United States Court of Appeals 

For the First Circuit 

No. 16-2343 

LUIS ROJAS-BUSCAGLIA; INART CORP.; INART SERVICES, INC., 

Plaintiffs, Appellees, 

v. 

MICHELE TABURNO-VASARHELYI, 

a/k/a Michele Taburno-Vasarely, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Francisco A. Besosa, U.S. District Judge] 

Before 

Torruella, Selya, and Kayatta, 

 Circuit Judges. 

Lydia M. Ramos Cruz for appellant. 

David A. Carrión Baralt for appellees. 

July 24, 2018 
-2- 

TORRUELLA, Circuit Judge. Following a lengthy bench 

trial, the district court entered judgment for Michele TaburnoVasarhelyi ("Vasarely")1 on several of her counterclaims against 

her business partner, Luis Rojas-Buscaglia ("Rojas"),2 awarded her 

over $400,000 in damages, ordered her to provide Rojas certificates 

of authenticity for two disputed pieces of artwork, and dismissed 

several of her remaining counterclaims. Unsatisfied with this 

result, Vasarely sought our assistance. Finding no error in the 

district court's rationale, we affirm the district court's 

judgment. 

I. BACKGROUND 

A. Factual Background 

 We begin with the relevant facts, reciting them as they 

relate to the issues presented on appeal. Vasarely, 

daughter-in-law of deceased "Op Art" artist Victor Vasarely, and 

widow of Victor's son, Jean Pierre Vasarely (better known as 

"Yvaral"), accumulated a large and valuable artwork collection as 

a result of her relationship with both artists. Rojas, a Puerto 

 

1 Also known as Michele Taburno-Vasarely. Throughout the 

proceedings below and in her appellate brief, our appellant refers 

to herself as "Vasarely." Accordingly, we do the same. 

2 For ease in exposition, and because the other plaintiffs in the 

underlying case, Inart Corporation and Inart Services, are wholly 

owned and controlled by Rojas we refer to plaintiffs, collectively, 

as "Rojas." 
-3- 

Rican entrepreneur and art dealer, and widower of Vasarely's best 

friend, moved to France in December 2000 to work as Yvaral and 

Vasarely's assistant. Yvaral died in August 2002.

From 1981 to 1985, Rojas's father, Dr. Luis Rojas ("Dr. 

Rojas"), purchased eleven Victor Vasarely paintings from a gallery 

in Venezuela. Among the works he bought were: Grilles-II, HeliosNeg, Tridim-S, and Tsoda. Dr. Rojas gave Rojas custody of the 

works of art along with the right to sell or exchange them in his 

father's name. In September 2002, Rojas consigned the works of 

art to Vasarely for exhibit or possible sale. 

1. The 2009 Settlement Agreement

In 2004, Vasarely and Rojas moved to Chicago and acquired 

what, according to Rojas's allegations, was community property 

shared between the two of them. After their relationship took a 

negative turn, Rojas moved back to Puerto Rico in 2005. At some 

point between 2005 and 2009, Vasarely alleged that Rojas and his 

father had sold some of her artwork to a private party, Dr. 

Fernando Zalduondo, but never paid Vasarely for the sale. On 

February 5, 2009, Vasarely and Rojas signed a settlement agreement 

(the "2009 Settlement Agreement") stating that Rojas would give 

nine of Dr. Rojas's paintings, including Grilles II,3 Helios-Neg,

 

3 While the 2009 Settlement Agreement lists the name of this 

painting as Guilles, it is clear from the record and the parties' 
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Tridim-S and Tsoda, to Vasarely as payment for the sale to Dr. 

Zalduondo.

2. The Chicago Agreement

From 2008 to 2012, Vasarely was involved in a civil 

lawsuit in the Circuit Court of Cook County, Illinois, against an 

art gallerist, Thomas Monahan, during which the Cook County court 

attached hundreds of works of art that Vasarely had in storage in 

Chicago. This included three pieces of artwork listed in the 2009 

Settlement Agreement: Grilles II, Tridim-S, and Tsoda. On January 

20, 2009, Vasarely wrote to Dr. Rojas that she regretted the 

situation and that she hoped his seized works would be returned to 

him in March or April. On September 22, 2010, Dr. Rojas and 

Vasarely signed an agreement (the "Chicago Agreement"), in which 

Vasarely recognized that Dr. Rojas was the owner of these 

paintings, as well as Helios-Neg. 

3. The 2010 Artwork Agreement

In June 2009, Rojas sued Vasarely for the division of 

their community property. On September 22, 2010, Rojas and 

Vasarely settled their community property dispute by entering into 

an agreement (the "2010 Artwork Agreement") pursuant to which 

Rojas, as the sole owner, director, and officer of Inart 

 

briefs that this is the same painting as Grilles II.
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Corporation and Inart Services, would earn commissions by selling 

Vasarely's artwork to Inart's clients. According to the agreement, 

Vasarely would receive eighty percent of the sale price and Inart 

would receive the other twenty percent. Appendix A of the 2010 

Artwork Agreement listed eleven paintings and three sculptures, 

which Vasarely gave to Inart on consignment. Pursuant to Clause 8 

of the 2010 Artwork Agreement, after the consigned artwork was 

sold and Vasarely received her share of the payment, she was to 

deliver the sold artwork's certificate of authenticity to the 

purchaser. Clause 11 provided that either Rojas or Vasarely was 

entitled to terminate the agreement with eight days' notice for 

reasonable cause or for a breach of the contract by the other 

party. Upon termination, Clause 12 established that Inart had to 

return all artworks to Vasarely within forty-eight hours by 

depositing them in a storage facility of Vasarely's choice. If 

the forty-eight hours passed without Inart returning the artwork, 

Inart would be fined $1,000 per day payable to Vasarely.

4. Verbal Agreement: Pompari and Quasar-Zett

The parties restored their working relationship and, in 

December 2011, Vasarely and Rojas verbally agreed that Rojas would 

travel to Paris for five days to complete some tasks for her. 

Pursuant to her instructions, Rojas found several pieces of artwork 

in storage facilities that Vasarely maintained in France, prepared 
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the artwork to be shipped to Puerto Rico -- where Vasarely was 

contemplating moving -- contacted a shipping company to relay 

Vasarely's specific moving instructions, and supervised the move. 

As compensation for his work, Vasarely agreed to give Rojas two 

pieces of artwork, Pompari and Quasar-Zett, together valued 

between $240,000 and $300,000, as well as their certificates of 

authenticity. Rojas received the artwork after the items arrived 

in Puerto Rico, but Vasarely did not provide him the certificates 

of authenticity. 

5. Shipment of Vasarely's belongings from Chicago

In late October 2012, Vasarely moved from Chicago to 

Puerto Rico. At Vasarely's request, Rojas agreed to take care of 

the shipment of Vasarely's belongings and hired a company to pack 

and ship the items located in her condo and four storage warehouses 

in Chicago. Vasarely oversaw a representative from the shipping 

company, Bill Mamer, as he packed her things in the condo, and she 

put Rojas in charge of overseeing the packing of her items in the 

warehouses. Vasarely did not create an inventory of the items 

from the warehouses that were placed into each of the six shipping 

containers and did not ask Rojas to do so either. The shipping 

company prepared lists with very general descriptions of the 

contents packed in each of the containers, which held hundreds of 

boxes in total. Contrary to her instructions to ship the 
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containers and lease storage units in Puerto Rico under her name, 

Rojas used either his name (or various misspellings of his name) 

or his companies' names for the shipping and leasing agreements. 

Five of the containers arrived in Puerto Rico on different dates 

between September 19 and December 20, 2012, where Rojas received 

them and, with the help of two hired assistants, unloaded them at 

either the storage facility or at the building where he and 

Vasarely both lived. The sixth container was sent to a storage 

facility in New Jersey, purportedly with Vasarely's knowledge, 

because Rojas believed not all of the boxes would fit into 

Vasarely's Puerto Rico apartment. This New Jersey storage is also 

where Vasarely stored items that she purchased at auction, and the 

plan was to keep the shipped items there until she had room in 

Puerto Rico for the container and auctioned items. Vasarely 

received the container in Puerto Rico in June 2013. Vasarely now 

contends that many of her possessions, including a number of 

valuable works of art, are missing and were lost or stolen either 

in transit or upon arrival in Puerto Rico. 

6. Sale of the Chicago condominium

In 2003-04, when Vasarely moved from France to the United 

States, Vasarely and Rojas purchased a condominium in Chicago under 

Rojas's name for $1,160,000. Subsequent renovations to the 

condominium cost approximately $250,000. On September 3, 2010, 
-8- 

Rojas and Vasarely signed a "Memorandum of Note" stating that 

Vasarely would receive the proceeds of the sale of that condominium 

when it was sold. In November 2010, Vasarely put the condominium 

up for sale and, because she felt that the $1,100,000 offer she 

received was too low,4 she took the property off the market. After 

Vasarely moved to Puerto Rico in October 2012, Rojas hired a 

realtor and recommended that Vasarely sell the condominium for 

$1,100,000. Vasarely still felt that this amount was too low and 

said that an appraisal needed to be done to know the true market 

value of the property. On April 15, 2013, Rojas sold the 

condominium without an appraisal for $1,075,000. 

7. Vasarely's demands for return of her artwork

Because she suspected that Rojas was taking artwork from 

her storage unit without her permission, on March 14, 2013, 

Vasarely emailed Rojas requesting that he give her the keys to the 

Puerto Rico storage units and a list of artwork that he had taken. 

Rojas did not answer. On April 7, 2013, Vasarely sent Rojas an 

email that, after addressing personal matters, stated, "I no longer 

want to work with you, you don't do anything, other than abuse me 

and take away my fortune by [f]orce." On May 16, 2013, Vasarely 

wrote to Rojas: "If tomorrow prior to my leaving at one, all of my 

 

4 Rojas remembered an additional offer for $950,000.
-9- 

works of art have not arrived, I forewarn you that we are going to 

file a complaint in court and of course I am going to cancel all 

pending projects." The next day, she wrote in another email, "[w]e 

are not going to have any business until everything is clarified 

with attorneys and all my works of art are in my possession." 

Between May and October 2013, she wrote Rojas several emails 

requesting that he return all of the artwork that he took from her 

storage units, as well as the keys to those storage units, but 

Rojas nevertheless continued to ignore her repeated requests. 

Rojas did not return the artwork or keys to Vasarely until February 

2014 after the district court ordered him to do so on January 30, 

2014. The set of artwork, consisting of at least thirty-one works, 

was worth between $3,000,000 and $10,000,000. 

B. Procedural Posture 

1. Complaint and Counterclaims

On October 9, 2013, Rojas filed suit in the United States 

District Court for the District of Puerto Rico, claiming inter 

alia that Vasarely breached the 2010 Artwork Agreement by reducing 

Rojas's commissions, interfering with artwork sales, and delaying 

providing the purchasers certificates of authenticity for the 

artwork. Rojas further sought injunctive relief and urged the 

district court to order Vasarely to produce the certificates of 

authenticity for the paintings already sold, as well as for Pompari
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and Quasar-Zett. Finally, Rojas alleged that Vasarely defamed him 

and his companies, causing damage to their commercial reputation.

On November 14, 2013, Vasarely asserted numerous 

counterclaims; those relevant to this proceeding we discuss below. 

Vasarely counterclaimed that Rojas breached the 2010 Artwork 

Agreement by refusing to give her proceeds from certain artwork 

sales, entering into her property and removing artwork and her 

personal belongings, and refusing to return artwork after she 

terminated the 2010 Artwork Agreement. She next counterclaimed 

that Rojas breached a "mandate contract" when he failed to follow 

her instructions regarding the shipment of her belongings from 

Chicago to Puerto Rico, and breached a consignment contract when 

he leased the storage units in Puerto Rico under his name and 

failed to return to her the items that she deposited. Vasarely 

also claimed Rojas was liable for the unauthorized sale of her 

condo in Chicago, and for the proceeds of the sale for not proving 

that he had paid her in full. She further requested damages for 

mental and moral anguish suffered due to Rojas's "purposeful, 

illegal, mean and disloyal acts" towards her. 

On November 22, 2013, and again on July 2, 2014, Vasarely 

moved to replevy several works of art, including the Pompari,

Quasar-Zett, Grilles-II, Helios-Neg, Tridim-S, and Tsoda
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paintings, and other belongings that she alleged that Rojas 

illegally possessed. The district court denied both motions. 

2. Motions for Partial Summary Judgment

On January 30, 2015, Vasarely filed a motion for partial 

summary judgment, requesting that the court grant judgment in her 

favor on her counterclaims related to the breach of the 2010 

Artwork Agreement and the sale of the Chicago condo, and that it 

dismiss all of Rojas's claims. She again urged the district court 

to order Rojas to return the artwork in their possession. On the 

same day, Rojas filed a motion for partial summary judgment, 

requesting that the court dismiss Vasarely's breach of the 

consignment contract claim and her request for replevin of the 

artworks, with the exception of La Bergere, Quasar-Zett and 

Pompari. 

The district court denied Rojas's motion for partial 

summary judgment in its entirety and granted in part and denied in 

part Vasarely's motion for partial summary judgment. 

Specifically, as is relevant to this appeal, the district court: 

1) granted judgment in Vasarely's favor as to her counterclaims 

that Rojas breached the 2010 Artwork Agreement by failing to 

provide her proceeds from the sale of several pieces of artwork; 

2) denied her request for judgment as to her counterclaim that 

Rojas breached the 2010 Artwork Agreement by not returning her 
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artwork; 3) denied her motion for summary judgment on Rojas's claim 

that Vasarely breached the 2010 Artwork Agreement; and 4) granted 

in part and denied in part her motion for summary judgment as to 

her counterclaim regarding the sale of the Chicago condominium. 

As to the condominium counterclaim, the district court found that 

Rojas had not provided Vasarely the full net proceeds from the 

sale of the Chicago condominium, but denied Vasarely judgment as 

to her claim that Rojas negligently and in bad faith undersold the 

condominium by not first obtaining an appraisal. 

3. The Trial

On August 10, 2015, the district court commenced a 

nineteen-day bench trial on the remaining claims. After hearing 

the testimony of nine witnesses and reviewing the 252 exhibits 

admitted into evidence, on August 5, 2016, the district court 

dismissed the remainder of Rojas's claims that Vasarely breached 

the 2010 Artwork Agreement as well as Rojas's defamation claim. 

The district court did, however, find in Rojas's5 favor as to his 

request for injunctive relief as to the Pompari and Quasar-Zett

paintings, finding that Vasarely gave them to Rojas in exchange 

for his work in Paris, and ordered Vasarely to provide Rojas the 

respective certificates of authenticity. 

 

5 Rojas brought this claim individually, apart from the other 

plaintiffs in the underlying case.
-13- 

As to Vasarely's remaining counterclaims, the district 

court found in Vasarely's favor on her counterclaims for breach of 

contract relating to the sale of several pieces of artwork and 

awarded her further damages in addition to those already awarded 

at summary judgment. As to Vasarely's counterclaim for damages 

for Rojas's breach of the 2010 Artwork Agreement by failing to 

return her artwork in a timely manner, the district court found 

that Vasarely had provided sufficient notice of her intent to 

terminate the agreement and that a penalty pursuant to the 

agreement's penalty clause was warranted. The court dismissed 

Vasarely's counterclaim that Rojas breached the contract by 

keeping an unauthorized inventory as it found that Rojas eventually 

returned the artwork, and that Vasarely failed to show any damages 

-- outside of those warranted by the contract's penalty clause -- 

from the delayed return of the art. 

Next, the district court dismissed Vasarely's 

counterclaim that Rojas breached an agency contract6 and also 

dismissed Vasarely's breach of depositum contract counterclaim.7 

As to the sale of the condominium in Chicago, the district court 

 

6 This claim was labeled a breach of a "mandate contract" in 

Vasarely's counterclaims.

7 This claim was labeled a breach of a "consignment contract" in 

Vasarely's counterclaims.
-14- 

found that Vasarely did not present any evidence that Rojas sold 

the condo for less than it was worth, and thus dismissed her 

counterclaim that Rojas negligently and in bad faith undersold the 

property. The district court did, however, find in Vasarely's 

favor on her tort counterclaim for mental anguish and ordered Rojas 

to pay her $5,000. 

Lastly, the district court dismissed Vasarely's replevin 

requests as to Quasar-Zett, Pompari, Grilles-II, Helios-Neg, 

Tridim-S, and Tsoda. The district court found that Vasarely gave 

the first two paintings to Rojas as payment for work that he did 

for her in Paris, and thus, because she does not own the paintings, 

her motion for replevin must fail.8 As for the latter four 

paintings, the district court found that they belonged to Dr. Rojas 

pursuant to the Chicago Agreement.

The district court denied Vasarely's motion for 

reconsideration on September 20, 2016. On October 19, 2016, 

Vasarely timely appealed, which leads us to the following. 

II. DISCUSSION 

Vasarely raises a number of issues on appeal, which we 

will handle in turn. Because the facts and application of the law 

 

8 Rojas had physical possession of the paintings until the district 

court ordered him to deposit them in a storage warehouse. 
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are largely disputed by the parties, we begin with the standard by 

which we review the issues presented in this appeal. 

A. Standard of Review 

 Following a bench trial, this Court reviews the district 

court's findings of fact with deference, overturning them only 

when clearly erroneous, but review "its legal conclusions de novo." 

Portland Pilots, Inc. v. NOVA STAR M/V, 875 F.3d 38, 43 (1st Cir. 

2017) (quoting Ne. Drilling, Inc. v. Inner Space Servs., Inc., 243 

F.3d 25, 37 (1st Cir. 2001)). This Court will overturn a finding 

of fact "only if it 'hit[s] us as more than probably wrong -- it 

must prompt a strong, unyielding belief, based on the whole of the 

record, that the judge made a mistake.'" Sánchez-Londoño v. 

González, 752 F.3d 533, 539 (1st Cir. 2014) (alteration in 

original) (quoting Darín v. Olivero–Huffman, 746 F.3d 1, 8-9 (1st 

Cir. 2014)). 

The applicable standard of review for an award of 

damages, and for the modification of a penalty clause, is for an 

abuse of discretion. See Lawton v. Nyman, 327 F.3d 30, 37 (1st 

Cir. 2003) (stating that the abuse of discretion standard of review 

applies to damages awards); see also Lussier v. Runyon, 50 F.3d 

1103, 1111 (1st Cir. 1995). Under this framework, an appellant 

must convince this Court that the district court "committed a 

meaningful error in judgment." Lussier, 50 F.3d at 1111 (quoting 
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Rosario–Torres v. Hernandez-Colon, 889 F.2d 314, 323 (1st Cir. 

1989)) (internal quotation marks omitted). 

B. The Contested Issues 

With these standards in mind, we turn to Vasarely's 

claims. 

1. Agency and depositum contracts 

 Vasarely argues that the district court disregarded 

circumstantial evidence showing that Rojas had breached both an 

agency and depositum agreement, and therefore was liable for the 

disappearance of fifty-seven items belonging to her. We begin 

with her claim for breach of the agency contract before moving on 

to her claims regarding the depositum contract. 

 a. Agency contract 

The district court found that Vasarely and Rojas formed 

an agency contract under which Rojas would hire a company to pack 

Vasarely's belongings, lease storage units in Puerto Rico, and 

unload and store those belongings once in Puerto Rico. Vasarely 

does not challenge this characterization, but instead disagrees 

with the district court's conclusions that 1) Rojas's only breach 

of the agency contract was his failure to follow Vasarely's 

instructions by shipping her items from Chicago to Puerto Rico and 

leasing storage units under his name or the name of his companies, 

and 2) that Vasarely did not show any loss from Rojas's breach. 
-17- 

Instead, she argues that "the district court discarded much 

[circumstantial evidence] as 'gossip'" and erroneously failed to 

apply a presumption that Rojas was at fault for her purportedly 

lost items as they were last in his custody. 

Pursuant to Puerto Rico law, under which Vasarely's 

counterclaims were brought, an agency contract is formed when a 

person "binds himself to render some service . . . for the account 

or at the request of another." P.R. Laws Ann. tit. 31, § 4421. 

The agent must follow the instructions of the principal in 

fulfilling his obligations. Id. at § 4442. Moreover, the agent 

will be "liable for the losses and damages caused to the principal 

through his noncompliance." Id. at § 4441. 

There is no question that, at her request, Rojas hired 

a moving company to pack and ship Vasarely's belongings from 

Chicago to Puerto Rico. According to Vasarely's own testimony at 

trial, at the time that she decided to make this move, she was too 

exhausted from her court cases to make arrangements for her items 

to be packed and shipped, and therefore Rojas agreed to -- and did 

-- hire movers to take care of that work. She acknowledges that 

she oversaw the packing of the items in her Chicago apartment, and 

that Rojas oversaw the movers who packed the items in the Chicago 

warehouses. But, other than her bald allegations that items went 

missing, she fails to point to any evidence that Rojas did not 
-18- 

follow her instructions to pack the items in her Chicago storage 

units. The record even shows that Rojas requested that Vasarely's 

shipment be handled with care and asked for protective coverings 

for the shipping containers. And, despite her testimony to the 

contrary, there was plenty of evidence that Vasarely was able to, 

and in fact did, communicate with at least two of the supervisors 

of the moving company and was involved in planning the details of 

the move. Therefore, as it relates to Rojas hiring a company to 

pack and move Vasarely's belongings, the district court did not 

clearly err in finding that Rojas complied with Vasarely's 

instructions in all respect aside from using the incorrect name(s) 

to do so. 

The parties don't dispute that Rojas leased storage 

units in the AAA Mini Almacenes storages in Puerto Rico for 

Vasarely's belongings, but again did so in the wrong name. The 

record shows that Rojas did unload the items that were shipped to 

Puerto Rico, with the assistance of two helpers and stored them 

either at the La Cima condominium facility -- where both of the 

parties lived -- or in the leased storage units. Given the support 

in the record, and our deference to the district court's 

credibility determinations, see Sawyer Bros., Inc. v. Island 

Transporter, LLC, 887 F.3d 23, 31 (1st Cir. 2018) ("We have 

repeatedly said that 'in a bench trial, credibility calls are for 
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the trier.'" (quoting Carr v. PMS Fishing Corp., 191 F.3d 1, 7 

(1st Cir. 1999))), we find no clear error in the district court's 

finding that Rojas's only breach of the agency contract was Rojas's 

improper use of his and his companies' names for the shipments 

from Chicago and leasing of storage units in Puerto Rico. 

Further, the district court did not clearly err in 

finding that Vasarely did not show any damages from Rojas's uses 

of the wrong names for shipping and leasing purposes. While 

Vasarely alleges that numerous items are missing or are lost, 

Vasarely provided no evidence from which the district court could 

conclude that these alleged losses were a result of the use of the 

wrong name, or that, as she claims, "this is a theft case." 

Vasarely acknowledges that the containers arrived in Puerto Rico 

with the seals unbroken, proving that nothing was stolen en route, 

and that Rojas had people help unload those shipping containers. 

She alleges that Rojas sent a container to New Jersey without her 

knowledge, but based on the testimonies of both Rojas and Vasarely, 

the district court was justified in finding that Vasarely knew and 

agreed to ship one container to New Jersey for storage until she 

moved into a larger apartment in Puerto Rico. The evidence also 

shows that she eventually received this sixth container in Puerto 

Rico. And, although she protests otherwise, there was also 

evidence to support the conclusion that she had access to those 
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storage units in Puerto Rico. Therefore, we find no clear error 

in the district court's finding that Vasarely failed to show any 

loss from the non-compliance. 

As to her legal challenge, the district court applied 

the correct legal standard for a breach of agency contract and 

properly applied the law to these record-supported facts. As this 

was Vasarely's counterclaim, it was her burden to show a loss from 

Rojas's noncompliance, and not Rojas's burden to prove a negative 

-- that he was not at fault for purportedly lost items. Cf. Dir. 

Office of Workers' Comp. Programs, Dept. of Labor v. Greenwich 

Collieries, 512 U.S. 267, 272-76 (1994) (party bearing the "burden 

of proof" -- that is, the party seeking the award -- has the 

"burden of persuasion"). As just mentioned, a proper application 

of the law shows that because Vasarely failed to show any loss 

caused by the use of improper names to ship or store her items, 

the district court properly dismissed this breach of agency 

contract claim. 

b. Depositum Contract 

The district court dismissed Vasarely's breach of 

depositum contract counterclaim because, although Rojas received 

five of the containers in Puerto Rico, Vasarely failed to show 

that the purportedly missing items were in any of those containers 

as she never inventoried the containers' contents. Vasarely argues 
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that because Rojas admitted to removing some artwork from the 

storages in Puerto Rico without her authorization, the burden of 

proof shifted to him to show that all of the allegedly "missing" 

artwork was not in his possession. 

