Skinny Pancake Turning to N.H. Supreme Court for Right to Buy Hanover Building

  • Lilly Duda pours water for Skinny Pancake customer Emily Husson, of Franklin N.H., on Aug. 28, 2017, in Hanover, N.H. (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

  • Jim Rubens, of Hanover, N.H., answers a question during an interview in Concord, N.H., on Aug. 17, 2016. (Concord Monitor - Geoff Forester)

Valley News Business Writer
Sunday, December 02, 2018

Hanover — The Skinny Pancake is taking its beef with its landlord to the New Hampshire Supreme Court.

The Burlington-based restaurant, which opened a creperie in the Hanover Park building on Lebanon Street in 2016, has been waging a two-year legal battle out of the public limelight against Hanover Park owners Jim and Susan Rubens, alleging the Etna couple — through their limited liability company, Crotix — failed to honor an option Skinny Pancake had to acquire the building for $5.6 million.

When the Rubenses declined Skinny Pancake’s offer, the restaurant sued its landlord in Grafton Superior Court, alleging breach of contract and four other claims, including fraud and failing to act in good faith.

Over the ensuing two years, the court dismissed two of the claims, another was subsequently waived by Skinny Pancake and the principal claim — breach of contract — was ruled in partial summary judgment in favor of the Rubenses. Finally, in September, Superior Court Judge Peter Bornstein dismissed the final outstanding claim of breach of implied covenant of good faith and fair dealing.

But, despite the loss at the trial court level, Skinny Pancake isn’t giving up.

Last Monday, the restaurant filed notice that it was appealing its case to the state Supreme Court.

The court generally accepts all appeals, although how it handles a particular issue — whether by oral argument or based on written briefs alone — varies from case to case.

The docket of the legal fight between Skinny Pancake and Crotix at Grafton Superior Court involves some 90 filings and counterfilings and reaches more than 2 feet tall when stacked vertically. Many of the filings and lawyer arguments deal with technical aspects of contract law.

But the essence of Judge Bornstein’s decision in dismissing the breach of contract claim is that Skinny Pancake’s exercise of its option to buy Hanover Park from Crotix did not represent an “unequivocal, unconditional” offer as called for in the option agreement.

In his partial summary judgment (a summary judgment is a court action when no underlying facts are in dispute) dismissing Skinny Pancake’s claim, Judge Bornstein noted that the offer to buy the building included a 90-day due diligence period and the right to terminate the deal if due diligence revealed something unacceptable to the buyer.

“Because the plaintiff (Skinny Pancake) did not exercise the option unconditionally and in accordance with its terms, the plaintiff’s ... attempt to exercise the option was ineffective and, therefore, the defendants (Crotix/Rubens) are not obligated to sell the property to the plaintiff at the time,” Judge Bornstein wrote in his partial summary decision in July.

Skinny Pancake, in its appeal, has asked the state Supreme Court to review whether the Superior Court erred in six separate decisions it reached over the course of the two-year litigation.

Jim Rubens, who built Hanover Park in 1990 and has been active in Republican state politics, serving in the New Hampshire state Senate from 1995-99 and who ran for governor in 1998 and has made a couple attempts at running for U.S. Senator, said he purposefully has remained quiet about the legal dispute because he and his wife “didn’t want to aggravate or harm anyone.”

“This is unfortunate. This is not something we wanted,” he said of the lawsuit.

The Skinny Pancake, which originated when brothers Jonny and Benjy Adler began peddling crepes on the streets of Burlington in 2003, opened its first restaurant in 2007 and now has four locations in Vermont. The eatery opened its first New Hampshire location in 2016 when it took over 4,000-square-feet of space formerly occupied by clothing store Essentials for Men.

Jonny Adler said the Skinny Pancake, despite the setback at the Superior Court level, is not giving up the legal fight and signaled the restaurant’s commitment to the town.

“We love Hanover,” Jonny Adler said in an email to the Valley News. “Our long-term commitment to the community was a driving factor in adding the purchase option to our contract. This is a business dispute, which we think is best left to the courts to resolve.”

John Lippman can be reached at jlippman@vnews.com.