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Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
Z Real Estate, LLC Case No.:
c/o Robert Huff Miller
100 East Broad Street
Columbus, OH 43215,
Judge
Plaintiff,
v
COMPLAINT
Erb’s Recycling & Salvage LLC WITH JURY DEMAND
c/o Mark Erb, Agent
6176 Pritchard Dr
Galloway OH 43119
and
Erb’s Towing & Recovery LLC
c/o Mark Erb, Agent
6176 Pritchard Dr.
Galloway OH 43119
and
Mark Erb
6176 Pritchard Dr.
Galloway OH 43119
and
S & J Auto Services LLC
c/o Heath Alan Russell, Agent
8036 Corporate Blvd., Suite C
Plain City, OH 43064
and
S & J Classic Development, LLC
c/o Heath Alan Russell
8036 Corporate Blvd., Suite C
Plain City, OH 43064
Defendants.
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COMPLAINT
Now comes Plaintiff Z Real Estate, LLC (“Landlord” or “Plaintiff’), by and through
counsel, and for its Complaint against Defendants Erb’s Recycling & Salvage LLC (“Tenant”),
Erb’s Towing & Recovery LLC (“Erb Towing”), Mark Erb, S & J Auto Services LLC (“S & J”),
and S & J Classic Development, LLC (“Classic”), states and alleges upon personal knowledge as
to itself and its own acts and upon information and belief as to all other matters as follows:
1 Plaintiff Z Real Estate, LLC is an Ohio limited liability company with an address as set
forth in the case caption
2 Defendant Erb’s Recycling & Salvage LLC is an Ohio limited liability company with its
principal place of business in Franklin County, Ohio.
3 Defendant Erb’s Towing & Recovery LLC is an Ohio limited liability company with its
principal place of business in Franklin County, Ohio.
4 Defendant Mark Erb is an individual who resides in Franklin County, Ohio at the address
set forth in the case caption.
5 Defendant S & J Auto Services LLC is an Ohio limited liability company with its
principal place of business in Franklin County, Ohio
6 Defendant S & J Classic Development, LLC is an Ohio limited liability company and/or
an unregistered sole proprietorship with its principal place of business in Franklin County, Ohio.
7 Plaintiff's claims arise in the State of Ohio. The amount in controversy exceeds this
Court’s jurisdictional requirement.
8 Venue is proper because one or more defendants resides in or has its principal place of
business in Franklin County, Ohio, and the Premises are located in Franklin County, Ohio
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9 Plaintiff has the rights to use, occupy, and sublease the premises located at 1340 Emig
Road, Suite A, Columbus, OH 43223 (as more particularly described in the Lease, the
“Premises”) pursuant to a lease agreement with B-17 Holdings, LLC, the owner of the Premises.
10. Plaintiff is the Landlord under that certain Sublease Agreement, dated December 20,
2022 (the “Lease”), pursuant to which it leased the Premises to Tenant. A true and correct copy
of the Lease is attached hereto as Exhibit A.
11. Tenant has failed to pay the rent due in full starting on June 1, 2023, and owes Landlord
$134,782.31 as of March 1, 2024 (after application of the security deposit), which amount
continues to increase by monthly rent of $5,739.25 due under the Lease and interest at the rate of
15% per annum.
12. As a result, Tenant is in default under the Lease.
13 Section 13.2(c) of the Lease provides, in part, as follows:
Should this Lease be terminated before the expiration of the term
of this Lease by reason of Default, or if Tenant abandons or
vacates the Premises before the expiration or termination of the
term of this Lease without having paid the full rental for the
remainder of such term, then at the time of such termination,
vacation, or abandonment Tenant shall be liable for all damages
sustained by Landlord, including, without limitation, all rent
through the remainder of the term of this Lease, including
Minimum Rent, Additional Rent and reasonable attorneys’ fees,
which amounts shall be reduced to present value using as the
discount rate the prime rate being charged by First Commonwealth
Bank, Columbus, as of the date of the acceleration, and said
present value shall be immediately due and payable without any
demand, notice, or action of any kind whatsoever (each of which is
hereby expressly waived by Tenant). Tenant agrees that the
foregoing calculation bears a reasonable relationship to the actual
damages incurred by Landlord in the event of a Default and that
this provision does not impose a penalty upon Tenant
14 Tenant owes to Landlord all past due rent, plus all amounts due for the remaining term of
the Lease (discounted as provided in the Lease), plus brokerage fees, reasonable attorneys’ fees,
3
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interest, expenses of placing the Premises in first class rentable condition, and other amounts due
and/or accruing under the Lease and at law.
15. Tenant has failed to cure the defaults noted above and remains in default under the Lease.
16. On February 13, 2024, Plaintiff served Tenant and all other occupants of the Premises
with a Notice to Leave Premises.
17. As a result of Tenant’s defaults of the Lease and in response to the Notice to Leave
Premises, Tenant agreed to surrender the Premises to Landlord effective February 23, 2024, and
vacated the Premises on or about said date
18. Landlord has used and continues to use reasonable efforts to relet the Premises, but the
Premises remain vacant.
19. Erb Towing operated out of the Premises.
20. Erb Towing has taken over Tenant’s business and is a successor to Tenant.
21 As a successor to Tenant, Erb Towing is bound by the terms of the Lease and is obligated
to Plaintiff for all obligations of Tenant under the Lease, including as provided for in Section
19(d) of the Lease.
22. Erb Towing and Tenant breached the Lease by operating Erb Towing out of the Premises,
and by failing to pay the amounts due as set forth above.
23. All or part of Tenant’s business operations, assets, and revenue were transferred to Erb
Towing in order to evade the debt owed to Plaintiff.
24. Tenant and Mr. Erb, in an effort to avoid their debts, including those under the Lease,
transferred some or all of Tenant’s operations and assets to Erb Towing, without fair
compensation.
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25. Tenant has sold or otherwise transferred some or all of its operations and assets to Erb
Towing, without receiving equivalent value in exchange.
26. Erb Towing is merely a continuation of Tenant
27. The transfers from Tenant to Erb Towing were entered into fraudulently for the purpose
of escaping liability
28 Tenant was grossly undercapitalized and became insolvent by the actions of Mr. Erb
during the term of the Lease, who as the owner of Tenant also failed to observe corporate
formalities of Tenant and comingled his assets and those of Tenant.
29. Funds or other property of Tenant were diverted for the use and benefit of Erb Towing.
30. S & J operated out of the Premises in breach of the Lease and without compensating
Plaintiff for its use of the Premises.
31 S & J’s address is even listed as 1340 Emig Drive as its address in connection with tax-
related documents.
32. Classic operated out of the Premises in breach of the Lease and without compensating
Plaintiff for its use of the Premises
33. Classic’s address is even listed as 1340 Emig Drive as its address in connection with
insurance-related documents.
34. Defendants acted with reckless disregard to Plaintiff’s rights and interests.
Count I - Breach of Lease
35. Plaintiff incorporates the allegations set forth above as if fully restated herein.
36. Tenant and Erb Towing are parties to and bound by the Lease (either directly, or in the
case of Erb Towing, as a successor) with Plaintiff, which is a valid and enforceable contract.
37. Plaintiff fully performed under the Lease.
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38. Each of Tenant and Erb Towing breached the Lease by, infer alia, failing to pay rent due
under the Lease.
39. Plaintiff provided notice of default under the Lease.
40. These breaches of the Lease are material and have caused damages to Plaintiff in an
amount to be proven at trial including, without limitation, all past due rent, plus all amounts due
for the remaining term of the Lease (discounted as provided in the Lease), plus fees, reasonable
attorneys’ fees, interest, costs to relet, and other amounts due and/or accruing under the Lease
and at law, which exceed $134,782.31
Count Il — Declaratory Judgment
41 Plaintiff incorporates the allegations set forth above as if fully restated herein.
42. Plaintiff is requesting this Court to determine the relationship between Tenant and Erb
Towing for the purpose of liability under the Lease.
43 There is a genuine justiciable dispute as the parties’ interests are adverse because a
determination that Erb Towing is the alter ego or successor of Tenant would result in Erb
Towing being liable for all amounts due under the Lease
44, There is sufficient immediacy involved as Tenant is avoiding paying the amounts due
under the Lease, has transferred property to Erb Towing in order to avoid payments due to
Plaintiff, and Erb Towing could liquidate or further transfer its assets at any time to avoid the
amounts due to Plaintiff under the Lease.
45. Plaintiff seeks and is entitled to a declaration of the Court pursuant to Ohio Revised Code
Chapter 2721 that Erb Towing is the alter ego and successor of Tenant and that Erb Towing is
bound by the Lease and is liable for the amounts due to Plaintiff thereunder.
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Count I] — Unjust Enrichment/Quantum Merui Erb Towin:
46. Plaintiff incorporates the allegations set forth above as if fully restated herein.
47. Plaintiff pleads this claim in the alternative, in the event Erb Towing is not bound by the
Lease as a successor or alter ego of Tenant.
48. Plaintiff provided space pursuant to the Lease that inured to or for the benefit of Erb
Towing.
49. Erb Towing benefited from the Lease and its use of the Premises.
50. Erb Towing was aware of said benefits, but has failed to compensate Plaintiff for said
benefits.
51 Erb Towing’s retention of these benefits under the circumstances would be unjust without
payment to Plaintiff, including interest.
52. As a result of the above, Plaintiff has suffered damages in excess of $134,782.31.
Count IV— Unjust Enrichment/Quantum Meruit—S & J and Classi
53. Plaintiff incorporates the allegations set forth above as if fully restated herein.
54, Plaintiff provided space pursuant to the Lease that inured to or for the benefit of S & J
and Classic.
55 S & J and Classic benefited from the Lease and its use of the Premises.
56. S & J and Classic were aware of said benefits, but has failed to compensate Plaintiff for
said benefits.
57. The retention of these benefits by S & J and Classic under the circumstances would be
unjust without payment to Plaintiff.
58. As a result of the above, Plaintiff has suffered damages in excess of $134,782.31
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Count V — Piercing the Corporate Veil
59. Plaintiff incorporates the allegations set forth above as if fully restated herein.
60. Erb Towing and/or Mr. Erb exercised control over Tenant that was so complete that
Tenant has and had no separate mind, will, or existence of its own.
6l. Erb Towing and/or Mr. Erb exercised control over Tenant in such a manner as to commit
fraud, an illegal act, or a similarly unlawful act including, without limitation, fraudulently
transferring funds from Tenant to Erb Towing, wrongfully failing to pay rent, improperly and
illegally taking funds or other assets belonging to the Tenant and using them for Erb Towing’s
own benefit and enrichment, and causing Tenant to breach its contract with Plaintiff.
62. Plaintiff suffered injury and unjust loss from such control and wrongdoing.
63. As a result, the corporate form of Tenant should be disregarded and Erb Towing and/or
Mr. Erb should be held liable for the amounts owed to Plaintiff under the Lease.
Count VI- Fraudulent Transfer
64. Plaintiff incorporates the allegations set forth above as if fully restated herein.
65 Erb Towing received fraudulent transfers from Tenant in the form of revenue, business,
and/or property, for which it received value on account of the assets and/or operations of Tenant
66. These transfers were made with actual intent to defraud, hinder, or delay Plaintiff's
collection of amounts owed to it under the Lease.
67. Alternatively, these transfers were made without receiving equivalent value and Tenant
was either engaged in or was about to engage in a business or a transaction for which its
remaining assets were unreasonably small in relation to the business or transaction, or Tenant
intended to incur, or believed or reasonably should have believed that it would incur, debts
beyond its ability to pay as they became due.
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68. Plaintiff was damaged as a result of said fraudulent transfers.
