The last remaining claimants for the 1879 painting by Pierre Auguste Renoir, Paysage bords de Seine that surfaced in the possession of a woman who claimed to have found it at a flea market, have filed summary judgment papers seeking final disposition of the case without need of a trial. The Baltimore Museum of Art has made its case that the painting was stolen from the museum in 1951, while Martha Fuqua alleges that she purchased it in good faith at a Virginia flea market in 2009 before attempting to sell it at the Potomack Company. The U.S. government seized the painting from the auction house and filed an interpleader action to determine the true owner; the other principle claimant (Fireman’s Fund Insurance) dropped out of the case last fall without explanation, apparently pursuant to an assignment. Heirs of the original donor to the BMA never responded or made claim to the painting. The case will now turn at summary judgment on the hearsay rule, a topic that have bedeviled generations of law students and lawyers.
The U.S. District Court for the Eastern District of Virginia will hold a hearing on January 10, 2014 on the BMA’s motion for summary judgment. In support, museum officials submitted affidavits that identified documents relevant to the chain of title and its theft, and about the authenticity of the painting itself.
The museum’s case is simple: the painting was stolen from the museum in 1951, and however Fuqua came to have it (i.e., whether or not she knew it was stolen), she can never acquire good title. As we have disused frequently in the Gurlitt case, the standard under U.S. law is that “a thief cannot acquire good title,” and thus cannot convey it either. Put another way, the museum argues that assuming the very scenario that Fuqua alleges, she could never hold valid title to the painting because whoever sold it to her got it from someone who either stole it, or who himself got it from someone who stole it. The museum’s legal argument is that her good faith is irrelevant, so there are no facts to sort out.
That last point is critical, because the procedure that the museum invokes can only be granted if there are no material facts in dispute. Where the parties are in agreement about the operative facts, then the court can determine the legal consequence of those facts. Conversely, if facts necessary to resolve the dispute are not agreed upon, then a trial is necessary, and the judge cannot decide what is true and what is not. If the facts that are in dispute do not matter to the legal outcome, summary judgment is still appropriate.
As one would expect, Fuqua’s opposition argues that the material facts are indeed in dispute. The manner in which she has done so, however, raises the question of what she is hoping for at a trial. Rather than present opposing facts that the painting was not stolen (which eventually she would have to do, because the legal principle about title cited by the museum is unassailable), Fuqua has taken issue with the form in which evidence of the theft was presented in the museum’s motion.
Fuqua is correct that the museum can only win summary judgment if the facts it has submitted as undisputed are otherwise admissible under the rules of evidence that would be applied at trial. That is, if the museum’s sole evidence that the painting had been stolen were that someone had told a museum official that the painting was stolen, that would be hearsay and unavailable to use as evidence in support of the motion.
That brings the motions to the second important legal point, the hearsay rule. Law students spend the better part of a semester trying to master the hearsay rule, and its application is surprisingly elusive even for experienced practitioners sometimes. But it boils down to this: a statement that is not made by a live person on the witness stand in a courtroom is inadmissible hearsay if it is offered for the truth of the proposition made in the statement itself. The basic policy behind the rule is that the jury should have an opportunity to observe and assess the credibility of anyone making a statement. Where the person making the statement (the “declarant”) is not there, the jury cannot assess her demeanor, honestly, etc. (while an affidavit would be hearsay at trial, the affidavit functions as a substitute for a live witness when a party moves for summary judgment; it is an offer of proof of what a witness would say on direct examination).
So if a witness says that another person told her that a traffic light was red at the time of an accident, the statement is inadmissible to show that the light was, in fact, red. But it could be admissible for a non-hearsay purpose, for example, to show that the out-of-court declarant was conscious and able to speak. In that event, a judge would instruct the jury about the limited purpose for which it may consider the statement.
This is the challenge that the museum faces. The painting was stolen in 1951, but how can the museum establish that fact? There are no live witnesses who came in one day and saw that the painting was missing. Anyone who knows about the painting’s theft from someone else cannot testify to that, because it would be hearsay. So how can the museum establish the theft?
Luckily, there are also many exceptions to the hearsay rule for circumstances that are deemed sufficiently reliable to avoid the strict application of the rule. One of the most frequently used is what is called the “business records” exception. Where a document is made in the ordinary course of business by someone whose job it is to make such a record, the document can be admitted even for the truth of its contents (for example, a company’s revenues for a year, or an accessioning report for a painting).
Fuqua’s opposition relies primarily on a hearsay argument. She argues that material facts are in dispute because all of the evidence offered by the museum that the painting was stolen actually constitutes hearsay that would not be admissible at trial. Specifically, she argues that a police report contains statements by a museum official, and is therefore hearsay (police reports are sometimes considered business reports, but not for the truth of any statements incorporated within them that were made to police officers). Likewise, she argues that correspondence from Sadie May (the donor), various records of exhibition display, and the collections card are all hearsay. She presses the point too far, however, in arguing that the fact of the original owner’s death is not uncontested. Sadie May is either dead or she is not, and public records (another hearsay exception) will easily establish the point. Quibbling with the admissibility of that fact undermines Fuqua’s credibility.
The museum recently submitted its reply in advance of the hearing. The BMA underscores the applicability of the business records exception, as well as an exception for documents of a certain age whose authenticity is established. The BMA also points out that many of the documents are not offered for the truth of the matter asserted, but for a non-hearsay purpose (like the fact that the painting was reported stolen).
From here the museum has easily carried its burden to offer admissible evidence that the painting was stolen. The museum records and donor correspondence are clearly either business records, or evidence of notice of the donor’s willingness to give away the painting. May’s will is a document with independent legal significance, like a contract, that does not fall within the hearsay rule. Fuqua cannot argue that material facts are in dispute simply because she does not agree, she must offer her own admissible facts that make the facts in dispute. She has not really even tried to do so. She does not dispute that the painting once at the BMA and the painting she tried to sell are the same painting. She therefore rests her entire case on the proposition that the BMA cannot offer any admissible evidence that the painting was stolen.
Although unlikely, Fuqua may succeed in convincing the court that there are facts in dispute. She is correct that some of the deposition testimony about what was exhibited in the 1950s is probably hearsay, since the witness had no personal knowledge of those events.
But in the end it is hard to imagine to what purpose. This is not a lawsuit between two private parties. It is a proceeding to determine who, if anyone, is the rightful owner. If Fuqua forces the BMA to have a trial over whether the painting was stolen, it would be shocking if a jury did not find it more likely than not that the painting was stolen. And even if the BMA somehow didn’t prevail, that still does not mean that Fuqua could carry her own burden to prove that she had good title, since her story about the flea market has its own detractors that the BMA will presumably explore at trial.
Judges are always wary about awarding summary judgment, since it is far easier for an appeals court later to say that there was a dispute of fact that should have been tried. Denial of a summary judgment motion will not be reviewed on appeal until after a trial. But all things being equal, summary judgment in the museum’s favor seems the likeliest outcome here.
