Panera can locate in Liberty Square, Putnam judge rules

WINFIELD – A circuit judge has signed a motion that paves the way for a Panera Bread to be constructed in a Putnam County shopping center that was being fought by Applebee’s.

Putnam Circuit Judge Joseph Reeder signed the agreed order May 15 in a lawsuit filed in January by Four-S Development LLC, the parent company of Liberty Square Shopping Center against Neighborhood Hospitality Inc., doing business as Applebee’s Neighborhood Grill & Bar at Liberty Square.

Reeder’s order says Four-S is entitled to declaratory judgment, meaning it can secure a Panera Bread in the shopping center.

When Four-S began the process of leasing and locating a Panera Bread bakery and café in the shopping center, the Applebee’s franchisee said it believes such a move would violate the covenant signed in 1996.

Four-S disagreed, saying Panera wasn’t similar to Applebee’s for a variety of reasons, most notably that the examples listed in the covenant – such as TGI Friday’s, Ruby Tuesday’s, Chili’s, O’Charley’s and Max & Erma’s – serve food and wine, beer or other alcoholic beverages. Panera does not.

“Panera Bread bakeries and cafes, no matter where located, do not serve food and wine, beer or alcoholic beverages,” the original complaint stated, noting other differences. “Panera Bread does not offer: white linen table cloth service or cloth napkins, wait persons taking orders and serving patrons tableside and otherwise attending to patrons’ needs and requests; or steaks, ribs, chops, hamburgers, fish and side items offered by defendant …”

In Reeder’s order, he mentions a signed affidavit by Robert Fiorino with Alcadan LLC, which would be the franchisee for the Panera Bread.

In that affidavit, Fiorino says his company is prohibited from selling and/or serving alcoholic beverages, including beer, wine and spirits in its more than 200 Panera Bread locations in Ohio, West Virginia and Florida.

Fiorino also states that Alcadan “is in the process of negotiating a lease and locating a Panera Bread Bakery-Café restaurant in Liberty Square Shopping Center in Putnam County, West Virginia.”

In a memorandum, Four-S says the defendant “has failed to produce or demonstrate any ‘concrete evidence; or ‘probative evidence’ which contradicts the facts and matters documented” by the plaintiffs.

In Reeder’s order, he writes that the plaintiff’s leasing and locating Panera Bread in Liberty Square “does not violate the Restrictive Covenant.” It also says the defendant waives its right to appeal, and the plaintiff reserves the right to seek court costs and attorney fees.

Four-S is represented by Jonathan Nicol of the Charleston office of Kay Casto & Chaney. Neighborhood Hospitality is represented by Bradley K. Shafer of Swartz Campbell LLC in Wheeling.

Putnam Circuit Court case number 14-C-15