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor
and against Defendants, as follows:
a) Ordering that Defendants are jointly and severally liable for all amounts due to Plaintiff
under the Lease in an amount to be proven at trial including, without limitation, all past
due rent, plus all amounts due for the remaining term of the Lease (discounted as
provided in the Lease), plus fees, reasonable attorneys’ fees, interest, and other amounts
due and/or accruing under the Lease, and at law;
b) Declaring that Erb Towing is the alter ego of and successor to Tenant, and that as such is
liable for all amounts due to Plaintiff under the Lease in an amount to be proven at trial
including, without limitation, all past due rent, plus all amounts due for the remaining
term of the Lease (discounted as provided in the Lease), plus fees, reasonable attorneys’
fees, interest, costs to relet, and other amounts due and/or accruing under the Lease, and
at law;
¢) Finding that Erb Towing, S & J, and Classic were unjustly enriched and ordering them to
pay Plaintiff to the extent of said unjust enrichment;
d) Piercing the corporate veil and holding Erb Towing and/or Mr. Erb jointly and severally
liable for all amounts due to Plaintiff under the Lease in an amount to be proven at trial
including, without limitation, all past due rent, plus all amounts due for the remaining
term of the Lease (discounted as provided in the Lease), plus fees, reasonable attorneys’
fees, interest, and other amounts due and/or accruing under the Lease, and at law;
9
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e) Finding that Erb Towing received fraudulent transfers from the Tenant and ordering that
such funds/value/property be paid to Plaintiff to satisfy the amounts due by Tenant to
Plaintiff;
Ordering appropriate injunctive relief;
3) Awarding interest and attorneys’ fees and costs; and
h) Awarding such other and further relief as the Court deems equitable, appropriate, and
just.
JURY DEMAND
Plaintiff demands a trial to a jury on all issues so triable.
Respectfully submitted,
Dated: April 12, 2024 /s/ Robert Huff Miller
Robert Huff Miller (0076939)
ROBERT HUFF MILLER LLC
100 East Broad Street
Columbus, OH 43215
Telephone: 614.384.5794
Facsimile: 614.441.9280
Email rob@roberthuffmiller.com
Counsel for Plaintiff
10
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - M96 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION Z Real Estate, LLC Case No.: c/o Robert Huff Miller 100 East Broad Street Columbus, OH 43215, Judge Plaintiff, v COMPLAINT Erb’s Recycling & Salvage LLC WITH JURY DEMAND c/o Mark Erb, Agent 6176 Pritchard Dr Galloway OH 43119 and Erb’s Towing & Recovery LLC c/o Mark Erb, Agent 6176 Pritchard Dr. Galloway OH 43119 and Mark Erb 6176 Pritchard Dr. Galloway OH 43119 and S & J Auto Services LLC c/o Heath Alan Russell, Agent 8036 Corporate Blvd., Suite C Plain City, OH 43064 and S & J Classic Development, LLC c/o Heath Alan Russell 8036 Corporate Blvd., Suite C Plain City, OH 43064 Defendants. Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - M97 COMPLAINT Now comes Plaintiff Z Real Estate, LLC (“Landlord” or “Plaintiff’), by and through counsel, and for its Complaint against Defendants Erb’s Recycling & Salvage LLC (“Tenant”), Erb’s Towing & Recovery LLC (“Erb Towing”), Mark Erb, S & J Auto Services LLC (“S & J”), and S & J Classic Development, LLC (“Classic”), states and alleges upon personal knowledge as to itself and its own acts and upon information and belief as to all other matters as follows: 1 Plaintiff Z Real Estate, LLC is an Ohio limited liability company with an address as set forth in the case caption 2 Defendant Erb’s Recycling & Salvage LLC is an Ohio limited liability company with its principal place of business in Franklin County, Ohio. 3 Defendant Erb’s Towing & Recovery LLC is an Ohio limited liability company with its principal place of business in Franklin County, Ohio. 4 Defendant Mark Erb is an individual who resides in Franklin County, Ohio at the address set forth in the case caption. 5 Defendant S & J Auto Services LLC is an Ohio limited liability company with its principal place of business in Franklin County, Ohio 6 Defendant S & J Classic Development, LLC is an Ohio limited liability company and/or an unregistered sole proprietorship with its principal place of business in Franklin County, Ohio. 7 Plaintiff's claims arise in the State of Ohio. The amount in controversy exceeds this Court’s jurisdictional requirement. 8 Venue is proper because one or more defendants resides in or has its principal place of business in Franklin County, Ohio, and the Premises are located in Franklin County, Ohio Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - M98 9 Plaintiff has the rights to use, occupy, and sublease the premises located at 1340 Emig Road, Suite A, Columbus, OH 43223 (as more particularly described in the Lease, the “Premises”) pursuant to a lease agreement with B-17 Holdings, LLC, the owner of the Premises. 10. Plaintiff is the Landlord under that certain Sublease Agreement, dated December 20, 2022 (the “Lease”), pursuant to which it leased the Premises to Tenant. A true and correct copy of the Lease is attached hereto as Exhibit A. 11. Tenant has failed to pay the rent due in full starting on June 1, 2023, and owes Landlord $134,782.31 as of March 1, 2024 (after application of the security deposit), which amount continues to increase by monthly rent of $5,739.25 due under the Lease and interest at the rate of 15% per annum. 12. As a result, Tenant is in default under the Lease. 13 Section 13.2(c) of the Lease provides, in part, as follows: Should this Lease be terminated before the expiration of the term of this Lease by reason of Default, or if Tenant abandons or vacates the Premises before the expiration or termination of the term of this Lease without having paid the full rental for the remainder of such term, then at the time of such termination, vacation, or abandonment Tenant shall be liable for all damages sustained by Landlord, including, without limitation, all rent through the remainder of the term of this Lease, including Minimum Rent, Additional Rent and reasonable attorneys’ fees, which amounts shall be reduced to present value using as the discount rate the prime rate being charged by First Commonwealth Bank, Columbus, as of the date of the acceleration, and said present value shall be immediately due and payable without any demand, notice, or action of any kind whatsoever (each of which is hereby expressly waived by Tenant). Tenant agrees that the foregoing calculation bears a reasonable relationship to the actual damages incurred by Landlord in the event of a Default and that this provision does not impose a penalty upon Tenant 14 Tenant owes to Landlord all past due rent, plus all amounts due for the remaining term of the Lease (discounted as provided in the Lease), plus brokerage fees, reasonable attorneys’ fees, 3 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - M99 interest, expenses of placing the Premises in first class rentable condition, and other amounts due and/or accruing under the Lease and at law. 15. Tenant has failed to cure the defaults noted above and remains in default under the Lease. 16. On February 13, 2024, Plaintiff served Tenant and all other occupants of the Premises with a Notice to Leave Premises. 17. As a result of Tenant’s defaults of the Lease and in response to the Notice to Leave Premises, Tenant agreed to surrender the Premises to Landlord effective February 23, 2024, and vacated the Premises on or about said date 18. Landlord has used and continues to use reasonable efforts to relet the Premises, but the Premises remain vacant. 19. Erb Towing operated out of the Premises. 20. Erb Towing has taken over Tenant’s business and is a successor to Tenant. 21 As a successor to Tenant, Erb Towing is bound by the terms of the Lease and is obligated to Plaintiff for all obligations of Tenant under the Lease, including as provided for in Section 19(d) of the Lease. 22. Erb Towing and Tenant breached the Lease by operating Erb Towing out of the Premises, and by failing to pay the amounts due as set forth above. 23. All or part of Tenant’s business operations, assets, and revenue were transferred to Erb Towing in order to evade the debt owed to Plaintiff. 24. Tenant and Mr. Erb, in an effort to avoid their debts, including those under the Lease, transferred some or all of Tenant’s operations and assets to Erb Towing, without fair compensation. Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - N1 25. Tenant has sold or otherwise transferred some or all of its operations and assets to Erb Towing, without receiving equivalent value in exchange. 26. Erb Towing is merely a continuation of Tenant 27. The transfers from Tenant to Erb Towing were entered into fraudulently for the purpose of escaping liability 28 Tenant was grossly undercapitalized and became insolvent by the actions of Mr. Erb during the term of the Lease, who as the owner of Tenant also failed to observe corporate formalities of Tenant and comingled his assets and those of Tenant. 29. Funds or other property of Tenant were diverted for the use and benefit of Erb Towing. 30. S & J operated out of the Premises in breach of the Lease and without compensating Plaintiff for its use of the Premises. 31 S & J’s address is even listed as 1340 Emig Drive as its address in connection with tax- related documents. 32. Classic operated out of the Premises in breach of the Lease and without compensating Plaintiff for its use of the Premises 33. Classic’s address is even listed as 1340 Emig Drive as its address in connection with insurance-related documents. 34. Defendants acted with reckless disregard to Plaintiff’s rights and interests. Count I - Breach of Lease 35. Plaintiff incorporates the allegations set forth above as if fully restated herein. 36. Tenant and Erb Towing are parties to and bound by the Lease (either directly, or in the case of Erb Towing, as a successor) with Plaintiff, which is a valid and enforceable contract. 37. Plaintiff fully performed under the Lease. Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - N2 38. Each of Tenant and Erb Towing breached the Lease by, infer alia, failing to pay rent due under the Lease. 39. Plaintiff provided notice of default under the Lease. 40. These breaches of the Lease are material and have caused damages to Plaintiff in an amount to be proven at trial including, without limitation, all past due rent, plus all amounts due for the remaining term of the Lease (discounted as provided in the Lease), plus fees, reasonable attorneys’ fees, interest, costs to relet, and other amounts due and/or accruing under the Lease and at law, which exceed $134,782.31 Count Il — Declaratory Judgment 41 Plaintiff incorporates the allegations set forth above as if fully restated herein. 42. Plaintiff is requesting this Court to determine the relationship between Tenant and Erb Towing for the purpose of liability under the Lease. 43 There is a genuine justiciable dispute as the parties’ interests are adverse because a determination that Erb Towing is the alter ego or successor of Tenant would result in Erb Towing being liable for all amounts due under the Lease 44, There is sufficient immediacy involved as Tenant is avoiding paying the amounts due under the Lease, has transferred property to Erb Towing in order to avoid payments due to Plaintiff, and Erb Towing could liquidate or further transfer its assets at any time to avoid the amounts due to Plaintiff under the Lease. 45. Plaintiff seeks and is entitled to a declaration of the Court pursuant to Ohio Revised Code Chapter 2721 that Erb Towing is the alter ego and successor of Tenant and that Erb Towing is bound by the Lease and is liable for the amounts due to Plaintiff thereunder. Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - N3 Count I] — Unjust Enrichment/Quantum Merui Erb Towin: 46. Plaintiff incorporates the allegations set forth above as if fully restated herein. 47. Plaintiff pleads this claim in the alternative, in the event Erb Towing is not bound by the Lease as a successor or alter ego of Tenant. 48. Plaintiff provided space pursuant to the Lease that inured to or for the benefit of Erb Towing. 49. Erb Towing benefited from the Lease and its use of the Premises. 50. Erb Towing was aware of said benefits, but has failed to compensate Plaintiff for said benefits. 51 Erb Towing’s retention of these benefits under the circumstances would be unjust without payment to Plaintiff, including interest. 52. As a result of the above, Plaintiff has suffered damages in excess of $134,782.31. Count IV— Unjust Enrichment/Quantum Meruit—S & J and Classi 53. Plaintiff incorporates the allegations set forth above as if fully restated herein. 54, Plaintiff provided space pursuant to the Lease that inured to or for the benefit of S & J and Classic. 55 S & J and Classic benefited from the Lease and its use of the Premises. 56. S & J and Classic were aware of said benefits, but has failed to compensate Plaintiff for said benefits. 57. The retention of these benefits by S & J and Classic under the circumstances would be unjust without payment to Plaintiff. 58. As a result of the above, Plaintiff has suffered damages in excess of $134,782.31 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - N4 Count V — Piercing the Corporate Veil 59. Plaintiff incorporates the allegations set forth above as if fully restated herein. 60. Erb Towing and/or Mr. Erb exercised control over Tenant that was so complete that Tenant has and had no separate mind, will, or existence of its own. 6l. Erb Towing and/or Mr. Erb exercised control over Tenant in such a manner as to commit fraud, an illegal act, or a similarly unlawful act including, without limitation, fraudulently transferring funds from Tenant to Erb Towing, wrongfully failing to pay rent, improperly and illegally taking funds or other assets belonging to the Tenant and using them for Erb Towing’s own benefit and enrichment, and causing Tenant to breach its contract with Plaintiff. 62. Plaintiff suffered injury and unjust loss from such control and wrongdoing. 63. As a result, the corporate form of Tenant should be disregarded and Erb Towing and/or Mr. Erb should be held liable for the amounts owed to Plaintiff under the Lease. Count VI- Fraudulent Transfer 64. Plaintiff incorporates the allegations set forth above as if fully restated herein. 65 Erb Towing received fraudulent transfers from Tenant in the form of revenue, business, and/or property, for which it received value on account of the assets and/or operations of Tenant 66. These transfers were made with actual intent to defraud, hinder, or delay Plaintiff's collection of amounts owed to it under the Lease. 67. Alternatively, these transfers were made without receiving equivalent value and Tenant was either engaged in or was about to engage in a business or a transaction for which its remaining assets were unreasonably small in relation to the business or transaction, or Tenant intended to incur, or believed or reasonably should have believed that it would incur, debts beyond its ability to pay as they became due. Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - N5 68. Plaintiff was damaged as a result of said fraudulent transfers. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor and against Defendants, as follows: a) Ordering that Defendants are jointly and severally liable for all amounts due to Plaintiff under the Lease in an amount to be proven at trial including, without limitation, all past due rent, plus all amounts due for the remaining term of the Lease (discounted as provided in the Lease), plus fees, reasonable attorneys’ fees, interest, and other amounts due and/or accruing under the Lease, and at law; b) Declaring that Erb Towing is the alter ego of and successor to Tenant, and that as such is liable for all amounts due to Plaintiff under the Lease in an amount to be proven at trial including, without limitation, all past due rent, plus all amounts due for the remaining term of the Lease (discounted as provided in the Lease), plus fees, reasonable attorneys’ fees, interest, costs to relet, and other amounts due and/or accruing under the Lease, and at law; ¢) Finding that Erb Towing, S & J, and Classic were unjustly enriched and ordering them to pay Plaintiff to the extent of said unjust enrichment; d) Piercing the corporate veil and holding Erb Towing and/or Mr. Erb jointly and severally liable for all amounts due to Plaintiff under the Lease in an amount to be proven at trial including, without limitation, all past due rent, plus all amounts due for the remaining term of the Lease (discounted as provided in the Lease), plus fees, reasonable attorneys’ fees, interest, and other amounts due and/or accruing under the Lease, and at law; 9 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Apr 12 3:08 PM-24CV003026 0G807 - N6é e) Finding that Erb Towing received fraudulent transfers from the Tenant and ordering that such funds/value/property be paid to Plaintiff to satisfy the amounts due by Tenant to Plaintiff; Ordering appropriate injunctive relief; 3) Awarding interest and attorneys’ fees and costs; and h) Awarding such other and further relief as the Court deems equitable, appropriate, and just. JURY DEMAND Plaintiff demands a trial to a jury on all issues so triable. Respectfully submitted, Dated: April 12, 2024 /s/ Robert Huff Miller Robert Huff Miller (0076939) ROBERT HUFF MILLER LLC 100 East Broad Street Columbus, OH 43215 Telephone: 614.384.5794 Facsimile: 614.441.9280 Email rob@roberthuffmiller.com Counsel for Plaintiff 10