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LLC v. Mills

Court of Appeals of Ohio, Fifth District, Stark

October 30, 2017

LAMBERT'S POP A TOP, LLC., ET AL. Plaintiffs-Appellants
v.
MARK A. MILLS, ET AL. Defendants-Appellees

         Appeal from the Stark County Court of Common Pleas, Case No. 2016CV01307

          For Plaintiffs-Appellants: JUSTIN C. MILLER

          For Defendants-Appellees: MICHAEL S. GRUBER JASON N. BING TODD B. KOTLER

          Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

          OPINION

          Delaney, P.J.

         {¶1} Plaintiffs-Appellants Lambert's Pop A Top, LLC and Tammy Lambert appeal the May 10, 2017 judgment entry of the Stark County Court of Common Pleas.

         Accelerated Calendar

         {¶2} Preliminarily, we note this case is before this court on the accelerated calendar which is governed by App.R. 11.1. App.R. 11.1(E) provides in pertinent part: "The appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form."

         {¶3} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983).

         {¶4} This appeal shall be considered in accordance with the aforementioned rules.

         FACTS AND PROCEDURAL HISTORY

         {¶5} On October 14 and 15, 2015, Plaintiffs-Appellants Lambert's Pop a Top, LLC and Tammy Lambert ("Lambert") entered into written agreements to purchase a business known as Mills Tavern and lease the building where the business was located at 105 Nassau Street East from Defendants-Appellees Mark A. Mills and Frances Mills. The parties were assisted in the drafting of the written agreements by a real estate agent and the parties' respective attorneys. Lambert has been a tax preparer for 20 years, which required continuing education. She had never before worked in the bar or restaurant industry as an owner/operator.

         The Business Purchase and Liquor Permit

         {¶6} The real estate agreement stated Lambert would purchase the business for $25, 000. Included in the business purchase agreement was the business inventory and the liquor permit. "Inventory" was not defined in the purchase agreement.

         {¶7} At the time Lambert entered into the real estate agreement for the business, all parties were aware the liquor permit for the business was held by Defendants-Appellees Mike Kirby and Wanda Kirby. The parties also knew there was an issue with the liquor permit due to a liquor code violation. Kirby and Mills needed to resolve the issue through the Attorney General's office before the liquor permit could be transferred. Because of the issue with the liquor permit and the potential delay in transferring the liquor permit, Lambert negotiated for $10, 000 of the business purchase amount be placed in escrow. The real estate agreement stated the "$10, 000 to be put in escrow until liquor license transfer is complete." The terms of the real estate agreement did not state a date for the transfer of the liquor permit.

         {¶8} Lambert and Kirby entered into a management agreement in order for Lambert to continuously operate the bar until the liquor permit was transferred. Mills was not the holder of the liquor permit but it was understood he would facilitate the transfer of the liquor permit to Lambert. The business purchase ...


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