[Cite as Esber Beverage Co. v. Heineken USA Inc., 2011-Ohio-5939.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

ESBER BEVERAGE COMPANY                                   JUDGES:
                                                         Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                               Hon. Sheila G. Farmer, J.
                                                         Hon. John W. Wise, J.
-vs-
                                                         Case No. 2011CA00033
HEINEKEN USA, INC, ET AL

        Defendants-Appellants                            OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court of
                                                     Common Pleas, Case No. 2008 CV 05055


JUDGMENT:                                            Affirmed


DATE OF JUDGMENT ENTRY:                              November 14, 2011


APPEARANCES:


For Plaintiff-Appellee                               For Defendants-Appellants


CARI FUSCO EVANS                                     JAMES L. MESSENGER
Fischer, Evans & Robbins, Ltd.                       RICHARD J. THOMAS
4505 Stephen Circle NW, Suite 100                    JERRY R. KRZYS
Canton, Ohio 44718                                   6 Federal Plaza Central, Suite 1300
                                                     Youngstown, Ohio 44503
Stark County, Case No. 2011CA00033                                                     2

Hoffman, P.J.


       (¶1)   Defendants-Appellants Heineken USA, Inc., et al. (hereinafter, collectively

“HUSA”) appeal the September 18, 2009 Judgment Entry entered by the Stark County

Court of Common Pleas, which granted declaratory judgment in favor of plaintiff-

appellee Esber Beverage Co. (hereinafter “Esber”).

                          STATEMENT OF THE FACTS AND CASE

       (¶2)   Esber is a Canton, Ohio based, family-owned and operated beverage

wholesaler serving Ohio and the United States.         Esber has distributed Heineken

products since 1969, and Newcastle Brown Ale (hereinafter, “the Brand”) since 1976.

       (¶3)   Prior to April 28, 2008, Heineken NV was an international company based

in Holland. HUSA is a wholly owned subsidiary of Heineken BV, which, in turn, is a

wholly owned subsidiary of Heineken NV. Also, prior to April 28, 2008, Scottish &

Newcastle (S&N) was an international company with subsidiaries in 19 countries;

Scottish & Newcastle UK Ltd (“S&N UK”) was a wholly owned subsidiary of S&N based

in the United Kingdom; Newcastle Federation Breweries (“NFB”) was a wholly owned

subsidiary of S&N UK and brewed the Brand; and Scottich & Newcastle Importers, Inc.

(“SNIC”) was a wholly owned subsidiary of S&N UK, located in California, and through

which NFB imported the Brand into the United States. At all times prior to September 1,

2008, Esber was distributing the Brand through NFB’s import agent, SNIC, pursuant to

its franchise governed by the Ohio Alcoholic Beverage Franchise Act, R.C. 1333.83 et

seq. (“the Act”).

       (¶4)   In 2007, and early 2008, Heineken NV and Carlsberg A/S, an international

company based in Denmark, entered into multiple agreements to form a joint venture
Stark County, Case No. 2011CA00033                                                       3


company, Sunrise Acquisitions Limited, for the sole purpose of acquiring and dividing

the assets of S&N.     On January 25, 2008, Sunrise Acquisitions and S&N announced

“they had reached an agreement on the terms of the recommended cash acquisition of

the entire issued and to be issued share capital of [S&N] by [Sunrise Acquisitions].”

Ultimately, Heineken NV acquired S&N’s business in Belgium, Finland, India, Ireland,

Portugal, the United Kingdom, and the United States.            Carlsberg acquired S&N’s

business in China, France, Greece, Russia, Belarus, Estonia, Latvia, Kazakhstan,

Ukraine, Uzbekistan, and Vietnam.

       (¶5)   Heineken NV acquired S&N UK, NFB, the Brand, and SNIC as part of the

businesses, assets and investments it received from the joint venture. Pursuant to the

agreement between S&N and Sunrise Acquisitions, Heineken NV assumed exclusive

control over and liability for the S&N subsidiaries, effective April 28, 2008.

