ex cr - ashe county · 34. guion was thus satisfied that bridgetree was not going to purchase...

IN THE GENERAL COURT OF JUSTICESUPERIOR COURT DIVISION

FILE NO. i C l/S 32VSTATE OF NORTH CAROLINA

COUNTY OF ASHE

GUION & LYLE ENTERPRISES, LLCA North Carolina Limited LiabilityCompany,

i

:

CXI-< “rrm 11Plaintiff. excr>Oo -Ov. mXIo oBRIDGETREE INVESTMENTS, LLC, a

South Carolina Limited Liability Company,JO ANN WOODIE, BILLIE JO WOODIE,DEBORAH WOODIE ELLIS, DAVIDELLIS, SHARON WOODIE and WOODIEINVESTMENTS, INC., a North CarolinaCorporation,

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OJo o

Defendants.

COMPLAINT AND MOTION FOR INJUNCTIVE RELIEF

Plaintiff Guion & Lyle Enterprises, LLC, operating the Hotel Tavern Restaurant in West

Jefferson, North Carolina (“Plaintiff” or “Hotel Tavern”), sues Defendants Bridgetree Investments,

LLC (“Bridgetree”), and Jo Ann Woodie (“J. Woodie”), Billie Jo Woodie (“B. Woodie”), Deborah

Woodie Ellis (“D. W. Ellis”), David Ellis (“D. Ellis”), Sharon Woodie (“S. Woodie”), and Woodie

Investments, Inc. (Woodie Investments and the individual defendants, the “Woodie Defendants”),

and alleges as follows:

MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Rule 65 of the North Carolina Rules of Civil Procedure, Plaintiff moves this

Court for a Preliminary Injunction to preserve the status quo— i.e. , allow Plaintiff to continue to

operate the Hotel Tavern, a successful restaurant and bar, as it has done for the past seven years

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pursuant to a valid and enforceable lease agreement—by enjoining Defendant Bridgetree from

ejecting Plaintiff from the building where the Hotel Tavern has been operating.

The Hotel Tavern has been operating pursuant to a written lease with the Woodie Family for

seven years in a building located at 1 West Main Street, West Jefferson, North Carolina 28694 (the

“Property”). The lease was renewed for a period of 10 years on May 1, 2018, and contained a

preemptive right—a right to preserve Hotel Tavern’s leasehold interest in the Property against

purchasers—that provided that “Landlord reserves the right to list and/or sell the property at any

time during the lease, and the lease shall transfer with the sale of the property.”

On or around July 30, 2019, J. Woodie and her family sold the Property to Bridgetree. When

Bridgetree purchased the Property, it did so with full knowledge of the lease and even attempted

to negotiate a modification of the lease with Plaintiff before purchasing the Property. When those

efforts failed, Bridgetree proceeded to purchase the Property. Following the closing, Bridgetree

gave Hotel Tavern a deadline of August 31, 2019, to vacate or face eviction. Not only would such

actions put the Hotel Tavern, a reputable and thriving business in West Jefferson, out of business,

it would cause more than 40 employees to lose their jobs.

Pursuant to the lease and Plaintiff’s preemptive right contained therein, as well as applicable

law, the Property Bridgetree purchased is subject to Plaintiffs lease and Bridgetree’s attempt to

eject Plaintiff is wrongful and threatens to cause irreparable harm. Plaintiff satisfies the standards

for a preliminary injunction in that it can show it has probable success on the merits, it will be

irreparably harmed, there is no adequate remedy at law, and the equities balance in favor of

Plaintiff. As more fully set forth in the Complaint and attached exhibits below, Plaintiff has met

its burden pursuant to North Carolina General Statutes § 1-485, and preliminary injunction should

issue.

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PARTIES. JURISDICTION. AND VENUE

1. Plaintiff is a limited liability company organized under the laws of the State of North

Carolina. Plaintiff is doing business as the “Hotel Tavern”, a popular restaurant in downtown West

Jefferson, at its principal place of business located at 5 West Main Street (the “Premises”). At all

relevant times, Plaintiff has acted through its agents, Robert A. Guion (“Guion”) and Sherman

Lyle. !

2. Bridgetree is a limited liability company existing under the laws of the State of South

Carolina, and does not appear to be authorized to transact business in North Carolina. On or about

July 30, 2019, Bridgetree purchased the Property. Bridgetree, at all times relevant to this

Complaint, acted by and through its principal Mark Beck (“Beck”), a sophisticated real estate

investor and restauranteur from South Carolina.

3. J. Woodie is an individual residing in Ashe County, North Carolina, who is not a

member of the United States military on active duty and is otherwise sui juris. J. Woodie, together

with the heirs of William E. Woodie (i.e., Defendants B. Woodie, D. W. Ellis, D. Ellis, and S.

Woodie) (all told, the “Woodie Hens”), were the record owners of the Property until its sale on or

about July 30, 2019 and recorded on August 1, 2019. While J Woodie and Woodie Investments

are the named lessors of the Property, at all times relevant to this Complaint, J. Woodie acted as

an agent of the Woodie Family in respect of the Property.

4. B. Woodie is an individual residing in Ashe County, North Carolina, who is not a

member of the United States military on active duty and is otherwise sui juris. At all times relevant

to this Complaint, B. Woodie acted as an agent of the Woodie Family.

5. D. W. Ellis is an individual residing in Ashe County, North Carolina, who is not a

member of the United States military on active duty and is otherwise sui juris.

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6. D. Ellis is an individual residing in Ashe County, North Carolina, who is not a member

of the United States military on active duty and is otherwise sui juris.

S, Woodie is an individual residing in Ashe County, North Carolina, who is not a7.

member of the United States military on active duty and is otherwise sui juris.

8. Woodie Investments is a corporation organized and existing under the laws of the State

of North Carolina. Upon information and belief, Woodie Investments was not an owner of the

Property but was a co-landlord on the lease agreement with J. Woodie, in her capacity as both

individual and as agent for the Woodie Heirs.

9. Pursuant to N.C. Gen. Stat. § 1-76 et seq. venue is proper is Ashe County, North

Carolina because Woodie Investments and Plaintiff maintain their principal places of business in

Ashe County, J. Woodie resides in Ashe County, B. Woodie resides in Ashe County, the leasehold

is located in Ashe County, and the acts giving rise to this action all took place in Ashe County.10. Pursuant to N.C. Gen. Stat. § 1-75.3 et seq. this Court has jurisdiction over all of the

parties and the subject matter of the claims in this action.

11. The amount in controversy in this action exceeds $25,000.00 and is within the

jurisdiction of this Superior Court.

FACTUAL ALLEGATIONS

12. This action arises out of Defendants’ unlawful and collective efforts to undermine

Plaintiffs existing lease on the Premises through which it has operated the Hotel Tavern for the

past seven years.

13. The Property, soldin 2019, was previously owned by the Woodie Heirs, after patriarch

William Woodie purchased the property in 1989. Since 2013, the Hotel Tavern has been a go-torestaurant destination for locals and visitors alike. In fact, Defendant J. Woodie was not only a

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named lessor under the lease, but up until the time that the Woodie Heirs sold the Property, J.

Woodie was also a regular patron of the Hotel Tavern.

14. For decades prior to the Hotel Tavern, the Premises suffered from unstable tenants

with lackluster restaurants and poor reception by the town.

15. Currently, the Hotel Tavern employs over forty people in Ashe County and accounts

for roughly one-third of the dining seats available in the town. It has been voted Best Restaurant

in several categories several years in a row in the People’s Choices Awards, it was awarded the

Small Business of the Year in 2018 by the Ashe County Chamber of Commerce, and has garnered

many other accolades and awards over the course of its existence.

16. Plaintiff assumed possession of the Premises on May 1, 2013, pursuant to a five year

lease with the Woodie Defendants that terminated at midnight on April 30, 2018 (the “2013

Lease”). A copy of the 2013 Lease is attached hereto as Exhibit A.

17. The 2013 Lease contained an option to renew for an additional five-year term.

However, when the first term of the 2013 Lease came to a close, the Woodie Defendants and

Plaintiff acknowledged that the first five years had gone extremely well and they desired to

continue the relationship, so, in 2018, rather than renew the 2013 Lease, the parties renegotiated

the terms of, and entered into, a new lease (the “2018 Lease”).

18. The parties negotiated the 2018 Lease, in part, because Plaintiff had previously

extensively renovated the Premises, expending in excess of $200,000 to bring the building up to

code and install their restaurant, and in part, because the Woodie Heirs had expressed an interest

in selling the Property. See, Affidavit of Robert A. Guion, attached hereto as Exhibit B.

It was thus agreed by the parties that the 2018 Lease should have a longer term of19.

ten years with a renewal option for another ten years. It was further expressed that the longer term

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relationship was also directly beneficial to the Woodie Heirs because a guaranteed, long term

tenant may be attractive to buyers. See, Ex. B.

20. Therefore, in order to preserve its investment, Plaintiff agreed to pay increased rent

and committed to a ten-year term commencing on May 1, 2018, and terminating on April 30, 2028,

with an option to renew for another ten-year term. A copy of the 2018 Lease is attached hereto as

Exhibit C, the terms and provisions of which are incorporated herein by reference.

21. In addition to wanting a lease extension to protect its investment in the Premises,

because of the Woodie Defendants’ expressed interest in selling the Property, Plaintiff also wantedi

to protect its lease interest in the Property in the event of a sale. To this end, Plaintiff negotiated

for a preventative right to require the Woodie Defendants to transfer the 2018 Lease to any buyer

in the event of a sale. To this point, the 2018 Lease states as follows: “Landlord reserves the right

to list and/or sell the property at any time during this lease, and the lease shall transfer with the

sale of the propertySee, Ex.C (emphasis added).22. This provision created a preemptive right in favor of Plaintiff requiring the Woodie

Defendants, prior to any sale of the Property, to effectuate the transfer the 2018 Lease to any

purchaser of the Property.

23. The Woodie Defendants drafted the 2018 Lease and sent it to Plaintiff for signature.

On March 2, 2018, Plaintiff returned the signed 2018 Lease.

24. Later, on May 13, 2019, as part of a loan that Plaintiff was seeking to refinance the

Hotel Tavern, Life Store Bank requested that Plaintiff provide it with a signed copy of its current

lease. See, Affidavit of Robert Washburn attached hereto as Exhibit D.

25. Unable to locate a fully executed copy of the 2018 Lease in Plaintiffs files, on May

22, Plaintiff contacted B. Woodie and requested the Woodie Defendants send Plaintiff their signed

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copy of the 2018 Lease so that Plaintiff could present it to the Bank. Defendant B. Woodie

responded: “I will be happy to send you a copy. It will be tomorrow or Friday before I can get it

to you.” See, Exhibit E.26. Despite her promise, as well as her assertion that she had already brought a fully

executed copy of the 2018 Lease with her to an earlier meeting between the parties but did not turn

it over, B. Woodie never followed through with her promise to give Plaintiff the fully signed copy

of the 2018 Lease.

27. Even so, on July 22, 2019, at Plaintiffs request, J. Woodie signed Plaintiffs copy of

the 2018 Lease on behalf of the Woodie Defendants.

28. At the time J. Woodie signed Plaintiffs copy of the 2018 Lease, the Woodie

Defendants had been in negotiations to sell the Property to Bridgetree, and were fully aware of

their obligations to transfer the lease to Bridgetree and protect Plaintiffs leasehold interest.

29. As stated above, Beck is a sophisticated real estate investor and restauranteur from

South Carolina. Bridgetree is his solely owned South Carolina limited liability company.

30. Plaintiff first learned of the potential sale of the Property to Bridgetree on April 9,

2019.

31. Days later, Bridgetree’s Beck called Guion and informed him that Bridgetree intended

to purchase the Property. The purpose of Beck’s call was to determine whether Plaintiff would be

willing to suspend Plaintiffs lease and cease operation of Hotel Tavern for a period of two years,

if Bridgetree purchased the Property, to allow Bridgetree to renovate the building.

32. Guion explained to Beck the terms of Hotel Tavern’s 2018 Lease, including the option

to renew and the right to have the lease transferred to the purchaser, and refused Beck’s request to

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vacate. Guion stated that Hotel Tavern could not possibly close the restaurant for two years and

survive.

33. Based upon Guion’s refusal, Beck indicated that Bridgetree would not purchase the

Property.

34. Guion was thus satisfied that Bridgetree was not going to purchase the Property and

that all negotiations between the Woodie Defendants and Bridgetree had ceased.

