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Wednesday, 04 April 2012 12:31

Some sushi with that pedicure? Suit pitted neighboring businesses over alleged ‘noxious’ fumes

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A sushi restaurant in Waynesville lost a protracted legal battle last month after accusing a neighboring nail salon of driving away its diners.

Saki Sushi claimed fumes from Tweety Nails hurt its bottom-line. Litigation dating back two years culminated in a nearly two-week jury trial in March, ultimately exonerating the nail parlor as the sushi joint could not prove that the smell negatively impacted the restaurant — or even that the nail salon was the origin of the smell.

“It’s a relief. It’s indescribable,” said Steve Nguyen, husband of Tweety, who owns Tweety’s Nails.

The two businesses leased storefronts next door to each other in the K-Mart strip mall on Russ Avenue.

Janet Green, owner of Saki Sushi, which had been there first, claimed “noxious odors and chemicals” began emanating from the nail salon shortly after it opened in fall 2009.

The court-filed complaint by Saki Sushi claimed that the smell interfered with Green’s ability to enjoy the property, among other charges, and sued the salon for as much as $60,000. The restaurant also sued its’ landlord.

But, Nguyen said he believes the lawsuit was retaliation. He and his wife at one time expressed an interest in buying Saki Sushi from Green.

Nguyen said that there is no smell in the building now that Saki Sushi has moved to a location on Howell Street.

On at least a couple of occasions, Green called the police about the smell, and on more than several occasions, she asked employees from the nearby Radio Shack to come into her restaurant and tell her if they smelled anything.

During the trial, at least one witness stated that he noticed a strong acrylic-like odor while in the restaurant. Another witness said her coworker couldn’t eat at Saki Sushi with her because he was sensitive to the smell.

However, the witnesses did not know when the smell started and could not definitely connect the stench to Tweety’s Nails.

One witness testified that the odor was considerably less noticeable and possibly different from the fetor wafting from Saki Sushi. Although Green consulted others about the smell, including the Waynesville police, “Mrs. Green admitted that she never even complained to Tweety about the smell,” said Mark Melrose, attorney for Tweety’s Nails.

All sides attempted to settle the issue through mediation but gave up on resolving their differences early last year. The case finally landed in court last week.

After hearing the evidence presented in the case, Judge Mark E. Powell dismissed all of Saki Sushi’s claims, except for its nuisance claim against the nail salon. Within 20 minutes, the jury returned with its verdict, Melrose said. The jury found no validity to the claim and did not award Saki Sushi any damages.

When considering a nuisance claim, Melrose said a jury must also decide if the business benefits the community.

“Every little thing that bothers you is not a lawsuit,” Melrose said.

For example, it would be extremely difficult to claim legally that the paper mill in Canton is a nuisance because is a crucial part of the town’s economy.

“If you ask people in Canton, they say it smells like jobs,” Melrose said.

Although the case is finally settled, Tweety’s Nails plans to sue Saki Sushi for the more than two years worth of court and attorney fees.

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