Lorettann Gascard v. Andrew J. Hall & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan
No. 2021-0151

LORETTANN GASCARD

v.

ANDREW J. HALL & a.

Argued: February 23, 2022
Opinion Issued: October 20, 2022

Nikolas Gascard, non-attorney representative appearing by approval of
the Supreme Court under Rule 33(2), on the brief and orally, for the plaintiff.

Desmarais Law Group, PLLC, of Manchester (Debra L. Mayotte on the
brief and orally), for defendant Andrew J. Hall.

Orr & Reno, P.A., of Concord (William L. Chapman and Elizabeth C.
Velez on the brief, and William L. Chapman orally), for defendant Newspapers
of New Hampshire, Inc., d/b/a Concord Monitor.

HANTZ MARCONI, J. The plaintiff, Lorettann Gascard, appeals a
decision of the Superior Court (Tucker, J.) dismissing her complaint against
the defendants, Andrew J. Hall and Newspapers of New Hampshire, Inc., d/b/a
Concord Monitor (Concord Monitor). The plaintiff asserts that the trial court
erred in determining that a statement attributed to Hall and published in the
Concord Monitor did not constitute defamation. We affirm.

I

The following facts are taken from the plaintiff’s complaint and exhibits.1
The plaintiff and her son, Nikolas Gascard, owned a collection of works
purportedly painted by the artist Leon Golub that they inherited from two
family members. Between 2009 and 2011, Hall purchased twenty-four
paintings from the Gascards’ collection. In 2014, in preparing to exhibit the
paintings at Hall’s museum in Vermont, the director of Hall’s art foundation
contacted the Spero-Golub Foundation (Foundation) to confirm information
about the collection. After inspecting the paintings, a member of the
Foundation informed the director that the twenty-four paintings were “likely
forgeries.”

In September 2016, Hall filed a civil action in the United States District
Court for the District of New Hampshire against the Gascards, alleging that
they had sold him forged art. On November 29, 2018, after a five-day jury trial,
Hall prevailed in his civil case and was awarded $465,000. On December 4,
the Concord Monitor published an online article by columnist Ray Duckler
titled “Art of deception: Collector awarded $500k after buying fraudulent
paintings.” A similar column appeared in the print edition of the Concord
Monitor the following day.

In October 2019, the Gascards sued Hall and the Concord Monitor for
defamation based on Hall’s statement to Duckler, as reported in the articles,
that Hall “‘had said he believed Lorettann, an artist herself, had painted the
forgeries.’” They alleged that the article was “false and defamatory per se”
because, “[b]y failing to disclose the full factual basis underlying Hall’s belief
that Lorettann painted the twenty-four paintings[,] the . . . article conveyed
Hall’s belief as a statement of fact.”

The defendants moved to dismiss. Following a hearing, the trial court
granted their motions. As to the claim against Hall, the trial court noted that
“the complaint did not include the entire statement, which Duckler reported as
‘[Hall] had said that he believed Lorettann, an artist herself, had painted the
forgeries, but he never knew for sure.’” The trial court determined that,
because the statement must be considered as a whole, “the qualification
omitted from the complaint, but evidenced by the exhibits attached to it, [was]
integral to addressing the claim.” The court reasoned that Hall’s qualification,
that “he ‘never knew for sure’” whether Lorettann had painted the forgeries,

1 Although the complaint was filed by Lorettann and Nikolas Gascard, Nikolas is not a party to
this appeal.

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“dispel[led] an implication of undisclosed defamatory facts.” The trial court
concluded that the statement “reflect[ed] [Hall’s] opinion rather than a
statement of fact” and, thus, was not actionable. For the same reasons, the
court dismissed the identical claims against the Concord Monitor. This appeal
followed.

II

In reviewing a trial court’s grant of a motion to dismiss, we consider
whether the allegations in the plaintiff’s pleadings are reasonably susceptible of
a construction that would permit recovery. Cluff-Landry v. Roman Catholic
Bishop of Manchester, 169 N.H. 670, 673 (2017). We assume the plaintiff’s
pleadings to be true and construe all reasonable inferences in the light most
favorable to her. Id. However, we need not assume the truth of statements in
the plaintiff’s pleadings that are merely conclusions of law. Id. We then
engage in a threshold inquiry that tests the facts in the complaint against the
applicable law, and if the allegations constitute a basis for legal relief, we must
hold that it was improper to grant the motion to dismiss. Id. In conducting
this inquiry, we may also consider documents attached to the plaintiff’s
pleadings, documents the authenticity of which are not disputed by the parties,
official public records, or documents sufficiently referred to in the complaint.
Automated Transactions v. Am. Bankers Ass’n, 172 N.H. 528, 532 (2019).

We decide this appeal under New Hampshire law, rather than the First
Amendment. See Boyle v. Dwyer, 172 N.H. 548, 553 n.3 (2019). In doing so,
we are cognizant of the limitations placed on the application of state
defamation law by the United States Supreme Court, through its interpretation
of the First Amendment. Id.; see Milkovich v. Lorain Journal Co., 497 U.S. 1
(1990).

To survive the motion to dismiss, the plaintiff must have alleged facts
that would show that the defendants failed to exercise reasonable care in
publishing a false and defamatory statement of fact about her to a third party.
Automated Transactions, 172 N.H. at 532. Embedded in this recitation is the
requirement that the challenged statement be one of fact. Id. Conversely, a
statement of opinion is not actionable unless it may reasonably be understood
to imply the existence of defamatory fact as the basis for the opinion. Id.
Whether a given statement can be read as being or implying an actionable
statement of fact is a question of law to be determined by the trial court in the
first instance, considering the context of the publication as a whole. Boyle, 172
N.H. at 553. For purposes of resolving this appeal, we, like the trial court,
assume that Hall made the statement as it appears in the articles.

The plaintiff first argues that the trial court’s conclusion that Hall’s
statement did not imply undisclosed defamatory facts was erroneous because it
“directly contravenes” the Supreme Court’s decision in Milkovich, “which

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plainly held that simply couching such statements in terms of opinion does not
dispel these implications.” (Quotation omitted.) She asserts that the
qualification in the statement that Hall “believed” but “never knew for sure,”
“merely speaks to his own subjective evaluation of the facts upon which his
opinion is based, and does not imply in the least that he is not in possession of
such facts.” (Bolding omitted.) We disagree.

In Milkovich, a case involving a media defendant, the Supreme Court
clarified that there is no “wholesale defamation exemption for anything that
might be labeled ‘opinion,’” noting that “expressions of ‘opinion’ may often
imply an assertion of objective fact.” Milkovich, 497 U.S. at 18 (explaining that
in the statement, “‘In my opinion John Jones is a liar,’ [the speaker] implies a
knowledge of facts which lead to the conclusion that Jones told an untruth”).
Because the “breathing space which freedoms of expression require in order to
survive is adequately secured by existing constitutional doctrine,” the Court
declined to create “an artificial dichotomy between ‘opinion’ and fact.” Id. at
19. The Court held that only statements that present or imply the existence of
facts that can be proven true or false are actionable under state defamation
law. Id. at 18-20.

Thus, as we have explained, “an opinion is . . . actionable for defamation
when the opinion may reasonably be understood to imply the existence of
defamatory fact as the basis for the opinion.” Boyle, 172 N.H. at 553
(quotation omitted). We reject the plaintiff’s apparent argument that, simply
because Hall’s statement included a qualification that “he believed” and “never
knew for sure,” the trial court was precluded as a matter of law from
determining, on a motion to dismiss, that the statement did not contain factual
implications and thus was not actionable. Here, Hall’s statement cannot
reasonably be understood to imply the existence of defamatory fact as the basis
of his opinion. The fact that the plaintiff is “an artist herself” is neither
defamatory nor false. As the article reports, the plaintiff herself told Hall she
was in Golub’s art class in the 1960s. See id. (explaining that whether a
statement can be read as implying an actionable statement of fact must be
considered in the context of the publication as a whole).

Rather, it is clear to a reasonable reader that Hall did not actually know
whether the plaintiff painted the forged art because, as he plainly stated, “he
never knew for sure.” See Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002)
(explaining that “even a provably false statement is not actionable if it is plain
that the speaker is expressing a subjective view, an interpretation, a theory,
conjecture, or surmise, rather than claiming to be in possession of objectively
verifiable facts” (quotation omitted)). We agree with the trial court that Hall’s
qualification that “he never knew for sure” negated any implication that he was
in possession of facts that confirm the truth of the speculation that Lorettann
had painted the forgeries.

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 We likewise are not persuaded by the plaintiff’s argument that evaluating
the statement in the context of the Concord Monitor articles as a whole “further
strengthens the implication that [Hall] was in possession of facts which
underlie his opinion.” (Bolding omitted.) The articles report Hall’s explanation
for why he did not initially doubt the Gascards’ account describing how they
acquired the paintings; Hall’s admission that he failed to undertake sufficient
due diligence prior to purchasing the paintings; how Hall learned the paintings
were forgeries; and that, at trial on the allegations that the Gascards sold him
forged paintings, an expert on Golub’s work testified that the paintings did not
match the artist’s style. The expert concluded only that the paintings were
forgeries, not who had painted them. We see nothing in the articles that
supports the plaintiff’s position that they imply “that Hall was in possession of
undisclosed facts which lead him to the conclusion that Lorettann Gascard
painted the works.” Indeed, Hall expressly acknowledged that he did not know
for sure who painted the forgeries.

Accordingly, we conclude that the trial court did not err in determining
that, as a matter of law, “[v]iewed in its totality, the statement, couched as
conjecture, does not imply it is grounded on undisclosed defamatory facts,”
and affirm the court’s dismissal of the plaintiff’s defamation claims against the
defendants.

Affirmed.

DONOVAN, J., concurred; HOURAN, J., retired superior court justice,
specially assigned under RSA 490:3, concurred.

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