Jimmy John's Fighting Eviction for Courthouse Project

Owners of the sandwich shop in Kent are fighting the restaurant's eviction to make way for the project planned for the shop's East Main Street property.

The owners of the restaurant building and site, Schweigert Properties Inc., filed an eviction notice Nov. 15 in Portage County court after the restaurant's franchisee failed to give a six-month notification that they wanted to renew the restaurant's lease, which expired Oct. 31 of this year.

Dave Lowry, the attorney for the restaurant's owners, said the case — which has motions filed in courts in Portage County, Summit County and now the Ohio 11th District Court of Appeals — is far more complex than it looks.

"My principle issue in this case, the heart of the case, is whether or not my client's lease should be allowed to be renewed," Lowry said. "If they are, then the eviction action doesn’t mean anything."

According to the restuarant's lease, if they wanted to renew the lease they had to file notice with the property owner six months in advance of the Oct. 31 expiration date.

Lowry acknowledged that the restaurant franchisee, SMJJ II, LLC, didn't filed the extension notice before the six-month window. So Sept. 29 he asked a Summit County judge for a declaratory judgment action to determine whether or not the lease should be allowed to be renewed despite missing the notice deadline.

Lowry argues that Schweigert knew his clients had every intention of staying at the Kent location after investing more than $400,000 in the business.

"My client’s argument is, when we did this thing we knew we wanted to stick around longer," Lowry said. "We wouldn’t have invested the kind of money we would have in this thing … everybody knew we were going to stick around."

Akron attorney David Hilkert, representing Schweigert Properties, said the case is clear cut in the sense that the restaurant's owners simply failed to understand and execute their lease terms properly.

"They did not do so, and now they’re just holding over even though the lease was terminated," he said. " I think, as a business, you’ve got an obligation to do what you’re required to do under a contract."

Hilkert said Schweigert had previously negotiated with Jimmy John's about the property's fate, but he declined to talk specifics about what kind of assistance the property owner offered to the tenant.

"Our position is that what has been offered to (Jimmy John’s) is reasonable," he said. "I know they can work with the city on other sites and things like that. I know they’ve been referred to the proper people."

Meanwhile, the eviction notice filed by Schweigert Properties in Portage County earlier this month is scheduled for a 9 a.m. hearing Monday, Dec. 5, in the before Portage County Municipal Court Judge Kevin Poland.

As a result of both cases, Lowry asked the district court of appeals Thursday to intercede and tell Portage County court officials not to take action because the jurisdiction for the case lies in Summit County, where Schweigert Properties is based and where the first case was filed.

Lowry said he doesn't think a Portage County judge should be hearing the eviction case at all because of the property's connection to the future courthouse plans.

"I think the Kent court has an inherent conflict of interest and shouldn’t be hearing the case," he said. "The municipal court of Kent is hearing an eviction action which is determining if they get the location they’ve selected for their new courthouse. It seems to me the municipal court of Kent shouldn’t be determining an eviction action that deals with their potential location they’ve wanted for years."

Hilkert said a possible solution would be for Portage County to bring in a visiting judge to hear the case. He argued the jurisdiction lies here because the property is within Portage County.

"Courts often appoint visiting judges," he said. "I certainly would not oppose it."

Lowry said he is hopeful Poland will recognize the appearance of the conflict regardless of whether an actual legal conflict of interest exists.

"I think the best argument is … let another court hear the issue," he said.

Portage County Commissioners voted in August to partner with the city on a land exchange that would involve city officials buying the East Main Street site and then trading it to the county for the existing courthouse property on South Water Street.

The land swap deal came after years of debate over a new Kent courthouse location — a debate that intensified earlier this year as city officials offered several options to county leaders to try and nail down a spot.

Despite the lease expiration, it was Friday morning for the Kent restaurant, which continues to make and deliver their "freaky fast" sub sandwiches.

The Record-Courier reported this morning that county officials authorized moving forward on architectural and other plans for the courthouse despite the multiple court filings.