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
21-P-1029
DHIRU PATEL1 & another2
vs.
LICENSE COMMISSION OF CAMBRIDGE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Dhiru Patel, doing business as Vijeta Corporation (Dhiru),
and his brother Bipin Patel (Bipin) appeal from a Superior Court
judgment dismissing their breach of contract claims against the
license commission of Cambridge (commission) pursuant to Mass.
R. Civ. P. 12 (b), 365 Mass. 754 (1974). We affirm.
Background.3 On January 10, 2012, a commission disciplinary
hearing resulted in a twenty-day suspension of Dhiru's liquor
license for his business, Prospect Liquors. Dhiru was also
ordered "to keep all nips out of sight, and set your opening
hour no earlier than 11:00 A.M." Dhiru appealed the suspension
1 Doing business as Vijeta Corporation.
2 Bipin Patel.
3 We draw the facts from the complaint and documents attached to
the motion to dismiss, which were relied on by the parties and
the judge. See Lanier v. President & Fellows of Harvard
College, 490 Mass. 37, 43-44 (2022).
to the Alcoholic Beverages Control Commission (ABCC) (first ABCC
appeal) but withdrew the first ABCC appeal on September 18,
2012, after the commission agreed to reduce the suspension to
fourteen days.
On October 9, 2012, the commission held another
disciplinary hearing because there was evidence that Dhiru had
opened Prospect Liquors during the suspension, including before
11 A.M., and allowed alcohol to be consumed on the premises. At
the end of the hearing, the commission voted to revoke Dhiru's
liquor license three months hence, on January 15, 2013. In a
written decision, the commission explained that "[t]his delayed
revocation is to give [Dhiru] time to seek a suitable buyer for"
Prospect Liquors to whom Dhiru could transfer his license,
avoiding revocation (October 9 decision). The commission
allowed Prospect Liquors to continue operating under the
conditions ordered in January of 2012 -- in particular, that the
business open no earlier than 11 A.M., and keep nips out of
sight.
There were two separate license transfer applications
submitted between October 9, 2012, and January 15, 2013. In
November 2012, Bipin offered to purchase Prospect Liquors and
filed a license transfer application; however, he withdrew that
application prior to the date it was scheduled for a hearing
before the commission. On January 15, 2013, the date the
2
commission's revocation was to become operative, one of Dhiru’s
former employees and his wife, who had signed a purchase and
sale agreement for Prospect Liquors, submitted a separate
license transfer application; thereafter they twice asked the
commission to delay considering the application while they tried
to secure funding. A hearing on the couples’ application
finally took place on March 19, 2013, and at that hearing,
evidence was presented that Dhiru had continued to open Prospect
Liquors before 11 A.M., including as recently as February 27 and
March 6, 2013. In a written decision, the commission voted to
revoke Dhiru's liquor license for his repeated violations of its
prior orders, and his inability to abide by the requirements of
G. L. c. 138 (March 19 decision). Dhiru asked for
reconsideration, which the commission denied. Dhiru appealed
the October 9 and March 19 decisions to the ABCC (second ABCC
appeal).
At an ABCC evidentiary hearing in October of 2013, Dhiru
withdrew his challenge to the March 19 decision and admitted he
did not adhere to the conditions in the October 9 decision.
When the ABCC affirmed the revocation of Dhiru's license, Dhiru
filed an action in Superior Court, seeking review under G. L.
c. 30A. The action was dismissed on December 3, 2014, after the
ABCC's motion to dismiss was allowed. Dhiru did not appeal the
dismissal of his G. L. c. 30A appeal.
3
Four years later, the plaintiffs filed the instant
complaint, alleging that the October 9 decision "constitute[d] a
valid and enforceable contractual agreement" that the commission
breached by revoking Dhiru's license on March 19, 2013. The
commission filed a motion to dismiss, citing the absence of a
contract, Bipin's failure to exhaust administrative remedies,
and res judicata. A judge of the Superior Court initially
denied the motion, but thereafter allowed the commission's
request for reconsideration. The judge reasoned that dismissal
was appropriate because (1) the October 9 decision, issued by
the commission pursuant to its statutory authority, "did not
create any contractual rights" the plaintiffs could enforce, and
(2) the plaintiffs' claims were barred by res judicata.
Discussion. As we are reviewing the allowance of a motion
to dismiss, our review is de novo. Bassichis v. Flores, 490
Mass. 143, 148 (2022). Here the plaintiffs' breach of contract
claim fails for a number of reasons, first and foremost because
the plaintiffs have not identified an enforceable contract with
the defendant commission. The plaintiffs point to the
commission's decision of October 9, 2012, but that decision is
not a contract. Manifestly, it is exactly what it purports to
be -- a written decision of a licensing body, after a
"disciplinary hearing." The decision revokes the license of
Dhiru and Prospect Liquors, effective January 15, 2013. It sets
4
conditions for the continued operation of the business during
the period between October 9, 2012, and January 15, 2013. It
expressly provides that the plaintiffs have a right to appeal
the decision to the ABCC, which the defendants in fact did.
A contract is a bargained-for agreement between the
parties, supported by valid consideration. See 477 Harrison
Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 523 (2019);
Stewart Title Guar. Co. v. Kelly, 97 Mass. App. Ct. 325, 332
(2020), and cases cited. The plaintiffs now assert that the
decision was a "settlement agreement," but the decision exhibits
absolutely no indication of same. There is no provision
indicating the plaintiffs assented to the agreement -- indeed,
they did not assent, they appealed. There is nothing describing
any consideration flowing from the plaintiffs.4 It was, rather,
a decision of a government body acting pursuant to statutory
authority, and the plaintiffs' recourse was to appeal under
G. L. c. 138, § 67, and G. L. c. 30A.
4 We note, in any event, that even now the plaintiffs have not
identified any actions of theirs which could constitute valid
consideration. The complaint identifies Dhiru's withdrawal of
the first ABCC appeal as consideration for the October 9
decision, but it was not. Dhiru withdrew the appeal in
September 2012, in exchange for a shortening of his license
suspension -- before the events giving rise to the October 9
decision even took place. "It is settled that past
consideration will not support a contract." Stroscio v. Jacobs,
2 Mass. App. Ct. 827, 828 (1974). See Greater Boston Cable
Corp. v. White Mountain Cable Constr. Corp., 414 Mass. 76, 80
(1992).
5
In light of our conclusion, we need not address the
plaintiffs' contentions regarding District Convenience, Inc. v.
Selectmen of Dedham, 88 Mass. App. Ct. 1102 (2015), nor need we
address the parties' remaining contentions. See Cruickshank v.
MAPFRE U.S.A., 94 Mass. App. Ct. 662, 664 n.5 (2019); Stroscio
v. Jacobs, 2 Mass. App. Ct. 827, 828 (1974).
Judgment affirmed.
By the Court (Wolohojian,
Englander & D'Angelo, JJ.5),
Clerk
Entered: February 24, 2023.
5 The panelists are listed in order of seniority.
6
DHIRU PATEL & Another v. LICENSE COMMISSION OF CAMBRIDGE.
Combined Opinion