Rojas-Buscaglia et al v. Taburno-Vasarhelyi

Filing 532

OPINION AND ORDER on Bench Trial. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 08/05/2016. (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.
At center stage in this civil suit is Ms. Michele TaburnoVasarely (“Vasarely”).
famous “Op

Art”

artist

Vasarely is the daughter-in-law of the
Victor

Vasarely.

She

married

Vasarely’s son, an artist known as Yvaral, in 1969.

Victor

For three

decades, Vasarely worked in France as an assistant to the two
artists.

She also took care of Victor Vasarely during his final

years before he died in 1997.

Over the decades, the two artists

gave Vasarely artwork as payment for her assistance and also as
gifts. This way, Vasarely accumulated a large and valuable artwork
collection.
In 2000, Mr. Luis Rojas-Buscaglia (“Rojas”), the widower of
Vasarely’s best friend, moved from Puerto Rico to Paris to work for
Vasarely and her husband. Vasarely’s husband died two years later.

Civil No. 13-1766 (FAB)

2

In 2004, Vasarely and Rojas moved from Paris to Chicago
together. Their relationship quickly turned sour, and in May 2005,
Rojas moved back to Puerto Rico.

Four years later, in June 2009,

Rojas sued Vasarely for the division of what he alleged was
community property that he shared with Vasarely worth millions of
dollars. Vasarely and Rojas settled that dispute in September 2010
by entering into an agreement pursuant to which Rojas would earn
commissions selling artwork that belonged to Vasarely.
In October 2012, Vasarely moved from Chicago to Puerto Rico.
Rojas

helped

Vasarely’s

Vasarely

vast

with

collection

this
of

move,

which

artwork

and

involved

antiques.

moving
Their

relationship deteriorated over the next year until Rojas, along
with his two companies - Inart, Corp. (“Inart”) and Inart Services,
Inc. (“Inart Services”) - brought this lawsuit against Vasarely,
raising various claims from breach of contract to defamation,
primarily

related

Vasarely responded

to
by

plaintiffs’

sale

of

asserting several

Vasarely’s

counterclaims

artwork.
against

plaintiffs, including breach of contract concerning artwork sales
and Vasarely’s move to Puerto Rico.

Vasarely also sought to

recover numerous pieces of artwork, furniture, and other property
that she claims belong to her and are in the wrongful possession of
Rojas.

Civil No. 13-1766 (FAB)

3

After resolving four dispositive motions, see Docket Nos. 219,
407, 408, 410,1 the Court held a bench trial on the remaining
claims and counterclaims.

Over the course of nineteen days, the

Court heard testimony from nine witnesses and admitted 252 exhibits
into evidence.
Upon consideration of the evidence presented at trial,2 the
Court makes the following findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure 52(a).
I.

BREACH OF THE 2010 ARTWORK AGREEMENT CLAIMS AND COUNTERCLAIMS
Plaintiffs claim that Vasarely breached the 2010 Artwork

Agreement

by reducing

plaintiffs’ commission,

halting

artwork

sales, and delaying delivery of certificates of authenticity for
sold artwork.

Vasarely counterclaims that plaintiffs breached the

1

The Court entered partial judgment dismissing some of plaintiffs’
claims and some of defendant Vasarely’s counterclaims. See Docket
Nos. 220, 409. The Court also entered partial judgment in favor of
Vasarely on several of her counterclaims, ordering plaintiffs to
pay Vasarely $227,262.17 and to give her a diamond ring or its
value of $16,500. (Docket No. 409.) Finally, the Court ordered
the Clerk of the Court to disburse to Vasarely the $312,000 that
plaintiffs deposited at the start of this litigation. Id.

2

Specifically, the Court considers the following: the parties’
stipulated facts, (Docket No. 412 at pp. 22-35); ninety-seven joint
exhibits, (Joint Exs. I-XCVII); seventy-seven plaintiffs’ exhibits
(Pls. Exs. 1-77); seventy-eight defendant’s exhibits (Def. Exs. ASS, UU-AAAA); and testimony from nineteen days of trial, see Tr. at
Docket Nos. 499, 504-518, 520-522. The Court uses as guidance the
proposed findings of fact and proposed conclusions of law that the
parties submitted after the bench trial concluded.
See Docket
Nos. 525-1, 525-2, 528.

Civil No. 13-1766 (FAB)

4

2010 Artwork Agreement by refusing to give her proceeds from
artwork sales, keeping an unauthorized inventory of her artwork,
and refusing

to

return

her

artwork

after

she

terminated

the

agreement.
The Court makes the following factual findings and legal
conclusions for these claims and counterclaims.
A.

Factual Findings
1.

The 2010 Artwork Agreement
Plaintiff Rojas is the sole owner, director, and officer

of plaintiff corporations Inart and Inart Services.
No. 412 at p. 22.)

(Docket

On September 22, 2010, Vasarely and Inart

entered into an agreement (“the 2010 Artwork Agreement” or “the
Agreement”) pursuant to which Inart would sell certain artwork
belonging to Vasarely.

(Joint Ex. 1 at p. 1.)

Inart would act as

a “non-exclusive sales representative for Vasarely” and would sell
to Inart’s “own clients.”

Id. at pp. 1, 3.

Appendix A to the Agreement lists eleven paintings and
three sculptures that Vasarely deposited on consignment with Inart.
(Joint Ex. 1 at pp. 1, 7.)

Clause 3 of the Agreement allows the

parties to “amend Appendix A by adding and/or removing items from
the list of consigned Artworks, provided that such amendments are
in writing and signed by Vasarely and Luis Rojas.”

Id. at p. 2.

Civil No. 13-1766 (FAB)

5

The parties never amended Appendix A in writing.

(Docket No. 412

at p. 23.)
Clause 7 of the Agreement requires Inart to “generate an
invoice for each sale of Artwork” and to “deliver to Vasarely a
copy of the invoice, with the name of the client and the purchase
price, on the date of the sale.”

(Joint Ex. 1 at p. 4.)

Clause 7

also provides that “the purchaser” must pay Vasarely 80% of the
sale price and Inart 20% of the sale price.

Id.

Inart’s 20% share

“paid directly by the client” is Inart’s “sole payment and/or
commission and/or compensation,” and Inart must “pay for its own
expenses from [this] commission.”

Id.

Clause 8 requires Vasarely

to deliver the certificate of authenticity for each sold piece of
artwork immediately after she receives full payment for her portion
of the sale price of the work.

Id.

Clause 11 provides that either party can terminate the
Agreement for reasonable cause or for breach of contract with eight
days’ notice.

(Joint Ex. 1 at pp. 4-5.)

Clause 12 provides that

upon termination of the Agreement, Inart must return all artwork to
Vasarely “by depositing them in a storage facility to be designated
by Vasarely,” and if the artwork has not been returned within
forty-eight hours of Vasarely making available a suitable storage
facility,
Vasarely.

Inart “shall

be

fined”

$1,000 per

day,

payable

to

Civil No. 13-1766 (FAB)
2.

6

Auction Sales
In 2011 and 2012, plaintiffs sold at auction several

pieces of artwork belonging to Vasarely.
11.)

(Docket No. 504 at pp. 7-

This artwork was not listed in Appendix A of the 2010 Artwork

Agreement.

Id. at p. 13.

For the artwork sold at auctions, Rojas

and Vasarely agreed that plaintiffs would receive 15% commission.
(Docket No. 499 at pp. 32-35.)

They later agreed to lower the

commission for auction sales to 12%.

Id.

Plaintiffs received the

payments from the auction sales, kept their agreed-upon commission,
and gave Vasarely her portion.
3.

Id. at pp. 29, 41.

Sale to Campolieto
On August 26, 2012, plaintiff Inart Services (represented

by plaintiff Rojas) sold the work titled Gestalt-Rugo, which
belonged to Vasarely, to Mr. Horacio Campolieto (“Campolieto”)
pursuant to an installment agreement.
installment

agreement

set

the

Campolieto would pay as follows:

sale

(Joint Ex. III.)

price

at

$390,000,

The
which

(1) a $60,000 down payment, (2) a

car valued at $60,000, (3) a piece of artwork by Melvin Martinez
valued at $20,000, and (4) twenty-five monthly payments of $10,000
beginning October 1, 2012.

Id.

Vasarely was not a party to the installment agreement,
and she did not agree to the terms of the agreement in writing.
(Docket No. 412 at p. 26.)

Although she requested that Rojas give

Civil No. 13-1766 (FAB)

7

her a copy of the installment agreement several times, he refused.
Id.

Vasarely first obtained a copy of the agreement around June

2013 after asking Campolieto for it directly.
pp. 58-62.)

(Docket No. 512 at

This was the first time that Vasarely learned that the

installment agreement included an initial down payment of $60,000.
Id.

Her knowledge of the agreement before then was that it

included the car, the Melvin Martinez work, and monthly payments of
$10,000.

Id. at p. 59.
Rojas testified that from the $60,000 down payment, he

kept $12,000 and gave Vasarely her 80% share.
pp. 18-19.)

(Docket No. 506 at

Vasarely testified that Rojas gave her only $8,000

from the $60,000 down payment. (Docket No. 512 at pp. 61-63.)
Court credits Vasarely’s testimony in this regard.

The

Particularly

because Rojas repeatedly refused to give Vasarely a copy of the
installment agreement, the Court finds that Rojas concealed from
Vasarely the existence of the $60,000 down payment, having her
believe that the first payment was a regular monthly payment of
$10,000.

Thus, the Court finds that plaintiffs kept $52,000 and

gave Vasarely $8,000 from the $60,000 down payment.
The car valued at $60,000 was transferred to Rojas on
August 28, 2012.

(Docket No. 412 at p. 27.)

In September 2012,

plaintiffs collected their 20% commission for the car by deducting
$12,000 from money that they owed Vasarely from auction sales.

Civil No. 13-1766 (FAB)
(Def. Ex. Q.)

8

Three years later, in October 2015, Rojas finally

transferred title of the car to Vasarely, gave her the keys, and
lifted the litigation lien that he had placed on the car.

(Docket

Nos. 437 at p. 1; 440 at p. 1; 521 at pp. 3-5.)
Plaintiffs kept the Melvin Martinez work until the Court
ordered plaintiffs to surrender it to Vasarely in February 2014.
(Docket Nos. 118; 118-1; 412 at p. 27.)
From

October

2012

to

April

2013,

Campolieto

paid

plaintiffs $70,000 in monthly payments, from which plaintiffs kept
$14,000 and gave Vasarely $56,000.

(Docket No. 412 at p. 27.)

In

June 2013, Campolieto paid plaintiffs $16,000 as a partial twomonth payment, and plaintiffs kept the full amount.
Nos. 412 at p. 27; 506 at pp. 17-18.)

(Docket

From then on, Campolieto

made monthly payments to Vasarely directly.

(Docket No. 512 at

pp. 67-68.)
In total, plaintiffs kept $94,000 in commission from the
sale of Gestalt-Rugo to Campolieto.3

3

The total of $94,000 is the sum of $52,000 (the amount plaintiffs
kept from the $60,000 down payment), $12,000 (the commission
plaintiffs collected over the value of the car), $14,000 (the total
plaintiffs kept from the October 2012 - April 2013 monthly
payments), and $16,000 (the June 2013 payment).

Civil No. 13-1766 (FAB)
4.

9

Sales to Leyba
In 2012 and 2013, plaintiffs sold artwork belonging to

Vasarely to an art dealer based in Miami named Mr. Herman Leyba
(“Leyba”).

(Docket No. 412 at pp. 24-25.)

Leyba handled all of

his business with Vasarely through Rojas; he never worked with
Vasarely directly.
a.

(Docket No. 511 at pp. 54-55.)

Sale Process
To begin the sale process, Rojas conferred with

Vasarely to determine what artwork to offer for sale and at what
prices.

See Pls. Exs. 24-34, 36.

Rojas then sent Leyba a list of

about twenty works of art and their corresponding prices.
No. 511 at pp. 22, 26.)

(Docket

Leyba discussed the list with his private

clients, who would select about five works that they really liked.
Id. at p. 26.

The clients usually traveled to Puerto Rico with

Leyba to view these works in Rojas’s apartment.

Id. at pp. 26, 32.

On two of these trips, Leyba, his clients, and Rojas met socially
with Vasarely after viewing the artwork.
No. 517 at pp. 27-28.

Id. at pp. 17-18; Docket

The clients would make their final decisions

on which pieces of artwork to purchase when they returned from
these trips.

(Docket No. 511 at p. 27.)
Plaintiffs

then

sent

invoices

to

Leyba’s

corporations for the artwork that his clients agreed to purchase.
See Joint Exs. V-XVI.

Leyba invoiced his clients and, after

Civil No. 13-1766 (FAB)

10

receiving payment and subtracting his commission, transferred the
funds to plaintiffs.

See Docket No. 511 at p. 25.

Leyba testified

that sometimes Rojas invoiced the clients directly and sent Leyba
his commission after receiving payment from the clients.
b.

Id.

Commission Arrangement
Leyba paid plaintiffs what he calls the “base price”

of each work of art.

(Docket No. 511 at pp. 22-25.)

This was the

price authorized by Vasarely and the price from which plaintiffs
deducted their 20% commission and gave Vasarely her 80%.
No. 507 at pp. 50-51.)

(Docket

Leyba charged his clients at what he calls

the “sale price,” which is higher than the “base price” because it
includes Leyba’s additional commission. (Docket No. 511 at pp. 2225; Docket No. 507 at pp. 72-74; Joint Ex. XIX.)

In the beginning,

Leyba and plaintiffs agreed on the maximum “sale price” that Leyba
could charge for each piece.

(Docket No. 511 at p. 24.)

Later,

plaintiffs and Leyba agreed that Leyba’s commission would be capped
at 15% of the “base price.”
p. 19.

Id. at pp. 24-25; Docket No. 507 at

Civil No. 13-1766 (FAB)

11

For example, the following table4 summarizes the
transactions for the sale of Separam in March 2013:

Client paid Leyba (“sale price”)

$188,000

Leyba’s commission

$28,000

Leyba paid plaintiffs (“base price”)

$160,000

Plaintiffs’ commission

$32,000

Vasarely’s proceeds

$128,000

Vasarely did not know the commission arrangement
between plaintiffs and Leyba.

(Docket No. 510 at p. 67.)

She

thought that they were splitting plaintiffs’ 20% commission because
that was her understanding of how co-broker deals are handled in
artwork sales.

Id.

She explained that the art business is the

same as the real estate business in this regard:
brokers, they divide their profit.

when you have two

Id.

Plaintiffs never disclosed to Vasarely the higher
“sale prices.”

(Docket No. 512 at pp. 12-13.)

For example, after

the first round of sales to a group of Venezuelan clients closed,
Leyba emailed Rojas a list of the “base prices” and “sale prices”
for the sales to these clients.

See Pls. Ex. 18.

Five days later,

Rojas emailed Vasarely a list of the works and specified that they
were sold to Venezuelan clients, but he included only the “base

4

See Joint Exs. IX, XIX.

Civil No. 13-1766 (FAB)

12

prices” and did not reveal the higher “sale prices.”
Ex. LXXXV.

See Joint

Plaintiffs also never delivered copies of the Leyba

invoices to Vasarely.

(Docket No. 512 at pp. 11-12.)

On May 21, 2013, Vasarely sent an email to Rojas
requesting “[f]or the last time” a full accounting of the sales
made through Leyba.

(Def. Ex. I.)

she contacted Leyba directly.

After receiving no response,

(Docket No. 512 at pp. 12-13.)

Leyba responded and disclosed to Vasarely the “base prices” and
“sale prices” for the more than two million dollars worth of sales
that had occurred between plaintiffs, Leyba, and Leyba’s clients up
to that point.

(Joint Ex. XIX.)

This was the first time that

Vasarely learned that Leyba was earning a commission on top of
Rojas’s 20%.

(Docket No. 512 at pp. 12-13.)
Rojas testified that he discussed the commission

arrangement with Vasarely and that he would “go through each sale”
with Vasarely, “in person[] and by the phone” using “the documents
sent from Herman Leyba.”

See Docket No. 507 at pp. 51, 69.

The

Court does not credit Rojas’s testimony and finds Vasarely’s
testimony more credible in this regard.

Civil No. 13-1766 (FAB)
c.

13

Closed Sales
At the summary judgment stage, the Court determined

that plaintiffs sold to Leyba’s clients sixteen works of art5
belonging to Vasarely.

(Docket No. 408 at p. 5.)

Leyba $2,676,500 for this artwork.

Id.

The clients paid

After deducting his

commission, Leyba paid plaintiffs $2,336,000. Id. After deducting
their commission, plaintiffs paid Vasarely $1,540,300.

Id.

The last painting that plaintiffs sold to Leyba’s
clients was Triton.

(Docket No. 505 at p. 53.)

Rather than give

Vasarely her 80% share of this sale, plaintiffs deposited $312,000
with the Clerk of the Court upon filing the complaint in this case.
Id. at pp. 53-54, 65.

At the summary judgment stage, the Court

ordered these funds to be disbursed to Vasarely.
at pp. 6-7; 409 at p. 1.)
give

Vasarely

a

diamond

(Docket Nos. 408

The Court also ordered plaintiffs to
ring

or

its

plaintiffs’ nonpayment for a Leyba sale.

value

of

$16,500

for

(Docket Nos. 408 at

pp. 5-6; 409 at p. 1.)

5

The sixteen works are:
Boo, Tekers MC, Kerhon, Egsin, Axon,
Moulin, two Vega color prints, Koska Nagy (or Koska Neg), Tri-Veg,
a Zebra (or Zebres) print, Separam, Emotta, Bela, a Vega print, and
Triton. See Docket No. 408 at p. 5; Joint Ex. XIX.

Civil No. 13-1766 (FAB)

14

Thus, including the partial judgment awarded in her
favor, Vasarely received a total of $1,868,800 for the sales that
plaintiffs made to Leyba’s clients.6
d.

Sales that Never Closed
During a visit to Puerto Rico with Leyba in March

2013, a particular group of his clients showed interest in various
works of art.

(Docket No. 511 at pp. 32-37, 59-60, 66-71.)

For

example, they liked a 1950 Victor Vasarely painting titled Zebres.
Id. at pp. 33-35.

The clients ultimately decided not to purchase

Zebres because its price of $640,000 (which included Leyba’s
commission of $40,000) was too high for them.
70-71.

Id. at pp. 33-36,

The clients instead decided to reserve for purchase three

less expensive pieces, Triton, Graphismes, and Keple Gestalt.

Id.

at pp. 32-35. In September 2013, plaintiffs sent Leyba the invoice
for Triton.

(Joint Ex. XV.)

That sale closed, and the clients

paid for Triton in October 2013.

(Docket Nos. 412 at p. 30; 511 at

p. 33.)

6

The total of $1,868,800 is the sum of $1,540,300 (the amount
plaintiffs paid Vasarely for the Leyba sales before filing this
lawsuit), $312,000 (the amount plaintiffs deposited with the Clerk
of the Court for the sale of Triton), and $16,500 (the amount the
Court ordered plaintiffs to pay Vasarely for the Leyba sales at
summary judgment).
The total of $1,868,800 is also 80% of
$2,336,000 (the total amount that Leyba paid plaintiffs for the
sales of Vasarely’s artwork, i.e., the sum of the “base prices”).

Civil No. 13-1766 (FAB)

15

The sales for Graphismes and Keple Gestalt, however,
were never invoiced and never closed.
511 at pp. 32-35.)

(Docket Nos. 412 at p. 30;

Leyba testified that the clients ultimately

decided not to purchase Graphismes and Keple Gestalt because they
lost interest after purchasing Triton.
38.)

(Docket No. 511 at pp. 37-

Leyba decided not to “push” the sale any further because

after Triton closed, this legal case was underway and Leyba did not
want his clients to get involved in the litigation.

Id. at pp. 38-

39.
Leyba’s clients never purchased or reserved the
twenty-eight works of art listed in Docket No. 2-2.

(Docket No.

511 at pp. 36-37.)
e.

Certificates of Authenticity
A certificate of authenticity is prepared when a

piece of artwork is sold.

(Docket No. 511 at p. 42.)

artist is alive, he or she prepares the certificate.
Victor

Vasarely

is

not

alive,

defendant

Id.

Vasarely

If the
Because
prepares

certificates of authenticity for his works of art that do not have
original certificates.

Id.

Vasarely includes on the certificates

the work’s title, size, and date, as well as the location of the
artist’s signature.

(Docket No. 512 at pp. 28-29.)

To prepare a

certificate, Vasarely needs a photograph of the front of the work,
a photograph of the back of the work, and a close-up photograph of

Civil No. 13-1766 (FAB)

16

the signature on the work.

Id. at p. 26; Def. Ex. J.

Vasarely

keeps a log of the certificates of authenticity that she issues,
and she is very serious about this matter.

(Docket No. 412 at p.

25; Docket No. 512 at p. 32; Joint Ex. LXVIII.)
For five paintings that plaintiffs sold to Leyba Kerhon, Tri-Veg, Separam, Emotta, and Bela-IBV - Vasarely did not
deliver certificates of authenticity immediately upon receiving
payment from plaintiffs.
43.)

(Docket Nos. 507 at p. 75; 511 at pp. 40,

Plaintiff Rojas did not take close-up photographs of these

works before delivering them to Leyba’s clients.
at p. 26.)

(Docket No. 412

Vasarely did not have physical custody of the paintings

before plaintiffs sold and delivered them to the clients, nor did
she have close-up photographs of the works.

(Docket No. 512 at pp.

27-28, 35-36, 44-45.)
Beginning
communicated

directly

around
with

September

Leyba

to

2013,

describe

the

Vasarely
missing

information and close-up photographs that she needed to issue
certificates of authenticity.

See Docket No. 512 at pp. 42-43;

Joint Exs. XX-XXIII; Pls. Ex. 59; Def. Exs. L-O.
the

necessary

information

from

Leyba,

Vasarely

After receiving
sent

complete

certificates of authenticity for Kerhon, Tri-Veg, Separam, Emotta,
Bela-IBV, and Triton.

(Docket No. 412 at p. 26.)

Leyba confirmed

Civil No. 13-1766 (FAB)

17

that he received the certificates on February 27, 2014. Id.; Joint
Ex. XXIV.
Leyba testified that the delay in delivery of the
certificates did not affect his clients or cause any sale to be
lost.
5.

(Docket No. 511 at pp. 45-48, 79-81.)
Vasarely’s Demands for the Return of her Artwork
Sometime after Vasarely moved to Puerto Rico in October

2012, she began to realize that Rojas was taking artwork from her
storage without her permission.

(Docket No. 510 at p. 44.)

testified that “Rojas would serve himself from my storage.
the keys to the storage. . . .

She

He had

He would simply take the works of

art that he wanted, and I would never see anything.”

Id.

On March 14, 2013, Vasarely emailed Rojas requesting that
he give her the keys to her storage and a list of the works of art
that he took from her storage.

(Def. Ex. B.)

Vasarely the requested keys or list.

Rojas did not give

(Docket No. 510 at pp. 32-33,

48.)
On April 7, 2013, Vasarely emailed Rojas airing her
personal and professional grievances with him.
the e-mail, Vasarely wrote:

(Def. Ex. C.)

In

“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].”

Id.

Civil No. 13-1766 (FAB)

18

Between May and October 2013, Vasarely wrote several
emails to Rojas requesting that he return to her the keys to her
storage and all of the artwork that belongs to her.
D-H, K, GG, HH, LL.

See Def. Exs.

In one of these emails, dated May 16, 2013,

Vasarely wrote: “If tomorrow prior to my leaving at one, all of my
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.”

(Def. Ex. F.)

to Rojas in an e-mail:

The next day, Vasarely asserted

“We are not going to have any business

until everything is clarified with attorneys and all my works of
art are in my possession.”

(Def. Ex. G.)

When Rojas filed this suit against Vasarely on October 9,
2013, he had in his possession and under his control at least
thirty-one works of art7 that belonged to Vasarely.

See Docket

No. 412 at p. 28; Docket No. 505 at pp. 6-7; Def. Ex. A.

At least

one of these works, Keiho-MC, is listed in Appendix A of the 2010
Artwork Agreement as being consigned to plaintiffs pursuant to the
Agreement.

See Def. Ex. A; Joint Ex. I.

Rojas estimates that the

thirty-one works are worth over $10,000,000 in private sales and
close to $3,000,000 in auction sales.

7

(Docket No. 412 at p. 28.)

Twenty-five of the works are by Victor Vasarely, five are by
Yvaral, and one is by Melvin Martinez. (Docket No. 3-1.)

Civil No. 13-1766 (FAB)

19

Rojas returned the thirty-one works to Vasarely in February 2014
pursuant to the Court’s order.

(Docket No. 505 at pp. 6-7.)

Rojas testified that the reason he did not return the
works to Vasarely sooner was because plaintiffs were “still doing
business with . . . the clients” and because “many” of the works
“had been reserved” and “were already set to close.”

(Docket

No. 505 at p. 11.)
B.

Legal Conclusions
Pursuant

to

Puerto

Rico

law,

when

a

party

breaches

a

contractual obligation, that party is liable for the losses and
damages caused by the breach.

P.R. Laws Ann. tit. 31, § 3018.

Here, plaintiffs and defendant Vasarely agree that the 2010
Artwork Agreement is a valid contract.

The parties allege various

breaches of contractual obligations arising out of the 2010 Artwork
Agreement, and the Court now determines the merits of these claims.
1.

Plaintiffs’ Claim - Reduced Commission
Plaintiffs claim that Vasarely breached the 2010 Artwork

Agreement by reducing plaintiffs’ commission to below 20%.
The only sales for which plaintiffs received a commission
below 20% were auction sales in 2011 and 2012. These auction sales
were

not

governed

by

the

2010

Artwork

Agreement.

Instead,

plaintiffs and Vasarely made a separate agreement pursuant to which
plaintiffs would earn 15% or 12% commission for auction sales.

Civil No. 13-1766 (FAB)

20

Plaintiffs received all commissions that they were owed for these
sales.
The Court finds in favor of defendant Vasarely for
plaintiffs’

breach

commissions.
2.

of

contract

claim

related

to

reduced

The Court DISMISSES this claim.

Plaintiffs’ Claim - Halted Leyba Sales
Plaintiffs claim that Vasarely breached the 2010 Artwork

Agreement

by

halting

certain

sales

to

art

dealer

Leyba.

Specifically, plaintiffs allege that Vasarely agreed to sell the
twenty-eight works of art listed in Docket No. 2-2, including the
1950 Zebres, at certain prices and that after plaintiffs sold or
“earmarked” for sale those pieces, Vasarely arbitrarily increased
their prices or refused to sell them.
Leyba’s clients never reserved or offered to purchase the
twenty-eight works of art listed in Docket No. 2-2, including the
1950 Zebres.

Vasarely did not interfere with any sale to Leyba or

cause any sale to fall through.

The clients simply lost interest

after purchasing Triton, and Leyba decided not to encourage more
sales because he did not want his clients to get involved in the
current litigation initiated by plaintiffs.
The Court finds in favor of defendant Vasarely for
plaintiffs’ breach of contract claim related to the halted sales to
Leyba.

The Court DISMISSES this claim.

Civil No. 13-1766 (FAB)
3.

21

Plaintiffs’ Claim - Certificates of Authenticity
Plaintiffs claim that Vasarely breached the 2010 Artwork

Agreement by delaying delivery of certificates of authenticity for
Kerhon,

Tri-Veg,

Separam,

Emotta,

Bela-IBV,

and

Triton.

Plaintiffs’ claim fails for several reasons.
First, a contractual obligation subject to a condition is
not enforceable until the condition is met.
tit. 31, § 3042.

P.R. Laws Ann.

Here, Vasarely’s contractual obligation to

deliver the certificate of authenticity for a work of art was
conditioned on receiving her full portion of the sale price of the
work.

As the Court will discuss below, see infra Section I. B. 5.,

Vasarely did not receive full payment for her portion of the sales
of Kerhon, Tri-Veg, Separam, Emotta, Bela-IBV, and Triton, which
were

sold

through

Leyba.

Rather,

plaintiffs

concealed

from

Vasarely the true sale prices of the works and instead gave
Vasarely 80% of the lower “base prices.”

Thus, because she did not

receive payment in full, she was not contractually required to
deliver the certificates of authenticity.
Second, it is a “general principle of contract law that
if one party to a contract hinders, prevents or makes impossible
performance by the other party, the latter’s failure to perform
will be excused.”
(2016).

13 Williston on Contracts § 39:3 (4th ed.)

Here, plaintiffs made it impossible for Vasarely to

Civil No. 13-1766 (FAB)

22

deliver certificates of authenticity immediately after the six
works

were

sold

because

photographs

of

clients.

Vasarely

certificates.

the

works

plaintiffs
before

needed

did

delivering

these

not

take

the

photographs

close-up

works
to

to

make

the
the

It took Vasarely several months of communication

back and forth with Leyba to get the necessary information to
complete the certificates.

Plaintiffs cannot complain of a delay

that they themselves caused.
Third, a breach of contract claim lies only when the
breach causes harm.

See P.R. Laws Ann. tit. 31, § 3018.

Here,

plaintiffs have not shown that Vasarely’s delay in delivering
certificates of authenticity harmed them in any way. Specifically,
Leyba testified that the delay in delivering certificates to his
clients had no effect on his clients’ decisions not to purchase
more artwork from plaintiffs.
The Court finds in favor of defendant Vasarely for
plaintiffs’

breach

of

contract

claim

related

to

the

delayed

delivery of certificates of authenticity. The Court DISMISSES this
claim.
4.

Vasarely’s Counterclaim - Campolieto Sale
Vasarely claims that plaintiffs breached the 2010 Artwork

Agreement by keeping more than 20% of the sale price of GestaltRugo.

Plaintiffs sold Gestalt-Rugo to Campolieto for $390,000.

Civil No. 13-1766 (FAB)

23

Pursuant to clause 7 of the Agreement, plaintiffs were entitled to
20% commission, which is $78,000. Plaintiffs instead kept $94,000.
This is $16,000 more than the amount to which they were entitled.
At the summary judgment stage, the Court found that
plaintiffs owed Vasarely at least $12,000 for this breach and that
whether they owe her more would be determined at trial.
No. 408 at p. 31.)
Vasarely’s favor.

(Docket

Partial judgment of $12,000 was entered in

(Docket No. 409 at p. 1.)

The Court finds in favor of defendant Vasarely for her
breach of contract counterclaim related to the Campolieto sale. In
addition to the $12,000 judgment already ordered, the Court ORDERS
plaintiffs to pay Vasarely $4,0008 for this breach.
5.

Vasarely’s Counterclaim - Leyba Sales
Vasarely claims that plaintiffs breached the 2010 Artwork

Agreement by paying her 80% of the “base price” (the price Leyba
paid plaintiffs) instead of 80% of the higher “sale price” (the
price clients paid Leyba).
Clause 7 of the Agreement provides that Vasarely shall
receive 80% of the “sale price” of each work of art sold pursuant
to the Agreement.

8

At the summary judgment stage, the Court

The judgment of $4,000 is the difference between $16,000 (the
commission plaintiffs kept in excess of the $78,000 to which they
were entitled) and $12,000 (the amount the Court ordered plaintiffs
to pay for this breach at the summary judgment stage).

Civil No. 13-1766 (FAB)

24

determined that as a matter of law, the term “sale price” in clause
7 is ambiguous in the context of sales made with a co-broker.
(Docket No. 408 at pp. 7-9.)
Courts should interpret the terms of a contract “in
relation to one another.”

P.R. Laws Ann. tit. 31, § 3475.

If a

contract term is ambiguous, “extrinsic evidence is admissible to
prove the parties’ intent.”

Wells Real Estate Inv. Tr. II, Inc. v.

Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 54 (1st Cir. 2010).

To

determine the contracting parties’ intent, courts should “consider
the occasion, the circumstances, the persons involved, and the
agreement they intended to negotiate.” Ramirez, Segal & Latimer v.
Rojo Rigual, 23 P.R. Offic. Trans. 156 (1989).9

“[A]ttention must

principally be paid to [the parties’] acts, contemporaneous and
subsequent to the contract.”

P.R. Laws Ann. tit. 31, § 3472.

Here, the Court finds that plaintiffs and defendant
Vasarely intended for the term “sale price” to mean the price paid
by the final purchaser if plaintiffs collaborate with an art
dealer, like Leyba, to make a sale.

First, the Agreement refers to

the sale price as the price paid by “the purchaser” and “the
client.”

Leyba did not play the role of purchaser or client.

He

did not buy the works with the intent to keep them or the hope of

9

No pincite is available for this decision.

Civil No. 13-1766 (FAB)

25

reselling them one day.

Rather, after identifying interested

clients, Leyba worked closely with plaintiffs to sell Vasarely’s
works to those clients.

Instead of buying the works with his own

money, Leyba received payment from the clients and transferred
those funds to plaintiffs after deducting his commission.
Second,

Rojas’s

actions

subsequent

to

the Agreement

support this determination of the parties’ intent.

Rojas actively

concealed from Vasarely his commission arrangement with Leyba.

He

never disclosed to her the higher “sale prices,” never delivered to
her copies of the invoices, and led her to believe that the lower
“base prices” were the prices that Leyba’s clients paid.
parties

intended

for

Vasarely

to

receive

80%

of

the

Had the
amount

plaintiffs received after a co-broker took up to 15% in commission,
Rojas

would

not

have

concealed

from

Vasarely

his

commission

arrangement with Leyba.
Third, Vasarely’s actions subsequent to the Agreement
support this intent.

When she finally learned of the commission

arrangement in May 2013, she ended all business with plaintiffs and
demanded that plaintiffs return all of her artwork.
Thus, the Court finds that pursuant to clause 7 of the
2010 Artwork Agreement, defendant Vasarely was entitled to 80% of
the price paid by Leyba’s clients for the sales that plaintiffs
made through co-broker Leyba.

The clients paid Leyba a total of

Civil No. 13-1766 (FAB)

26

$2,676,500 for Vasarely’s artwork. Vasarely was entitled to 80% of
this amount, which is $2,141,200.
$1,868,800.

Vasarely instead received

Plaintiffs owe her the difference, which is $272,400.

The Court finds in favor of defendant Vasarely for her
breach of contract counterclaim related to nonpayment for Leyba
sales.

The Court ORDERS plaintiffs to pay Vasarely $272,400 in

damages for this breach.
6.

Vasarely’s Counterclaim - Unauthorized Inventory
Vasarely claims that plaintiffs breached the 2010 Artwork

Agreement by keeping an unauthorized inventory of her artwork and
by

refusing

to

return

her

artwork

after

she

terminated

the

Agreement.
Pursuant to clause 3 of the Agreement, plaintiffs could
keep more than the original fourteen works only if the parties
amended the consignment list in writing.

Plaintiffs breached this

clause by taking and keeping several of Vasarely’s works of art
without her permission.
this breach

of

contract

Vasarely has not carried her burden for
claim,

however,

because

she

did

not

establish that plaintiffs’ breach caused her any harm or loss. See
P.R. Laws Ann. tit. 31, § 3018. Plaintiffs eventually returned the
artwork to Vasarely, upon the Court’s Order, and there is no
evidence that Vasarely’s lack of possession of her artwork for a
period of time caused any damage.

Civil No. 13-1766 (FAB)

27

The Court finds in favor of plaintiffs for defendant
Vasarely’s breach of contract counterclaim related to plaintiffs’
unauthorized inventory of her artwork.

The Court DISMISSES this

claim.
7.

Vasarely’s Counterclaim - Contract Termination
Vasarely claims that plaintiffs breached the 2010 Artwork

Agreement by refusing to return her artwork after she terminated
the Agreement.
Clause 11 of the Agreement provides that either party can
terminate the Agreement for reasonable cause or for breach of
contract with eight days’ notice.

(Joint Ex. 1 at pp. 4-5.)

The

Agreement does not prescribe how notice of termination must be
provided.

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

and unambiguous.”
36

(1st

Cir.

Jasty v. Wright Med. Tech., Inc., 528 F.3d 28,

2008)

(quoting

Seaboard

Sur.

Co.

v.

Town

of

Greenfield, ex rel. Greenfield Middle Sch. Bldg. Comm., 370 F.3d
215, 223 (1st Cir. 2004)).
Here, after two months of repeatedly asking plaintiffs to
return the artwork that they took and kept without her permission,
Vasarely wrote to plaintiff Rojas warning him that she would cancel
all pending projects if he did not return her artwork by the next
day.

The next day, on May 17, 2013, Vasarely wrote an e-mail to

Civil No. 13-1766 (FAB)

28

Rojas informing him that they were “not going to have any business”
until her works of art were returned.
The Court finds that this was sufficient notice of
Vasarely’s intent to terminate the Agreement.
cause for termination:

It referenced the

Rojas was in breach of the Agreement by

keeping an unauthorized inventory of her artwork.

Although it did

not refer to the Agreement by name, the notice was unambiguous
because the only “business” that Vasarely had with Rojas at that
time was artwork sales pursuant to the Agreement.

The notice was

also clear in the sense that it came after two months of repeated
warnings and complaints to plaintiffs that they were in breach of
the Agreement.
Clause

12

provides

that

plaintiffs

must

return

all

artwork to Vasarely within two days of the Agreement’s termination
or pay Vasarely a $1,000 daily fine.

Puerto Rico law specifically

permits the use of “penal clauses” like this one.
Ann. tit. 31, § 3131.

See P.R. Laws

Penal clauses function “to guarantee the

performance of an obligation” and “to evaluate in advance the
damages

which

may

be

caused

to

[a

party]

by

the

improper

nonperformance of the obligation.” Rochester Capital Leasing Corp.
v. Williams Int’l Ltd., 3 P.R. Offic. Trans. 226, 234 (1974)
(quotation

marks

and

citation

omitted).

“fulfill[] a coercive and punitive purpose.”

Penal
Id.

clauses

also

“As a remedy in

Civil No. 13-1766 (FAB)

29

equity against the strictness or the excessive burden of the penal
clause,” Jack’s Beach Resort, Inc. v. Compania de Turismo de P.R.,
12 P.R. Offic. Trans. 430, 437 (1982), Puerto Rico law permits
courts to “equitably modify the penalty,” P.R. Laws Ann. tit. 31,
§ 3133.

This discretion “is broad but not unfettered,” and courts

consider

the

“balance

between

the

punitive

and

remunerative

functions of penal clauses” in exercising their discretion.

In re

Alvarez, 473 B.R. 853, 863 (B.A.P. 1st Cir. 2012).
Vasarely gave notice of her intent to terminate the
Agreement on May 17, 2013.

Pursuant to clause 11, the Agreement

terminated eight days later and plaintiffs had two additional days
to return Vasarely’s artwork before triggering the stipulated daily
fine.

Thus, the $1,000 daily fine started to accrue on May 28,

2013.

Plaintiffs returned the artwork to Vasarely 255 days later,

on February 7, 2014, resulting in a $255,000 fine.

This penalty is

not excessive considering that the estimated value of the artwork
that plaintiffs kept was between three and ten million dollars.
The Court finds that a modification to the penalty is
warranted, however, for another reason.

When plaintiffs brought

this lawsuit on October 9, 2013, they moved to attach Vasarely’s
works that were in their possession in order to secure judgment.
See Docket Nos. 3, 14.

Vasarely then filed a counterclaim and

moved to replevy many of the works.

See Docket Nos. 35, 47.

From

Civil No. 13-1766 (FAB)
then

on,

the

30

parties’

dispute

concerning

the

Vasarely’s works was properly before the Court.

Agreement

and

Therefore, the

Court finds it equitable to toll the accrual of the daily penalty
from the day that plaintiffs brought this suit.

Accordingly, the

court modifies the penalty to $134,000, which represents $1,000 per
day for the 134 days that passed between May 28, 2013, and
October 9, 2013.
The Court finds in favor of defendant Vasarely for her
breach of contract counterclaim related to the termination of the
2010 Artwork

Agreement.

The

Court

ORDERS

plaintiffs

to

pay

defendant Vasarely $134,000 in damages for this breach.
II.
Plaintiffs

Rojas,

DEFAMATION CLAIM

Inart,

and

Inart

Services

claim

that

defendant Vasarely defamed them, causing damage to their commercial
reputations.
A.

Factual Findings
Beginning in May 2013, Vasarely repeatedly asked Rojas to

return all of her artwork that was in his possession. For example,
in an email dated May 16, 2013, Vasarely wrote:

“If tomorrow prior

to my leaving at one, all of my works of art have not arrived, I
forewarn you that we are going to file a complaint in court.”
(Def. Ex. F.)
email:

The next day, Vasarely asserted to Rojas in an

“We are not going to have any business until . . . all my

Civil No. 13-1766 (FAB)

31

works of art are in my possession.”

(Def. Ex. G.)

On May 23,

2013, Vasarely again asked Rojas to return her artwork and warned
him that “not returning to me what is mine is called stealing.”
(Def. Ex. GG.)

In an email dated June 2, 2013, Vasarely made clear

to Rojas that her works of art that he kept without her permission
and refused to return “had the status of stolen works.”
HH.)

(Def. Ex.

Vasarely told Campolieto and people at the administration

office of the condominium building where Vasarely and Rojas lived
that Rojas was a criminal who stole artwork from her.
No. 507 at pp. 96, 112.

See Docket

Vasarely also told her assistant,

Mr. Daniel Domingo, that Rojas stole artwork from her during her
move to Puerto Rico.

(Docket No. 509 at p. 19.)

On August 21, 2013, Vasarely reported to the Puerto Rico
Police

that

Rojas

took

thirty-three

$5,000,000 from her apartment.

works

of

(Pls. Ex. 58.)

art

valued

at

Vasarely also

reported to the FBI, the Guaynabo Police Department, and the
Bayamón Police Department that Rojas had stolen her property.

See

Docket Nos. 507 at pp. 101-05; 517 at p. 38.
On

October

10,

2013,

Vasarely

wrote

an

email

to

Leyba

informing him that she declared Triton stolen because Rojas took it
and sold it without her permission.

(Pls. Ex. 60 at pp. 5-6.)

Leyba testified that the reason he stopped doing business with
Rojas was because this civil case was filed and because, despite

Civil No. 13-1766 (FAB)

32

Leyba’s mediation efforts, Rojas and Vasarely could not resolve
their dispute.
Rojas

See Docket No. 511 at pp. 51, 56-57.

testified

that

Vasarely’s

statements

“completely

paralyzed” his business because he “specialize[s] in Vasarely” and
can no longer sell Vasarely works.

(Docket No. 507 at p. 106.)

Rojas’s one project selling a non-Vasarely work of art was able to
proceed after he met with the client and explained the situation.
Id. at pp. 107-08.

Rojas chose to delay the sale of that work,

however, until the proceedings in this case are over.

Id.

When Rojas filed this suit in October 2013, he had in his
possession and under his control thirty-one works of art that
belong to Vasarely.

See Docket No. 412 at p. 28; Docket No. 505 at

pp. 6-7; Def. Ex. A.

Rojas estimates that these works are worth

over $10,000,000 in private sales and close to $3,000,000 in
auction sales.

(Docket No. 412 at p. 28.)

Rojas returned the

works to Vasarely on February 7, 2014, pursuant to the Court’s
order.
B.

See Docket Nos. 114; 118; 505 at pp. 6-7.

Legal Conclusions
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,

Civil No. 13-1766 (FAB)

33

Sharp & Dohme (I.A.) Corp., 637 F.3d 38, 43 (1st Cir. 2011) (noting
that Puerto Rico defamation laws follow the common law tradition).
Plaintiffs

base

their

defamation

claim

on

Vasarely’s

statements to various people that Rojas stole artwork from her. To
satisfy

the

first

element,

statements were false.

plaintiffs

must

prove

that

these

Plaintiffs have not carried this burden.

Vasarely made clear to Rojas, beginning in May 2013, that he did
not have permission to have her artwork.

When Rojas brought suit

in October 2013, he admitted to having thirty-one works of art that
belonged to Vasarely.

Because plaintiffs did not show that Rojas

had permission to take and keep Vasarely’s artwork, they did not
prove that Vasarely’s statements that Rojas stole her artwork was
false.
The Court finds in favor of defendant Vasarely for plaintiffs’
defamation claim.

The Court DISMISSES this claim.

III.

POMPARI AND QUASAR-ZETT CLAIM

Plaintiff Rojas claims that defendant Vasarely breached a
verbal agreement by not giving Rojas certificates of authenticity
for the works of art titled Pompari and Quasar-Zett.
A.

Factual Findings
In 2011, Rojas and Vasarely made a verbal agreement pursuant

to which Rojas would travel to Paris, France, for five days to
complete various tasks for Vasarely. See Docket Nos. 412 at p. 35;

Civil No. 13-1766 (FAB)

34

506 at p. 49; 507 at pp. 113-14.

Vasarely gave Rojas a list of

these tasks as well as a list of paintings that she wanted him to
find in her storage facilities in Paris and prepare for shipment to
Puerto Rico.
pp. 115-24.
works

of

See Joint Ex. XCIV; Pls. Ex. 57; Docket No. 507 at
As compensation, Vasarely would give Rojas two small

art

that

they

would

select

as

well

corresponding certificates of authenticity.

as

the

works’

(Docket No. 507 at

pp. 124-25.)
Rojas was in Paris December 12-16, 2011.
p. 35.)

(Docket No. 412 at

During his stay, Rojas went to storage facilities where

Vasarely kept hundreds of paintings by Victor Vasarely and Yvaral.
(Docket No. 507 at p. 114.)

Pursuant to Vasarely’s instructions,

Rojas removed dozens of works of art and prepared them to be
shipped to Puerto Rico.

Id. at p. 115.

He also contacted a

shipping company and communicated to its employees Vasarely’s
specific instructions for moving hundreds of paintings from one
storage facility to another.

Id. at pp. 114, 116-17.

Rojas

supervised this move and completed other minor tasks for Vasarely,
including picking up jewelry and documents.

See id. at pp. 114,

117, 124.
The two works of art that Vasarely and Rojas selected as
Rojas’s compensation for this job were Pompari and Quasar-Zett.
(Docket No. 507 at pp. 124-25.)

Rojas received these works when

Civil No. 13-1766 (FAB)

35

Vasarely came to Puerto Rico in October 2012, (Docket No. 506 at
p. 50), but Rojas never received the corresponding certificates of
authenticity, (Docket No. 507 at p. 125).

Rojas estimates that

together Pompari and Quasar-Zett are worth between $240,000 and
$300,000.

(Docket No. 506 at p. 47.)

Vasarely testified that she never agreed to give Rojas Pompari
and Quasar-Zett in exchange for the work that he did for her in
Paris.

(Docket No. 517 at p. 34.)

She testified that Rojas was

going to Paris for his own business and that she asked him to do
some chores for her while he was there as a small favor between
friends.

Id. at p. 32.

According to Vasarely, the preparation of

the works of art to be shipped to Puerto Rico should have taken
Rojas twenty minutes.

Id.

Vasarely testified that Pompari and

Quasar-Zett together are worth between $350,000 and $380,000,10 and
that the minimal work that Rojas did for her in Paris was worth
less than $5,000.

See id. pp. 33-34.

The Court does not credit Vasarely’s testimony and finds
Rojas’s testimony more credible in this regard. First, finding and
preparing for shipment the several dozen paintings that Vasarely
indicated in her list, see Joint Ex. XCIV; Pls. Ex. 57, is a task

10

In a different context on a different day of trial, Vasarely
testified that Pompari and Quasar-Zett were worth $160,000 each.
(Docket No. 514 at pp. 83-84.)

Civil No. 13-1766 (FAB)

36

that would have taken much longer than twenty minutes.

Second,

although compensation valued at around $350,000 for five days of
work seems incredible, supervising the move of hundreds of valuable
Victor Vasarely and Yvaral works was a job that Vasarely considered
extremely important. Days before the trip, Vasarely wrote to Rojas
warning him to be “extremely focused” when in France and to not
make “any mistakes” because “the price to pay for those mistakes”
could be “very heavy.”
B.

See Joint Ex. XCIII at p. 3.

Legal Conclusions
Pursuant to Puerto Rico law, a contract has three elements:

a definite and legal object, consideration, and consent. P.R. Laws
Ann. tit. 31, § 3391; Citibank Glob. Mkts., Inc. v. Rodriguez
Santana, 573 F.3d 17, 24 (1st Cir. 2009).
valid and enforceable.

Verbal contracts are

See P.R. Laws Ann. tit. 31, § 3451.

But

see id. § 3453 (enumerating certain types of contracts, not present
here, that have additional requirements regarding form).

When a

party to a contract does not fulfill his or her obligations, the
aggrieved party has the right to seek specific performance.

Id.

§ 3052.
The Court finds that Rojas and Vasarely entered into a valid
contract:
Vasarely

its object was Rojas’s performance of various tasks for
in

Paris;

its

consideration

was

Rojas’s

receipt

of

Pompari, Quasar-Zett, and the works’ certificates of authenticity;

Civil No. 13-1766 (FAB)

37

and the parties verbally consented to the agreement.

Rojas upheld

his end of the bargain by completing the tasks in Paris.

Although

Vasarely surrendered Pompari and Quasar-Zett, she did not surrender
certificates of authenticity for the works.
those certificates.

Rojas is entitled to

See P.R. Laws Ann. tit. 31, § 3052.

The Court finds in favor of plaintiff Rojas for his breach of
contract claim concerning delivery of certificates of authenticity
for Pompari and Quasar-Zett.

The Court ORDERS defendant Vasarely

to deliver to plaintiff Rojas complete certificates of authenticity
for Pompari and Quasar-Zett.
IV.

BREACH OF AGENCY AND DEPOSITUM CONTRACTS COUNTERCLAIM

Defendant Vasarely claims that plaintiff Rojas breached agency
and depositum contracts11 when he assisted with the shipment of
Vasarely’s belongings from Chicago to Puerto Rico.
A.

Factual Findings
Vasarely moved from Chicago to Puerto Rico in October 2012.

(Docket No. 517 at p. 36.)

As part of this move, Vasarely shipped

a substantial amount of personal belongings, including artwork.

11

Defendant Vasarely uses the terms “mandate” and “consignment” to
describe the contracts.
See Docket No. 412 at pp. 18-19.
The
Puerto Rico Civil Code provisions that she relies on for these
claims, however, use the terms “agency” and “depositum.” See id.;
P.R. Laws Ann. tit. 31 §§ 4421, 4621. The Court uses the terms
“agency” and “depositum” to be consistent with the Puerto Rico
Civil Code.

Civil No. 13-1766 (FAB)
(Docket No. 412 at p. 32.)

38
Vasarely testified that Rojas agreed to

“take care of everything” for her move to Puerto Rico and the
shipment of her belongings.

(Docket No. 512 at pp. 102-03.)

Rojas hired a company to pack and ship Vasarely’s things in
Chicago.

See Docket No. 512 at p. 104.

Vasarely oversaw a

representative from this company, Mr. Bill Mamer (“Mamer”), pack
the things in her Chicago apartment.
No. 516 at pp. 26-27.

Id. at pp. 103-04; Docket

Rojas oversaw Mamer pack items that Vasarely

kept in four Chicago storage warehouses.

See Docket Nos. 512 at

p. 105; 520 at pp. 79-83.
Vasarely did not write down an inventory of the items that
were packed and shipped, (Docket No. 516 at pp. 49-53), and she did
not ask Rojas to perform an inventory of the items shipped from her
Chicago storage warehouses, (Docket No. 520 at p. 83).

The

shipping company’s packing lists give very general descriptions of
the items packed.

See Joint Exs. XXXIV-XXXVIII.

For example, one

packing list describes the container’s contents as fifteen clothing
items, five linen items, ten kitchenware items, and ninety ceramic
and metal statues.

(Joint Ex. XXXIV.)

Five containers filled with hundreds of boxes of Vasarely’s
goods were shipped from Chicago to Puerto Rico.
Nos. 412

at

pp. 32-33;

508 at

p.

7.

Even

See Docket

though

Vasarely

instructed Rojas to put the shipments under her name, (Docket

Civil No. 13-1766 (FAB)

39

No. 512 at p. 114), the containers were registered under various
misspellings of “Luis Rojas,” (Docket No. 412 at pp. 32-33).
Rojas
September

received
19,

the

September

December 20, 2012.

Id.

five
20,

containers
October

in

12,

Puerto

December

Rico
14,

on
and

He unloaded them at La Cima (a condominium

building where both Rojas and Vasarely lived) and at a storage
facility.

See Docket No. 412 at pp. 32-34.

Even though Vasarely

instructed Rojas to lease the storage units in her name, (Docket
No. 517 at p. 14), he leased them in his and his company’s names,
(Docket No. 412 at p. 34).

Rojas hired two assistants to help him

unload and move the items.

(Docket No. 508 at p. 105.)

A sixth container filled with Vasarely’s belongings was sent
from Chicago to a storage facility in New Jersey, where it was
unloaded and divided into two smaller containers.
at p. 33.)
to

New

(Docket No. 412

Rojas explained that the reason the container was sent

Jersey

was

because

Vasarely

was

moving

from

a

large

apartment in Chicago to a small apartment in Puerto Rico, and
everything would not fit in the small apartment.
at p. 85.)

(Docket No. 520

Vasarely and Rojas negotiated free storage at the New

Jersey facility, and Vasarely was storing items purchased at
auctions there.

Id.

The plan was to keep the two containers and

the auction items in New Jersey until Vasarely moved into her
larger apartment in Puerto Rico.

Id. at pp. 85-86.

Vasarely

Civil No. 13-1766 (FAB)

40

received the two containers in Puerto Rico in June 2013.

(Docket

No. 412 at p. 33.)
In June and July of 2013, when Vasarely moved to the larger
apartment in La Cima, she realized that she was missing many of her
belongings.

(Docket Nos. 510 at p. 36; 512 at p. 109.)

Vasarely

identified with color photographs dozens of pieces of furniture and
antiques that she claims are missing.
at pp. 6-22.)

(Def. Ex. W; Docket No. 514

She estimates that these things are worth between

$600,000 and $700,000.

(Docket No. 514 at p. 22.)

She also claims

to be missing Victor Vasarely paintings worth about $4,115,000,
Yvaral works worth about $1,000,000, and dozens of smaller works
worth about $1,656,000.
B.

See id. at pp. 81-90, 98; Def. Ex. III.

Legal Conclusions
1.

Agency Contract
Article 1600 of the Puerto Rico Civil Code provides that

an agency contract is a contract in which a person (the agent)
“binds himself to render some service, or to do something for the
account or at the request of another” person (the principal). P.R.
Laws Ann. tit. 31, § 4421.

An agency contract “may be express or

implied,” id. § 4422, and the agent is presumed to perform his or
her services gratuitously, id. § 4423.
obligations,

the

agent

must

“follow

In fulfilling his or her
the

instructions

of

the

principal,” id. § 4442, and is “liable for the losses and damages

Civil No. 13-1766 (FAB)

41

caused to the principal through [the agent’s] noncompliance,” id.
§ 4441.
The Court finds that Vasarely and Rojas formed an agency
contract pursuant to which Rojas would (1) hire a company to pack
Vasarely’s belongings in Chicago and to ship them to Puerto Rico,
(2) lease storage units in Puerto Rico, and (3) unload and store
Vasarely’s

belongings

in

Puerto

Rico.

Vasarely

specifically

instructed Rojas to ship the items and lease the storage units in
her name, but Rojas did not follow this instruction.

The Court

finds that this was Rojas’s only breach of the agency agreement and
that he fulfilled all other obligations.
Vasarely has not carried her burden of proving that this
single breach caused any loss to her.

There is no evidence that,

for example, the fact that the shipments and storage units were not
in her name prevented her from communicating with the shipping
company, receiving the containers, or accessing the storage units.
There is also no evidence from which the Court could conclude that
this breach caused items to be lost.
The Court finds in favor of plaintiff Rojas for defendant
Vasarely’s breach of agency contract counterclaim.
DISMISSES this claim.

The Court

Civil No. 13-1766 (FAB)
2.

42

Depositum Contract
Pursuant to the Puerto Rico Civil Code, a depositum

contract is “a contract whereby one person (the depositor) hands a
piece of personal property to another person (the depositary) for
the sole purpose of having the depositary keep, conserve, and
return the property.”

Jewelers Mut. Ins. Co. v. N. Barquet, Inc.,

410 F.3d 2, 12 (1st Cir. 2005).

The depositary is presumed to

perform his or her services gratuitously “unless there is an
agreement to the contrary.”

P.R. Laws Ann. tit. 31, § 4641.

A

depositum contract is constituted “from the time [the depositary]
receives a thing belonging to [the depositor] with the obligation
of keeping and returning it.”

Id. § 4621; see Jewelers Mut. Ins.,

410 F.3d 2 at 13 (noting that the Puerto Rico Supreme Court focuses
on whether the depositary received the thing to determine whether
the parties formed a depositum contract).
The depositary must safeguard the deposited items “with
the diligence pertaining to a good father of a family.”

See id.

§§ 3021, 4661; Jewelers Mut. Ins., 410 F.3d 2 at 14-15 (explaining
that the Puerto Rico Supreme Court interprets the “good father”
standard

as

one

of

exercising

“the

proper

diligence,

which

generally should be that which an average or normal type of
diligent person would have exerted” (quoting Am. Sec. Ins. Co. v.
Ocasio, 102 P.R. Offic. Trans. 207, 212 (1974)) (internal quotation

Civil No. 13-1766 (FAB)
marks omitted)).

43

The depositary must return the items to the

depositor “when required,” P.R. Laws Ann. tit. 31, § 4661, and the
depositary is liable “for the losses and damages caused” by his or
her “fraud, negligence, or delay,” id. §§ 3018, 4661.
The Court finds that a depositum contract was formed when
Rojas

received

belongings.

the

five

containers

filled

with

Vasarely’s

Pursuant to Vasarely’s instructions, upon receiving

the containers, Rojas stored their contents at La Cima and in
leased storage warehouses.

Vasarely has not demonstrated that

Rojas failed to exercise proper diligence and care in handling and
keeping these items.

Further, Vasarely has not proven that the

items that she claims are missing were received by Rojas because
the five containers’ contents were never inventoried.

Therefore,

she has not proven that Rojas failed to return deposited items
because

she

deposited.

has

not

demonstrated

which

specific

items

were

Thus, Vasarely’s has failed to prove her breach of

depositum contract claim concerning the five containers.
The Court finds that a depositum contract was not formed
between Vasarely and Rojas when the sixth container was shipped
from Chicago to New Jersey.

The container’s contents remained at

the New Jersey storage facility until Vasarely received them in
Puerto Rico.

Rojas never received the container or its contents,

and receipt of the thing deposited is a requirement for the

Civil No. 13-1766 (FAB)

44

formation of a depositum contract.

See P.R. Laws Ann. tit. 31,

§ 4621.
The Court finds in favor of plaintiff Rojas for defendant
Vasarely’s breach of depositum contract counterclaim.

The Court

DISMISSES this claim.
V.

CHICAGO CONDOMINIUM COUNTERCLAIM

Defendant Vasarely claims that plaintiff Rojas negligently and
in bad faith undersold her property at 910 S. Michigan Street,
Unit 1904, Chicago, Illinois (“the Chicago condo”), causing her to
suffer a loss of $335,000.
A.

Factual Findings
In 2003-2004, the Chicago condo was purchased in Rojas’s name

for $1,160,000.

(Docket No. 412 at p. 31.)

remodeled for an additional $250,000.

Id.

The property was

On September 3, 2010,

Rojas signed a “Memorandum of Note” pursuant to which the net
proceeds of the sale of the Chicago condo would be paid to
Vasarely.

Id. at p. 32.

up for sale.

Around November 2010, the condo was put

(Docket No. 520 at p. 92.)

During this time,

Vasarely handled the sale directly with a realtor.
Vasarely received some offers:

Id. at p. 93.

Rojas recalled one offer for

$950,000, and Vasarely recalled another offer for $1,100,000.
id. at p. 95; Docket No. 517 at p. 49.

See

Vasarely did not accept the

Civil No. 13-1766 (FAB)

45

offers because she thought that they were too low, and she took the
condo off the market.

(Docket No. 516 at p. 77.)

After Vasarely moved from Chicago to Puerto Rico in October
2012, Rojas took over handling the sale of the Chicago condo.
Docket No. 517 at pp. 36, 49-50.

See

He hired a realtor and suggested

to Vasarely that they sell the condo for $1,100,000.

Id. at p. 50.

She disagreed, arguing that $1,100,000 was too low and that an
appraisal needed to be done.

Id.

Nonetheless, Rojas sold the

Chicago condo without an appraisal for $1,075,000 on April 15,
2013.
B.

(Docket No. 412 at p. 32.)

Legal Conclusions
Pursuant to Puerto Rico law, when a party is “guilty of fraud,

negligence, or delay” in fulfilling its contractual obligations,
the aggrieved party is entitled to the “losses and damages” caused
by the fraud, negligence, or delay.

P.R. Laws Ann. tit. 31,

§ 3018.
The Court finds that Vasarely has not carried her burden on
this counterclaim because she did not prove that she suffered any
loss or damage caused by Rojas’s sale of the Chicago condo for
$1,075,000 in April 2013.

The only evidence Vasarely presented to

show the value of the condo in April 2013 was the condo’s 2003-2004
purchase

price

($1,160,000)

renovations ($250,000).

and

the

additional

value

of

its

As the Court explained at the summary

Civil No. 13-1766 (FAB)

46

judgment stage, 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.

See Docket No. 408 at p. 29.

factors can affect a property’s value.

Other

Vasarely concedes in her

proposed conclusions of law that “[w]ithout . . . an appraisal, it
is impossible to know whether Rojas sold the property under value,
at value[,] or above value.”

(Docket No. 525-2 at p. 46.)

Because

Vasarely did not present evidence from which the Court could
conclude that Rojas sold the Chicago condo for less than it was
worth, she has not proven that she suffered any loss.
The Court finds in favor of plaintiff Rojas for defendant
Vasarely’s counterclaim related to the alleged negligent sale of
the Chicago Condo.
VI.

The Court DISMISSES this counterclaim.

TORT COUNTERCLAIM SEEKING DAMAGES FOR MENTAL ANGUISH

Defendant Vasarely claims that plaintiff Rojas’s tortious acts
caused her to suffer mental anguish since she arrived in Puerto
Rico in 2012.
A.

Factual Findings
Rojas encouraged Vasarely to move from Chicago to Puerto Rico.

(Docket No. 510 at pp. 38-39.)

He promised her that she was going

to have a “new life” and that he would help and protect her.
at pp. 29, 38-39.

Id.

Since Vasarely arrived in Puerto Rico in

Civil No. 13-1766 (FAB)

47

October 2012, her life has been what she describes as “a nightmare”
due to Rojas.

Id. at p. 39.

Sometime after Vasarely arrived in Puerto Rico, she began to
realize that Rojas was taking artwork from her storage without her
permission.

(Docket No. 510 at p. 44.)

On March 14, 2013,

Vasarely emailed Rojas requesting that he give her the keys to her
storage and a list of the works of art that he took from her
storage.

(Def. Ex. B.)

Between May and October 2013, Vasarely

wrote several emails to Rojas requesting that he return to her the
keys to her storage and all of the artwork that belongs to her.
See Def. Exs. D-H, K, GG, HH, LL.

The emails demonstrate that

Vasarely was concerned, stressed, anxious, and upset.
Rojas ignored her repeated requests.
pp. 33-35.)

(Docket No. 110 at

Instead, he kept at least thirty-one of Vasarely’s

works of art, worth between $3,000,000 and $10,000,000, until the
Court ordered him to return them to Vasarely in February 2014.
Docket Nos. 412 at p. 28; 505 at pp. 6-7.

See

There was no valid

justification for Rojas keeping these works.
When asked how Rojas’s actions have affected her health,
Vasarely testified as follows:

“I have [had] a very severe and

irreversible illness for many years now.

There’s no treatment, no

surgery.

And it’s written in the

It’s just pain all the time.

doctor’s paper, and it’s directly stress related.

So when there

Civil No. 13-1766 (FAB)

48

isn’t much stress, I can more or less get by.
stress, I cannot walk.

I have to stay in bed.”

But when there’s
(Docket No. 517 at

p. 60.)
Rojas was aware of Vasarely’s illness.

In an email dated May

14, 2013, Vasarely explained to Rojas as follows:

“You know that

I am seriously physically ill, with many risks, very emotionally
damaged, and that the worst thing for me is stress.”

(Def. Ex.

FF.)
B.

Legal Conclusions
Article 1802 of the Puerto Rico Civil Code provides that a

“person who by an act or omission causes damage to another through
fault or negligence shall be obliged to repair the damage so done.”
P.R. Laws Ann. tit. 31 § 5141.

To prevail in an Article 1802

claim, “a plaintiff must prove, by a preponderance of the evidence,
the following elements:

(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) (Besosa, J.) (citing
Baco v. Almacen Ramon Rosa Delgado, Inc., 151 P.R. Dec. 711, 725
(2000)).
Puerto Rico law recognizes two types of recoverable damages:
pecuniary or economic damages, and moral damages.
Diaz Arocho, 165 P.R. Dec. 408, 428 (2005).

Rivera Colon v.
The Puerto Rico

Civil No. 13-1766 (FAB)

49

Supreme Court defines moral damages as “the damage inflicted on the
beliefs, feeling, dignity, social esteem, or physical or mental
health of the injured party.”
not

depend

evidence.”

“solely

on

Id. at 431.

Id.

material

Determining moral damages does
facts

and

purely

objective

Rather, “it is an undertaking that

tolerates a certain degree of speculation, inasmuch as it relies,
to a greater extent than [economic] damages, on subjective factors
such as the discretion, the sense of justice and the humane
conscience of the trier of facts.”

Id.

Here, the Court finds that plaintiff Rojas acted with fault
and

negligence

when

he

ignored

defendant

Vasarely’s

repeated

requests to return her valuable artwork and the keys to the
warehouses where she stored artwork and personal belongings.
had no right to keep the items.

He

The Court also finds that Rojas’s

actions caused Vasarely to become extremely stressed and anxious.
Even though Vasarely’s emails put Rojas on notice that the stress
he caused was exacerbating her physical condition, he did nothing
right his wrongs.

Instead of simply returning the things that

belonged to her, Rojas brought this lawsuit against Vasarely.
The Court finds that Rojas owes Vasarely $5,000 in moral
damages for the mental anguish that he caused her to suffer between
March and October 2013.

Civil No. 13-1766 (FAB)

50

The Court finds in favor of defendant Vasarely for her tort
The Court ORDERS plaintiff Rojas to pay Vasarely

counterclaim.

$5,000 in moral damages.
VII.

DEFENDANT VASARELY’S WRIT OF REPLEVIN

Defendant Vasarely moves to replevy dozens of works of art,
furniture, and other items that she claims belong to her and are in
the wrongful possession of plaintiff Rojas.

See Docket No. 412 at

pp. 6-10.
A.

Factual Findings
1.

La Bergere
Vasarely provided an index card from her files that shows

a color photograph of La Bergere and identifies the painting’s
title, size, and year.
La
painted.

Bergere

(Def. Ex. DDD at p. 1.)
is

the

first

work

(Docket No. 512 at p. 83.)

that

Victor

He gave it to defendant

Vasarely as a gift on the condition that it never be sold.
No. 514 at pp. 41-42.)

Vasarely

(Docket

A letter from Victor Vasarely dated

September 2, 1988, states that he gave Vasarely La Bergere as a
gift.

(Def. Ex. DDD at p. 3.)
Rojas took La Bergere and refused to give it back to

Vasarely.

(Docket No. 512 at pp. 83-85.)

Rojas took it “just to hurt [her].”

Id.

Vasarely testified that
La Bergere was in Rojas’s

custody until April 8, 2015, when he deposited it in a storage

Civil No. 13-1766 (FAB)

51

warehouse pursuant to the Court’s Order and delivered the warehouse
key to the Clerk of the Court.
2.

(Docket No. 402.)

Pompari and Quasar-Zett
Vasarely provided index cards from her files that show

color photographs of Pompari and Quasar-Zett and identify the
paintings’ titles, sizes, and years.
As

discussed

above,

see

(Def. Ex. DDD at pp. 32-33.)
Section

III.

A.,

defendant

Vasarely gave plaintiff Rojas Pompari and Quasar-Zett in exchange
for work that he performed for her in Paris, France, in 2011.
Pompari and Quasar-Zett were in Rojas’s custody until
April 8, 2015, when he deposited them in a storage warehouse
pursuant to the Court’s Order and delivered the warehouse key to
the Clerk of the Court.
3.

(Docket No. 402.)

Grilles II, Helios Neg, Tridim-S, and Tsoda
Vasarely provided index cards from her files that show

color photographs of Grilles II, Helios Neg, Tridim-S, and Tsoda,
and identify the paintings’ titles, sizes, and years.

(Def. Ex.

DDD at pp. 9-10, 35-37.)
In 1981 and 1985, Dr. Luis Rojas (plaintiff Rojas’s
father) purchased a total of eleven Victor Vasarely paintings from
an art gallery in Venezuela.

(Pls. Ex. 45.)

On September 2, 2002,

Dr. Rojas gave custody of eight of these works, including Grilles
II, Helios Neg, Tridim-S, and Tsoda, to plaintiff Rojas to exhibit

Civil No. 13-1766 (FAB)

52

in international shows.

(Def. Ex. WWW.)

Dr. Rojas also gave

plaintiff Rojas “the right to sell or exchange” the works in
Dr. Rojas’s name.

Id.

On September 25, 2002, Rojas consigned

these works to Vasarely “for exhibits or possible sale.”

Id.

From 2008 to 2012, Vasarely was involved in a civil
lawsuit

against

Illinois.

Mr.

Thomas

Monahan

(“Monahan”)

in

See Docket No. 512 at p. 102; Pls. Ex. 64.

Chicago,

During that

litigation, the court took custody of hundreds of works of art that
Vasarely stored in Chicago.
Ex. 47.
Tsoda.

See Docket No. 514 at p. 92, Pls.

Among the works seized were Grilles II, Tridim-S, and
See Pls. Ex. 47.

On January 20, 2009, Vasarely wrote to

Dr. Rojas expressing that she regretted the situation with the
Monahan case and hoped that Dr. Rojas’s works that were seized,
including Grilles II, Tridim, and Tsoda, would be returned to him
in March or April.

(Pls. Ex. 70.)

On September 22, 2010, Dr. Rojas and Vasarely signed an
agreement (the “September 2010 agreement”) in which, among other
things, Vasarely

recognized

that

Dr.

Rojas

was

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

the

owner of

(Joint Ex. LX at

pp. 1-2.)

Dr. Rojas currently claims that he owns these four

paintings.

(Docket No. 518 at pp. 66, 71, 73.)
Vasarely

claims

that

she

is

the

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

rightful

owner

of

She claims that on

Civil No. 13-1766 (FAB)

53

February 5, 2009, she and Rojas signed an agreement (the “February
2009 agreement”) pursuant to which Rojas gave her these four
paintings, along with five others, to satisfy a debt that Rojas and
his family owed to Vasarely.

See Def. Ex. UU; Docket No. 514 at

pp. 63-64, 108-10; Docket No. 515 at pp. 33-34.

The nine paintings

that Rojas allegedly gave Vasarely were works that Dr. Rojas had
purchased from the Venezuelan art gallery in the 1980s.
Ex. 45; Def. Ex. UU.

See Pls.

The alleged debt was from cash that Rojas and

Dr. Rojas received from Dr. Zalduondo for sales of defendant
Vasarely’s artwork.

(Def. Ex. UU.)

Rojas denies that he signed

the February 2009 agreement, (Docket No. 521 at p. 37), and
Dr. Rojas claims that the agreement is “a total falsehood,” (Docket
No. 518 at pp. 76-79).
Vasarely alleges that she signed the September 2010
agreement because Rojas encouraged her to falsely represent to the
Chicago court that Dr. Rojas owned the works that Rojas had given
her in February 2009.
pp. 135-36.)

(Docket Nos. 514 at pp. 114-15; 522 at

This way, the works listed in the September 2010

agreement that had been seized by the Chicago court would be
returned to Dr. Rojas, and he would give them to Vasarely.

(Docket

Nos. 514 at pp. 114-15; 522 at pp. 135-36.)
Vasarely estimates that Grilles II, Helios Neg, Tridim-S,
and Tsoda are worth $400,000, $700,000, $350,000, and $400,000,

Civil No. 13-1766 (FAB)
respectively.

54

(Docket No. 514 at pp. 82, 84.)

