Rojas-Buscaglia et al v. Taburno-Vasarhelyi

Filing 408

OPINION AND ORDER re 364 Report and Recommendation and re 312 Motion for Summary Judgment. The Court ADOPTS IN PART, MODIFIES IN PART, and REJECTS IN PART the magistrate judge's findings and recommendations. The Court GRANTS IN PART and DE NIES IN PART defendant Vasarely's motion for partial summary judgment. There being no just reason for delay, partial judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 07/07/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS ROJAS-BUSCAGLIA, et al.,
Plaintiffs,
v.

Civil No. 13-1766 (FAB)

MICHELE TABURNO-VASARHELYI,
a/k/a MICHELE TABURNO-VASARELY,
Defendant.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is United States Magistrate Judge Camille L.
Velez-Rive’s Report and Recommendation (“R & R”) (Docket No. 364),
recommending that defendant Michele Taburno-Vasarely (“Vasarely”)’s
motion for partial summary judgment (Docket No. 312) be granted in
part and denied in part, as follows:
1.
granted on Vasarely’s breach of the 2010 Artwork
Agreement counterclaim, but that issues of fact remain as
to the amount of damages (see sections II.A. and .B.,
infra.);
2.
granted
on
plaintiffs’
claims
of
tortious
interference with plaintiffs’ sales agreements with
Campolieto and Leyba, but that issues of fact remain as
to the amount of damages for the Campolieto sales (see
section II.C., infra.);
3.
denied on plaintiffs’ claim seeking certificates of
authenticity for six artworks and related damages (see
section II.D., infra.);
4.
denied on plaintiffs’ defamation claim (see sections
II.E., infra.);
5.
granted on plaintiffs’ breach of employment
agreement claim (see sections II.F., infra.); and

Civil No. 13-1766 (FAB)

2

6.
granted on Vasarely’s counterclaims for breach of
contract related to the Chicago studio and the Chicago
condo, but that issues of fact remain as to the amount of
damages (see sections II.G. and .H., infra.)
(Docket No. 364 at pp. 50-51.)
Defendant

Vasarely

and

plaintiffs

Luis

Rojas

Buscaglia

(“Rojas”), Inart Corp. (“Inart”), and Inart Services, Inc. (“Inart
Services”)1 filed objections to the R & R (Docket Nos. 367, 387)
and opposed each other’s objections (Docket Nos. 390, 392).
I.

STANDARD OF REVIEW

A district court may refer a pending dispositive motion to a
magistrate judge for a report and recommendation.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1).

See 28 U.S.C.

Any party may file

written objections to the report and recommendation, and any party
that

files

a

timely

objection

is

entitled

to

a

de

novo

determination of those portions of the report to which specific
objection is made.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72(b)(2)-(3). In conducting its review, the district court is free
to “accept, reject, or modify, in whole or in part, the findings or
recommendations

made

by

the

magistrate

judge.”

28

U.S.C.

§ 636(b)(1); accord Fed. R. Civ. P. 72(b)(3).

1

Plaintiff Rojas is the sole owner, director, and officer of
corporate plaintiffs Inart and Inart Services. (Docket No. 308 at
¶ 1; Docket No. 333-1 at ¶ 1.)

Civil No. 13-1766 (FAB)

3
II.

A.

DISCUSSION

Defendant Vasarely’s Counterclaim: Breach of the 2010 Artwork
Agreement
Defendant

Vasarely

raised

a

counterclaim

alleging

that

plaintiffs breached a contract signed by Vasarely and plaintiff
Rojas (“the 2010 Artwork Agreement”) pursuant to which plaintiff
Inart would sell certain artwork belonging to Vasarely.
No. 35 at pp. 29-33.)

(Docket

Vasarely moved for summary judgment.

(Docket No. 312 at pp. 9-16.)
The magistrate judge recommended that summary judgment be
granted in Vasarely’s favor, but found that issues of fact remain
as to the amount of damages owed for plaintiffs’ breach.
No. 364 at pp. 31-36.)

(Docket

Defendant Vasarely and plaintiffs objected

to the magistrate judge’s recommendation and findings, (Docket No.
367 at pp. 1-6; Docket No. 387 at pp. 2-5), and responded to each
other’s objections, (Docket No. 390 at pp. 2-3; Docket No. 392 at
pp. 3-7).
After

independently

examining

the

record,

and

upon

consideration of the parties’ arguments and objections, the Court
ADOPTS

IN

magistrate

PART,

MODIFIES

judge’s

counterclaim.

IN

findings

PART,
and

and

REJECTS

IN

recommendations

PART
on

the
this

The Court proceeds to analyze the alleged breaches

for which Vasarely seeks summary judgment and damages.

Civil No. 13-1766 (FAB)
1.

4

Nonpayment for Artwork Sales - Leyba
In

2012

and

2013, plaintiffs

Rojas

and

Inart2

sold

artwork belonging to defendant Vasarely to Herman Leyba (“Leyba”).
Leyba is an art dealer that does business through two corporations,
Ideobox and Artley.
p. 12.)3

(Def.’s Ex. 1 at p. 233; Def.’s Ex. 2 at

After purchasing artwork from plaintiffs at a price that

Leyba calls the “base price,” Leyba resold the artwork to clients
at a price that he calls the “sale price,” which is higher than the
“base price” because it includes Leyba’s commission.
Ex. 11.)

(Def.’s

The following table shows the “sale prices,” “base

prices,” and amounts Rojas paid Vasarely for the artwork sold to
Leyba.

2

For simplicity, the Court refers to Rojas and Inart as
“plaintiffs” in this subsection.
The third plaintiff in this
action - Inart Services - was not involved in the Leyba sales.

3

Defendant Vasarely submitted eighty-eight exhibits in support of
her motion for summary judgment. The exhibits are filed at Docket
Nos. 308-311. For simplicity, the Court cites to the exhibits as
they are originally numbered by the defendant.

