THE GREENE: former restaurant squandered chance to defend itself in its eviction lawsuit

Credit: DaytonDailyNews

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Choe??€™s Asian Gourmet loses lawsuit.

Credit: DaytonDailyNews

Attorney for retail center asks judge to uphold $384k default judgment against former Choe’s Asian Gourmet

*** UPDATE (Dec. 11, 2018*** 

An attorney for The Greene Town Center has asked a judge to dismiss a request by an attorney for evicted former restaurant tenant Choe's Asian Gourmet to reopen its civil lawsuit and reconsider the judge’s $384,000 default judgment against the former restaurant.

Susan Solle — an attorney in the Dayton office of Dinsmore & Shohl LLP, representing The Greene — pointed out earlier missed deadlines by the restaurant and said there is no legal reason to reopen the “forced entry” eviction lawsuit that the retail center filed late last year against Choe’s Asian Gourmet. Greene County Common Pleas Judge Michael A. Buckwalter ruled against the restaurant on Nov. 5, granting a default judgment that ordered the former restaurant’s owners to pay $384,000.

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Eugene Robinson, the Dayton attorney representing the corporate entity that owned Choe’s Asian Gourmet, has filed notice that he intends to appeal the judge’s decision to the Ohio 2nd District Court of Appeals, and also has filed the motion for reconsideration asking the trial court judge to set aside his previous ruling and reopen the case.

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Solle wrote that the former restaurant’s owner “has repeatedly ignored its duty to take legal steps to protect its interests and has not presented any basis to now be relieved of the default judgment entered as a result.”

*** PREVIOUS UPDATE*** (Dec. 6, 2018)

A restaurant that was evicted from The Greene Town Center late last year and slapped with a $384,000 default judgment a month ago wants to take its case to a higher court.

Eugene Robinson, attorney for the owners of the former Choe's Asian Gourmet restaurant at The Greene, filed a notice of appeal to the Ohio 2nd District Court of Appeals late Wednesday afternoon in Greene County Common Pleas Court. The notice indicates Robinson will challenge the Nov. 5 decision by Greene County Common Pleas Judge Michael A. Buckwalter that found in favor of The Greene in its lawsuit against the restaurant's owners.

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Robinson also had previously requested that Judge Buckwalter reconsider his decision. That motion for consideration, filed Nov. 19, is still pending.

Messages left this morning for Susan Solle, the Dayton attorney who has represented The Greene Town Center in the lawsuit, and for Steve Willshaw, general manager of the Greene, seeking comment on the notice of appeal, were not immediately returned.

***Original story*** (Nov. 27, 2018)

A restaurant that was evicted from The Greene Town Center nearly a year ago and slapped with a $384,000 default judgment just three weeks ago is not going down without a fight.

An attorney for the former Choe’s Asian Gourmet restaurant last week formally asked Greene County Common Pleas Judge Michael A. Buckwalter — who ruled against the restaurant and fully in favor of The Greene on Nov. 5 — to set aside that ruling and hold a hearing on the restaurant’s evidence.

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A portion of the judge’s final decision “is not consistent with the facts,” Dayton attorney Eugene Robinson wrote in his motion for reconsideration.

Robinson attached multiple exhibits to his motion, including two affidavits by Ann Hiddens, former manager of Choe’s Asian Gourmet, and a printout of an email exchange between Hiddens and The Greene’s general manager, Steve Willshaw, along with an email exchange between Robinson himself and the retail center’s attorney, Susan Solle of the Dinsmore & Shohl law firm in Dayton.

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“Under the circumstances, it would be an abuse of discretion to fail to permit a hearing” on his motion to reconsider,  Robinson wrote.

It’s not clear how persuasive this most recent attempt to change Judge Buckwalter’s mind on the facts of the case will be. The judge already has rebuffed an attempt by Robinson and the restaurant’s LLC to reduce or eliminate a judgment that it owes the retail center $384,000 in back rent, fees, and other obligations under the lease it signed prior to opening at 4394 Juniper Way on the eastern side of The Greene.

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Buckwalter ruled more than 11 months ago that the owners of Choe’s Asian Gourmet restaurant violated their lease agreement with The Greene and awarded the retail center full access to the property. The action was taken after the restaurant’s operators failed to respond in a timely manner to the lawsuit, according to court documents.

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But four months later, in March, Robinson filed a vigorous challenge to The Greene’s claim that it was owed that amount of money. Robinson claimed in court documents that The Greene was way off on its calculations, and had in fact changed the locks and refused entry to the restaurant’s owners.

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The restaurant’s former ownership team “had no opportunity to recover its property and equipment because it was locked out of the premises by (The Greene’s management) an hour after the decision of eviction was ordered by the court,” Robinson wrote In his most recent motion. The restaurant owners were “threatened by (The Greene’s management) with a criminal charge in the event of recovery and removal” of their own property, Robinson wrote.

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That action blocked the owners’ access to several thousand dollars of their personal property, including $2,000 in cash and thousands more in inventory and equipment, Robinson argued. The court filing claimed it was the restaurant that was owed money — perhaps reaching more than $50,000 in the value of personal property appropriated by The Greene.

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An attorney for The Greene scoffed at that notion in a subsequent legal response, saying The Greene had given plenty of warning to the owners of Choe’s and had “boxed up seven boxes of personal property” to return to the restaurant owners.

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The lawsuit had remained dormant since the spirited legal exchange in March. But earlier this month, more than seven months since the latest formal activity on the lawsuit’s docket, Judge Buckwalter filed a decision siding squarely with The Greene’s attorneys and granting the $384,000 judgment against the restaurant’s LLC corporate owners.

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The legal dispute started in November 2017 when attorneys for The Greene’s management filed a “forcible entry” lawsuit that led to the eviction of Choe’s Asian Gourmet. The original lawsuit claimed that the limited liability corporation that was operating Choe’s Asian Gourmet owed more than $49,000 in rent and utilities that had accumulated since July  of 2017.

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The final $383,973 tally that The Greene calculated that it was ultimately owed by the owners of Choe’s Asian Gourmet includes $68,600 in past-due rent and late fees, $56,500 to cover costs of preparing the property to re-lease, and $257,500 in “accelerated rent difference” — basically, the difference of the rent that had been due from the most recent owners through the lease term scheduled to end in September 2020 and the new tenant’s lease. Another $1,300 was tacked on for repairs and cleaning.

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Shortly after the lawsuit was filed, the most recent manager of Choe’s Asian Gourmet told this news outlet that the restaurant’s business had been slow in late 2017 in part because foot traffic was down in the restaurant’s eastern section of The Greene. She said she attempted to re-negotiate the terms of her lease but instead was ordered to vacate. She said some of the restaurant’s problems stemmed from a disgruntled former employee.

A new restaurant called Ace Asian Cafe, operating with new ownership and management, opened in the former Choe's space in April 2018.

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