These four works

were in Rojas’s custody until April 8, 2015, when he deposited them
in a storage warehouse pursuant to the Court’s Order and delivered
the warehouse key to the Clerk of the Court. (Docket No. 402.)
4.

Sofa and Warhol Print
Vasarely provided a color photograph of an eighteenth-

century sofa that she claims belongs to her.
No. 513 a pp. 35-37.)

(Def. Ex. SS; Docket

Rojas took the sofa from Vasarely in 2009.

(Docket No. 513 at p. 37.)

In March 2009, Vasarely wrote an email

to Rojas asking him to return her furniture, including the sofa.
(Def. Ex. QQ; Docket No. 513 at pp. 38-39.)
sofa in Rojas’s apartment in Puerto Rico.

Vasarely last saw the
(Docket No. 513 at

p. 37.)
Vasarely also provided a color photograph of a Marilyn
print by Andy Warhol that she claims belongs to her.
Docket No. 513 at p. 45.)
2009.

Rojas took the print from Vasarely in

(Docket No. 513 at p. 45.)

Since 2009, Vasarely has asked

Rojas to return the print to her, but he refuses.
No. 522 at p. 137.

(Def. Ex. NN;

Id.; Docket

Vasarely last saw the print in Rojas’s

apartment in November 2012.

(Docket No. 513 at p. 45.)

Rojas testified that he has the sofa and the Warhol
print.

(Docket No. 521 at p. 28.)

Civil No. 13-1766 (FAB)
B.

55

Legal Conclusions
Article 393 of the Puerto Rico Civil Code provides that “any

person who has lost any movable property or has been illegally
deprived thereof, may recover it from the person in possession of
the same.” P.R. Laws Ann. tit. 31, § 1479.

Similarly, Article 280

of the Puerto Rico Civil Code gives owners “a right of action
against the holder and the possessor of the thing [that he or she
owns] in order to recover it.”

Id. § 1111.

Pursuant to these two

articles, a petitioner seeking to replevy an object must (1)
adequately identify the object, (2) prove that she owns it, and
(3) prove that the opposing party improperly possesses it. Ramirez
Quiñones v. Soto Padilla, 168 P.R. Dec. 142, 157 (2006).

As to the

second element, the owner must affirmatively prove her title to the
property rather than merely argue that the opposing party lacks
title.

Id.

Article 1868 of the Puerto Rico Civil Code imposes a one-year
statute of limitations on replevin claims. P.R. Laws Ann. tit. 31,
§ 5298(1).

The statute of limitations begins to run “at the time

a reasonably diligent person would discover sufficient facts to
allow her to realize that she’d been injured and to identify the
party responsible for that injury.”

Rivera-Carrasquillo v. Centro

Ecuestre Madrigal, Inc., 812 F.3d 213, 216 (1st Cir. 2016).

Civil No. 13-1766 (FAB)
1.

56

La Bergere
Defendant Vasarely seeks to replevy La Bergere.

As to

this work, Vasarely has established the three elements of her
replevin claim.

First, she adequately identified the object by

providing its title, size, and year, as well as a color photograph
of it.

Second, she proved that she owns La Bergere through a

letter from the artist that states that he gave it to her as a
gift.

Third, she established that La Bergere was in Rojas’s

possession before the Court ordered him to deposit it in a storage
warehouse, and that he did not have a right to possess it.
The Court GRANTS defendant Vasarely’s writ of replevin as
to La Bergere.
2.

Pompari and Quasar-Zett
Defendant Vasarely seeks to replevy Pompari and Quasar-

Zett.

Vasarely has not established the second and third elements

for this replevin claim.

As to the second element, she does not

own the works because she gave them to Rojas as compensation for
work that he did for her in Paris in 2011.

As to the third

element, although Rojas had possession of the works before the
Court ordered him to deposit them in a storage warehouse, Vasarely
has not proven that his possession was improper.
The Court DENIES defendant Vasarely’s writ of replevin as
to Pompari and Quasar-Zett.

Civil No. 13-1766 (FAB)
3.

57

Grilles II, Helios Neg, Tridim-S, and Tsoda
Defendant Vasarely seeks to replevy Grilles II, Helios

Neg, Tridim-S, and Tsoda.

Vasarely has not established the second

and third elements for this replevin claim.
As to the second element, Vasarely’s only proof that she
owns the four works is an agreement that she claims was signed by
her and Rojas in February 2009.

Assuming that the February 2009

agreement is valid,12 it was nonetheless superseded by the September
2010 agreement signed by Dr. Rojas and Vasarely in which Vasarely
admits that Dr. Rojas owned the four works at that time.

The Court

does not credit Vasarely’s testimony that the September 2010
agreement was drafted to make a false representation to the Chicago
court.

Thus,

the

September

2010

agreement

establishes

that

Dr. Rojas owned the four works in September 2010, and Vasarely

12

The Court seriously questions the validity of the February 2009
agreement that purports to give Vasarely title to nine paintings in
exchange for the satisfaction of a debt that the Rojas family owed
Vasarely. First, the agreement does not state or even estimate the
amount of debt owed to Vasarely. The Court would expect this level
of detail in an agreement effecting the transfer of nine valuable
works of art. Second, Vasarely estimates that four of the nine
works are worth $1,850,000.
Vasarely presented no evidence to
prove that the Rojas family owed her a debt that was anywhere near
this high amount.
Third, two weeks before the agreement was
allegedly signed, Vasarely acknowledged in a letter to Dr. Rojas
that she understood that he owned three of the nine works. The
Court would expect Vasarely to require Dr. Rojas’s signature on an
agreement transferring title of these works just two weeks later,
but only Rojas and Vasarely signed the agreement.

Civil No. 13-1766 (FAB)

58

presented no evidence that she acquired title to the four works
after September 2010.

Accordingly, the Court concludes that

Vasarely has not proven that she owns Grilles II, Helios Neg,
Tridim-S, and Tsoda.
As to the second element, although Rojas had possession
of the four works before the Court ordered him to deposit them in
a storage warehouse, Vasarely has not proven that his possession
was improper.
The Court DENIES defendant Vasarely’s writ of replevin as
to Grilles II, Helios Neg, Tridim-S, and Tsoda.
4.

Sofa and Warhol Print
Defendant Vasarely seeks to replevy a sofa and a Warhol

print.

Rojas raises a statute of limitations defense.

No. 528 at p. 86.

See Docket

Since 2009, Vasarely has known that Rojas

wrongfully possesses her sofa and Warhol print and has asked him to
return the items.

Therefore, the one-year statute of limitations

for Vasarely’s replevin action as to these items began to run in
2009. Vasarely waited until 2013 to bring her replevin claim.
Docket

Nos.

47,

47-2.

limitations period.

This

is

well

outside

the

See

one-year

Accordingly, Vasarely’s replevin claim as to

the sofa and Warhol print is time-barred.
The Court DENIES defendant Vasarely’s writ of replevin as
to the sofa and the Warhol print.

Civil No. 13-1766 (FAB)
5.

59

Other Artwork, Furniture, and Items
Defendant Vasarely seeks to replevy nineteen additional

Victor Vasarely paintings, thirty-eight Yvaral works, dozens of
smaller

pieces

of

artwork

(including

drawings

and

collages),

various pieces of furniture and home decoration ornaments, and nine
plastic boxes filled with documents.

See Docket No. 412 at pp. 6-

10; Def. Exs. W & DDD (color photographs of many of the works of
art,

pieces

replevy).

of

furniture,

and

items

that

Vasarely

seeks

to

Vasarely has not established the third element for this

replevin claim because she has not proven that plaintiff Rojas
possesses these objects.
As to the works of art, Vasarely explained that she
searched for them in her storage warehouses and could not find
them.

(Docket No. 514 at pp. 101-02.)

She believes that Rojas has

them because he is the one that handled them during her move to
Puerto Rico in 2012 and because she “can’t see who else it could
be” who has them. Id. at pp. 102-03.
furniture,

Vasarely

testified

that

she

As to the pieces of
last

saw them

in

her

apartment in Chicago when they were packed to be shipped to Puerto
Rico.

(Docket No. 513 at p. 24.)

When Vasarely realized that she

was missing many items after her move to Puerto Rico, Rojas did not
help her locate them.

(Docket No. 513 at p. 22.)

Rojas testified

Civil No. 13-1766 (FAB)

60

that he does not have these works, pieces of furniture, or other
items.

(Docket Nos. 521 at pp. 28-29; 522 at pp. 56-57.)
The Court finds that Vasarely’s speculations and scant

circumstantial evidence are not enough to demonstrate, even by a
preponderance of the evidence, that Rojas possesses the artwork,
furniture, and items that she claims that she is missing.
The Court DENIES defendant Vasarely’s writ of replevin as
to the remaining artwork, furniture, and items that were not
discussed above in Sections VII. B. 1-4.
VIII.

CONCLUSION

After consideration of the evidence presented at trial and in
light of the aforementioned findings of fact and conclusions of
law, the Court ORDERS as follows:
1.
Judgment in favor of defendant Vasarely for her breach of
contract counterclaim related to the Campolieto sale.
In
addition to the $12,000 judgment previously ordered,
plaintiffs shall pay Vasarely $4,000 for this breach.
2.
Judgment in favor of defendant Vasarely for her breach of
contract counterclaim related to nonpayment for Leyba sales.
Plaintiffs shall pay Vasarely $272,400 for this breach.
3.
Judgment in favor of defendant Vasarely for her breach of
contract counterclaim related to the termination of the 2010
Artwork Agreement. Plaintiffs shall pay Vasarely $134,000 for
this breach.
4.
Judgment in favor of plaintiff Rojas for his breach of
contract claim concerning Pompari and Quasar-Zett. Defendant
Vasarely shall deliver to Rojas complete certificates of
authenticity for Pompari and Quasar-Zett.

Civil No. 13-1766 (FAB)

61

5.
Judgment in favor of defendant Vasarely for her tort
counterclaim. Plaintiff Rojas shall pay Vasarely $5,000 in
moral damages.
6.
Plaintiffs’ remaining claims and defendant Vasarely’s
remaining counterclaims are DISMISSED WITH PREJUDICE.
7.
Defendant Vasarely’s writ of replevin is GRANTED as to La
Bergere and DENIED as to the remaining works of art,
furniture, and items. When the Court orders the Clerk of the
Court to surrender the key to the warehouse where La Bergere
is stored, Vasarely shall take possession of La Bergere.
8.
The Court VACATES the Order enjoining plaintiffs and
defendant Vasarely from selling or moving artwork by Victor
Vasarely and Yvaral.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 5, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE