So I have to sue this art gallery. I had two collages in one frame that was hanging last July. I tried to get them back after the show was over, and for months and months they could not find them. After many calls and notes left, they finally returned them to me in December, but they were water damaged from being stored in a basement. Both collages were stuck to the glass and the backing was warped.
Anyway, they have refused to compensate me, and conveniently “lost” my contract, where I had assigned them a value of $100 a piece. I initiated contact with the director via e-mail, and at first she told me it was my fault my pieces got damaged because the contract only covered 3 months of storage, so whatever happened to them after that was not her problem. Once I made it clear that her staff couldn’t find the pieces, she dicked around and referred me to a board member. He offered to have the gallery buy both pieces for $100 total, less a commission for the gallery. Obviously I said no. I want to retain ownership and repair them; also, why should they get a commission on such a transaction?
Do I have a case? The collages are not destroyed; both are missing several small sections where they were stuck to the glass. I could mend them but they will not be the same. I have witnesses who can vouch for my many attempts to get my pieces, and the person who wrote the contract can vouch for the $100 per piece value.
Anyone who has done the small claims court thing, how does it work? Any hot tips on winning?
You have a winnable suit. It’s clear from what you write that the gallery is at fault. The difficult part, if any, will be establishing the amount of damages, so concentrate on that. Bring to court as your witness the person who wrote the contract; this will establish a high amount for the damages. The defendant will argue that the pieces were not wholly damaged, are repairable, and therefore the damages must be lower. The question, then, is how much lower. Here you get into subjective opinion.
In general, state facts, don’t get into character attacks, maintain a cool and levelheaded demeanor (avoid emotional appeals), and keep your testimony concise, not rambling.
Walloon is right. If you have the pieces back, and want to refurbish them, your case is for damges only. There are several theories of damages in cases like this, and it gets pretty complicated. You should try to accumulate and bring the following information with you to court. The judge may ask you for any or all of it:
Valuations of the pristine pieces. Agreed value is good. You can testify about the agreement, but a hard copy would be more persuasive. Did you keep a copy of that contract? If so, bring it. Did anyone else knowledgeable about such things see the pieces, maybe at the gallery? Or an artist friend of yours. Consider bringing them with you to court. Especially if they will testify that the art was worth more than $200.
Cost of repair. How much do you estimate that it will cost you in time and supplies to repair the pieces? Try to come up with a fair hourly rate for yourself.
Value after repair. How much will the pieces be worth after you repair them. Again, if you can bring someone who knows about these things with you, their testimony will probably be more persuasive than your own. If the judge is interested in how much the repair will cost, and the repair will result in the value of the pieces being diminished, try to explain that to the judge.
Current value of the pieces. Similarly, you should be prepared to present evidence about how much the current value of the pieces is. If it is currently zero, emphasize that. And again, try to get someone else who knows about such things to testify.
I’m not sure that I understand why the gallery is claiming commission. Did they sell other pieces of yours? Apparently, they don’t have a copy of the contract, and the contract should spell out their rights to a commission. I doubt they will win this claim.
The usual disclaimers are now magically appended to this post.
If I understand your story, the collages were valued, by you, as worth $100 a peice, and there were two of them.
It seems likely that the most damages you could claim would be $200, assuming that the collages are now destroyed (or it would in effect cost $200 to repair them).
The problem, as I see it, is whether this case is worth pursuing. Naturally, it may be, if only to make a point that the gallery can’t treat you this way!
But factor into that equation the fact that you will be obliged to fill out a bunch of paperwork, and go to Court - which may take all day.
Now, if you do go, in my opinion you will win - assuming the facts are as you have stated. So, the only question is - is doing all of that work, and going to Court for a day, worth the up-to-$200 at stake, to you?
I’ve taken parties to small claims court twice. Split the first one and won big on the second. If you haven’t yet, write a firm, polite letter to the gallery owner stating that you expect to be reimbursed for $200 immediately and if not you will sue in small claims court. Give them 24 hours to respond. Then file the paperwork and have the sheriff or a friend serve the owners with the legal papers. Get a guide book for your state so you follow the rules. Otherwise, your case may get tossed out of court and you have to start over again. The pressure and hassle of a forthcoming trial may be enough to get you some money. If not, go to court. Remember you can only sue for actual out of pocket losses. And no attorneys are allowed to represent one in court.
Stay focused on the facts, cool the emotion, be polite to the judge. I would strongly recommend attending one or two small claims sessions a week or two prior to yours so you get the hang of the process. It is different than TV.
Here’s the problem with repairing the collages: I no longer have the materials I used to make them. Unlike with paintings, the materials were one of a kind and without them, the pieces won’t look quite right. Essentially, they can never be fixed to be the same as new. They are not destroyed, as I said, and I can probably make them look OK, but I imagine I don’t want to emphasize that in court.
Is the judge likely to split the difference? Or try to evaluate the damages and give me less than full value? I guess I would only be dissatisfied if I got nothing, since the gallery was clearly negligent and dismissive of the damages they did, and they should know that’s not OK.
Ruby, where are you located? There may be other sources of help for you, like legal aid (they will often at least walk you through the process), or Volunteer Lawyers for the Arts. Let us know where you are, and maybe somebody can give you more specific advice.
I’d tell you to call a lawyer in your state, but for $200 bucks, you’d be wasting your time.
I’m in Ithaca, NY. I have been in small claims court before, and won, but it was a much more clear cut case than this (I proved constructive eviction and got my deposit back, which was a cinch in that particular case).
The problem in this case is, the issue is the value of art. The initial value I set was arbitrary; I had to put a number on them for insurance purposes, so $100 each was the number I pulled out of my head. In reality, they are priceless to me and I’d never sell them. I made them out of love for someone, and the fact that they are damaged upsets me greatly. What is the value of the priceless, set at $100, then damaged? I have no idea, but I’m going to have to say $100, right? The gallery’s cavalier attitude makes me want to bust some skulls, but getting some compensation would be sufficient to allay my aggravation.
I’d have been happy to make a deal with this gallery; for instance, I offered to take $200 in art from the gallery if I ever saw something I liked in the future. The cost to the gallery would actually have been $140 then because they get a 30% commission on sales, which they could have kept. But no, I got an offer for $70. I have a record of all these offers made via e-mail, which I will print and bring to court. I have tried to resolve this reasonably and have just been blown off. Grrr.
You point out that the gallery “conveniently ‘lost’ my contract.” I was under the impression that both parties should get a copy of such contracts. Did you not get one? If no, why not? If yes, where is it?
Yes, this is a valid point, and no, I don’t have a copy. The reason? The Artistic Director of the gallery is one of my best friends. I had done business with the gallery before and they’d always treated my pieces with the utmost respect and care. However, she was ousted (for being disorganized, LOL, considering it took them 6 months to find my pieces after she left) and the Managing Director became UberDirector. She appointed her boyfriend, a 20 year old moron, to handle art storage, and he’s the one who lost my piece and left it in the basement. Consequently, I was too trusting in this process and thought my friend would be handling my art. My bad, yes, but will it sink my case if my friend, who wrote the contract, testifies for me?
I understand that you have been there before, which helps. You should also take a look at this. It may answer some of your questions. As far as guessing how the court will treat your claim, your best bet is to go to court and hang out there for a while, you may see a similar case. If not, at least you will get a feel for how the judge treats damages claims. You may get some ideas about the kinds of arguments that the judge finds persuasive. If you’ve got the time, spend three or four hours there.
I really think you need to quit discussing a pending lawsuit on a public message board, especially if you’re going to make damaging admissions and statements like “my bad.”
Don’t forget to sue the actual people in charge of the gallery, especially the owner and board members. Such people will often settle, as they must show up in court themselves without representation. If you sue the gallery, I believe a lawyer CAN represent them, and you don’t want that.
I am really, REALLY not worried that anyone involved in this case will ever read this board, but I probably should stop discussing it, you’re right, but not because I said “it’s my bad.” It’s fairly obvious that it was an oversight on my part that I didn’t get a copy of the contract. The reason I didn’t was because I trusted the person who wrote the contract, who was subsequently no longer part of the organization.
I’m not sure that I can sue them personally, and there are no lawyers in small claims court.