35. When the listing agent for the Property, Regency Properties, approached Guion on

behalf of Bridgetree about renegotiating the 2018 Lease, Guion contacted Beck to confirm that

Bridgetree had not changed its position and had no intention of purchasing the Property. At that

time, Guion reiterated that Hotel Tavern would not vacate the Premises and that they had 9 years

left on their current lease with a ten-year option. Guion also reiterated its additional right to have

the lease transferred to any new owner of the Property. Once again, Beck stated that if Plaintiff

was unwilling to vacate the Premises, he had no interest in the Property.

36. Despite having told Guion twice that Bridgetree would not purchase the Property, in

June 2019, Beck came to the Hotel Tavern and openly spoke of removing the Hotel Tavern from

the Premises once he owned the Property. See, Exhibit F. Affidavit Jerry Oliver. That same

evening the Woodie Defendants complained to Guion that Plaintiffs refusal to leave was costing

them the sale of the Property.

37. Guion was dismayed. A premise of the 2018 Lease was to provide the Woodie

Defendants with a long term, stable tenant to enhance the ability to sell their Property and to

provide Hotel Tavern both with the security that its capital investment would be recouped and that

its leasehold interested protected in the event of a sale.

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38. Given the Defendants’ conflicting positions, upon receiving the signed 2018 Lease

from the Woodie Defendants on July 22, 2019, Guion immediately attempted to record it in the

office of the Register of Deeds for Ashe County.

39. The Register of Deeds refused to record the 2018 Lease because it was not notarized.

40. Shortly thereafter, J. Woodie attempted to disavow the 2018 Lease, falsely claiming

that Guion had misled her into signing it.

41. On May 24lh, 2019, B. Woodie padlocked certain areas of the Property that Hotel

Tavern had been occupying under the 2018 Lease.42. On July 30, 2019, the Woodie Heirs sold the Property to Bridgetree.43. Bridgetree purchased the Property with actual knowledge of the 2018 Lease and of

Plaintiffs possession of the Premises, as well as the fact that Hotel Tavern was operating under a

ten-year lease with an option to renew for an additional ten-year term, and that there was a separate

right to have the 2018 Lease transferred with any sale of the Property.

44. On August 15, 2019, Beck met with the principals of Hotel Tavern and presented them

with the ultimatum that they either agree to vacate their lease by the end of the year, or he would

have them evicted by August 31, 2019.45. At the meeting, Beck falsely claimed that Plaintiffs lease was unenforceable because

it was an “oral” lease and also threatened that if Hotel Tavern pursued a claim to remain that

Bridgetree would counter-sue for ‘back rent’ for utilizing the patio and alley way, areas that he

claimed were not part of the demised premises. He threatened that not only would Plaintiff spend

a million dollars pursuing their claim to the 2018 Lease, but that his countersuit would be huge.

46. The 2013 and 2018 Leases defined the premises as “Restaurant Space and Office space

# 6.” See, Exs. A & B.

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47. Hotel Tavern utilized the patio, as additional seating, and the alley way, to house their

dumpster and air conditioning equipment, as well as other equipment, since the inception of the

2013 Lease. When the porch was refurbished in 2015, it was made available to Hotel Tavern. Then,

in 2018, when the parlor rooms became available, the Woodie Defendants offered the use of these

spaces to the Hotel Tavern.

48. The Woodie Defendants were well aware that Hotel Tavern utilized the parlors, porch,

patio and alley way, in fact they offered the spaces for use, and at no time indicated that they were

not a part of the restaurant space.49. Clearly, it was the understanding of the Woodie Defendants and Hotel Tavern that the

term ‘Restaurant Space’ included the use of the porch, parlors, patio, and alley way which was

confirmed and ratified through subsequent course of dealings.

50. The leased premises include the porch, parlors, patio and alley way.

51. Plaintiff possessed a preemptive right, established in the 2018 Lease, that requires that

the 2018 Lease be transferred to Bridgetree as purchaser of the Property.

52. Bridgetree was not an innocent, good faith purchaser for value. Bridgetree purchased

the Property with actual knowledge of the preemptive right of Plaintiff and while Plaintiff was in

open and notorious possession of the Premises.

53. All conditions precedent to the bringing of this suit have been satisfied or waived.

COUNT I - DECLARATORY JUDGMENT(Against Bridgetree)

54. The allegations of paragraphs 1-53 are re-alleged and incorporated fully herein.

55, This is an action for declaratory judgment pursuant to Chapter 1, Article 26 of the

North Carolina General Statutes.

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56. Plaintiff seeks to have the Court declare the interest of Plaintiff and Bridgetree in the

Property.

57. In March 2018, Plaintiff and the Woodie Defendants entered into a valid commercial

lease whereby Plaintiff leased the Premises, for use as a restaurant.

58. The rental period of the 2018 Lease is from May 1, 2018 through April 30, 2028 with

an option to renew for 10 years. i

59. The 2018 Lease also contained a separate, preemptive right requiring that it would be

transferred with any sale of the Property, by specifically stating: “Lessor reserves the right to list

and/or sell the property at any time during this lease, and the lease shall transfer with the sale of

the property,”

60, On or about April 2019, the Woodie Defendants and Bridgetree began to negotiate the

purchase of the Property.

61. Bridgetree knew of the existing valid lease between the Woodie Defendants and

Plaintiff, including the separate, preemptive right to have the 2018 Lease transferred to any

purchaser of the Property, from the obvious fact that Plaintiff occupied the Premises and enjoyed

a thriving restaurant business at the Premises, from its discussions with the Woodie Defendants,

and from personally discussing the terms of the 2018 Lease with Guion.

62. Prior to the transfer of the Property to Defendant Bridgetree, Plaintiff attempted to

record the 2018 Lease in the Office of the Register of Deeds but was unable to do so because it

was not notarized.

63. At all times Plaintiff has performed under the 2018 Lease.

64. Despite the fact that Defendant Bridgetree knew of the existence of the 2018 Lease,

knew of the terms of the lease, including the preemptive right contained therein, and knew of


Plaintiffs attempt to record the lease, Defendant Bridgetree has asserted and continues to assert

that Plaintiff has no lease and is seeking to have Plaintiff ejected from the Property.

65. On or about July 30, 2019, Defendant Bridgetree purchased the Property.

66. Bridgetree cannot avoid the preemptive right established in the 2018 Lease as it was

not an innocent, good faith purchaser since Bridgetree was aware of the existence and terms of

Plaintiffs 2018 Lease and of the separate preemptive right and purchased the Property intending

to deny Plaintiff the benefit of its bargains and its legitimate interest in the Premises.

67. By actual service of a copy of this Complaint upon Defendant Bridgetree, Plaintiff

hereby gives notice to Bridgetree that it is electing to exercise its option to renew the 2018 Lease

for another ten-year term up to and until April 30, 2038.

68. Plaintiff is entitled to have this Court recognize their preemptive right to have their

lease transfer with the sale and to enforce its 2018 Lease, as well as the exercise of its option to

renew.

69. Plaintiff thus seeks a declaratory adjudication that Bridgetree purchased the Property

subject to the 2018 Lease and that the Court declare that Hotel Tavern has successfully exercised

its option to renew the 2018 Lease and shall remain in possession of the Premises up to and

including April 30, 2038.

COUNT II - BREACH OF CONTRACT(Anticipatory Breach by Bridgetree-Specific Performance)


71. The 2018 Lease is a valid and enforceable contract founded upon valuable

consideration.

72. The 2018 Lease creates for Plaintiff a preemptive right, which requires that Plaintiff s

lease be transferred with any sale of the Property.


73. The North Carolina Registration Statute does not protect all purchasers, but only

innocent purchasers for value.74. At the time of the purchase, Plaintiff was in open and notorious possession of the

property and Bridgetree, through discussions with Plaintiff, was aware of Plaintiff s right to have

the 2018 Lease transferred and, thus, purchased the Property subject to the 2018 Lease.75. Bridgetree has ordered Plaintiff to vacate the Premises both before the end of the year

and before the end of the month in breach of Plaintiffs lease and thus has indicated to Plaintiff

that it will not honor the terms of the lease.

76. Such acts by Bridgetree constitute an anticipatory breach of the 2018 Lease by

Bridgetree.

77. There is nothing hindering or preventing Bridgetree from performing under the 2018

Lease and there are no practical difficulties to enforcement of the 2018 Lease.

78. Plaintiff has performed and continues to perform all of its obligations under the 2018

Lease.

79. There is no adequate remedy at law as monetary damages will not suffice to make

Plaintiff whole. The Premises are unique in both configuration and as the original town railroad-

stop hotel, which was the original “community space” for West Jefferson, NC. These elements

work to create the ambiance and warmth for which Hotel Tavern is renowned. The 40+ dedicated

employees cannot be simply put on hold, for two years or two weeks, without income while the

Hotel Tavern seeks to relocate or acquiesces to Bridgetree’s demands. Closing, for any unplanned

and unusual period of time, will irreparably damage Plaintiffs.

80. Plaintiff hereby requests that the Court enforce the terms of the 2018 Lease against

Bridgetree, as lessor, as set forth therein.


COUNT III - BREACH OF CONTRACT(Against the Woodie Defendants)

81. The allegations of paragraphs 1-8 0 are re-alleged and incorporated hilly herein.

82. The 2018 Lease is a valid and enforceable contract.

83. Although Woodie Investments and J. Woodie are the only signatories to the 2018

Lease, J. Woodie signed in her capacity as both an individual and agent for the Woodie Heirs,

undisclosed principals to the 2018 Lease. As such, the Woodie Defendants are bound to the 2018

Lease.

84. The 2018 Lease contained, as a material, negotiated term, an obligation that the

Woodie Defendants lease the Premises to Plaintiff for ten years with an option to renew the lease

for an additional ten year.

85. Additionally, the 2018 Lease contained, as material, negotiated term, a preemptive

right in favor of Hotel Tavern, the requirement that Woodie Defendnats transfer Plaintiffs lease

to any purchaser of the Property.

86. At all relevant times, Plaintiff satisfied all of its obligations under the 2018 Lease.

87. The Woodie Defendants failed to have the Lease transferred to the purchaser of the

building, Bridgetree.88. Such acts constitute a breach of the 2018 Lease by the Woodie Defendants.

89. In addition, such acts described above and as will be further demonstrated through

discovery, constitute a breach of the implied covenant of good faith and fair dealing in the 2018

Lease.

90. Bridgetree has anticipatorily breached the contract by stating that it will not honor the

2018 Lease.


91. As a direct and proximate result the Woodie Defendants’ refusal to perform their

obligations under the 2018 Lease, Plaintiff has been forced to bring this action and, if the 2018

Lease and the Preemptive Right are not enforced, Plaintiff will have been damaged in an amount

exceeding $25,000.

COUNT IV -UNFAIR AND DECEPTIVE TRADE PRACTICE-Pursuant to N. C. Gen. Stat. §75—1, et sea.

(Against the Woodie Defendants)

92. The allegations of paragraphs 1-91 are re-alleged and incorporated herein by

reference.93. Acts of the Woodie Defendants were in or affecting commerce and constituted unfair

or deceptive trade practices in the following ways:

In 2018, knowing that the Woodie Heirs intended to sell the Property, thea.

Woodie Defendants negotiated the 2018 Lease with Hotel Tavern.

The Woodie Defendants negotiated with Hotel Tavern, in exchange forb.

increased rent and a long-term tenant relationship which would enhance their sale prospects and

in consideration of the significant monetary investment in the building by Hotel Tavern and their

separate obligation that they would transfer the 2018 Lease to any purchaser of the Property.

The Woodie Defendants accepted the increased rental payments andc.

benefited horn the renovations to the building by way of an increased value of the building.

In March of 2018, when Hotel Tavern signed the 2018 Lease and returnedd.

it back to the Woodie Defendants, it did so with the expectation and understanding that they had

signed the 2018 Lease.

The Woodie Defendants neglected to return a signed copy of the 2018 Leasee.to Plaintiff. When the time came for the Woodie Defendants to produce the lease, they did so, but


then falsely claimed that Plaintiff had induced J. Woodie to sign it—the very lease that the Woodie

Defendants had drafted and submitted to Plaintiff to sign a year earlier.

f. The Woodie Defendants not only intentionally failed and refused to have

the 2018 Lease transferred to the purchaser of the Property under Plaintiffs preemptive right as

they had promised to do, but sought to undermine such rights by falsely claiming that Plaintiff

tricked the Woodie Defendants into signing the 2018 Lease.

By disavowing the 2018 Lease, the Woodie Defendants attempted to causeg-Bridgetree to disavow the lease as well, though Bridgestone knew full well of its obligation under

the 2018 Lease.

94. The acts described above did not constitute a mere breach of contract, they are

evidence of a calculated attempt to benefit from increased rent and a guaranteed tenant for the

period that the Woodie Heirs owned the Property, and then refusing to provide a signed copy of

the 2018 Lease in order to disavow it should the purchaser not want to purchase subject to the 2018

Lease.

95. By the actions described above, the Woodie Defendants conduct has proximately

caused Plaintiff to have to bring this action to enforce its rights and will result in damages to Hotel

Tavern if the lease and preemptive right are not enforced, in an amount in excess of $25,000.00.

COUNT V-PRELIMINARY INJUNCTION


97. Plaintiff is likely to succeed on the merits of this case for the following reasons:

a. The 2018 Lease is a valid and enforceable contract. The terms and

conditions of the 2018 Lease are set forth in the incorporated Ex. C;


b. The preemptive right of Plaintiff to have its leasehold transferred to any

purchaser of the Property was set forth in the 2018 Lease;

c. Bridgetree was not a good faith purchaser of the Property, and knew of the

preemptive right of Plaintiff whether through conversations with Plaintiff or the 2018 Lease itself;

and

d. Defendant Bridgetree purchased the premises intending to deny Plaintiff of

its valid rights, acts for which it has no justification.

98. Defendant’s eviction or constructive eviction of Plaintiff will cause immediate and

irreparable harm to Plaintiff. The moment that Plaintiff is no longer able to operate its restaurant

to serve its patrons, it will suffer irreparable harm-the death of its business - harm that cannot be

undone and for which there is no redress at law.

99. The hardship tips in Plaintiffs favor, in that there is no adequate remedy at law if the

Court does not grant this injunction, and Beck will suffer, at most, monetary damages, if any.

100. The issuance of a preliminary injunction is required to protect the status quo and to

prevent irreparable harm during the pendency of the lawsuit, ultimately to preserve the court’s

ability to render a meaningful judgment on the merits.

101. Accordingly, pursuant to N.C.G.S. §1-485 and Rule 65 of the North Carolina Rules of

Civil Procedure, to preserve the statutes quo until a trial may be had on the merits, Plaintiff is

entitled to a preliminary injunction against Defendants as follows:

Preventing Defendants from excluding Plaintiff from the porch, parlors,a.

patio, and alley way;

Preventing Defendants from evicting Plaintiff from the Premises;b.


Abating any summary ejection proceeding initiated by Bridgetree pendingc.

the conclusion of these proceedings

Interfering with Plaintiffs lawful business in any way.d.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that the Court: Ii

Enter the preliminary injunction prayed for herein;1.

Order Bridgetree to specifically perform the contract and honor the 2018 Lease and2.

Plaintiffs exercise of its option for an additional ten year term up to and including April 30, 2038;

In the event that the Court does not order specific performance of the 2018 Lease,3.order compensatory damages to be paid by Bridgetree in an amount exceeding $25,000.00, for

breach of contract;

In the event that the Court does not order specific performance or compensatory4.

damages against Bridgetree, order compensatory damages to be paid by the Woodie Investments

in an amount exceeding $25,000.00 for breach of contract;

Order the damages against the Woodie Defendants, to be trebled, for unfair and5.

deceptive trade practices under the Unfair and Deceptive Trade Practices Act;

Order attorneys’ fees to be awarded against all Defendants as provided by law; and6 .

For any other and farther relief the court considers proper.7. !

[Signatures on Next Page]


This the 29th day of August, 2019.

f aul A. Capua / N.C. State Bar No. 40239Genevieve A. Mente / N.C. State Bar No. 41887Joshua Teague/ N.C. State Bar No. 37090Attorneys for PlaintiffCAPUA LAW FIRM, PA164 South Depot StreetBoone, NC 28607Telephone: (828) 264-0260Fax: (828) 378-0236E-mail: paul@,capualaw.comE-mail: [email protected]: [email protected]


Exhibit A

Lease Agreement

This lease agreement, including any and alladdenda attached hereto{‘"Lease"),

is by and between

Woodieinvestments. Inc. JoAnn Woodfe, landlord, PO Box 85, West Jefferson,

NC 28694

And

GuTort & Lvle Enterprise, liC. 5 West Main Street, West Jefferson, NC 28694,

Tenant.

The Addressof the premises is;

&West:Main Street, West Jefferson, NC 28694

RestaurantSpaceand Office space #6

Permitted Uses: Restaurant/Qffice

All facilities furnished at the property and designated for thegeneral use,

including but not limited to parking areas, streets, driveways,sidewalks,

canopies,signs,and other facilities (common areas)- Landlord's reasonable

discretion may be necessary regardingthecommon areas.' ' *’ *

Term;

The term of this leaseshall commence on May l41,2013,and shall end at

midnight on April 30, 2018, unless sooner terminated. Tenantshall have the

option of renewing this lease, upon written notice given tn landlord at least 60

days prior to the end of the then expiring term of this lease,for 5 additional’ * *

•

years.RENTAL

Beginningon May t,2003,rentcommencement date,tenant agrees to payLandlord,without notice,demand,deduction,or set off,and annual rent of $33,600,payable inmonthly installments of $2,800.00, in advance on the first day ofeachmonth duringthe term. Deposit will be required io the amount of

$2650.00. Tenant shall pay all rentalstoLandlord at following address:

Woodie investments, lnc„POBox 85, West Jefferson,NC 28694.

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Late Charges

If landlord fails to receive full rental payment wfthrh 30 days after itbecomesdue,tenant shall pay landlord,as additional rental,a latecharge equal fb$265.00,plus any actual bank fees incurred fordishonoredpayments.Utility BBls/ServiceContracts

Tenant Responsibilities:

ElectricWater GasSewer

Telephonefees) ianitor/Oeaning Trash/Dumpster

Landscaping/Maintenance Pest Control (specified area)

Security System{installation,maintenance,monthly contract

LandlordResponsibilities:

Maintenance/Repairs of HVAC units Structural Maintenance

Repair$/Mainfenance of Plumbing and/eiectricai.Payment of Property taxes and Commercial General Liability Insurance

Roof,foundation,structural supports,exterior walls (exclusiveof all glassand exterior doors)

Landlord shall not be responsible for injury to Tenant's business or Joss of

income OF fordamage that may be sustained by the person^ merchandise or

personal property of Tenant,itsemployees/ agents, invitees, or Contractors*

Landlord reserves the right to inspection the property With proper notice of at

least 48 hours.Landlord! shall have the right to approve the contractor as to any repairs in

excessof $500*00.INSURANCE

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During the term of the lease,Tenant shall maintain commercial general liability

insurance coverage with limits no less than $1,500,000. This is also to includeliquor liability insurance.

ALTERATIONS

Tenant shall not make anyalterations,additions or improvements to thepremises without Landlord's prior consent, which consent shall not beunreasonably withheld, conditioned, or delayed.

Assignment and Subletting

Tenant shall not assign this lease or any interest or sublet the premises Or anypart thereof, or permit the use of the premises by any partyother than thetenant, without Landlord's consent.- : ;_l

Default

Any of thefoliowirig shall constitute a breach of this lease on the part of the' - ‘v . f’

tenant

1. Failure to paywhen due2. Tenant abandonsor vacates the property3. Tenant isadjudicated bankrupt

Remedies upon Default

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1* Landlord mayterminate dlls tease and shall be entitled to recover fromtenant damages, mduding but not limited to loss in rental payments.

Termination of Lease

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if tenant does not wish to renew this lease they must provide In writing a noticeto terminate'tothe landlord 60 days prior to termination date. Landlord shallhave the right to advertisethe property for rent duringthis period..

if landlord does not wish to renew this tease 60 day written notice shell beprovided to-ihe tenant

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LANDLORD

individual Business Entity

PW:-eh?

JoAnn Woodle Woodie Investments., Inc.

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Date: May!, 2013

TENANT

oM.

Sherman Lyle Guion St Lyle Enterprise, LLC.

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GAndy Guion

Date: May1, 2013

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Exhibit B

AFFIDAVIT OF ROBERT A. GUIONi

On this day, Robert A. Guion, a member of Guion & Lyle Enterprises, LLC, who is a

resident of Ashe County, State of North Carolina, personally came and appeared before me, the

undersigned Notary before whomthis affidavit is sworn, and makes this his statement and Affidavit

upon oath and affirmation of belief and personal knowledge that the following matters, facts, and

statements set forth are true and correct to the best of his knowledge.

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I, Robert A. Guion, am a resident of Ashe County, over the age of eighteen (18), and

competent to testify:

In February of 2013, together with my wife Pam Guion and Sherman and Beth Lyle, wecontacted the Woodie family with regard to leasing the restaurant space in their building at 5 West

Main Street, West Jefferson, NC.:

The space was quite desirable because of the indoor/outdoor aspect of the dining areas,

which was unique in West Jefferson, and the space available in an alley adjacent to the building

where we could establish our mechanical equipment, dumpster, etc., without having to take up

valuable indoor space.;!

At the time the Woodie family was in negotiations with another party which, ultimately,

did not come to fruition.In March of 2013, we restarted our negotiations the Woodie family and came to an

agreement for a five-year lease of the restaurant space.

1formed Guion & Lyle Enterprises, LLC on March 14, 2103 with my friend Sherman Lylein order to open The Hotel Tavern restaurant, as a result of our successful negations.

Billie Jo Woodie then prepared a lease in accordance with those negotiated terms anddelivered it to us for signature.

:The Hotel was built in 1916 and there had been other restaurant tenants including

Brickstone Pizza, which had been our immediate predecessor, which had occupied the same

restaurant space that we leased, including the interior rooms and the exterior patio and alley way.

Because we were aware that the restaurant space was in bad repair and not up to Code in

many ways, we required, as part of our lease negotiations, a five-year renewal term in order for us

to have time to realize the benefit of our financial investment in the renovations, which were also

a financial benefit to Jo Ann Woodie.i

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So, with the permission of and in consultation with Jo Ann Woodie, extensive renovations

were made to the property between the signing of the lease and our opening day of July 2, 2013.The renovations exceeded $216,000 and Jo Ann Woodie paid for an agreed portion of that sum of

approximately $5,300.00. The renovations included, among other things, installing a new steel

floor in the kitchen, a steel beam to support a load bearing wall in the main Dining Room, building

two ADA compliant bathrooms, installing hardwood floors in the main Dining Room, the Bar and

the Sun room, installing a new tile floor in the main lobby, completely rewiring the entire restaurant

space, bringing the plumbing up to code and completely renovating the outdoor patio area.

Our operation of the restaurant, throughout the first term of the lease, was very successful

and in complete harmony with Jo Ann Woodie and her family as referenced by an email from Jo

Ann and her daughters Billie Jo Woodie and Debbie Ellis on September 12, 2013 which stated, in

part .. we are all extremely excited about having you all as a tenant and think what has been done

to the space is exceptional. We are all very proud of it and look forward to what the future has to

offer each of us.” i

In fact, the restaurant has won numerous awards during that time including Ashe County

Chamber of Commerce Business of the Year in 2018.

Toward the end of the first five-year term of the lease, in or around early October of 2017,

the Woodies made us aware that they intended to list the Hotel for sale with Regency Properties.

On October 31, 2017, we received an email from Billie Jo Woodie requesting a meeting

to discuss the renewal of the lease, which needed to be done by May 1, 2018. Presumably, they

wanted to lock us in as a tenant, which would make the building more saleable for them, and the

restaurant was so successful that we, too, wanted a longer term commitment to the property from

them.In fact, as we negotiated the renewal, during the month of December 2017, we proposed

to renew for 10 years, instead of the original option term of 5 year, with an additional 10 year

option after that and in order to protect our investment we included a separate obligation on the

lessor to have our leasetransferred with any sale of building, thus insuring our rights going forward.

On JanuarylO, 2018 we received an email from Billie Jo Woodie with acceptable lease

terms, including the obligation by Jo Ann to preserve our lease with any future purchaser and on

January 11, 2018,1emailed her to “write it up”.

Thereafter, they delivered the lease to us, and we accepted it on March 2, 2018, by me

signing it, along with Sherman Lyle and we returned it to the Woodies.

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The restaurant has continued to thrive, grow and win awards and praise from thesurrounding community, to this day, and, in fact, employs over 50 people and accounts for roughlyone-third of the dining seats in West Jefferson.

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:With that as a background, on April 9, 2019,1received a phone call from Billie Jo Woodieat 7:35 pm, during which she mentioned a potential sale of the building to a Mark Beck whom shedescribed as a real estate investor and restaurant owner and she asked if Iwould speak with him.

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I told her that she was free to give him my number. ;

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A couple days later, on or about April 11, 2019,1 received a cordial, professional phonecall from Mr. Beck who informed me that he was considering buying the hotel building and told

me that, if he did so, we would be required to vacate the restaurant premises while he renovated

the building.I inquired as to bow long that would be and he replied two years.

:When he said that, I told him that we could not possibly do that because it would, in effect,

be like starting a new restaurant and that we were too old and did not want to do that.::?:

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Mr. Beck then stated that without us leaving, he couldn’t/wouldn’t buy the building to

which I replied that we hated to be in the way of him buying the building, but I reiterated that wewouldn’t leave for 2 years and that we had 9 years remaining on our lease with a 10 year optionafter that.

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Mr. Beck asked if there were any other options and I told him that he could buy therestaurant and he declined saying he already owns a restaurant in his Charleston building.

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Mr. Beck told me that he understood our position, completely.

On the morning of May 6, 2019, Andrea Witherspoon of Regency Properties, the listing

agent for the hotel, came by to see if we would be willing to renegotiate the lease, and although

she did not say why, we declined to do so because we were very comfortable with the lease thatwe had. i

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Even so, since Mr. Beck had told me he was not going to buy the building and he was the

only prospect that they had, as far as we knew, I was surprised by Ms. Witherspoon’s inquiry.

Andrea Witherspoon continued to ask to have meetings, so, on May 18, 2019, out of

curiosity, I called Mr. Beck and told him that and I asked him if his position had changed with i:

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regard to buying the building and he replied that it had not and I informed him that our positionhad not changed either, so I took him at his word that he was no longer interested.

In the first week of June 2019, Ms. Witherspoon came by to talk to us, again, this timeabout the Woodies buying out our lease, but we did not come to any kind of an agreement.

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Not long after that,on June 12, Mr. Beck showed up at the restaurant with Jo Ann Woodieand Andrea Witherspoon, and Mr. Beck’s architect. They sat at table 62 and were taken care ofby Jerry Oliver, our General Manager.

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During their meal, Jerry was surprised to hear them talking openly about removing therestaurant from the premises

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That same evening, the Woodies asked us to meet with them, at which time theycomplained that we were “costing them their sale” and I told her that we did not want to do that,but we had a lease and we expected that lease to be protected, as it provided.

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During that meeting, Billie Jo Woodie made the statement that “I guess I wrote a leasethat neither one of us can break” and stated that they had made up their mind that they were goingto tell Mi*. Beck either take it or leave it. They stated that if he said no, they would take it off themarket.

In order to begin the business, I had made the initial financial investment in the business,personally, and now that it could stand on its own, Sherman Lyle and I decided to re-finance thebusiness with LifeStore Bank, in order to return my investment to me.

We went through the standard loan application process and in an email on May 13, 2019,Bob Washburn, the President and CEO of LifeStore Financial Group, who was facilitating our loan,outlined what we would need to move this from a term sheet to an actual loan commitment by thebank.

That included personal financial statements from myself and Mr. Lyle, as well as, our taxreturns for the past two years, and a copy of the business’ lease agreement for the premises in whichwe operated The Hotel Tavern, !

In putting that package together, we could not find a signed copy of our lease in our files,so, on May 22,2019 Beth Lyle emailed Billie Jo Woodie and asked for a copy of the current lease.

Billie Jo replied within minutes “I will be happy to send you a copy, It will be tomorrowor Friday before I can get it to you”,

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That never happened, so out of frustration to get the loan approval going and now someconcern about what was going on with Mr. Beck, I thought the easiest thing to do would be to haveJoAnn sign our copy of the lease.

On July 22, 2019,1 asked Joann Woodie to sign our copy of the lease agreement as Ineeded it for the bank loan application.

I took the lease to her that same day and she signed,on her signature line,just above whereSherman Lyle and I had signed it

In an abundance of caution based upon Mr. Beck’s involvement, I went over to theCourthouse and attempted to record the lease, but the Clerk of Court refused due to it not beingnotarized.

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!On July 31,2019,1received a letter from Joann Woodie alleging that I had misled her into

signing the lease on July 24, 2019.As stated above, just for accuracy, the meeting actually, took place on July 22, 2019, as I

was in Ohio on July 24, 2019.

Upon information and belief, the sale from the Woodies to Mr, Beck took place on July30lh and the documents were recorded on August 1, 2019.

On August 15, 2019, Mr. Beck met with myself and Sherman Lyle to inform us that hewanted us out of the building because he was “the owner and the landlord5’ and we only had anoral lease.

We told him that was not true and the meeting ended.

This theMfo day of August, 2019.

FURTHER AFFIANT SAYETH NAUGHT

RobertA. Guion

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(SEAL)

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STATE OF NORTH CAROLINACOUNTY OF ASHE

!I, a Notary Public of the county and state aforesaid, do certify that Robert A. Guion personallyappeared before me this day and acknowledged the due execution of this affidavit for the purposes

stated herein.:

my hand and notarial seal or stamp.This the llfo _day of August,2019Witness

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Exhibit C

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lease Agreement•j

this -lease agreement*iMbding arty and aft addendaattached kmoftea^,

is by and between

Wocdle Sfivestroerets, Inc. ioArsn Wo&idie, landlord. PQ so*SS/WestKC 286SC

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Stiioa.&-.tyfe;Entegoris&.lit,-5 iflfer Rifatn Street.WestJefferson, NC 28694,

Tenant,

fheAddress of the. premises;.&

1West West Jefferson

’Kestaarant Space and Office scdce #S

Permitted Ossa: . ftestaurnani/Office

AH facilities furnished at the property and designated forthegeaerat tj$e,including fetre not limited to.pgddrtg.areas,streets,driveways, sidewalks,canopies, dgns,.and other faciUties.Icctrnfnan areas}. I ncHordsreasonable

discretion may -benecessary regarding the common areas.

Term:

The term of this lease shall commence on Mavl> 2615.Mantishalt end at• .jiii— i . v* *• . • ,

midnight on Ao-ril 31, 202& ufiiesssopher termlssted. Tenant shall havethecetjon of renewlpg thistease, upon written'notice given to landlord at least 60days priortath& end of the then expiring term of this tease.

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- SC 2SS8ivn* O'‘*

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ffeyrjtento!.Property "taxes .aod £emmofssai General liability InsutanceRoof,foundation, Structural supports,exterior salts'{exclusive of all glassand exterior

doors)

Landlordshall not bejespohsible for injury toTenants business,or loss of :

inecmo.a?for tiama£e that may be.ssrstained by the person, tnerchandiseorpersonal property of Tenant.Its employees* agents,invitees,or contractors.

Landlord reserves tkerigftt to Inspection the property with proper noticeesf atfeast 4ShourS-

LariciQindshaa have the right to approve the contractor ss toany repairs in

excessof$500*00.IMSW&i&iCE

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shallinsurance coverage with Omitsno less than $1,500,00Q. This isalsoto indudehonor liability insurance.

ALTERATIONS

Tenaat shallnot maks.any alterations,additions or improvements to thepremises without Landlord^ prior consent,wfelckconsentshall not be

unreasonably wfthfssid,conditioned,or delayed.Assignment -and Subletting

Tenant shallpat assign th&Jease or any mWsst orsublet the prenjlses or anypart thereof, or permit the use of the premises fey any party other than thetenant,without Laudor^s consent*

Note: Tenant shall reserve: the right tosell/transfer^e lease -wife, landlordconsent orsfy.

0©T«tuft.

Any of the fqJioafsng shall constitutea breads of this lease onthe part of the

tSftaoi;

1:- Failure to pay wheo doe7 , T&timt abandonsor vacates^le propefty2. Tenant Is adjudicated bankrupt

Remedies upon Default

L LaneToni terminate this lease and shall be entitled to recover fromtenant damages,, induding but not limited to loss in rents! payments.

Terminatson of Lease

If tenant does notwfedifo renewethis lease they thus* provide in writings notice

tn tenminate to. the landlord 60 days prior ©s' terrarnatjon date,. landlord shall

have the right to advardse the property for rent during this period-

if landlord does not swish to renew this lease SQ day written notice shall be

pFdfviQjed'to the tenant.

; landlord reserves tM right to list and/or sell the property at anytime

this tease* and the lease shall transfer With thesale of the propertyNote;during

LANDLORD

Business Entity• •V

S'

2? ' We'odse WwestftifititS'i line.JuAnrt Woodie

Oats-.. :

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TENANT

Business Entity

.GtsiatvS;Lyle&stafpnss,UC.Sherman Lyle

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'x. ~ & »’ —•

JK-:Andy GiiteST

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Exhibit D

AFFDAVIT OF ROBERT WASBURN

On this day, Robert Washburn, President and CEO of LifeStore Financial Group, who is aresident of Watauga County, State of North Carolina, personally came and appeared before me,the undersigned Notary before whom this affidavit is sworn, and makes this his statement andAffidavit upon oath and affirmation of belief and personal knowledge that the following matters,facts, and statements set forth are true and correct to the best of his knowledge.

!:I, Robert Washburn, am a resident of Watauga County, over the age of eighteen (18), and

competent to testify::

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1 am President and CEO of LifeStore Financial Group, a financial institution with officesthroughout Northwestern North Carolina.

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ii!iiIn or around May of 2019, Andy Guion and Sherman Lyle, though their company, Guion

& Lyle Enterprise, LLC approached me for a loan to refinance their business and to payoff Mr. Guion’s initial investment in the business, now that their business, The HotelTavern, a popular restaurant in West Jefferson, was able to stand on its own.

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We went through the standard loan application process and in an email on May 13, 2019,I outlined what we would need to move this from a term sheet to an actual loancommitment by the bank.

This included personal financial statement from Mr.Guion and Mr. Lyle and tax. returnsfpr the past two years, as well as a copy of the business’ lease agreement for the premisesin which they operate The Hotel Tavern.

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Since there was no Deed of Trust to be recorded and we had already reviewed the companyinformation and found it to be more than adequate,we expected that it would not take longto close, once those documents were in hand.


This the 2£„_day of August, 2019,

ROBERT WASHBURN

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(SEAL) ;:

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I, a Notary Public of the county and state aforesaid, do certify that Robert Washburn personallyappeared before me this day and acknowledged the due execution of this affidavit for the purposesstated herein.

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fitness my hand and notarial seal or stamp. This day of August, 2019,

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Exhibit E

JM Gmal . » \J

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Jtefe&it faVoiiT flra$»*<ige-

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If- nestf WSTl«lp'.^HctjftfSUrSnfc®cafip?fly -fli$t*8ruSte${Wcooramfefdal-UablliUrpcJItif14 tbrtdUcSM«A p d r t- d:t i i a y:J h a«f e’ t-c a i j t f m d'n i^'p a j^.i H j^:$ig£'s&l&)M. *N#»*M$aWSW f#fife& ,««t$rti»<n; m^.rfeis a^f^ it'j-arri yjit;îiittilffiî^-c|^:trf!lf^;Er^.pe^l:5g^,-fe^-J\ Mlia!^l!lV'^pr8iiiê:.!t ' " * *"

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Exhibit F

AFFDAV1T OF JERRY OLIVERi

On this day, Jerry Oliver, who is a resident of Ashe County, State of North Carolina, personally

came and appeared before me, the undersigned Notary before whom this affidavit is sworn, and makes

this his statement and Affidavit upon oath and affirmation of belief and personal knowledge that thefollowing matters, facts, and statements set forth are true and correct to the best of his knowledge.

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I, Jerry Oliver, am a resident of Ashe County, over the age of eighteen (18), and competent to i

testify: :

1 have been employed by The Hotel Tavern since 2017 and as the General Manager sinceJanuary1, 2018.

iOn or about June 12, 2019,1was working in themain dining room of The Hotel Tavern. .

There was one party of three people at table 62, whom I recognized as Mark Beck, Joann Woodieand Andrea Witherspoon,

During my service of the table, I heard Mark Beck speaking openly about getting the restaurantout of the building.

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This the^ k^day of August, 2019.

JERRY OLIVER

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(SEAL)


I, a Notary Public of the county and state aforesaid, do certify that Jerry Oliver personally appeared beforeme this day and acknowledged the due execution of this affidavit for the purposes stated herein. i

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iy hand and notarial seal or stamp. This the Xlt day of August, 2019. f A 9\;

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ex cr - ashe county · 34. guion was thus satisfied that bridgetree was not going to purchase...

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