[Cite as Heineken U.S.A., Inc. v. Esber Beverage Co., 2014-Ohio-946.]
[Please see vacated opinion at 2014-Ohio-291.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: HEINEKEN USA, INCORPORATED : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 2013 CA 00158 ESBER BEVERAGE COMPANY : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No.2013CV00891
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 10, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES L. MESSENGER GARY CORROTO RICHARD J. THOMAS MARIA KLUTINOTY EDWARDS JERRY KRZYS Tzangas, Plakas, Mannos, Ltd 6 Federal Plaza Central, Ste. 1300 220 Market Avenue South, 8th Floor Youngstown, OH 44503 Canton, OH 44702
STANLEY R. RUBIN 437 Market Avenue North Canton, OH 44702 [Cite as Heineken U.S.A., Inc. v. Esber Beverage Co., 2014-Ohio-946.]
Gwin, J.,
{¶1} On February 6, 2014, defendant-appellee Esber Beverage Company filed
motions for reconsideration, to certify a conflict and for en banc consideration of our
January 27, 2014 decision reversing the trial court’s grant of summary judgment in
Esber’s favor. See, Heineken USA, Inc. v. Esber Beverage Company, 5th Dist. Stark
No. 2013CA00158, 2014-Ohio-291.
Facts and Procedural History
{¶2} Appellee, Esber Beverage Company (“Esber”) is one of the oldest, family-
owned, continuously operated beverage wholesalers in Ohio and the United States. It
was founded in 1937 by Dave and Helen Esber and is currently operated by second and
third generation Esber family members. Esber is an Ohio distributor of alcoholic
beverages to retail permit holders in the state.
{¶3} Heineken N.V. is a beverage manufacturer based in the Netherlands.
Heineken USA, Inc. [“HUSA”] is a wholly owned subsidiary of Heineken Brouwerijen
B.V. [“Heineken B.V.”], which, in turn, is a wholly owned subsidiary of Heineken N.V.
{¶4} Pursuant to a multi-billion dollar acquisition, in April 2008, Heineken N.V.
acquired certain Scottish & Newcastle UK Ltd. [“S&N UK”] businesses in Belgium,
Finland, Ireland, Portugal, the United Kingdom, and the United States (“the S&N
Acquisition”). See, Esber Beverage Co. v. Heineken USA, Inc., 5th Dist. Stark No. 2011
CA00033, 2011-Ohio-5939, 2011 WL 5626592. [“Esber I”]. As a result of the S&N
Acquisition, Heineken N.V. assumed exclusive control over and liability for S&N UK, its
subsidiaries and its assets, including a brand of hard cider named Strongbow Hard
Cider [“Strongbow”], effective April 28, 2008. Since that time, Heineken N.V. has, Stark County, Case No. 2013 CA 00158 3
through its subsidiaries, manufactured, marketed and sold Strongbow in international
markets.
{¶5} Prior to January 1, 2013, Heineken N.V. supplied Strongbow into the
United States through its import agent Vermont Hard Cider Company, LLC (“VHCC”).
{¶6} Heineken B.V. entered into an agreement with VHCC effective December
31, 2012, pursuant to which Heineken B.V. compensated VHCC in exchange for the
early termination of VHCC’s right to supply Strongbow in the United States. Affidavit of
Hemmo Parson, Senior Legal Counsel for Heineken B.V., ¶19 [“Parson”]. Thereafter,
Heineken B.V. entered into an agreement with HUSA, “nam[ing]” the latter as the
exclusive U.S. import agent for the Brand effective January 1, 2013. Parson, ¶20.
“Heineken USA’s importation of the Strongbow Brand into the United States is now
governed by said agreement” with Heineken B.V. Parson, ¶ 20.
{¶7} By letter dated October 30, 2012, Heineken B.V. and HUSA informed
Esber it was terminating Esber’s “franchise and the associated distribution rights” with
respect to Strongbow pursuant to R.C. 1333.85(D). On March 29, 2013, HUSA filed a
Complaint in the Stark County Court of Common Pleas pursuant to R.C. 1333.851(B).
The Complaint sought a determination within 90 days by the Court of the diminished
value to Esber’s business due to the loss of the Strongbow brand. Esber filed an answer
and subsequently a motion for summary judgment.
{¶8} The trial court granted Esber’s motion for summary judgment finding that
the franchise termination rules of R.C. 1333.85(D) only apply to a “successor
manufacturer” and HUSA was not a successor manufacturer. Stark County, Case No. 2013 CA 00158 4
{¶9} On January 27, 2014, this Court issued its opinion in Heineken USA, Inc.
v. Esber Beverage Company, 5th Dist. Stark No. 2013 CA 00158, 2014-Ohio-291.
{¶10} On February 6, 2014, defendant-appellee Esber Beverage Company filed
motions for reconsideration, to certify a conflict and for en banc consideration of our
January 27, 2014 decision reversing the trial court’s grant of summary judgment in
Esber’s favor. Heineken USA filed its memorandum in response.
Application for Reconsideration
{¶11} App. R. 26 does not provide specific guidelines to be used by an appellate
court when determining whether a decision should be reconsidered or modified. In
Mathews v. Mathews, 5 Ohio App.3d 140, 143, 450 N.E. 2d 278 218(10th Dist. 1981),
the court stated: [t]he test generally applied in [A]pp. R. 26 (A) motions] is whether the
motion for reconsideration calls to the attention of the court an obvious error in its
decision or raises an issue for our consideration that was either not considered at all or
was not fully considered by us when it should have been.” See also, State v. Owens,
112 Ohio App.3d 334, 678 N.E. 2d 956 (11th Dist. 1996); Erie Insurance Exchange v.
Colony Development Corp., 136 Ohio App.3d 419, 736 N.E.2d 950 (10th Dist. 2000).
{¶12} Esber’s application for reconsideration raises an obvious error in our
decision. No cross motion for summary judgment had been filed in the trial court. We
grant Esber’s application for reconsideration and vacate our decision and instead upon
consideration of the motion and the responses, we herby reverse the trial court’s entry
of summary judgment in favor of defendant-appellee Esber because we find from a
complete and thorough review of the record in this case genuine issues of material fact
exist. Stark County, Case No. 2013 CA 00158 5
{¶13} A final determination of the issues in this case will require more factual
development. After further discovery and development of the underlying facts
concerning the various transactions and the relationship of the entities involved, either
party is of course, free to seek summary judgment if it should see fit. Our previous
opinion filed in this matter shall have no precedential value.
Motion to Certify a Conflict
{¶14} Our disposition of Esber’s application for reconsideration renders moot his
Motion to Certify a Conflict.
Motion for En Banc Consideration
{¶15} Our disposition of Esber’s application for reconsideration renders moot his
Motion for En Banc Consideration. Stark County, Case No. 2013 CA 00158 6
Disposition
{¶16} In sum, we grant Esber’s motion for reconsideration. Upon
reconsideration, we vacate our January 27, 2014 decision, grant appellant’s single
assignment of error and reverse the judgment of the Stark County Court of Common
Pleas granting summary judgment in Esber’s favor.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Heineken U.S.A., Inc. v. Esber Beverage Co., 2014-Ohio-946.]
[Please see vacated opinion at 2014-Ohio-291.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: HEINEKEN USA, INCORPORATED : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 2013 CA 00158 ESBER BEVERAGE COMPANY : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No.2013CV00891
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 10, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES L. MESSENGER GARY CORROTO RICHARD J. THOMAS MARIA KLUTINOTY EDWARDS JERRY KRZYS Tzangas, Plakas, Mannos, Ltd 6 Federal Plaza Central, Ste. 1300 220 Market Avenue South, 8th Floor Youngstown, OH 44503 Canton, OH 44702
STANLEY R. RUBIN 437 Market Avenue North Canton, OH 44702 [Cite as Heineken U.S.A., Inc. v. Esber Beverage Co., 2014-Ohio-946.]
Gwin, J.,
{¶1} On February 6, 2014, defendant-appellee Esber Beverage Company filed
motions for reconsideration, to certify a conflict and for en banc consideration of our
January 27, 2014 decision reversing the trial court’s grant of summary judgment in
Esber’s favor. See, Heineken USA, Inc. v. Esber Beverage Company, 5th Dist. Stark
No. 2013CA00158, 2014-Ohio-291.
Facts and Procedural History
{¶2} Appellee, Esber Beverage Company (“Esber”) is one of the oldest, family-
owned, continuously operated beverage wholesalers in Ohio and the United States. It
was founded in 1937 by Dave and Helen Esber and is currently operated by second and
third generation Esber family members. Esber is an Ohio distributor of alcoholic
beverages to retail permit holders in the state.
{¶3} Heineken N.V. is a beverage manufacturer based in the Netherlands.
Heineken USA, Inc. [“HUSA”] is a wholly owned subsidiary of Heineken Brouwerijen
B.V. [“Heineken B.V.”], which, in turn, is a wholly owned subsidiary of Heineken N.V.
{¶4} Pursuant to a multi-billion dollar acquisition, in April 2008, Heineken N.V.
acquired certain Scottish & Newcastle UK Ltd. [“S&N UK”] businesses in Belgium,
Finland, Ireland, Portugal, the United Kingdom, and the United States (“the S&N
Acquisition”). See, Esber Beverage Co. v. Heineken USA, Inc., 5th Dist. Stark No. 2011
CA00033, 2011-Ohio-5939, 2011 WL 5626592. [“Esber I”]. As a result of the S&N
Acquisition, Heineken N.V. assumed exclusive control over and liability for S&N UK, its
subsidiaries and its assets, including a brand of hard cider named Strongbow Hard
Cider [“Strongbow”], effective April 28, 2008. Since that time, Heineken N.V. has, Stark County, Case No. 2013 CA 00158 3
through its subsidiaries, manufactured, marketed and sold Strongbow in international
markets.
{¶5} Prior to January 1, 2013, Heineken N.V. supplied Strongbow into the
United States through its import agent Vermont Hard Cider Company, LLC (“VHCC”).
{¶6} Heineken B.V. entered into an agreement with VHCC effective December
31, 2012, pursuant to which Heineken B.V. compensated VHCC in exchange for the
early termination of VHCC’s right to supply Strongbow in the United States. Affidavit of
Hemmo Parson, Senior Legal Counsel for Heineken B.V., ¶19 [“Parson”]. Thereafter,
Heineken B.V. entered into an agreement with HUSA, “nam[ing]” the latter as the
exclusive U.S. import agent for the Brand effective January 1, 2013. Parson, ¶20.
“Heineken USA’s importation of the Strongbow Brand into the United States is now
governed by said agreement” with Heineken B.V. Parson, ¶ 20.
{¶7} By letter dated October 30, 2012, Heineken B.V. and HUSA informed
Esber it was terminating Esber’s “franchise and the associated distribution rights” with
respect to Strongbow pursuant to R.C. 1333.85(D). On March 29, 2013, HUSA filed a
Complaint in the Stark County Court of Common Pleas pursuant to R.C. 1333.851(B).
The Complaint sought a determination within 90 days by the Court of the diminished
value to Esber’s business due to the loss of the Strongbow brand. Esber filed an answer
and subsequently a motion for summary judgment.
{¶8} The trial court granted Esber’s motion for summary judgment finding that
the franchise termination rules of R.C. 1333.85(D) only apply to a “successor
manufacturer” and HUSA was not a successor manufacturer. Stark County, Case No. 2013 CA 00158 4
{¶9} On January 27, 2014, this Court issued its opinion in Heineken USA, Inc.
v. Esber Beverage Company, 5th Dist. Stark No. 2013 CA 00158, 2014-Ohio-291.
{¶10} On February 6, 2014, defendant-appellee Esber Beverage Company filed
motions for reconsideration, to certify a conflict and for en banc consideration of our
January 27, 2014 decision reversing the trial court’s grant of summary judgment in
Esber’s favor. Heineken USA filed its memorandum in response.
Application for Reconsideration
{¶11} App. R. 26 does not provide specific guidelines to be used by an appellate
court when determining whether a decision should be reconsidered or modified. In
Mathews v. Mathews, 5 Ohio App.3d 140, 143, 450 N.E. 2d 278 218(10th Dist. 1981),
the court stated: [t]he test generally applied in [A]pp. R. 26 (A) motions] is whether the
motion for reconsideration calls to the attention of the court an obvious error in its
decision or raises an issue for our consideration that was either not considered at all or
was not fully considered by us when it should have been.” See also, State v. Owens,
112 Ohio App.3d 334, 678 N.E. 2d 956 (11th Dist. 1996); Erie Insurance Exchange v.
Colony Development Corp., 136 Ohio App.3d 419, 736 N.E.2d 950 (10th Dist. 2000).
{¶12} Esber’s application for reconsideration raises an obvious error in our
decision. No cross motion for summary judgment had been filed in the trial court. We
grant Esber’s application for reconsideration and vacate our decision and instead upon
consideration of the motion and the responses, we herby reverse the trial court’s entry
of summary judgment in favor of defendant-appellee Esber because we find from a
complete and thorough review of the record in this case genuine issues of material fact
exist. Stark County, Case No. 2013 CA 00158 5
{¶13} A final determination of the issues in this case will require more factual
development. After further discovery and development of the underlying facts
concerning the various transactions and the relationship of the entities involved, either
party is of course, free to seek summary judgment if it should see fit. Our previous
opinion filed in this matter shall have no precedential value.
Motion to Certify a Conflict
{¶14} Our disposition of Esber’s application for reconsideration renders moot his
Motion to Certify a Conflict.
Motion for En Banc Consideration
{¶15} Our disposition of Esber’s application for reconsideration renders moot his
Motion for En Banc Consideration. Stark County, Case No. 2013 CA 00158 6
Disposition
{¶16} In sum, we grant Esber’s motion for reconsideration. Upon
reconsideration, we vacate our January 27, 2014 decision, grant appellant’s single
assignment of error and reverse the judgment of the Stark County Court of Common
Pleas granting summary judgment in Esber’s favor. We remand this case to the Stark
County Court of Common Pleas for proceedings in accordance with this opinion and the
law.
By Gwin, J., and
Wise, J., concur;
Hoffman, P.J., concurs in part
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JOHN W. WISE
WSG:clw 0305 Stark County, Case No. 2013 CA 00158 7
Hoffman, P.J., concurring in part
{¶17} I concur in the majority's decision to grant reconsideration and to reverse
the trial court's entry of summary judgment in favor of Appellee based upon the existing
record. However, I find it premature and advisory for this Court to find there are
genuine issues of material fact which preclude summary judgment at this time. While a
final determination of the issues in this case may well result in more factual
development, such decision should be left to the parties and/or the trial court, and not
be considered a mandate from this Court.
__________________________ HON. WILLIAM B. HOFFMAN