub's work as well, and that perhaps he had obtained the suspect paintings from the artist or from others; suggested that perhaps his sister, Nikolas's aunt, also collected art to some extent and perhaps acquired some of the Golub paintings from her brother, or from others. The aunt died in Europe and, the Gascards claimed, she left the suspect paintings at issue, and other ostensible Golubs (a total of 40 or 50 works), in her apartment closet, where the Gascards found them when they went to settle her affairs. The aunt left her estate to Nikolas. Nikolas's father (then deceased) had also left his estate to Nikolas. The “Golub works, ” then, whether belonging to the aunt or Nikolas's father, were said to be part of Nikolas's inheritance.

         The defendants testified that they brought the paintings to New Hampshire from Europe when they returned home. They claimed to have rolled them up and wheeled them on a cart through an airport to a Lufthansa Airlines check-in counter, where the airline graciously took charge of the rolled paintings, wrapped them, and presumably put them in the plane's cargo hold. The paintings would have weighed approximately 250 pounds or so, and, given the unfortunate circumstances surrounding the aunt's death and the delayed discovery of her body, the paintings were impregnated with a noticeable stench. Yet, defendants insisted, they experienced no difficulty transporting the paintings out of Europe, then through U.S. Customs, and to their home in New Hampshire.

         Defendants said they thought (and still think) the works were by Golub. They began liquidating the collection in a way that would bring the best prices, i.e. a few at a time.

         Plaintiff's counsel methodically challenged every aspect of defendants' narrative, exposed many misrepresentations made about the works' provenance, and offered uncontradicted expert opinion evidence that the works were crude fakes. The jury had little difficulty in expeditiously rejecting the defense and returning a verdict in Hall's favor against Nikolas for fraud and against both Nikolas and Lorettann for conspiracy to commit fraud. Hall was awarded $465, 000.00 in damages, the full amount paid for the works.

         Attorney's Fees

         This is a diversity of citizenship case in which New Hampshire law applies. New Hampshire generally follows the “American Rule” with respect to awards of attorney's fees. Under the American Rule parties to litigation pay their own fees. Harkeem v. Adams,117 N.H. 687, 690 (1977). “Underlying the rule that the prevailing litigant is ordinarily not entitled to collect his counsel fees from the loser is the principle that no person should be penalized for merely defending or prosecuting a lawsuit. An additional important consideration is that the threat of having to pay an opponent's costs might unjustly deter those of limited resources from prosecuting or defending suits.” Id. (citing Tau ...


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