STATESVILLE, N.C. – A Sprint Cup team owner’s lawsuit seeks the charter NASCAR granted his former partner.
Hillman Racing, team owner Mike Hillman and partners Doug Fuller and Matt Miller filed suit Friday in North Carolina Superior Court in Iredell County against former partner Joe Falk, Circle Sport, Leavine Family Racing and Circle Sport-Leavine Family Racing.
Hillman Racing and its partners seek a judgment in excess of $25,000, punitive damages, rights to ownership of the No. 33 team, its charter and all the profits and benefits that Circle Sport-Leavine Family Racing’s No. 95 car enjoys.
Falk aligned with Leavine Family Racing before this season to form Circle Sport-Leavine Family Racing.
As part of the merger, the No. 95 was maintained but inherited the No. 33 team’s points and performance, making it eligible for one of the 36 Sprint Cup charters NASCAR granted before the season.
Hillman Racing’s No. 40 was not granted a charter because it had not competed full-time the past three seasons.
The complaint by Hillman Racing states that Falk improperly entered into an agreement with Leavine Family Racing.
Falk told NBC Sports: “We believe the plaintiffs’ claims are without merit but will not comment further since litigation is ongoing.’’
Court documents state that Falk and Hillman Racing formed a partnership in Feb. 2012, agreeing to race under the Hillman Racing banner and operate from the team’s Mooresville, North Carolina, shop.
Michael Waltrip drove the team’s No. 40 car in the Daytona 500. Court documents state that due to NASCAR rules at the time, Waltrip’s run in that car caused it to be considered a fourth Michael Waltrip Racing entry. That prevented Hillman Racing from fielding any other car in 2012 because of the four-car limit.
During Daytona 500 qualifying, according to court documents, Richard Childress approached Falk to see if the group had an interest in purchasing the points associated with the No. 33 car, owned by Richard Childress Racing. They did.
According to the lawsuit, Falk, Hillman, Childress and Torrey Galida, president of RCR, met at Childress Vineyards for lunch before the Phoenix race in March 2012 to discuss arrangements. The points would be sold for $200,000 if the No. 33 car was in the top 35 in points following the first Texas race. If not, the price would be $100,000.
The points were sold for $100,000.
Because Hillman Racing could not operate an additional car because it was considered a fourth MWR entry, the parties agreed that Falk would form Circle Sport for the purpose of purchasing the No. 33 car’s points and contributing those points to the partnership.
Throughout the 2012 season, according to the complaint, the partnership of Hillman Racing and Falk operated the No. 33 car.
The partners initially agreed Falk would use the race winnings from the No. 33 car to reimburse all operating expenses (including engine and tire bills) and pay back the $100,000 purchase price for the No. 33 car’s points, according to the complaint. Whatever winnings remained after payment of expenses would be transferred to Hillman Racing to pay operating expenses, including employees, lease payments, equipment and other items.
The partnership continued in 2013 and included an agreement with Richard Childress Racing for it to operate the No. 33 car in select races. As part of the agreement, RCR arranged for Earnhardt Childress Racing to supply an engine at a reduced price to the team’s No. 40 car for the Brickyard 400. After making the race with that car, Hillman Racing began running it every week.
The complaint states that over time, Hillman purchased equipment and parts in Circle Sport’s name and that Falk negotiated and entered into agreements on behalf of Hillman Racing. The complaint also states that earnings from both the No. 33 (Circle Sport) and No. 40 (Hillman Racing) were combined to pay for operating expenses and pay back the $100,000 note for the purchase of the No. 33 car’s points.
In 2014, the No. 33 and No. 40 cars ran full-time. The complaint states that Hillman and Fuller brought in “numerous sponsors” for the No. 33 car. The complaint states: “During the process of securing these sponsorships, Hillman and Falk explained that Hillman Racing and Circle Sport operated pursuant to a partnership as part of the same organization.’’
The complaint states that “while Falk has invested into the Partnership, his contributions paled in comparison to that made by the other partners. Likewise, Falk rebuked a request by Miller and Fuller to establish a credit line to cure a significant (i.e. at least $350,000) operating shortfall from 2014.’’
The complaint states that as the 2014 season came to an end, “tensions began to mount” between the partners and Falk, “mostly due to Falk’s continued failure and refusal to contribute sufficient funds to continue to properly operate the Partnership’s race teams. As a result, Hillman and Hillman Racing contributed substantially more assets and incurred substantially more debt.’’
Court documents state that for the 2015 season, the partnership agreed to divert more resources to the No. 40 car, making it the flagship car. The partners agreed to allow Richard Childress Racing to operate the No. 33 car for multiple races in return for a payment of $25,000 for all races except the Daytona 500 (in addition to other details regarding the payment of purse and plan money, etc.). RCR would pay $75,000 for the Daytona 500.
The complaint alleges that before the Daytona 500 Hillman “discovered that Falk directed a sponsor for the 40 car to write the sponsorship check (for funds due from the 2014 season) payable to Circle Sport and not Hillman Racing. Of course, the parties had all previously agreed and understood that sponsorship funds were to be utilized to fund racing operations, for which Hillman Racing incurred substantial debt.’’
After the Daytona 500, according to the complaint, Hillman and Falk agreed to terminate their partnership after the 2015 season.
Among the agreements the complaint states is that following the 2015 season, Circle Sport and Falk would “transfer all of their right, title and interest in and to the 33 points, and to all other property acquired by the Partnership to the remaining partners or an entity to be designated by them.’’
In March 2015, then-counsel for Hillman Racing drafted a written “Purchase Agreement” for the termination of the partnership and transfer of assets, including the No. 33 car’s points.
The complaint states that Falk initially did not respond with any objection but later failed and refused to sign the agreement.
In May 2015, according to the complaint, Falk sent Hillman an email stating that he wanted to own the No. 33 car’s points outright at the end of the year. Hillman did not respond because the remaining partners did not want to modify their termination agreement.
The complaint states that in Oct. 2015 Hillman was informed by NASCAR personnel that material terms of the charter system had been agreed upon. Court documents state that NASCAR informed Hillman that the field would be reduced from 43 to 40 cars and that 36 would receive charters. Hillman was informed that the No. 33 would receive a charter but not the No. 40.
The complaint states “because the Partnership continued to have Circle Sport listed as the designated owner of the 33 points, NASCAR personnel informed Falk that the 33 car could receive a charter.’’
In late January 2016, Circle Sport announced its merger with Leavine Family Racing. The complaint states that Hillman and his partners were not included in the discussions with Leavine and that the announcement came as a “surprise.’’
The complaint states: “As a results of the circumstances described … the 40 points are of negligible value, the Partnership is unable to race full-time during the 2016 race season, Hillman and Hillman Racing have no ability to pay for the significant debt incurred in the 2013, 2014 and 2015 race seasons, and the remaining partners have been forced to liquidate many of the Partnership’s remaining assets.’’
Hillman Racing attempted to make the Daytona 500 with Reed Sorenson but failed to do so. The team has not entered a Cup race since.