3 Lenox residents appeal local judge's ruling in Berkshire Museum art sale

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PITTSFIELD — Three residents of Lenox want a higher court to decide whether they possess legal standing to challenge the Berkshire Museum's planned sale of art.

In a notice filed Monday in Berkshire Superior Court, the plaintiffs seek to have the Massachusetts Appeals Court review a Nov. 7 decision by Judge John A. Agostini that denied the trio's request for a preliminary injunction to stop art auctions that were to start Nov. 13.

The judge found that the plaintiffs — James and Kristin Hatt and Elizabeth Weinberg — did not have the right, as museum members, to oversee decisions by the museum's board. While the sales have been blocked until at least Dec. 11, the Hatts and Weinberg are pressing for an injunction to be in effect until a trial on the merits of their lawsuit.But the step taken Monday is not enough to prevent the sales from going forward if the museum clears hurdles both in the Superior Court and in Boston.

The three residents filed suit Oct. 26, echoing aspects of a challenge brought six days earlier by other plaintiffs, including three sons of artist Norman Rockwell. The suits were combined into one before Agostini heard arguments Nov. 1.

Nicholas M. O'Donnell of the Boston law firm Sullivan & Worcester LLP, representing the Lenox plaintiffs, said the notice of appeal asks the higher court to reconsider the consolidation of the two lawsuits, as well as Agostini's denial of the injunction.

O'Donnell said Monday he believes his clients' case should have been heard where it was filed, in the Business Litigation Section of Suffolk Superior Court in Boston. That's because his argument related to rules governing the operation of the museum as a nonprofit corporation.

O'Donnell said he was prepared to argue in Boston that as a corporation set up by an act of the Legislature, the nonprofit museum holds a contract with its members, just as a for-profit company does with shareholders.

Instead, O'Donnell stood before Agostini's court Nov. 1 to advance the theory that the museum breached its contract with members by exceeding the terms of its charter when it decided to remove 40 works of art that a founding document said should remain in Pittsfield.

The museum's attorney, William F. Lee, countered that day that only trustees have the right to run the place — and Agostini later agreed.

"We determined that the BLS was a good place to determine those rights," O'Donnell said Monday of the court venue he failed to get. The cases were consolidated without his clients having an opportunity to object to that step.

O'Donnell said he believes Agostini erred by deciding the matter of legal standing without seeing necessary documents, including a copy of museum bylaws O'Donnell said he was unable to obtain from the institution.

"There's no document in the record that says that," O'Donnell said of the role members can play museum management.

He said that in his reading of Agostini's Nov. 7 order denying the injunction, the judge acknowledged that members of a nonprofit corporation can possess standing to oversee its governance.

But the judge then accepted the museum's assertions about who the members are, O'Donnell said.

"My clients — the museum's members — respectfully disagree with that conclusion," he said, "and are confident that the dismissal based on that finding was premature and justifies reinstating their case."

Next steps

The filing Monday moves the case to the appeals level — and is a last-ditch effort for these plaintiffs to continue to oppose the art sales.

"Our case is over unless we appeal," O'Donnell said.

From here, O'Donnell has 40 days to file a brief, after which the museum's lawyers have 30 days to respond. O'Donnell then gets 30 days to reply to that before the case goes into a queue for oral arguments.

While the timetable could stretch out into next fall, the fact of the appeal is not enough to restrain the museum for proceeding with the art sales, which it says is a critical for it to fix a roughly $1 million yearly hole in its balance sheet.

If the injunction now in place lapses, O'Donnell's clients could try on their own to seek another court-ordered delay in the sales, he said.

On Nov. 10, Justice Joseph A. Trainor granted a motion from the Attorney General's Office to stop auctions set to begin Nov. 13 at Sotheby's in New York City.

Meantime, the museum's legal team is pressing to go to trial at the Superior Court level, seeking to clear the way to reschedule auctions.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.




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