Honey Dew Associates, Inc. v. John F. Kennedy.

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

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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

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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."

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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).

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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

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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.

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