An Aspen business owner faces eviction because her landlord claims she’s competing with a neighboring tenant who sells fur and is thereby violating the terms of her lease.
But Joy West, owner of Joy Jewelry, argues that her faux fur and leather offerings are completely different than what Aspen Fur & Shearling Co. sells a few doors down in the North of Nell building.
Tom Daly, the landlord for both businesses, served a notice on West March 1, demanding that she remove all faux fur and leather products from her store within three days, which she did not do. Daly then filed a lawsuit in Pitkin County District Court on March 16 seeking eviction.
In response, through her Aspen attorney Alan Feldman, West filed a counterclaim against Daly, Aspen Fur & Shearling, and its owner, Mickey Alper, alleging abuse of process, fraud and civil conspiracy, among other claims.
Daly claims that West is violating her lease, which has a clause prohibiting the sale of fur and leather clothing so as not to conflict with other existing businesses in the building.
But faux fur is different than the real deal, and attracts different types of clientele, West argues.
“Alper’s products are significantly more expensive than anything [West] sells,” according to Feldman’s counterclaim. “[West’s] products do not compete with Alper’s products. A customer who desires to purchase a $10,000 mink coat is not likely to opt for a $300 acrylic faux fur coat instead and implying otherwise has no basis in reality.”
The lease does not make the distinction between faux and real fur, although Daly’s attorney, Greg Gordon of the Garfield and Hecht law firm, cites the definition of fur in Random House Webster’s and Oxford online dictionaries: “Fur includes not only actual animal skins, but also fabric or coating that resembles fur,” according to the complaint filed in district court.
West said her clothing line is specifically made with anti-animal products.
“I’m proud to offer Aspen a faux fur alternative,” said West, a supporter of animal rights. “I don’t feel I am competing at all. ... There is plenty of room for both of us.”
In his lawsuit, Daly argues that he would not have entered into a lease with a tenant whose intended business conflicted with other tenants without their consent. He also argues that West initially focused the retail operation on the sale of jewelry and then progressed into selling faux fur and leather.
That’s not true, Feldman argues, contending that Daly has been aware of Joy Jewelry’s selling of faux fur and leather since she opened the store. Daly even signed a second lease with Joy in February 2011 with that knowledge, Feldman said.
“Literally upon opening of the store in December 2010 [West] has carried a variety of faux fur and faux leather items,” the counterclaim reads. “Not only did Daly not claim a default in the lease at that time or anytime until Feb. 3, 2012, he entered the second lease on Feb. 24, 2011 waiving any claimed breach based on faux clothing sales.”
In October, West exercised the option to extend the lease for two years, which Daly accepted.
“Daly has known about these products for more than a year and the specific subject was discussed in detail between [West] and Daly prior to Daly accepting [West’s] option to extend the lease.”
Gordon declined comment and Daly didn’t return a phone seeking comment.
Feldman notes in his counterclaim that the second lease contained the identical use of premises language and word-for-word prohibition against the sale of “fur and leather clothing.”
Daly’s Feb. 3, 2012 letter was the first notice of any lease violation ever provided to West, according to the counterclaim.
West and Feldman also argue that there are multiple retail establishments in the North of Nell building owned and leased by Daly that sell leather clothing.
Daly is seeking possession of the premises and the rent that would be owed through the term of the lease, which ends April 30, 2014.