COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68402 BROWN DERBY, INC. : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION NTK, ET AL. : : PER CURIAM Defendant-appellees : : DATE OF ANNOUNCEMENT : JUNE 8, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-250559 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: EDWARD R. REICHEK, ESQ. GLENN D. WAGGONER, ESQ. Suite 1225 Suite 960 75 Public Square 5005 Rockside Road Cleveland, OH 44113 CLEVELAND, OH 44131-6808 KEVIN J. LOCKE, ESQ. Pepple & Waggoner Crown Centre Bldg., #960 5005 Rockside Road Cleveland, OH 44131-6808 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the record from the court of common pleas and the briefs and oral arguments of counsel. In 1972, defendant Nick Kapioltas and plaintiff Brown Derby, Inc. entered into a franchise agreement in which Kapioltas, as "principal," would form a corporation known as NTK, Inc. and operate a restaurant franchise. Two weeks after signing the franchise agreement, Kapioltas filed the articles of incorporation with the secretary of state. The franchise agreement expired by its own terms in 1983. Although Kapioltas did not invoke the renewal clause of the franchise agreement, the parties continued the franchisor/fran- chisee relationship. In 1993, Brown Derby filed this action on account, seeking to recover $234,168.19 in unpaid franchise and advertising fees. It later served notice to NTK that it was terminating the franchise agreement. When the bankruptcy court issued a stay of proceedings as to NTK, Brown Derby elected to proceed against Kapioltas individually. The parties stipulated to the facts and submitted the matter to the trial court for hearing. In its written opinion, the trial court found Kapioltas signed the franchise agreement as a guarantor. However, the trial court further found that once the agreement expired in 1983, Brown Derby could not hold Kapioltas personally liable for the debts of the - 3 - corporation since Brown Derby at all times thereafter looked to NTK as its franchisee. In addition, the trial court found the statute of frauds required a signed writing must exist to charge Kapioltas with the debts of the corporation upon the expiration of the original franchise agreement. The issue in this appeal is whether Kapioltas can be held personally liable for NTK's franchise and advertising fees. Brown Derby argues that Kapioltas is liable for those fees as a result of his legal status as a guarantor by virtue of the parties' adherence to the terms of the otherwise lapsed franchise agreement. Kapioltas argues his contractual status as guarantor ceased when NTK failed to renew the contract, regardless of the parties' subsequent course of conduct. A guarantor is one who undertakes collaterally to answer for the payment of another's debt or the performance of another's duty, liability or obligation. Sturges v. Bank of Circleville (1860), 11 Ohio St. 153, 168; White v. White (1977), 50 Ohio App.2d 263, 269- 270. This duty is separate and distinct from the promise the principal makes with the guarantee. Therefore, the intention to bind one as a guarantor must be clearly manifested. Yearling Properties, Inc. v. Tedder (1988), 53 Ohio App.3d 52. As a result, the law does not presume that a guaranty is continuing unless the surrounding circumstances compel that presumption. Id.; Nelsonville Electric & Mfg. Co. v. Marshall (App.1957), 76 Ohio Law Abs. 289. - 4 - The original franchise agreement ended with Kapioltas taking none of the steps necessary to renew his status as a guarantor. Absent a new agreement binding Kapioltas as a guarantor, the law implies no such obligation to him. Without characterizing the legal status of the parties subsequent to the 1983 termination of the franchise agreement, we note a new contractual relationship arose between the parties. While this relationship may have mirrored that relationship defined under the original franchise agreement, the stipulated facts do not show the parties intended that Kapioltas continue as a guarantor. Since there was no evidence concerning the intent of the parties, the trial court could not impose a guaranty relationship. The assigned errors are 1 overruled. Judgment affirmed. 1 Our disposition of this argument moots any discussion concerning the statute of frauds. See App.R. 12(A)(1)(c). - 5 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, CHIEF JUSTICE PATRICIA BLACKMON, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .