BULKY
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`DOCUMENT
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`(FILED ON PAPER — ENTIRE DOCUMENT EXCEEDS 100 PAGES)
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`Pr0ceeding_N0.
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`92059671
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`LFi1ingDate
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`I06/04/2015
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`J
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`FPart\10f\1 ‘
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`92059671
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`

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`TTAB
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`LAWSON AND SILEK, P.L.C.
`
`120 EXETER DRIVE, SUITE 200
`POST OFFICE Box 2740
`WINCHESTER, VA 22604
`TELEPHONE: (540)665-0050
`FACSIMILE: (540)722-4051
`
`THOMAS MOORE LAWSON 0 TLAWSON@LSPLC.COM
`
`June 3, 2015
`
`M. Catherine Faint, Esquire
`Interlocutory Attorney
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P. O. Box 1 45 1
`
`Alexandria, VA 22313
`
`Dear Ms. Faint:
`
`Re:
`
`Rich Bluff LLC v. Diane Ashby
`Cancellation No. 92059671
`
`Our File No. 1302.001
`
`llllllllllllllllllllll||||l||||||||||llllllllglllllllllll
`I
`Us pamm armor;/TM Mall Rcpt Dr M1
`
`Please be advised that I have been retained as counsel by Rich Bluff LLC (“Petitioner”)
`to represent it in the above-referenced matter against Diane Ashby (“Ashby”). Pursuant to the
`Trademark Trial and Appeal Board Manual of Procedure § 114.03, please accept this letter as
`our notice of appearance on behalf of Rich Bluff LLC for any further proceedings in the above-
`mentioned Petition for Cancellation.
`
`I am in receipt of the Order from the Trademark Trial and Appeal Board (the “Board”)
`dated May 4, 2015 which requested a copy of the pleadings from the civil action. Pursuant to
`Trademark Rule § 2.117(a), enclosed please find copies of those pleadings from the civil suits
`(Case No. CL14—268 and Case No. CL14-384) and a pending criminal suit against Ashby’s
`husband, Michael Ashby (Case No. 14CR-1291) in the Circuit Court of the City of Winchester,
`Virginia. Additionally, please note that the pleadings provided to the Board by Ashby on May
`22, 2015 are not complete, and only contain a small portion of the pleadings in the above
`matters.
`
`I attach for your reference, a copy of the written lease (“Lease”)
`Most importantly,
`between Bessie M. Glover Trust and Diane’s Diner, L.L.C. along with the amendment to the
`same which provides that the name “Amherst Diner” was owned by the Petitioner and leased to
`Ashby. The Lease was terminated effective June 30, 2014.
`
`The Lease is very important because it governs the relationship between the parties in
`these Cancellation proceedings and we believe speaks directly to the issue that is before the
`Board. Said Lease provides that the name “Amherst Diner” was and is owned by the Petitioner
`and during the term of the Lease was leased to Ashby. As a matter of law, at the termination of
`
`FRONT ROYAL ADDRESS: POST OFFICE BOX 602, FRONT ROYAL, VIRGINIA 21630 ' TELEPHONE: (540) 635-9415 ° FACSIMILE: (540) 635-9421 ° E-MAIL: JSl.LEK@LAWSONANDSlLEK.COM
`
`

`
`M. Catherine Faint, Esquire
`June 3, 2015
`
`Page 2
`
`the Lease, Ashby lost all rights to use, not only the premises and restaurant, but also the name
`“Amherst Diner.”
`
`For background purposes, the Amherst Diner was both built and given its name in 1958
`by Robert Glover. Mr. Glover was the owner of the Amherst Diner until it was conveyed to the
`Bessie M. Glover Trust, of which both Robert and Bessie Glover are trustees, on July 8, 2003.
`Robert and Bessie Glover are husband and wife.
`In April 2007, Robert and Bessie Glover
`created Rich Bluff LLC. Shortly thereafter, on July 31, 2007, the Lease was assigned by the
`Bessie M. Glover Trust to Rich Bluff LLC. This historical chain of title is important to note
`because it proves that the Glovers have exercised ownership and control over the premises and
`name of the Amherst Diner since its inception to the present for 57+ years.
`
`The Lease clearly provides that the name “Amherst Diner” was owned by the Petitioner
`and leased to Ashby. Among other things, the “Name and Address of the Premises” to be leased
`in the Lease begins with “Amherst Diner...” Lease 1] 1(a). The “Premises” in the Lease are later
`described as “Amherst Diner, consisting of a brick diner building...” Lease, 1] l(f). The Lease
`subsequently states that “Tenant shall not change the name of the diner and restaurant without
`the prior written approval of the Landlord.” Lease 1] 14. Paragraph 29 of the Lease states that:
`
`Upon expiration or sooner termination of the Lease Term, Tenant
`agrees...to quit and surrender the Premises, broom-clean, in good
`condition
`and
`repair...together with
`all...improvements,
`alterations, additions, fixtures and equipment at any time made or
`installed in, upon or to the interior or exterior of the Premises, all
`of which shall thereupon become the property of Landlord without
`any claim by Tenant therefor...
`
`As discussed in greater detail in the attached pleadings, Ashby has conceded that she
`breached the Lease in various ways. As stated above, the Lease clearly provides that the name
`“Amherst Diner” was owned by the Bessie M. Glover Trust and leased to Ashby. Ashby has
`admitted that she filed a trademark application and obtained a trademark protecting the name
`“Amherst Diner.” See Plea in Bar, Case No. CL14-384, 1} 9. Such a filing is a breach of the
`terms of the Lease which only leased (not sold) to Ashby the right to use the name “Amherst
`Diner.”
`
`Ashby also admits breaching the Lease by continuing her use of the term “Amherst
`Diner” after the term of the Lease had ended. See generally Complaint and Motion for Summary
`Judgment, Case No. CLl4-268, which define “Amherst Diner” as “Diane’s Diner, LLC t/a
`Amherst Diner.” As discussed above, Ashby was required under the Lease to surrender all the
`property upon the termination of the Lease and her continued use of the term “Amherst Diner” is
`in violation of that.
`
`We have attached the criminal proceedings wherein the Defendant Michael Ashby did
`enter into a plea and agree to stipulate that the evidence is sufficient for findings of guilt to
`felony destruction of property. The Plea Agreement for Specific Sentence required restitution to
`the owner of the sign. The restitution was payable to the owner, Rich Bluff LLC and its
`insurance company, Erie,
`in the amount of $2,769.04 which is to cover the damage to the
`
`

`
`M. Catherine Faint, Esquire
`June 3, 2015
`
`Page 3
`
`Amherst Diner sign. This is further evidence that Robert and Bessie Glover and their entity,
`Rich Bluff LLC, own and control not only the premises, but also the name “Amherst Diner.”
`
`Based on these and other admitted breaches, Petitioner is suing for damages and
`injunctive relief as set forth in the attached pleadings. Ashby’s defenses (that the Court should
`read “commercially reasonable” terms into the Lease and the Lease was orally modified) have no
`basis under Virginia law, but more importantly give no support to any claim of ownership of the
`name “Amherst Diner.”
`
`In this matter, Petitioner is entitled to cancellation of the trademark “Amherst Diner”
`based on the admissions discussed above and specifically,
`the undisputed and admitted
`knowledge by Ashby that she was not the owner of the term “Amherst Diner” when she applied
`for the “Amherst Diner” trademark.
`
`Thank you for your assistance and cooperation.
`have any questions, please do not hesitate to contact me.
`
`If, after you review the pleadings, you
`
`
`
`TML:atd
`
`Enclosures
`
`cc:
`
`Rich Bluff LLC (w/out enclosures)
`Diane Ashby (w/enclosures)
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFCE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`RICH BLUFF LLC,
`
`Petitioner,
`
`V.
`
`DIANE ASHBY
`
`Respondent.
`
`Cancellation No. 92059671
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that a true and complete copy of the foregoing submission of
`
`pleadings from Case Nos. CL14-268, CL14-384 and 14CR-1291 has been served on Diane
`
`Ashby by mailing said copy on the 3"! day of June, 2015, via Certified First Class Mail, postage
`
`prepaid to:
`
`Diane Ashby
`109 Inca Trail
`
`inchester, VA 22602
`
` Virginia
`
`.
`Joshua E. Hummer, Esquire
`Virginia Bar No. 71094
`LAWSON AND SILEK, P.L.C.
`P.O. Box 2740
`
`Winchester, VA 22604
`Telephone: (540) 665-0050
`Facsimile: (540) 722-4051
`
`Counselfor Rich BluflLLC
`
`

`
`VIRGINIA:
`
`IN THE CIRCUIT COURT OF THE CITY OF WINCHESTER
`
`DIANE’S DINER, LLC,
`
`v.
`
`Plaintiff,
`
`Case No.
`
`BESSIE M. GLOVER,
`
`IU RY TRIAL DEMANDED
`
`SERVE:
`
`Bessie M. Glover
`
`316 Ridge Avenue
`Winchester, VA 22601
`
`and
`
`ROBERT GLOVER,
`
`SERVE:
`
`Robert Glover
`316 Ridge Avenue
`Winchester, VA 22601
`
`and
`
`RICH BLUFF, LLC,
`
`SERVE:
`
`R/A Bessie M. Glover,
`Registered Agent
`316 Ridge Avenue
`Winchester, VA 22601
`
`and
`
`BESSIE M. GLOVER TRUST,
`
`SERVE:
`
`Bessie M. Glover
`
`316 Ridge Avenue
`Winchester, VA 22601
`
`Defendants.
`
`I VALIDATE SAGE PAPER
`RCPT 2
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`DATE 2
`fi5§21!§4 TIME: 23:31
`CASE : 84UCLiéUUfi268-GE
`QCQT : D1ANE’S DINER LLC
`AHI.
`1
`$96.09
`
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`
`COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
`
`COMES NOW, Plaintiff Diane’s Diner, LLC, t/a Amherst Diner (“Amherst Diner”), by
`
`counsel, and for its Complaint avers as follows:
`
`1.
`
`Amherst Diner is a Virginia limited liability company with its principal office in
`
`The City of Winchester, Virginia.
`
`2.
`
`3.
`
`Diane Ashby (“Ashby”) is the sole member of the Amherst Diner.
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`Amherst Diner owns and operates a restaurant located at 334 Amherst Street in
`
`the City of Winchester.
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`4.
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`Upon information and belief, Bessie M. Glover (“Glover”) is a Virginia
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`resident, currently residing in the City of Winchester, Virginia.
`
`5.
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`Upon information and belief, Robert Glover (“Robert Glover”) is a Virginia
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`resident, currently residing in the City of Winchester, Virginia.
`
`6.
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`Upon information and belief, the Defendant Rich Bluff, LLC (“Rich Bluff’) is
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`a Virginia limited liability company with its principal office in the City of Winchester,
`
`Virginia.
`
`Bluff.
`
`7.
`
`8.
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`Upon information and belief, the Glovers are the members/managers of Rich
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`Upon information and belief Rich Bluff is the record owner of title of the
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`property known as 334-338 Amherst Street, Tax Map Id No.
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`172-01-l4 in the City of
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`Winchester, Virginia (“Property”), where the Amherst Diner operates.
`
`9.
`
`Upon information and belief, the Bessie M. Glover Trust (“Glover Trust”) is the
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`previous record owner of title of the Property.
`
`10.
`
`Upon information and belief, the Glovers serve as Trustee(s) of the Glover
`2
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`

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`Trust.
`
`11.
`
`In November 2006, the Amherst Diner began operating its restaurant at the
`
`Property.
`
`12.
`
`Over the years, the Amherst Diner has grown as a popular local establishment,
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`serving tens of thousands of customers each year.
`
`13.
`
`When the Amherst Diner began operations in 2006, it had a written commercial
`
`lease agreement (“written commercial lease”) with Glover.
`
`14.
`
`After several years, the written commercial lease expired and was terminated by
`
`Glover.
`
`15.
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`After the expiration of the written commercial lease, the Defendants repudiated
`
`the previous lease and insisted on continuing on the basis of an oral lease.
`
`l6.
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`Since that time, Defendants have refused to enter into a new written lease and
`
`have insisted on continuing to rent the Property to the Amherst Diner on the basis of their oral
`
`representations.
`
`17.
`
`Glover told Diane Ashby that as long as the Amherst Diner continues to pay
`
`rent, they would give her at least six (6) months to one (1) year notice before any actions would
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`be taken to evict the Amherst Diner.
`
`18.
`
`19.
`
`The Amherst Diner has paid its monthly rent on time.
`
`Because Amherst Diner has been at the same location for a number of years and
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`built up a positive reputation in the community and because of the attendant costs and potential
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`loss to relocate the restaurant, Amherst Diner understood that under their current
`
`lease
`
`agreement, it would have a year to relocate in the event that the lease was properly terminated.
`
`20.
`
`In reliance upon this, the Amherst Diner has spent a considerable amount of
`3
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`
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`'. z
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`if
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`

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`money on improvements to the Property.
`
`21.
`
`A year-to-year lease or a lease requiring a year’s notice before termination is
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`commercially reasonable in the circumstances.
`
`22.
`
`In addition, the Defendants agreed not to interfere with the Amherst Diner’s
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`business with its customers or employees during the tenancy.
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`23.
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`However, on multiple occasions, Defendants have entered the restaurant and
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`caused disruption by making loud complaints about the food within the hearing of other
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`custo mers.
`
`24.
`
`Likewise, on multiple occasions, Defendants have entered the restaurant and
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`made injurious false statements about the condition of the Amherst Diner’s operations within
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`the hearing of customers and employees.
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`25.
`
`Additionally, Defendants have entered the restaurant and harassed employees of
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`Amherst Diner and otherwise interfered with the operations of the restaurant.
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`26.
`
`On multiple occasions, Glover has interfered with the business of the Amherst
`
`Diner by directing that decorations be removed from the restaurant and by attempting to
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`instruct the Amherst Diner and employees on the proper way to prepare food.
`
`27.
`
`In addition, Defendants have unreasonably refused to consent to replacement
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`booths and flooring by the Amherst Diner despite multiple requests.
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`28.
`
`On multiple occasions, Defendants have also threatened to shut down the
`
`business of the Amherst Diner.
`
`29.
`
`30.
`
`31.
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`In January 2014, a sewage main line at the Property collapsed.
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`Fixing the sewage main line was the responsibility of the Defendants.
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`Despite repeated requests to fix the sewage main lines in such a manner as to
`4
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`

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`not disrupt the business of the Amherst Diner, Defendants refused to act expeditiously, forcing
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`the Amherst Diner to close for four (4) days and resulting in a significant loss of business for
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`the Amherst Diner.
`
`32.
`
`33.
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`To date, the sewage main line has not been fully repaired.
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`On or about April 30, 2014, Glover, as Trustee of the Glover Trust and Manager
`
`of Rich Bluff, sent a letter to the Amherst Diner instructing the business to vacate the Property
`
`within thirty (30) days, or by May 31, 2014. A true and accurate copy of the April 30, 2014
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`letter is attached hereto as “Exhibit A” and incorporated herein by reference.
`
`34.
`
`In addition, the Defendants represented to Ashby that they are willing to delay
`
`taking any action to attempt to evict the Amherst Diner from the Property to only unreasonably
`
`revoke the offer.
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`MOTION FOR INJUNCTIVE RELIEF
`
`A. Temporary Injunction
`
`35.
`
`The allegations set forth in Paragraphs 1
`
`through 34 above are incorporated
`
`herein by reference as if set forth in their entirety.
`
`36.
`
`Despite repeated demands to stop interfering with the business of the Amherst
`
`Diner, the Defendants continue to interfere and take actions injurious to the Amherst Diner.
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`37.
`
`Defendants’ continued interference and threat to effectively shut down their
`
`business on May 31, 2014 presents an imminent and irreparable harm to the business.
`
`38.
`
`Defendants do not risk suffering any harm with a temporary injunction to
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`maintain the status quo until this case is adjudicated.
`
`_:;
`
`.5.
`
`Q
`7’:
`-+‘
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`
`
`

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`39.
`
`Amherst Diner is likely to succeed on the merits of its case because of the
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`blatant and continual nature of the Defendants’ interference with the business.
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`40.
`
`The public interest is served by granting a temporary injunction preventing
`
`Defendants from further interfering with Amherst Diner until the case can be adjudicated on
`
`WHEREFORE, Plaintiff Diane’s Diner, LLC, t/a Amherst Diner, respectfully moves
`
`this Honorable Court to grant a temporary injunction enjoining Defendants Bessie M. Glover,
`
`Robert Glover, Rich Bluff, LLC, and Bessie M. Glover Trust from any interference with the
`
`business, including any attempts to interfere with the occupancy at the Property, and grant
`
`Diane’s Diner, LLC, t/a Amherst Diner such further relief as this Honorable Court may deem
`
`appropriate.
`
`B. Permanent Injunction
`
`41. The allegations set forth in Paragraphs 1
`
`through 40 above are incorporated
`
`herein by reference as if set forth in their entirety.
`
`42. There is no adequate remedy at
`
`law;
`
`in order to stop Defendants from
`
`interfering with the Amherst Diner’s business they must be enjoined from doing so.
`
`43. The balance of equities favor the Amherst Diner because the risk of loss to the
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`Amherst Diner outweighs any potential loss to the Defendants.
`
`44. A permanent injunction serves the public interest of preserving the rights of
`
`Amherst Diner to carry on the business without interference.
`
`WHEREFORE, Plaintiff Diane’s Diner, LLC, t/a Amherst Diner respectfully moves
`
`this Honorable Court to grant a permanent injunction enjoining Defendants Bessie M. Glover,
`
`6
`
`

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`Robert Glover, Rich Bluff, LLC, and Bessie M. Glover Trust from any interference with the
`
`business, including any attempts to interfere with the occupancy at the Property, and grant
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`Plaintiff Diane’s Diner, LLC, t/a Amherst Diner such further relief as this Honorable Court
`
`may deem appropriate.
`
`COUNT I — BREACH OF CONTRACT
`
`45.
`
`The allegations set forth in Paragraphs 1
`
`through 44 above are incorporated
`
`herein by reference as if set forth in their entirety.
`
`46.
`
`The Amherst Diner and Defendants had an oral lease agreement whereby, inter
`
`alia, the Amherst Diner paid Three—Thousand, Five Hundred and 00/100 Dollars ($3,500.00)
`
`per month.
`
`47.
`
`In accordance with the oral lease, the Amherst Diner has paid each month’s rent
`
`on time,
`
`48.
`
`According to the terms of the lease agreement, Defendants had a year-to-year
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`lease.
`
`49.
`
`Pursuant to the terms of the lease agreement, Defendants are not allowed to
`
`interfere with the business of the Amherst Diner.
`
`50.
`
`The Defendants have breached the terms of the lease agreement by interfering
`
`with the business of the Amherst Diner as set forth above and by attempting to terminate the
`
`lease agreement with only a month’s notice.
`
`51.
`
`As a result of Defendants’ breach, the Amherst Diner has suffered considerable
`
`damages and is at risk to lose even more if the Defendants are permitted to continue.
`
`WHEREFORE, Plaintiff Diar'1e’s Diner, LLC, t/a Amherst Diner, respectfully moves
`7
`
`

`
`this Honorable Court to grant a permanent injunction enjoining Defendants Bessie M. Glover,
`
`Robert Glover, Rich Bluff, LLC, and Bessie M. Glover Trust from any interference with the
`
`business, including any attempts to interfere with the occupancy at the Property, and grant
`
`judgment in favor of Plaintiff against Defendants in the amount of One Hundred Thousand and
`
`00/100 Dollars ($100,000.00), or any amount proven at trial, and grant Plaintiff Diane’s Diner,
`
`LLC, t/a Amherst Diner such further relief as this Honorable Court may deem appropriate.
`
`COUNT II — TORTIOUS INTERFERENCE WITH BUSINESS
`
`52.
`
`The allegations set forth in Paragraphs 1
`
`through 51 above are incorporated
`
`herein by reference as if set forth in their entirety,
`
`53.
`
`The Amherst Diner has an ongoing business relationship with the hundreds of
`
`regular customers who regularly patronize the Amherst Diner and provide a significant
`
`economic benefit to the restaurant.
`
`54.
`
`At all pertinent times, the Defendants have had knowledge of the many patrons
`
`and loyal customer base of the Amherst Diner as well as the mutual expectations that the
`
`Amherst Diner would continue to operate at the Property and resultant economic benefit.
`
`55.
`
`There is a reasonable certainty that the Amherst Diner would continue in this
`
`profitable relationship with its customers absent Defendants’ attempts to interfere.
`
`56.
`
`Defendants have used and continue to use improper methods to interfere with
`
`the business of the Amherst Diner.
`
`57.
`
`As a proximate and direct result of Defendants’ interference, the Amherst Diner
`
`has suffered damages in the form of lost business and is at risk of losing all of its business if
`
`the Defendants are allowed to continue interfering with the business of the Amherst Diner.
`8
`
`

`
`WHEREFORE, Plaintiff Diane’s Diner, LLC, t/a Amherst Diner, respectfully moves
`
`this Honorable Court to grant a permanent injunction enjoining Defendants Bessie M. Glover,
`
`Robert Glover, Rich Bluff, LLC, and Bessie M. Glover Trust from any interference with the
`
`business,
`
`including any attempts to interfere with the occupancy at
`
`the Property, award
`
`Plaintiff compensatory damages in the amount of One Hundred Thousand and 00/100 Dollars
`
`($100,000.00), or any other amount proven at trial, and grant Diane’s Diner, LLC, t/a Amherst
`
`Diner such further relief as this Honorable Court may deem appropriate.
`
`COUNT III — COMMON LAW CONSPIRACY
`
`58.
`
`The allegations set forth in Paragraphs 1
`
`through 57 above are incorporated
`
`herein by reference as if set forth in their entirety.
`
`59.
`
`The Defendants have worked in combination for the purpose of willfully and
`
`maliciously injuring the Amherst Diner’s business.
`
`60.
`
`The Defendants’ conspiracy has caused significant damages to the Amherst
`
`Diner’s business and threatens to cause irreparable harm if allowed to continue.
`
`61.
`
`The total amount of damages, including court costs and attorneys’ fees will not
`
`be known until the date of trial in this matter, but will be submitted to the Court in due course.
`
`WHEREFORE, Plaintiff Diane’s Diner, LLC, t/a Amherst Diner, respectfully moves
`
`this Honorable Court to grant a permanent injunction enjoining Defendants Bessie M. Glover,
`
`Robert Glover, Rich Bluff, LLC, and Bessie M. Glover Trust from any interference with the
`
`business,
`
`including any attempts to interfere with the occupancy at
`
`the Property, award
`
`Plaintiff compensatory damages in the amount of One Hundred Thousand and 00/ 100 Dollars
`9
`
`

`
`
`
`($100,000.00), or any other amount proven at trial, punitive damages in the same amount and
`
`treble damages, and grant Diane’s Diner, LLC, t/a Amherst Diner such further relief as this
`
`Honorable Court may deem appropriate.
`
`COUNT IV — STATUTORY CONSPIRACY
`
`62.
`
`The allegations set forth in Paragraphs 1
`
`through 61 above are incorporated
`
`herein by reference as if set forth in their entirety.
`
`63.
`
`The Defendants have worked in combination for the purpose of willfully and
`
`maliciously injuring the Amherst Diner’s business.
`
`64.
`
`The Defendants’ conspiracy has caused significant damages to the Amherst
`
`Diner’s business and threatens to cause irreparable harm if allowed to continue.
`
`65.
`
`The total amount of damages, including court costs and attorneys’ fees will not
`
`be known until the date of trial in this matter, but will be submitted to the Court in due course.
`
`WHEREFORE, Plaintiff Diane’s Diner, LLC, t/a Amherst Diner, respectfully moves
`
`this Honorable Court to grant a permanent injunction enjoining Defendants Bessie M. Glover,
`
`Robert Glover, Rich Bluff, LLC, and Bessie M. Glover Trust from any interference with the
`
`business,
`
`including any attempts to interfere with the occupancy at
`
`the Property, award
`
`Plaintiff compensatory damages in the amount of One Hundred Thousand and 00/100 Dollars
`
`($100,000.00), or any other amount proven at trial, punitive damages in the same amount and
`
`treble damages, and grant Diane’s Diner, LLC, t/a Amherst Diner such further relief as this
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`Honorable Court may deem appropriate.
`
`10
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`

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`
`
`..-;..i.:,.:;,.:;s,_
`
`Respectfully Submitted,
`DIANE’S DINER, LLC,
`
`By Counsel.
`
`
`
`Matthew S. Akers, E quire
`Virginia Bar No. 74615
`MCCARTHY & AKERS, P.L.C.
`302 West Boscawen Street
`
`Winchester, VA 22601
`540-722-2181 Office
`
`540-722-2381 Fax
`
`Counselfor the Plaintiff
`
`
`
`
`
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`

`
`VIRGINIA:
`
`IN THE CIRCUIT COURT OF CITY OF THE WINCHESTER
`
`DIANE’S DINER, LLC,
`
`v.
`
`Plaintiff,
`
`.
`:
`
`Case No.
`
`BESSIE M. GLOVER, er al.,
`
`Defendants.
`
`AFFIDAVIT
`
`STATE OF VIRGINIA;
`CITY OF WINCHESTER; to-wit:
`
`Before me, the undersigned Notary Public in and for the City and State aforesaid,
`
`personally appeared Diane Ashby, Owner of Diane’s Diner, LLC, who, after being duly
`
`sworn, deposes and says that to the best of her knowledge and belief, all allegations alleged
`
`in the Complaint filed in this matter are true.
`
`hfib Q2431/fig
`
`Diane Ashby
`
`~
`7*»-
`Taken, sworn and subscribed before me in my City and State aforesaid this __/‘:5_ day
`
`of 2014.
`
`Notary Public
`
`.
`.
`.
`My Commission Expires:
`
`‘K 7)! 5
`
`My Registration No.: 3935 am
`
`NOTARY PUBLIC
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`
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`
`
`
`Phone: 540 667 4322
`
`Email:
`
`r.g1overl@verizon.net
`
`Rich Bluff LLC
`
`Bessie M Glover Trust
`
`3 16 Ridge Avenue
`Winchester, VA 22601
`
`April 30, 2014
`
`Diane Ashby
`Diane’s Diner, LLC
`109 Inca Trail
`
`Winchester, VA 22602
`
`Dear Diane,
`
`As you are aware your lease calls for you to maintain the plumbing, electrical
`system, and our equipment having it serviced and repaired as needed.
`
`After we notified you in March 2014 that we needed records for the servicing of the
`fire suppression system and hood cleaning you contacted the fire suppression
`people which led to the replacing of the old system. When it was tested this month
`it failed and had to be upgraded to meet the current fire code. We are not sure as
`to what caused it to fail the test since you hadn’t had it tested on schedule.
`
`We have learned that you were advised in April 2013, a year ago when the system
`was last tested, that it was not in compliance with the current fire code. You were
`also given a proposal for installing a new system. You did not tell us about this
`very important development and ignored this notice. When you were contacted in
`October 2013 toset a date for the required 6 month servicing of the suppression
`system you did not take their call although you were at the diner and never
`returned their call. You had to know it was important that you talk with them and
`schedule a testing.
`
`There has been maintenance issues that we choose to overlook, but not looking
`after the fire suppression system is just too serious for us to ignore. You had the
`responsibility of having the systems serviced every six months as required by the
`fire code and the insurance company and you should have told us about the notice
`you were given last April that the system was outdated. Had there been a fire in all
`likelihood our insurance company would not have covered the damage which may
`have consumed the entire building.
`
`Because of your negligence regarding this issue as well as other instances where
`you did not comply with the terms of the lease regarding maintenance we are
`giving you thirty days’ notice to vacate the building, until May 31, 2014, and
`expect you to abide by the terms of the lease in the process. If you find a ros
`ct
`
`
`

`
`
`
`to take over in your place, {Ive will give consideration to such tenant, but we have
`no obligation to approve such" person, but will give consideration to such person as
`continuation of service to the patrons and employees is obviously a concern. We
`are sorry that it has come to this, but the situation has become intolerable.
`
`U
`‘
`
`If you have any questions, please contact our attorney John Truban, telephone
`540-667-0889.
`
`Sincerely,
`
`
`
`Iégssie M d10;76I', Trustee -
`
`-
`
`Manager of Rich Bluff. LDC
`
`
`
`
`
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`
`
`COVER SHEET FOR FILING CIVIL ACTIONS
`COMMONWEALTH OF VIRGINIA
`
`The City of Winchester
`
`...............v./In re:
`
`.
`
`PLAINTlFF(S)
`
`Case No.
`
`(CLERK'S OFFICE use ONLY)
`
`Circuit Court
`
`...§¢.§5?.?.M:.9l9Y°r» e‘ “l ..
`DEl‘ET~lDANT(S)
`
`
`.
`
`.
`
`] defendant hereby notify the Clerk of Court that I am filing
`] defendant [X] attorney for [X] plaintiff [
`] plaintiff [
`I, the undersigned [
`the following civil action. (Please indicate by checking box that most closely identifies the claim being asserted or relief sought.)
`
`_
`
`PROBATE/WILLS AND TRUSTS
`[
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`[
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`“J "
`[
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`[
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`[
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`[
`
`[
`
`[
`
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`
`N)
`L...
`
`MISCELLANEOUS
`[
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`[
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`‘I
`[
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`(
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`
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`
`[
`[
`[
`
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`(119:
`
`4
`
`[
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`[
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`[
`
`GENERAL CIVIL
`Subsequent Actions
`[
`] Claim Impleading Third Party Defendant
`[
`1 Monetary Damages
`[
`] No Monetary Damages
`] Countetelaim
`[
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`[
`] No Monetary Damages
`] Cross Claim
`I lnterpleader
`] Reinstatement (other than divorce or
`driving privileges)
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`[
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`) Condemnation
`[
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`[
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`[
`] Enforce Vendor’s Lien
`[
`] Escheatment
`[
`] Establish Boundaries
`[
`] Landlord/Tenant
`[
`] Unlawful Detainer
`I Mcchanlcs U011
`[
`I Partition
`[
`I QuietTille
`[
`l Temlinalion Oflvlineral Rights
`[
`Tort
`{
`] Asbestos Litigation
`[
`] Compromise Settlement
`[
`] Intentional Tort
`[
`] Medical Malpractice
`[ ] Motor Vehicle Tort
`[
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`[
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`[
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`
`ADMINISTRATIVE LAW
`(
`] Appeal/Judicial Review of Decision of
`(select one)
`[
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`[
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`[
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`[
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`
`[
`[
`
`[
`
`[
`[
`
`DOMESTIC/FAMILY
`[ ] Adoption
`[
`] Adoption — Foreign
`] Adult Protection
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`Pleading
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`[
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`[
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`[
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`
`[
`
`wR[']‘s
`[
`] cemorarj
`[
`1 Habeas corpus
`[
`] Mandamus
`[
`] prohibition
`[
`] Que wanamo
`
`are claimed.
`7"’l~é+8
`
`
`] PLAINTIFF
`
`[]DEFENDANT
`
`
`
`
`
`[-1 rrormav FOR [s] PLAINTIFF
`[ ]DEFENDANT
`
`[X] Damages in the amount of$
`..
`
`DATE
`
`
`
`[
`
`'
`
`'
`
`Mat¥!?°W$»A.l$§rS.~.!73§.99.irs=............................... ..
`PRINT NAME
`302 W. Boscawen St.
`ADDRESSITELEPHONE NUMBER or SIGNATOR
`
`........Ylll.!!9h§§FEF.:.Y.4§.3?§9.l..1.§.‘}9.tZ?E:%l.§.l.................................
`FORM CC-I416 (MASTER) PAGE ONE 10/I2
`
`
`
` "Contested" divorce means any of the following matters are in
`dispute: grounds of divorce, spousal support and maintenance,
`
`
`child custody and/or visitation, child support, property distribution
`or debt allocation. An "Uncontested" divorce is filed on no fault
`
`
`grounds and none of the above issues are in dispute.
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`
`
`
`
`
`
`

`
`

`
`VIRGINIA:
`
`IN THE CIRCUIT COURT OF CITY OF THE WINCHESTER
`
`DIANE’S DINER, LLC,
`
`V.
`
`Plaintiff,
`
`Case No. CL14-268
`
`BESSIE M. GLOVER, et al.,
`
`Defendants.
`
`PRAECIPE
`
`Please place the above matter on the Court’s docket for a Hearing in the above matter on
`
`Thursday, May 29, 2014 at 9:00 a.m., or as soon thereafter" as this matter may be heard, for
`
`argument on Plaintiffs request for Temporary Injunction against Defendants. Counsel estimates
`
`that 30 minutes will be required.
`
`Respectfully Subm_itted,
`DIANE’S DINER
`
`By Counsel.
`
`/
`
` Matthew . Akers‘, E uire
`
`Virginia Bar No. 74615
`MCCARTHY & AKERS, P.L.C.
`302 West Boscawen Street
`
`Winchester, VA 22601
`540-722-2181 Office
`
`540-722-2381 Fax
`
`Counselfor Plaintzfl
`
`

`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on this 2_2_"f day May, 2014, a true copy of the foregoing
`
`Praecipe was -mailed by first class mail, postage prepaid to:
`
`Bessie Glover
`
`316 Ridge Avenue
`Winchester, VA 22601
`
`Robert Glover
`
`316 Ridge Avenue
`Winchester, VA 22601
`
`Rich Bluff, LLC,
`c/o Bessie M. Glover, Registered Agent
`316 Ridge Avenue
`Winchester, VA 22601
`
`Bessie M. Glover Trust
`
`c/o Bessie Glover
`
`316 Ridge. Avenue
`Winchester, VA 22601
`
`Defendants
`
`
`
`Matthew S. Akers,
`
`sq _' e
`
`

`
`

`
`V I R G I N I A:
`
`IN THE CIRCUIT COURT OF CITY OF THE WINCHESTER
`