United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge
a breach-of-contract suit arising out of an agreement to
sponsor a racecar.
plaintiff, Tony Marks Racing, LLC (TMR), is the owner of the
“Number 12” Dodge racecar, which competed in the
Automobile Racing Club of America's (ARCA) 2011 racing
alleges that it entered a sponsorship agreement with the
defendants - VR-12, LLC, which produces a radiator coolant
additive called VR-12; Freezetone Products, Inc., the company
that distributes VR-12; and Louis Latour, a Florida resident
who owns VR-12 and Freezetone. According to TMR, the
defendants agreed to pay TMR $50, 000 per race - for a total
of $950, 000 over the nineteen-race season - in exchange for
TMR making VR-12 and Freezetone the “lead
sponsor” of the Number 12 racecar. TMR also claims that
Latour personally guaranteed his companies' obligation to
the defendants allegedly breached the contract by paying TMR
only $50, 000, TMR sued for breach of contract, equitable
accounting, and promissory estoppel.
is proper under 28 U.S.C. § 1332(a)(1). (Doc. 19 at
are the defendants' motions for summary judgment. (Docs.
40, 44, 47). For the reasons that follow, I grant
Freezetone's motion in its entirety, grant Latour's
motion in part and deny it in part, and grant VR-12's
motion in part and deny it in part.
Origins and Terms of the Sponsorship Agreement
parties have offered conflicting accounts of both the origins
of the sponsorship agreement and its terms. It is these
conflicts that prevent entry of judgment as a matter of law
for Latour and VR-12.
to the affidavit of Tony Marks, an Ohio resident who owns
TMR, “Latour came to Ohio in January of 2011 to discuss
the sponsorship arrangement[.]” (Doc. 19-1 at 21-22).
that visit, Marks and Latour, who at the time was acting
“in his personal, and representative capacity on behalf
of Freezetone and VR-12, ” “agreed upon and
concluded a sponsorship agreement.” The agreement,
plaintiff alleges, provided that “TMR was to be paid
$50, 000 per race for the entire 201119 race ARCA race
season[.]” (Id. at 22).
agreement required TMR to use its best efforts to persuade
ARCA to announce the sponsorship at an upcoming race in
Daytona, Florida. (Id.). But ARCA refused to make
the announcement unless Latour would meet with ARCA
representatives and “confirm his understanding and
backing of the magnitude of this sponsorship
commitment.” (Id.). When Latour met with the
ARCA representatives, he “confirmed . . . that he,
Freezetone and VR-12 were committed as primary sponsors or
[sic] the Tony Marks Racing # 12 ARCA race car for
the full 19-race” season. (Id. at 23).
told a rather different story at his deposition.
testified that he first spoke with Latour by telephone in
December, 2010. (Doc. 57-18 at 76). Marks and Latour then had
multiple phone conversations about doing “future
business together[.]” (Id. at 77).
mid-January, 2011, Marks met Latour in Daytona, Florida, but
they did not really discuss doing business together.
(Id. at 69, 70). Rather, all talk about a potential
sponsorship was between Latour and Rick Bailey, then the
Vice-President of Sales and Marketing for Tony Marks
Trucking, Inc., an affiliate of TMR. (Id. at 69, 72;
Doc. 41-3 at ¶3).
after Marks's trip to Daytona, Latour traveled to
Napoleon, Ohio, where TMR's facilities are located. (Doc.
57-18 at 82). Latour toured the grounds with Marks and
Bailey, but they did not come to an agreement. (Id.
made a second trip to Daytona in February, 2011, where he
attended the inaugural race of the 2011 ARCA racing series.
Before arriving in Florida, however, Marks and Latour had
reached “an agreement . . . for a primary sponsor,
VR-12, for the entire season.” (Id. at 85).
Marks explained that he and Latour had made the agreement
“by phone and also confirmation in person in Daytona by
later clarified that it was not he but Bailey who had
negotiated the contract:
Q: [I]s it your testimony that the negotiation of the
sponsorship agreement was primarily between Rick Bailey and
Q: And the communications that were had were then
communicated to you by Mr. Bailey?
Q: So the information that you had with regard to the terms
of the sponsorship agreement came from Mr. Bailey?
* * * The Witness: Yes
(Id. at 88).
to Marks, the sponsorship agreement concerned the
“title sponsor” or “primary sponsor”
of the Number 12 racecar. (Doc. 57-18 at 41-42).
explained that those interchangeable terms refer to the
entity that “covers the operating expenses of a race
team . . . for an agreed term.” (Id. at 42).
In exchange for its financial support, the sponsor (usually a
corporate entity promoting its brand or a specific product)
gets to place its logo on the racecar, the driver's
uniform, pit-row banners, and other gear and equipment.
(Id. at 44-45).
result of the sponsorship agreement, Marks testified, VR-12
became TMR's “primary sponsor” for the full
2011 ARCA racing season. (Id. at 42).
agreed that he visited Ohio in January, 2011, but he
maintained that “the oral Sponsorship Agreement was not
reached” on that occasion. (Doc. 41-2 at ¶13).
Latour made a second visit to Ohio (he did not specify when),
but the purpose of that second trip was “to visit a
racetrack, ” not negotiate a sponsorship. (Id.
denied that he entered into any agreement on behalf of
himself, VR-12, and/or Freezetone with TMR “prior to
February 12, 2011[.]” (Id. at ¶14). He
also testified that he, personally, “was not a party to
the oral sponsorship agreement[.]” (Id. at
and the other defendants concede, however, that there was a
sponsorship agreement between TMR and VR-12.
to the defense, “the extent of VR-12's financial
commitment to Plaintiff was to pay a total of $50, 000 for
its sponsorship role.” (Doc. 48 at ¶6). This
sponsorship was to last only for the first seven races (the
first race was on February 12 and the seventh was on June
11), rather than the entire racing season. (Doc. 57-3 at
45-46). In support, defendants point to a letter that Bailey,
purportedly acting on behalf of TMR, prepared and Dated:
January 20, 2011. (Doc. 48-2 at 1). According to Bailey's
• the only parties to the sponsorship agreement were TMR
• the sponsorship would last for only seven races,
“unless extended prior to the ending date”; and
• VR-12 would pay TMR $50, 000.
to the defense, “VR-12 paid [TMR] $25, 000 on February
4, 2011[.]” (Doc. 48 at ¶10). On March 4, VR-12
made a second payment of $25, 000 to TMR. (Id.).
February, 2011, Marks and Latour made a joint appearance at
the Daytona International Raceway to announce VR-12's
sponsorship of TMR. (Doc. 57-3 at 118-21; Doc. 58-18 at
46-47). Moreover, TMR affixed the VR-12 logo to the Number 12
car and its drivers' uniforms. (Docs. 57-6, 57-7, 57-8,
57-9, & Doc. 57-10). The Number 12 car displayed the
VR-12 logo for races on April 15, May 15, May 22, June 4,
June 11, June 17, and July 16. (Doc. 48 at ¶16).
contrast, it is undisputed that Latour's name never
appeared on the ...