Civil No. 13-1766 (FAB)

5
TABLE 14
Amount
Client Paid
Leyba
(“Sale Price”)

Amount
Leyba Paid
Plaintiffs
(“Base Price”)

Amount
Plaintiffs
Paid Vasarely

$1,226,000

$1,075,000

$860,000

Koska Nagy (or Koska Neg)

$420,000

$380,000

$304,000

Tri-Veg & Zebra (or Zebres)

$122,000

$100,500

$63,900

Separam, Emotta, Bela, &
Vega

$460,500

$390,500

$312,400

Triton

$448,000

$390,000

$0

$2,676,500

$2,336,000

$1,540,300

Artwork
Boo, Tekers MC, Kerhon,
Egsin, Axon, Moulin, & Color
Print Vega (2)

TOTAL

Defendant Vasarely claims that plaintiffs have not paid
her in full for the artwork sold to Leyba and have thus violated
clause 7 of the 2010 Artwork Agreement.
12.)

(Docket No. 312 at pp. 10-

Clause 7 provides in part as follows:
Payments of the sale price for any Artwork under this
agreement shall be made by the purchaser as follows: 80%
to Vasarely or her corporation and 20% to INART. Such
payment of 20% of the sales price directly by the client
constitutes the sole payment and/or commission and/or
compensation to INART.

(Def.’s Ex. 3 at ¶ 7.)

Vasarely alleges three breaches of

clause 7, which the Court addresses in turn.
First, defendant Vasarely claims that plaintiffs breached
clause 7 of the contract by not paying her the full 80% of the
“base price” for the sale of Tri-Veg and Zebra. Vasarely permitted

4

See Def.’s Ex. 1 at pp. 381-83; Def.’s Ex. 2 at p. 37; Def.’s
Ex. 11; Def.’s Ex. 15 at ¶¶ 12, 15-20.

Civil No. 13-1766 (FAB)

6

plaintiff Rojas to deduct $16,500 from her portion of the proceeds
of this sale so he could buy a diamond ring for her, but Vasarely
has

not

received

the

ring.

(Def.’s

Ex.

15

at

¶¶

16-20.)

Plaintiffs did not rebut this argument in their opposition to
defendant’s motion for summary judgment. See Docket No. 333 at pp.
4-6. Nor did plaintiffs duly contest these facts in their opposing
statement of material facts.

See Docket No. 333-1 at ¶ 30.5

There

is therefore no genuine dispute that plaintiffs failed to pay
Vasarely 80% of the “base price” for the sale of Tri-Veg and Zebra,
and that plaintiffs owe Vasarely the diamond ring or its value
of $16,500.

The Court thus GRANTS defendant Vasarely’s motion for

summary judgment as to the first breach.
Second,

defendant

Vasarely

claims

that

plaintiffs

breached clause 7 of the contract by not giving Vasarely 80% of the
“base price” for the sale of Triton.

It is uncontested that

plaintiffs received $390,000 from Leyba for the sale of Triton.
See Def.’s Ex. 18A-C.

At the start of this litigation, plaintiffs

deposited 80% of that amount, or $312,000, with the Clerk of the
Court.

See Docket Nos. 11-12.

Because no dispute remains as to

this part of Vasarely’s counterclaim, the Court GRANTS Vasarely’s

5

Plaintiffs proffer in their opposing statement of material facts
that Rojas instructed the seller of the diamond ring to finalize
the ring’s sale directly with Vasarely, and that Rojas never
received the ring or a refund from the seller. (Docket No. 333-1
at p. 9.) The evidence that plaintiffs point to, however, in no
way substantiates these allegations. See Def.’s Ex. 16.

Civil No. 13-1766 (FAB)

7

motion for summary judgment as to the second breach.

The $312,000

shall be dispersed to defendant Vasarely.
Third, defendant Vasarely claims that plaintiffs breached
clause 7 of the contract by paying her 80% of the “base price” (the
price Leyba paid plaintiffs) instead of 80% of the “sale price”
(the price clients paid Leyba) for the Leyba sales.

Defendant

Vasarely accordingly seeks damages in the amount of $272,400, which
is the difference between 80% of the sum of the “sale prices”
($2,141,200)6 and 80% of the sum of the “base prices” ($1,868,000)7.
Clause 7 of the contract provides that “[p]ayments of the
sale price for any Artwork under this agreement shall be made by
the purchaser as follows:
20% to INART.”

80% to Vasarely or her corporation and

(Def.’s Ex. 3 at ¶ 7.)

Vasarely argues that the

term “sale price” in clause 7 should be interpreted as “the price
paid by the customer at the time of the sale.”
p. 10 (emphasis added).)

(Docket No. 312 at

Because Leyba is not a customer but an

art dealer who immediately resells artwork to a final customer,
Vasarely argues, clause 7 entitles her to 80% of the price paid by
the final customer.

Id. at pp. 10-11.

6

Clients paid Leyba a total sum of $2,676,500 for Vasarely’s
artwork.
See supra, Table 1.
Eighty percent of $2,676,500 is
$2,141,200.
7

Leyba paid plaintiffs a total sum of $2,336,000 for Vasarely’s
artwork.
See supra, Table 1.
Eighty percent of $2,336,000 is
$1,868,800.

Civil No. 13-1766 (FAB)

8

The initial question of whether the term “sale price” in
clause 7 is ambiguous is a question of law.

See Torres Vargas v.

Santiago Cummings, 149 F.3d 29, 33 (1st Cir. 1998).

The Court

looks to Puerto Rico law for the standard for determining whether
a contract term is ambiguous.

See Adria Int’l Grp., Inc. v. Ferre

Dev., Inc., 241 F.3d 103, 109 (1st Cir. 2001).

Article 1233 of the

Puerto Rico Civil Code provides:
If the terms of a contract are clear and leave no doubt
as to the intentions of the contracting parties, the
literal sense of its stipulations shall be observed.
If the words should appear contrary to the evident
intention of the contracting parties, the intention shall
prevail.
P.R. Laws Ann. tit. 31, § 3471.

A contract term is “clear” when it

is “‘lucid enough to be understood in one sense alone, without
leaving

any

room

interpretation.’”

for

doubt,

controversies

or

difference

of

Home Ins. Co. v. Pan Am. Grain Mfg. Co., 397

F.3d 12, 16 (1st Cir. 2005) (quoting Heirs of Ramirez v. Superior
Court, 81 P.R.R. 347, 351 (1959)).

The terms of a contract “should

be interpreted in relation to one another, giving to those that are
doubtful the meaning which may appear from the consideration of all
of them together.”

P.R. Laws Ann. tit. 31, § 3475.

The Court finds that as a matter of law, ambiguity exists
as to the meaning of “sale price” in clause 7 of the 2010 Artwork
Agreement.

No provision of the contract contemplates involvement

or collaboration with other art dealers.

The term “sale price”

Civil No. 13-1766 (FAB)

9

therefore leaves room for a difference of interpretation: if
plaintiffs sold artwork “to” Leyba, then the sale price would be
the

price

Leyba

paid

plaintiffs;

if

plaintiffs

sold

artwork

“through” Leyba, then the sale price would be the price clients
ultimately paid Leyba.
The Court’s analysis, however, does not end there.

If a

contract term in ambiguous, “extrinsic evidence is admissible to
prove the parties’ intent, and summary judgment is appropriate only
if the undisputed extrinsic evidence of intent ‘supports only one
of the conflicting interpretations.’” Wells Real Estate Inv. Trust
II, Inc. v. Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 54 (1st
Cir. 2010) (quoting Adria, 241 F.3d at 111).

To determine the

contracting parties’ intent, “attention must principally be paid to
their acts, contemporaneous and subsequent to the contract.”

P.R.

Laws Ann. tit. 31, § 3472.
As evidence of intent, defendant Vasarely submits her own
affidavit in which she states as follows:
In all my forty years, approximately, involved in the
world of art, I had never heard of any such concepts as
“base price” and “sale price”.
The sale price of an
artwork is one: the price that the final customer pays.
In the world of art when one broker brings another broker
to a deal, they split their commission in two.
(Def.’s Ex. 16 at ¶ 13.)
In his own affidavit and during an attachment hearing
before the magistrate judge, plaintiff Rojas stated that Vasarely
knew “from the beginning” that Leyba would resell the artwork and

Civil No. 13-1766 (FAB)

10

make his own profit, and that Vasarely understood that an agreement
was reached pursuant to which Leyba’s profit would be capped at 15%
of the price he sold the artwork to clients.
at ¶ 12; Docket No. 166 at pp. 20-23.

See Docket No. 333-2

Rojas also stated that

Vasarely never claimed that her 80% should be calculated from
Leyba’s resale price until after the present lawsuit was filed.
(Docket No. 333-2 at ¶ 12.)
Considering this evidence, the Court finds that there
remains a genuine dispute as to which price the parties intended to
be the basis for Vasarely’s 80% profit. The Court therefore DENIES
defendant

Vasarely’s

motion

for

summary

judgment

as

to

her

counterclaim that she is owed 80% of the difference between the
price clients paid Leyba and the price Leyba paid plaintiffs.
2.

Nonpayment for Artwork Sale - Campolieto
In August 2012, plaintiff Inart Services (represented by

plaintiff

Rojas)

belonged

to

sold

the

defendant

artwork
Vasarely,

titled
to

Gestalt-Rugo,
Horacio

(“Campolieto”) pursuant to an installment agreement.

which

Campolieto
(Def.’s

Ex. 35.) The installment agreement set the sale price at $390,000,
which Campolieto would pay as follows: (1) $60,000 down payment,
(2) transfer of a car valued at $60,000, (3) conveyance of an
artwork by Melvin Martinez valued at $20,000, and (4) twenty-five
monthly payments of $10,000.

Id.

Civil No. 13-1766 (FAB)

11

Defendant Vasarely claims that plaintiffs breached the
2010 Artwork Agreement by not paying her the full 80% of the sale
price of Gestalt-Rugo.

There is no genuine dispute that Vasarely

was to receive 80% of the sale price of Gestalt-Rugo and that
plaintiffs were to earn 20% of the sale price as commission.

See

Def.’s Ex. 1, pp. 291-93 (plaintiff Rojas’s deposition in which he
states that 80% of the Gestalt-Rugo sale corresponds to Vasarely);
Docket No. 2 at p. 9 (plaintiff Rojas’s complaint in which he
states that plaintiffs would receive 20% commission on the sale of
Gestalt-Rugo).

Thus,

plaintiffs

were

to

receive

$78,000

in

commission.8
Regarding payments, there is a genuine dispute as to who
received what amounts from the initial $60,000 down payment.
Vasarely attests that she received $8,000 and that Rojas kept
$52,000.

(Def.’s Ex. 15 at ¶ 26.)

Rojas testifies that he and

Vasarely made an accounting together upon receipt of the $60,000,
and that Vasarely received everything that corresponded to her 80%.
(Def.’s Ex. 1 at pp. 293-94.)

There is no genuine dispute,

however, as to the following facts:
1.

2.

8

The car valued at $60,000 is in Rojas’s name and
was never transferred to Vasarely. (Def.’s Ex. 1
at pp. 305-08.)
The artwork by Melvin Martinez valued at $20,000 was
given to Vasarely. (Docket No. 118.)

The sale price of Gestalt-Rugo was $390,000.
$390,000 is $78,000.

Twenty percent of

Civil No. 13-1766 (FAB)
3.

From October 2012 to April 2013, Campolieto paid
Rojas $70,000 in monthly payments, from which Rojas
gave Vasarely $56,000 and kept $14,000.9

4.

12

In June 2013, Campolieto paid Rojas $16,000, and
Rojas kept the full amount.
(Def.’s Ex. 1 at
p. 303; Docket No. 157 at p. 158.)
Thus, there is no dispute that plaintiff Rojas has kept

at least $90,000 in commission from the Gestalt-Rugo sale,10 which
is $12,000 more than the $78,000 he was entitled to receive in
commission.11

The Court therefore GRANTS defendant Vasarely’s

motion for summary judgment as to her counterclaim that plaintiffs
failed to pay her the full 80% of the sale price of Gestalt-Rugo.
Plaintiffs Rojas and Inart Services owe Vasarely at least $12,000,
and whether they owe her more will be determined at trial.12
3.

Failure to Return Artwork After Contract Termination
In an email to Rojas dated April 7, 2013, defendant

Vasarely aired her personal and professional grievances with Rojas

9

For the seven-month period from October 2012 to April 2013,
Campolieto paid Rojas $10,000 per month, totalling $70,000.
(Docket No. 157 at pp. 157-58.) Each month, Rojas gave Vasarely
$8,000 and kept $2,000. (Def.’s Ex. 1 at p. 294.) Thus, in total,
$56,000 was given to Vasarely and $14,000 was kept by Rojas.

10

The total of $90,000 is the sum of $60,000 (the value of the car
that Rojas keeps in his name), $14,000 (the total Rojas kept from
the seven monthly payments), and $16,000 (the June 2013 payment).

11

Plaintiffs Inart Services and Rojas were entitled to 20% of the
sale price. Twenty percent of $390,000 is $78,000.

12

The partial judgment of $12,000 assumes that Rojas retains the
car valued at $60,000. If Rojas transfers the car to Vasarely,
then this amount will be recalculated at trial.

Civil No. 13-1766 (FAB)

13

and stated: “I no longer want to work with you, you don’t do
anything, other than abuse me and take away my fortune by Force
[sic].”

(Def.’s Ex. 45.)

In subsequent emails sent to Rojas in

May and July 2013, Vasarely requested that Rojas return all of
Vasarely’s artwork in his possession.

See Def.’s Exs. 47-49.

Nonetheless, Rojas did not return her artwork until February 7,
2014, when he did so pursuant to a Court order.
No. 118.

See Docket

Rojas still keeps in his possession an artwork titled La

Bergere, which he states was loaned to him by Vasarely before they
signed the 2010 Artwork Agreement.

(Def.’s Ex. 17 at p. 548.)

Defendant Vasarely now claims that her statement “I no
longer want to work with you” in the April 7th email constituted
her notice of termination of the 2010 Artwork Agreement.
No. 312 at p. 14.)

(Docket

Vasarely claims that Rojas breached clause 12

of the 2010 Artwork Agreement by not returning her artwork upon the
agreement’s termination.

Id.

Pursuant to the $1,000 per day fine

stipulated in clause 12, she seeks $306,000 for the 306 days that
elapsed between the date of her email (April 7, 2013) and the date
Rojas returned some of her artwork (February 7, 2014).

Id.

She

also seeks the return of La Bergere and an additional $1,000 per
day from February 8, 2014, until the day La Bergere is returned to
her.

Id.
Clause 11 of the 2010 Artwork Agreement provides that the

agreement can be terminated for reasonable cause or for breach of

Civil No. 13-1766 (FAB)

14

contract with eight days’ notice.

(Def.’s Ex. 3 at ¶ 11.)

Clause 12 provides that upon termination of the agreement, Inart
“shall return all the artworks to Vasarely by depositing them in a
storage facility to be designated by Vasarely,” and if the artworks
have not been returned within forty-eight hours of Vasarely making
available a suitable storage facility, Inart “shall be fined”
$1,000 per day, payable to Vasarely.

Id. at ¶ 12.

The 2010 Artwork Agreement does not prescribe how notice
of termination is to be provided.

Nor does either party suggest

that Puerto Rico contract law has a standard for sufficiency of
notice.

Generally, however, “notice must be clear, definite,

explicit, and unambiguous.”

Jasty v. Wright Med. Tech., Inc., 528

F.3d 28, 36 (1st Cir. 2008) (internal quotation marks and citation
omitted).

Here, a reasonable factfinder could find that the

statement “I no longer want to work with you” in the April 7th
email to Rojas failed to give plaintiffs notice that Vasarely was
terminating the 2010 Artwork Agreement, especially because the
email never mentions the agreement or Inart, and because the email
primarily concerns personal matters.

There is therefore a genuine

dispute on this counterclaim, and defendant Vasarely has not met
her summary judgment burden.

See Daniels v. Agin, 736 F.3d 70, 78

(1st Cir. 2013) (“A dispute is genuine if a reasonable factfinder
‘could resolve the point in favor of the non-moving party.’”
(quoting Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir.

Civil No. 13-1766 (FAB)
2013))).

15

The Court thus DENIES defendant Vasarely’s motion for

summary judgment as to her counterclaim that plaintiffs breached
the 2010 Artwork Agreement by not returning her artwork.
B.

Plaintiffs’ Claim: Breach of the 2010 Artwork Agreement
In Count I of their complaint, plaintiffs raised a breach of

contract claim alleging that defendant Vasarely breached the 2010
Artwork Agreement.

(Docket No. 2 at pp. 6-8.)

Vasarely moved for

summary judgment on this claim, arguing in a single paragraph that
pursuant to article 1077 of the Puerto Rico Civil Code, she is
excused from performance under the agreement because plaintiffs
materially breached the agreement.

See Docket No. 312 at pp. 16-

17. The magistrate judge did not make a specific recommendation on
this part of defendant’s motion.13
Article

1077

of

the

Puerto

Rico

Civil

Code

provides

in

relevant part:
The right to rescind the obligations is considered as
implied in mutual ones, in case one of the obligated
persons does not comply with what is incumbent upon him.
The person prejudiced may choose between exacting the
fulfilment of the obligation or its rescission, with
indemnity for damages and payment of interest in either
case.
P.R. Laws Ann. tit 31 § 3052.

Not every breach of a contractual

obligation gives rise to the right to rescind the contract pursuant

13

The magistrate judge recommended that Vasarely’s motion for
summary judgment on her breach of contract counterclaim be granted
in Vasarely’s favor, see Docket No. 364 at p. 50, but made no
recommendation as to Vasarely’s motion for summary judgment on
plaintiffs’ original breach of contract claim.

Civil No. 13-1766 (FAB)
to article 1077.
1991).

16

Dopp v. HTP Corp., 947 F.2d 506, 510 (1st Cir.

The unfulfilled obligation must have been “essential” to

the agreement and “reciprocal in nature.”

Dopp v. Pritzker, 38

F.3d 1239, 1243-44 (1st Cir. 1994).
Here, in arguing that she is entitled to recision of the 2010
Artwork

Agreement,

plaintiffs

defendant

“substantially

Vasarely

breached

the

posits

Agreement,

demand [that] Vasarely complies with it.”
p. 16.)

that

because

they

cannot

(Docket No. 312 at

Vasarely then cites to article 1077 and an assortment of

cases, but presents no analysis as to how or why article 1077
applies to plaintiffs’ contractual obligations. See Docket No. 312
at

pp.

