Tenant in Soup Shop eviction case scores court victory

by Chad Abraham, Aspen Daily News Staff Writer

A judge ruled Wednesday that a tenant who is being evicted by her landlord did not have to pay him rent for two months because they had agreed that she would not be operating her soup eatery during that period due to construction above her.
Dez Bartelt, the proprietor of the Little Soup Shop, said after the hearing that she was ecstatic about the ruling by Judge Gail Nichols of Pitkin County District Court.
Nichols agreed with Bartelt and her attorney, Matt Ferguson of Aspen, that there was an agreement between her and the landlord, Ken Sack’s 400 Hyman LLC, to close the shop in April and May while construction began for a second-story watch shop.
Nichols “acknowledged that I’m a credible person,” Bartelt said. “That’s all I wanted.
“I worked hard at this,” she said, growing emotional. “I put so much into it, and they took it away from me.”
Nichols told Sack that his testimony about the agreement he had with Bartelt was unconvincing, while the restaurateur’s was.
“I hate to say it, but you weren’t very credible,” the judge said, comparing Sack’s statements to an Aspen police officer she knew who “just said whatever was on his mind.”
Like that cop, “You were often wrong,” Nichols said, adding that there was “clearly a deal” between the two in which Bartelt would not have to pay rent for April and May during the upstairs construction.
“You would have squawked if there was a problem,” Nichols said.
Despite the ruling, Bartelt still faces eviction from the space at Mill Street and Hyman Avenue — if the landlord serves her company with another eviction notice by today or Friday.
Nichols ruled that there was not enough in writing to justify a bona fide long-term lease because the terms between Sack and Bartelt were spelled out via texts and emails.
She also ruled that Bartelt had not done enough to fulfill an agreement in which she would use a Rifle-based kitchen and products from a farm in that area to make and market soups for the Whole Foods grocery chain.
Nevertheless, Nichols said Bartelt could be entitled to damages given her investment in the business, including installing wallpaper, moving her eatery infrastructure in and out to accommodate the upstairs work, and painting.
And Ferguson said the win was crucial because his client is no longer on the hook for damages and attorney fees claimed by Sack.
Sack had claimed that her refusal to leave the premises was causing him to incur costs related to the renovation of a space above her.
The city’s environmental health department on June 12 shut down the soup shop because the construction activity upstairs posed a public health risk. Sack filed court papers to evict Bartelt in early July, claiming Bartelt had missed rental payments and delayed construction on the ground floor.
Bartelt has filed a counterclaim against Sack, seeking repayment for lost business from the construction.
According to Ferguson, Nichols’ ruling Wednesday said that “in order for them to get us out, they have to do it right.
“They told us to get out and sued us before we had to get out,” he said. “You can’t do that.”
Sack declined to comment after the hearing.
Aspen attorney Lucas Van Arsdale, who is representing Sack, said the court action resulted from misunderstandings made “in absolutely good faith and without any malice one way or the other.”
“This is the kind of confusion that inevitably happens when people don’t get contracts written down correctly in the first place,” Van Arsdale said. “You get excited for a business deal that sounds good for everyone, and everyone moves forward on that basis.”
He said there was not an agreement to the terms that everyone thought they were agreeing to.
“It falls apart, people’s emotions get high,” Van Arsdale said. “Attorneys get involved, and the next thing you know, it’s a fight that really should’ve been avoided months ago by just making sure everything was done correctly on paper.”
He said he and his client hope that the Soup Shop remains in business.
“It’s just a sad misunderstanding, and this is how it turned out,” Van Arsdale said.