"The views and opinions expressed in this newsletter are strictly and exclusively those of this writer, and are not to be interpreted as criticism               
of any other person or institution. Nor are they intended to malign or to express any infamous view of any such person or institution."  RJA             xxxx

THE DOBERMAN INCIDENT

On Monday, July 31, 2006, my daughter Sam and I witnessed a growling Doberman lunge at SSQQ Instructor Bryan Spivey.  The dog is pictured at right.  This incident took place directly under the Sky Bridge on "Chestnut."

I doubt most of you have ever heard of 'Chestnut'.   That is because it doesn't look like a street any more.  'Chestnut' is the parking area that runs directly in front of the studio from Bissonnet to First Street.  At some point in time Chestnut Street was 'loaned' to the Bissonnet Shopping Center for parking use, perhaps back in the Seventies when the studio was once used as a police shooting range.

Even though its identity as a city street has ceased to exist, Chestnut has remained property of the City of Bellaire.  When First Street Surgical Center decided to build a hospital on the former Door Warehouse location, the only way they could connect their two buildings was to add the Sky Bridge over the Chestnut Street area.   In other words, the dog incident occurred on city property.

DEFAMATION LAWSUIT THREAT

As a simple example of the 'tension' I have become accustomed to, you need to understand that the following story about the SSQQ problems with the Landlord was written under the direct threat of a defamation lawsuit.

August 1, 2006

I further would like to direct your attention to the laws in the State of Texas regarding defamation, libel, and slander. If you are to publish any untrue statements, on a web site or any other form of publication, that are defamatory in nature regarding Lenox Hill Holdings, Ltd and/or any of its agents, officers, or employees; Lenox Hill Holdings, Ltd will take all necessary legal action to cure such conduct allowable under Texas Law.

If you have questions regarding what constitutes defamation under Texas Law, I would advise you to see the counsel of your attorney or contact me immediately.

Hugh Jones Plummer, Jr

Plummer and Farmer
Attorneys at Law

What do you suppose it means when someone is worried about being defamed?

I have written extensive stories throughout my web site.  Literally hundreds of stories!  I have had arguments aplenty and I have been called ugly things on several occasions.  But you know what?  Not once have I ever been called a liar.

That said, there are a few things you the reader need to understand before we proceed.

1. Everything I say in this article is strictly MY OPINION ONLY.  For example, later on I will say that I found a hole in the roof.  Then I will say that the discovery of that hole led me to conclude that no roofer in the previous year put any sort of patch on that spot.  That is MY OPINION.  It may turn out that some roofer did attempt a repair on that very spot.  Therefore I am simply saying that what I saw and what I photographed does not prove beyond a shadow of a doubt that a roofer hired by the Varons did not attempt roof repairs.

Or I will say "the construction man APPEARED to give the Doberman slack on the leash so it could lunge at Bryan."  I cannot prove the construction man did anything of the sort.  I simply observed the coincidence that the dog lunged at Bryan just as he passed.

In other words, get used to the phrase "in my opinion" and the word "appeared."

2. I will be the first to admit some of my numbers were just estimates and guesses. 

For example, it may turn out that the CAM increase for 2006 is not between $7,000 and $8,000 as I surmised. It was just a guess. I will simply say that every number I published in this article was my best guess given that I didn't have always the facts at my hand.  This is a STORY about why your tuition is going up. It was not meant as a prelude to a legal fight. 

As another example, in one spot I say that the SSQQ dance floor cost $60,000.  In another spot, I said it cost $100,000. 

First of all, I do not know what the floor cost.  It was a long time ago in the days before I computerized my business records.  Those numbers are not at the tip of my fingers. My memory tells me the floor cost about 20 cents a foot. 6,000 square feet.  You do the math.  If my memory is wrong, then please forgive me.  All I can say is that is the number that comes to mind seven years later.

Here is the explanation behind the contradiction in prices:  SSQQ purchased the dance floor on two different occasions back in 1999.  The first time we replaced the surface in Room 1 and Room 2.  We were so pleased with the results, a year later we resurfaced the rest of the studio.   The $60,000 figure referred to the general area specifically under the roof leak when I emailed Mr. Varon and Mr. Mark Ray on February 1.

My underlying point is: Everything I have said in this document is the truth as I know it.  If I discover a mistake, you have my word I will correct it the moment it is brought to my attention and issue an immediate WRITTEN apology if requested. 

I believe the Varons have the right to present their side of this story if they wish.  Therefore I invite Dr. Varon and Mrs. Varon to say whatever they wish.  I will publish it right below my story.

If they inform me of possible errors, I will either correct the mistake on the spot or at least debate whatever objection they may have.

Rick Archer
August 21, 2006

Introduction

The story about the Landlord/SSQQ Disputes is a long and deeply complex story that covers two and a half years of tension.  To help keep track, I will include a Timeline.

TIMELINE BOTTOM OF PAGE
00	2004 February	Dr. Jacob Varon and Mrs. Haya Varon purchase the Bissonnet Shopping Center from the Kwans
01	2004 June	I meet with Dr. and Mrs. Varon at their request to discuss renting space next door
02	2004 August	I ask permission to use the parking at First Street Surgical for a special event
03	2004 September	I write a letter about the potholes in the parking lot
04	2004 October	I write another letter about the potholes in the parking lot
05	2005 April	Pool Supply moves in next door. The remodeling causes SSQQ huge problems.
06	2005 June	The Babysitting business threatens to tow the cars of SSQQ students.
07	2005 July	The SSQQ Roof Leak Problems begin
08	2005 October	The first SSQQ-Lenox Hill CAM dispute
09	2005 November	The rains return and cause more leaking
10	2005 November	The Varons take away one-third of the parking lot to use for their hospital construction
11	2005 November	The Awning dispute
12	2005 November	I request a meeting
13	2005 November	The Meeting on November 29th
14	2005 December	I ask the question: Were any repairs ever actually done to the roof?
15	2006 January	Heavy rains reveal that nothing was done over the Holidays.
16	2006 January	I write a "Breach of Contract" letter
17	2006 January	Up on the Roof
18	2006 January	The Case of the Curious Membrane
19	2006 February	The Conclusion of the Roof Story
20	2006 March	Return of the Awning Problem
21	2006 May	The 2005 CAM Dispute over a $5,200 surcharge
22	2006 June	I write a letter to Ms. Varon protesting the CAM surcharge
23	2006 July	The Lenox Hill lawyer demands I pay the CAM and warns about a "Defamation Lawsuit"
24	2006 August	I pay my 2005 CAM, send a letter to attorney, and write this article.
25	2006 August	Conclusion to this story
26		Letters to the Editor	BOTTOM OF PAGE

1. JUNE 2004: I MEET WITH THE LANDLORDS TO DISCUSS RENTING ADDITIONAL SPACE

Dr. Jacob Varon and his wife Haya purchased the shopping center in February 2004.  They do business as "Lenox Hill Holdings, Ltd".  I have only met them twice.

Within a couple months after they took control of their new property, Ms. Varon phoned me to inquire about the possibility of SSQQ renting more space.  In particular a barber shop next door to us had come free.  I believe it was June 2004 that the three of us first met. 

We explored the abandoned barber shop next door to SSQQ.  I had gotten my hair cut there on many occasions so I was familiar with the space.  Mostly I was meeting with them as a courtesy.  I already knew I wasn't particularly interested.  Of course I would have loved to acquire more space, but not at the price they were asking. Plus my own business did not feel strong.

The truth was that 9/11 had delivered such a shock to the nation that my own particular business had not yet bounced back three years later.  Consequently our attendance was flat.  With the exception of Salsa, overcrowding in our classes was not an issue.  I saw no reason to assume more space until my business began to pick up again.  

Besides, one more terrorist attack or an outbreak of Bird Flu and I would be lucky to stay in business at all.  Given my current income, the slow economy, and the fear of the unexpected, I felt that adding the space was just too risky. 

I suspect the Varons purchased the Bissonnet Shopping Center for at least one specific reason: they needed the use of the parking lot for their hospital expansion plans. 

The Varons and several investors had acquired the building adjacent to Charlie's Barbeque in 2003.  I do not know much about these investors other than they are rumored to be a group of doctors and plastic surgeons.

They remodeled the building to permit day procedures and named it "First Street Surgical Center". 

Now that the Surgical Center was ready, the investment group wanted to open up a hospital next door in the area once occupied by the Door Warehouse. 

But first they had to overcome an Achilles' Heel: the Door Warehouse location came with virtually no parking space.

They needed parking to make their investment work.

Therefore the Bissonnet Shopping Center became a very valuable asset to acquire in order to obtain parking.

Speaking of parking, back in the days before the Varons came on the scene, parking was never a problem at SSQQ.  For one thing, our students used to park in the parking lot in the area now occupied by First Street Surgical.

However this parking area was quietly declared off-limits when, as part of the First Street Surgical Center remodeling, they constructed an impressive metal fence.  As a result, ever since then this space has remained totally unoccupied during SSQQ business hours. 

One day I wondered if the Varons would share the space with us for a good cause.   I wrote the following letter: 

BACK TO TIMELINE
2.  AUGUST 19, 2004: MY REQUEST FOR PERMISSION TO USE THE FIRST SURGICAL PARKING LOT

-----Original Message-----
From: Rick Archer
Sent: Thursday, August 19, 2004 2:16 PM
To: Haya Varon
Subject: SSQQ Extravaganza August 28

Haya,

I have a big favor to ask.

On Saturday, August 28, our studio is throwing an all-day set of dance workshops to be followed by a dance afterwards.

the last time we threw one of these parties, it resulted in a huge parking nightmare for all the other businesses in the shopping center. here is the story of that fiasco:  Swing Extravaganza

I intend to do everything in my power to keep our students OFF the Front Row of the businesses all day.

Since the workshops will be over by 4:30 pm that day, would it be possible for our students to receive permission to park in the First Street Surgical Center for this one day only?

I would have them put their name on the windshield so we could track them down and I promise they would be gone by 4:30.

I would be so grateful and it would be a terrific boost of good news for our students.

Rick Archer
SSQQ Dance Studio
Houston Texas
 

No response to the above letter was ever received.  I took this to mean "No".

Since my meeting with the Varons regarding the additional space, I had not heard from them in three months.  Other than the monthly invoices, there was no contact. 

In September I included a brief note with my rent payment asking that the bulbs in the light fixtures. I did not receive a response.

3. POTHOLES AND OTHER PROBLEMS I

Wednesday, September 01, 2004


Haya Varon
Lenox Hill Holdings

Ms. Varon,

I spoke with you two months ago about the condition of the parking lot. You asked me to be patient, saying that in sixty days work would begin. The problem has only gotten worse.

Quite frankly, the potholes are now to the point where our customers complain to me daily. I do not expect the entire parking lot to be repaved, but I would certainly appreciate it if the parking lot could be maintained with temporary fixes. It is fairly simple to do a quick patch job.

There are two security lights that are out in front of the building. They are on the lawn that borders Bissonnet Street.

I have many women who go to their cars late at night who have asked me to see if the lights can be fixed. I promised them I would ask.

On a final matter, I emailed you with a question about parking. Whether you received it or not I do not know because I never got a reply. I have your email address listed as xxxx. Is this correct?

Sincerely,  Rick Archer

I never received a reply to this letter.  In the meantime, the place continued to fall apart with neglect.  Here is another letter I sent to Ms. Varon regarding this subject just one month later.

4. POTHOLES AND OTHER PROBLEMS II

Monday, October 11, 2004

Haya Varon
Lenox Hill Holdings

Ms. Varon,

I am concerned over what appears to be an absentee ownership.

The potholes get deeper and deeper.

Even worse, the lights on the property have not been fixed despite my polite request in last month's letter.

I did not receive a written response to last month's letter. Nor did I receive a phone call. Nor did I receive an email.

If it weren't for the rent check request, I would wonder if anyone is even involved in the property any longer.

It remains my wish to conduct the same cordial business relationship that I had with my previous landlord.

If you would be so kind, please email me the date that you intend to fix the lights and an estimated date for the scheduled parking lot maintenance.

My email address is dance@ssqq.com

Thank you in advance for your prompt attention to this matter.

Sincerely, Rick Archer

To my knowledge, no response to my letter was ever given.  Another six months went by.)

I never heard a single word back.

Ms. Cook was not reimbursed for her time.  

Nor was SSQQ reimbursed for the special air-conditioner repair or for the inconvenience to our customers.

This was the first time Lenox Hill Holdings took actions that benefited them, but hurt SSQQ in the process. 

It would certainly not be the last.

BACK TO TIMELINE

6.  JUNE 7, 2005: A TOWING THREAT

In addition to the Pool Supply Company, another business moved in at approximately the same time.  It turned out to be a baby-sitting service.  The first woman I met was extremely aggressive.  She was so angry she demanded I have a car moved immediately or she was going to have the car towed. 

I told her that she did not have the authority to tow a car. I also the punishment far exceeded the crime.  After the confrontation, I wrote a letter to the Landlord.

Here is what I had to say.

TOWING SIGNS

The unpleasant outcome of this event was the dawn of the Towing Sign Era.   Soon we saw a profusion of the ugliest set of towing signs imaginable.  Up and down the sidewalk rested one red towing sign after another.

To my knowledge, not one car has ever been towed from any of these businesses.  However there have been many ugly threats.

The hostility behind these messages is undeniable.  

The graceful solution... and aesthetically pleasing as well... would be to paint on the curb a message like "Parking for Radio Shack Customers Only" and remove these offensive signs permanently.   

The sad part is that none of these businesses seems to understand that I totally agree they have a right to reserve the parking spaces in front of their shop.  There is a massive failure to communicate on all sides and I suppose that includes me.

They see all these SSQQ customers park in front of their business and assume that SSQQ condones it.  Nothing could be further from the truth.  The problem is that some customers who are new to SSQQ get nervous on their first visit and prefer to park as close to our building as possible.  The obvious spots are the openings on the front row.   There is no way SSQQ can police the entire parking lot.  Nor do we intend to hire someone to watch the sidewalk!

However we do have a simple solution.  First, each business should put out a professional sign asking people NICELY (e.g. try using the word 'Please') to respect their space.  Then if someone parks there anyway, all the business has to do is phone our Hall Monitor station and we will go room to room until we find the owner and ask him or her to park someplace else. 

All they have to do is call and they will soon discover there are actually civilized, decent people who work at SSQQ.

This screaming and arguing on the sidewalks should have stopped long ago, but it hasn't.  Nor has Management taken any steps that I know of to deal with the problem other than the solution you see above. 

Sunday night, July 24, after a rainstorm in the area passed through, I noticed a stain in one of the ceiling tiles in Room One.  The picture above, incidentally, is NOT reflective of the problem on July 24.  It is just there as an example.

In fact, the initial stain was very minor.  However Mrs. Kwan had trained me to report all leaks immediately so she could get them fixed before they became a problem. 

Due to her aggressive treatment, this July problem was the first roof leak I had reported in over a year and a half.  That is correct.  We had gone over eighteen months without a stain in the roof. 

In fact, this was the first time I had ever reported a leak to Mark Ray, the building manager. 

-----Original Message-----
From: Rick Archer
Sent: Monday, July 25, 2005 10:12 AM (note: time is estimated)
To: Mr. Mark Ray
Subject: 4803 Bissonnet Roof Leak over ssqq dance studio

The recent storms have punched a hole in the roof so large that we had several ceiling tiles collapse.

Since there is a valuable wood floor underneath the leak, it is imperative that I ask you to aggressively handle this problem.

Our contact person is Linda Cook. She can be reached during the day at 713 294 5277. Or email her to set up a time for her to show your roof repairmen where the leak is.

Thank you.

Rick Archer


-----Original Message-----
From: Mr. Mark Ray
Sent: Monday, July 25, 2005 11:53 AM
To: Rick Archer
Subject: Re: 4803 Bissonnet Roof Leak over ssqq dance studio


I have spoken to the roofer Bill Parish and he will call Linda to set a time to review damage, I believe it will be today.

Mark Ray


-----Original Message-----
From: Rick Archer
Sent: Monday, July 25, 2005 12:16 PM
To: Mr. Mark Ray
Subject: RE: 4803 Bissonnet Roof Leak over ssqq dance studio

Thank you!

Rick Archer
 

Linda Cook informed me she thought the roofers had been by because she thought she heard someone on the roof.  I asked her if they had called her yet.  She said no.  That worried me.  What kind of roofers had they hired? 

This reason I was concerned is that their lack of contact was a departure from the tried and proven method.

