NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-259
HONEY DEW ASSOCIATES, INC.
vs.
JOHN F. KENNEDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, John F. Kennedy, appeals from a final
judgment of the Norfolk Superior Court awarding the plaintiff,
Honey Dew Associates, Inc. (Honey Dew), the sum of $83,027 on
its breach of contract claim. The judgment resulted from the
allowance of Honey Dew's motion for summary judgment, which was
based on its claim that Kennedy violated his franchise agreement
with Honey Dew by abandoning his donut shop without Honey Dew's
written permission. Kennedy's argument on appeal, as it was in
his opposition to the motion for summary judgment in the
Superior Court, is that he did not "abandon" his donut shop but
instead that it was impossible for him to open and operate the
donut shop because he could not comply with the Governor's COVID-19 Order No. 33 (reopening order).1 A Superior Court judge
allowed Honey Dew's motion for summary judgment and awarded
Honey Dew liquidated damages. Kennedy appealed. We conclude
that there are material facts in dispute, and therefore we
vacate the summary judgment and remand to the Superior Court for
further proceedings.
Background. Because this appeal relates to the grant of
summary judgment, we discuss the facts necessary to decide the
issues in the light most favorable to the nonmoving party,
Kennedy. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680
(2016).
Kennedy and Honey Dew executed a franchise agreement that
was in existence during the applicable time frame. Under the
agreement, Kennedy was to pay Honey Dew weekly royalties. Honey
Dew could terminate the agreement if Kennedy abandoned the
premises by failing to open for business without prior written
consent of Honey Dew. Under such circumstances, Kennedy would
have to pay Honey Dew liquidated damages. On the record before
us, the agreement did not contain a force-majeure clause.2
1 See Office of the Governor, Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19, COVID-19 Order No. 33 (May 18, 2020). 2 A force-majeure clause is "[a] contractual provision allocating
the risk of loss if performance becomes impossible or impracticable, esp[ecially] as a result of an event or effect that the parties could not have anticipated or controlled." Black's Law Dictionary 788 (11th ed. 2019).
2 On March 10, 2020, the Governor declared a state of
emergency due to the COVID-19 pandemic, and until June 2020, he
issued executive orders causing many businesses to shut down.
See Committee for Pub. Counsel Servs. v. Chief Justice of the
Trial Court (No. 1), 484 Mass. 431, 433-434, S.C., 484 Mass.
1029 (2020); Office of the Governor, Order Assuring Continued
Operation of Essential Services in the Commonwealth, Closing
Certain Workplaces, and Prohibiting Gatherings of More Than 10
People, COVID-19 Order No. 13 (Mar. 23, 2020) (COVID-19 Order
No. 13). In late March 2020, Kennedy closed his donut shop.
Honey Dew took no action pursuant to the franchise agreement
with respect to closure at that time.
On May 18, 2020, the Governor issued the reopening order,
which modified the restrictions of COVID-19 Order No. 13 and
implemented a phased reopening of brick-and-mortar businesses.
Page two of the reopening order stated in pertinent part that
businesses operating brick-and-mortar premises "may open those
premises to workers, customers, and the public provided they
comply with all workplace safety rules and standards issued or
maintained pursuant to Section 2 and all other terms of this
Order." Section 2 in pertinent part stated, "brick-and-mortar
premises must immediately adopt and maintain the following
general applicable COVID-19 workplace safety rules." With
respect to social distancing, Section 2 listed four bullet
3 points, the first two of which were: "All persons, including
employees, customers, and vendors should remain at least six
feet apart to the greatest extent possible, both inside and
outside workplaces;" and "Establish protocols to ensure that
employees can practice adequate social distancing."
On June 19, 2020, Honey Dew sent a letter to Kennedy asking
Kennedy to identify his intended reopening date. Hearing no
response, on June 30, 2020, Honey Dew visited the location of
the donut shop and found it closed, with all Honey Dew marketing
materials removed from the windows and a "for rent" sign
displayed. The next day, Honey Dew sent Kennedy a notice of
termination asserting that Kennedy had abandoned the premises by
failing to reopen without Honey Dew's prior written consent.
Honey Dew filed an action in the Superior Court and moved
for summary judgment. In the consolidated statement of material
facts submitted by the parties, Honey Dew took the position that
as of July 1, 2020, there was "no governmental Covid Order or
Regulation which mandated that the defendant's Wakefield Shop
remain closed." Kennedy denied this statement and stated that
he "was prevented from opening the store due to Governor Charlie
Baker's COVID-19 Orders. See Affidavit of John Kennedy." In
opposition to the motion for summary judgment, Kennedy argued
that the reopening order mandated that, "for employees at least,
businesses 'establish protocols to ensure that employees can
4 practice social distancing.' Exhibit c-4, p.6. The
determination of what is adequate social distancing or whether
the business could conduct social distancing to any extent is a
question of fact." Kennedy's affidavit accompanying the
opposition stated,
"Considering the layout of the store [and] the limited useable areas . . . it was entirely impossible to social distance or to monitor or enforce social distancing, especially as customers were entering or leaving the premises or using the restroom facilities. . . . The shop did not have separate work areas for each individual employee. For the store to function properly employees had to share registers, counter areas, coffee machines, which made social distancing unmanageable and impossible . . . the employees would be required to use the same coffee machine area and would be within inches of one another. . . . Given the small nature of the store, it would have been impossible to attract customers who were trying to observe social distancing or to retain or hire employees."
In allowing Honey Dew's motion for summary judgment, the
Superior Court judge ruled that the reopening order "directing
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-259
HONEY DEW ASSOCIATES, INC.
vs.
JOHN F. KENNEDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, John F. Kennedy, appeals from a final
judgment of the Norfolk Superior Court awarding the plaintiff,
Honey Dew Associates, Inc. (Honey Dew), the sum of $83,027 on
its breach of contract claim. The judgment resulted from the
allowance of Honey Dew's motion for summary judgment, which was
based on its claim that Kennedy violated his franchise agreement
with Honey Dew by abandoning his donut shop without Honey Dew's
written permission. Kennedy's argument on appeal, as it was in
his opposition to the motion for summary judgment in the
Superior Court, is that he did not "abandon" his donut shop but
instead that it was impossible for him to open and operate the
donut shop because he could not comply with the Governor's COVID-19 Order No. 33 (reopening order).1 A Superior Court judge
allowed Honey Dew's motion for summary judgment and awarded
Honey Dew liquidated damages. Kennedy appealed. We conclude
that there are material facts in dispute, and therefore we
vacate the summary judgment and remand to the Superior Court for
further proceedings.
Background. Because this appeal relates to the grant of
summary judgment, we discuss the facts necessary to decide the
issues in the light most favorable to the nonmoving party,
Kennedy. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680
(2016).
Kennedy and Honey Dew executed a franchise agreement that
was in existence during the applicable time frame. Under the
agreement, Kennedy was to pay Honey Dew weekly royalties. Honey
Dew could terminate the agreement if Kennedy abandoned the
premises by failing to open for business without prior written
consent of Honey Dew. Under such circumstances, Kennedy would
have to pay Honey Dew liquidated damages. On the record before
us, the agreement did not contain a force-majeure clause.2
1 See Office of the Governor, Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19, COVID-19 Order No. 33 (May 18, 2020). 2 A force-majeure clause is "[a] contractual provision allocating
the risk of loss if performance becomes impossible or impracticable, esp[ecially] as a result of an event or effect that the parties could not have anticipated or controlled." Black's Law Dictionary 788 (11th ed. 2019).
2 On March 10, 2020, the Governor declared a state of
emergency due to the COVID-19 pandemic, and until June 2020, he
issued executive orders causing many businesses to shut down.
See Committee for Pub. Counsel Servs. v. Chief Justice of the
Trial Court (No. 1), 484 Mass. 431, 433-434, S.C., 484 Mass.
1029 (2020); Office of the Governor, Order Assuring Continued
Operation of Essential Services in the Commonwealth, Closing
Certain Workplaces, and Prohibiting Gatherings of More Than 10
People, COVID-19 Order No. 13 (Mar. 23, 2020) (COVID-19 Order
No. 13). In late March 2020, Kennedy closed his donut shop.
Honey Dew took no action pursuant to the franchise agreement
with respect to closure at that time.
On May 18, 2020, the Governor issued the reopening order,
which modified the restrictions of COVID-19 Order No. 13 and
implemented a phased reopening of brick-and-mortar businesses.
Page two of the reopening order stated in pertinent part that
businesses operating brick-and-mortar premises "may open those
premises to workers, customers, and the public provided they
comply with all workplace safety rules and standards issued or
maintained pursuant to Section 2 and all other terms of this
Order." Section 2 in pertinent part stated, "brick-and-mortar
premises must immediately adopt and maintain the following
general applicable COVID-19 workplace safety rules." With
respect to social distancing, Section 2 listed four bullet
3 points, the first two of which were: "All persons, including
employees, customers, and vendors should remain at least six
feet apart to the greatest extent possible, both inside and
outside workplaces;" and "Establish protocols to ensure that
employees can practice adequate social distancing."
On June 19, 2020, Honey Dew sent a letter to Kennedy asking
Kennedy to identify his intended reopening date. Hearing no
response, on June 30, 2020, Honey Dew visited the location of
the donut shop and found it closed, with all Honey Dew marketing
materials removed from the windows and a "for rent" sign
displayed. The next day, Honey Dew sent Kennedy a notice of
termination asserting that Kennedy had abandoned the premises by
failing to reopen without Honey Dew's prior written consent.
Honey Dew filed an action in the Superior Court and moved
for summary judgment. In the consolidated statement of material
facts submitted by the parties, Honey Dew took the position that
as of July 1, 2020, there was "no governmental Covid Order or
Regulation which mandated that the defendant's Wakefield Shop
remain closed." Kennedy denied this statement and stated that
he "was prevented from opening the store due to Governor Charlie
Baker's COVID-19 Orders. See Affidavit of John Kennedy." In
opposition to the motion for summary judgment, Kennedy argued
that the reopening order mandated that, "for employees at least,
businesses 'establish protocols to ensure that employees can
4 practice social distancing.' Exhibit c-4, p.6. The
determination of what is adequate social distancing or whether
the business could conduct social distancing to any extent is a
question of fact." Kennedy's affidavit accompanying the
opposition stated,
"Considering the layout of the store [and] the limited useable areas . . . it was entirely impossible to social distance or to monitor or enforce social distancing, especially as customers were entering or leaving the premises or using the restroom facilities. . . . The shop did not have separate work areas for each individual employee. For the store to function properly employees had to share registers, counter areas, coffee machines, which made social distancing unmanageable and impossible . . . the employees would be required to use the same coffee machine area and would be within inches of one another. . . . Given the small nature of the store, it would have been impossible to attract customers who were trying to observe social distancing or to retain or hire employees."
In allowing Honey Dew's motion for summary judgment, the
Superior Court judge ruled that the reopening order "directing
all persons to 'remain at least six feet apart to the greatest
extent possible' is aspirational. . . . Because the Court
concludes that JFK Donuts' continued closure warranted HDA's
termination of the franchise agreement, HDA is entitled to
liquidated damages." The judge did not address the other
portion of Section 2 of the reopening order, which stated that
businesses must "Establish protocols to ensure that employees
can practice adequate social distancing."
5 Discussion. In reviewing a grant of summary judgment, we
assess the record de novo and take the facts, together with all
reasonable inferences to be drawn from them, in the light most
favorable to the nonmoving party. See Pugsley v. Police Dep't
of Boston, 472 Mass. 367, 370-371 (2015). "The moving party
bears the burden of affirmatively demonstrating the absence of a
triable issue." Milliken & Co. v. Duro Textiles, LLC, 451 Mass.
547, 550 n.6 (2008). If the moving party meets its burden, to
defeat summary judgment, "the party opposing the motion must
respond and allege specific facts establishing the existence of
a genuine issue of material fact." French King Realty Inc. v.
Interstate Fire & Cas. Co., 79 Mass. App. Ct. 653, 659-660
(2011).
The applicability of the doctrines of impracticability and
frustration of purpose is generally "depend[ant] on the facts
and circumstances which [a]re for the jury to decide." Mishara
Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 126
(1974). However, where the material facts are not in dispute
and "no rational view of the evidence" permits a finding of
impracticability or frustration of purpose, summary judgment is
proper. Petrell v. Shaw, 453 Mass. 377, 381 (2009), discussing
negligence and citing Mullins v. Pine Manor College, 389 Mass.
47, 56 (1983).
6 Kennedy admits that he closed his donut shop without the
prior written permission of Honey Dew and failed to make
payments pursuant to their agreement. However, he asserts that
his obligations were impossible to keep because of the
Governor's reopening order and the inability to comply with the
order's social distancing requirements. For purposes of summary
judgment, we must accept Kennedy's contentions that employees
would sometimes be within inches of one another while working
and, because of the small dimensions of the store, it would be
impossible to comply with the social distancing requirements
outlined in the reopening order.
We take no issue with the judge's interpretation that the
language in Section 2 of the reopening order directing all
persons "should remain at least six feet apart to the greatest
extent possible" was "aspirational." This view is supported by
the plain language of Section 2, which uses "should" and not
"shall." When used in a statute, the word "shall" generally
denotes a mandatory requirement. See Sullivan v. Brookline, 435
Mass. 353, 360 (2001) ("shall" interpreted as mandatory in
accord with general rule of statutory interpretation). However,
this does not conclude the matter.
In his opposition, Kennedy raised the issue that he could
not establish protocols to ensure employee social distancing.
The reopening order instructed businesses to "Establish
7 protocols to ensure that employees can practice adequate social
distancing." We read this phrase as a mandate of the reopening
order. The reopening order does not define "adequate social
distancing." Whether the store could have reopened such that
"employees can practice adequate social distancing" is a
material dispute of fact that precludes summary judgment.
Conclusion. The summary judgment for Honey Dew is vacated,
and the case is remanded for further proceedings consistent with
this memorandum and order.3
So ordered.
By the Court (Henry, D'Angelo & Hodgens, JJ.4),
Assistant Clerk
Entered: February 15, 2024.
3 Since the judgment is vacated, the judge's order for liquidated damages is also vacated, and we need not reach the issues raised in this appeal about the propriety of the damages award. 4 The panelists are listed in order of seniority.