[Cite as Cintas Corp. v. Findlay Chrysler Dodge Jeep Ram, Inc. , 2018-Ohio-455.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




CINTAS CORPORATION,

        PLAINTIFF-APPELLEE,                                        CASE NO. 5-17-14

        v.

FINDLAY CHRYSLER DODGE,
JEEP, RAM, INC.,                                                   OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2016 CV 00021

                                     Judgment Affirmed

                           Date of Decision: February 5, 2018




APPEARANCES:

        Ian A. Weber for Appellant

        Michael S. Clawson for Appellee
Case No. 5-17-14



ZIMMERMAN, J.,

       {¶1} This appeal is brought by Findlay Chrysler Dodge, Jeep, Ram, Inc.,

Defendant-Appellant herein, from the judgment of the Hancock County Court of

Common Pleas, finding in favor of Cintas Corporation, Plaintiff-Appellee, in a

breach of contract action. On appeal, Appellant asserts that the trial court abused

its discretion: 1) by finding that there was a valid contract and by finding that its

employee, Justin Lobdell, had the apparent authority to enter into the contract that

is the subject of this case; 2) by enforcing the liquidated damages clause in the

contract; and 3) by failing to award appropriate damages by permitting the Appellee

to collect under the contract’s liquidated damages clause. For the reasons that

follow, we affirm the decision of the trial court.

                                    Factual Background

       {¶2} The Cintas Corporation (“Cintas” or “Appellee”) is a foreign

corporation with a business location in Perrysburg, Ohio that offers custom

uniforms to businesses for rent or for purchase. Findlay Chrysler Dodge, Jeep, Ram,

Inc. (“Appellant”) is an automobile dealership located in Findlay, Ohio.

       {¶3} In September or October of 2015, Ryan Caudill (“Caudill”), a Cintas

Sale Representative, contacted Appellant’s business to discuss a uniform service




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contract.1        Caudill contacted Justin Lobdell (“Lobdell”), Appellant’s Service

Manager, to arrange a time to discuss such a contract.

           {¶4} Thereafter, Caudill and Lobdell met at Appellant’s dealership wherein

Lobdell advised Caudill that Appellant had an existing service contract with City

Laundry for towels, mats, and rugs, which Appellant desired to continue. However,

Lobdell informed Caudill that Appellant was seeking a new style of business

uniform, and therefore, was interested in pursuing a service contract with Appellee.

As a result of their meeting, Caudill and Lobdell commenced negotiations for

Appellee to provide Appellant with business uniforms. As part of negotiations,

Lobdell provided Caudill with a copy of an invoice from City Laundry so Caudill

could analyze its pricing structure. On October 14, 2015, Caudill and Lobdell

finalized negotiations by entering into a sixty (60) month uniform service contract.

           {¶5} Testimony (at trial) revealed that Lobdell reviewed the service contract

electronically on a touch screen tablet furnished him by Caudill. At trial, Caudill

testified that after Lobdell examined the agreement on the tablet, Caudill asked

Lobdell if he had any questions, and Lobdell responded in the negative. Then,

Caudill checked the box on the service contract indicating that Lobdell had read the




1
    For ease of analysis, we use “contract” and “agreement” interchangeably.

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terms and conditions of the contract.                        Lobdell then signed the agreement

electronically on October 14, 2015.2

         {¶6} After entering into the service contract, Caudill returned to Appellant’s

dealership several times to measure its employees for uniforms. Caudill testified

that during his visits he always wore a shirt that identified him as a Cintas employee.

Further, Caudill testified that during one of his visits at the dealership he met with

Nick Brunotte (“Brunotte”), Appellant’s Operations Director, and discussed the

process of measuring employees for uniforms. At no point during the contract

negotiations or during the uniform fitting process did Lobdell, Brunotte, or any other

employee of Appellant question Caudill’s status as a Cintas representative; for being

on the premises; or for measuring uniforms for Appellant’s employees.

         {¶7} After completing his measurements, Caudill ordered and delivered the

new uniforms to the dealership. However, after the first delivery, Lobdell requested

Caudill to provide specialized “Mopar” shirts for the employees because the

dealership owner wanted a different style shirt. Further, and as part of the service

contract, lockers bearing Cintas’ logo were delivered and installed on November 4,

2015 by Appellee at Appellant’s dealership to house the uniforms.




