FEATURE ‌ That's a Wrap 

Yo Burrito! settles lawsuit with CofC

click to enlarge A somber Nick Powers harrumphs last year outside former home of his mexican restaurant, Yo Burrito!
  • A somber Nick Powers harrumphs last year outside former home of his mexican restaurant, Yo Burrito!

Reality popped Nick Powers in the mouth last week, and nothing — not his coat and tie, his super-hero sounding name, nor the $500,000 he's spending on retrofitting a new restaurant space — could save him from the punch.

Three years of tangling with the College of Charlestonand two attorneys couldn't change one simple fact — hehad already lost. The only question that remained was by how much.

Standing in front of a fourth-story window at the Charleston County Courthouse, surrounded by his lawyers telling him in whispered tones that all was not lost, that he could still salvage some sort of dignity from the process, the crestfallen look on Powers' face said it all.

He had read between the lines, doped the form, and heard the word on the street. Now was not the time for victory or dignity; now was the time to settle and recoup whatever he could.

For the past three years, Powers had been fighting the college, initially over whether it could expel his Yo Burrito! casual dining spot from a building on the corner of St. Philip and Wentworth streets several years before his lease was up. Ultimately, he fought the college over the amount it might owe him for closing his restaurant and bar.

With the college invoking the state's power of eminent domain, Yo! was forced to go and Powers lost the most profitable of his three restaurants. The college gained a new School of Education building as part of its comprehensive facilities plan.

Having lost the initial battle, Powers hoped to win the war by having the college pay him for what an appraiser said lease-hold value was worth: $155,000.

The college fired back with an appraisal of its own of about $27,000.

Powers tried to work it out with the college, but the span between the two numbers was too great; they would have to go to court. During the discovery phase of the trial, Powers' team found what it hoped would be a magic bullet.

The college had received another, much higher appraisal for $113,000 in May of 2003, which it didn't reveal until the discovery phase of the trial in March of 2006.

Powers was incensed. Why had the college kept this from him? Wasn't he a taxpayer? Had the school played fair keeping mum until this spring?

Had the college presented him with that appraisal, something could have probably been worked out. But it was already too late for that. A court date had been set. The fight was on.

And then it was over.

The judge hearing the case last week showed substantial interest in an issue Powers' side thought had already been decided. The lease Powers had signed with the previous owners included a clause that waived his right to compensation if the lease was severed due to the sale of the building.

Powers felt that because the building had been condemned and taken over by a state organ, the clause didn't apply.

But because of the judge's reactions to the clause, it became apparent that the building had been sold, the lease had been severed, and Powers may have wasted years and tons of money.

The judge cleared the court so both sides could get serious work done settling the lawsuit.

Powers was flabbergasted. If the school knew it was going to argue that it owed him nothing, why did it go through the motions of settlement discussions, he wondered.

But, Powers is not blameless in all this. For all of his complaints that the college had been unreasonable, offering him so low a settlement, his first request for $700,000 may have been just as ridiculous.

Powers defends his mediation offers, which eventually dropped to $225,000 after he got a new lawyer — a lawyer specializing in this kind of situation, saying that he included a raft of expenses he would have to face not covered by either of the school's offers.

Last week, faced with snatching defeat from the jaws of victory in court, Powers wanted $130,000. "You're not going to get $130,000," came back the response from one of his lawyers.

In another part of the courthouse hall, another one of Powers' lawyers approached Chris Murphy, the attorney representing the college and who had ordered the appraisals, and started spitting out numbers.

Murphy, mindful of a reporter sitting a few yards away with a notepad and pen in hand, began quietly sketching out an outline of how much money the college was still willing to part with. Eighty thousand was out of the question, and something in the mid-60s more likely.

Murphy would later say the only reason the college went forward with the settlement was because it appeared to be the quickest path and that it was worried what a jury might do with the case.

Back in the courtroom, before the court was brought back into session, Murphy defended the school's decision not to inform Powers of the second, higher appraisal, saying it had come in after he had sued the college, and that it had been reduced to $90,000 by the actual condemnation date.

In fact, the college had allowed Yo Burrito! to stay in its old spot for its last 10 months rent-free, a $30,000 value.

Powers soon took the college's final offer, $95,000, and the jury was thanked for its time and patience.

And then Powers, for the first time in three years, clammed up.

As part of the deal, he agreed not to take part in any action that would bring further bad publicity on the college — which had gotten pretty bad at times, considering this was the first working business the facilities-strapped school had ever closed in its 236-year history.

Powers would say that the amount covered his legal fees and resulted in a "net zero" sum for him to apply toward his new space, set to open sometime this week once it gets its gas permit — ironic for a Mexican place.

He and a partner recently purchased the building where the new Yo! will go, 77 Wentworth, for $2.25 million.

His Wentworth Street business isn't the only one going through change these days. The day Powers settled with the college, 52.5 Records owner Clay Scales was going through what was left on his shelves, handing out little gifts to old friends and well-wishers.

Scales' boho new and used music store will be closing May 15 after nearly 10 years on Wentworth, the result of a mutually-advantageous buyout between him and his landlords. Scales decline to comment on the deal, other than to say he was happy with it, and that he was still looking for a spot. The next day, Scales closed up shop for a single day, presumably to review a lease on a new space.

An even bigger change could be coming to the same stretch of Wentworth between King and St. Philip streets. Monica Scott, the CofC vice president in charge of facilities who led the effort to take over Yo!'s old spot, confirmed last week that she had a "casual conversation" with the owner of the Kress Building, a huge building that also fronts King Street.

Stressing that the college had no immediate plans to take over the building, a former department store, Scott did allow the school was interested, even though she had promised in the past that the school wouldn't be moving onto King Street.

"We're pretty much keeping to the commitment we made with our neighbors to stay off King Street as much as we can," says Scott. "We recognize the city wants to keep King Street commercial."

Nick Powers has heard that line before, back when he was griping that the college could use eminent domain to take over Charleston Place as a dormitory. Still wondering if the fight was worth it, he says he could have used the time, energy, and money he spent to open another restaurant.

"I don't want to sound like I don't like the college or don't appreciate it; it makes up 25 percent of my business," says Powers.

Too late, Nick. Too late.

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