While Vasarely is correct that a depositary is liable 

for items in his or her control under a depositum agreement, the 

burden is on the party alleging the breach, as the one claiming to 

have made such a deposit, to first show that the missing items 

were in fact deposited with the depositary. See P.R. Laws Ann. 

tit. 31, §§ 3192, 4661; see also Díaz Ayala v. E.L.A., 153 P.R. 

Offic. Trans. 675, 697 (P.R. 2001) (stating that, under Puerto 

Rico law, the burden of proof rests on the one claiming the 

affirmative of the issue); P.R. R. Evid. 110(B). 

We find no clear error in the district court's finding 

that Vasarely did not present probative evidence of what exactly 

was in those five containers that Rojas received in Puerto Rico or 

whether those five containers contained the specific items that 

she alleges are missing. As is evidenced by the record, some of 

Vasarely's items were still in storage in Chicago, some still in 

Paris, and some in storage in New Jersey. When Vasarely was shown 

exhibits during trial, she was unable to specify how many pieces 

of the artwork shown were missing because they may have been in 

storage and admitted that she was not present when the shippers 
-22- 

packed the artwork in the Chicago storage facility. Further, the 

district court found credible Rojas's testimony that he only 

removed the artwork that belonged to his father, the artwork 

pending sale, and the artwork given to him as payment for the tasks 

he performed for Vasarely in Paris. The district court also found 

that Rojas returned the rest of the "unauthorized inventory" when 

the court so ordered.

Vasarely claims that the district court "modified the 

Civil Code" by requiring that she have an inventory in order to 

show that these allegedly missing items were received by Rojas. 

But, Vasarely mischaracterizes the nature of the district court's 

findings. The district court did not find that a breach of a 

depositum contract cannot be proven without an inventory; instead, 

it required that Vasarely meet her burden of proving which items 

she deposited with Rojas. Without some method of proving what 

items Rojas received -- whether that be an inventory, a receipt, 

or some other proof -- Vasarely simply did not fulfill her 

requirement to show a breach of depositum contract claim. 

In response, Vasarely points out that she had an 

inventory of all of her artwork, and that she specifically 

inventoried the artwork that was packed in the Chicago condominium 

under her supervision. She further draws the court's attention to 

the inventory of artwork that was prepared by the Cook County court 
-23- 

while her paintings were in its custody. But, again, she does not 

show which pieces of artwork were put into the containers deposited 

with Rojas. The fact that she may have had a general inventory of 

all of her artwork at some unspecified time, and that the Cook 

County court made an inventory of the artwork in its possession 

during prior litigation, does not prove which items were 

specifically packed in those five containers that Rojas received 

in Puerto Rico. Although Vasarely claims that Rojas should bear 

the fault for failing to inventory the artwork from the Chicago 

storages going into the five containers, the district court did 

not clearly err in finding that she did not ask Rojas to prepare 

such an inventory. 

As Vasarely failed to prove what items she deposited 

with Rojas, we cannot find that the district court clearly erred 

in its conclusion that she had failed to prove her breach of 

depositum contract claim. 

2. Motions for writ of replevin

 Next, Vasarely alleges that, by denying her motions for 

writ of replevin, the district court "validated the theft of 

Vasarely's artwork." She specifically points to six pieces of 

artwork that were not returned to her, claiming that the court 

"failed to see that the[y were] removed under . . . false excuses." 
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 a. Pompari and Quasar-Zett

 Vasarely challenges the district court's conclusion that 

she gave Rojas these two artworks as payment for completing tasks 

on her behalf in Paris, claiming there to be no evidence to support 

this finding. She instead contends that the evidence shows that 

Rojas went to Paris for his own purposes and then, after taking 

the paintings without authorization, made up this story as an 

afterthought. But this was a factual finding based on the district 

court's credibility determinations, and is supported by the 

record. It is not clearly erroneous. 

The district court heard Vasarely's and Rojas's 

testimonies and found Rojas's testimony that Vasarely agreed to 

give him these paintings to be the more credible of the two. The 

"[d]istrict court determinations of credibility are . . . entitled 

to great deference." Jennings v. Jones, 587 F.3d 430, 444 (1st 

Cir. 2009). The district court could have reasonably concluded 

that, while extravagant, Vasarely gave Rojas the paintings in 

exchange for supervising a complex move that took approximately 

five days to complete. The record contains emails between 

Vasarely, Rojas, and the movers in France, in which Vasarely warns 

Rojas to be extremely careful with the moving of the paintings as 

"the price to pay for [] mistakes are, generally, very heavy." In 

these emails, Rojas inquires about the process of the move and 
-25- 

discusses its cost with the movers. Rojas testified, and the court 

believed, that he had to locate and ship several dozen paintings 

amongst the hundreds of valuable paintings in storage, had to 

coordinate with a shipping company to move hundreds of paintings 

from one storage facility to another, and did various other errands 

for Vasarely while he was in France. Even if Rojas went to Paris 

on his own accord, as Vasarely claims, this does not preclude an 

agreement between the parties regarding payment for work performed 

while he was there. 

Pursuant to Puerto Rico law, verbal contracts are valid 

and enforceable. See P.R. Laws Ann. tit. 31, § 3451. Based on 

the district court's finding, there was a verbal agreement between 

the parties that Vasarely would give Rojas these paintings and 

their certificates of authenticity in exchange for his work on her 

behalf in Paris. Therefore, despite the lack of a written 

contract, the district court did not err in finding the verbal 

agreement between the two parties was binding and that Pompari and 

Quasar-Zett belonged to Rojas. And, because a petitioner must 

prove that they own an item in order to recover it through 

replevin, see id. at §§ 1111, 1479, and Vasarely failed to prove 

that she owned Pompari and Quasar-Zett at the critical time, the 

district court properly denied her motions for writ of replevin as 

to these two paintings. 
-26- 

b. Grilles-II, Helios-Neg, Tridim-S, and Tsoda 

 Vasarely avers that the district court improperly found 

the 2009 Settlement Agreement, in which Rojas gave these paintings 

to Vasarely, to be invalid, while erroneously enforcing the Chicago 

Agreement, in which she recognized that Dr. Rojas was the true 

owner of the paintings. She claims that the district court's 

rejection of the validity of the 2009 Settlement Agreement was 

contrary to the Puerto Rico Civil Code. Meanwhile, the Chicago 

Agreement, she says, was never meant to transfer ownership of these 

paintings to Dr. Rojas, but instead was created to allow him to 

intervene falsely in the Chicago litigation to remove the artwork 

from the court's custody. Therefore, she offers, because the 

Chicago Agreement was a "simulated agreement" used for "illicit 

purposes," it is void. 

 Although the district court did question the legitimacy 

of the 2009 Settlement Agreement, it did not reject the agreement's 

validity, as Vasarely claims it did. Rather, the district court 

assumed the validity of the agreement but found that it had been 

superseded by the Chicago Agreement. There was no error in this 

conclusion. The Chicago Agreement complies in all respects with 

the Puerto Rico Civil Code's requirements for a valid contract. 

See P.R. Laws Ann. tit. 31, § 3391. The district court's disbelief 

of Vasarely's story regarding the illicit purpose of the Chicago 
-27- 

Agreement is supported by the evidence, including Dr. Rojas's 

testimony, as well as a letter that Vasarely wrote to Dr. Rojas 

months before the Chicago Agreement was signed recognizing him as 

the owner of the paintings. Likewise, the Chicago Agreement 

clearly stated that Dr. Rojas was the owner of such paintings. 

Further, the district court did not clearly err in 

concluding that the Chicago Agreement, signed on September 22, 

2010 superseded the 2009 Settlement Agreement. Vasarely failed to 

present any evidence showing that she acquired title to the 

paintings after the Chicago Agreement was signed. The district 

court rightly weighed this against Vasarely's claim that she is 

the owner of the paintings and found that she had transferred 

ownership of those paintings back to Dr. Rojas. Therefore, as 

with Pompari and Quasar-Zett, Vasarely could not replevy artwork 

belonging to someone else. There was no error in the district 

court's denial of her motions for writ of replevin. 

3. The Chicago condominium 

 Marching on, Vasarely claims that the district court's 

dismissal of her breach of contract counterclaim was erroneous, 

and that the court improperly imposed on her the burden to prove 

the exact loss or damage she suffered due to Rojas's sale of the 

Chicago condominium without an appraisal. Instead, she argues, 

because Rojas was the one who sold the property, and because he 
-28- 

"departed from the ordinary course of business in not obtaining an 

appraisal," the burden should have been placed on Rojas to prove 

his assertion that he sold the condominium at an adequate price. 

By placing the burden on her, says Vasarely, the district court 

required her to prove something –- the value of the real 

estate -- that was impossible for her to prove because of Rojas's 

negligence in failing to get an appraisal. In addition, she 

maintains that the three years that elapsed between when she 

rejected the prior offers for being too low and when the condo was 

eventually sold is irrelevant, and what matters is that she was 

unwilling to sell for $1.1 million. Therefore, it was clear that 

she also would not have been willing to sell for the price at which 

Rojas sold it, $1.075 million, and his decision to do so denied 

her the right to sell her property at whatever price she deemed 

reasonable.

When a party is "guilty of fraud, negligence or delay" 

in complying with its contractual obligations, the aggrieved party 

is entitled to "losses and damages" caused by that fraud, 

negligence, or delay. P.R. Laws Ann. tit. 31, § 3018. However, 

the court will not assume fraud, and he or she who claims it must 

"establish its existence . . . by a preponderance of the evidence." 

Portugues-Santana v. Rekomdiv Int'l, 657 F.3d 56, 61 (1st Cir. 

2011); see id. (citing González Cruz v. Quintana Cortés, 145 P.R. 
-29- 

Dec. 463, 471 (P.R. 1998) ("The general rule that fraud is not 

assumed only means that he who claims it must prove it to a 

reasonable certainty, that is, with a preponderance of 

evidence . . . .")). 

 Vasarely's argument that it was Rojas's burden to show 

that he had sold the condo at or above the market value presupposes 

a finding that Rojas's act of selling the condominium for $1.075 

million was fraudulent and done in bad faith. Vasarely argued as 

much in her motion for partial summary judgment, but the district 

court supportably rejected summary disposition as to this issue. 

Thus, as this was Vasarely's breach of contract counterclaim, it 

remained her burden to prove by a preponderance of the evidence 

that Rojas had committed fraud in the sale of her condo without 

getting an appraisal. See id. Having failed to show any loss in 

not getting an appraisal, the district court was correct in 

dismissing her claim. 

The record illustrates that Vasarely did not provide any 

evidence showing that Rojas had sold the condominium for below 

market value, resulting in a loss to Vasarely. Vasarely's only 

evidence that the property was undersold was the cost of the 

condominium and the estimated cost of renovations nearly a decade 

prior to the sale. However, as Vasarely concedes in her appellate 

brief, "the value of a piece of real estate is not necessarily 
-30- 

equal to its purchase price from a decade prior plus the value of 

its renovations." 

Vasarely argues that there is no way that she could have 

met this burden, but does not state why she could not have 

presented other information aside from an appraisal to show an 

approximate value of the real estate at the time that it was sold. 

It would not have been difficult to provide comparable real estate 

data showing the price per square foot of similar condos in that 

area at the relevant time, and extrapolate from that information 

an approximate market value of the Chicago condominium. Cf. Sawyer 

Bros., 887 F.3d at 32 (stating that under maritime law "[c]ourts 

determine fair market value based on the price paid for comparable 

property on the open market"); Roberts v. City of Woonsocket, 575 

F.2d 339, 341 (1st Cir. 1978) (finding witness appraisal of 

property that was subjected to city's amended zoning ordinance was 

"not supported by data of sales of any comparable property"); 

Bailey v. United States, 325 F.2d 571, 572 (1st Cir. 1963) ("Th[e] 

court is definitely committed to the proposition [that] . . . 

usually the best evidence of value is the prices at which 

comparable lands in the vicinity [are sold] . . . at about the 

time of the taking."). Instead, Vasarely relied on her claim that 

Rojas acted in bad faith by selling her property without an 

appraisal, period, but did not attempt to show any losses or 
-31- 

damages from the sale, as was required to prove her asserted breach 

of contract claim. See P.R. Laws Ann. tit. 31, § 3018. Given 

that Vasarely did not provide any evidence to substantiate her 

claimed loss of $335,000, the district court did not err in 

dismissing this counterclaim. 

4. Contractual damages for delayed return of artwork 

 a. Contract Termination Date

Clause 11 of the 2010 Artwork Agreement stated that 

either party could terminate the agreement for reasonable cause or 

for breach of contract with eight days' notice. The district court 

found that Vasarely had provided sufficient notice of her intent 

to terminate their agreement as a result of Rojas's breach on 

May 17, 2013, the date on which Vasarely wrote Rojas an email 

stating that, after months of asking him to return her artwork, 

the two were "not going to have any business until everything is 

clarified with attorneys and all my works of art are in my 

possession." Vasarely disagrees with the district court's finding 

as to the date that she gave sufficient notice of her intent to 

terminate the contract, instead claiming that she gave sufficient 

notice in her email to Rojas on April 7, 2013. She points to the 

district court's statement during trial that it "seems . . . 

pretty clear[] that she no longer wants to work with him" in 

relation to her April 7 email, in which she stated "I no longer 
-32- 

want to work with you." 

While there is no specific legal requirement in Puerto 

Rico as to the manner in which an agreement must be terminated, 

generally, a notice of a contract termination "must be clear, 

definite, explicit, and unambiguous." Jasty v. Wright Med. Tech., 

Inc., 528 F.3d 28, 36 (1st Cir. 2008) (applying Massachusetts law) 

(quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 

223 (1st Cir. 2004)). After hearing all of the testimony and 

viewing all of the evidence, and placing that evidence in the 

context of the relationship between the two parties, the district 

court's finding that the notice of contract termination was not 

sufficiently clear until May 17, 2013, is supported by the evidence 

in the record. 

While Vasarely argues that she was perfectly clear when 

she stated that "I no longer want to work with you anymore" in her 

April 7, 2013 email, the district court also had before it a number 

of emails exchanged between the two parties before and after 

April 7, 2013, as well as Rojas's testimony that it was Vasarely's 

modus operandi to send emails such as this one periodically -- 

insulting him and his family and claiming that she no longer wanted 

to work with him -- yet continuing to work with him after the email 

was sent. Like those previous emails described by Rojas, the 

April 7, 2013 email from Vasarely consisted of repeated insults of 
-33- 

both Rojas and his wife, stating amongst other things that "without 

me, you are nothing," and that "[y]ou work 4 hours a day, 4 days 

a week, you slack off, you turn, you take care of the children and 

the home while madam spends, spends my money, goes out, has fun, 

. . . if it weren't so pathetic, it would be rather amusing." 

Rojas further testified that after receiving the April 7, 2013 

email from Vasarely, they kept working together -- including taking 

a trip to Miami on April 15, 2013, to meet a potential client and 

traveling together to the Dominican Republic on May 1, 2013, to 

get Vasarely's visa and meet more clients. Further, in an email 

that Vasarely sent Rojas on May 14, 2013, she criticized him for 

not working, writing that "[y]esterday you did not work, today, 

either [sic] . . . . You were always like that and it not at your 

age . . . that you are going to change, [sic] you have so many 

distractions and constant personal errands that you simply cannot 

do other things." The evidence supports the district court's 

conclusion that, when taken in context of the parties' relationship 

and subsequent dealings, the April 7 email was not sufficient 

notice of termination. 

In finding that the May 17, 2013 email constituted 

sufficient notice, the district court noted that on May 16, 2013, 

Vasarely emailed Rojas that she would "cancel all pending projects" 

if she did not receive her artwork before 1:00 p.m. the following 
-34- 

day.9 The next day, in her May 17, 2013 email, Vasarely referenced 

her cause for terminating the agreement -- Rojas's breach of 

contract by keeping what she claimed to be unauthorized inventory 

-- and was clear that, as a result, she was "going to act as I 

told you." She further stated that "[w]e are not going to have 

any business until everything is clarified with attorneys and all 

my works of art are in my possession." Given this support from 

the evidence in the record, the district court did not clearly err 

in finding that Vasarely gave sufficient notice of her intent to 

terminate the 2010 Artwork Agreement on May 17, 2013. 

b. Modification of the penalty 

Upon official termination of the agreement, eight days 

after sufficient notice was given Clause 12 of the agreement 

provided that Inart had to return all works of art to Vasarely 

within forty-eight hours by depositing them in a storage facility 

of Vasarely's choice. If Inart did not return the artwork within 

forty-eight hours of termination, Inart would be fined $1,000 per 

day payable to Vasarely. As Vasarely gave sufficient notice of 

her intent to terminate the 2010 Artwork Agreement on May 17, 2013, 

the district court found that, pursuant to the agreement, the 

contract terminated eight days later, and then Rojas had two 

 

9 This statement from her May 16, 2013 email further indicates 

that Vasarely had not ended business dealings with Rojas. 
-35- 

additional days after that termination date, or until May 28, 2013, 

before the $1,000 daily fine began to accrue. It is undisputed 

that Rojas returned the artwork on February 7, 2014, 255 days 

later, and therefore the penal clause of the Agreement called for 

a $255,000 fine.

As an initial matter, we address Vasarely's criticism of 

the district court's inclusion of an eight-day termination notice 

window, which she says was done "to minimize the fines for 

[Rojas]." We easily dispose of this charge. Clause 11 of the 

2010 Artwork Agreement unmistakably states that the contract "can 

be terminated for reasonable cause or for breach of contract, with 

eight (8) days['] notice." Thus, the district court was correct 

in including an eight-day termination notice window before finding 

that Clause 12 was triggered. As Vasarely gave sufficient notice 

to terminate the contract on May 17, the 2010 Artwork Agreement 

was terminated on May 25, 2013. Pursuant to Clause 12, Rojas then 

had forty-eight hours from contract termination to return the 

artwork.

But the district court did not award Vasarely $255,000. 

Although the court found the penalty award appropriate in light of 

the estimated value of the artwork that Rojas withheld, the court 

reasoned that it was proper to toll the accrual of the daily 

penalty from the day that Rojas brought the underlying lawsuit on 
-36- 

October 9, 2013. The court found this tolling justified as Rojas 

had moved to attach the artwork in the litigation on the day that 

they filed suit and this attachment issue was litigated over 

several days of hearings and ultimately denied by the court on 

January 30, 2014. In denying the motion, the court gave Rojas 

until February 10, 2014, to return all of the artwork to Vasarely. 

As Rojas returned the artwork on February 7, 2014, the district 

court modified the penalty accordingly to reflect the 134 days 

that passed between May 28, 2013, and October 9, 2013. 

Vasarely states that the district court erroneously 

"took on the role of Rojas'[s] counsel" when it sua sponte modified 

the penal clause, despite the fact that this equitable remedy was 

never raised by Rojas and was therefore waived. Noting that penalclause modifications should only be utilized with "great caution 

and notorious justification," Jack's Beach Resort, Inc. v. Tourism 

Dev. Co., 12 P.R. Offic. Trans. 430, 438 (P.R. 1982), she says 

that the fact that attachment hearings were proceeding while Rojas 

kept her artwork is not an extraordinary circumstance for 

modification; rather, it was a self-created circumstance by Rojas.

The district court acted within its discretion to modify 

the penalty award for Rojas's delinquent return of Vasarely's 

artwork. See id. at 437-40; see, e.g., In re Alvarez, 

473 B.R. 853, 861-63 (B.A.P. 1st Cir. 2012). Even though the court 
-37- 

in Jack's stated that the "equity must be prayed for," the Jack's 

court found the debtor's mere objection to foreclosure proceedings 

was sufficient to trigger the lower court's authority to then 

exercise its equitable powers. 112 P.R. Offic. Trans. at 439. 

Similarly, here, Rojas's allegation that he did not breach the 

2010 Artwork Agreement and that a penal award was not justified 

was equally sufficient to "activate the court's equitable 

intervention." Id. Therefore, the district court did not abuse 

its discretion in sua sponte taking up the issue of penalty 

modification. 

Here, the resulting unfairness of a penalty award 

accumulating while Rojas's motion for attachment was being 

litigated was sufficient justification for the district court to 

exercise its "broad but not unfettered" discretion to reduce the 

penal award. In re Alvarez, 473 B.R. at 863. The very issue of 

whether the pieces of art needed to be returned immediately to 

Vasarely was the subject of Rojas's motion, and therefore it was 

well within the discretion of the district court, in its 

"balanc[ing] between the punitive and remunerative functions of 

penal clauses," id., to toll the accrual of the daily penalty from 

the day the motion was initially filed, October 9, 2013. We find 

that the district court did not abuse its discretion in modifying 

the penalty for Rojas's failure to timely return Vasarely's artwork 
-38- 

to $134,000. 

5. Moral Damages 

 We reach Vasarely's last claim of error -- that the 

district court did not adequately assess the moral and mental 

damages that she suffered as a result of Rojas's actions. Under 

Puerto Rico law, "a court may award moral damages for the mental 

and emotional suffering of a party which follows as a foreseeable 

consequence of a defendant's acts or omissions." Gonzalez-Marin 

v. Equitable Life Assur. Soc. of the U.S., 845 F.2d 1140, 1148 

(1st Cir. 1988). A plaintiff must prove: "(1) an act or omission 

constituting fault or negligence; (2) injuries; and (3) a causal 

connection between the act or omission and the injuries." In re 

Caribbean Petroleum, LP, 561 F. Supp. 2d 194, 199 (D.P.R. 2008) 

(citing Bacó v. Almacén Ramón Rosa Delgado, Inc., 151 P.R. Dec. 

711, 725 (P.R. 2000)). 

 After finding that Rojas acted with both fault and 

negligence in failing to return Vasarely's artwork and the keys to 

her storage units, and finding that this caused Vasarely extreme 

stress and anxiety that exacerbated her stress-related illness, 

the district court awarded Vasarely $5,000 for mental anguish. 

Vasarely claims that the district court abused its discretion by 

disregarding testimony of other damages that she suffered, 

including that Rojas: deprived her of her Chicago properties and 
-39- 

"took away her visa, her artwork, her car, her web sites, her 

health insurance, her reputation, her last name, the good will of 

her artwork, her physical integrity, and her peace of mind." She 

urges this Court to modify this damages award to compensate her 

for the full amount of the fine under Clause 12 of the 2010 Artwork 

Agreement, accounting for an April 7, 2013 termination date.

 Vasarely bases her arguments on stipulated facts 

contained in the parties' Joint Pretrial Order, which include that 

during the ongoing litigation, Rojas filed a criminal complaint 

against Vasarely for illegal misappropriation of a Mercedes car 

that she alleged belonged to her, and that Rojas cancelled her 

health insurance policy and notified her a month later. While 

these agreed-upon facts prove that Rojas took certain actions, 

Vasarely provided no evidence before the district court that these 

actions were harmful or even wrong. The district court did not 

need to individually assess each conclusory allegation of 

wrongdoing for which Vasarely provided no support. Furthermore, 

Vasarely did not prove that any of Rojas's actions directly caused 

her any sufferings beyond the anxiety and stress that the district 

court already considered. 

Vasarely further argues that the district court only 

considered damages that she suffered until October 2013, when this 

underlying litigation began. She posits that the district court 
-40- 

needlessly disregarded ongoing damages that Rojas caused her while 

the litigation was pending. But, as Vasarely correctly 

acknowledges, the district court has wide discretion in 

determining the appropriate award for moral damages, see GonzalezMarin, 845 F.2d at 1148-49, and may determine the relevant period 

of injury suffered from the defendant's actions that is supported 

by the record, see T & S Serv. Assocs., Inc. v. Crenson, 666 F.2d 

722, 728 (1st Cir. 1981). We see no basis for disturbing the 

district court's award based on the record before us. 

III. CONCLUSION 

 We linger no further. The record reflects that the 

district court's factual findings are supported by the evidence, 

that it properly applied the law to the facts, and that it did not 

abuse its discretion where such discretion was afforded it. 

Accordingly, the district court's judgment is affirmed.