Judge Gail Nichols rejects Little Soup Shop’s eviction
The Aspen Times
Dez Bartelt and her Little Soup Shop prevailed in Pitkin County District Court on Wednesday in a battle with landlord Kenneth Sack over his attempt to evict the fledgling business and to seek two months of unpaid rent.
Judge Gail Nichols, following testimony on Monday and Wednesday, said she believed there was some sort of understanding in place between Bartelt and Sack for Bartelt to lease space on the ground floor of his Tom Thumb Building, at 400 E. Hyman Ave., for at least a year and to engage in other commercial business with Sack, even though their agreements were not formal, lacked clarity and were initiated and confirmed via emails and text messages.
Sack and his attorney, Lucas Van Arsdale, argued that there was no lease for the soup shop, short-term or otherwise — they said it was a “pop-up business” housed in his building on a month-to-month basis. They said there also was no formal agreement requiring Sack to assist Bartelt’s proposition of going into business with her as a soup wholesaler, a project that never got off the ground as Bartelt struggled to remain in the retail business in downtown Aspen amid building construction, closures and finally, legal action initiated by Sack.
Van Arsdale also argued that the eviction was justified because Bartelt and the soup shop failed to pay rent in April and May, but Bartelt countered that she was forced to close the business for two months because of demolition and construction on the top floor of the building.
Nichols, in issuing her ruling just before 5 p.m., acknowledged that the case was full of peculiarities, and reiterated several times that miscommunication between the two sides and the legal proceedings might have been avoided through a comprehensive lease and business agreement. Instead, Sack and Bartelt conducted their affairs through a confusing series of emails and text messages from November through June that left each other’s intentions full of ambiguities.
In the end, Nichols said the Little Soup Shop had the right to remain in the location for another month because the pattern of lease payments showed that Bartelt had been paying the rent on a monthly basis, although there was debate between the two sides as to when those payments were due and when the monthly periods started and ended. She also said that Sack’s testimony appeared to lack credibility.
She noted that the testimony by Sack and his witnesses made no mention of the arrangement being “temporary” until early January, lending credence to Bartelt’s contention that their deal was supposed to last one year, with a one-year renewal option. The soup shop opened in December, but Bartelt was readying the space and the business back in November, Nichols pointed out.
“You are not very credible,” Nichols told Sack. “You are often wrong.”
The business plans to move equipment and other items out of the Hyman Avenue building within days and has no desire to remain in the spot another month by paying the $3,000 rent the two parties agreed to last year, according to Bartelt’s attorney Matthew C. Ferguson.
In closing arguments, Ferguson asked Nichols to rule that the Little Soup Shop has proper possession of the property and that the eviction notice was filed improperly, failing to give the Little Soup Shop enough time as required by law to vacate the premises.
“It’s a classic case where a guy agrees to something for two years, but then he backs out, but he says it was month-to-month,” Ferguson said after the ruling, just outside of the Pitkin County Courthouse. “And he’s going to have to eat those words because with a month-to-month tenancy, you have to file technicalities. You need to say, ‘Your lease is coming due at the end of this month, and you have to be out.’
“You have to do that seven days before the end of the month, and (Sack) didn’t do that. In the end, this case is about possession. He did not get possession because he didn’t follow the (state) statute. … Based on this, we will win attorney’s fees and costs, which is critical. Otherwise, it would have been a travesty of justice.”
He added that he will seek another trial this fall in which he will ask for damages.
Van Arsdale said the outcome of the case shows that people doing business together should agree to terms, on paper, on the front end.
“Down the road, there are misunderstandings, in good faith and without any malice one way or the other, once it turns out there is not an agreement to terms everyone thought they were agreeing to,” he said. “It falls apart, people’s emotions run high, disputes get escalated by things like locking the doors, then attorneys get involved, and the next thing you know it’s a fight that really should have been avoided months ago by just making sure that everything was done on paper correctly.”
Bartelt was emotional after the ruling. During testimony earlier in the afternoon, her husband, Garrett, said that the situation had taken an emotional and physical toll on her.
“We have possession and he’s not credible,” Bartelt told reporters. “That’s all I wanted to hear today.”
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