Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Girard Municipal Court, Case No. 2016 CVF
Patrick Milligan and Monique Boyd, 18615 Detroit Avenue,
Suite 201, Lakewood, OH 44107 (For Plaintiff-Appellee).
DeHaven, 3500 Massillon Road, Suite 410, Uniontown, OH 44685
COLLEEN MARY OTOOLE, JUDGE
Appellant, Great Lakes Best One Tire & Service, LLC,
d.b.a. Terry's Tire Town, appeals from the July 17, 2017
judgment of the Girard Municipal Court, granting judgment in
favor of appellee, Cintas Corporation, and against appellant
in the amount of $5, 450.44 plus interest following a bench
trial. On appeal, Great Lakes asserts the trial court erred
in finding it liable under a contract entered into between
Terry's Tire Town and Cintas. Great Lakes contends that
Cintas did not establish any of the four recognized
exceptions to the general rule for successor liability under
Flaugher v. Cone Automatic Machine Co., 30 Ohio
St.3d 60, 62 (1987). Because the first exception applies in
this case since Great Lakes, the buyer corporation, expressly
or impliedly agreed to assume Terry's Tire Town's
prior liability through the plain language of the Purchase
Agreement, we find no reversible error and affirm.
Cintas, an Ohio corporation, is a uniform and facility
services provider. Terry's Tire Town was in the business
of selling and servicing commercial tires. On September 19,
2012, Terry's Tire Town entered into a five-year
"Standard Rental Service Agreement" with Cintas for
uniforms and other facility products/services. The Cintas
Service Agreement was executed by James Brott, Terry's
Tire Town's Commercial Division Manager, and Barry Long,
a Cintas Service Sales Representative. The Cintas Service
Agreement was terminated prior to completion of the five-year
term. Eighty-four weeks remained on the term of the Cintas
Service Agreement at the time of Terry's Tire Town's
breach with an early cancellation sum due to Cintas in the
amount of $5, 450.44.
In March 2014, American Tire Distributors ("ATD")
purchased Terry's Tire Town. The following month, ATD
approached Mr. Brott indicating it would be selling off the
commercial tire division. Mr. Brott asked if he could bid
through Great Lakes, a limited liability company he had
On July 31, 2014, a "Purchase Agreement" was
entered into by and among Terry's Tire Town Holdings,
Inc., Terry's Tire Town, Inc., and Great Lakes. Mr. Brott
signed the Purchase Agreement as President of Great Lakes.
Great Lakes continued to use the services of Cintas for a
period of time. In early 2016, Great Lakes notified Cintas
that it was switching to a more cost-effective option.
On February 22, 2016, Cintas filed a complaint for breach of
contract against Great Lakes, d.b.a Terry's Tire Town. On
March 16, 2016, Great Lakes filed an answer.
A bench trial was held on June 30, 2017.
On cross-examination, Mr. Brott acknowledged his signature on
the 2012 Cintas Service Agreement. (Exhibit A). Mr. Brott
also acknowledged his signature on the 2014 Great Lakes
Purchase Agreement. (Exhibit H). Mr. Brott testified that the
Cintas Service Agreement was not specifically excluded from
Section 2.4(a) of the Great Lakes Purchase Agreement. Mr.
Brott had knowledge that Terry's Tire Town had a
continuous contract with Cintas. He indicated that the Cintas
Service Agreement is not on the excluded part of Section 2.3
of the Great Lakes Purchase Agreement. Mr. Brott said he
informed Cintas of the sale, i.e., that it was no longer
Terry's Tire Town but rather a new entity, Great Lakes.
Mr. Brott acknowledged that he never changed the logos on
company shirts. (Exhibit F). A photograph taken around June
29, 2016 revealed that the Girard store still had a
Terry's Tire Town sign. (Exhibit G). Mr. Brott indicated
he could not afford to change the sign at that time.
On direct examination, Mr. Brott testified he
"purchased the store
assets" for Terry's Tire Town in
April 2014. From Mr. Brott's understanding of the Great
Lakes Purchase Agreement, he was not assuming any of
Terry's Tire Town's contracts or liabilities. Mr.
Brott indicated that he cannot point to anything that states
that he has assumed any of the liabilities of Terry's
Tire Town, specifically the Cintas Service Agreement. He said
the invoicing, checks, and business cards all included the
name, Great Lakes. However, Mr. Brott stated again that the
front signage remained as Terry's Tire Town due to
Cintas Service Sales Representative Mr. Long testified he was
told in 2015 that Terry's Tire Town was going to be sold.
Don Jones, Operations Manager for Cintas, referenced the
Cintas Service Agreement. Mr. Jones also referenced a
document regarding liquidated damages in the event of an
account being stopped. (Exhibit B). Terry's Tire
Town's termination of the contract, which had 84 weeks
remaining, was coded as a "price lack of
relationship," i.e., ...