Thursday, July 18, 2024

The site of the former Atomic Bean Cafe is closed Wednesday, as it has been for more than 2.2 years. (Photo: Marc Levy)

A dispute sparked by a noncompete agreement among landlords of businesses along a popular block of Massachusetts Avenue, including the Plough & Stars bar and restaurant and the Mass Ave Diner, has ended up in court. One owner sued others, accusing them of preventing him from selling his empty space to two separate potential buyers who planned to open restaurants on the site.

A Suffolk County Superior Court judge threw out the suit, but the Appeals Court has resurrected most of it, ruling on Thursday that the lower court decided wrongly that the suit could be dismissed on legal grounds, before any trial. The Appeals Court ruling doesn’t decide the merits of the accusations.

Mark W. Williamson, owner of a commercial condominium at 904 Massachusetts Ave., filed the suit on Nov. 5, 2021. Williamson’s condo, Unit 902-904, is one of five commercial condominiums included in the 902-912 Massachusetts Ave. Condominium Trust. The others are the Mass Ave Diner, Unit 906; the barbershop and lounge Temple of Groom, Unit 908; the Dana Hill Liquor Mart, Unit 910; and the Plough & Stars, Unit 912.

Williamson had rented the space to the Atomic Bean Cafe from 2008 to 2020, when the coffeehouse closed, apparently because of the Covid pandemic.

The condominium trust rules specified that no business operating in any unit could “substantially compete” with a business in any other unit unless four of the five condominium association trustees agreed to it. Noncompete clauses are not unusual, but in this case, the condo documents did not define “substantially compete,” the Appeals Court said. And although the papers said both the Mass Ave Diner and the Plough & Stars were permitted to occupy their units – they were there before the condo organization was founded in 2007 – it wasn’t clear whether that was because they weren’t considered competitors or whether four of the five trustees had approved it, the decision said.

Williamson found a prospective buyer for his unit in March 2021: Christopher Willis, who intended to operate an “upscale” Italian restaurant. But “tensions” between Williamson and the owners of the Mass Ave Diner and the Plough & Stars had increased and worsening “personal animosity” led to the defendants in the suit “deliberately interfering with [Williamson’s] ability to divest” his unit, his lawsuit said.

“Civil conspiracy” charged

Willis’ agreement with Williamson let Willis withdraw from the deal if he couldn’t get approval from four trustees, the lawsuit said.

The suit named as defendants David Barlam, the owner of the diner; Gabriel O’Malley, owner of the bar; as well as four other unit owners and trustees associated with the two businesses. It accused them of “tortious interference with a contract, civil conspiracy” and violation of the state consumer protection law. Williamson also wanted the court to declare that the noncompete clause was unenforceable.

Williamson said in the lawsuit that Barlam told the prospective buyer, Willis, that Willis would have to pay him for each seat in his Italian restaurant and also threatened that he would never approve a restaurant in the space.

Offer rejected

Willis’ wife, Pam, wrote a letter to trustees saying the couple had operated nearby Pammy’s Restaurant since 2017 and lived in the neighborhood with their two children. Pammy’s is an upscale Italian restaurant at 928 Massachusetts Ave., less than a block from Plough & Stars.

The letter recounted their history in the food business, noting awards that Pammy’s had won. “We are not interested in stealing business from the Plough or the Mass Ave Diner, in fact, quite the opposite,” the letter said. “We know our love for what we do will bring a vibrancy to the block – something we could all benefit from right now.”

The couple offered to pay all the other unit owners’ condo expenses and other fees for four years. Still, Willis didn’t win approval and canceled his offer. A second prospective buyer, who planned a Japanese/Asian restaurant, encountered similar opposition and withdrew, the suit said.

Empty spaces

This is reminiscent of a case that happened just a block away in 2014, when Stephen Kapsalis, owner of the 991 Massachusetts Ave., Mid-Cambridge, Garden at the Cellar bar and restaurant and Cellar Wine & Spirits store, asked the License Commission to reject a proposed wine bar because it would be “directly hurting me.” Commissioners agreed, though empty storefronts are called a scourge by residents, business associations and municipal economic development officials.

Williamson’s commercial condo is still unoccupied after some 2.2 years since the cafe closed, with graffiti on the window along with a sign offering it for rent. The Appeals Court decision allows him to continue his lawsuit. In a bow to the past, one of the Atomic Bean’s loyal customers posted a video on the business’ Facebook page in 2022, two years after it closed, showing a handmade gift card from the cafe. “Found this gem in my basement!” the post said.

The Facebook page is still up. It features the letter from the owners in November 2020 announcing that they will not reopen. It also inexplicably says the coffeehouse is open, listing its hours.