ELECTRONICALLY FILED - 2021 Jul 09 3:27 PM - GREENVILLE - COMMON PLEAS - CASE#2021CP2303233

STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS

THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF GREENVILLE

Cottage Hospitality, LLC, Case No.: 2021-CP-23-

Plaintiff,
vs. SUMMONS

Carolina Foothills Garden Club, Inc., and City (Declaratory Judgment)

of Greenville,

Defendants.

TO: THE DEFENDANTS ABOVE-NAMED:

You are hereby summoned and required to answer the Complaint in this action, a copy of

which is herewith served upon you, and to serve a copy of your answer to the Complaint upon the

subscriber at 24 Cleveland Street, Suite 100, Greenville, SC 29601, within thirty (30) days after

the service hereof, exclusive of the day of such service. If you fail to answer the Complaint within

that time, a judgment will be entered against you for the relief demanded in the Complaint.

BANNISTER, WYATT & STALVEY, LLC

s/ Ryan W. Pasquini___
Bruce W. Bannister (SC Bar No. 15679)
Luke A. Burke (SC Bar No. 100033)
Ryan W. Pasquini (SC Bar No. 104493)
24 Cleveland Street, Suite 100 (29601)
P. O. Box 10007 (29603)
Greenville, South Carolina
Phone: (864) 298-0084; Fax: (864) 298-0146
rpasquini@bannisterwyatt.com
Attorneys for Plaintiff

July 9, 2021
Greenville, South Carolina
 ELECTRONICALLY FILED - 2021 Jul 09 3:27 PM - GREENVILLE - COMMON PLEAS - CASE#2021CP2303233
STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS
THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF GREENVILLE

Cottage Hospitality, LLC, Case No.: 2021-CP-23-

Plaintiff,
vs. COMPLAINT

Carolina Foothills Garden Club, Inc., and City

of Greenville,

Defendants.

Plaintiff Cottage Hospitality, complaining of the above-named Defendants, would

respectfully show unto this Honorable Court as follows:

JURISDICTION

1. Plaintiff Cottage Hospitality, LLC, (hereinafter “Cottage Hospitality”) is a South Carolina

limited liability company with its principal place of business in Greenville County.

2. Defendant Carolina Foothills Garden Club, Inc., (hereinafter “Carolina Foothills Garden

Club”) is a South Carolina non-profit organization with its principal place of business in Greenville

County.

3. Defendant City of Greenville is an incorporated South Carolina municipality.

4. This Court has jurisdiction over the parties and the subject matter of this action.

5. Venue is proper in Greenville County, South Carolina pursuant to S.C. Code § 15-7-10(1).

FACTUAL BACKGROUND

6. Pursuant to a Lease Agreement dated July 12, 2004, Carolina Foothills Garden Club leased

from the City of Greenville the improved real property in Greenville, South Carolina described as

Block Book No. 89-1-5.1, Greenville Tax Maps.

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7. On July 14, 2004, Carolina Foothills Garden Club and Mary S. Jones, individually, and

Allen D. Jones, individually, d/b/a Mary’s Restaurant, entered into a Sublease Agreement in which

Mary S. Jones, individually, and Allen D. Jones, individually, d/b/a Mary’s Restaurant subleased

from Carolina Foothills the improved real property in Greenville, South Carolina described as

Block Book No. 89-1-5.1, Greenville Tax Maps. (hereinafter referred to as the “Sublease

Agreement”)

8. On July 1, 2013, the City of Greenville, South Carolina leased to Carolina Foothills Garden

Club improved real property in Greenville, South Carolina described as Block Book No. 89-1-5.1,

Greenville Tax Maps. (hereinafter referred to as the “Prime Lease”)

9. On September 4, 2013, the City of Greenville, Carolina Foothills Garden Club and Mary

S. Jones, individually, and Allen D. Jones, individually, d/b/a Mary’s Restaurant, amended the

Sublease Agreement in certain respects by the execution of a First Amendment to the Sublease

Agreement for the purpose of extending the term of the Sublease Agreement such that it shall

expire on June 30, 2018. (hereinafter referred to as the “First Amendment to the Sublease

Agreement”)

10. The City of Greenville, Carolina Foothills Garden Club and Mary S. Jones, individually,

and Allen D. Jones, individually, d/b/a Mary’s Restaurant further amended the Sublease

Agreement in certain respects by the execution of a Second Amendment to the Sublease

Agreement dated effective as of December 31, 2017 in which Kent T. Fisher was added as an

additional tenant. (hereinafter referred to as the “Second Amendment to the Sublease Agreement”)

11. The City of Greenville, Carolina Foothills Garden Club and Mary S. Jones, individually,

and Allen D. Jones, individually, d/b/a Mary’s Restaurant, amended the Sublease Agreement in

certain respects by the execution of a Third Amendment to the Sublease Agreement for the purpose
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of extending the term of the Sublease to June 30, 2029 and permitting the assignment of the rights

of the tenant under the Sublease Agreement dated effective as of April 16, 2019. (hereinafter

referred to as the “Third Amendment to the Sublease Agreement”)

12. An Assignment and Assumption of Sublease was entered into as of April 16, 2019, between

Mary S. Jones and Allen D. Jones and Cottage Hospitality that assigned, transferred, and conveyed

to Cottage Hospitality all of the Jones’ rights, title and interest in and to the Sublease Agreement,

including the right to operate the restaurant known as Mary’s at Falls Cottage located on the leased

premises.

13. When Cottage Hospitality took over the Sublease, Cottage Hospitality reported a plumbing

and structural issue with the floor related to flooding to the property manager and then

subsequently to the President of the Carolina Foothills Garden Club, Leslie Barker.

14. Since then, Cottage Hospitality has communicated the same concerns to the Carolina

Foothills Garden Club and City of Greenville multiple times.

15. After being put on notice of the plumbing and structural issues on the leased premises,

Cottage Hospitality, Carolina Foothills Garden Club, and the City of Greenville had multiple

meetings regarding how the City of Greenville would conduct expansive renovations to the

building in the least disruptive manner to the operation of Mary’s at Falls Cottage. The most recent

of these meetings was held on June 15, 2021.

16. Less than a week after the June 15, 2021 meeting, when City of Greenville contractors

began the expansive renovations, one of the City of Greenville contractors discovered toxic mold

on the property known as Falls Cottage.

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17. As a result, in a letter dated June 23, 2021, Carolina Foothills purported to terminate

Cottage Hospitality’s sublease of the property known as Falls Cottage “by reason of Tenant’s

default in performance of its maintenance obligations.”

18. Subsequently, Cottage Hospitality’s operation of Mary’s at Falls Cottage was suspended

by Defendants.

19. Mary’s at Falls Cottage often hosts wedding receptions, wedding rehearsals, and other high

volume time-sensitive events. And, as a result of the purported lease termination and suspension

of business, Cottage Hospitality has and will continue to suffer significant financial and

reputational damage to its business.

FOR A FIRST CAUSE OF ACTION

(DECLARATORY JUDGEMENT)

20. This action is brought pursuant to S.C. Ann. § 15-53-10, et seq., the Uniform Declaratory

Judgments Act.

21. Justiciable controversies exist between the parties and it is necessary now to determine the

rights of the parties with respect to (1) the nature and scope of the parties right or lack thereof to

terminate the lease agreements; (2) the nature and scope of Cottage Hospitality’s right to access

Falls Cottage for purposes of conducting business or hosting outdoor events as a service of its

existing business; and (3) the nature and scope of the parties’ rights and obligations with respect

to maintenance costs, including repairing and maintaining all structural portions of the property,

and the basic plumbing, heating, ventilating, air conditioning, sprinkler and electrical systems.

22. Cottage Hospitality is a third-party beneficiary of the Prime Lease and is not responsible

for the damages that have occurred due to the lack of maintenance or negligence of Defendants.
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23. On September 4, 2013, the previous tenants executed the First Amendment to the Sublease

Agreement which specifically acknowledges that the parties entered into a new Lease Agreement

dated July 1, 2013, specifically referred to as the “New Prime Lease.”

24. Furthermore, Paragraph 3 of the First Amendment to the Sublease states that the Sublease

is subject to and subordinate to all of the terms and conditions of the New Prime Lease and that

the New Prime Lease is incorporated as a part of the First Amendment as such.

25. The First Amendment to the Sublease Agreement specifically states that “should a conflict

arise between the terms of this First Amendment and those of the Sublease, the terms of this First

Amendment shall be controlling.”

26. According to Paragraph 8.2 of the Prime Lease, the City of Greenville is responsible for

repairing and maintaining all structural portions of the property, and the basic plumbing, heating,

ventilating, air conditioning, sprinkler and electrical systems.

27. As such, the structural damages resulting from plumbing issues, do not constitute repairs

for which Cottage Hospitality is liable under the terms of the lease agreements entered into

between the parties, but constitute items, the correction of which is the responsibility of the

Defendants.

28. Furthermore, Paragraph 19(b) of the Sublease Agreement entitles Cottage Hospitality to

cure any failure to maintain any of the terms, covenants or conditions of the lease within thirty

days after notice or within a reasonable period if the failure cannot be reasonably cured within 30

days.

29. Even in the event Cottage Hospitality is found to be responsible for the alleged damages

that have occurred, which it specifically denies, the lease agreement cannot be terminated because

a reasonable time to cure the damage has not expired.

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30. WHEREFORE, Cottage Hospitality demands an order declaring the respective rights of

the parties to this litigation.

WHEREFORE, Plaintiff prays:

1) For the Court to declare the rights and liabilities of the parties as set forth hereinabove.

2) For the Court to declare that Defendants are ultimately responsible for the structural

damages resulting from plumbing issues.

3) For the Court to declare that Defendants are ultimately responsible for plumbing, electrical,

and mold remediation of the premises.

4) For the Court to declare that Defendant cannot and has not effectively terminated the Lease

Agreement between Cottage Hospitality and Defendants.

5) For attorneys fees and costs.

6) For such other and further relief the Court may deem just and proper.

BANNISTER, WYATT & STALVEY, LLC

s/ Ryan W. Pasquini__
Bruce W. Bannister (SC Bar No. 15679)
Luke A. Burke (SC Bar No. 100033)
Ryan W. Pasquini (SC Bar No. 104493)
24 Cleveland Street, Suite 100 (29601)
P. O. Box 10007 (29603)
Greenville, South Carolina
Phone: (864) 298-0084; Fax: (864) 298-0146
rpasquini@bannisterwyatt.com
Attorneys for Plaintiff

July 9, 2021