My previous landlord, Ms. Kwan, had always asked the roofer to meet with a studio representative so we could let the man in to see EXACTLY where the problem was.  He would get out his measuring tape and make calculations to orient him when he got to the roof.

Using this "Patch Technique" was very effective.  In the twelve years Ms. Kwan managed the Center, we NEVER had one drop of rainwater touch the floor.  Furthermore, after the Varons took over management from the Kwans in March 2004, it would be over a year before we would see another leak.  The Kwans clearly knew what they were doing.

I wondered how was this new roofer supposed to solve the problem without knowing the location of the leak?  So I wrote another email.

-----Original Message-----
From: Rick Archer
Sent: Friday, July 29, 2005 10:45 AM
To: Mr. Mark Ray
Subject: RE: 4803 Bissonnet Roof Leak over ssqq dance studio

It is my understanding that the roofers have been here this week, but no one has contacted Linda to learn of the exact location of the SSQQ leak.

It is a very bad leak. Last night I discovered warping in my dance floor. It is imperative that this leak be fixed ASAP!

Linda's cell phone is 713 294 5277

Rick Archer
SSQQ Dance Studio
Houston Texas

I was unable to locate any response to my concern above in my email records.

Meanwhile, a long drought in the Houston area was broken with further showers.  For the first time in 27 years, water was now falling on the floor.  Bubbles in the dance floor had developed and the wood curved in places from water damage.  Fortunately as the wood dried out, the wood returned to its normal shape, but scarring from the bubbles remained.  I was incensed!

-----Original Message-----
From: Rick Archer
Sent: Monday, August 01, 2005 10:23 AM  (note: time and date is estimated)
To: Mr. Mark Ray
Subject: RE: 4803 Bissonnet Roof Leak over ssqq dance studio

Mr. Ray,

Friday night/Saturday morning (July 30) it rained very hard in the Bellaire area. When Linda Cook was the first to arrive at the studio on Saturday at 3 pm, she found a puddle of water on my dance floor. The floor was bubbled and badly warped.

I would appreciate it if you would fix the leak as soon as possible. You promised me a WEEK AGO to fix that leak, there was nothing but sunshine all week long, and now I have a damaged floor. Your neglect of this problem is unprofessional and has resulted in serious damage.

A review of my previous correspondence plus the pledge from you to do something about it is listed below.

Linda Cook can be reached during the day at 713 294 5277 to show the roofers where the leak is.

Rick Archer

In the following letter below, I read a statement which caused my blood to boil.  In an email to the landlord, Mark Ray actually had the nerve to speculate that I was exaggerating the damage and the threat to the studio.  Unbelievable.

xxBACK TO TIMELINE

8. OCTOBER 2005: DISPUTE OVER 2004 CAM

In early October 2005, I received an invoice from Ms. Varon in the amount of $3,030. 

I was stunned.  In twelve years under the previous landlord, I couldn't remember any CAM surcharge even remotely approaching this amount.  

2004 was not a good year for the studio financially.  Especially after all the problems with the roof and the neglect of the parking lot, this $3,000 bill was a bitter pill to swallow.

What a headache!  Why so much money?  Surely there had to be some mistake.

I took this statement to my accountant.  It turns out there was a mistake.  In fact, there were two mistakes.

First, Ms. Varon didn't add the expenses correctly.

Second, Ms. Varon didn't look at the lease which specified the amount of space for which I would be responsible.

My accountant reduced my bill from $3,000 to $500.

I don't recall any offer to reimburse me for my wasted time or to reimburse the accountant for his time either.

BACK TO TIMELINE

9. NOVEMBER 1, 2005: RETURN OF THE RAINS

At the end of October, Houston's drought broke. Heavy storms came to the area.

I drove to the studio under a heavy downpour.  I walked into the studio.  There in Room One I saw Linda Cook furiously mopping the floor. 

The leak was back.  In fact, this time there was a new leak as well.  Not only had the original leak gotten worse, this new leak was equally as bad.  A good deal of water had already fallen on the floor by the time I got to the studio. If Linda hadn't been there, the problem could have been much worse.

There were no buckets to catch the water. We were under the assumption the problem had been fixed in August.

I was incredulous.  I thought the roofer had fixed the problem.  Didn't I have email assurances from August that the roofer was on the problem?  Obviously I was mistaken.

Now I was starting to get worried.  These people were NOT doing their job. 

BACK TO TIMELINE

10. THE VARONS TAKE AWAY ONE-THIRD OF THE PARKING LOT

About this time, I was having all kinds of problems. 

I was deeply worried why the roof leak had not been properly fixed.  In addition, my life was on semi-hold due to a cancer threat.  My wife Marla went in for exploratory surgery for possible cancer.  Fortunately the surgery discovered that the problem was not serious.  At least here was some good news for a change. 

Including the fears Marla experienced awaiting her surgery, she lived a daily nightmare with Hurricane Rita-related problems from the recent cruise trip (Rita Rhapsody).  Between worrying about her and worrying about this roof, my stress level was off the charts.

As they say, when it rains, it pours.

Adding to my problems was an ominous development:

As you can see in the picture below, a third of our parking lot had been fenced off to permit construction on the new hospital. 

 -----Original Message-----
From: Rick Archer
Sent: Wednesday, November 9, 2005 10:15 AM  (time and date estimated)
To: Mark Ray office buildings; Haya Varon
Subject: Leak


I am checking to see if the repairs on the roof have been completed. I am concerned that no one contacted Linda Cook to see where the second leak was. How can you fix a leak if you don't know where it is?

On a second issue, I am receiving bitter complaints about the loss of many parking spaces. I don't know why it is so difficult to give us any warning about moves that affect our business.

Just how long do you expect these parking spaces to be unavailable? If it is two weeks, I can be patient. If it is two months, that is a different scenario.

Please clarify the situation.

Rick Archer

-----Original Message-----
From: Mr. Mark Ray
Sent: Thursday, November 10, 2005 10:25 AM
To: Rick Archer
Subject: Leak

Mr. Archer,

I spoke to the roofer and he is contacting Ms Cook today and will repair leak today.

Mark Ray

It appeared to me that Mr. Ray had sidestepped my question about the parking lot.  So I asked again.

 -----Original Message-----
From: Rick Archer
Sent: Thursday, November 10, 2005 2:15 PM  (time and date estimated)
To: Mark Ray office buildings; Haya Varon
Subject: Leak


Re the leak, excellent and thank you.

Now I would appreciate an answer on the parking lot situation if you would please.

Rick Archer
 

-----Original Message-----
From: Mr. Mark Ray
Sent: Thursday, November 10, 2005 2:57 PM
To: dance@ssqq.com
Subject: RE: Leak

I know that Mrs. Varon has been very persistent in telling the contractor to do everything he can to limit the impact of the construction on our tenants, I will call the contractor to get the latest update on when they will be out of our parking area.

Mark Ray

BACK TO TIMELINE

11. THE AWNING DISPUTE

Just days after the fence was erected without warning, I received the following email:

-----Original Message-----
From: Mr. Mark Ray
Sent: Wednesday, November 16, 2005 2:50 PM
To: dance@ssqq.com
Subject: Bissonnet

Mr. Archer,

I have toured the property recently with the owner and there are several items that need to be corrected:

Please remove the wood that covers the window as this looks bad and we have had a complaint from one of our tenants, additionally remove the decorations (Halloween) from around your door.

We have gotten 3 bids to replace the awnings that cover Charlies and SsQq. A small portion of the awning will cover your space and your door, Charlie's is going to pay for their portion and the ownership has asked that you pay for your portion of this awning. I believe that your cost will be low as we have gotten numerous bids to try to get this work done as inexpensively as possible.

Please take care of this items as soon as you can and I will forward you proposal for your portion of this awning.

Please call or email any questions you may have.

Mr. Mark Ray

Asking me to pay for the missing awning was the straw that broke the camel's back.   

As a historical note, this awning was installed by the previous landlord sometime in the 1990s.  I did not ask for it nor was I asked to pay for it.  Mr. and Mrs. Kwan simply put it in as part of their remodeling.  There were no CAM surcharges to speak of. 

This awning had been badly damaged by Hurricane Rita which had hit Houston just a month earlier. 

I wondered to myself, "Gee, why wasn't this damage covered by property insurance?  And didn't my CAM include 'insurance' payments?"   So I took a look. Why, Yes, it did! 

My CAM share was one-third of that amount.  I figured I had already paid $2,500.  Why should I pay more?   

I think it is time for an explanation.  I am not a lawyer.  I am a dance instructor.  Although it is correct that I have a college degree, I readily admit I can't read "lawyer-speak" to save my life. It is a foreign language in my opinion. 

The awning problem was another perfect example of our "failure to communicate" relationship.

Over the two year period, there were many emails that were simply left unanswered.  Nor was there any attempt to explain "WHY" they had the right to do anything.  Instead they simply "DID IT".   In this case, they decided it was my responsibility to pay for an awning whether I wanted to or not.

Maybe it is true my lease gave them the right to stick this charge to me.  How would I know?  The lease is 17 pages long and full of lawyer-speak.  If they had taken the time to explain "why" they had the legitimate right to exercise authority in this situation, I would have appreciated it.  It was not the MONEY I objected to.  It was the STYLE

I also wondered why they were more concerned about the awning than fixing my leaking roof!  I grew angrier by the day. 

BACK TO TIMELINE

PRELUDE TO THE SHOWDOWN: MORE RAINS!

When it rains, it pours.  I keep saying that, don't I? 

Three days before our meeting, another storm came up.  My accountant and his wife were planning to be at the meeting with me.  Here is an email I sent to him:

----Original Message-----
From: Rick Archer
Sent: Saturday, November 26, 2005 12:33 PM
To: CM
Subject: saturday rain leaks at ssqq bissonnet

Linda just called to say the roof is leaking in six places. She says she can barely find enough buckets to catch the water. Marla is making a special trip to film the problems.

As you know, I prefaced my letter last week with this urgent message:

Thu 11/17/2005 1:00 PM

"We are still having leak problems. Tuesday's rain brought more damage to the same area in my ceiling. Why your roofer cannot do an adequate job of repair is beyond me. This problem remains a constant threat to my business. Please ask him to try again quickly. As I have stated previously, one serious rain... the kind Houston is always vulnerable to... in the middle of the night when no one is on the premises to spot the danger could cause untold damage to my floors."

Obviously nothing was done.  At what point do we fight back??

BACK TO TIMELINE

13:  NOVEMBER 29: THE MEETING

The meeting I requested took place at SSQQ on Tuesday, November 29.  Six people were in attendance: Dr. & Mrs. Varon, Mr. Mark Ray, myself, my accountant and his wife.

Mr. Ray was at the meeting because he was the building manager.  He had been hired by Ms. Varon to directly interface with me over the previous months.   This meeting was the second time I met the Varons personally.

The meeting was a real eye-opener.  As they say, beauty is in the eye of the beholder.  Up to now, I had always operated under the assumption that my business was a valuable asset. We paid our rent on time, we provided customers for the other businesses, and we rarely complained about anything (at least to the Kwans, that is). For 12 years I had an excellent relationship with my previous landlord.

But now the tension, the frowns, and the crossed arms indicated to me the cordial relationship I had once had with the Kwans would not be repeated with the Varons.  This was the moment I first realized they would probably prefer that I simply pick up my dance business and go elsewhere.

Viewing the situation from this perspective, I realized there was the distinct possibility my landlord could care less about dealing with my problems.

So what if there are potholes?  So what if the roof leaks?  So what if the SSQQ parking space is reduced? 

Then I tried looking at it from the owner's perspective.   What if SSQQ leaves?  Maybe it would be good riddance.  Maybe the studio could be divided up and rented out as office space for wealthy doctors at a far greater rent. Maybe 5 or 6 small offices could be rented out for a lot more money than one big dance studio with too many cars.

Things were clearly not going as I hoped.  I decided to test the water one more time by asking Mrs. Varon if she would consider extending my lease.  She said this was not in her best interests to do so.  Given the drift of the meeting, I was not surprised.

Then I asked Dr. and Mrs. Varon if they had a problem with me exiting the lease prematurely.  At first they seemed a little reluctant, but I got the impression they warmed up to the idea quickly... especially if it was on their terms. 

The writing was on the wall.  The countdown to the end of SSQQ's tenure at 4803 Bissonnet had officially begun.

I thought about moving, then decided we weren't going anywhere.  Our lease did not expire until April 30, 2010.  This place had been my home for 26 years.  I had put up the mirrors, help lay the floors, crawled in the ceiling to string speaker wires, and had extra air-conditioning installed.   I had "removable walls" built throughout the studio, put up pictures, and made the place as comfortable as I could.

This was my home.  I had four more years.

BACK TO TIMELINE

14. QUESTION: WERE ANY REPAIRS ACTUALLY DONE TO THE ROOF?

Two weeks after the late November meeting, another storm appeared in the Houston skies.  This time the leaking problem was worse than it ever had been before. 

Do you ever want to scream at the top of your lungs about a problem that you have no control over?   I had been assured face to face that something would be done shortly, but the evidence indicated nothing had ever been done.  I ripped off another email.

 -----Original Message-----
From: Rick Archer
Sent: Thursday, December 15, 2005 11:28 AM
To: Haya Varon; Mark Ray office buildings
Subject: Serious Leak yesterday

I estimate four to five wheelbarrows worth of water was emptied onto my floor yesterday. There were ponds of water in two places when I arrived. It wasn't just a "drip", water was practically raining inside the studio all night.

Long term solutions like a new roof are called for, but the seriousness of last night's problem leads me to doubt seriously anything has been done since our November 29. Something must be done to fight this immediately. This is the rainy season.

Linda Cook can be reached at 713 294 5277 if you have to get inside the building. Ms. Cook can also be reached by email.   Rick Archer

(Editor's Note:  I did not find any email response to the above email in my In-Box.)

Over the Christmas Break, I hired men to refinish the floors at a cost around $3,500.  Thank goodness all of the previous water damage was repaired by the sanding.  Other than discoloration, the floors were intact.  I wondered how much longer this ordeal would continue.  Now that the floors were fixed, I had to protect them.

Faced with the fact that management appeared unwilling to do anything to the roof on a temporary basis,  I asked my carpenter to build two enormous rain catchers. 

During January, each night when classes were over, I would help the Hall Monitors place these veritable swimming pools on the floor.  What an enormous pain in the butt!

The joke was that I was making a big mistake.  After all, how could I sue for damages and get a new floor if I was working so hard to prevent any damage? 

BACK TO TIMELINE

BACK TO TIMELINE

16: JANUARY 23, 2006: RICK ARCHER WRITES A BREACH OF CONTRACT LETTER

-----Original Message-----
From: Rick Archer
Sent: Monday, January 23, 2006 1:14 PM
To: Haya Varon
Cc: Mark Ray; JS
Subject: Breach of Lease will no longer be tolerated

Lenox Hill Holdings

Dr Varon and Mrs Varon,

I want an EFFECTIVE temporary patch placed on the roof immediately. I want it done by Saturday, January 28, 2006.

The water leak over SSQQ has become intolerable. Last night I watched as a steady stream of water poured down in two different locations - both of which I have written you about on a continual basis since July of 2005.

I have asked politely in the past, but six months of patience has gotten me nowhere. If I had not placed 22 water buckets under the roof last night (Sunday, January 22, 2006), my dance floor would have been completely ruined by the constant drip.

It was humiliating to have 120 customers watch as water poured all night long through two major holes and leaks in four different places. They also didn't appreciate having the room cut in two by my need to rope off the area to keep them safe from harm. Several of them volunteered to serve as witnesses should I be forced to file a lawsuit.

If any one of the students in that room had slipped and hurt themselves, I guarantee you that you would be called upon to pay any claim they might have asserted and would have been a defendant in any lawsuit they might have filed.

I have consulted my attorney regarding this ongoing nuisance. He has confirmed that the lease does indeed require that the landlord is to maintain the roof.

He has also confirmed that, prior to our November 29, 2005 meeting you have already been put on notice, by means of my e-mails and conversations, of the damage being caused to my leased premises due to your breach of the lease by failing to maintain the roof in a watertight condition.

He has further confirmed that with the November 29th meeting and inspection by you of the damage leased premises and your promises at that meeting to make the necessary repairs in a timely manner, you have legally acknowledged your breach of the lease and your obligation to remedy that breach in a timely manner.

However, you have wholly failed to remedy the breach. It rained in the middle of the night on Saturday, December 3, 2005. The water completely saturated my floor before I could get to the studio in the morning. Judging from the extensive damage to my wood floors, it would be evident to a jury, should you not take care of this problem and I have to file suit, that you have not fulfilled your promise to repair the roof.

Additionally, the extensive damage you have caused by your breach of the lease is substantiated by the receipts for repair and numerous photographs, including photographs of the prior December 3, 2005, rain damage.

I spent $3,500 over the Christmas holiday refinishing the floors that were severely damaged on Saturday, December 3, 2005, which are damages for which you are liable and for which you will be sued for if you fail to heed this warning.

I want someone on the roof this coming week of January 23, 2006 and I expect the roof to be fully repaired by the end of the week. Please telephone Ms. Linda Cook at 713 294 5277 and she will show you and your roofer the locations of the newest leaks, as well as the old ones.

Please be advised that if you fail to meet the demand set forth in this letter - stop the water leak completely by the end of this week - I will file suit to recover my damages plus my reasonable attorney fees and expenses of litigation and taxable costs of court.



Rick Archer
SSQQ Dance Studio

Please note you will be receiving a certified copy of this letter shortly.

BACK TO TIMELINE

17: JANUARY 23, 2006: UP ON THE ROOF

My lawyer suggested I take some pictures of the roof just in case the good news of permanent action was a delay trick.  After all, there had been several promises before that had not produced results.

On January 23, the same day I wrote the "Breach of Contract" letter, Bryan Spivey and I went over to Home Depot to buy a tall ladder.  I also had recently acquired a camera at Sam's Club.  

Now, armed with the ladder and the camera, Bryan and I climbed up on the Bissonnet roof.  Call us 'The Drifters'.

The first thing I noticed was a brand new air- conditioner positioned over the Pool Supply company.  I also noticed a huge membrane covering their roof.  I was curious about that membrane. Bryan explained it was a modern technique used for roof repair.  Oh really?

However I was much more curious to find the location of the leaks.  Using the measurements we had taken in Room One, we walked over to the area of one of the leaks.

The first thing we noticed was there was absolutely no sign of any repair whatsoever. Bryan and I looked at each other in disbelief.  This was ridiculous.  

We had a tape measure with us, so we quickly found the spot equivalent to the leak in Room One. It was easy to do because both leaks were so close to the edge of the roof.  The moment we made an exact determination of the correct spot, Bryan spotted something.  He got down on his knees to look closer.  There in the tar was a distinct crack. 

Bryan had discovered a distinct crack in the roof.  He was able to poke his finger into a hole below.  But night was falling fast, so we were unable to get a good picture.  That's Bryan's finger just in case you were curious. 

THE NEXT DAY

That hole was suspicious enough to warrant another look. So on the morning of January 24, I visited the roof alone.
 
The first thing I did was take a closer look at the Pool Supply air-conditioner and the membrane.  The air-conditioner was sitting on a grey "membrane" that was a hundred feet long.

This membrane appeared new.   It seemed like there had been recent work up there.  After all, the workman had not even bothered to clear away the debris created when they installed the new air-conditioner (see picture below at right.)

They simply threw the trash off the roof and cluttered up the alley directly behind SSQQ.  I was actually very curious what had been going on up here.

Mind you this is all conjecture, but I remember wondering to myself if the Pool Supply company had received a roof patch and a new air-conditioner as an incentive in their "Welcome to Bissonnet Center" package. 

Before you jump to the wrong conclusion, I would not be in any way bitter if I discovered my guess is correct.  I like the people at the Pool Supply store.  They have been nothing but gracious to me.  And if my instincts are correct that they have a greater gift of negotiation than I do, then my hat goes off to them.  All I ever wanted from the landlord was to FIX MY ROOF.

Now I walked down to the SSQQ part of the roof.  The area you are looking at is directly over Room One where the leaks were. 

Back when Ms. Kwan's roofer fixed the leaks, he would take exact measurements where the leak was, then hit that spot above with plenty of hot tar and pebbles.  Whatever he did, it worked.  We never had a problem.

Using the exact technique I had suggested to Mr. Mark Ray, I got out my measuring tape, I carefully walked off the distance to the worst of the two leaks.  I have drawn a 'RED X' in the spot where I stopped. 

All 3 pictures are different angle shots of the same spot.  The entire area looked totally undisturbed. Look for yourself. 

Do you see any signs of recent work in any of the pictures? 

Actually, I did see one area that indicated some sort of patch activity.   The picture below is a blow up of that rectangle above.

If I am put on the witness stand, I will openly admit I am no expert on roofing.  That said, to my untrained eyes, this picture above fits my imagination of what a "Patch" would look like.   Unfortunately in this instance, the alleged patch is located above Charlie's Barbeque.  I have no idea how long it had been there.

I saw no such patch over any of the SSQQ roof space. 

Now let's take a closer look at the Red X spot although this time I used an arrow.  If you already guessed that spot is where Bryan and I found the hole, you would be correct. 

Please inspect these pictures closely for any sign of a patch job.  While you are at it, keep in mind I received an email promise to repair the leaks in July, another in August, plus a verbal promise to fix the leaks in November. 

Did you spot any obvious signs of recent roofing repair in this area?   Bryan and I saw nothing that would suggest any work had ever been done in this area.  That is what I would testify in court if Mr. Plummer decided to follow through on his threat.  And let me add that in addition to Bryan and myself, two other men came up with me on different occasions.  Both men saw the same area and both men agreed with me there was no sign of activity.

I saw no sign of recent tar.  There was nothing special about the pebbles.  And there was no raised area that was higher than the adjoining surface to suggest extra tar had been put down as a patch.  

That is the truth, the whole truth, and nothing but the truth so help me God.

THE HOLE

On the previous night, Bryan and I had carefully walked the distance from the edge of the roof over to the same place where the leak was in the SSQQ ceiling tile.  In the darkness, Bryan got down on one knee and poked around.  To his surprise, he immediately found a spot where his finger went straight in. There was only soft sand below!

When I came back the next day, I decided to dig a little with my bare hands.  Mind you, I did not use any tools, just my finger tips.  I discovered the same thing Bryan did - there was nothing but sand underneath covered by a thin veneer of tar.  There was a clear crack in the tar.

It took only moments to excavate a hole the size of a baseball.   This is a flat roof.  The water takes the path of least resistance.  The baseball hole was an open wound. 

Why was there no evidence of work at this spot?  

Seven months had passed. I had been assured the roofers would be up on several different occasions.  Now as I stared down, I could not see one shred of evidence of an attempt to patch this spot even though the most rudimentary  measurements would guide anyone directly to this area.

Bryan found it.  I found it. Two of my friends saw it.  We are amateurs. Why didn't the professional roofers find it? 

Look at the sand.  It is soaking wet.  Imagine that.

AN EMAIL I SENT MY LAWYER REGARDING THE HOLE

-----Original Message-----
From: Rick Archer
Sent: Tuesday, January 24, 2006 4:56 PM
To:
Subject: RE: Your Roof

Thanks for the advice, Coach!

You obviously see that my emails have an edge to them.

At your suggestion, I went back up on the roof at 7 AM this morning to take pictures in the light. Good move. The pictures from last night proved worthless. So much for the flash.

The point is, I went back and stepped off the paces to one of the problem areas. As we discovered last night, there was a sandy spot that was so weak that I dug out a hole larger than a baseball with my bare hands. Water would immediately attack that spot! It is the weakest link in the area.

A roof is supposed to have a hardened surface. I have a difficult time believing ANY WORK has been done up there at all. They sit there and piously talk about how hard it is to find the leak. Nonsense. That hole clearly is the start of one of the roof leaks. Nor could they miss it… it is practically dead center over the leak area below.

Any simple tar job would fix it in a moment!!

I cannot figure these people out. If it is true that they haven't been fixing these leaks, they have an exposure a mile wide.

On a personal note, my style with authority figures has always been to be respectful, reasonable, and courteous. I have a hard time with a relationship like this. I feel like I have no choice but to go on an adversarial path of confrontation.

Thanks for the support.

Rick Archer

BACK TO TIMELINE

18: THE CASE OF THE CURIOUS MEMBRANE

Earlier I said I didn't have any hard feelings toward the Pool Company.  While that statement is true, I should admit I did feel provoked about something.   First, take another look at the picture above to get a good idea of just how long and wide the Pool Company's beautiful 100-foot membrane really was. 

Second, look at the picture below.  Please note that the area with the two water puddles is directly over my dance studio. 

I just shook my head as I made the comparison between the nice dry membrane area and the water hovering like a dagger over my wooden floor below.  The Pool Company stays high and dry while SSQQ stays wet and wild. 

19: JANUARY 30, 2006: THE CONCLUSION OF THE ROOF STORY

My assistant Linda Cook phoned me to say that she had met with the architect and that he had been up on the roof to make inspections.  I decided to share the fact that I was now pretty sure no repairs had ever been made to the leaks I kept reporting.

-----Original Message-----
From: Rick Archer
Sent: Monday, January 30, 2006 10:20 AM
To: Haya Varon; Mark Ray
Subject: update on the ssqq roof problem

I appreciate that someone did appear to be on the roof this past Wednesday. The only problem is that ABSOLUTELY no tar was found by me in either area where the leaks are.

Consequently both of my "swimming pools" were filled with water after Saturday's rains.

Indeed, there is a hole right over where one of the leaks is located the size of a baseball. Obviously this is where the water goes whenever it rains.

Have you given any thought to hiring someone who knows what they are doing? Or perhaps explaining the concept of looking where the leaks are inside the dance studio then putting down the tar right above it?

Those "membrane patches" I see on top of the roof would probably solve the problem nicely if you gave them a try.


I will take Linda Cook up on the roof and show her where I found the hole since obviously your roofer doesn't have a clue. Then I expect the roofer to actually phone Linda so he can be shown where the problem areas are located.

I know you don't appreciate threats so I won't make any. I deeply appreciate that attempts were made. However I can not wait for a permanent fix re Mr. Hightower. It RAINS in my studio. Therefore I respectfully ask that your roofer try again this week unless you have a better idea.

Rick Archer



-----Original Message-----
From: Mr. Mark Ray
Sent: Wednesday, February 01, 2006 12:17 PM
To: Rick Archer
Subject: roof problem

Mr. Archer,

I have forwarded your letter to the owner and I am delivering a letter today that will bring all of the tenants up to date on the time frame for the roof replacement.

We must insist that you and your employees stay off of the roof as this roof is a very high and we don't want anyone to get hurt. Additionally, people walking on the roof could cause additional leaks.

Thanks for your cooperation in this matter.


Mr. Mark Ray



-----Original Message-----
From: Rick Archer
Sent: Wednesday, February 01, 2006 1:59 PM
To: Mr. Mark Ray; Haya Varon
Subject: ssqq roof problem

Mr. Ray,

I will NOT cooperate on your request that I stay off the roof. You have my word on that.

However, rest assured I acknowledge you have given me written documentation asking me not to go up there.

I appreciate your concerns for my health and safety. I assure you when the roof no longer leaks, I will no longer be up on the roof.

If it makes you feel any better, I hereby waive my right to sue for damages if I fall of the roof. That is a risk I take of my own accord because I need to understand why a problem I first told you about in JULY 2005 has not been fixed to my satisfaction. Please keep this email for your records.

However if I fall THROUGH the roof - a serious possibility given the poor condition of the roof - that's another story.
................

I climb up there for several reasons.

First, I am trying to solve the mystery of why your own roofer can't do his job.

Second, I go up there to take pictures as evidence for a possible law suit. I believe I could sue today if I wanted to and that I would win. Did I mention I take witnesses up there so a jury won't have to just take my word for it? While I am up there, I take their picture too.

Third, I am pleased to report I discovered a hole up there. It is right over the spot where one of my leaks is. Why a dance teacher could find it and a trained professional like your roofer could not is beyond me.

There are four explanations:
1) He never tried in the first place until last Wednesday. Based on my photographs, this is a strong possibility.
2) He didn't try very hard.
3) He isn't very good.
4) He never went inside my studio to get a tape measure to get bearings on the two leaks first before going up on the roof like I did.

The bottom line: Someone isn't doing their job and I have proof.
...............

Mr. Ray, it rains inside my studio. IT RAINS INSIDE MY STUDIO.

I am angry because I told you this face to face on November 29, 2005. You PERSONALLY saw evidence of my problem with your own eyes and I doubt seriously you did one thing about it afterwards. I saw no evidence anything was done prior to my certified letter and email 10 days ago.

My lawyer has made one thing perfectly clear to me - the Landlord is currently in breach of contract. Your apathy and neglect is difficult for me to fathom.
...............

However I would rather you simply fix the roof and I will walk away. Please do your job in a timely manner like you are supposed to and this nightmare will go away for all of us.

That said, your current email is NOT VERY ENCOURAGING. It sounds to me like you think emailing us about a time table for a "final solution" is going to win my patience. IT RAINS INSIDE MY STUDIO.

Please throw some more tar up there now. A temporary solution is preferable to doing nothing because I have a $60,000 dance floor right underneath your leaky roof.

I highly recommend you don't wait for the "Final Solution" you allude to in your email below. That questionable strategy is what got you into this fix in the first place. If it rains today and I receive damage, I will sue.

As it stands, have the landlords given any thought to how they wish to compensate me for the damage I have already received?

I have witnesses, I have receipts, and I have pictures. And then there is the penalty for the neglect. If you continue to dilly-dally, you put me one step closer to taking the next step.

So, how about another stab at a temporary patch? If you wish, I will climb up there and personally show you where the problem is. There is a hole up there.

Rick Archer


-----Original Message-----
From: Mr. Mark Ray
Sent: Wednesday, February 01, 2006 3:02 PM
To: dance@ssqq.com
Subject: roof update

I just delivered these notices to the other tenants, there was no one in your space so I will just email it you.

Mr. Mark Ray

February 1, 2006
Lenox Hill Holdings, Ltd.

Dear Tenant:

We are pleased to inform you that we have selected a contractor to replace the existing roof in the shopping center, many of you are aware of the need to do this.

Work will probably start next week, and we are hoping this will cause minimum disruption to your business, with the exception of noise and having people walking on the roof. I have been informed the work will take from two to three weeks because of the amount of work needed to be done.

Should you have any questions please call Mark Ray at (713) 828-0320 or you may reach me at (713) 784-8292. We will try to keep you informed throughout the process.

Best wishes,

Haya Varon
Lenox Hill Holdings, Ltd.

-----Original Message-----
From: Rick Archer
Sent: Wednesday, February 01, 2006 3:57 PM
To: Mr. Mark Ray
Subject: RE: roof update

Excellent. I am very pleased.

In that case, I will stay off the roof.

Rick Archer


-----Original Message-----
From: Rick Archer
Sent: Saturday, February 11, 2006 6:12 PM
To: Mr. Mark Ray
Cc: Haya Varon
Subject: RE: Question

I realize on several occasions I have lost my temper and patience.

However I am also capable of saying thank you.

I deeply appreciate that the problem seems to have been solved.

Assuming there are no further complications, I am prepared to go about my business and put my anger and threats to rest.

Take care.

Rick Archer

Not surprisingly, I received no response to my 'Thank You' note.  I was getting used to no responses.  Oh well.  At least I said 'thank you'.  And I meant it.  Years ago, I had personally gotten down on my hand and knees to help install that floor.  It was an incredible amount of hard work that lasted a week two different times. The thought of ever having to put down that massive floor again just because someone couldn't be bothered to patch a simple hole in the roof was a recurring nightmare that scared me to death for seven months.  Thank goodness it was over.  Maybe my nerves could get some rest now.
BACK TO TIMELINE

20: MARCH 27, 2006: THE RETURN OF THE AWNING PROBLEM

-----Original Message-----
From: Mr. Mark Ray
Sent: Monday, March 27, 2006 2:37 PM
To: dance@ssqq.com
Subject: Awning

Mr. Archer,

I am sure you are aware the awning that you share with Charlie's Barbecue has been missing for several months, we believe the hurricane as one of the reasons. As per the lease, the awnings are the sole responsibility of tenants.

In an effort to work together, the ownership has agreed for this time only to split the cost of replacing the awning with tenant's whose space utilizes this awning: Charlie's and SSQQ. The cost will be based on the actual percentage of the awning used by each tenant.

Total cost of the awning: $2,676.00

Charlie's Portion $1,093.02

SSQQ Portion: $244.98

Owners: $1,338.00

Kindly remit payment of your percentage of the awning to Lenox Hill Holdings, Ltd.

I am sure you have noticed there has been a great deal of money and time expended by all parties to improve the physical appearance of the center, and this repair will help to achieve that.

Please email any questions.

Thank you

Mr. Mark Ray


-----Original Message-----
From: Rick Archer
Sent: Monday, March 27, 2006 5:28 PM
To: Mr. Mark Ray
Subject: policy Awning at Bissonnet Center

Mr. Ray, let me be direct.