2
  Lobdell denied this chain of events at trial, claiming that he was pressured into signing the contract and that
he never read its terms and conditions. He further testified that it was the first time (at trial) that he had seen
the service contract that he signed.

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       {¶8} At some point, Lobdell asked Caudill if different uniform jackets could

be ordered. However, before the order was placed, City Laundry became aware of

the service contract between Appellant and Appellee, and threated to sue Appellant

for contracting with Appellee for uniforms. Thereafter, and shortly after learning

that it would be subject to legal action by City Laundry, Appellant advised Appellee

that it was terminating the uniform service agreement, because Lobdell lacked the

authority to enter into it. Appellee attempted to resolve the conflict, but Appellant

refused and unilaterally terminated the agreement.

                                Procedural History

       {¶9} This case commenced with Appellee filing a complaint for money

damages and complaint for arbitration in the Hancock County Common Pleas Court

on January 19, 2016. (Doc. No. 1). Appellee’s complaint alleged that Appellant

breached its contract with Appellee, requesting $21,394.21 in damages. (Id.).

Appellee also requested a stay of the proceedings because the contract with

Appellant contained a mandatory arbitration provision. (Id.).

       {¶10} On February 18, 2016, Appellant filed its answer in the trial court

denying Appellee’s allegations. (Doc. No. 15). The Appellant’s answer also

contained several affirmative defenses, including the defense that the contract was

void because an authorized representative of the Appellant failed to sign the

contract. (Doc. No. 15).


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       {¶11} On April 27, 2016, the trial court scheduled mediation between the

parties for July 14, 2016. (Doc. No. 21). At the mediation hearing no business

representative appeared for Appellant, just its attorney. (Doc. No. 23). Thereupon,

limited discussions occurred and no settlement was reached. (Id.).

       {¶12} On October 20, 2016, Appellee filed its motion for summary judgment

pursuant to Civ.R. 56 in the trial court. (Doc. Nos. 28 & 29). Appellant responded

to the motion, arguing that summary judgment was inappropriate because issues of

material fact were present, precluding the trial court from entering summary

judgment in favor of Appellee. (Doc. Nos. 31 & 32). The trial court denied

Appellee’s motion for summary judgment on November 21, 2016. (Doc. No. 35).

       {¶13} A one-day bench trial occurred in the trial court on February 24, 2017.

At the conclusion of the trial the parties were given an opportunity to submit post-

trial memorandums on the contested issues. (Doc. No. 37). Each party filed a

memorandum. (Doc. Nos. 39-40).

       {¶14} On May 16, 2017, the trial court issued its decision awarding judgment

to Appellee for $21,394.21 on its breach of contract claim.          (Doc. No. 42).

Specifically, the trial court found that the testimony and evidence presented at trial

did not support Appellant’s defense that Lobdell lacked the authority to bind

Appellant to the service contract, and damages were awarded based on the

liquidated damages clause contained in the contract. (Id.). On November 24, 2017,


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the trial court filed its final judgment entry, granting Appellee judgment in the

amount of $21,394.21, plus costs. (Doc. No. 42). From this final judgment entry

Appellant appeals, and presents the following assignments of error for our review:


                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT AUBSED [SIC] ITS DISCRETION BY
       FINDING THAT THERE WAS A VALID CONTRACT AND
       APPELLANT’S EMPLOYEE, JUSTIN LOBDELL HAD THE
       APPARENT AUTHORITY TO ENTER INTO THE
       CONTRACT THAT IS THE SUBJECT OF THIS CASE.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT AUBSED [SIC] ITS DISCRETION BY
       ENFORCING THE LIQUIDATED DAMAGES CLAUSE IN
       PARAGRAPH 11 OF THE CONTRACT.

                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT AUBSED [SIC] ITS DISCRETION BY
       FAILING TO PROPERLY AWARD THE APPROPRIATE
       DAMAGES AND ALLOWING THE APPELLEE TO
       COLLECT UNDER THE LIQUIDATED DAMAGES CLAUSE.

       {¶15} On appeal, Appellant challenges the trial court’s finding that Lobdell

had the apparent authority to enter into a service contract with Appellee. Further,

Appellant argues that even if Lobdell did have the apparent authority to enter into

the contract with Appellee, the trial court erred by enforcing the liquidated damages

clause contained in the contract.




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                             Appellant’s First Assignment of Error

         {¶16} In its first assignment of error, Appellant asserts that the trial court

abused its discretion by finding that Appellant’s employee had the apparent

authority to enter into the contract with Appellee. For the reasons that follow, we

disagree.

                                          Standard of Review

         {¶17} Appellant argues its first assignment of error under an “abuse of

discretion” standard of review. However, we find otherwise. Since the issue before

us is whether Lobdell had the apparent authority to enter into a contract with

Appellee, we will analyze this assignment of error under the manifest weight of the

evidence standard of review.3 See generally, Seasons Coal Co. v. City of Cleveland,

10 Ohio St.3d 77, 79, 461 N.E.2d 1273 (1984). As such, “‘[j]udgments supported

by some competent, credible evidence going to all the essential elements of the case

will not be reversed by a reviewing court as being against the manifest weight of the

evidence.’” Id. at 80, quoting C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d

279, 376 N.E.2d 578 (1978), syllabus. In analyzing a trial court’s decision, “it is




3
  While we could analyze this assignment of error under a sufficiency of the evidence standard of review,
pursuant to Eastley v. Volkman, we choose to analyze this assignment under a manifest weight of evidence
standard of review, because on appeal Appellant is challenging the trial court’s interpretation of the greater
amount of credible evidence. See, Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ ¶ 10-12.

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also important that * * * a court of appeals be guided by a presumption that the

findings of the trier-of-fact were indeed correct.” Id. at 79-80.

                                      Analysis

                               Existence of a Contract

       {¶18} “‘A contract is generally defined as a promise, or a set of promises,

actionable upon a breach.’” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985,

770 N.E.2d 58, ¶ 16 quoting Perlmuter Printing Co. v. Strome, Inc. 436 F.Supp.

409, 414 (N.D.Ohio 1976). “‘Essential elements of a contract include an offer,

acceptance, contractual capacity, consideration * * *, a manifestation of mutual

assent and legality of object and of consideration.’” Id. quoting Perlmuter, supra.

“A meeting of the minds as to the essential terms of the contract is a requirement to

enforcing the contract.” Id.

       {¶19} To determine whether a valid contract existed, the Court must examine

the language contained within the contract. The purpose of contract construction is

to realize and give effect to the intent of the parties. Graham v. Drydock Coal Co.,

76 Ohio St.3d 311, 313, 1996-Ohio-393, 667 N.E.2d 949. The intent of the parties

is presumed to reside in the language they choose to use in their agreement. Id.

“Extrinsic evidence is admissible to ascertain the intent of the parties when the

contract is unclear or ambiguous, or when circumstances surround the agreement




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give the plain language special meaning.” Id. at 313-14. Lastly, courts are to

construe a contract against the party who drafted it. Id.

           {¶20} Appellant claims that the trial court incorrectly found that there was a

valid contract between the parties. However, Appellant does not suggest that the

contract was invalid because its language was ambiguous or unclear,4 rather,

Appellant asserts that the contract was invalid because Lobdell did not know what

he was signing. In support of this assertion, Appellant directs us to Lobdell’s

testimony on direct examination, wherein he testified that he was not provided with

a copy of the contract prior to signing it. (02/24/17 Tr. at 132). Lobdell also testified

that he never signed any contracts for Appellant, and his employment duties were

limited to signing service and/or delivery slips. (Id. at 139). Finally, Lobdell

testified that he had no discussion with Cintas regarding the terms of the service

contract. (Id. at 142).

           {¶21} However, on cross-examination, Lobdell conceded that he had seen at

least the fourth page of the service contract provided by Cintas, as his signature

appeared on said page. (Id. at 144; see also, Appellee Ex. No. 2). Additionally, the

contract paragraph immediately above Lobdell’s signature contains the following

language:

           By signing this agreement, the customer waives his/her signature as a
           requirement for services rendered. The customer agrees to pay all

4
    See generally, Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987).

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Case No. 5-17-14


       services in full without the signature on their weekly invoice(s).
       Customers with multiple weekly invoices have the option to waive
       their signature on all but one invoice or may waive their signature on
       all invoices. If the customer chooses to retain signature authority, the
       respective SSR must be able to contact the customer to obtain a
       delivery signature.

(Id.; Appellee Ex. No. 2). Further, the line above Lobdell’s signature states: “I agree

that I am authorized to sign on behalf of the Findlay Chrysler Dodge Jeep.”

(Emphasis added). (Id.). Moreover, Lobdell testified on cross that he had some

discussions with Caudill regarding the service contract, conceding that he agreed to

a $200 per week obligation to Cintas for a period of time. (Id. at 165).

       {¶22} Appellee also introduced into evidence a copy of Appellant’s City

Laundry agreement, which contained Lobdell’s signature, revealing that Lobdell

was authorized to sign that contract on behalf of Appellant. (Id. at 150; see also

Appellee Ex. No. 8).

       {¶23} In addition to Lobdell’s conflicting testimony (regarding his lack of

knowledge of the service contract), Appellee offered the testimony of Caudill in its

case in chief. Caudill testified that after he and Lobdell first met to discuss a uniform

service agreement, they exchanged e-mails to negotiate the terms of the service

contract. (Id. at 29). Caudill identified an email of October 7, 2015, between he

and Lobdell, verifying their negotiations. (Id.; Appellee Ex. 1). Caudill further

testified that before Lobdell signed the service contract, he reviewed the terms and



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conditions of it with Lobdell, and presented the agreement in electronic form (to

Lobdell) for him to read and sign. (Id. at 32).

       {¶24} Appellant’s assertion that the service contract was invalid because

Lobdell did not read it is inconsistent with the testimony and the evidence produced

at trial. Further, even if Lobdell failed to completely read the contract, it is a long-

standing contract principle that “parties to contracts are presumed to have read and

understood them and that a signatory is bound by a contract that he or she willingly

signed.” Preferred Capital, Inc. v. Power Eng. Group, Inc., 112 Ohio St.3d 429,

2007-Ohio-257, 860 N.E.2d 741, ¶ 10; De Camp v. Hamma, 29 Ohio St. 467, 471-

72 (1876). Moreover, since there is competent and credible evidence in the record

supporting that Lobdell freely signed the service contract with Cintas, we find no

error with the trial court’s decision that a valid contract existed between the parties.

                                 Apparent Authority

       {¶25} Next, Appellant argues that even if there was a valid contract, Lobdell

did not have the authority to sign it because he was not held out by Appellant as

having such (apparent) authority.

       {¶26} It is well established that “under an apparent-authority analysis, the

acts of the principal, rather than the agent, must be examined.” Groob v. KeyBank,

108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 56 citing Master Consol.

Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570, 576-77, 575 N.E.2d 817 (1991).


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“For the principle to be liable, the principal’s acts must be found to have clothed the

agent with apparent authority.” Id. In Ohio, courts use a two-part test to determine

whether apparent authority exists. Logsdon v. Main-Nottingham Inv. Co., 103 Ohio

App. 233, 241-42, 141 N.E.2d 216 (2nd Dist.1956). Specifically, a party claiming

apparent authority must show:

       (1) [t]hat the principal held the agent out to the public as possessing
       sufficient authority to embrace the particular act in question, or
       knowingly permitted him to act as having such authority; and (2) taht
       [sic] the person dealing with the agent knew of the facts and acting in
       good faith had reason to believe and did believe that the agent
       possessed the necessary authority.

Id. Accordingly, we will analyze each factor in turn.

  Principal held the agent out to the public as possessing sufficient authority to
         embrace the particular act in question, or knowingly permitted
                       him to act as having such authority

       {¶27} Kable Darrow (“Darrow”) is the sole owner of Appellant’s dealership.

(2/24/2017 Tr. at 168). Darrow testified that it is his company’s protocol for him to

review contracts if there is a contract to be signed. In support of this contention,

Darrow referenced the City Laundry agreement, which Lobdell signed, testifying

that Lobdell had a discussion with him prior to Lobdell’s signing the addendum to

that agreement. (Id. at 172; Appellee Ex. No. 8). Darrow also testified that the City

Laundry Agreement was signed by his father and general manager, Dan Darrow,

with his permission and knowledge. (Id. at 170-71).



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       {¶28} Moreover, in determining the authority that Darrow held Lobdell to

possess to the public, the evidence and testimony supports that Lobdell had authority

to enter into contracts. Specifically, Darrow testified that Lobdell was able to sign

warranty claims and documents relative to day-to-day operations, such as the

purchase of oil, which financially obligated Darrow. (Id. at 187). Further, and as

previously discussed, Darrow authorized Lobdell to sign the addendum to the City

Laundry contract. (Id. at 150). Accordingly, despite Darrow’s assertion that it was

his policy to permit Lobdell and other employees to only sign contracts with his

(Darrow’s) knowledge and permission, there was an absence of testimony and

evidence supporting that the public was informed of such policy.

       {¶29} As to the contract with Cintas, Darrow testified (that) he was aware

(that) Cintas had come to the dealership to discuss uniforms with Lobdell and that

Cintas provided his dealership with uniforms after November 4, 2015. (Id. at 174;

181). Nevertheless, at no time prior to being threatened with a lawsuit from City

Laundry, did Darrow tell Caudill that Lobdell was without authority to sign the

service contract on Appellant’s behalf.

       {¶30} In analyzing the actions of the principal (i.e. Darrow), we find that

competent and credible evidence supports the trial court’s determination that

Darrow “knowingly permitted Lobdell to act as having [the necessary] authority” to

sign the Cintas contract, consistent with the apparent authority analysis set forth in


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Master Consolidated Corporation v. BancOhio National Bank. (Doc. No. 41 at 9);

Master Consol. Corp., 61 Ohio St.3d 570, 576-77, 575 N.E.2d 817 (1991). And,

because there is competent and credible evidence to support that Darrow clothed

Lobdell with the appearance of authority to the public, we cannot say that the trial

court’s ruling on this prong of analysis was against the manifest weight of the

evidence.

            The person dealing with the agent knew of the facts and acting
                  in good faith had reason to believe/did believe that
                      the agent possessed the necessary authority

       {¶31} In our review of the record, we find that competent and credible

evidence exists to support Caudill’s actions in believing that Lobdell possessed the

necessary authority to enter into the Cintas agreement. Specifically, when Caudill

first contacted Appellant’s dealership, he was directed to Lobdell by the receptionist

as the person who handled the dealership’s uniforms. (Id. at 24). Caudill testified

that when meeting with Lobdell, he was informed (by Lobdell) of the existing

service contract with City Laundry. (Id. at 25). And, after this meeting, Caudill and

Lobdell exchanged emails and had discussions at the dealership to negotiate the

terms of the service contract. (Id. at 29; Appellee’s Ex. No. 1). Ultimately, Lobdell

signed a contract which specifically provided that “I agree that I am authorized to

sign on behalf of the Findlay Chrysler Dodge Jeep.” (Id. at 33, Appellee’s Ex. No.

2). Additionally, and after the service contract was signed, it was Lobdell who


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contacted Caudill to change the order because the owner wanted custom shirts. (Id.

at 35). And finally, Caudill’s testimony reveals that after he met with Brunotte,

Appellant’s Operations Director, no concerns were voiced regarding Cintas

providing uniforms or with Lobdell having the authority to enter into a contract. (Id.

at 27).

          {¶32} Based upon the actions of Lobdell, Brunotte, and Appellant’s various

employees, the evidence in the record supports the trial court’s finding that Caudill

was acting in good faith in believing that Lobdell possessed sufficient authority to

enter into a contract on behalf of Appellant. As such, there is competent, credible

evidence to support the trial court’s determination that the combined conduct of

Darrow, Brunotte, and Lobdell was sufficient to establish Caudill’s good faith belief

that Lobdell had the authority to sign a contract on behalf of Appellant.

                                 Contract Ratification

          {¶33} Even assuming, arguendo, that Lobdell lacked apparent authority to

enter into the service contract with Cintas, we find that Darrow’s behavior ratified

the contract that Lobdell entered into.      “‘Ratification’ is a confirmation of a

previous, voidable act that operates to give the act the effect it was originally

intended to have.” Garrison v. Daytonian Hotel, 105 Ohio App.3d 322, 326, 663

N.E.2d 1316 (2nd Dist.1995).         Furthermore, “it is equivalent to a previous

authorization and relates back in time to when the act ratified was done.” Id. It is


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“a well-settled doctrine of the law of agency that a principal may ratify the acts of

its agent performed beyond the agent’s scope of authority.” Penn Traffic Co. v. AIU

Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 119, ¶ 16 quoting State

v. Warner, 55 Ohio St.3d 31, 65, 564 N.E.2d 18 (1990). Specifically, Darrow

testified that he was aware that Cintas had been at the dealership to discuss providing

uniform rental services. (2/24/2017 Tr. at 174). Furthermore, Darrow admitted that

he was aware that Cintas was providing uniforms for Appellant’s dealership and

paid Cintas for multiple weeks of service. (Id. at 181). Since Darrow was aware of

and received the benefit of Cintas’ services for several weeks without objection, and

complied with the obligations under the contract, we find that that Darrow ratified

the service contract between Appellant and Cintas.

       {¶34} Accordingly, we overrule Appellant’s first assignment of error.

                Appellant’s Second and Third Assignments of Error

       {¶35} In its second and third assignments of error, Appellant argues that the

trial court abused its discretion by enforcing the liquidated damages clause in the

service contract and by allowing the Appellee to collect such damages. For the

reasons that follow, we disagree.

                                 Standard of Review

       {¶36} While Appellant asserts that the trial court abused its discretion under

its second and third assignments, this asserted standard of review is misplaced.


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Specifically, “the question of whether a stipulation in a contract constitutes

liquidated damages, a penalty, or forfeiture is a question of law.” Cintas Corp. v.

Joel Lehmkuhl Excavating, 2nd Dist. Montgomery No. 19613, 2003-Ohio-2958, ¶

12 citing Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 380, 613 N.E.2d 183

(1993). See also, Boone Coleman Constr., Inc. v. Piketon, 145 Ohio St.3d 450,

2016-Ohio-628, 50 N.E.3d 502, ¶ 10. Accordingly, we will review questions of law

de novo. Id.

                                       Analysis

       {¶37} “Parties are generally free to enter into contracts that include a

provision which apportion damages in the event of default.” Id. However, for

public policy purposes, parties may not contract for liquidated damages if they

constitute a penalty. Id. at ¶ 13 citing Westbrock v. W. Ohio Health Care Corp., 137

Ohio App.3d 304, 322, 738 N.E.2d 799 (2nd Dist.2000).

       {¶38} In Ohio, courts use a three-part test to determine whether a liquidated

damages provision is enforceable:

       Where the parties have agreed on the amount of damages, ascertained
       by estimation and adjustment, and have expressed this agreement in
       clear and unambiguous terms, the amount so fixed should be treated
       as liquidated damages and not as a penalty, if the damages would be
       (1) uncertain as to amount and difficult of proof, and if (2) the contract
       as a whole is not so manifestly unconscionable, unreasonable, and
       disproportionate in amount as to justify the conclusion that it does not
       express the true intention of the parties, and if (3) the contract is
       consistent with the conclusion that it was the intention of the parties
       that damages in the amount stated should follow the breach thereof.

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Samson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27, 465 N.E.2d 392 (1984),

syllabus citing Jones v. Stevens, 112 Ohio St. 43, 146 N.E. 894 (1925), paragraph

two of the syllabus.

       {¶39} In this case, it is uncontroverted that the contract permitted liquidated

damages in the event of cancellation. Specifically, paragraph 11 of the parties’

contract states:

       11. Additional customer employees, products and services may be
       added to this agreement and shall become part of and subject to the
       terms hereof this agreement, and subject to all of its provisions. If this
       agreement is terminated early, the parties agree that the damages
       sustained by Company will be substantial and difficult to ascertain.
       Therefore, if this agreement is terminated by Customer prior to the
       application expiration date for any reason other than documented
       quality of service reasons which are not cured as set forth above, or
       terminated by Company for cause at any time, Customer will pay to
       Company, as liquidated damages and not as a penalty, the greater of
       50% of the average weekly invoice total multiplied by the number of
       weeks remaining in the unexpired term, or buy back all garments and
       other products allocated to Customer at the then current replacement
       values. Customer shall also be responsible for any unpaid charges on
       Customers account prior to termination.

(Emphasis added). (02/24/2017 Tr. at 31; Appellee Ex. No. 2 at 3).

       {¶40} The plain reading of the above language suggests that Cintas explicitly

informed Appellant that the liquidated damages provision was not a penalty. (Id.)




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Furthermore, we find the terms of this provision to be clear and unambiguous on its

face.5

         {¶41} In our review of the record, we find that Appellee presented evidence

to the trial court that the damages would be difficult to prove. Specifically,

Christopher Sherman (“Sherman”), Appellee’s Market Manager, testified that

damages would be uncertain and difficult to prove due to variances in the costs of

fuel, delivery, garments, and changes in the customer. (Id. at 96). Sherman further

testified that Cintas was not able to resell the uniforms because of their customized

nature. (Id. at 106).

         {¶42} We find the evidence supports that the contract in question was not

otherwise unreasonable or unconscionable. See generally, Physicians Anesthesia

Serv., Inc. v. Burt, 1st Dist. Hamilton No. C-060761, 2007-Ohio-6871, ¶ 18. The

evidence supports that Caudill advised Lobdell of the terms and conditions of the

contract, and that Lobdell had signed other contracts on behalf of Appellant prior to

executing the Cintas agreement. (02/24/2017 Tr. at 72). Additionally, Caudill

testified that Lobdell reviewed the entire contract, including the terms and

conditions prior to signing it. (Id. at 76). While Lobdell testified to a different



5
  It is of note that the 2nd District Court of Appeals held that a liquidated damages provision involving a
contract between Cintas and a third party, containing substantially the same wording as the current contract
before the Court, was clear and demonstrated the parties’ intent to be bound by such provision. Cintas Corp.,
2nd Dist. Montgomery No. 19613, 2003-Ohio-2958, ¶ 21. Additionally, it is also of note that Darrow testified
that the City Laundry Agreement he approved contains the same liquidated damages language and calculation
formula as the Cintas agreement currently before this Court. (02/2/2015 Tr. at 182; Appellee Ex. No. 8).

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version of events surrounding the signing of the contract, a review of his testimony

reveals inconsistencies, and in regard to these inconsistencies, we find that the trial

court was in the superior position to judge witness credibility as to whether or not

Lobdell was indeed credible. See generally, State v. Bostock, 4th Dist. Athens No.

11CA23, 2012-Ohio-3324, ¶ 13 (the trial court is in the best position to determine

witness credibility). Thus, we find that the contract is consistent with what the

parties intended following a breach.

       {¶43} While Appellants argue that Appellee should be limited to their actual

damages, such argument is contrary to law. “‘[I]f a liquidated-damages clause is

otherwise valid, the party seeking such damages need not prove that actual damages

resulted from a breach.’” Physicians Anesthesia Serv., Inc., 1st Dist. Hamilton No.

C-060761, 2007-Ohio-6871, ¶ 20 quoting Sec. Fence Group, Inc. v. Cincinnati, 1st

Dist. Hamilton No. C-020837, 2003-Ohio-5263, ¶ 8. Appellant attempts to limit

the damages to the four-week period in which services were rendered, arguing that

the uniforms were returned and therefore reusable by Appellee. However, for the

reasons set forth above, this assertion is inconsistent with the testimony produced

by Appellee at trial. Because the liquidated damages provision permitted Appellee

either recovery of 50% of the average weekly volume multiplied by the number of

remaining weeks in the contract, or the current replacement value, whichever is

greater, the trial court was able to calculate damages consistent with such formula.


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(See generally, Doc. No. 41 at 12). Therefore, we find no error of law with respect

to the trial court’s calculation of the liquidated damages per that provision in the

contract.

       {¶44} Thus, we hold that the liquidated damages clause in the contract was

not a penalty, was not ambiguous, and is enforceable as written. Furthermore, we

find that the trial court correctly awarded damages based on the plain language

provided in the contract. Accordingly, we overrule Appellant’s second and third

assignments of error.

       {¶45} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we overrule Appellant’s first, second, and third

assignments of error and affirm the judgment of the Hancock County Common

Pleas Court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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