What is Digg?97 Comments
- kenvsryu, on 10/12/2007, -11/+59Wow! This is what lawyers and judges are busy with?
- sincewednesday, on 10/12/2007, -1/+48Not that it changes the absurdity of the lawsuit, but the "local" Mexican restaurant in question, Qdoba, is actually owned by Jack-In-The-Box Inc., which has 4x the revenue of Panera. So they sued a larger corporation with more money and more lawyers.
- rrssll, on 10/12/2007, -2/+42yes, lawyers are busy with contract disputes.
- inactive, on 10/12/2007, -4/+37Is a donut a bagel? I didn't think so *****! A burrito is a goddamn burrito
- chris9902, on 10/12/2007, -3/+29in between lunch when they go to the Mexican sandwich shop.
- patrickbwells, on 10/12/2007, -2/+27How about a jelly filled doughnut, is that a sandwich? Or an Oreo cookie? Pizza a is an "open-faced" sandwich along with. You must be careful when dipping potato chips into dip because if you accidentally get too much dip between two of the chips it is probably a sandwich. There is a grocery store in the mall and they will not sell bread and deli meat to the same person on the same day.
- egotripping, on 10/12/2007, -2/+22Mmmm, open-faced club-sandwich...
- mdesjardins, on 10/12/2007, -1/+18ahh - the old "slippery slope" argument... today, a burrito, tomorrow, pizza!
Are you a lawyer? - jmp120, on 10/12/2007, -2/+18This is a civil case between two American companies. The owners of the companies have the constitutional right to have their cases heard in a court of law.
- snurfle, on 10/12/2007, -4/+15"what and uneducated decision."
You know, it's just not any fun when they're so easy. - snurfle, on 10/12/2007, -4/+14Hey! You got your sandwich on my burrito!
No, you got your burrito on my sandwich! - inactive, on 10/12/2007, -0/+10Yes, shame on Pantera. Just because you design a cool car and make some cool music doesn't give you the right to push around mexican restaurants.
- FunkyWitDaSysTm, on 10/12/2007, -10/+20this is not only ridiculous; it's delicious!
seriously, though, panera strong-arming a local mexican restaurant? in a mall? AND THEY WENT TO COURT OVER IT? jeez! - Wizardo55, on 10/12/2007, -1/+10I love burritos, and I love sandwiches. Why is it that they can't coexist peacefully??
- Tebixan, on 10/12/2007, -2/+10too much bread...
[burrito]
[meat&cheese]
[burrito]
now thats a sandwich - Artifez, on 10/12/2007, -1/+8Wow, people really don't like kebabs
- quisph, on 10/12/2007, -3/+10Pizza? Now that's what I call a taco!
- Tebixan, on 10/12/2007, -1/+7I think the subject was more about whether a burrito is in direct competition with Panera's sandwiches. Because apparently in American malls we don't allow competition.
- praisethelard, on 06/06/2008, -1/+6Among them was Cambridge chef Chris Schlesinger, who said in an affidavit: "I know of no chef or culinary historian who would call a burrito a sandwich. Indeed, the notion would be absurd to any credible chef or culinary historian."
Hmm...maybe you need better schooling. - karlhite, on 10/12/2007, -4/+8"After a thorough taste-test... "
- falltime, on 10/12/2007, -4/+8For all you people who say "doesnt the court have anything better to do" - Answer = No, in fact this is EXACTLY what courts should be doing; It is a 100% legitimate legal question. 1st remove any bias regarding big chain restaurants and just imagine you own a deli in a shopping center. You sign a lease w/ the Landlord that says no one else can open a sandwhich shop. (all legitimate) and then a Fast Food restaurant that sells Burritos, Quesidias etc.... while maybe no technically sandwhiches - it is pretty close (a luch product w/ meat surrounded by bread) and will definetly cut into your sales; further maybe in discusions w/ the LL you thought that the LL wouldnt sign w/ anyone selling anything even close to sandwhiches.
So you hire a lawyer to enforce your contract; and the court decides that the term sandwhiches (in this contract anyway) doesnt cover burrittos, etc....
What the F' else should courts of law be deciding? - mabhatter, on 10/12/2007, -2/+6if you understand how malls work, you'd understand the big deal. Companies pay malls outrageous rent often with the strings attached that they'll be the "only" vendor of their type in the mall. The malls put up ridiculous restrictions on what size store, how much advertizing they can do, etc.. in addition to the cut of the DAILY recipts!!!
The mall made that deal to get their resturant into the mall, now the mall needs to live with it, or adjust Panera's contract. The malls in my town have made the same kind of deals, and it's hillarious when they backfire like this.... Panera has been paying high rent for the "privelage" of being exclusive to the mall... now that another company wants in, and probaby will pay even more outrageous rent, Panera has the mall over the coals to not allow them in.
No pity for the Malls here. On the other hand I like Panera, they have cool free internet, and my wife worked there for a while. I find the sandwitchs a little TOO high end, but I'm a long time McVet... - Haohmaru, on 10/12/2007, -1/+4You ever been to a Panera?
They're not even close to being a Tex-Mex place. Think of a Starbucks that makes it own fresh bread and sandwiches. - mabhatter, on 10/12/2007, -0/+3simple, Panera is paying the mall owner "premium" rent to be the only sandwitch shop in the mall, that's very common. The malls in my town do this too and it's very funny when they try to skirt their own contract by bringing somebody else in. In my town's case it was banks, the leading town bank had an external branch on a mall owned lot, with a contract that the mall couldn't put another bank IN the mall. The upside for the Mall property owners is they get guaranteed, value adjusted, rent for 30 years out of the orginal deal with the bank... that's a fair contract. They actually had to close the branch after it was already built and open for business.
Having seen new mall owners wreak the smaller businesses at one of my towns malls I've got no pity at all on Mall owners. I've seen new owners try to triple the rent on 20-year tennants because they thought some big box store would make them rich.... and watched those stores sit empty for litterally 10 years!!!! because nobody else could afford to work there.
You have to remember, the "anchors" typically don't pay much rent above cost to the mall owners, they're subsidized to draw customers in... so the malls have to jack up prices on the smaller stores to pay the bills. At one of my town's malls, Walmart came in and built over an old Montgomery Wards... a good thing, but they pulled a typical "walmart" thing and cut up the driveway, and didn't integrate well with the rest of the mall. The mall got Walmart for the traffic, but then walmart turned around and made it "inconvenient" to get around the lot, or to get between them and the mall, even though they are physically adjacent. The games the companies play... - karlhite, on 10/12/2007, -4/+6Burrito sandwich?
[Bread]
[Burrito]
[Bread]?
sounds good. - UtopianComplex, on 10/12/2007, -3/+5This story makes me want to be a judge.
- dave9999, on 10/12/2007, -0/+2I think I'm going to lunch early today.
- thcobbs, on 10/12/2007, -7/+9@vyperts
Blame the plaintiff for filing a ***** dumb lawsuit. Otherwise, this would never have been in court. - mushoo, on 10/12/2007, -2/+4No. They have burritos and sandwiches just like us. Go into any place where they server both and ask for a meat and potatoes sandwich and see what they give you.
Burritos are more common the northern states, the ones next to the border, where the settlers were too dumb to master the corn tortilla making techniques of their southern brethren, so they wussed out and started using flour tortillas. Thus a burrito is nothing more than the hideously malformed third cousin of a taco, specially when it contains cheddar cheese. Then it becomes a blasphemous thing of horror. - Murdats, on 10/12/2007, -3/+5I believe he means a doner kebab rather then a shish kebab
the doner kebabs being the ones with bread stuff, the shish kebabs being the skewered meats - ubuwalker31, on 10/12/2007, -0/+2falltime:
I am not sure why you are being dug down (bad spelling perhaps) but you hit the nail on the head. Deciding what words mean in contracts is precisely what lawyers and judges do all day. Words can mean multiple things to different people. Reasonable people can disagree on what a word means. In fact, words often have more than one acceptable dictionary meaning. - serval, on 10/12/2007, -0/+12006 Mass. Super. LEXIS 544, *
White City Shopping Center, LP v. PR Restaurants, LLC dba Bread Panera
Opinion No.: 95703, Docket Number: 2006-196313
SUPERIOR COURT OF MASSACHUSETTS, AT WORCESTER
2006 Mass. Super. LEXIS 544
October 30, 2006, Decided
October 31, 2006, Filed
CORE TERMS: lease, sandwich, restaurant, food, tacos, quesadillas, burritos, likelihood of success, irreparable harm, preliminary injunction, bread, space, injunction, near-eastern, exclusivity, commercial lease, injunctive relief, negotiations, leasing, intervening party, square feet of retail, commonly understood, broad definition, table service, new building, high quality, delicatessen, freestanding, fast-casual, franchisee
JUDGES: [*1] Jeffrey A. Locke, Justice of the Superior Court.
OPINION BY: Jeffrey A. Locke
OPINION: MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION
Plaintiff White City Shopping Center, LP ("White City") brought this declaratory judgment action against defendant PR Restaurants, LLC ("PR") seeking a declaration that it is not in breach of its commercial lease with PR. PR counterclaimed against White City for breach of contract, breach of implied covenant of good faith and fair dealing, and violation of G.L.c. 93A. PR now moves for a preliminary injunction, seeking to enjoin White City, its partners, employees or agents, from taking any action which would violate the exclusive use provision of its commercial lease with White City. Such actions include White City taking any action that would permit Chair 5 Restaurants, ("Chair 5"), the intervening party, from operating a Qdoba restaurant at the White City Shopping Center ("Shopping Center"). For the following reasons, the defendant's motion is DENIED.
BACKGROUND
Defendant, PR, is a Massachusetts limited liability company that operates 22 Panera Bread ("Panera") restaurants in the New England area. Panera [*2] is a cafe-style restaurant chain that sells sandwiches, coffee, and soup. Mitchell J. Roberts is the manager of PR. PR is a tenant under a commercial lease for approximately 4,469 square feet of retail space in the Shopping Center located on Route 9, in Shrewsbury. White City, a limited partnership, is the landlord of the Shopping Center. Chair 5, the intervening party, is a Delaware limited liability company and franchisee of Qdoba, a Mexican-style restaurant chain that sells burritos, quesadillas, and tacos. Both Panera and Qdoba compete in the same "fast-casual" restaurant market. n1
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n1 The fast-casual market offers high quality food within the convenience of a traditional fast food setting.
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On March 14, 2001, White City entered into a ten-year lease ("the Lease") with PR for retail space to operate a Panera restaurant in the Shopping Center. Lease negotiations lasted several months partly because of PR's request to include an exclusivity clause in the Lease. PR authored the clause which underwent three revisions [*3] prior to the Lease's execution. The exclusivity clause that both parties initially agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches. In its first iteration, Section 4.07 of the Lease states, in relevant part:
Landlord agrees not to enter into a lease, occupancy agreement or license affecting space in the Shopping Center or consent to an amendment to an existing lease permitting use . . . for a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales or primarily for the sale of high quality coffees or teas, such as, but not limited to, Starbucks, Tea-Luxe, Pete's Coffee and Tea, and Finagle a Bagle . . . The foregoing shall not apply to (i) the use of the existing, vacant free-standing building in the Shopping Center for a Dunkin Donuts-type business, or for a business serving near-Eastern food and related products, (ii) restaurants primarily for sit-down table service, (iii) a Jewish delicatessen or (iv) a KFC restaurant operating in a new building following the demolition of the existing, freestanding building. No new building shall [*4] violate the no-build provision of this Lease.
Lease § 4.07 (emphasis supplied).
The Lease contained no definition of "sandwiches" or "near-Eastern" food. n2 During lease negotiations, PR and White City did not discuss the definition of "sandwiches" or the type of food products they intended the term to cover. Furthermore, the parties never indicated, specified, or agreed that the term "sandwiches" included tacos, burritos, and quesadillas.
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n2 At oral argument, the parties compared near-Eastern food to Middle Eastern food, but did not provide any specific examples of either types of food.
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Following the Lease's execution in March, the parties amended the exclusivity clause to include additional restrictions. On December 30, 2005, Section 4.07 of the Lease was amended, as follows:
The foregoing restriction shall also apply (without limitation) to a Dunkin Donuts location and to a Jewish-style delicatessen within the Shopping Center, but shall not apply to (i) use of the existing, freestanding building [*5] in the Shopping Center partially occupied by Strawberries and recently expanded for a business serving near-eastern food and related products, (ii) restaurants for primarily for sit down table service or (iii) a Papa Gino's restaurant (provided the same continues to operate with substantially the same categories of menu items as now apply to its stores and franchisees generally).
Lease § 4.07.
Sometime after the amendment, PR learned that White City had entered into discussions with Chair 5 to lease commercial space. Chair 5 planned to develop and construct a Qdoba restaurant in the same Shopping Center as Panera. After learning of the parties' plans, PR had its attorney contact White City to express concern and seek an assurance that White City would not enter into a lease with Chair 5. PR believed that White City's leasing of space to Chair 5 violated Section 4.07 of the Lease. Specifically, PR believed, and later asserted that tacos, burritos, and quesadillas fell within meaning of "sandwiches" and therefore, White City was prohibited from leasing to Chair 5 under the Lease. White City refused to provide the requested assurance when PR's attorney contacted it about the [*6] pending Chair 5 lease. On or around August 22, 2006, White City executed a lease with Chair 5 for 2,100 square feet of retail space in the Shopping Center. On September 28, 2006, White City filed an action against PR, seeking a declaratory judgment that it did not breach its lease with PR.
Since the execution of the Chair 5 lease, Chair 5 has spent over $ 85,000 in planning costs, and it is further contractually obligated to spend over $ 300,000 for the construction of a Qdoba restaurant in the Shopping Center. According to Chair 5, it has yet to schedule an opening date for its restaurant.
DISCUSSION
Under the well-established test of Packaging Industries Group v. Cheney, 380 Mass. 609, 617, 405 N.E.2d 106 (1980), a preliminary injunction is warranted only when the moving party establishes both a likelihood of success on the merits of the claim, and a substantial risk of irreparable harm in the absence of an injunction. Once these factors are established, the Court must balance them against the harm that an injunction will inflict on the opposing party, and must also consider the impact on the public interest. See T&D Video, Inc. v. City of Revere, 423 Mass. 577, 580, 670 N.E.2d 162 (1996). [*7]
A. Likelihood of Success on the Merits
To demonstrate a likelihood of success on the merits, PR must establish as a reasonable interpretation that the Mexican-style food products which Qdoba sells fall within the Lease's restrictions. Absent an explicit and broad definition of "sandwiches" in the Lease itself, PR has not shown a likelihood of success to establish a right to injunctive relief under relevant contract principles.
The interpretation of a contract is question of law for the court. Sarvis v. Cooper, 40 Mass.App.Ct. 471, 475, 665 N.E.2d 119 (1996). A contract is construed to be given reasonable effect to each of its provisions. Id. "The object of the court is to construe the contract as a whole in a reasonable and practical way, consistent with its language, background and purpose." USM Corp. v. Arthur D. Little Systems, Inc., 28 Mass. App. Ct. 108, 116, 546 N.E.2d 888 (1989). The starting point must be the actual words chosen by the parties to express their agreement. Id. If the words of the contract are plain and free from ambiguity, they must be construed in accordance with their ordinary and usual sense. See Ober v. National Casualty Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945). [*8]
Given that the term "sandwiches" is not ambiguous and the Lease does not provide a definition of it, this court applies the ordinary meaning of the word. n3 New Webster Third International Dictionary describes a "sandwich" as "two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them." Merriam-Webster, 2002. Under this definition and as dictated by common sense, this court finds that the term "sandwich" is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring White City from leasing to Chair 5. n4 Further, PR has not proffered any evidence that the parties intended the term "sandwiches" to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of "sandwiches" in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. Another factor weighing against PR's favor is that it was aware that Mexican-style [*9] restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties' understanding of the term "sandwiches." Accordingly, based on the record before the court, PR has not shown a likelihood of success on the merits.
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n3 The parties have submitted numerous dictionary definitions for the term "sandwich," as well as expert affidavits.
n4 Further, PR's reliance on Sabritas is misplaced. PR argues that a flour tortilla qualifies as "bread" and a food product with bread and a filling is a sandwich. In Sabritas, the International Trade Court applied the commercial meaning, rather than the ordinary meaning of bread, to corn tacos shells for purposes of levying tariffs. 22 C.I.T. at 59 (Ct. Int'l Trade 1998). Here, the commercial meaning of "bread" is inapposite where it is the ordinary meaning that is relevant when interpreting an unambiguous contractual term such as "sandwiches." Ober, 318 Mass at 30.
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B. Irreparable Harm
Irreparable harm occurs when a loss of rights cannot be remedied even though the party seeking an injunction prevails after a full hearing on the merits. Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 710, 550 N.E.2d 1361 (1990). Economic loss alone, however, does not usually rise to the level of irreparable harm which a party must establish to obtain a preliminary injunction. See Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec., 399 Mass. 640, 643, 506 N.E.2d 140 (1987).
Here, PR has alleged irreparable harm on the basis that money damages will be difficult to quantify. However, this allegation is unsupported by any data showing that the profitability of Panera will disappear once Qdoba opens. Absent a showing by PR that Panera's survival is dependent upon enjoining the opening of Qdoba and where both parties sell distinct and different food products, preliminary injunctive relief is inappropriate.
C. Balance of the Harms
This court further finds that the potential harm to the plaintiffs is outweighed by the harm to the defendant where plaintiffs have expended considerable time and money to plan and develop a Qdoba [*11] restaurant at the Shopping Center, in light of the fact that this court finds that White City did not breach its lease with PR. Even though PR vigorously argues for a broad definition of "sandwiches" under Section 4.07 to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean "sandwiches." Because PR failed to use more specific language or definitions for "sandwiches" in the Lease, it is bound to the language and the common meaning attributable to "sandwiches" that the parties agreed upon when the Lease was drafted.
Having heard the parties and reviewing their filings, this court is not convinced that defendant, PR, has carried its burden in showing a likelihood of success on the merits; that it will suffer irreparable harm if the injunctive relief sought is not granted; or that its harm, without the injunction, outweighs any harm to plaintiffs from being enjoined in the operation of its restaurant.
ORDER
For the foregoing reasons stated, it is hereby ORDERED that the Defendant's motion for preliminary injunction be DENIED.
Jeffrey A. Locke - ZenMojo, on 10/12/2007, -0/+1Love that free market.
- dose, on 10/12/2007, -1/+2Blah Worcester can keep their Qdobas and their Paneras. Anna's Taqueria is better than them both.
- xtarburst, on 10/12/2007, -0/+1how stupid, a burrito is Mexican, DUH
- inactive, on 10/12/2007, -1/+2I love Mexican sandwiches. The meat from Mexicans is very lean and a great healthy alternative to beef. Even better if marinated in tequila.
- GabeUtsecks, on 10/12/2007, -0/+1(I had the 666th comment)
My ex-girlfriend had this really cute little cousin from Minnesota (with Canadian parents). And she was visiting California and was fed a burrito for the first time in her life. She took too bites, put it down and then said, in an adorable voice, "I don't like this sammich" - Jetfire, on 10/12/2007, -0/+1Mabhatter is correct. My mother used to own a store in a mall. This cuts both ways. Malls usually start breaking or changing this when they are doing poorly.
- IzeasGT, on 10/12/2007, -0/+1From this day forward, I hereby declare eggs not to be a fruit!
- mecole21, on 10/12/2007, -0/+1a sandwich is 2 pieces of bread with content (usually meat) in the middle... a boritto is a flower tortilla filled with beans...
panera would have a case if subway was moving in... not for a mexican restaurant... - jaredvolkl, on 10/12/2007, -1/+2This is in Celebrity why?
- sharkoman, on 10/12/2007, -1/+2The Mexican equivalent of a sandwich would actually be a "torta".
http://en.wikipedia.org/wiki/Torta - pintomp3, on 10/12/2007, -0/+1i wonder what the judge would rule on applebee's quesadilla burger
- Artifez, on 10/12/2007, -7/+8I was talking about a kebab in the European sense, like a Gyro or felafel in the states.
- And0, on 10/12/2007, -0/+1Interesting example of what judges and lawyers have to do, and how words in a contract are often subject to legitimate dispute when applied to facts that neither side particularly anticipated. The tenant would have been better off with a word other than "sandwich" to protect against this risk. This is often why contracts have multiple words that are very similar and to a lay person look like redundancy.
- daofma, on 10/12/2007, -1/+2"Because apparently in American malls we don't allow competition."
Malls are usually privately owned, so in this case that certain mall, as suggested above, probably forbids competition.
Not all malls are like that. The one in my hometown has tons of competition. There's four clothing stores, Brookstone and Sharper Image (which both sell very similar products). It's got its own food court but that didnt stop other renters from opening restaurants in lease locations. - longboarder543, on 10/12/2007, -0/+1I am so glad they finally got that settled.
- inactive, on 10/12/2007, -1/+2Panera makes some good *****. Not sure why they sould think a Mexican restaurant is other than normal dining competition. Panera serves nothing remotely related to Mexican cuisine.
Still, not Digg worthy. - KevinJ, on 10/12/2007, -3/+4Its a series of tubes
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