Court of Appeals of Ohio, Eighth District, Cuyahoga
OHIO VALLEY BUSINESS ADVISORS, L.L.C. PLAINTIFF-APPELLEE
AER INVESTMENT CORPORATION DEFENDANT-APPELLANT
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Dorothea J. Kingsbury
ATTORNEY FOR APPELLEE Jack S. Malkin 20521 Chagrin Boulevard,
BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE
Defendant-appellant, AER Investment Corp. ("AER"),
appeals from a judgment in favor of plaintiff-appellee, Ohio
Valley Business Advisors, L.L.C. ("Ohio Valley), in the
amount of $28, 976.16. AER raises two assignments of error
for our review:
1. The trial court erred in finding that a valid contract for
the contingent purchase of appellant's business existed
with K9 Playtime, L.L.C.
2. The trial court erred in reaching a conclusion that was
contrary to the manifest weight of the evidence.
Finding no merit to AER's arguments, we affirm.
Procedural History and Factual Background
The undisputed facts from the relevant contracts and trial
are as follows. Since 2009, AER owned a franchise business in
Highland Heights, Ohio, known as Camp Bow Wow. On April 4,
2014, AER sold the assets of Camp Bow Wow back to the
franchisor, DOG Development, L.L.C. ("DOG"), for
$175, 000, pursuant to an asset purchase agreement. The terms
of the asset purchase agreement between AER and DOG, however,
included a contingent purchase price if DOG was able to
resell the business for more than $175, 000 before August 31,
2014. AER was also given an opportunity to submit resale
proposals from third parties during that same time period.
Thus, if Camp Bow Wow was resold during this time frame for
more than $175, 000, either through DOG's efforts or
through AER's efforts, then AER was entitled to 100
percent of the additional purchase price minus certain
expenses that were spelled out in the asset purchase
agreement. On April 7, 2014, AER, through its president, Amy
Ryan, entered into a nonexclusive business listing agreement
("brokerage agreement") with Ohio Valley, a broker,
where AER engaged Ohio Valley to "find a buyer" for
Camp Bow Wow on or before August 31, 2014.
Per the brokerage agreement, AER agreed to pay Ohio Valley a
nonrefundable listing fee of $5, 000 in advance, and then a
12 percent brokerage fee in the event of a successful sale,
up to $40, 000 (minus the $5, 000 listing fee). The brokerage
agreement further provided that potential buyers excluded
from the brokerage agreement were "only those potential
buyers who originated" through the franchisor, DOG.
The brokerage agreement between AER and Ohio Valley also
incorporated the terms of the asset purchase agreement
between AER and DOG. The brokerage agreement stated:
WHEREAS, AER and DOG have executed agreements to sell [Camp
Bow Wow] to DOG effective April 1, 2014, but the terms of
such sale include a contingent purchase price if DOG resells
[Camp Bow Wow] at a price higher than $175, 000 prior to
August 31, 2014, and AER is given the right ...