16-17.

unfulfilled

Vasarely

obligations

reciprocal in nature.
litigation

allege

does

are

not

explain

essential

to

how

the

plaintiffs’

agreement

or

More importantly, the parties in this

numerous

breaches

in

the

complaint

and

counterclaim, yet Vasarely fails to specify and present evidence as
to who breached first.
Because defendant Vasarely has merely “mention[ed] a possible
argument

in

the

most

skeletal

way,

leaving

the

court

to

do

counsel’s work, create the ossature for the argument, and put flesh
on its bones,” see United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990), the Court DENIES Vasarely’s motion for summary judgment
on plaintiffs’ breach of the 2010 Artwork Agreement claim.

Civil No. 13-1766 (FAB)
C.

17

Plaintiffs’ Claims:

Tortious Interference

In Counts II and III of their complaint, plaintiffs raised two
tortious interference

claims

alleging

that

defendant Vasarely

interfered with plaintiffs’ sales agreements with Campolieto and
Leyba.

(Docket No. 2 at pp. 8-13.)

judgment on these claims.

Vasarely moved for summary

(Docket No. 312 at pp. 17-20.)

The

magistrate judge recommended that summary judgment be granted in
defendant Vasarely’s favor.

(Docket No. 364 at pp. 36-41.)

She

also recommended that the tortious interference claim concerning
Leyba be dismissed, but found that issues of fact remain as to the
amount of money due concerning the Campolieto sale.

Id.

Plaintiffs did not object to the magistrate judge’s findings
or recommendations on these two claims.

See Docket No. 387.

Plaintiffs have thus waived their right to district court review,
and the Court assumes that plaintiffs agree with the magistrate
judge’s recommendations.

See Davet v. Maccarone, 973 F.2d 22, 31

(1st Cir. 1992) (“Failure to raise objections to the Report and
Recommendation waives the party’s right to review in the district
court.”); Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st
Cir. 1985) (“Absent objection by the plaintiffs, the district court
had a right to assume that plaintiffs agreed to the magistrate’s
recommendation.”).
After an independent review, the Court ADOPTS IN PART the
magistrate judge’s findings and recommendations concerning summary

Civil No. 13-1766 (FAB)

18

judgment on plaintiffs’ two tortious interference claims.

The

Court MODIFIES the magistrate judge’s finding that issues of fact
remain as to money due concerning the Campolieto sale:

this

finding relates to defendant Vasarely’s counterclaim for breach of
the 2010 Artwork Agreement discussed in Part II.A.2 above; it does
not affect dismissal of the tortious interference claim.
The Court GRANTS defendant Vasarely’s motion for summary
judgment on plaintiffs’ two tortious interference claims, and the
claims are DISMISSED.
D.

Plaintiffs’ Claim: Certificates of Authenticity
In Count IV of their complaint, plaintiffs alleged that

defendant Vasarely breached clause 8 of the 2010 Artwork Agreement
by not surrendering certificates of authenticity for six artworks
sold to Leyba: Triton, Kerhon, Tri-Veg, Separam, Emotta, and BelaIBV. (Docket No. 2 at pp. 13-15.) Plaintiffs requested injunctive
relief ordering Vasarely to surrender the six certificates.

Id.

Plaintiffs also sought $50,000 for the alleged damage to their
commercial reputation that resulted from Vasarely’s failure to
deliver the certificates.

Id.

Vasarely moved for summary judgment on this claim.
No. 312 at pp. 20-22.)

(Docket

The magistrate judge recommended that the

motion for summary judgment be denied because, although Vasarely
has already delivered the certificates, issues of fact remain
regarding

plaintiffs’

claim

that

they

suffered

damages

from

Civil No. 13-1766 (FAB)

19

Vasarely’s delay in issuing the certificates.
pp.

41-43.)

Vasarely

recommendation.

objected

to

the

(Docket No. 364 at
magistrate

judge’s

(Docket No. 367 at pp. 6-7.)

Vasarely’s objections are two-fold.

First, she argues that

“she was (and still is) under no legal obligation to issue the
certificates” because “she has not received any moneys from the
sale of Triton.”

(Docket No. 367 at pp. 6-7.)

Pursuant to clause

8 of the 2010 Artwork Agreement, Vasarely is required to deliver
the certificate of authenticity for an artwork immediately after
receiving her full portion of the sale price.
8.)

(Def.’s Ex. 3 at ¶

Thus, Vasarely is correct in that she was not contractually

required to deliver the Triton certificate because she has not
received payment in full for that artwork’s sale.

This does not

affect the other five artworks, however, and issues of fact remain
as to whether she has received payment in full for the sales of
those pieces.

See supra Part II.A.1.

Vasarely’s second argument is that “there was just cause for
her apparent delay in submitting the certificates; she could not
complete them because she did not have the necessary information.”
(Docket No. 367 at p. 7.)

Even if Vasarely did not have the

necessary information to complete the certificates, she does not
provide evidence that she diligently sought the information after
receiving payment for the artwork in 2012.
argument is unavailing.

Thus, her second

Civil No. 13-1766 (FAB)

20

The Court therefore ADOPTS the magistrate judge’s findings but
MODIFIES its recommendation.

Because it is uncontested that

Vasarely has delivered all six certificates, (Def.’s Ex. 34), the
Court GRANTS Vasarely’s motion for summary judgment on plaintiffs’
claim for injunctive relief, and the claim is DISMISSED AS MOOT.
The Court DENIES defendant Vasarely’s motion for summary judgment
on plaintiffs’ claim for damages related to the alleged delay in
delivering the certificates
E.

Plaintiffs’ Claim:

Defamation

In Count V of their complaint, plaintiffs raised claims of
defamation

and

damage

to

(Docket No. 2 at pp. 15-16.)
judgment on these claims.
magistrate

judge

plaintiffs’

commercial

reputation.

Defendant Vasarely moved for summary
(Docket No. 312 at pp. 22-24.)

recommended

that

summary

judgment

be

The

denied

(Docket No. 364 at pp. 43-44), and plaintiffs objected to this
recommendation (Docket No. 367 at pp. 7-8).
Pursuant to Puerto Rico law, “a private plaintiff asserting a
defamation claim against a private defendant must show that the
defendant (1) made a false statement, (2) in a negligent manner,
(3) causing actual damage to the plaintiff.”

Baltodano v. Merck,

Sharp & Dohme (I.A.) Corp., 637 F.3d 38, 43 (1st Cir. 2011).

In an

attempt to prove that there is no dispute of fact as to the first
two elements, defendant Vasarely presents affidavits from Leyba and
herself to prove that her communications with Leyba “have been

Civil No. 13-1766 (FAB)

21

mainly limited to the exchange of information to issue pending
certificates” and that “they have kept minimal social contact over
the phone.”

(Docket No. 312 at p. 23; see Def.’s Ex. 65; Def.’s

Ex. 15 at ¶ 23.)

Plainly, this evidence does not eliminate a

genuine dispute as to whether Vasarely negligently made a false
statement to Leyba about plaintiffs.
As to the third element, Vasarely argues that it was Rojas
“who self-inflicted any existing damages by bringing Mr. Leyba into
his personal situation with Vasarely.”

(Docket No. 312 at p. 23.)

This argument is merely conjecture, devoid of evidentiary support.
Thus, Vasarely has failed to prove that there is no genuine dispute
concerning

plaintiffs’

claims

of

defamation

and

commercial

reputation damage.
The Court therefore ADOPTS the magistrate judge’s findings and
recommendation and DENIES defendant Vasarely’s motion for summary
judgment on plaintiffs’ claims of defamation and damage to their
commercial reputation.
F.

Plaintiffs’ Claim:

Breach of an Employment Agreement

In Count VI of their complaint, plaintiffs alleged that
defendant Vasarely breached an employment agreement. (Docket No. 2
at pp. 17-18.)

Vasarely moved for summary judgment.

(Docket

No. 312 at pp. 24-26.)
The magistrate judge recommended that summary judgment be
granted in

defendant

Vasarely’s

favor

and that

the

claim be

Civil No. 13-1766 (FAB)
dismissed.
the

22

(Docket No. 364 at pp. 44-45.)

magistrate

judge’s

recommendation,

Plaintiffs objected to
arguing

without

any

evidentiary support that “there is no doubt” that Inart Services
“complied with its part [of the employment agreement]” and that
Vasarely “failed to perform her part of the deal.”
at pp. 5-6.)

(Docket No. 387

Plaintiffs admitted in their opposing statement of

uncontested facts, however, that no employment agreement existed.
See Docket No. 308 at ¶ 126; Docket No. 333-1 at ¶ 126.

Without a

contract, there can be no breach.
The Court therefore ADOPTS the magistrate judge’s findings and
recommendation and GRANTS defendant Vasarely’s motion for summary
judgment on plaintiffs’ claim of breach of an employment agreement.
The claim is DISMISSED.
G.

Defendant Vasarely’s Counterclaim: Chicago Studio
Defendant

Vasarely

raised

a

counterclaim

alleging

that

plaintiff Rojas breached a contract regarding the sale of real
property at 312 May Street, Unit 102, Chicago, Illinois, (“the
Chicago studio”).

(Docket No. 35 at pp. 36-37.)

for summary judgment.

Vasarely moved

(Docket No. 312 at pp. 26-28.)

The magistrate judge recommended that summary judgment be
granted in Vasarely’s favor.

(Docket No. 364 at p. 45.)

As for

damages, the magistrate judge found no genuine dispute that Rojas
owes Vasarely:

Civil No. 13-1766 (FAB)

23

1.

$84,551.29 for half of the proceeds of the sale of
the Chicago studio;

2.

$38,134.87 for back tax penalties; and

3.

at least
taxes.

Id. at p. 46.

$18,403.67

for

2007-2008

real

estate

The magistrate found that issues of fact remain as

to whether Rojas owes Vasarely an additional amount for the 20072008 real estate taxes.

Id.

After independently examining the record, and absent specific
objection by the parties, the Court ADOPTS the magistrate judge’s
findings that plaintiff Rojas owes defendant Vasarely $84,551.29
for half of the proceeds of the sale and $38,134.87 for back tax
penalties.
Plaintiffs

did

not

raise

any

magistrate judge’s recommendation.

specific

objection

See Docket No. 387.

to

the

Defendant

Vasarely objected, arguing that it is undisputed that Vasarely is
owed an additional $1,000 per an express contractual stipulation
and an additional $27,172.34 for the 2007-2008 real estate taxes.
(Docket No. 367 at pp. 8-9.)

Plaintiffs did not respond to these

arguments in their opposition to defendant Vasarely’s objections.
See Docket No. 390.
Both of Vasarely’s objections have merit.

Clause 3 of the

contract provides that Rojas “shall pay” defendant Vasarely “for
the real estate taxes paid by [Vasarely] in relation to the Studio
for or during years 2007 and 2008 plus $1,000.00.”

(Def.’s Ex. 72

Civil No. 13-1766 (FAB)
at ¶ 3.)
defendant

First,

it

Vasarely

24

is
the

undisputed
$1,000

that plaintiff Rojas owes

stipulated

in

clause

3.

The

magistrate judge mistakenly excluded this undisputed amount from
the

damages

calculation.

The

Court

therefore

MODIFIES

the

magistrate judge’s recommendation by adding $1,000 to the amount
Rojas owes Vasarely.
Second, it is undisputed that Vasarely made five payments,
summarized in the table below, for real estate taxes on the Chicago
studio.
TABLE 214
No.

Date of Payment

Tax Year

Amount Paid

1

February 25, 2007

2006

$6,419.77

2

November 30, 2007

2006

$4,938.02

3

March 4, 2008

2007

$5,678.90

4

November 3, 2008

2007

$10,135.65

5

June 24, 2009

2007

$18,403.67

The contract provided that Rojas would reimburse Vasarely for
real estate payments she made “for or during years 2007 and 2008.”
(Def.’s Ex. 72 at ¶ 3 (emphasis added).)

Vasarely made the first

two payments “during” 2007, and she made the last three payments
“for” tax year 2007.

14

See Def.’s Ex. 76.

Thus, the plain language

See Def.’s Ex. 76 (copies of property tax bills, checks, and a
handwritten note as evidence of these payments); Def.’s Ex. 72 at
pp. 770-79 (plaintiff Rojas’s deposition testimony acknowledging
that Vasarely made all five payments, including the two payments
for which Vasarely’s only evidence is a handwritten note).

Civil No. 13-1766 (FAB)

25

of the contract indicates that the parties intended for Rojas to
reimburse Vasarely for all five payments.
This intent is further evidenced by Rojas’s statements during
his deposition.

Rojas stated that he agreed to reimburse Vasarely

for the “two years of taxes” that she paid.

(Docket No. 17 at p.

780.) The five payments were for two years of taxes: the first two
payments were for 2006 taxes and the second three payments were for
2007 taxes.

See Def.’s Ex. 76.

Plaintiff Rojas also acknowledged

in his deposition that billing for real estate taxes in Chicago is
“very confusing” because the bills “never correspond to the year
you are paying.”

(Def.’s Ex. 17 at p. 772.)

Indeed, the bills

submitted by Vasarely indicate that taxes for “Tax Year 2006” are
“Payable in 2007” and that taxes for “Tax Year 2007” are “Payable
in 2008.”

(Def.’s Ex. 76 at pp. 1-3.)

Finally, it appears that Vasarely made a double payment for
2007 taxes.

That is, she made two installment payments in 2008 for

2007 taxes, but then upon receipt of a bill in 2009 that indicated
that $18,403.67 was due on 2007 taxes, she paid that amount.
(Def.’s Ex. 76 at pp. 3-4.)

Plaintiff Rojas acknowledged this,

stating in his deposition that he believed a “double payment” had
been made, which he had “been trying to recuperate.”
17 at p. 776.)

This is of no consequence.

(Def.’s Ex.

Plaintiff Rojas agreed

to pay Vasarely for the payments she made for tax year 2007, and

Civil No. 13-1766 (FAB)

26

Vasarely made three payments for tax year 2007, so Rojas is liable
for reimbursing all three payments.
The Court accordingly REJECTS the magistrate judge’s finding
that issues of fact remain regarding the amount owed to Vasarely
for 2007-2008 real estate taxes.

The Court finds that Vasarely

paid $45,576.0115 in real estate taxes “for or during years 2007 and
2008,” and that Rojas owes Vasarely this amount.
For the reasons explained above, the Court GRANTS defendant
Vasarely’s motion for summary judgment on her counterclaim for
breach of the Chicago studio contract.

Plaintiff Rojas owes

defendant Vasarely $169,262.1716 for this counterclaim, and no
issues of fact remain.
H.

Defendant Vasarely’s Counterclaim: Chicago Condo
Defendant

Vasarely

raised

a

counterclaim

alleging

that

plaintiff Rojas breached an agreement regarding the sale of real
property at 910 S. Michigan Street, Unit 1904, Chicago, Illinois,
(“the Chicago condo”).

(Docket No. 35 at pp. 37-38.)

moved for summary judgment.

Vasarely

(Docket No. 312 at pp. 28-31.)

15

The total of $45,576.01 is the sum of the following five
payments: $6,419.77, $4,938.02, $5,678.90, $10,135.65, and
$18,403.67. See supra Table 2.

16

The total of $169,262.17 is the sum of the following: $84,551.29
for half of the proceeds of the sale of the Chicago studio;
$38,134.87 for back tax penalties; $1,000.00 for the stipulated
payment in clause 3 of the contract; and $45,576.01 for 2007-2008
real estate taxes.

Civil No. 13-1766 (FAB)

27

The magistrate judge recommended that summary judgment be
granted in defendant Vasarely’s favor and that the “release of
memorandum of note” dated April 8, 2013, be declared null and void.
(Docket No. 364 at pp. 48-50.)

As for damages, the magistrate

judge found no genuine dispute that plaintiff Rojas owes defendant
Vasarely for two deductions from the sale proceeds: (1) $27,000
paid to the condo neighbors for water damage; and (2) $18,000 put
into an escrow account.

Id. at p. 48.

issues of

regarding

fact

remain

The magistrate found that

whether

Vasarely

is

owed

an

additional amount for allegedly underselling the Chicago condo.
Id. at pp. 49-50.
After independently examining the record, and absent specific
objection by the parties, the Court ADOPTS the magistrate judge’s
recommendation that the “release of memorandum of note” document
dated April 8, 2013, be declared null and void.

The Court also

ADOPTS the magistrate judge’s finding that plaintiff Rojas owes
defendant Vasarely $18,000 for the money Rojas deducted from the
Chicago condo sale proceeds to put into an escrow account.
Plaintiff Rojas raised one objection to the magistrate judge’s
recommendation, arguing that the $27,000 payment to the condo
neighbors

for water

damage

was

therefore not be liable for it.

justified

and

that

he

should

(Docket No. 387 at pp. 7-8.)

The

promissory note and memorandum of note provided that Vasarely was
entitled to the net proceeds of the sale of the Chicago condo, and

Civil No. 13-1766 (FAB)

28

the promissory note defined “net proceeds” as “the gross purchase
price of the [Chicago condo] less: (i) usually [sic] and customary
closing costs and expenses; (ii) broker’s commissions; (iii) loan
pay-offs; and (iv) usual and customary prorations for real estate
taxes and assessments.”17

See Def.’s Exs. 80A-B.

Payment to a

neighbor for water damage does not fall within the narrow group of
items

Rojas

was

contractually

permitted

to

deduct

from

the

proceeds. Thus, Rojas’s objection that the deduction for water
damage was “justified” is unpersuasive, and the Court ADOPTS the
magistrate judge’s finding that Rojas owes Vasarely $27,000 for the
money Rojas deducted from the sale proceeds to pay the condo
neighbors for water damage.
Defendant Vasarely raised two objections to the magistrate
judge’s recommendation. First, she argued that there is no dispute
that plaintiff Rojas owes Vasarely an additional $1,000 for the
refund Rojas received from the estimate of tax redemption.

The

settlement statement for the sale of the Chicago condo reflects
that $46,716.28 was deducted from the condo sale proceeds for the
estimate of tax redemption.

(Def.’s Ex. 84 at line 1307.)

later received back $1,000 from this deduction.
B.)

17

Rojas

(Def.’s Exs. 83A-

Pursuant to the promissory note, the $1,000 constitutes part

The magistrate judge’s factual finding in this regard contains
a drafting error in that its definition of “net proceeds” excludes
the phrase: “the gross purchase price of the [Chicago condo] less.”
See Docket No. 364 at pp. 28-29, ¶ 141.

Civil No. 13-1766 (FAB)

29

of the sale’s net proceeds and is therefore owed to Vasarely.
Although the magistrate judge made factual findings on this issue,
(Docket No. 364 at p. 29, ¶ 144), she did not address it in her
analysis and recommendation.

The Court therefore MODIFIES the

magistrate judge’s findings by adding $1,000 to the amount Rojas
owes Vasarely.
Second, Vasarely argued that Rojas’s sale of the Chicago condo
without obtaining an appraisal constitutes negligence per se and
that it is undisputed that she is owed $335,000 for the loss
resulting from Rojas’s sale of the property for less than it was
worth.

(Docket No. 367 at pp. 9-10.)

Vasarely adds the condo’s

2004 purchase price ($1,160,000) to the approximate value of the
condo’s renovations ($250,000) to arrive at $1,410,000 - the amount
she concludes was the condo’s value when it was sold in 2013.
Docket No. 312 at pp. 28-31.

See

Vasarely claims that by selling the

condo for $1,075,000, Rojas negligently and in bad faith sold it
for $335,000 less than it was worth.

See id.

This evidence leaves

a genuine dispute as to whether Rojas sold the Chicago condo for
less than it was worth because the value of a piece of real estate
is not necessarily equal to its purchase price from a decade prior
plus the value of its renovations.

Other factors can affect a

property’s value.

Defendant Vasarely has thus not met her summary

judgment burden.

The Court therefore REJECTS the magistrate

Civil No. 13-1766 (FAB)

30

judge’s recommendation that summary disposition is warranted on
this part of Vasarely’s counterclaim.
For the reasons explained above, the Court GRANTS IN PART and
DENIES IN PART defendant Vasarely’s motion for summary judgment on
her Chicago condo counterclaim.

The Court GRANTS summary judgment

on the part of Vasarely’s counterclaim that alleges that plaintiff
Rojas breached the promissory note and memorandum of note by not
giving defendant Vasarely the full net proceeds of the sale of the
Chicago condo.

The release of memorandum of note dated April 8,

2013, is declared null and void, and plaintiff Rojas owes defendant
Vasarely $46,000.18
of

Vasarely’s

The Court DENIES summary judgment on the part

counterclaim

that

alleges

that

plaintiff

Rojas

negligently and in bad faith undersold the Chicago condo.
III.

CONCLUSION

After due consideration, the Court ADOPTS IN PART, MODIFIES IN
PART, and REJECTS IN PART the magistrate judge’s findings and
recommendations (Docket No. 364).
The

Court

GRANTS

IN

PART

and

DENIES

IN

PART

defendant

Vasarely’s motion for partial summary judgment (Docket No. 312) as
follows:

18

The total of $46,000 is the sum of the following: $18,000 for
the amount Rojas deducted from the sale proceeds to put into an
escrow account; $27,000 for the amount Rojas deducted from the sale
proceeds to pay the condo neighbors for water damage; and $1,000
for the amount Rojas received back from the estimate of tax
redemption deduction.

Civil No. 13-1766 (FAB)

31

1.
GRANTED on the parts of Vasarely’s breach of the
2010 Artwork Agreement counterclaim that allege that
plaintiffs did not give Vasarely 80% of the “base price”
for the sales of Tri-Veg, Zebra, and Triton. The Court
ORDERS plaintiff Rojas to give Vasarely the diamond ring
or its value of $16,500. The $312,000 deposited with the
Clerk of the Court shall be disbursed to Vasarely.
2.
GRANTED on the part of Vasarely’s breach of the 2010
Artwork Agreement counterclaim that alleges that
plaintiffs did not give Vasarely the full 80% of the sale
price of Gestalt-Rugo. The Court ORDERS plaintiffs Rojas
and Inart Services to give Vasarely $12,000. Whether
they owe her more will be determined at trial.
3.
DENIED on the parts of Vasarely’s breach of the 2010
Artwork Agreement counterclaim that alleges that
plaintiffs breached by giving Vasarely 80% of the “base
price” instead of 80% of the “sale price” for the Leyba
sales and by not returning her artwork after the alleged
termination of the agreement.
4.
DENIED on plaintiffs’ breach of the 2010 Artwork
Agreement claim.
5.
GRANTED on plaintiffs’ two tortious interference
claims. The tortious interference claims are DISMISSED.
6.
GRANTED on plaintiffs’ claim for injunctive relief
seeking six certificates of authenticity. The injunctive
relief claim is DISMISSED AS MOOT.
7.
DENIED on plaintiffs’ claim seeking damages related
to
Vasarely’s
alleged
delay
in
delivering
the
certificates of authenticity.
8.
DENIED on plaintiffs’ claims of
damage to their commercial reputation.

defamation

and

9.
GRANTED on plaintiffs’ claim of breach of an
employment agreement. The breach of employment agreement
claim is DISMISSED.
10. GRANTED on Vasarely’s counterclaim for breach of the
Chicago studio contract. The Court ORDERS Rojas to give
Vasarely $169,262.17 for this counterclaim.

Civil No. 13-1766 (FAB)

32

11. GRANTED on the part of Vasarely’s breach of the
Chicago condo promissory note and memorandum of note that
alleges that Rojas did not give Vasarely the full net
proceeds of the sale. The release of memorandum of note
dated April 8, 2013, is declared NULL AND VOID, and the
Court ORDERS Rojas to give Vasarely $46,000.
12. DENIED on the part of Vasarely’s breach of the
Chicago condo promissory note and memorandum of note that
alleges that Rojas negligently and in bad faith undersold
the Chicago condo.
There being no just reason for delay, partial judgment shall
be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, July 7, 2015.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE