Honolulu Academy of Arts v. Greene

Filing 62

ORDER GRANTING DEFENDANT GREENE'S MOTION FOR SUMMARY JUDGMENT re 26 Motion for Summary Judgment. Signed by JUDGE DERRICK K. WATSON on 08/29/2016. The Court hereby grants Greene's Motion for Summary Judgment (Dkt. No.[2 6]) on all of HAA's claims and all of Greene's counterclaims. The Clerk of Court is directed to close the case. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

HONOLULU ACADEMY OF ARTS
dba HONOLULU ART MUSEUM, a
Hawaii non-profit corporation,
Plaintiff,

CIVIL NO. 15-00355 DKW-KSC
ORDER GRANTING DEFENDANT
GREENE’S MOTION FOR
SUMMARY JUDGMENT

vs.
JOEL ALEXANDER GREENE, et al.,
Defendants.

ORDER GRANTING DEFENDANT GREENE’S
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
In 2004, the Honolulu Academy of Arts (“HAA”) contracted to pay art
collector Joel Greene an $80,000 annuity for life in exchange for five objects of
Southeast Asian art. Ten years later, HAA, for the first time, demanded written
provenance relating to the five objects and suspended annuity payments until
Greene complied with the demand. When Greene did not comply, HAA brought
this action, alleging claims for declaratory relief, breach of warranties, and unjust
enrichment. Greene counterclaimed for breach of contract, assumpsit, and
declaratory relief, and now moves for summary judgment on the claims brought by

both sides. Dkt. No. 26. Because the Court finds that all applicable statutes of
limitations have run on HAA’s claims, and because HAA is in breach of the
Annuity Agreement, the Court GRANTS Greene’s Motion for Summary
Judgment.
BACKGROUND
I.

Factual Background
A.

The 2004 Annuity Agreement

In April 2004, Greene proposed to provide HAA with certain Southeast
Asian antiquities in exchange for an annuity. Dkt. No. 32-11, Plf. Exh. 10.
Stephen Little, then-Director of HAA, presented Greene’s proposal to HAA’s
Collections Committee at its May 20, 2004 meeting. Dkt. No. 27-10, Def. Exh. H
at 5. According to the minutes of that meeting, Little discussed Greene’s proposal
with “Eric Watanabe, Chief Financial Officer, and they agreed that it was essential
to obtain an independent appraisal of the collection’s current value, which would
provide the base for the annuity; to do a check to determine if any pieces were
illegally exported or listed as stolen; and to have a conservator review the
condition of the pieces.” Id.
At its August 5, 2004 meeting, the Collections Committee deemed
“accomplished” the essential due diligence items it had set forth for the annuity

2

agreement that had been identified at the May 20, 2004 meeting.1 Dkt. No. 27-11,
Def. Exh. I at 1. As such, the “motion to approve the annuity agreement was
passed.” Id. at 6.
On August 9, 2004, HAA and Greene completely executed a document
entitled, “Honolulu Academy of Arts Charitable Gift Annuity Agreement for Joel
Alexander Greene” (“Annuity Agreement”), which was drafted by counsel for
HAA.2 Dkt. No. 27-2, Def. Exh. A. The Annuity Agreement provided that HAA
would pay Greene an annuity of $80,000, in quarterly installments, for the
remainder of Greene’s life. Id. In exchange, the Annuity Agreement
acknowledged that Greene, “as evidence of his desire to support the work of the
[HAA] and to make a charitable gift, has contributed to the Academy art works
valued in the amount of one million two hundred sixty-nine thousand eight
hundred forty-one [dollars] ($1,269,841.00), receipt of which is acknowledged, for
the Academy’s general purposes.” Id. Although not expressly referenced in the
Annuity Agreement, it is undisputed that the referenced “art works” are the five
pieces of Southeast Asian art that the HAA had appraised prior to contract. See

1

As part of its due diligence, HAA consulted the “Art Loss Register” and received verification
that, to the best of its knowledge, the works had not been “registered as stolen or missing” and
that no “Claimant reported these works [as a loss].” Dkt. No. 27-8, Def. Exh. F at HAA000170173. In addition, HAA obtained an independent appraisal of the antiquities in question from
Thomas Murray of Asiatica Ethnographica. Dkt. No. 27-9, Def. Exh. G.
2
Greene signed a “Waiver of Counsel & Receipt” acknowledging that HAA’s counsel prepared
the Annuity Agreement and confirming that Greene waived his right to have the Annuity
Agreement reviewed by his own counsel. Dkt. No. 27-2, Def. Exh. A at 3; Greene Decl. ¶ 3.

3

Dkt. No. 27-3, Def. Exh. B. The last paragraph of the Annuity Agreement
provided: “Joel Alexander Greene and the Academy agree to execute and deliver
any and all other documents necessary to carry out the terms of this Annuity
Agreement and to conform the intent and purpose of this Annuity agreement with
applicable laws.” Dkt. No. 27-2, Def. Exh. A at 2.
Greene shipped the five objects of art to HAA in July 2004. Greene Decl. ¶
5. Little acknowledged, by letter dated November 12, 2004, HAA’s satisfaction
and acceptance of the five works: “I have just reviewed all of the gifts received by
the Academy in 2004, and wish to formally acknowledge on behalf of the Trustees
and the Staff of the Academy your gift to the Academy of five outstanding works
of art from the high cultures of Southeast Asia.” Dkt. No. 27-3, Def. Exh. B.
HAA commenced payment under the terms of the Annuity Agreement on August
9, 2004. Greene Decl. ¶ 6.
B.

HAA’s 2014-2015 Requests for Provenance Documentation

Ten years later, in a letter to Greene dated August 4, 2014, Stephan Jost
introduced himself as the new director of HAA. Dkt. No. 27-4, Exh. C. Jost’s
letter expressed concern regarding the lack of written provenance for the items
HAA had received from Greene that were subject to the Annuity Agreement and

4

requested assistance in establishing the provenance of those works.3 Id. In late
2014, Jost followed up by meeting with Greene in Greene’s San Francisco
apartment to discuss HAA’s request for documentation. Jost Decl. ¶ 4.
On December 4, 2014, Jost sent Greene another letter, along with a copy of
the Association of Art Museum Directors (“AAMD”) 2013 Guidelines. Dkt. No.
32-4, Plf. Exh. 3. In the letter, Jost explained that HAA is “legally obligated to
confirm the provenance of all art objects it receives as a donation or as funding for
annuities” and gave several examples of “provenance establishing that
archeological material has been out of its country of origin since November 17,
1970, or has been legally exported after that date[.]” Id. at 1.
On December 12, 2014, Greene responded, assuring Jost that he was
searching through his papers for the requested documentation. Dkt. No. 32-5, Plf.
Exh. 4.
On May 18, 2015, Jost contacted Greene once more, reiterating HAA’s
request for written provenance sufficient to establish clear title to the five works
(and other art works) Greene had provided to HAA. Dkt. No. 32-8, Plf. Exh. 7.

3

As part of its counter-statement of facts, HAA asserts that federal agents from ICE/HSI
contacted HAA in 2014 seeking information about objects it received from art dealer, Subhash
Kapoor. This investigation led HAA to inquire about written provenance for other objects in its
collection not related to Kapoor, including those Greene had provided to HAA under the Annuity
Agreement. See Dkt. No. 31 at 9.

5

Approximately one month later, on June 22, 2015, HAA’s counsel sent a letter to
Greene informing him, among other things, that:
[HAA’s] agreement to provide you with a lifetime annuity was
conditioned on the understanding that the items conveyed were
authentic, that you had established the provenance of all the
items, and that you had good title, as well as proper export
documentation and import licenses. Absent [HAA’s] receipt of
any of this information from you, unless and until you can
provide verifiable documentation relating to these objects,
[HAA] is compelled to suspend the quarterly annuity payments
currently being made to you pursuant to the terms of the 2004
Gifts Annuity Agreement.
Dkt. No. 27-5, Def. Exh. D.
Greene’s counsel responded by letter dated July 8, 2015, disputing that the
AAMD’s 2013 Guidelines imposed any legal obligations, and further disputing
HAA’s contention that Greene’s lifetime annuity was “conditioned” in the manner
described by HAA’s attorneys. Dkt. No. 27-6, Def. Exh. E.
C.

Suspension of Annuity Payments

On June 30, 2015, HAA suspended annuity payments to Greene, claiming
that the Annuity Agreement was conditioned on Greene providing the written
provenance demanded by HAA. Greene Decl. ¶ 8. Those annuity payments
remain suspended.
II.

Procedural Background
On July 31, 2015, HAA filed suit against Greene in the First Circuit Court,

State of Hawaii. See Dkt. No. 1-1. HAA subsequently filed a First Amended
6

Complaint on August 28, 2015, alleging claims for (1) declaratory relief; (2)
breach of warranties; and (3) unjust enrichment. Dkt. No. 1-3.
On September 8, 2015, Greene timely removed the action to this Court. Dkt.
No. 1. Thereafter, on September 15, 2015, Greene filed his answer, concurrently
asserting counterclaims for (1) breach of contract; (2) assumpsit; and (3)
declaratory relief. Dkt. No. 5.
On May 4, 2016, Greene moved for summary judgment on all claims
asserted by HAA and all counterclaims asserted against HAA, arguing, in part, that
HAA’s claims were untimely. Dkt. No. 26. On June 17, 2016, HAA filed its
opposition to Greene’s Motion for Summary Judgment. Dkt. No. 31. On June 24,
2016, Greene filed his reply. Dkt. No. 34. The Court heard oral arguments on July
8, 2016. Dkt. No. 36.
STANDARD OF REVIEW
A party is entitled to summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ when, under the
governing substantive law, it could affect the outcome of the case. A ‘genuine
issue’ of material fact arises if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Thrifty Oil Co. v. Bank of Am. Nat’l

7

Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
When evaluating a motion for summary judgment, the court must construe
all evidence and reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 630–31 (9th Cir. 1987). Thus, the moving party has the burden of
persuading the court as to the absence of a genuine issue of material fact. Celotex
Corp v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden,
the nonmoving party must set forth “‘significant probative evidence’” in support of
its position. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities
Serv. Co., 391 U.S. 253, 290 (1968)). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion,” and can do so by either “citing to
particular parts of materials in the record” or by “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
DISCUSSION
Greene moves for summary judgment on all claims, including his
counterclaims against HAA. The Court addresses each claim in turn.

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I.

HAA’s Claims in its First Amended Complaint
A.

Whether the Annuity Agreement Requires Written Provenance

HAA argues that its claims accrued in 2015 when Greene breached an
alleged “continuing obligation” to deliver “necessary” documents pursuant to the
terms of the Annuity Agreement. Dkt. No. 31 at 11-12. According to HAA, the
“necessary” documents include written provenance. In response, Greene argues
that the Annuity Agreement is “unambiguous and contains no provision requiring
[] Greene to provide the documents HAA now demands.” Dkt. No. 34 at 7. The
Court finds that there are genuine issues of material fact as to whether the language
of the Annuity Agreement is broad enough to include documentation of
provenance.
HAA relies solely on the following clause in support of its position that the
Annuity Agreement requires the provision of provenance: “Joel Alexander Greene
and the Academy agree to execute and deliver any and all other documents
necessary to carry out the terms of this Annuity Agreement and to conform the
intent and purpose of this Annuity agreement with applicable laws.” Dkt. No. 272, Def. Exh. A at 2. Based on this provision, HAA argues that Greene has an
obligation to deliver documents establishing that the five pieces of art have been
out of their country of origin since November 17, 1970, or were legally exported
after that date. As Greene highlights, the provision upon which HAA relies does
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not explicitly reference documents relating to provenance or title. If establishing
provenance was as important to the underlying agreement as HAA now contends,
then it would have been prudent to explicitly reference those items in the Annuity
Agreement. HAA’s position essentially asks this Court to read into the Annuity
Agreement terms and conditions that are simply not there. Nevertheless, the Court
acknowledges that reasonable minds could differ as to whether providing
provenance documentation was part and parcel of the Annuity Agreement.
Because the Court finds that the clause cited by HAA is ambiguous, and can be
reasonably read in the broad manner urged by HAA, the Court cannot conclude
that Greene is entitled to summary judgment on the issue of whether the Annuity
Agreement requires the provision of provenance. Aloha Petroleum, Ltd, v. Nat’l
Union Fire Ins. Co., 25 F. Supp. 3d 1305, 1311-12 (D. Haw. 2014) (“Under the
principles of general contract interpretation, ‘[a] contract is ambiguous when the
terms of the contract are reasonably susceptible to more than one meaning.’”)
(quoting Airgo, Inc. v. Horizon Cargo Transp. Inc, 66 Haw. 590, 594, 670 P.2d
1277, 1280 (1983)); Evergreen Eng’rg, Inc. v. Green Energy Team LLC, 884 F.
Supp. 2d 1049, 1060 (D. Haw. 2012) (“‘Where the terms of a contract are
ambiguous, the ambiguity raises the question of the parties’ intent, which is a
question of fact that will often render summary judgment inappropriate.’” (quoting
Witting v. Allianz, A.G., 112 Hawaii 195, 201, 145 P.3d 738, 744 (App. 2006)).
10

B.

Whether HAA’s Claims Are Barred by the Statute of Limitations

Even assuming that the Annuity Agreement requires Greene to provide
written provenance, the remaining question is the length of that alleged obligation.
In other words, the issue presented is whether the Agreement requires Greene to
provide written provenance more than ten years after its execution. The Court
holds that it does not: each of HAA’s claims is barred by the statute of limitations.
1.

Declaratory Relief

Claims based upon a breach of contract are governed by a six-year statute of
limitations, as are claims for declaratory relief. See HRS § 657-1. HAA’s claim
for declaratory relief is based on the assertion that Greene breached the Annuity
Agreement when he refused to provide written provenance “in July 2015 when
Greene first disclaimed any obligation to provide documentation[.]” Dkt. No. 31 at
17. HAA claims that this alleged refusal in 2015 triggered the applicable statute of
limitations. Id. The Court disagrees.
Under Hawaii law, the time to institute an action based upon a claim for
breach of contract generally begins when the contract is breached. Au v. Au, 63
Haw. 210, 219, 626 P.2d 173, 180 (1981). “[W]here a duty imposed prior to a
limitations period is a continuing one, the statute of limitations is not a defense to
actions based on breaches of that duty occurring within the limitations period[.]”

11

Dominguez v. Price Okamoto Himeno & Lum, 2009 WL 1144359 (App. Apr. 29,
2009) (SDO) (internal quotations marks and citation omitted).
The Court acknowledges that the Annuity Agreement contains a provision
requiring Greene to execute and to deliver “any and all other documents
necessary” to effectuate the Annuity Agreement and “to conform the intent and
purpose of this Annuity Agreement with applicable laws.” Dkt. No. 27-2, Def.
Exh. A at 2. Notably, the provision lacks any durational time frame. The absence
of a time frame, however, certainly does not lead to the conclusion that the
obligation lasts in perpetuity. No authority has been provided that supports that
proposition, and, indeed, HAA’s counsel clarified at the hearing that it was not
suggesting that such a perpetual obligation exists. The Court holds that the
provision relied on by HAA does not constitute a “continuing obligation” because
the language does not reflect a “continuing performance over a period of time,” id.
at *4 (internal quotation marks and citation omitted); rather, it reflects a mutual
obligation to execute and deliver remaining documents necessary to complete the
transaction.
Under this framework, if HAA had expected Greene to deliver written
documentation, HAA should have requested or demanded such documentation
within a reasonable time following the execution of the 2004 contract.4 See, e.g.,

4

Such documentation, if any existed, would have existed in 2004.

12

In re Sing Chong Co., Ltd., 1 Haw. App. 236, 240, 617 P.2d 578, 581 (1980)
(“[W]here an agreement does not provide time for performance it must be read as
requiring that performance be commenced within a reasonable time.”). Instead, by
letter dated November 12, 2004, HAA expressly acknowledged its satisfaction
with the objects that Greene had sent. See Dkt. No. 27-3, Def. Exh. B. Any breach
of contract premised on Greene’s failure to provide provenance documentation
would have accrued no later than November 12, 2004 because HAA had an
opportunity to review the objects and the documents it had received, and should
have discovered on or before this date that the objects were not accompanied by
the written provenance it now seeks.5 Following HAA’s November 2004 letter,
HAA did nothing, other than make the payments required by the Annuity
Agreement, for more than ten years, and did not file suit for more than eleven years
after the contract had been entered. That is well beyond the six-year limitations
period. See Au, 63 Haw. at 219, 626 P.2d at 180 (“In the case of an existing fact,
the breach [of contract] occurs when the contract is made.”).
Moreover, there is no evidence that Greene somehow prevented HAA from
discovering earlier that HAA lacked provenance documentation for the items that
5

Hawaii’s Uniform Commercial Code also provides guidance as to when HAA’s breach would
have accrued. Under HRS § 490:2-309, “[t]he time for shipment or delivery or any other action
under a contract if not provided in this article or agreed upon shall be a reasonable time.” HRS
§ 490:2-309(1) (emphasis added). “[W]here a warranty explicitly extends to future performance
of the goods and discovery of the breach must await the time of such performance the cause of
action accrues when the breach is or should have been discovered.” HRS § 490:2-725(2)
(emphasis added).

13

Greene had delivered, nor does HAA contend otherwise. HAA has not presented
this Court with any material fact or intervening law that would potentially justify
HAA waiting 10 years before asking Greene for provenance documentation.
In sum, the Court concludes that HAA’s claim for declaratory relief is timebarred, and Greene is entitled to judgment as a matter of law on this claim.
2.

Breach of Warranty

HAA’s claim for breach of warranty encompasses both express and implied
warranties. The Court first addresses HAA’s breach of express warranty claim,
which is subject to a six-year statute of limitations. See HRS § 657-1(1).
In an attempt to present its express contractual warranty claim as timely,
HAA characterizes Greene’s obligation to deliver any and all documents necessary
to carry out the terms of the Annuity Agreement as a “future fact” that did not
occur until 2014, when the “additional documents became necessary to conform
the intent and purpose of the Annuity Agreement with applicable laws.” Dkt. No.
31 at 20. The Court disagrees. As previously discussed, there was no change in
circumstances between 2004 and 2014 that would have prompted a legal need for
provenance documentation in 2014, but not in 2004. All of the laws relied on by
HAA, including the National Stolen Property Act, 18 U.S.C. § 2314 et seq., and
the Convention on Cultural Property Implementation Act, 19 U.S.C. § 2601 et seq.,

14

have been the law for decades. Accordingly, HAA’s express warranty claim is
time-barred.
Similarly, HAA’s implied warranty claims as to legitimacy, title, and
provenance are untimely. HAA acknowledges that, as to its implied warranty
claims, the four-year statute of limitations in HRS § 490:2-725 applies:
(1) An action for breach of any contract for sale must be
commenced within four years after the cause of action has
accrued. By the original agreement the parties may reduce the
period of limitation to not less than one year but may not extend
it.
(2) A cause of action accrues when the breach occurs,
regardless of the aggrieved party’s lack of knowledge of the
breach. A breach of warranty occurs when tender of delivery is
made, except that where a warranty explicitly extends to future
performance of the goods and discovery of the breach must
await the time of such performance the cause of action accrues
when the breach is or should have been discovered.
HRS § 490:2-725(1)-(2).
Here, the Annuity Agreement was entered into in 2004, and Greene
delivered the five pieces of art that same year without provenance documentation.
As such, any breach relating to the delivery of written provenance would have
occurred in 2004, and the limitations period would have expired in 2008. See id.
To save its breach of warranty claims from the applicable statute of limitations,
HAA relies on Balog v. Ctr. Art Gallery-Hawaii, Inc., 745 F. Supp. 1556 (D. Haw.
1990). HAA’s reliance on Balog, however, is misplaced.
15

In Balog, claims were brought by the plaintiffs almost 7 1/2 years after they
had purchased certain art from an art gallery. Balog, 745 F. Supp. at 1558. After
the plaintiffs had purchased the art, the defendants sent plaintiffs, over a period of
several years, a “Confidential Appraisal-Certificate of Authenticity” for each work
purchased. Id. In these mailings, defendants continued to maintain that the
artworks were either exclusive originals or limited editions and that the artworks
had appreciated in value above their original purchase price. Id. After the media
reported that the representations defendants made regarding the artwork sold
through their gallery might be false, plaintiffs investigated the allegations, and
ultimately, filed suit against the defendants. Id. at 1559.
The defendants moved to dismiss the action on statute of limitation grounds.
Id. In response, the plaintiffs argued that the statute of limitations for the causes of
action alleged in the complaint was tolled by, among other things, defendants’
continued action that amounted to fraudulent concealment. Id. The Court rejected
the defendant’s statute of limitations argument, concluding that:
[D]efendants’ certification of the authenticity of the artwork
sold to the plaintiffs served as an explicit warranty of future
performance sufficient to toll the applicable statute of
limitations. Furthermore, in cases of this type, where buyers
are sold artwork of such a value that it would be prohibitively
expensive to obtain a verification of authenticity in addition to
the representations of the seller, and where the seller is a
merchant of such artwork, the buyers are justified in relying on
those representations and their claim for breach of warranty will
16

accrue at the time they discover or reasonably should have
discovered that the artwork was not authentic.
Furthermore, the defendants repeated mailings to the plaintiffs
of certificates warranting the authenticity of the artwork sold to
them made their conduct a continuing action which did not
terminate until 1987. The plaintiffs’ cause of action, filed in
1989, fell within the U.C.C.’s four-year statute of limitations.
Finally, the defendants’ affirmative conduct in mailing the
certificates of authenticity served to prevent the plaintiffs from
discovering their claim against the defendants, and as such
constituted fraudulent concealment of the plaintiffs’ claims. In
such circumstances, any applicable statute of limitations is
tolled.
Id. at 1573.
Unlike Balog, there is no evidence that Greene engaged in any type of
fraudulent concealment, attempted to “lull” HAA into inaction, or communicated
with HAA in any fashion in the ten years subsequent to the 2004 Annuity
Agreement. The Court agrees with Greene that, “HAA should have been well
aware of any alleged problems back in 2004 when it accepted the relevant pieces
from Mr. Greene.” Dkt. No. 24 at 19-20. HAA relies on communications between
Jost and Greene as evidence that Greene “lulled” HAA into believing that he had
provenance documentation and that it would be forthcoming. However, those
communications all occurred in 2014 and 2015, long after all applicable statutes of
limitations had run. Therefore, unlike the plaintiffs in Balog, HAA cannot claim
that any of these communications “lulled” HAA into inaction or constituted
17

ongoing fraudulent concealment. Cf. Mauian Hotel, Inc. v. Maui Pineapple Co.,
52 Haw. 582, 481 P.2d 310 (1971) (“[A] defendant cannot avail himself of the bar
of the statute of limitations, if it appears that he has done anything that would tend
to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the
statute to run against him.”) (internal quotations marks and citation omitted). As
such, the Court does not find any reason to toll the running of the limitations
period.
In sum, both HAA’s express and implied warranty claims fail as a matter of
law.
3.

Unjust Enrichment

HAA’s claim for unjust enrichment is subject to a six-year limitations period
under HRS § 657-1. To succeed on a claim for unjust enrichment, a plaintiff must
show: (1) it has conferred a benefit upon the defendant, and (2) that the retention of
the benefit was unjust. State Farm Fire and Cas. Co. v. Chung, 882 F. Supp. 2d
1180, 1192 (D. Haw. 2012). The parties dispute when this cause of action accrued.
Greene argues that HAA’s claim for unjust enrichment would have accrued as
soon as it began to pay the annuity it now claims was unjust, i.e., in 2004. Dkt.
No. 26-1 at 17. HAA relies on the “continuing violation doctrine,” arguing that it
provides an equitable exception to the filing requirement. The Court finds that

18

HAA’s reliance on the “continuing violation” doctrine is misplaced and that this
cause of action accrued in 2004.
The continuing violation doctrine allows a plaintiff to base a claim on a
series of related wrongful acts even if some of the wrongful acts fall outside of the
limitations period. See Allen v. Iranon, 99 F. Supp. 2d 1216, 1238 (D. Haw. 1999)
(“[T]he continuing violations doctrine tolls the statute of limitations for alleged
violations that form part of a pattern of ongoing unlawful conduct.”). HAA argues
that “Greene’s course of fraudulent conduct all relates to a single subject” and
“constituted a continuous attempt to repeatedly and fraudulently conceal their
questionable provenance since 2004[.]” Dkt. No. 31 at 26. As previously
discussed, there is simply no evidence that Greene took any action to fraudulently
conceal any “questionable provenance” between 2004 and 2010, i.e., during the
applicable statute of limitations timeframe. Indeed, according to the evidence
presented, Greene took no action at all, nor did he make any renewed
representations of any kind, between 2004 and 2014. The only thing that Greene
did during this entire ten-year time frame was continue to accept the quarterly
annuity payments made by HAA. The continuing violation doctrine does not apply
under these circumstances.
In sum, HAA’s claim for unjust enrichment is time-barred, and Greene is
entitled to judgment as a matter of law on this claim.
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II.

Greene’s Counterclaims
The Court now turns to Greene’s counterclaims. As set forth below, Greene

is entitled to summary judgment as to all of his counterclaims against HAA.6
A.

Breach of Contract

A breach of contract claim must set forth (1) the contract at issue; (2) the
parties to the contract; (3) whether plaintiff performed under the contract; (4) the
particular provision of the contract allegedly violated by defendant; and (5) when
and how defendant allegedly breached the contract. See Evergreen Eng’rg, Inc.,
884 F. Supp. 2d at 1059. Greene claims that each of these elements has been
satisfied, and the Court agrees.
It is undisputed that Greene and HAA entered into a contract in the form of
the Annuity Agreement in 2004. Under the terms of the Annuity Agreement, HAA
agreed to provide Greene with a lifetime annuity of $80,000 per year, payable
quarterly, in consideration of his gift of works that HAA valued at more than
$1.269 million. It is undisputed that Greene delivered the works to HAA in July
2004 and that HAA was satisfied with, even appreciative of, those works
subsequent to delivery. Greene contends that he therefore “fully perform[ed] the
only consideration required of him under the Annuity Agreement.” Dkt. No. 26-1

6

It is undisputed that Greene’s counterclaims are timely. In contrast to HAA’s claims, Greene’s
counterclaims would have accrued when HAA unilaterally decided to stop making payments due
to Greene under the Annuity Agreement and that did not occur until June 2015.

20

at 21. HAA, however, disputes that Greene performed under the contract, arguing
that “[t]he Annuity Agreement imposes continuing obligations upon Greene both
to execute and to deliver any necessary documents to effectuate the agreement.”
Dkt. No. 31 at 28. As previously discussed, challenges to Greene’s performance
under the Annuity Agreement stemming from any failure to provide provenance
documentation are time-barred and were time-barred long ago. As such, the Court
concludes that, as a matter of law, Greene has performed under the contract.
As to the last two elements, the Court agrees that with Greene having
performed under the contract, HAA “breached its obligations under the Annuity
Agreement by failing to pay installments due under the Annuity Agreement
starting with the payment due on June 30, 2015.” Dkt. No. 26-1 at 21; Greene
Decl. ¶ 9-10. Because there are no genuine issues of material fact, Greene is
entitled to summary judgment on his breach of contract claim as a matter of law.
B.

Assumpsit

Greene argues that he is entitled to judgment as a matter of law on his
assumpsit counterclaim because all of HAA’s claims against Greene and all of his
counterclaims are in the nature of assumpsit. Dkt. No. 26-1 at 21-23. That is
clearly the case.
Under Hawaii law, “an action in the nature of assumpsit includes ‘all
possible contract claims.’” Leslie v. Estate of Tavares, 93 Hawaii 1, 5, 994 P.2d
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1047, 1051 (2000) (quoting Healy-Tibbitts Const. Co. v. Hawaiian Indep. Refinery,
Inc., 672 F.2d 284, 286 (9th Cir. 1982)). More specifically, “[a]ssumpsit is a
common law form of action which allows for the recovery of damages for the nonperformance of a contract, either express or implied, written or verbal, as well as
quasi contractual obligations.” Schulz v. Honsador, Inc., 67 Haw. 433, 435, 690
P.2d 279, 281 (Haw. 1984) (citation omitted), overruled on other grounds. The
focus is on the “substance” of the action, “rather than [on] the formal language
employed or the form of the pleadings.” Id. at 436, 690 P.2d at 282 (internal
quotation marks and citation omitted). “The character of the action should be
determined from the facts and issues raised in the complaint, the nature of the
entire grievance, and the relief sought.” Leslie, 93 Hawaii at 6, 994 P.2d at 1052.
As should be evident by the Court’s analysis of HAA’s claims and Greene’s
counterclaims, the action at issue is in the nature of assumpsit. Indeed, HAA does
not contend otherwise, but rather, opposes on the basis that “[b]ecause Greene
cannot prevail on his contract claim, he is not entitled to attorneys’ fees.” Dkt. No.
31 at 28. Through this order, however, the Court directs the entry of summary
judgment in favor of Greene on his contract claim, rendering Greene the prevailing
party. Consequently, Greene is entitled to attorneys’ fees. See HRS § 607-14
(allowing for recovery of attorneys’ fees on all claims “in the nature of
assumpsit”).
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C.

Declaratory Relief

Under 28 U.S.C. § 2201(a), the Court can “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further
relief is or could be sought.” Greene seeks a declaratory judgment that: (1) “he has
fully performed his obligations under the Annuity Agreement”; (2) “HAA
breached its obligation to pay the annuity it agreed to pay him when it halted
payment effective June 30, 2015”; and (3) “HAA must pay Greene’s annuity
including all missed payments from June 30, 2015 forward and must continue to
make all future payments due under the Annuity Agreement.” Dkt. No. 26-1 at 2324. HAA’s objections to Greene’s request for declaratory judgment have already
been addressed in other sections of this order. Based on the analysis above, the
Court concludes that Greene is entitled to summary judgment on his claim for
declaratory relief.
III.

HAA’s Request for a “Stay” Under Fed. R. Civ. P. 56(d)
Lastly, the Court addresses HAA’s request for a stay under Fed. R. Civ. P.

56(d). HAA’s request for an administrative stay of the case is based on the fact
that there is an ongoing Department of Homeland Security investigation involving
the objects at issue under the Annuity Agreement. HAA argues that, given the lack
of provenance documentation, it will be unable to defend against a forfeiture

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action, and if repatriation is ordered, there will be a “complete failure of
consideration[.]” Dkt. No. 31 at 29.
The Court disagrees that the ongoing investigation justifies deferral of the
Court’s disposition. As discussed at oral argument, HAA received appropriate
consideration for the Annuity Agreement in 2004, and that conclusion is
unaffected by whatever the results of DHS’ 2016 investigation may be. Because
HAA has failed to provide a persuasive reason for the Court to administratively
stay the case, HAA’s request is DENIED.
CONCLUSION
The Court hereby grants Greene’s Motion for Summary Judgment (Dkt. No.
26) on all of HAA’s claims and all of Greene’s counterclaims. The Clerk of Court
is directed to close the case.
IT IS SO ORDERED.
DATED: August 29, 2016 at Honolulu, Hawai‘i.

_________________________________________________________________
Honolulu Academy of Arts v. Greene; CV 15-00355 DKW-KSC; ORDER
GRANTING DEFENDANT GREENE’S MOTION FOR SUMMARY
JUDGMENT
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