          United States Court of Appeals
                     For the First Circuit


No. 16-2343

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

                     Plaintiffs, Appellees,

                               v.

                   MICHELE TABURNO-VASARHELYI,
                 a/k/a Michele Taburno-Vasarely,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

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


                             Before

                 Torruella, Selya, and Kayatta,
                         Circuit Judges.


     Lydia M. Ramos Cruz for appellant.
     David A. Carrión Baralt for appellees.



                          July 24, 2018
            TORRUELLA, Circuit Judge.        Following a lengthy bench

trial, the district court entered judgment for Michele Taburno-

Vasarhelyi ("Vasarely")1 on several of her counterclaims against

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

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

of authenticity for two disputed pieces of artwork, and dismissed

several of her remaining counterclaims.              Unsatisfied with this

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

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

judgment.

                               I. BACKGROUND

A. Factual Background

            We begin with the relevant facts, reciting them as they

relate     to   the   issues    presented      on     appeal.         Vasarely,

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

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

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

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


1   Also known as Michele Taburno-Vasarely.        Throughout the
proceedings below and in her appellate brief, our appellant refers
to herself as "Vasarely." Accordingly, we do the same.
2  For ease in exposition, and because the other plaintiffs in the
underlying case, Inart Corporation and Inart Services, are wholly
owned and controlled by Rojas we refer to plaintiffs, collectively,
as "Rojas."


                                    -2-
Rican entrepreneur and art dealer, and widower of Vasarely's best

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

Vasarely's assistant.    Yvaral died in August 2002.

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

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

in Venezuela.    Among the works he bought were: Grilles-II, Helios-

Neg, Tridim-S, and Tsoda.     Dr. Rojas gave Rojas custody of the

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

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

art to Vasarely for exhibit or possible sale.

     1. The 2009 Settlement Agreement

          In 2004, Vasarely and Rojas moved to Chicago and acquired

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

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

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

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

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

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

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

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

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



3  While the 2009 Settlement Agreement lists the name of this
painting as Guilles, it is clear from the record and the parties'

                                 -3-
Tridim-S and Tsoda, to Vasarely as payment for the sale to Dr.

Zalduondo.

     2. The Chicago Agreement

                From 2008 to 2012, Vasarely was involved in a civil

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

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

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

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

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

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

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

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

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

Vasarely    recognized        that    Dr.    Rojas   was   the   owner   of   these

paintings, as well as Helios-Neg.

     3. The 2010 Artwork Agreement

                In June 2009, Rojas sued Vasarely for the division of

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

Vasarely settled their community property dispute by entering into

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

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




briefs that this is the same painting as Grilles II.


                                            -4-
Corporation and Inart Services, would earn commissions by selling

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

Vasarely would receive eighty percent of the sale price and Inart

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

Artwork Agreement listed eleven paintings and three sculptures,

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

of the 2010 Artwork Agreement, after the consigned artwork was

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

deliver the sold artwork's certificate of authenticity to the

purchaser.     Clause 11 provided that either Rojas or Vasarely was

entitled to terminate the agreement with eight days' notice for

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

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

return   all   artworks   to   Vasarely   within    forty-eight   hours   by

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

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

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

     4. Verbal Agreement: Pompari and Quasar-Zett

             The parties restored their working relationship and, in

December 2011, Vasarely and Rojas verbally agreed that Rojas would

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

Pursuant to her instructions, Rojas found several pieces of artwork

in storage facilities that Vasarely maintained in France, prepared


                                    -5-
the artwork to be shipped to Puerto Rico -- where Vasarely was

contemplating moving -- contacted a shipping company to relay

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

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

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

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

authenticity.      Rojas received the artwork after the items arrived

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

of authenticity.

        5. Shipment of Vasarely's belongings from Chicago

               In late October 2012, Vasarely moved from Chicago to

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

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

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

in Chicago.       Vasarely oversaw a representative from the shipping

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

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

warehouses.       Vasarely did not create an inventory of the items

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

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

company prepared lists with very general descriptions of the

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

boxes    in    total.      Contrary   to    her   instructions   to   ship   the


                                       -6-
containers and lease storage units in Puerto Rico under her name,

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

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

Five of the containers arrived in Puerto Rico on different dates

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

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

either the storage facility or at the building where he and

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

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

because   Rojas   believed   not   all      of   the   boxes   would   fit   into

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

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

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

Puerto Rico for the container and auctioned items.                     Vasarely

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

contends that many of her possessions, including a number of

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

in transit or upon arrival in Puerto Rico.

     6. Sale of the Chicago condominium

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

States, Vasarely and Rojas purchased a condominium in Chicago under

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

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


                                      -7-
Rojas and Vasarely signed a "Memorandum of Note" stating that

Vasarely would receive the proceeds of the sale of that condominium

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

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

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

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

realtor and recommended that Vasarely sell the condominium for

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

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

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

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

      7. Vasarely's demands for return of her artwork

             Because she suspected that Rojas was taking artwork from

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

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

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

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

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

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

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

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



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


                                    -8-
works of art have not arrived, I forewarn you that we are going to

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

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

are not going to have any business until everything is clarified

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

Between May and October 2013, she wrote Rojas several emails

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

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

Rojas nevertheless continued to ignore her repeated requests.

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

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

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

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

B. Procedural Posture

     1. Complaint and Counterclaims

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

District Court for the District of Puerto Rico, claiming inter

alia that Vasarely breached the 2010 Artwork Agreement by reducing

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

providing the purchasers certificates of authenticity for the

artwork.   Rojas further sought injunctive relief and urged the

district court to order Vasarely to produce the certificates of

authenticity for the paintings already sold, as well as for Pompari


                                -9-
and Quasar-Zett.   Finally, Rojas alleged that Vasarely defamed him

and his companies, causing damage to their commercial reputation.

           On   November    14,     2013,    Vasarely    asserted     numerous

counterclaims; those relevant to this proceeding we discuss below.

Vasarely   counterclaimed    that    Rojas    breached   the   2010    Artwork

Agreement by refusing to give her proceeds from certain artwork

sales, entering into her property and removing artwork and her

personal belongings, and refusing to return artwork after she

terminated the 2010 Artwork Agreement.           She next counterclaimed

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

her instructions regarding the shipment of her belongings from

Chicago to Puerto Rico, and breached a consignment contract when

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

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

also claimed Rojas was liable for the unauthorized sale of her

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

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

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

illegal, mean and disloyal acts" towards her.

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

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

Quasar-Zett,    Grilles-II,       Helios-Neg,     Tridim-S,     and      Tsoda




                                     -10-
paintings,    and    other    belongings       that    she   alleged   that    Rojas

illegally possessed.         The district court denied both motions.

       2. Motions for Partial Summary Judgment

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

summary judgment, requesting that the court grant judgment in her

favor on her counterclaims related to the breach of the 2010

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

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

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

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

requesting    that    the    court   dismiss        Vasarely's   breach   of     the

consignment contract claim and her request for replevin of the

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

Pompari.

             The district court denied Rojas's motion for partial

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

part     Vasarely's        motion    for       partial       summary    judgment.

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

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

that Rojas breached the 2010 Artwork Agreement by failing to

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

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

Rojas breached the 2010 Artwork Agreement by not returning her


                                        -11-
artwork; 3) denied her motion for summary judgment on Rojas's claim

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

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

her counterclaim regarding the sale of the Chicago condominium.

As to the condominium counterclaim, the district court found that

Rojas had not provided Vasarely the full net proceeds from the

sale of the Chicago condominium, but denied Vasarely judgment as

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

condominium by not first obtaining an appraisal.

     3. The Trial

          On August 10, 2015, the district court commenced a

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

the testimony of nine witnesses and reviewing the 252 exhibits

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

dismissed the remainder of Rojas's claims that Vasarely breached

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

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

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

paintings, finding that Vasarely gave them to Rojas in exchange

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

respective certificates of authenticity.


5  Rojas brought this claim individually, apart from the other
plaintiffs in the underlying case.


                               -12-
             As to Vasarely's remaining counterclaims, the district

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

contract relating to the sale of several pieces of artwork and

awarded her further damages in addition to those already awarded

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

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

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

that Vasarely had provided sufficient notice of her intent to

terminate    the     agreement   and    that     a    penalty   pursuant   to    the

agreement's penalty clause was warranted.                  The court dismissed

Vasarely's    counterclaim       that    Rojas       breached   the   contract    by

keeping an unauthorized inventory as it found that Rojas eventually

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

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

from the delayed return of the art.

             Next,     the    district         court     dismissed     Vasarely's

counterclaim that Rojas breached an agency contract6 and also

dismissed Vasarely's breach of depositum contract counterclaim.7

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



6  This claim was labeled a breach of a "mandate contract" in
Vasarely's counterclaims.
7  This claim was labeled a breach of a "consignment contract" in
Vasarely's counterclaims.


                                        -13-
found that Vasarely did not present any evidence that Rojas sold

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

counterclaim that Rojas negligently and in bad faith undersold the

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

favor on her tort counterclaim for mental anguish and ordered Rojas

to pay her $5,000.

            Lastly, the district court dismissed Vasarely's replevin

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

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

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

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

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

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

pursuant to the Chicago Agreement.

            The    district    court    denied    Vasarely's    motion   for

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

Vasarely timely appealed, which leads us to the following.

                               II. DISCUSSION

            Vasarely raises a number of issues on appeal, which we

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




8 Rojas had physical possession of the paintings until the district
court ordered him to deposit them in a storage warehouse.


                                      -14-
are largely disputed by the parties, we begin with the standard by

which we review the issues presented in this appeal.

A. Standard of Review

            Following a bench trial, this Court reviews the district

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

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

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

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

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

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

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

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

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

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

Cir. 2014)).

            The   applicable    standard      of   review    for   an   award   of

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

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

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

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

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

must convince this Court that the district court "committed a

meaningful error in judgment."         Lussier, 50 F.3d at 1111 (quoting


                                      -15-
Rosario–Torres v. Hernandez-Colon, 889 F.2d 314, 323 (1st Cir.

1989)) (internal quotation marks omitted).

B.   The Contested Issues

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

claims.

      1. Agency and depositum contracts

           Vasarely argues that the district court disregarded

circumstantial evidence showing that Rojas had breached both an

agency and depositum agreement, and therefore was liable for the

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

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

to her claims regarding the depositum contract.

           a. Agency contract

           The district court found that Vasarely and Rojas formed

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

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

unload and store those belongings once in Puerto Rico.   Vasarely

does not challenge this characterization, but instead disagrees

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

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

instructions by shipping her items from Chicago to Puerto Rico and

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

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


                                -16-
Instead,   she    argues   that   "the   district     court    discarded   much

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

apply a presumption that Rojas was at fault for her purportedly

lost items as they were last in his custody.

              Pursuant to Puerto Rico law, under which Vasarely's

counterclaims were brought, an agency contract is formed when a

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

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

The   agent    must   follow   the   instructions     of    the   principal   in

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

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

through his noncompliance."          Id. at § 4441.

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

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

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

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

exhausted from her court cases to make arrangements for her items

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

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

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

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

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

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


                                      -17-
follow her instructions to pack the items in her Chicago storage

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

shipment be handled with care and asked for protective coverings

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

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

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

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

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

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

clearly     err    in   finding     that    Rojas   complied       with   Vasarely's

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

to do so.

             The parties don't dispute that Rojas leased storage

units in the AAA Mini Almacenes storages in Puerto Rico for

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

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

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

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

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

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

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

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

repeatedly said that 'in a bench trial, credibility calls are for


                                           -18-
the trier.'" (quoting Carr v. PMS Fishing Corp., 191 F.3d 1, 7

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

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

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

from Chicago and leasing of storage units in Puerto Rico.

          Further, the district court did not clearly err in

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

of the wrong names for shipping and leasing purposes.        While

Vasarely alleges that numerous items are missing or are lost,

Vasarely provided no evidence from which the district court could

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

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

Vasarely acknowledges that the containers arrived in Puerto Rico

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

and that Rojas had people help unload those shipping containers.

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

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

the district court was justified in finding that Vasarely knew and

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

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

shows that she eventually received this sixth container in Puerto

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

evidence to support the conclusion that she had access to those


                               -19-
storage units in Puerto Rico.         Therefore, we find no clear error

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

loss from the non-compliance.

           As to her legal challenge, the district court applied

the correct legal standard for a breach of agency contract and

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

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

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

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

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

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

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

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

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

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

the   district   court   properly    dismissed    this   breach   of   agency

contract claim.

           b. Depositum Contract

           The    district   court    dismissed    Vasarely's     breach   of

depositum contract counterclaim because, although Rojas received

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

that the purportedly missing items were in any of those containers

as she never inventoried the containers' contents. Vasarely argues


                                     -20-
that because Rojas admitted to removing some artwork from the

storages in Puerto Rico without her authorization, the burden of

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

artwork was not in his possession.

          While Vasarely is correct that a depositary is liable

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

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

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

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

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

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

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

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

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

that Vasarely did not present probative evidence of what exactly

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

whether those five containers contained the specific items that

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

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

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

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

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

storage and admitted that she was not present when the shippers


                               -21-
packed the artwork in the Chicago storage facility.                     Further, the

district court found credible Rojas's testimony that he only

removed the artwork that belonged to his father, the artwork

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

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

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

the court so ordered.

            Vasarely claims that the district court "modified the

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

show that these allegedly missing items were received by Rojas.

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

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

depositum contract cannot be proven without an inventory; instead,

it required that Vasarely meet her burden of proving which items

she deposited with Rojas.             Without some method of proving what

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

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

requirement to show a breach of depositum contract claim.

            In    response,     Vasarely        points    out    that   she   had    an

inventory    of     all   of   her    artwork,     and    that   she    specifically

inventoried the artwork that was packed in the Chicago condominium

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

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


                                         -22-
while her paintings were in its custody.      But, again, she does not

show which pieces of artwork were put into the containers deposited

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

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

County court made an inventory of the artwork in its possession

during   prior    litigation,   does   not   prove   which   items   were

specifically packed in those five containers that Rojas received

in Puerto Rico.     Although Vasarely claims that Rojas should bear

the fault for failing to inventory the artwork from the Chicago

storages going into the five containers, the district court did

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

such an inventory.

          As Vasarely failed to prove what items she deposited

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

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

depositum contract claim.

     2. Motions for writ of replevin

          Next, Vasarely alleges that, by denying her motions for

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

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

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

"failed to see that the[y were] removed under . . . false excuses."




                                  -23-
              a. Pompari and Quasar-Zett

              Vasarely challenges the district court's conclusion that

she gave Rojas these two artworks as payment for completing tasks

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

this finding.        She instead contends that the evidence shows that

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

the paintings without authorization, made up this story as an

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

court's   credibility      determinations,       and   is   supported   by   the

record.   It is not clearly erroneous.

              The    district    court   heard    Vasarely's     and    Rojas's

testimonies and found Rojas's testimony that Vasarely agreed to

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

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

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

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

that, while extravagant, Vasarely gave Rojas the paintings in

exchange for supervising a complex move that took approximately

five   days    to    complete.     The   record   contains    emails    between

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

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

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

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


                                     -24-
discusses its cost with the movers. Rojas testified, and the court

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

amongst the hundreds of valuable paintings in storage, had to

coordinate with a shipping company to move hundreds of paintings

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

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

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

agreement between the parties regarding payment for work performed

while he was there.

              Pursuant to Puerto Rico law, verbal contracts are valid

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

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

the parties that Vasarely would give Rojas these paintings and

their certificates of authenticity in exchange for his work on her

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

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

agreement between the two parties was binding and that Pompari and

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

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

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

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

district court properly denied her motions for writ of replevin as

to these two paintings.


                                   -25-
          b. Grilles-II, Helios-Neg, Tridim-S, and Tsoda

          Vasarely avers that the district court improperly found

the 2009 Settlement Agreement, in which Rojas gave these paintings

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

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

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

rejection of the validity of the 2009 Settlement Agreement was

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

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

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

intervene falsely in the Chicago litigation to remove the artwork

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

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

purposes," it is void.

          Although the district court did question the legitimacy

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

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

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

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

conclusion.   The Chicago Agreement complies in all respects with

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

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

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


                               -26-
Agreement is supported by the evidence, including Dr. Rojas's

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

months before the Chicago Agreement was signed recognizing him as

the owner of the paintings.       Likewise, the Chicago Agreement

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

          Further, the district court did not clearly err in

concluding that the Chicago Agreement, signed on September 22,

2010 superseded the 2009 Settlement Agreement.   Vasarely failed to

present any evidence showing that she acquired title to the

paintings after the Chicago Agreement was signed.      The district

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

the owner of the paintings and found that she had transferred

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

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

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

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

     3. The Chicago condominium

          Marching on, Vasarely claims that the district court's

dismissal of her breach of contract counterclaim was erroneous,

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

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

Chicago condominium without an appraisal.    Instead, she argues,

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


                               -27-
"departed from the ordinary course of business in not obtaining an

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

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

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

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

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

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

maintains that the three years that elapsed between when she

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

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

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

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

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

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

reasonable.

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

in complying with its contractual obligations, the aggrieved party

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

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

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

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

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

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


                                       -28-
Dec. 463, 471 (P.R. 1998) ("The general rule that fraud is not

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

reasonable   certainty,     that     is,   with   a   preponderance   of

evidence . . . .")).

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

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

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

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

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

court supportably rejected summary disposition as to this issue.

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

remained her burden to prove by a preponderance of the evidence

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

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

not getting an appraisal, the district court was correct in

dismissing her claim.

          The record illustrates that Vasarely did not provide any

evidence showing that Rojas had sold the condominium for below

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

evidence that the property was undersold was the cost of the

condominium and the estimated cost of renovations nearly a decade

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

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


                                    -29-
equal to its purchase price from a decade prior plus the value of

its renovations."

           Vasarely argues that there is no way that she could have

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

presented other information aside from an appraisal to show an

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

It would not have been difficult to provide comparable real estate

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

area at the relevant time, and extrapolate from that information

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

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

determine fair market value based on the price paid for comparable

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

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

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

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

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

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

usually   the   best   evidence   of   value   is   the   prices   at   which

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

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

Rojas acted in bad faith by selling her property without an

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


                                   -30-
damages from the sale, as was required to prove her asserted breach

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

that Vasarely did not provide any evidence to substantiate her

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

dismissing this counterclaim.

     4. Contractual damages for delayed return of artwork

           a. Contract Termination Date

           Clause 11 of the 2010 Artwork Agreement stated that

either party could terminate the agreement for reasonable cause or

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

found that Vasarely had provided sufficient notice of her intent

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

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

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

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

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

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

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

terminate the contract, instead claiming that she gave sufficient

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

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

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

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


                                  -31-
want to work with you."

            While there is no specific legal requirement in Puerto

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

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

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

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

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

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

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

context of the relationship between the two parties, the district

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

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

in the record.

            While Vasarely argues that she was perfectly clear when

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

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

of emails exchanged between the two parties before and after

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

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

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

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

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

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


                                -32-
both Rojas and his wife, stating amongst other things that "without

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

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

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

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

Rojas further testified that after receiving the April 7, 2013

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

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

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

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

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

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

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

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

distractions and constant personal errands that you simply cannot

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

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

and subsequent dealings, the April 7 email was not sufficient

notice of termination.

          In finding that the May 17, 2013 email constituted

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

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

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


                                -33-
day.9   The next day, in her May 17, 2013 email, Vasarely referenced

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

contract by keeping what she claimed to be unauthorized inventory

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

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

any business until everything is clarified with attorneys and all

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

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

in finding that Vasarely gave sufficient notice of her intent to

terminate the 2010 Artwork Agreement on May 17, 2013.

           b. Modification of the penalty

           Upon official termination of the agreement, eight days

after sufficient notice was given Clause 12 of the agreement

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

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

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

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

day payable to Vasarely.     As Vasarely gave sufficient notice of

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

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

contract terminated eight days later, and then Rojas had two


9  This statement from her May 16, 2013 email further indicates
that Vasarely had not ended business dealings with Rojas.


                                -34-
additional days after that termination date, or until May 28, 2013,

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

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

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

a $255,000 fine.

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

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

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

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

2010 Artwork Agreement unmistakably states that the contract "can

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

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

in including an eight-day termination notice window before finding

that Clause 12 was triggered.         As Vasarely gave sufficient notice

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

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

had forty-eight hours from contract termination to return the

artwork.

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

Although the court found the penalty award appropriate in light of

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

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

penalty from the day that Rojas brought the underlying lawsuit on


                                      -35-
October 9, 2013.     The court found this tolling justified as Rojas

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

they filed suit and this attachment issue was litigated over

several days of hearings and ultimately denied by the court on

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

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

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

court modified the penalty accordingly to reflect the 134 days

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

             Vasarely states that the district court erroneously

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

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

never raised by Rojas and was therefore waived. Noting that penal-

clause modifications should only be utilized with "great caution

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

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

that the fact that attachment hearings were proceeding while Rojas

kept   her    artwork   is    not   an   extraordinary      circumstance   for

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

             The district court acted within its discretion to modify

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

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

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


                                      -36-
in Jack's stated that the "equity must be prayed for," the Jack's

court found the debtor's mere objection to foreclosure proceedings

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

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

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

2010 Artwork Agreement and that a penal award was not justified

was    equally   sufficient     to    "activate       the    court's   equitable

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

its discretion in sua sponte taking up the issue of penalty

modification.

           Here,   the     resulting    unfairness      of    a    penalty        award

accumulating     while    Rojas's     motion    for    attachment      was    being

litigated was sufficient justification for the district court to

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

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

whether the pieces of art needed to be returned immediately to

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

well   within    the     discretion    of    the   district       court,     in    its

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

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

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

that the district court did not abuse its discretion in modifying

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


                                      -37-
to $134,000.

     5. Moral Damages

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

district court did not adequately assess the moral and mental

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

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

and emotional suffering of a party which follows as a foreseeable

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

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

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

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

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

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

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

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

          After finding that Rojas acted with both fault and

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

her storage units, and finding that this caused Vasarely extreme

stress and anxiety that exacerbated her stress-related illness,

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

Vasarely claims that the district court abused its discretion by

disregarding   testimony   of   other   damages   that   she   suffered,

including that Rojas: deprived her of her Chicago properties and


                                 -38-
"took away her visa, her artwork, her car, her web sites, her

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

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

urges this Court to modify this damages award to compensate her

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

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

            Vasarely   bases   her     arguments   on   stipulated   facts

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

during the ongoing litigation, Rojas filed a criminal complaint

against Vasarely for illegal misappropriation of a Mercedes car

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

health insurance policy and notified her a month later.              While

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

Vasarely provided no evidence before the district court that these

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

need   to   individually   assess      each   conclusory   allegation    of

wrongdoing for which Vasarely provided no support.           Furthermore,

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

her any sufferings beyond the anxiety and stress that the district

court already considered.

            Vasarely further argues that the district court only

considered damages that she suffered until October 2013, when this

underlying litigation began.         She posits that the district court


                                     -39-
needlessly disregarded ongoing damages that Rojas caused her while

the     litigation     was    pending.          But,   as    Vasarely     correctly

acknowledges,        the     district     court    has      wide     discretion    in

determining the appropriate award for moral damages, see Gonzalez-

Marin, 845 F.2d at 1148-49, and may determine the relevant period

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

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

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

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

                                 III. CONCLUSION

               We linger no further.            The record reflects that the

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

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

abuse    its    discretion     where    such    discretion     was    afforded    it.

Accordingly, the district court's judgment is affirmed.




                                         -40-
