Ohio Valley Mall not happy with court fight

ST. CLAIRSVILLE The Ohio Valley Mall Company is not happy with having to wage a fight in court over a leasing issue with the owners of Osaka Japanese Restaurant.

Company officials are even less happy with some of the public comments made by Christopher J. Gagin, the attorney representing Osaka owners Zhao Xu Wang and Juan Feng Lin.

Last week, Gagin filed a lawsuit against the Ohio Valley Mall Company, plus an associated request for preliminary injunction, in Belmont County Common Pleas Court.

This all stems from the impending opening of the Panda restaurant on Mall Ring Road near the Ohio Valley Mall.

Gagin’s initial contact with the Ohio Valley Mall Company stated that the owners of Osaka feel this restaurant violates a restrictive clause in their lease, disallowing the opening of any Chinese or Japanese style restaurants in the mall area.

According to the release from the Ohio Valley Mall Company, it disagrees.

“The lawsuit is baseless,” the release stated. “The lawsuit asks the court to ignore the lease and grant Osaka contractual rights which it does not have.”

The release also stated that “The lawsuit seeks the enforcement of a restrictive covenant which no longer is in effet and which never would have applied, even if the restrictive covenant were still in effect.”

In the release, Ohio Valley Mall Company attorney James M. Dobran suggests that Gagin reread closely Clause 55A of the lease, which deals with the restrictive covenant.

In part, it reads:

“This covenant and the duration of any remedy shall terminate automatically on Tenant’s default of this Lease, Tenant’s cessation of business in the Demised Premises, Tenant’s change in use from that set forth in Clause 6 of this Lease, Tenant’s assignment of this Lease, transfer of this Lease by operation of law, subletting of any portion of the Demise Premises, or any renewal or extension of this Lease.”

The original lease is dated Aug. 21, 2009. Dobran stated in his response that the tenant assigned its rights on March 17, 2010. He states no restrictive covenant has been in effect since that date.

Furthermore, even if that wasn’t the case, Dobran states that the assignment of the lease to Gagin’s clients on June 1, 2013 and Consent to Assignment dated July 18, 2013 would have resulted in the automatic termination of the restrictive covenant.

The restrictive covenant in question states that “cannot have any other Chinese or Japanese Restaurant developed in the Mall area.”

The original press release announcing the coming of the Panda restaurant stated that it would be “a fusion of Asian cuisine, including Chinese, Japanese and other Pacific rim cultures.”

Dobran’s response to Gagin came after the attorney issued a press release and statements after sending the initial letter of complaint to the Ohio Valley Mall Company.

Gagin had made the public comment that “This is part of the mismanagement of that mall and why it has been struggling. They have to take care of their own tennants before they can attract new companies.”

In Dobran’s response, he states that “both the press release and your personal comments are actionable as tortuous interference with a contractual relationship,” and that his personal comments may also be actionable as defamation.

Hughes may be reached at mhughes@timesleaderonline.com.