Craft Beer Build, LLC v. Alcoholic Beverages Control Commission (Lawyers Weekly No. 09-022-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-809-D ________________________ CRAFT BEER GUILD, LLC d/b/a CRAFT BREWERS GUILD, Plaintiff, vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION Defendant. ________________________ MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS The plaintiff Craft Beer Guild, LLC d/b/a/ Craft Brewers Guild (“Craft”) is appealing an adjudicatory decision, dated February 12, 2016 (“Decision”) of the Alcoholic Beverages Control Commission (“ABCC” or “Commission”) under G. L. c. 30A, § 14. After the ABCC filed the Administrative Record (A.R.) and a Supplemental Administrative Record (S.A.R.) on September 22, 2016, Craft filed its “Plaintiff Craft Beer Guild, LLC d/b/a/ Craft Brewers Guild’s Motion for Judgment on the Pleadings” (“Motion”) on June 29, 2017, pursuant to Superior Court Standing Order 1-96 as amended.1 After a hearing on the Motion on September 12, 2017, at which the Court heard from both parties, the Court DENIES THE MOTION. 1 Craft has not helped its cause by filing a brief with what appears to be less than 12-point font, in violation of Superior Court Rule 9A(a)(5). As predicted in the Court’s endorsement of March 20, 2017, this added verbiage has only resulted in diverting focus and attention from Craft’s strongest arguments. 2 BACKGROUND Craft is a wholesaler of alcoholic beverages licensed under G.L. c. 138, § 18. It distributes about 200 craft beer brands to, among others, retailers such as restaurants and bars licensed under G.L. c. 138, § 12 for consumption of alcohol. In October 2014, one of the owners of a Crafts-distributed brand tweated allegations that its brand had been removed from the tap at Boston location because Massachusetts suppliers and wholesalers were making unlawful payments to retail licensees in exchange for those retailers carrying Craft brands. The Commission began an investigation, which lasted about seven months and resulted in a Violation Report. The Violation Report led to administrative charges against Craft for violation of the price discrimination law (G.L. c. 138, § 25A(a)) and of 204 Code Mass. Regs. § 2.04(1), quoted below. The ABCC had not previously brought such a proceeding against any licensee under § 2.08. During the proceedings, Craft stipulated to the facts in the Violation Report. After adjudicatory hearings, the ABCC found that Craft violated 204 CMR 2.08 and G.L. c. 138, § 25A. Based on the stipulated facts, the Commission found that in 2013 and 2014, Craft negotiated and implemented a series of schemes between itself, numerous retail licensees and certain third-party management companies that managed the retail licensees. Craft negotiated payment arrangements with the third-party management companies in exchange for tap lines committed to Craft brands at retail licensees that those companies managed. Generally, the payments were either […]
Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-164-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT PREMIER DESIGN + BUILD GROUP, LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST G. LOPES CONSTRUCTION, INC. This case arises out of the construction of a FedEx facility in Northborough, Massachusetts. Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants G. Lopes Construction, Inc. (Lopes), Premier Design + Build Group, LLC (Premier), and Haley & Aldrich, Inc. (Haley) seeking to recover damages relating to remedial work performed after the construction. This Court has already denied motions for summary judgment made by Haley and by Premier as to plaintiffs’ claims asserted against them. Now before this Court is Premier’s Motion for Summary Judgment as to Count VII of its Cross Claim against defendant Lopes. Premier seeks a declaration from this Court that its subcontract with Lopes contains a valid and enforceable duty to indemnify and that Lopes is obligated to indemnify, defend, and hold Premier harmless from any errors or deficiencies related to the construction project. After careful review of the parties’ submissions, this Court 2 concludes that Premier’s motion must be DENIED as to Lopes’ duty to indemnify but ALLOWED as to its duty to defend. BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the Project). Because the site was on a relatively steep slope, a significant amount of cut and fill and excavation work was required to prepare it for construction. The plaintiffs retained Premier to perform this work. Premier in turn retained Lopes as a subcontractor to perform demolition, grading, and excavation for the Project. The defendant Haley was retained by Premier to provide on-site monitoring of the earthwork. On September 21, 2011, Lopes began removing trees at the Project site, and excavation at the site continued through the fall. Hillside authorized Premier to proceed with the foundation installation in late December 2011, and footings and foundations for the Project were installed shortly thereafter. In February 2012, it was noticed that the walls appeared to have shifted laterally. Ultimately, it was determined that the foundations had settled and that this was caused by improper fill work. There are disputes of fact as to which entity – Premier, Lopes, […]
Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-158-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT PREMIER DESIGN + BUILD GROUP, LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC This case arises out of the construction of a FedEx facility in Northborough, Massachusetts. Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants G. Lopes Construction, Inc. (Lopes), Premier Design + Build Group, LLC (Premier), and Haley & Aldrich, Inc. (Haley) seeking to recover damages relating to remedial work performed after the construction. This Court has already denied Haley’s summary judgment motion. This memorandum concerns the defendant Premier’s Motion for Summary Judgment as to plaintiffs’ claims against it. 1 Premier argues that release language in a change order bars all of the plaintiffs’ claims against it and that plaintiffs have in any event waived any claim because they failed to follow certain contractual provisions. After careful review of the summary judgment record, this Court concludes that there are questions of fact such that the Motion must be Denied. 1 Plaintiffs also filed a motion to strike three of Premier’s fact statements contained in Premier’s Superior Court Rule 9A (b) (5) statement of material facts. That motion is denied for the reasons stated in Premier’s opposition. 2 BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the “Project”). Because the site was on a relatively steep slope, a significant amount of cut and fill and excavation work was required to prepare it for construction. The earthwork began in September 2011, with foundations and walls of the building installed in early 2012. Shortly thereafter, it was noticed that the walls appeared to have shifted laterally. Ultimately, it was determined that the foundations had settled and that this was caused by improper fill work. By the time the building was stabilized and the site repaired, Hillside had spent more than $ 3 million in remedial work. Premier’s Motion is based in part on language contained in its construction contract with Hillside (the Agreement). See Exhibit C of Joint Appendix. Article 7 of the Agreement states that “[i]f, during the period of construction, the Work [as defined by the Agreement] is found to be […]
Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-147-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT HALEY & ALDRICH, INC.’S MOTION FOR SUMMARY JUDGMENT Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants, Haley & Aldrich, Inc. (Haley), Premier Design + Build Group, LLC (Premier), and G. Lopes Construction, Inc. (Lopes) seeking to recover damages relating to the construction of a freight facility in Northborough, Massachusetts. All three defendants have moved for summary judgment. This memorandum addresses that motion brought by the defendant Haley. The Plaintiffs’ Third Amended Complaint (the Complaint) asserts the following claims against Haley: breach of contract (Count II), gross negligence (Count VI), breach of express and implied warranties (Count VII), common law indemnity (Count VIII), reformation (Count IX), and negligent or intentional misrepresentation (Count X). Haley moves for summary judgment as to all of these counts. In the alternative, it argues that its liability must be capped pursuant to the written contracts it entered into with plaintiffs. The plaintiffs agree that summary judgment is appropriate as to Count VIII, their common law indemnity claim, but otherwise contest the 2 motion. This Court concludes that, with the exception of Count VIII, Haley’s motion must be Denied. BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones, both based in Kansas City, Missouri, engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the Project). The Project’s plans required a significant amount of cut and fill and excavation work at the site to prepare for the building’s construction. The plaintiffs hired Haley to perform geotechnical consulting work as well as soil testing. Before construction began, Haley prepared a lengthy Report that summarized the results of subsurface soil explorations and made certain recommendations as to geotechnical design and construction for the proposed facility. This Report included Haley’s analysis of soil at the Project and its moisture contents, as well as its recommendation that compacted granular fill be used at certain areas of the site where unsuitable soils were located. On June 28, 2011, Haley and Hillside entered into a written agreement (the Reliance Agreement) stating that the services performed by Haley were subject to the scope of services expressed in the Report and that Hillside could rely on the Report, subject to certain terms and […]
Upcoming Forum to ‘Build a Healthier South End’
Thanks to a new initiative, South End residents and those working in the comunity will be able to come together next week to share ideas to build a healthier neighborhood. The Boston Public Health Commission (BPHC), in partnership with the South End Healthy Boston Coalition, the Boston Alliance for Community Health (BACH), and the Blackstone Community Center, is hosting a special community health meeting in the South End to discuss the health of residents in the neighborhood and to facilitate a strategic planning process to create a healthier community. The meeting will be held from 6:30 p.m. to 8:00 p.m. on Wednesday, March 27, at the Blackstone Community Center (50 W. Brookline St.) The meeting is the first in a series of citywide health forums this year. The focus of the meeting is to get those living and working in the communityt o come together to deiscuss ways to build a healthier neighborhood, including promoting safety, reducing crime and decreasing substance abuse. “We are excited about the opportunity to come together with the community to think about many of the factors that impact health in the neighborhood,” said Dr. Barbara Ferrer, executive director of BPHC. “We know that understanding and addressing root causes is a must when it comes to making our neighborhoods healthier.” The results of the latest neighborhood-by-neighborhood health assessment are in, and they show the South End is a young, well-educated neighborhood. Over half of residents are between the ages of 18 to 44, and 53 percent of the population has a bachelor’s degree or higher. Adults in the neighborhood are slightly less likely to smoke cigarettes or to have asthma and slightly more likely to exercise regularly compared to Boston overall. However, substance abuse deaths and rates of emergency department visits for nonfatal violence remain challenges for the community. “The coalition looks forward to this opportunity to share the results of our assessment and continue learning from residents from throughout the community about what impacts their health,” said Caitlin Johnson, coordinator of the South End Healthy Boston Coalition. The event is free and open to the public. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Developers Win Air Parcel Rights to Build 32-Story Tower
Samuels & Associations and Weiner Ventures won the rights to build a 32-story hotel, apartment and retail complex near the Hynes Convention Center stop in the Back Bay. The state Department of Transportation announced Monday that it awarded the air rights parcels above and along Interstate 90 at the intersection of Boylston Street and Massachusetts Avenue for a mixed-use tower. The 99-year lease agreement is valued at $ 18.5 million in rent for the two parcels. In one spot, the developers will build a 400-foot high-rise hotel and residential building, which will be set back from Boylston Street with a low-rise retail building along the street. In the other, they will construct a mid-rise residential building on Boylston Street and a two-floor retail building that will cross the Turnpike along Massachusetts Avenue. Altogether, the $ 360 million project will create a total of 230 residential units, a 270-room hotel, and 50,000 square feet of retail space. “We believe the (developer’s) proposal provides the best overall value and long-term benefit to the City of Boston by transforming this critical Back Bay intersection along the Turnpike,” MassDOT Secretary Richard Davey said. “The proposal’s rent offer also provides the best financial benefits to the citizens of the Commonwealth.” MassDOT judged the project on design, community benefits, community and city input, and on the developer’s financial proposal, capacity, and experience. The process began in 2008 but was put on hold during the financial crisis; it restarted in 2011. The Samuel-Weiner team has developed several prominent properties in the Back Bay and Fenway area over the past several years, including the Mandarin Oriental Hotel on Boylston Street and the Fenway Triangle Trilogy. South End Patch
Plan to Build Hotel On Albany Street Is Scrapped
There won’t be a hotel built on Albany Street in the South End after all, according to the latest filing with the Boston Redevelopment Authority. In what was originally approved as a two-hotel project, then a one hotel, one apartment complex project, the plans for the 275 Albany Street site have changed once again, this time switching to two all-residential apartment buildings and a large parking garage. The two buildings that will now seek the BRA’s approval are a 19-story apartment complex facing Traveler Street and an L-shaped building on East Berkeley Street that will rise 11 stories. Thee Traveler St. structure will be used for residential use with up to 220 units, and the East Berkeley structure will also be used for residential use with up to 180 units rooms. In addition, the project will include retail and possibly restaurant space, with accessory parking with up to 180 parking spaces. The dual-hotel project by Normandy Real Estate Partners was originally approved in 2010, and was changed the first time in the summer of 2012 to become half hotel, half residential. The BRA has scheduled a public meeting on Feb. 26 to review the project’s new plans. The meeting will take place at 6:30 p.m. at Project Place, (1145 Washington St. – Suite 2.) The Albany Street area is no stranger to upcoming developments. The Ink Block apartment complex, which will feature a Whole Foods Market, is planned for this spring. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch