Lawsuit: Pizza war in Lansdowne
By Jana Wagoner
At the Lansdowne Town Center, two restaurants – Emilio's Brick Oven Pizza and Not Your Average Joe's – face each other, separated only by a sidewalk.On any given evening, you can stroll through the town center and observe patrons dining at both places.
From the outside, the two appear to be amicable neighbors. On the inside, they're anything but.
Emilio's has filed a lawsuit in Loudoun County Circuit Court against Not Your Average Joe's, claiming the restaurant is selling brick-oven pizza, a right that Emilio's purchased exclusivity to in its contract with retail developer Saul Holdings Limited Partnership.
The exclusivity provision says that the “Landlord shall not lease any portion of the Project for use as (i) a restaurant whose principal business is the operation of a table service Italian restaurant or (ii) a restaurant serving brick oven pizza.”
The provision also says the “Landlord shall be permitted to enter into a lease with any tenants that serve pizza, but not brick oven pizza.”
Therein lies the problem. Not Your Average Joe's says it does not serve brick-oven pizza.
As described from the menu, Not Your Average Joe's pizzas are “hand stretched and baked in the stone hearth forno at up to 700 degrees, locking in the bold, fresh flavors.”
The stone hearth forno, made by the company Wood Stone, is not built with bricks.
“It is not brick-oven pizza,” said Thomas Connally, the attorney representing Not Your Average Joe's in the case.
“We don't think there's any basis to [Emilio's] claims,” he said.
Mark Moorstein, attorney for Emilio's, disagrees.
Brick-oven pizza, Moorstein said, is baked in a natural oven with open doors with a dome that has convection heat. The heat rises to the top, hovers for a bit, then radiates down instead of coming out of the oven.
The stone hearth forno uses the same process even though it uses stones instead of bricks, Moorstein said.
“Brick oven is kind of a generic name,” Moorstein said. “... A rose by any other name is still a rose.”
He said his client is paying for an exclusivity provision that Not Your Average Joe's is violating.
Not Your Average Joe's contract includes a covenant that says it is not allowed to sell brick-oven pizza since Emilio's has purchased the exclusivity for that.
Moorstein claims that the covenant makes Emilio's a third-party beneficiary in the contract between Not Your Average Joe's and the developer.
A third-party beneficiary is someone who may have a right to sue on a contract even though it is not one of its original parties.
In court documents, Connally claims that Emilio's is not a third-party beneficiary in the contract, so there is no basis for the lawsuit.
According to court documents, management at Emilio's said the restaurant has lost a lot of business since Not Your Average Joe's opened.
“As a result of Joe's tortuous interference with Emilio's business, Emilio's has suffered $600,000 in compensatory damages, including lost profits,” said a court document filed by Emilio's.
Since Not Your Average Joe's is a chain, it is able to sell pizza at cheaper prices than Emilio's, Moorstein said.
Emilio's is seeking $600,000 from Not Your Average Joe's, as well as an order for it to not sell the kind of pizza it currently sells.
Not Your Average Joe's wants the judge to drop the case and force Emilio's to pay all court costs and attorney fees.
If the case proceeds to trial, Moorstein said it could include testimony from brick-oven pizza experts and a juror taste test of the restaurants' pizzas.
A demurrer hearing is set for June 6 when Not Your Average Joe's will try to persuade a judge to drop the suit.
Contact the reporter at jrenn@timespapers.com