Renaissance Development Corp. v. C&T Restaurant Management, LLC, et.al.

Filing 53

District Judge Leo T. Sorokin: ORDER entered Renaissances Motion for Summary Judgment 30 is ALLOWED on all counts. Within seven (7) days, the parties shall file a proposed form of judgment conforming to the Courts opinion. By joining in the proposed form of judgment, Defendants do not waive any objections or rights of appeal. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

RENAISSANCE DEVELOPMENT
CORP.,
Plaintiff,
v.
BUCA V, LLC, BUCA, INC., AND
BUCA RESTAURANTS, INC.,
Defendants.

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Civil No. 15-10463-LTS

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 30)
November 10, 2015
SOROKIN, J.
On February 20, 2015, Plaintiff Renaissance Development Corporation (“Renaissance”)
filed a complaint in this Court against Buca V, LLC d/b/a Buca Di Beppo, Buca, Inc., and Buca
Restaurants, Inc. (“the Buca Defendants”). Doc. No. 1. Specifically, the complaint alleges that
the Buca Defendants have breached their commercial lease agreement with Renaissance by
failing to pay rent. Before the Court is Renaissance’s Motion for Summary Judgment on Counts
One and Two of its complaint. Doc. No. 30. The dispute concerns the allocation of the risk
between the landlord and the tenant of an interruption in the tenant’s business arising from a
public road construction project. Because the Lease allocates that risk, at least in the present
circumstances, to the tenant, Renaissance’s Motion for Summary Judgment is ALLOWED on all
counts.

I.

UNDISPUTED FACTS
The Buca Defendants consist of Buca, V, LLC (“Buca V”), Buca, Inc. (“Buca”), and

Buca Restaurants, Inc. (“BRI”). The premises at issue is located at 7 Boston Turnpike,
Shrewsbury, Massachusetts, on the westbound side of Route 9. Buca V operates a Buca Di
Beppo restaurant (“the Restaurant”) on the premises. Doc. No. 42 ¶ 35. The premises is
adjacent to a bridge that runs across Lake Quinsigamond called the Kenneth F. Burns Memorial
Bridge (“the Bridge”). Id. ¶ 36. Renaissance and Buca V are parties to a Commercial Property
Lease (“the Lease”) governing the Shrewsbury premises, and Buca and BRI are guarantors of the
Lease. 1
In or around 2012, the Massachusetts Department of Transportation undertook a
construction project to replace the Bridge. Doc. No. 42 ¶ 37. The Commonwealth’s
construction project began harming the Restaurant’s profitability in the summer of 2014, and in
January 2015, the Restaurant closed its doors to customers. Id. ¶¶ 40-43, 76-77. The
Restaurant’s profitability plummeted during the construction mostly due to its interference with
accessibility to the Restaurant’s entrance. Id. ¶¶ 48-53. The construction made the westbound
entrance “hard to spot” from the highway “due to the numerous construction vehicles located in
and around the entrance and obscured signs.” Id. ¶ 49. Further, the construction “eliminated the

1

The original Lease, signed on February 2, 2001, was between Renaissance and S&S Restaurant
Associates Limited Partnership. Doc. No. 32, Exhibit 1. Between 2001 and January 1, 2014,
when Buca V, LLC was assigned the right, title, and interest in the Lease, other assignments of
the Lease took place. Id. at Exhibits 2 & 3. The original Lease was also amended twice. Id. at
Exhibit 4, § 8; Id. at Exhibit 5, § 9. The assignments and amendments did not alter the rights or
obligations of the parties under the Lease in any way, except that the amendment signed by
Renaissance and Buca V contained a provision stating that Renaissance had “satisfied all of its
obligations under the [original] Lease.” Doc. No. 42 ¶ 26. That Amendment also provided that
Buca and BRI would serve as guarantors of the Lease and Buca V’s obligations under the Lease.
Doc. No. 42 ¶ 34; Doc. No. 32, Exhibit 6.

ability to make a U-turn,” forcing customers who missed the entrance to exit the highway and
take a more indirect route back to the restaurant. Id. ¶ 50. Turning into the entrance from the
eastbound side of the highway was also difficult for customers because of the entrance’s limited
visibility. Id. ¶ 52. At one point, for “numerous days,” the westbound entrance was completely
inaccessible due to the attempted replacement of the water main lines. Id. ¶ 60. In addition to
impaired access due to the construction, guests could feel pounding and vibrations while in the
Restaurant, and complained of dust and debris from the construction. Id. ¶¶ 57-59, 72. Further,
the water to the restaurant was shut off at various times without warning, and sometimes came
out brown when working. Id. ¶¶ 67-71. Neighboring businesses, including other restaurants,
experienced similar difficulties with the construction and lost business as a result. Doc. No 38,
Exhibit 10.
In or around November of 2014, Buca V ceased paying rent and real estate taxes. Doc.
No. 42 ¶ 18. Renaissance sent a demand letter to the Buca Defendants on January 16, 2015, to
which the Buca Defendants did not respond. Id. ¶ 19; Doc. No. 32, Exhibit 8. Soon thereafter,
Renaissance learned that Buca V had vacated the premises, but still remained in possession of
the premises. Doc. No. 42 ¶¶ 20, 24.
On February 20, 2015, Renaissance filed a complaint for breach of lease against Buca V
and breach of guaranty against Buca and BRI. Doc. No. 1. Renaissance contends that the Buca
Defendants breached the Lease by ceasing to pay rent and abandoning the premises, and that as
of the date of the complaint the Buca Defendants owed Renaissance $206,513.44. Id. at 1.
Renaissance has moved for an entry of summary judgment in its favor on its breach of lease and
breach of guaranty counts against the Buca Defendants. Doc. No. 30.

II.

LEGAL STANDARD
Summary judgment is appropriate when “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). Once a party “has properly supported its motion for summary judgment, the
burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his
pleading, but must set forth specific facts showing there is a genuine issue for trial.’” Barbour v.
Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)). The Court is “obliged to []view the record in the light most
favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving
party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the
Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.”
Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina–Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
III.

DISCUSSION
The parties do not dispute that the Buca Defendants failed to pay rent, thus breaching the

Lease. Further, the Buca Defendants do not contend that Renaissance failed to fulfill any of its
obligations under the Lease. Nor do the parties dispute that the Restaurant’s failure was caused
by the Bridge construction. Doc. No. 36 ¶ 25. Indeed, the Buca Defendants make no claim that
Renaissance did anything wrong. Doc. No. 35 at 11. Rather, the Buca Defendants contend that
an issue of material fact exists as to whether they are excused from fulfilling their obligation to

pay rent under the provisions of the Lease. Id. at 9-10. Specifically, they contend that the
Bridge construction that disrupted their business may have constituted a taking, thus triggering
either section 12.3, 12.4, or 12.5 of the Lease. Those provisions of the Lease contemplate
situations in which the leased property is taken by a condemning authority.
A.

The Provisions of the Lease

The Buca Defendants do not argue that the Commonwealth initiated a formal taking
proceeding in order to make use of the leased premises for the Bridge construction. Rather, the
Buca Defendants contend that the Bridge construction that disrupted their business constituted a
taking by means of inverse condemnation, thus triggering section 12.3, 12.4, or 12.5 of the
Lease. Doc. No. 35 at 8. Determining whether ambiguity exists within a contract is a matter of
law that the court may decide pursuant to a motion for summary judgment. See, e.g., Smart v.
Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 178 (1st Cir. 1995). “Absent an ambiguity,
the court interprets a contract ‘according to its plain terms,’ in a manner that gives reasonable
effect to each of its provisions.” Weiss v. DHL Express, Inc., 718 F.3d 39, 45 (1st Cir. 2013)
(citations omitted) (quoting Den Norske Bank AS v. First Nat’l Bank of Bos., 75 F.3d 49, 52 (1st
Cir. 1996)). For the following reasons, sections 12.3, 12.4, and 12.5 of the Lease are
unambiguous and do not apply to the Buca Defendants’ circumstances. 2
1.

Sections 12.3 and 12.4

The Buca Defendants first contend that an issue of material fact exists as to whether they
are excused from paying rent under sections 12.3 and 12.4 of the Lease. Section 12.3 (entitled
“Total and Partial-Permanent Condemnation”) states in relevant part:

In interpreting the Lease, the Court looks to Massachusetts law because the Lease states that it
“shall be governed and construed in accordance with the laws of the Commonwealth of
Massachusetts.” Doc. No. 32, Exhibit 1, § 26.4.

2

If at any time during the term of this Lease or any extension thereof, part or the
entire [premises] or such other portion thereof as would render the balance of the
[premises] not suitable for the use to which the [premises] was being utilized
immediately prior thereto by the Lessee, shall be taken or appropriated by any
competent authority for public or quasi-public use, at Lessee’s option this Lease
shall terminate upon the date that possession is surrendered to the condemning
authority, at which time all rights and obligation between the parties shall cease and
all rents and other charges shall be equitably apportioned. . . . The Lessee may elect
not to terminate this Lease and in such an event Base Rent and Percentage Rent
shall be decreased pro-rata for the remaining period of this Lease, including any
options, to reflect the economic impact of the taking relative to the rental value of
the [premises].
Doc. No. 32, Exhibit 1, § 12.3. Section 12.4 (entitled “Total-Temporary Condemnation”) states
in relevant part:
If the whole of the [premises] or such portion thereof as would render the use of
either property, not suitable for Lessee’s use as set forth above, shall be taken for a
period of one (1) year or less, the term of this Lease shall be tolled and, all rent and
other charges payable to Lessor shall abate from the time possession of the premises
is surrendered to the taking authority and recommence when possession is restored
to the Lessee.

Id. § 12.4.
These provisions are clearly inapplicable to the present set of circumstances. First, as
evident from its title, section 12.3 applies only where there is a permanent taking. The Buca
Defendants do not dispute that the Commonwealth expects to have completed the construction
by the end of 2015. Doc. No. 38, Exhibit 11. Nor do the Buca Defendants contend that the
Commonwealth will continue to interfere with their use of the premises once the Bridge
construction is complete, or that anything about the alleged taking is permanent in nature. 3 Even
if the headings have no interpretive significance (something not provided for in the Lease

3

Whether the parties intended for the word “permanent” in the Lease to mean indefinitely or
through the remainder of the Lease is irrelevant. The Lease does not end until May 31, 2020,
more than five years after the expected completion of the Bridge construction. Doc. No. 42 ¶ 6.

although amendments to the Lease do so provide, see Doc. No. 32, Exhibit 4, ¶ 11 & Exhibit 5, ¶
12), section 12.3 nonetheless remains inapplicable for the reasons set forth below.
The language of sections 12.3 and 12.4 requires that the condemning authority physically
invade the premises in order to trigger either of those provisions. Both provisions apply only
when “possession is surrendered.” Doc. No. 32, Exhibit 1, § 12.3 & 12.4. As tenants, the Buca
Defendants have possession, a term which means “actual and physical control.” See Black’s
Law Dictionary (6th ed. 1990) (defining “possess” as “to have in one’s actual and physical
control,” and “actual possession” as “immediate occupancy and physical control”). The word
“surrender,” especially when used in the landlord-tenant context, coupled with the word
“possession,” means to turn over physical possession and control to another, such as when a
tenant surrenders possession to a landlord and the landlord accepts possession. See id. (defining
“surrender” in landlord-tenant law as when “the tenant voluntarily gives up possession of the
premises prior to the full term of the lease and the landlord accepts possession with intent that
the lease be terminated”) (emphasis added). Moreover, the “possession” surrendered under this
Lease is possession of “the premises,” confirming that surrender of possession requires a turning
over of physical and actual occupation of the premises not merely an interference with use.
Elsewhere, the Lease defines the procedures for the Lessee to follow in making a
“surrender” to the landlord. Doc. No. 32, Exhibit 1, § 17.1. To surrender properly, the tenant
must “remove all Lessee’s goods and effects from the Demised Premises” and “deliver to Lessor
the Demised Premises and all keys and locks thereto.” Doc. No. 32, Exhibit 1, § 17.1. In other
words, the Lease treats surrender, albeit in a somewhat different context, as requiring a transfer
of physical possession of the property. Thus, the phrase “possession is surrendered” means
physical possession of the premises is surrendered to the taking authority. The Buca Defendants

do not contend that that occurred. In fact, they concede that they remain in possession of the
premises, and contend only that the construction site interfered with the Buca Defendants’ use of
the premises in that it obstructed traffic on the highway, created noise, deterred business, and at
times interfered with utility services.
Finally, the conditions on relief imposed by both sections 12.3 and 12.4 confirm the
foregoing reading. Each section requires surrender of possession “to” the “condemning” or
“taking authority.” Doc. No. 32, Exhibit 1, §§ 12.3 & 12.4. Such language necessarily,
especially in this context, means that the public authority is taking physical possession of the
premises from the lessee who has surrendered it. The Buca Defendants do not dispute that they
remain in possession of the premises. Doc. No. 42 ¶ 23. They advance no contention, nor any
evidence, that they surrendered the premises or any portion thereof to any public authority or
entity. The language of the Lease requiring surrender of possession of the premises to the
condemning or taking authority does not reach or encompass what the Buca Defendants
describe: the Bridge construction’s interference with the Buca Defendants’ operation of a
restaurant constitutes both a taking and a surrender while the Buca Defendants remain in
physical possession of the premises. 4
Accordingly, the circumstances described by the Buca Defendants, even if proved in the
course of the discovery they seek, fail to invoke either Section 12.3 or Section 12.4 of the Lease.

4

The Court rejects the Buca Defendants’ theory on the merits. However, even accepting the
Buca Defendants’ theory that both a taking and a surrender, within the meaning of the Lease,
occurred, thus triggering either section 12.3 or 12.4, the theory proves too much. The parties
stipulated at the motion hearing that the Bridge construction concluded in August, 2015.
Pursuant to the Buca Defendants’ theory, they resumed possession at that time and with the
resumption of possession the obligation to pay rent. To date, based on the representations of
counsel, the Buca Defendants have not paid nor offered to pay rent for the period commencing
with the conclusion of construction or anytime thereafter.

2.

Section 12.5 of the Lease

The Buca Defendants also contend that an issue of material fact exists as to whether they
might be excused from paying rent under section 12.5 of the Lease. Section 12.5 (entitled
“Partial-Temporary Condemnation”) states:
If less than the whole of the [premises] or any such portion thereof as would render
the use of the [premises] restricted for Lessee’s purposes as aforesaid is taken then
the basis for Lessee’s damages against the condemning authority, if allowable, or
against the total award shall be as suffered by Lessee for the interruption of Lessee’s
business and such additional relief as may be provided by law. Subject to the terms
of Section 12.3 and 12.4 Lessee shall continue to pay rent during such period.
Doc. No. 32, Exhibit 1, § 12.5. This provision is not explicitly conditioned on the Buca
Defendants “surrendering possession” to a “condemning authority.” Further, because the
provision does not use the terms “possession” or “surrender,” it might arguably encompass an
interference with use of the premises that amounts to an inverse taking under Massachusetts law,
such as the one alleged by the Buca Defendants. However, that is of no assistance to the Buca
Defendants’ circumstances. Section 12.5 does not excuse the obligation to pay rent in the
circumstances described by the Buca Defendants. First, section 12.5 contemplates damages
against the “condemning authority” as a remedy, and not against Renaissance in the form of rent
reduction. The final sentence commands that the Lessee “shall continue to pay rent during such
period” (i.e. the period of the partial temporary condemnation). Doc. No. 32, Exhibit 1, § 12.5
(emphasis added). The language admits of one exception to this unequivocal command: the
obligation to pay rent during the temporary condemnation period is “[s]ubject to the terms of
Section 12.3 and 12.4.” Id. As discussed in Part A.1, supra, sections 12.3 and 12.4 are

unambiguously inapplicable to the present situation. Section 12.5 therefore does not excuse the
Buca Defendants from paying rent. 5
3.

The Lease as a Whole

The Lease read as a whole unambiguously places the risk of temporary, non-invasive
interferences on the Buca Defendants, and thus supports the foregoing interpretation of sections
12.3, 12.4, and 12.5. Ryan v. Boston Hous. Auth., 77 N.E.2d 399, 401 (1948) (citing “the
general rule for construction of leases that all provisions should be read together and where
possible all the language given a reasonable meaning”). First, Section 21.1 explicitly provides:
“Except as provided for in sections 4.1, 5.1, 6.1 and 12.1 of this Lease, no abatement, diminution
or reduction of rent shall be claimed or allowed to Lessee . . . under any circumstances, whether
for inconvenience, discomfort, interruption of business or otherwise.” Doc. No. 32, Exhibit 1, §
21.1 (emphasis added). The plain language of this provision suggests that when the Buca
Defendants signed the Lease, they agreed that they would not be excused from paying rent for
interference with their business unless Section 4.1 (regarding the Lessee’s responsibility to pay
for utilities until the expiration of the Lease term), 5.1 (regarding the Lessee’s responsibility to
comply with federal, state, and local laws), 6.1 (regarding the distribution of costs associated
with maintenance of the premises), 12.1 (regarding the Lessor’s responsibilities in the event of a
fire or other casualty) or another provision of the Lease providing expressly for abatement of rent
was triggered. Each of those exceptions is clearly inapplicable to the Bridge construction

5

The Court’s interpretation does not render the subject language superfluous. Section 12.5
encompasses not only the type of alleged temporary non-invasive inverse taking claimed by the
Buca Defendants (which is not within the scope of Sections 12.3 and 12.4), but also at least some
of the physical takings that are within Sections 12.3 and 12.4. Section 12.5 establishes both a
damages rule applying to all takings within its scope, and reiterates that the Lessee must continue
to pay rent unless excused under the specific provisions set forth in Sections 12.3 and 12.4.

interfering with the Restaurant’s business, and thus the Buca Defendants may not claim any
“abatement, diminution or reduction of rent” for that reason.
Second, as a general matter, the conclusion that the Buca Defendants assumed the risk of
temporary, non-invasive interferences like the Bridge construction when it signed the Lease is
consistent with the Lease as a whole. According to the provisions of the Lease, the Buca
Defendants, rather than Renaissance, bear almost all risks and responsibilities associated with
operating a restaurant on the premises. For example, the Buca Defendants are responsible for all
utility arrangements and payments (Doc. No. 32, Exhibit 1, § 4.1), maintenance of all portions of
the premises aside from the roof (Id. §§ 6.1-6.4), liabilities and losses to any person or property
on the premises (Id. §§ 11.1, 20.1, 26.8), legal claims arising from acts on the premises (Id. §
11.1), damage to the premises (Id. § 12.2), and purchasing fire and liability insurance (Id. §§
13.1, 14.1). Further, Section 26.8 clarifies that Renaissance is not liable for any losses suffered
by the Buca Defendants unless those losses are caused by Renaissance’s failure to fulfill its
obligations. Id. § 26.8; see also id. § 6.1. The Buca Defendants do not dispute that Renaissance
has fulfilled all of its obligations under the Lease to date, and that the Bridge construction and
the Restaurant’s subsequent losses are unrelated to Renaissance’s obligations as Lessor.
Finally, Mass. Gen. Laws ch. 79 provides various causes of action to obtain
compensation from the government for interfering with the use and enjoyment of property, and
the Lease itself recognizes the existence of such actions. See Doc. No. 32, Exhibit 1, §§ 12.4,
12.5. In the commercial real estate context, the lessee (who is in possession of the premises and
operating a business on the premises), rather than the lessor, is in the best position to evaluate
any possible inverse temporary takings claims against the government and to determine the
compensable losses suffered. The Lease, by placing the risk of such losses on the Lessee,

aligned the risk with the party with knowledge of the injury. Thus, both on its face and in light
of policy considerations, the Lease is unambiguous in that the risk of temporary, non-invasive
interferences falls on the Buca Defendants.
B.

Rule 56(d)

The Buca Defendants urge this Court to either deny or defer its ruling on Renaissance’s
Motion for Summary Judgment in order to allow for further discovery under Fed. R. Civ. P.
56(d). Doc. No. 35 at 12. “To invoke Rule 56(d), a party must furnish the district court with a
timely statement that ‘(i) explains his or her current inability to adduce the facts essential to
filing an opposition, (ii) provides a plausible basis for believing that the sought-after facts can be
assembled within a reasonable time, and (iii) indicates how those facts would influence the
outcome of the pending summary judgment motion.’” Nieves-Romero v. United States, 715
F.3d 375, 381 (1st Cir. 2013) (quoting Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir.
2004)). The Rule also “requires due diligence both in pursuing discovery before the summary
judgment initiative surfaces and in pursuing an extension of time thereafter.” Resolution Trust
Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). Finally, “the district court
is entitled to refuse a Rule 56(d) motion if it concludes that the party opposing summary
judgment is unlikely to garner useful evidence from supplemental discovery.” Hicks v. Johnson,
755 F.3d 738, 743 (1st Cir. 2014).
To support their argument under Rule 56(d), the Buca Defendants provided the Court
with an affidavit signed by their attorney, Daniel Sonneborn. Doc. No. 38. By providing a draft
subpoena to be served on the Commonwealth that sets out ten categories of documents sought,
id., Exhibit 13, the Sonneborn affidavit “provides a plausible basis for believing that the soughtafter facts exist and can be assembled within a reasonable time.” Velez, 375 F.3d at 40. Both

the affidavit and the Buca Defendants’ memorandum in opposition to the Motion for Summary
Judgment, however, fail to fulfill each of the remaining requirements of Rule 56(d).
The affidavit fails to demonstrate how the discovery the Buca Defendants seek from the
Commonwealth would affect the Court’s analysis of Renaissance’s Motion for Summary
Judgment. See Resolution Trust Corp., 22 F.3d at 1207 (“[T]he facts that the movant seeks to
discover must be foreseeably capable of breathing life into his claim or defense.”). In their
opposition to Renaissance’s motion, the Buca Defendants state that they seek further discovery
to “establish that the Commonwealth’s actions amount to a taking . . . within the meaning of
Section 12.3.” Doc. No. 35 at 12. As discussed in Part A, supra, however, the Buca Defendants’
defense turns not on whether the Bridge construction’s interference with their business
constitutes a taking, but on whether their situation satisfies the other conditions set out in
Sections 12.3 and 12.4 of the Lease, including surrender of possession to a condemning
authority. While the burden of demonstrating materiality under Rule 56(d) is relatively low, the
Buca Defendants have not suggested that more facts regarding the Bridge construction would
alter this Court’s conclusions regarding the conditions of sections 12.3 and 12.4, or the
conclusion that Section 12.5 does not excuse the Buca Defendants from paying rent in any
circumstance. Discovery from the Commonwealth regarding the Commonwealth’s construction
project has no bearing on the meaning of the private agreement between the Buca Defendants
and Renaissance. Thus, because the Buca Defendants are “unlikely to garner useful evidence
from supplemental discovery,” the request under Rule 56(d) is denied. Hicks, 755 F.3d at 743.
IV.

CONCLUSION
For the foregoing reasons, Renaissance’s Motion for Summary Judgment (Doc. No. 30)

is ALLOWED on all counts. Within seven days, the parties shall file a proposed form of

judgment conforming to the Court’s opinion. By joining in the proposed form of judgment,
Defendants do not waive any objections or rights of appeal.

SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge