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wear ORIGINAL ov 10 PRUR EF. COMMON PLEAS Lu uF COUNTY, OHIO 3320 SECOR LLEs*!8 FE } Case No, G-4801-C1-0202003502-000 BEE NIE Jud GLE Judge paki ) Hon.__; MICHAEL R GOULDING v, ; Ce MOTION FOR ISSUANCE OF ) TEMPORARY RESTRAINING and ORDER, AND FOR INJUNCTIVE ) RELIEF MONE REAL ESTATE LLC CHICK-FIL-A, INC., Defendants. ) ) Pursuant to Civ.R. 65 and Revised Code §2727.01 ef seq., and the Agreements attached as Exhibits 5 to 8 of the Verified Complaint, Plaintiff, 3320 Secor LLC ("Plaintiff"), by and through counsel, hereby moves this Court for the issuance of a Temporary Restraining Order and preliminary injunction, immediately restraining and enjoining Defendant Real Estate LLC (‘Mone’) and Defendant Chick-FitA, Inc. ("CFA"), from the actions, activities and items as more fully set forth herein and in the Verified Complaint. In support and as grounds for this Motion, Plaintiff submits that it has no plain, timely or adequate remedy at law, and that immediate irreparable injury, loss and damage will result to Plaintiff before a hearing may be held in this matter, as more fully set forth in the Verified Complaint, and in the Memorandum in Support of this Motion attached hereto. Moreover, the Agreements governing the actions and activities of Defendants of which Plaintiff complains in the Verified Complaint, provide that injunctive relief is the appropriate agreed to remedy for Plaintiff Indeed, the ample evidence, including photographic evidence, clearly establishes the Defendants’ ongoing violations of the Agreements, including by: w (ii) ii) ) (vi) “stacking” CFA's drive-thru by directing vehicles in and through the Secor Property (defined below and in the Verified Complaint) including the Common Driveways and Accessways (defined and described in the Agreements), blocking same; “stacking” CFA’s drive-thru by directing vehicles in and through the Secor Property, including the Common Driveways and Accessways, blocking parked vehicles and parking spaces on the Secor Property; allowing CFA’s customer vehicles to drive through and between parking spots to reach the CFA Property (defined below and in the Verified Complaint), store and drive-thru, creating a hazard and danger to pedestrians and other vehicles traversing and otherwise using the Common Driveways and Accessways, and parking and parking spaces in the Secor Property; blocking the Common Driveways and Accessways on the Secor Property, including through the separate use of orange traffic cones; and erecting signage to intentionally direct vehicles to CFA’s drive-thru, by a longer path through the Common Driveways and Accessways on thé Secor Property, and resulting in the blocking activities mentioned above; and CFA’s employees parking in spaces on the Secor Property that are not designated for CFA’s employees. ~Piged of 7 (together, the “Violative Activities”), Accordingly, Plaintiff hereby and respectfully requests that this Honorable Court issue a TRO, immediately restraining and enjoining Defendants along with their employees, agents, representatives, and anyone acting in active concert or participation with them, from the Violative Activities, and from taking any action that would, in any manner or way, breach and violate the Agreements identified herein and attached to the Verified Complaint, and schedule a hearing for Preliminary Injunction, accordingly. Plaintiff's Memorandum in Support is also attached and in support of this Motion. Plaintiff's proposed Temporary Restraining Order is attached as Exhibit 1 hereto. WHEREFORE, Plaintiff, 3320 Secor LLC respectfully requests that this Motio be granted and a Temporary Restraining Order issue as against Mone Real Estate LLC (‘Mone") and Chick-Fil-A, Inc. ("CFA"), together with such other, further and different relief as may be warranted by the facts and circumstances of this case. Respectfully submitted, IsI_Marjan Neceski Marjan Neceski (0081944) ‘Simon PLC Attorneys & Counselors 1715 Indian Wood Circle, Suite 200 Maumee, OH 43537 (419) 897-7967 (419) 897-0888 Fax mneceski@simonattys.com Jsi_Andrew G. Douglas Andrew G. Douglas (0000008) Mazanec, Raskin & Ryder Co., L.P.A. 175 South Third Street, Suite 1000 Columbus, OH 43215 (614) 506-8050 (614) 228-5934 adouglas@mrrlaw.com Dated: November 6, 2020 Attorneys for Plaintiff MEMORANDUM IN SUPPORT |. STATEMENT OF THE CASE AND FACTS, This matter is before the Court on Plaintiff's Verified Complaint. As more fully set forth therein, Defendants are undertaking ongoing violations of Reciprocal Easement and Operation Agreements, Declarations and Covenants, as amended (the "Agreements”). The Agreements govern and affect the use and access to Common Driveways and Accessways, and parking spaces, for a commercial plaza located at 3314 Secor Road, Toledo, Ohio, 43606, including all parking spaces, laneways, driveways and accessways (the “Secor Property’). (Verified Complaint, generally). Immediately adjacent east and south of the Secor Property, is a separate Lot (Lot 3) from the Secor Property, on which a Chick-Fil-A store sits and operates (the "CFA Property”) For assistance and demonstrative purposes, and to show the relative positions of each property, attached as Exhibit 2 to the Verified Complaint is a Replat showing Lot 3 (the CFA Property) and Lot 4 (the Secor Property), along with a site plan attached as Exhibit 12 to the Verified Complaint. Exhibit 3 to the Verified Complaint, is a satellite image courtesy of Google Maps, of the Secor Property and the CFA Property, and is duplicated below: The Agreements govern the operation and use of the Secor Property, including by parties occupying the CFA Property, and including as follows: (a) Reciprocal Easement and Operation Agreement dated May 5, 1999, and recorded as Instrument Number 99-236-CO7 (the “REA')(Verified Complaint at Exhibit 5); (b) First Amendment to Reciprocal Easement and Operation Agreement dated December 15, 2003, and recorded as Instrument Number 720030063216 (the "REA Amendment’)(Verified Complaint at Exhibit 6); (c) Declaration of Easements, Covenants and Restrictions dated March 21, 2016, and recorded as Instrument Number 20160602-0020802 (the “Declaration’)(Verified Complaint at Exhibit 7)'; and (d) First Amendment to Declaration of Easements, Covenants and Restrictions dated May 30, 2017, and recorded as Instrument Number 201706008-0023096 (the “Declaration Amendment") (Verified Complaint at Exhibit 8). Note that Mone, as landlord, and CFA, as tenant, entered into a Short Form Lease for the CFA Property. (Verified Complaint at Exhibit 4). Mone and CFA generally acknowledged the Agreements, and CFA participated in the negotiation in the Declaration Amendment. (Verified Complaint at Exhibit 3). Mone, including through its tenant, CFA, have been in repeated violation of the 1 The Declaration was not recorded in chronological order. The pages to the Declaration attached as Exhibit 7 are re-arranged to chronological order. Agreements, and these violations generally occur 6 days a week as CFA is closed on ‘Sundays. The Violative Activities undertaken by Mone and CFA, and that are the subject of the Verified Complaint and this Motion, include: (i) “stacking” CFA’s drive-thru by directing vehicles in and through the Secor Property, including the Common Driveways and Accessways as defined and described in the ‘Agreements, blocking same; (i) “stacking” CFA’s drive-thru by directing vehicles in and through the Secor Property, including the Common Driveways and Accessways, blocking parked vehicles and parking spaces on the Secor Property; (iii) allowing CFA's customer vehicles to drive through and between parking spots to reach the CFA Property, store and drive-thru, creating a hazard and danger to pedestrians and other vehicles traversing and otherwise using the Common Driveways and Accessways, and parking and parking spaces in the Secor Property; (iv) past practice of blocking the Common Driveways and Accessways on the Secor Property, including through the separate use of orange traffic cones; (v) erecting signage to intentionally direct vehicles to CFA's drive- thru, by a longer path through the Common Driveways and Accessways on the Secor Property, and resulting in the blocking activities mentioned above; and (vi) CFA’s employees parking in spaces on the Secor Property that are not designated for CFA’s employees. Numerous examples of the Violative Activities can be found in the Photographs attached as Exhibit 9 to the Verified Complaint. Some examples follow: “Page Zof F? | Each of the Violative Activities are separately and jointly violations and breaches of the Agreements including, but not limited to, violations and breaches of: () Declaration Sections 2.1(¢) and 3.3(a). (Verified Complaint at Exhibit 7); (i) Declaration Amendment Section 1(i)(i). (Verified Complaint at Exhibit 8); Page Tor iy and (iii) REA Section 3.01(a). (Verified Complaint at Exhibit 5). Declaration Section 2.1(c), "Ingress and Egress/Parking," provides (©) Notwithstanding anything to the contrary in this Declaration, no Owner, Occupant or Person shall close, remove, alter or prevent the use of a Common Driveway and Accessway or ‘any parking spaces in the Common Area... (Emphasis added)(Verified Complaint at Exhibit 7). Declaration Section 3.3(a), “Changes to Common Area,” provides (a) Except as expressly permitted by this Declaration, no Improvements will be placed in the Common Area of a Tract and no changes will be made to the Improvements constructed in the Common Area of a Tract (including, but not limited to, the Common Driveways and Accessways) . (Emphasis added)( Verified Complaint at Exhibit 7), Declaration Amendment Section 1()(i) provides: i. With tespect_to the Common Driveways and Accessways of the Development. Notwithstanding the rights of Declarant reserved in Section 3.3(d) of the Declaration, Declarant shall not expand, reduce, change, modify or otherwise alter the Common Driveways and Accessways located on a Tract not owned by Declarant or the connection(s) from such_non-Declarant owned Tract with the Common Driveways and Accessways (Emphasis added)( Verified Complaint at Exhibit 8) REA Section 3.01(a) provides, in pertinent part: Section 3.01. Restrictions on Common Areas. The Common Areas of the Shopping Center shall be subject to the following restrictions which shall be binding on each Owner and each of its tenants, occupants, employees, agents or invitees: {a)_No obstruction to the free flow of traffic and use of the parking areas and delivery facilities shall be permitted, excep to the extent, if any, indicated on the site plan . (Emphasis added)(Verified Complaint at Exhibit 5). The Agreements generally provide that the breaches of any terms thereof, are actionable by injunction. As explained in REA Section 6.02: Section 6.02. Injunctive and Other Remedies. In the event of a breach of any Owner of any obligation of this Agreement, any of the Owners shall be entitled to obtain an order specifically enforcing the performance of such obligation or an injunction wrohibiting any such breach; the Owners hereby acknowledge the inadequacy of legal remedies and the irreparable harm which would be caused by any such breach, and/or relief by other available legal and equitable remedies from the consequences of such breach. (Emphasis added)(Verified Complaint at Exhibit 5). Similarly, Section 10.3(b) of the Declaration provides: In the event of any violation or threatened violation by any Person of any of the easements, restrictions or other terms of this Declaration, Declarant and each Owner will each have the right to enjoin such violation or threatened violation in_a court of competent jurisdiction. (Emphasis added)(Verified Complaint at Exhibit 7). The Agreements by their express terms, are binding upon Mone and CFA. Since at least March of this year, Plaintiff had reached out to Mone and CFA ona number of occasions, requesting that Mone and CFA stop the Violative Activities from occurring, and Mone and CFA have refused to refrain from and prevent same. As such, by letter dated September 10, 2020, Plaintiff, by and through its counsel, placed both Mone and CFA on further notice of the Violative Activities, and made demand upon them to, cease, desist and refrain from undertaking or allowing any such further activity on the Secor Property (the “Cease and Desist Letter"). (Verified Complaint at Exhibit 10). By letter dated September 17, 2020, Mone responded to the Cease and Desist Letter. (“Mone’s Response Letter’). (Verified Complaint at Exhibit 11). Through Mone's gel of 17 Response Letter, Mone generally acknowledged and admitted to the stacking issues and Violative Activities as stated in the Cease and Desist Letter, but denied that the ‘Agreements had been breached and otherwise refused to take any steps to end the Violative Activities. (Verified Complaint at Exhibit 11, generally) Mone and CFA were provided multiple opportunities and ample time to remedy their Violative Activities, but have refused, leaving Plaintiff with no choice but to file this lawsuit Note that a tenant, Kiezi Convenience Stores, LLC, is currently occupying and set to open an approximately 25,000.00 square foot retail store at the Secor Property, called “Bulk Beverage Co. The tenant is deeply concerned with the Violative Activities, including the inability of customers to travel within and park by its store, and with the public safety hazards presented and as described herein. (Verified Complaint, generally). Il, LAW AND ARGUMENT Ohio Revised Code § 2727.02, which permits a person to obtain a Temporary Restraining Order, provides in pertinent part as follows: A temporary order may be granted restraining an act when it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief, or any part of it, consists in restraining the commission or continuance of such act, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, threatens or is about to do, ot is procuring or permitting t0 be done, such act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual Further, Civil Rule 65(A) states, in pertinent part, as follows: ‘A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will Page [Sot 17 result to the applicant before the adverse party or his attorney can be hheard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting his claim that notice should not be required. A Temporary Restraining Order is a form of relief intended to prevent the applicant from suffering immediate and irreparable harm, injury or damage. Coleman v. Wilkinson (2002), 147 Ohio App. 3d 357, 358. A Plaintiff is entitled to a Temporary Restraining Order upon a showing that (i) Assubstantial likelihood that it will prevail on the merits; (ji) Itwill suffer irreparable harm if the injunction is not granted; (il) The issuance of the injunction will not unjustifiably harm third- parties; and (iv) The public interest will be served by granting the injunction. Procter & Gamble Co. v. Stoneham, (1* Dist. 2000), 140 Ohio App. 3d 260, 267; Try Hours, ine. v. Douville (6" Dist. 2013), 2013-Ohio-53, J 20. Note that “[w]hen there is a strong likelihood of success on the merits, preliminary injunctive relief may be justified even though a plaintiffs case of irreparable injury may be weak.” Cleveland v. Cleveland Elec. Illuminating Co. (8" Dist. 1996), 115 Ohio App. 3d 1, 14. “In other words, what plaintiff must show as to the degree of irreparable harm varies inversely with what plaintiff demonstrates as its likelihood of success on the merits.” Id The grant or denial of an injunction is solely within the trial court's discretion and, therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a clear abuse of discretion." Garono v. State (1988), 37 Ohio St. 3d 171, 173. Page.13 of Pe (1) Defendants Bound by Agreements for TRO and Injunctive Relief The Defendants are bound by the Agreements, which clearly provide that a TRO and injunctive relief are appropriate and should issue here. REA section 6.02 provides that Plaintiff “shall be entitled to obtain an order specifically enforcing the performance of such obligation or an_injunction prohibiting any such breach’ of the Agreements. Further, the parties “acknowledge the inadequacy of legal remedies and the irreparable harm which would be caused by any such breach’ of the Agreements. (Verified Complaint at Exhibit 5) The same was agreed to in the Declaration at section 10.3 - “each Owner will each have the right to enjoin such violation or threatened violation in a court of competent jurisdiction.” (Verified Complaint at Exhibit 7). Looking to this Court for a TRO and to enjoin Defendants from the Violative Activities, is consistent with what the Agreements provide for, and is binding on the Defendants. As a result and on this basis alone, the TRO attached as Exhibit 4 hereto should be issued and entered by the Court. (2) Elements for Issuance of a TRO are Otherwise Present Even if Plaintiff did not have the express and clear language of the Agreements to rely upon in support of this Motion, Plaintiff can still satisfy and show that the necessary elements exist for the issuance of a TRO in this case. (a) Substantial Likelihood of Success In terms of the first element, it is abundantly clear that a substantial likelihood exists that Plaintiff will prevail on the merits in the underlying claims. Plaintiff has presented the Agreements that bind Defendants, and that prohibit Defendants’ TP OTE Violative Activities. Further, Plaintiff has presented clear and indisputable visual evidence establishing the Violative Activities undertaken by Defendants, and that violate the Agreements. (See, Verified Complaint including Exhibits 4 to 9). Neither the requirements of the Agreements nor the visual evidence can be lawfully refuted by Defendants. They have no lawful arguments or facts that can be presented that in any reasonable way can rebut the clear evidence in this case. The evidence establishes without a doubt that Defendants’ Violative Activities breached the Agreements, and that Plaintiff will be successful on the merits. As such, the first element has been satisfied by Plaintiff. (b) Plaintiff Suffering Irreparable Harm The evidence presented with the Verified Complaint and this Motion clearly shows the irreparable harm that is occurring to Plaintiff. In addition to the Defendants agreeing in the Agreements that the harm caused by their Violative Activities is irreparable, by affirmatively and continually undertaking those activities, Defendants are interfering with Plaintiffs rights on, to and in the use of the Secor Property, the Commons Accessways, and the parking spaces. Defendants are trumping, overtaking, interfering and prohibiting Plaintiffs rights therein, and that harm cannot be otherwise repaired. As such, the second element has been satisfied by Plaintiff. (c) No Harm to Third-Parties In addition, there is no harm, let alone unjustified harm, that would be suffered by third-parties, or even the Defendants. Defendants being restrained or enjoined in this case will simply require that they avoid the Violative Activities by simply abiding Rage 15iof 17. by their own Agreements. Defendants will simply not be allowed to have their activities trump and supersede Plaintiffs rights. Thus, the third element has also been satisfied (4) Public Interest Will be Served Finally, the public interest will be served by this Motion being granted, and a TRO being issued by this Court. Plaintiff merely seeks to have Defendants comply with their contractual obligations, and refrain from the Violative Activities. Having Defendants comply with their contractual obligations alone is sufficient to establish service of the public interest. Otherwise, Defendants’ Violative Activities interfere with public access, use and travel within the Common Accessways, parking spaces, and businesses within the Westgate Town Center and Secor Property. Further, the Violative Activities create a hazard to vehicular and pedestrian traffic on the Secor Property. Stopping those activities is necessarily in the public interest. Thus, the fourth element has been satisfied. ll, CONCLUSION Through the Agreements, the Defendants agreed not to undertake the Violative Activities. The Defendants also agreed that Plaintiff could seek to restrain and enjoin the Defendants from the Violative Activities, as the harm caused is irreparable. For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court issue a Temporary Restraining Order including in the form attached as Exhibit 1 hereto, followed by orders of preliminary and permanent injunctions, restraining and enjoining Defendants and their employees, agents, representatives, and anyone acting in active concert or participation with them, from undertaking the actions, activities and items that Page 16 of 17 constitute the Violative Activities identified herein and in the Verified Complaint, and from otherwise breaching and violating the Agreements. Plaintiff respectfully requests that this matter be set for a hearing on this Motion for Temporary Restraining Order at the Court's earliest convenience, and that the undersigned counsel, Marjan Neceski, Esq., be contacted at (419) 897-7967 for scheduling purposes. Plaintiff also respectfully requests that an evidentiary hearing for issuance of Preliminary Injunction also be set after a TRO is issued, accordingly. Dated: November 6, 2020 Respectfully submitted, Js/_Marjan Neceski Marjan Neceski (0081944) Simon PLC Attorneys & Counselors 1715 Indian Wood Circle, Suite 200 Maumee, OH 43537 (419) 897-7967 (419) 897-0888 Fax mneceski@simonattys.com Jsl_Andrew G. Douglas ‘Andrew G. Douglas (0000006) Mazanec, Raskin & Ryder Co., L.P.A. 175 South Third Street Suite 1000 Columbus, OH 43215 (614) 506-8050 (614) 228-5934 adouglas@mrrlaw.com Attorneys for Plaintiff we Tot 17. EXHIBIT “1” COURT OF COMMON PLEAS LUCAS COUNTY, OHIO 3320 SECOR LLC, ) Case 6-4801-C1-0202003502-000 | Judge Plaintiff, ) Hon! = MICHAEL RGouLDING | 1 ' | ) — MONE REAL ESTATE LLC TEMPORARY RESTRAINING ) ORDER and ) CHICK-FIL-A, INC., ) Defendants, ) This matter having come before the Court on the Motion for Temporary Restraining Order of Plaintiff, 3320 Secor LLC (“Plaintiff's Motion’), and as against Defendant Mone Real Estate LLC and Defendant Chick-Fil-A, Inc., and on Plaintiff, 3320 Secor LLC's Verified Complaint including claims for, among other things, issuance of a temporary restraining order, and preliminary and permanent injunctions (the “Verified Complaint’); NOW, upon review of Plaintiff's Motion, the Verified Complaint and all other submissions filed, it appears to the Court that Plaintiff has adequately demonstrated that there is a substantially likelihood of success for Plaintiff on the merits, that Plaintiff will be irreparably harmed if Defendants are not enjoined, third-parties will not be unjustifiably harmed if enjoined, and the public interest will be served by Defendants being enjoined, it is hereby ORDERED and DECREED that: 1. Plaintiff, 3820 Secor LLC's Motion is GRANTED; and further that 2. A Temporary Restraining Order shall issue immediately, and that security in the amount of be posted no later than the ___th day of November, 2020; and further that SRC LOES For a period of fourteen (14) days from the date that this Order is filed, Defendant Mone Real Estate LLC (“Mone”) and Defendant Chick-Fil-A, Inc. ("CFA"), along with their employees, agents, representatives, and anyone acting in active concert or participation with them (together, the “Defendants"), are hereby RESTRAINED and ENJOINED from: a (ii) (ii) (wv) (v) “stacking” CFA’s drive-thru at the CFA Property (as defined in the Verified Complaint), by directing vehicles in and through the Secor Property (as defined in the Verified Complaint), including the Common Driveways and Accessways (as defined in the Agreements. attached as Exhibits 5 to 8 to the Verified Complaint), blocking same; “stacking” CFA’s drive-thru by directing vehicles in and through the Secor Property, including the Common Driveways and Accessways, blocking parked vehicles and parking spaces on the Secor Property; allowing CFA's customer vehicles to drive through and between parking spots to reach the CFA Property, store and drive-thru, creating a hazard and danger to pedestrians and other vehicles traversing and otherwise using the Common Driveways and Accessways, and parking and parking spaces in the Secor Property; blocking the Common Driveways and Accessways on the Secor Property, including through the separate use of orange traffic cones; and erecting signage to intentionally direct vehicles to CFA's drive-thru, by a longer path through the Common Driveways and Accessways on the Secor Property, and resulting in the blocking activities aes mentioned above; and (vi) CFA’s employees parking in spaces on the Secor Property that are not designated for CFA’s employees. (together, the “Violative Activities"); and further that 4. Defendants shall not violate the Agreements in other ways that may result in subversion of this Order; and further that 5. This Order may be extended for good cause shown or by agreement of the parties. IT IS SO ORDERED. Dated: November , 2020 Hon. Ir