United States District Court, D. Massachusetts
November 10, 2015
Renaissance Development Corp., Plaintiff: Lauren J. Coppola,
LEAD ATTORNEY, Partridge Snow & Hahn, Boston, MA; Martin P.
Desmery, LEAD ATTORNEY, Partridge Snow & Hahn LLP, Boston,
Buca V, LLC, Buca, Inc., Buca Restaurants, Inc., Defendants:
Daniel R. Sonneborn, LEAD ATTORNEY, Preti Flaherty Beliveau &
Pachios LLP, Boston, MA; William C. Saturley, LEAD ATTORNEY,
Preti Flaherty Beliveau & Pachios PLLP, Concord, NH.
ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. NO.
Sorokin, United States District Judge.
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.
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.
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
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,
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.
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.
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,
106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
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 ...