()

A lawsuit over the failed $5.5 million sale of a painting by famed Italian portrait artist Amedeo Modigliani is heading back to Miami-Dade Circuit Court.

As part of the decision, the Third District Court of Appeal in Miami vacated a $3.15 million award to Tableau Fine Art Group of Miami Beach.

Tableau alleged in a breach of contract suit filed in 2009 that Walter Rusniaczek backed out of the art sale involving a work by the artist who was active in the early 20th century.

Rusniaczek said he couldn’t complete the sale to a Ukrainian company because he had given the portrait to his wife as a gift years earlier, but Tableau maintained the real reason was he found a different buyer and wanted to cut the broker out of the deal.

Miami-Dade Circuit Judge Valerie R. Manno Schurr granted summary judgment in favor Tableau on liability.

The three-judge appellate panel ordered an evidentiary hearing to determine whether documents Tableau used to support its motion were fraudulent.

Rusniaczek produced an affidavit from notary Ogla Tepper, who stated she did not sign the consignment agreement produced by Tableau and her notary stamp was stolen before the papers were signed.

The trial court granted Tableau’s motion for summary judgment on liability without an evidentiary hearing on the fraud issue, District Judge Leslie Rothenberg wrote for the unanimous panel. The liability decision was upheld but not the amount of damages.

“Tepper’s affidavit raises questions regarding the validity and truthfulness of Tableau’s claim for relief,” Rothenberg said. She was joined in the April 16 decision by Judges Vance E. Salter and Ivan F. Fernandez.

Rothenberg also said a liquidated damages provision in the contract between the parties constituted a penalty clause and couldn’t be upheld.

“Damages are grossly disproportionate to any damages that Rusniaczek could reasonably have expected to follow from his breach,” the opinion stated.

The seller “alleged a colorable claim of fraud,” mandating an evidentiary hearing on the issue, the court concluded.

The case revolves around Modigliani’s “Young Woman With a White Collar,” which depicts Simone Thiroux, a woman with whom Modigliani carried on an intense affair that ended when he learned she was pregnant with his child.

In the 1916 painting, Thiroux sits emotionless on a wooden chair, her grayish blue eyes contrasting sharply with the red background. She wears a brown blouse with a large white collar.

Rusniaczek was represented by attorney Darius Asly of Miami Beach.

Tableau was represented by attorney Robert A. Stock, a partner at Stok Folk + Kon in Aventura.

Neither had any comment by deadline.