       (¶6)   On April 28, 2008, SNIC sent a letter to each of its United States

distributors regarding Sunrise Acquisitions’ acquisition of S&N and its subsidiaries. In

the correspondence, SNIC advised “S&N Breweries will no longer be supplying [the

Brand] to us on or before September 1, 2008. Once we are no longer importing [the

Brand] into the United States, our contract with you will terminate accordingly. * * * [The

Brand is] in the process of being acquired by Heineken NV.”

       (¶7)   On May 1, 2008, HUSA sent a letter to each of its United States

distributors regarding the acquisition, and indicating HUSA expected “to be appointed

as the US importer for [the Brand] at the earliest opportunity, but no later than

September 1, 2008.” Thereafter, on May 21, and 27, 2008, HUSA sent identical letters

to all of its United States distributors, including Esber, advising the distributors HUSA
Stark County, Case No. 2011CA00033                                                      4


would, in fact, “become the exclusive US importer for the [Brand] on September 1,

2008.” By letter dated June 23, 2008, NFB appointed HUSA as its new import agent for

the Brand. By letter dated July 9, 2008, SNIC informed HUSA of SNIC’s relinquishment

of its representation as the prior import agent of the Brand in order to allow HUSA to

become the new import agent. HUSA sent a letter to the Ohio Department of

Commerce, Division of Liquor Control, on August 25, 2008, notifying the Department

that HUSA would be appointed the sole US importer of the Brand effective September

1, 2008. HUSA indicated SNIC and NFB had authorized such.

         (¶8)   On October 24, 2008, HUSA notified Esber it was terminating Esber’s

franchise in the Brand pursuant to R.C. 1333.85(D). On November 25, 2008, Esber

filed a declaratory judgment action against Heineken NV1, its sister companies, Superior

Beverage Group, Ltd. and Central Beverage Group Ltd., and HUSA. Esber sought a

declaration the termination of its franchise in the Brand was unlawful. The trial court

granted a temporary restraining order on November 26, 2008, temporarily enjoining

HUSA from terminating Esber’s franchise.       Via Judgment Entry filed December 15,

2008, the trial court extended the temporary restraining order until final judgment in the

matter.

         (¶9)   The parties filed Joint Stipulations of Fact as well as other evidentiary

documentation on June 1, 2009. After filing their respective merit and reply briefs, the

parties submitted Count One of the Complaint to the trial court for a determination and

declaration as to “whether [HUSA’s] attempted termination of [Esber’s] franchise by way

of correspondence dated October 24, 2008, was lawful.”



1
    Esber’s claims against Heineken NV were voluntarily dismissed.
Stark County, Case No. 2011CA00033                                                    5


       (¶10) Via Judgment Entry filed September 18, 2009, the trial court granted

declaratory judgment in favor of Esber. The trial court found Heineken NV, the indirect

parent company of HUSA, acquired S&N, its UK and US breweries, including NFB and

SNIC as well as the Brand, effective April 28, 2008. The trial court further determined,

as a matter of law, the transfer of import rights in the Brand, effective September 1,

2008, was merely a transfer from one Heineken controlled entity, NFB, to another

Heineken controlled entity, HUSA.       Based upon this Court’s decision in Esber

Beverage¸Co v. InBev USA, Stark App. No. 200CA113, 2007-Ohio-927, the trial court

concluded the acquisition of import rights by HUSA as of September 1, 2008, did “not

constitute a ‘successor manufacturer’ transaction permitting termination under the Act”;

therefore, HUSA’s attempted termination of Esber’s franchise on October 24, 2008, was

unlawful. September 18, 2009 Judgment Entry at 6, 9.

       (¶11) HUSA filed a timely appeal to this Court. This Court dismissed the appeal

for lack of a final appealable order. Esber Beverage Co. v. Heineken USA, Inc., Stark

App. No. 2009CA00258, 2010-Ohio-2983.          Upon remand, the parties settled the

remaining claim of intentional interference with business relationship. The trial court

issued a Judgment Entry of Settlement and Dismissal with Respect to Remaining Count

on January 26, 2011. As a result, the September 18, 2009 Judgment Entry became a

final, appealable order.

       (¶12) It is from these judgment entries, HUSA appeals, raising as error:

       (¶13) “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS

SEPTEMBER 18, 2009 JUDGMENT ENTRY, BECAUSE HUSA IS A ‘SUCCESSOR
Stark County, Case No. 2011CA00033                                                           6


MANUFACTURER’ UNDER R.C. 1333.85(D) AND IT PROVIDED TIMELY NOTICE OF

TERMINATION TO ESBER.

       (¶14) “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING

INJUNCTIVE RELIEF IN ITS SEPTEMBER 18, 2009 AND NOVEMBER 26, 2008

JUDGMENT ENTRIES, BECAUSE IN THE EVENT OF A WRONGFUL TERMINATION

OHIO’S ALCOHOLIC BEVERAGE FRANCHISE ACT PROVIDES FOR MONETARY

DAMAGES, NOT INJUNCTIVE RELIEF.

       (¶15) “III. THE TRIAL COURT ERRED AS A MATTER OF LAW, BECAUSE

ESBER IS JUDICIALLY ESTOPPED FROM ARGUING THAT NOTICE SHOULD HAVE

BEEN SENT AFTER APRIL 28, 2008, BECAUSE ESBER SIMULTANEOUSLY TOOK

THE OPPOSITE POSITION IN ANOTHER STARK COUNTY CASE.”

                                                  I

       (¶16) In the first assignment of error, HUSA asserts the trial court erred in

finding HUSA was not a “successor manufacturer” under R.C. 1333.85(D), and finding

HUSA’s attempted termination of Esber’s franchise was unlawful pursuant to the Act.

       (¶17) The Act governs the franchise relationships between manufacturers and

distributors of alcoholic beverages, including beer, within Ohio. Under R.C. 1333.85, a

franchise cannot be terminated absent prior consent unless just cause exists and notice

is provided. R.C. 1333.85. R.C. 1333.85(A) lists three situations which always constitute

just cause: (1) voluntary bankruptcy; (2) involuntary bankruptcy; or (3) loss of liquor

permits. R.C. 1333.85(B) lists four situations which never constitute just cause: (1)

failure of a party to take action that would result in a violation of federal or state law; (2)

restructuring, other than in bankruptcy, of a manufacturer's business; (3) unilateral
Stark County, Case No. 2011CA00033                                                           7


alteration of the franchise by a manufacturer for a reason unrelated to any breach of the

franchise or violation of R.C. 1333.82 and 1333.86; and (4) “a manufacturer's sale,

assignment, or other transfer of the manufacturer's product or brand to another

manufacturer over which it exercises control.” R.C. 1333.85(C) governs how a

manufacturer and distributor should deal with excess inventory in case of termination.

       (¶18) R.C. 1333.85(D) is an exception to the general rule requiring just cause.

Under the terms of (D), if a successor manufacturer “acquires all or substantially all of

the stock or assets of another manufacturer through merger or acquisition or acquires or

is the assignee of a particular product or brand of alcoholic beverage from another

manufacturer,” then it can terminate, via written notice, a previous manufacturer's

franchise agreements within 90 days of the date of the acquisition. R.C. 1333.85(D).

Upon termination, the “distributor shall sell and the successor manufacturer shall

repurchase the distributor's inventory of the terminated or nonrenewed product or

brand” at the “laid-out cost to the distributor including freight and cartage.” R.C.

1333.85(C) and (D). The successor manufacturer must also compensate the distributor

“for the diminished value of the distributor's business that is directly related to the sale of

the product or brand terminated.” R.C. 1333.85(D). The value of directly related

business includes, but is not limited to, “the appraised market value of those assets of

the distributor principally devoted to the sale of the terminated ... product or brand and

the goodwill associated with that product or brand.” R.C. 1333.85(D).

       (¶19) HUSA argues it is a “successor manufacturer” under R.C. 1333.85(D), and

the October 24, 2008 notice of termination letter sent to Esber was timely and legal.
Stark County, Case No. 2011CA00033                                                         8

       (¶20) Relying upon this Court’s decision in Esber Beverage Co. v. InBev USA,

supra, the trial court found Heineken NV’s acquisition of the Brand and the S&N

businesses on April 28, 2008, constituted a “successor manufacturer” transaction under

the Act.   However, the trial court found to the contrary with respect to HUSA’s

acquisition of the import rights to the Brand, effective September 1, 2008. The trial

court concluded NFB’s appointment of HUSA as the new import agent of the Brand did

not constitute a “successor manufacturer” transaction. We agree with the trial court.

       (¶21) In Esber Beverage Co. v. InBev USA, supra, this Court held R.C.

1333.85(D) is not triggered in the case of an assignment or other transfer of the

manufacturer’s product or brand to another manufacturer over which it exercises

control. This Court analyzed the intent of the Legislature, noting:

       (¶22) “ ‘A court must read various provisions of a statute consistently and

presume that the legislature intended the entire statute to have meaning and effect.

Taber v. Ohio Dept of Human Services, 125 Ohio App.3d 742, 747 (Ohio App.1998);

C.R.C. § 1.47(B). No plausible reason exists as to why the legislature would expressly

deny termination rights in one section, then several paragraphs later, create an

exception that would swallow the original rule. Moreover, it would not make sense for §

1333.85(D) to condition termination rights on a “merger or acquisition,” if a contrived

sale and/or paper merger, like the merger in this case, qualified. If the legislature truly

intended to grant manufacturers the ability to buy their way out of franchise agreements

by paying the distributor for the diminished value of its business, it would have simply

said so’.” Id. at para. 64, citing InBev USA, LLC. v. Hill Distributing Co., et al., Case No.

2:05-CV-00298 (S.D. Ohio, April 3, 2006).
Stark County, Case No. 2011CA00033                                                       9


       (¶23) Furthermore, the “Act is designed in part to protect distributors from

certain practices of beverage manufacturers. It recognizes that distributors often have a

substantial investment in their businesses, including the physical assets and real

property used to distribute the manufacturers' products, and that to allow a

manufacturer unilaterally to terminate a franchise agreement puts the franchise

distributors at great risk of harm. The just cause requirement for terminating a franchise

agreement is intended to protect the franchisee from this type of arbitrary and potentially

coercive act.

       (¶24) “If   the exception to     the just    cause requirement for successor

manufacturers were read narrowly, and the proceedings about compliance with that

provision were confined to a review of documents alone, it would be too easy for a

manufacturer to set up a new entity which, on paper, looks like a business that is not

under the control of its predecessor, while at the same time exercising control over the

new entity by disregarding the language of the written instruments that purported to

transfer control. Before the franchisee is deprived of what the Ohio legislature clearly

regards as an important right not to lose the franchise for insufficient reasons, the

franchisee ought to be entitled to test the reality of any transaction that might result in

the loss of the franchise.” Beverage Distributors, Inc. v. Miller Brewing Co., Case Nos.

2:08-cv-827, 2:08-cv-931, 2:08-cv-1112, 2:08-cv-1131, 2:08-cv-1136, 2:09-cv-0022

(S.D. Ohio, June 2, 2009).

       (¶25) Even though NFB’s appointment of HUSA as the import agent for the

Brand was not effective until September 1, 2008, Heineken NV owned and controlled

both NFB and HUSA as of April 28, 2008. All of the correspondences from HUSA to its
Stark County, Case No. 2011CA00033                                                     10


Ohio distributors, prior to September 1, 2008, acknowledged the change. We find the

Legislature did not intend for a corporation to be able to manipulate the date of a

transaction in order to circumvent the 90 day notice provision in R.C. 1333.85. We

further find the trial court correctly analyzed the transaction under R.C. 1333.85(B)(4).

HUSA, therefore, did not timely, legally terminate Esber’s franchise.

       (¶26) HUSA relies upon Superior Beverage Co., Inc. v. Schieffelin & Co. Case

Nos. 1:05 CV 0834, 4:05 CV 0868 (N.D. Ohio, Sept. 20, 2007), in support of its position

the appointment of import rights from NFB to HUSA was a “successor manufacturer”

transaction. We find HUSA’s reliance on Schieffelin to be misplaced. The facts in the

instant action are distinguishable from the facts of the Schieffelin case. Heineken NV

had full control of both NFB and HUSA whereas Shieffelin was a 50% partner, sharing

control with another entity.

       (¶27) HUSA’s first assignment of error is overruled.

                                               II

       (¶28) In the second assignment of error, HUSA maintains the trial court erred in

granting injunctive relief as the Act only provides for monetary damages.

       (¶29) In Tri–County Wholesale Dist. v. The Wine Group, No. 2:10–cv–693

(S.D.Ohio Sept. 2, 2010), the United States District Court for the Southern District of

Ohio, addressed the same argument as HUSA asserts herein. The Court found:

       (¶30) “The Franchise Act contemplates suits for “damages or other relief.” Ohio

Rev.Code § 1333.87 (emphasis added). Moreover, numerous courts have issued

injunctions preserving the rights of distributors under the Franchise Act until the merits

could be fully litigated, a fact that presumably has not escaped the Ohio General
Stark County, Case No. 2011CA00033                                                    11

Assembly's notice. See, e.g., InBev USA LLC v. Hill Distrib. Co., No. 2:05-cv-298

(S.D.Ohio Mar. 31, 2005) (granting temporary restraining order); Esber Beverage Co. v.

Labatt USA Operating Co., No.2009CV03142 (Stark Cty. Ohio Com. Pl. Dec. 1, 2009)

(granting preliminary injunction).” Id. at *2. We agree.

       (¶31) Based upon the language of R.C. 1333.87, we find the trial court did not

err in granting injunctive relief to Esber.

       (¶32) HUSA’s second assignment of error is overruled.

                                                 III

       (¶33) In the final assignment of error, HUSA submits the trial court erred in not

finding Esber was judicially estopped from taking a position in the instant action while

simultaneously taking the opposite position in another Stark County action.

       (¶34) The doctrine of judicial estoppel “forbids a party from taking a position

inconsistent with one successfully and unequivocally asserted by the same party in a

prior proceeding.” Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, at

para. 25 (Citations omitted). “The doctrine applies only when a party shows that his

opponent: (1) took a contrary position; (2) under oath in a prior proceeding; and (3) the

prior position was accepted by the court.” Id.

       (¶35) HUSA submits Esber was judicially estopped from arguing the notice of

termination should have been sent prior to September 1, 2008.     HUSA explains, in an

unrelated case, Esber Beverage v. Ste. Michelle Wine Estates, Stark County Court of

Common Pleas Case No. 2008CV03368, Esber argued a notice of termination sent

prior to the date on which the supplier became registered with the State of Ohio was

premature; therefore, not valid. The Ste. Michelle action was resolved and dismissed.
Stark County, Case No. 2011CA00033                                                     12


There is no record demonstration the trial court accepted Esber’s position in that matter.

Accordingly, we find HUSA has not satisfied the third criteria, to wit: that the prior

position was accepted by the court.

      (¶36) HUSA’s third assignment of error is overruled.

      (¶37) The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ John W. Wise______________________
                                            HON. JOHN W. WISE
Stark County, Case No. 2011CA00033                                               13


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


ESBER BEVERAGE COMPANY                    :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
HEINEKEN USA, INC, ET AL                  :
                                          :
       Defendants-Appellants              :        Case No. 2011CA00033


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellants.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer___________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise______________________
                                          HON. JOHN W. WISE