The negligence on the part of landlord in fixing the leaks in my roof cost me at least two thousand dollars in damage to my floors.

The decision to remove valuable parking spaces has caused tremendous ill will among my customers as has the constant threat of towing.

The condition of the parking lot has been deplorable.

I asked for the sum of $300 to reimburse my employee Linda Cook for two weeks of her time helping Sweetwater Pools that was ignored.

I had to pay an extra $500 in maintenance fees to fix my air conditioner after the wall work and electrical work that involved the swimming pool company next door caused so much dust that the AC system stopped working.

I was over-billed several thousand dollars on last year's CAM and no apology was made for the negligence nor was any offer made to reimburse me for the need to hire an accountant.

There has been little good will shown towards my business from the onset.

And now you want me to absorb the cost of an awning?

Do you have a problem with me billing for the expenses above?

Rick Archer

I received no response.  So what's new?

BACK TO TIMELINE

21: MAY 2006: THE 2005 CAM DISPUTE

One month later in May 2006 I was informed my 2005 CAM payments (short for Common Area Maintenance) had come up over $5,000 short.   Or to be specific, $5,177.04. 

Suddenly I was supposed to give the landlord an extra $5,000 in return for "Maintenance" which included

• my leaking roof,
• a parking lot full of crater-like potholes,
• a dumpster constantly overflowing with trash,
• the loss of one-third of our parking space,
• threats to tow my customers
• the Pool Company problems.

And now this. 

CAM is an acronym for Common Area Maintenance.  

SSQQ is responsible for the upkeep of the area we lease.  But outside our doors, the landlord is responsible for the upkeep of the building and the premises.  Since all tenants have area that they share - the parking lot, the trash collector, the roof, outdoor lighting, property taxes - the landlord agrees to maintain these areas, then charge each tenant their share of the expenses.

The Bissonnet Shopping Center is approximately 23,500 square feet.  SSQQ is the largest tenant. We occupy nearly 8,000 square feet.  As a result, the studio is responsible for one-third of the entire CAM.  This explains why the studio is so vulnerable. Any time there is an increase in the CAM bill, it affects the studio directly.

The CAM is paid in two ways.  First, the landlord estimates what the next year CAM will be, then divides by 12 months.  The landlord tacks 1/12th of the bill onto the monthly rent. 

Then at the end of the year when all the bills are paid and the dust settles, if the landlord finds the expenditures are greater than the monthly charges, they then tack on a "Surcharge".

Mind you, SSQQ had already paid approximately $17,280 in CAM expenses for 2005.  This was obviously not enough. Now they needed another $5,000. This ran our total to $22,464.  We were now paying practically $2,000 a month in CAM charges.  And this $5,177 surcharge was nearly equivalent to an extra month of rent.

22: JUNE 2006: RICK ARCHER SENDS A WRITTEN RESPONSE TO THE LANDLORD

The $5,000 CAM surcharge was difficult to accept.  I had many objections.  After all the problems the studio had faced - in particular, the negligent way the roof problem was handled and the way the parking lot had been appropriated - I felt the studio was due an adjustment. 

So I decided to speak up.  Here is what I said in a letter to the landlord.

Monday, June 27, 2006

Mrs Varon,

After consulting with my accountant and my lawyer, I think it is in my best interests to contest your recent CAM bill.

Common Area Management responsibilities are your job as landlord. I pay you rent and you in turn are expected to manage the property in a prudent fashion. These responsibilities do not entitle you to a blank check to do whatever you wish.

As your largest tenant, I am obligated to pick up about one-third of the total CAM bill. According to your calculations, this amounts to an increase of over $5,000 from last year. This increase is unconscionable.

ISSUE ONE - ROOF My first issue is the negligent way you handled my request to repair the leak in my main dance room. While I do appreciate the good job on the final repair, this does not in any way excuse the delay. It took you over six months to repair two gaping holes in the roof. Pictures I took up on the roof will prove it is likely either nothing at all was ever done or any work that was done missed the spot. In addition I took two different witnesses who are prepared to support my claim there was no evidence of any repairs done prior to the final repair. Here is an excerpt from my letter to you of January 23, 2006:

"If I had not placed 22 water buckets under the roof last night (Sunday, January 22, 2006), my dance floor would have been completely ruined by the constant drip.

It was humiliating to have 120 customers watch as water poured all night long through two major holes and leaks in four different places. They also didn't appreciate having the room cut in two by my need to rope off the area to keep them safe from harm. Several of them volunteered to serve as witnesses should I be forced to file a lawsuit.

If any one of the students in that room had slipped and hurt themselves, I guarantee you that you would be called upon to pay any claim they might have asserted and would have been a defendant in any lawsuit they might have filed."

ISSUE TWO - PARKING PROBLEMS Second, for over eight months you have deprived me the use of approximately 30% of the parking lot. I have a picture of the parking lot in my lease which entitles my business to use the entire original parking lot. I have a hunch you had absolutely no legal right to use that area without my permission. Furthermore you refused to offer any compensation. You forbade even the simple use of the Surgical Center's unused evening parking space, which would have helped ease the problem considerably. The construction to your hospital has forced many of my customers to park as far as a mile away. You could not even bother to offer a short cut through the Surgical Center parking lot. Instead you close the gates and they had to walk the huge u-turn from First Street all the way to Bissonnet, and then back around to my studio. Several students have been towed for parking at other businesses. Other students have suffered damage to their cars due to the potholes in the remaining parking lot. These problems and the long walks have taken their toll. As a result, the anger and frustration level of my students just grows and grows while there is no end in sight.

May I remind you that your husband promised the construction would be done by Christmas 2005?

This construction has greatly hurt my business. Here is a typical email to illustrate the problem:

-----Original Message-----
From: l knight
Sent: Sunday, April 30, 2006 7:39 PM
To: dance@ssqq.com
Subject: lack of parking

Hey Rick, it's L Knight and I tried to come to the 7-9 p.m. Rhumba Rhapsody class on Sunday night, 4/30/06 and I could not find any place to park. After I got back on that side street I just decided to go home. Maybe next week I will not be such a wimp and park on the street by the new surgical center. I saw various towing signs and got a little cowed too, worrying about getting towed.



---Original Message-----
From: Rick Archer
Sent: Monday, May 01, 2006 5:25 AM
To: l knight
Subject: RE: lack of parking

Parking is a serious pain in the butt these days, but the west side of First Street is legal. When the hospital is done, things should improve. They are only a few months away from completion.

Rick Archer
SSQQ Dance Studio
Houston, Texas

My records show that this woman never signed up for the class. Here is a simple example of a situation where the parking problems you have created have in turn cost me business.

Were I to ask my students to write letters about the parking problems you have caused, I would estimate I could get a thousand complaints.


ISSUE THREE - FAILURE TO COMPENSATE FOR POOL COMPANY CONSTRUCTION

My third issue is the disrespectful way you treated my employee, Linda Cook, last summer, when you expected her to show up for two straight weeks on her own personal time to permit entrance to the studio so the Pool Company could have their construction problems handled. Not only did you fail to reimburse her for her time, this work covered my studio with dust and gaping holes in the ceiling for two weeks. The studio was hot and dirty. My students were miserable.

After the work was completed, I was forced to schedule a special air conditioning repair to clean the dirt out of the air filter.


ISSUE FOUR - LAST YEAR'S CAM PROBLEM

My fourth issue deals with your CAM bill of 2004. Serious mistakes in your statement forced me to hire an accountant to review the bill. His findings reduced the bill by several thousand dollars. I would imagine you might be willing to reimburse me for the expense your error cost me, yes?


ISSUE FIVE - THIS YEAR'S CAM BILL

My fifth issue deals with your current CAM bill of 2005. In your cover letter, you made the following statement:

As you are aware when we acquired the shopping center it was in great need of repair and maintenance. As many of you requested, new lighting was installed to illuminate the parking lot, showing in the statement under electrical for over $5000, which was the best proposal we received.

I was completely unaware of any added lighting. Your letter was the first I have ever heard of this action. I know for a fact that I never made any such request. Until the recent addition of the baby-sitting service, SSQQ was the only business open at night. I find it curious that your largest tenant and the only business with a valid interest in the lighting was not consulted about this addition, yet is expected to help foot the bill. May I ask which lease provision entitles you to make this improvement without consulting me first?


CONCLUSION

Since an increase of $5,000 is a significant increase and the problem is likely to become even worse in the coming years, I will most likely be forced to raise my rates at my own business and pass the expense on to my already aggravated students.

I will inform them of the reason for the raise in tuition in my monthly Newsletter. After being towed, walking miles, dodging potholes in the parking lot, and being rained on, I can't imagine that this news will be greeted favorably.

There are two directions we can go.

I can pursue legal action on the issues above as a means to ameliorate the burden of your exorbitant CAM bill. I can also request an audit. And I can write a letter to my students explaining how this problem will affect them.

A second option is to let you sit down with my accountant and negotiate a compromise settlement that will fairly compensate my business for the damages caused by your construction needs over the past year.

Or if it is acceptable to you, I will simply write a check for $2,000 as a compromise. In addition I will forget about the past problems as water under the bridge and let it be. A fresh start is probably what we both need.


Sincerely,

Rick Archer
 

23: RATHER THAN NEGOTIATE, LENOX HILL HIRES A LAWYER TO ANSWER MY PROTEST LETTER

I never heard a word from Ms. Varon regarding my protest.  But I did receive this response from Mr. Plummer, her lawyer.

August 1, 2006

Dear Mr. Archer,

You are hereby placed on notice that SSQQ, Inc.'s account with Lenox Hill Holdings, Ltd, is currently past due. The outstanding balance on your account is $12,883.04. This amount includes your outstanding July rent of $7,706 and your outstanding CAM balance of $5,177.04. Your July rent was due on or before July 1, 2006, and as of this date your account is thirty (30) days past due. Your outstanding CAM balance is over forty-five (45) days past due.

Additionally, I am in receipt of the letter that you wrote to Ms. Varon, representative of Lenox Hill Holdings, Ltd, on or about June 27, 2006.

Lenox Hill Holdings, Ltd, rejects your offer for a $2,000 settlement on your outstanding balance. Please be advised your letter can constitute an anticipatory repudiation of your lease agreement. As such your letter can be taken as notice of your intent to breach your lease contract with Lenox Hill Holdings, Ltd.

In light of the forgoing, Lenox Hill Holdings, Ltd. wishes this matter to be resolved amicably. Therefore, Lenox Hill Holdings, Ltd will allow you the opportunity to make good on your contractual obligations and will allow you to pay the amount currently outstanding. If payment is made within ten (10) days of your receipt of this letter, no penalty will be assessed.

It is the desire of Lenox Hill Holdings, Ltd to accommodate its tenants and to resolve disputes, such as this one, in as peaceful and as friendly a manner as possible. The amount your company owes, however, is significant and is severely past due.

Further, I would direct your attention to the lease agreement you signed on the 13th day of July, 1998. The lease your company signed was assigned to Lenox Hill Holdings, Ltd when it purchased the property. You are bound by the terms of that lease agreement. If you wish to no longer be bound by this lease agreement, please pay your outstanding balance and give Lenox Hill Holdings, Ltd the requisite written notice of your wish to terminate your lease agreement. All terms and conditions of the lease agreement are set forth in the lease agreement.

Regarding the remainder of your letter and the other issues you raised therein, I would direct your attention to the lease agreement. Specifically, I would direct your attention to article three, section 3.3, article five, section 6.3; and article eleven. The aforementioned sections of your lease agreement should adequately address the questions and/or issues you raised in your letter.

I further would like to direct your attention to the laws in the State of Texas regarding defamation, libel, and slander. If you are to publish any untrue statements, on a web site or any other form of publication, that are defamatory in nature regarding Lenox Hill Holdings, Ltd and/or any of its agents, officers, or employees; Lenox Hill Holdings, Ltd will take all necessary legal action to cure such conduct allowable under Texas Law. If you have questions regarding what constitutes defamation under Texas Law, I would advise you to see the counsel of your attorney or contact me immediately.

Please be advised that all rents outstanding, such as your August rent, are to be paid timely, and pursuant to your contractual agreement with Lenox Hill Holdings, Ltd. you should be in receipt of an invoice for your upcoming August rent. If you have not received your August invoice, please do not hesitate to contact me.

Lenox Hill Holdings, Ltd would like to thank you in advance for your cooperation regarding this matter. If you have any questions or comments regarding this letter or the amount you owe, please do not hesitate to contact me directly at 713 524 2400.

Please forward all further correspondence and communication regarding this matter to myself or my office. Please do not contact Ms. Varon or Lenox Hill Holdings, Ltd about this matter until this matter has been resolved.

Hugh Jones Plummer, Jr

Plummer and Farmer
Attorneys at Law

Hugh J (Pete) Plummer
Michael D. Farmer
______________

Hugh J. Plummer, Jr.
 

24: AUGUST 2006: UNDER THREAT OF LAWSUIT, I SEE NO CHOICE BUT TO KNUCKLE UNDER AND PAY UP.

Monday, August 07, 2006

Hugh J. Plummer, Jr.


Mr. Plummer,

I hereby submit my 2005 CAM payment in the amount of $5,177.04.

The outstanding rent problem of $7,706.00 has also been paid. My wife sent a check in this amount to Ms. Haya Varon on Friday, August 4. It turns out that Ms. Varon billed us for our monthly payment twice in an eight-day period. Typically requests for monthly payments come in a month apart. Therefore the second bill confused my wife because she had just finished paying the first bill a couple days earlier. She assumed the second bill was a "second request" for payment and consequently overlooked it.

In the past, our landlords have typically billed us once a month, not once every 8 days. Nor have we ever received a threatening letter from an attorney like you before to collect. A simple phone call would have been a nice courtesy. Nevertheless we acknowledge our mistake.

My wife has already apologized to Ms. Varon for the mistake by phone. I too regret the incident since we make an effort to pay all bills in a timely fashion… that is, bills that are not under dispute.

A CAM overcharge of $5,000 places a serious burden on my business. I deeply resent the manner in which the building is being managed. As an example, a light fixture was installed without my knowledge and billed to me… as part of my pro-rated CAM responsibility, I would estimate this raised my bill over $1,700 for something I wasn't even consulted on. This kind of unilateral action has very disturbing implications.

As you know, I wrote a letter dated Monday, June 27, 2006, asking the landlord Ms. Haya Varon to consider abating the cost considering the hardships her business actions have placed upon my business over the past two years. However her solution was to solve the problem in a peaceful manner - rather than sit down and discuss the problems with me, she found it easier to resolve things in an amicable way by hiring you to write me a threatening letter.

Your letter is very effective. I consider myself warned. Therefore I will pay up.

That said, I would like for Ms Varon to furnish my accountant the opportunity to audit the CAM bill. As you know, the right to audit is a common provision in leases with a CAM feature. This is an important request. Last year, Ms. Varon made an error of $2500 in her 2004 CAM bill to SSQQ, Inc. Based on this history, perhaps the exorbitant $5,000 CAM overcharge could be reduced by an audit.

In the meantime, Ms. Varon's refusal to negotiate leaves me little choice but to pass these costs on to my customers. Like any significant rate increase, I risk a customer backlash unless I carefully explain the reason behind the increase in tuition for 2007.

I of course acknowledge your well-written threat of a defamation lawsuit and understand you have instructed me to stick to the truth. You have my promise that it is important to me to tell the story about the CAM dispute in a truthful manner.

Mr. Plummer, you were even kind enough to offer your advice on said matter ("If you have questions regarding what constitutes defamation under Texas Law, I would advise you to contact me immediately"). I appreciate that offer and I think I will take you up on it.

I would like your opinion on the CAM Protest letter I wrote to Ms. Varon dated Monday, June 27, 2006. In your opinion, was there any phrase or passage in that letter that would constitute defamation under the laws of Texas? If so, please enlighten me

Your prompt response to my question would be appreciated. On the other hand, if you have no objection, then I intend to print that June 27 letter in my next Newsletter in its entirety. My customers have a right to know why their tuition is being increased.

Thank you,

Rick Archer
SSQQ Dance Studio

These 2006 increases have taken our overall rent from $7,060 at the start of the year to $7,700 at present.  This projects out to an increase between $7,000 and $8,000 for 2006.  And to think I resented the jump of $5,000 last year! 

Looking at this another way, the SSQQ rent has risen at least $13,000 in two years... an increase that averages out to over a thousand dollars a month... with no end in sight to the increases. 

Yes, SSQQ is a successful business, but if left unchecked, the rate of these CAM increases threatens to turn us into a non-profit organization.