[Cite as Belvino L.L.C. v. Empson (USA) Inc., 2012-Ohio-3074.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 97305 

BELVINO LLC 

PLAINTIFF-APPELLANT 

vs.

EMPSON (USA) INC., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT:

AFFIRMED IN PART; REVERSED IN PART 

AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-730562 

BEFORE: Kilbane, J., Stewart, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: July 5, 2012
ATTORNEYS FOR APPELLANT

Marc J. Kessler 

Kerry R. Green 

Hahn Loeser & Parks LLP 

65 East State Street 

Suite 1400 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEES

Hansel H. Rhee 

Steven D. Forry 

Ice Miller LLP 

250 West Street 

Columbus, Ohio 43215 

Jay E. Krasovec 

H. Alan Rothenbuecher 

Ice Miller, LLP 

600 Superior Avenue, East 

Suite 1701 

Cleveland, Ohio 44115 
MARY EILEEN KILBANE, J.: 

{¶1} Plaintiff-appellant, BelVino LLC (“BelVino”), appeals from the trial 

court’s judgments granting summary judgment in favor of defendants-appellees, il Molino 

de Grace (“il Molino”) and Empson (USA) Inc. (“Empson”), and denying its motion for 

relief from judgment under Civ.R. 60(B). Finding merit to the appeal, we affirm in part, 

reverse in part and remand. 

{¶2} The instant appeal arises from a lawsuit filed by BelVino against il Molino 

and Empson, alleging that they wrongfully terminated BelVino’s franchise agreement 

with il Molino in violation of Ohio’s Alcoholic Beverages Franchise Act (“OABFA”), 

R.C. 1333.82, et seq. In May 2006, BelVino became the exclusive importer and 

distributor of il Molino’s wines in Ohio. il Molino operates a vineyard in Italy. In 

September 2008, BelVino partnered with Euro USA, LLC, and formed a new joint 

venture known as Euro USA/BelVino. Euro USA/BelVino then became the exclusive 

distributor of il Molino’s wines and BelVino became the exclusive importer. 

{¶3} In the fall of 2009, il Molino and Empson, a national importing company, 

began discussions regarding Empson becoming il Molino’s sole importer in the United 

States. il Molino eventually retained Empson as its new exclusive importer in February 

2010. In March 2010, il Molino advised BelVino that it was terminating its importer 

relationship with BelVino and replacing BelVino with Empson. il Molino explained that 
the switch to Empson was necessary to ensure il Molino’s financial objectives were met. 

Separately, in April 2010, Empson terminated Euro USA/BelVino’s distribution franchise 

with il Molino, stating that it intended to reassign distribution rights for il Molino in Ohio. 

 

{¶4} As a result, BelVino filed a complaint against il Molino and Empson in 

June 2010, alleging three causes of action. In Count I, BelVino alleges that il Molino 

breached its contract with BelVino by terminating the franchise agreement under the 

OABFA, without just cause. In Count II, BelVino alleges that Empson intentionally 

interfered with il Molino’s contractual agreement with BelVino by convincing il Molino 

to unilaterally terminate its agreement with BelVino. In Count III, BelVino alleges that 

Empson interfered with its business relationships by inducing il Molino to discontinue its 

relationship with BelVino. 

{¶5} On August 5, 2010, BelVino entered into an agreement with Euro 

USA/BelVino, where Euro USA/BelVino assigned to BelVino its right to distribute il 

Molino wines and its litigation rights. BelVino then amended its complaint on August 

11, 2010. In the amended complaint, BelVino reasserted its original causes of actions 

and added a claim for declaratory judgment, asking the trial court to declare that il Molino 

and Empson cannot unilaterally terminate BelVino’s franchise agreement under the 

OABFA. 

{¶6} In response, il Molino and Empson each filed an answer and identical 

counterclaims against BelVino. They sought a declaration that: (1) BelVino was not 
the distributor of il Molino wines in Ohio and was not entitled to any protection under the 

OABFA; (2) Empson is a “successor manufacturer” under the OABFA; and (3) il Molino 

does not “control” Empson as provided for in the OABFA. 

{¶7} BelVino filed a partial motion for summary judgment and il Molino and 

Empson each filed cross motions for summary judgment, asking the trial court to issue 

judgment as a matter of law. On August 16, 2011, the trial court denied BelVino’s 

partial motion for summary judgment and granted il Molino’s and Empson’s motions for 

summary judgment. 

{¶8} The trial court issued an opinion with its order. In its opinion, the trial 

court first addressed the issue of standing raised by il Molino and Empson. il Molino 

and Empson argued that Euro USA/BelVino’s assignment did not give BelVino standing 

to sue on Euro USA/BelVino’s behalf. The trial court found that Euro USA/BelVino’s 

assignment to BelVino gave BelVino the requisite standing to sue on behalf of Euro 

USA/BelVino. The court then noted that the OABFA protects contractual relationships 

between a manufacturer and distributor. Euro USA/BelVino was il Molino’s distributor 

when Empson terminated Euro USA/BelVino’s franchise agreement. At that time, the 

relationship that existed between il Molino and BelVino was a manufacturer-importer 

relationship. Therefore, the court concluded that the OABFA did not apply to BelVino. 

Even if BelVino was considered a manufacturer, the trial court concluded that the 

OABFA did not protect the relationship between two manufacturers. 

{¶9} As between Euro USA/BelVino and Empson, the trial court found that the 
OABFA did not apply “because they had no relationship, contractual or otherwise.” The 

court noted that the OABFA does not contemplate a relationship between a wholly 

unrelated importer (Empson) and distributor (Euro USA/BelVino). 

{¶10} The trial court then found that the tortious interference with contract and 

interference with business relationship claims failed. The tortious interference with 

contract failed “because there was no franchise between il Molino and BelVino[.] 

Therefore, Empson could not have interfered with a contract as a matter of law.” 

Likewise, the trial court found that the intentional interference with BelVino’s business 

relationship claim failed because the relationship involved two importers, Empson and 

Euro USA/BelVino and there was no evidence suggesting that Empson used improper 

means to become il Molino’s national importer. 

{¶11} On August 22, 2011, BelVino moved for relief from judgment under Civ.R. 

60(B), which the trial court denied. 

{¶12} It is from these orders that BelVino appeals, raising the following two 

assignments of error for review. 

ASSIGNMENT OF ERROR ONE 

The trial court erred in granting summary judgment in favor of [il Molino 

and Empson]. 

ASSIGNMENT OF ERROR TWO 

The trial court erred in refusing to grant [BelVino] relief from judgment 

under [Civ.R. 60(B)]. 

Standard of Review
{¶13} We review an appeal from summary judgment under a de novo standard of 

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 

N.E.2d 860 (1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 

1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the appropriate test as 

follows: 

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is 

no genuine issue of material fact, (2) the moving party is entitled to 

judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the nonmoving party, said party 

being entitled to have the evidence construed most strongly in his favor. 

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 

1196, paragraph three of the syllabus. The party moving for summary 

judgment bears the burden of showing that there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law. Dresher 

v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274. 

{¶14} Once the moving party satisfies its burden, the nonmoving party “may not 

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, 

by affidavit or as otherwise provided in this rule, must set forth specific facts showing 

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio 

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of 

the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 

1992-Ohio-95, 604 N.E.2d 138. 

Standing

{¶15} Before we address the OABFA, we first discuss il Molino and Empson’s 

argument that BelVino was not the real party in interest and lacked standing to assert any 
claims on Euro USA/BelVino’s behalf. 

{¶16} The issue of standing “is a threshold question for the court to decide in order 

for it to proceed to adjudicate the action.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 

77, 1998-Ohio-275, 701 N.E.2d 1002. “Lack of standing challenges the capacity of a 

party to bring an action, not the subject matter jurisdiction of the court.” Id., citing State 

ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 1996-Ohio-215, 662 N.E.2d 366. To 

decide whether the requirement has been satisfied that an action be brought by the real 

party in interest, “courts must look to the substantive law creating the right being sued 

upon to see if the action has been instituted by the party possessing the substantive right 

to relief.” Shealy v. Campbell, 20 Ohio St.3d 23, 25, 485 N.E.2d 701 (1985). 

{¶17} Civ.R. 17(A) governs “real party in interest” and provides in pertinent part: 

Every action shall be prosecuted in the name of the real party in interest. * 

* * No action shall be dismissed on the ground that it is not prosecuted in 

the name of the real party in interest until a reasonable time has been 

allowed after objection for ratification of commencement of the action by, 

or joinder or substitution of, the real party in interest. Such ratification, 

joinder, or substitution shall have the same effect as if the action had been 

commenced in the name of the real party in interest. 

{¶18} Like other procedural rules, “Civ.R. 17(A) ‘shall be construed and applied 

to effect just results by eliminating delay, unnecessary expense and all other impediments 

to the expeditious administration of justice.’” Ohio Cent. RR. Sys. v. Mason Law Firm 

Co., L.P.A., 182 Ohio App.3d 814, 2009-Ohio-3238, 915 N.E.2d 397, ¶ 33 (10th Dist.), 

quoting Civ.R. 1(B). 

{¶19} il Molino and Empson argue that while Euro USA/BelVino may have 
assigned its rights to BelVino, this assignment did not occur until after BelVino’s initial 

complaint was filed and when BelVino amended its complaint, it failed to assert any 

claims on behalf of Euro USA/BelVino. In support of their argument, il Molino and 

Empson rely primarily on Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 

2009-Ohio-1092. Jordan, however, is factually distinguishable from the matter before 

us. Jordan involves a foreclosure action and stands for the proposition that the putative 

mortgagee, who obtains the mortgage through an assignment or succession, must own the 

mortgage at the time of the filing of the complaint, otherwise the putative mortgagee 

lacks standing. 

{¶20} Whereas, the instant case involves a business relationship among BelVino, 

Euro USA/BelVino, and il Molino that spanned over four years. BelVino partnered with 

Euro USA, LLC and formed Euro USA/BelVino to increase its geographical reach. 

BelVino worked with Euro USA/BelVino to jointly distribute the il Molino brand in 

Ohio. All of il Molino’s inventory was shipped to BelVino and il Molino representatives 

always met with BelVino, even after the joint venture was formed. In August 2005, 

BelVino entered into an agreement with Euro USA/BelVino, where Euro USA/BelVino 

assigned to BelVino its right to distribute il Molino wines and its litigation rights. The 

trial court found, and we agree, that this assignment gave BelVino the requisite standing 

to sue on Euro USA/BelVino’s behalf. 

{¶21} Having found that BelVino is a real party in interest and has the requisite 

standing, we next address whether the trial court erred when it granted summary judgment 
in favor of il Molino and Empson. 

The OABFA

{¶22} The OABFA governs the franchise relationships between manufacturers and 

distributors of alcoholic beverages in Ohio. R.C. 1333.82, et seq. “The OABFA affords 

Ohio beer and wine distributors unique protections. It has been held the purpose of the 

OABFA is ‘to remedy the lack of equal bargaining power between Ohio’s alcoholic 

beverages wholesalers and out-of-state beverage manufacturers.”’ Esber Beverage Co. 

v. Wine Group, Inc., 5th Dist. No. 2011CA00179, 2012-Ohio-1215, ¶ 12 (“Esber 

Beverage”), quoting Esber Beverage Co. v. LaBatt USA Operating Co., Stark C.P. No. 

2009CV03142 (Dec. 1, 2009). See also Beverage Distrib., Inc. v. Miller Brewing Co., 

803 F.Supp.2d 765 (S.D.Ohio 2011); Hill Distrib. Co. v. St. Killian Importing Co., Inc., 

S.D. Ohio No. 2:11-CV-706, 2011 WL 3957255 (Sept. 7, 2011). 

{¶23} In furtherance of this goal, the OABFA requires every manufacturer of 

alcoholic beverages to contract with or offer in good faith to their distributors a written 

franchise specifying the rights and duties of both parties. R.C. 1333.83. Additionally, 

[w]hen a distributor of beer or wine for a manufacturer, or the successors or 

assigns of the manufacturer, distributes the beer or wine for ninety days or 

more without a written contract, a franchise relationship is established 

between the parties, and sections [R.C.] 1333.82 to 1333.87 apply to the 

manufacturer, its successor or assigns, and the distributor. 

 

Id. 

The OABFA defines “manufacturer” as “a person, whether located in this state or 

elsewhere, that manufactures or supplies alcoholic beverages to distributors in this state.” 
 R.C. 1333.82(B). “Distributor” is defined as “a person that sells or distributes alcoholic 

beverages to retail permit holders in this state, but does not include the state or any of its 

political subdivisions.” Id. at (C). 

{¶24} The OABFA also states that a franchise relationship 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 that always constitute just cause: (1) voluntary 

bankruptcy; (2) involuntary bankruptcy; or (3) loss of liquor permits. R.C. 1333.85(B) 

lists four situations that 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 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. 

{¶25} R.C. 1333.85(D) provides an exception to the general rule requiring just 

cause. Under R.C. 1333.85(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. 

{¶26} BelVino argues that the evidence in the record supports a finding as a matter 

of law that (1) Euro USA/BelVino had a protected franchise relationship with il Molino 
and (2) the OABFA applies to the relationship between Euro USA/BelVino and Empson. 

In support of its position, BelVino relies primarily on St. Killian and Esber Beverage.

{¶27} In St. Killian, the manufacturer obtained a new importer, St. Killian, which 

then attempted to terminate the manufacturer’s franchise agreement with Hill Distributing 

(“Hill”). As a result, Hill filed a motion for a preliminary injunction, seeking to enjoin 

St. Killian from terminating Hill’s franchise agreement with the manufacturer. The 

United States District Court for the Southern District of Ohio, Eastern Division, granted 

Hill’s motion, finding that although St. Killian bought the rights to import the alcohol 

from the manufacturer, the manufacturer still had to approve of St. Killian as its new 

importer, it continued to maintain control over its brands, and it was effectively 

reorganizing its business structure. St. Killian at 4. The court further found that the 

policy rationale behind the OABFA supports a decision in Hill’s favor. The court 

concluded that “[t]he change of importer is likely a business rearrangement, and thus St. 

Killian may not qualify as a ‘successor manufacturer’ under [R.C. 1333.85(D)].” Id. 

{¶28} In Esber Beverage, Esber had an exclusive franchise relationship with the 

manufacturer. The manufacturer advised Esber that it was in its best interests to move 

distribution of its wine products in Ohio to a single statewide distributor. Id. at ¶ 3. The 

court reviewed the meaning of “just cause” and found the reasoning in Tri-County 

Wholesale Distrib. Inc. v. The Wine Group, Inc., S.D. Ohio No. 2:10-CV-693, 2010 WL 

3522973 (Sept. 2, 2010) and Dayton Heidelberg Distrib. Co. v. Vintners Internatl. Co. of 

New York, S.D. Ohio No. C-3-87-436, 1991 WL 1119912 (Apr. 8, 1991), persuasive. 
{¶29} In Vintners, the court analyzed the meaning of R.C. 1333.85(B) and stated 

that, 

the legislature was aware that, in the absence of any formal definition of 

just cause, courts interpreting [R.C. 1333.85] were applying a 

“case-by-case” analysis. By specifically defining what is not just cause, 

and leaving undefined what is just cause, the legislature has effectively 

agreed with the courts that the term “just cause” does not lend itself to a 

single, bright-line definition but, instead, is highly dependent upon the facts 

of the particular case. 

* * * 

[A]pplying this fact-sensitive concept of just cause to the case at bar, there 

is little doubt that the Ohio legislature fully intended the result which the 

Court has reached. By amending the former [R.C. 1333.85] to expressly 

prohibit franchise terminations based solely upon a manufacturer’s 

unilateral decision to alter its distribution network, the legislature made 

clear its intent to disallow actions such as Vintners’ cancellation of 

Plaintiffs’ franchises, even though done in good faith. Id. at 10. 

{¶30} Relying on The Wine Group and Vintners, the Esber Beverage court found 

that the manufacturer’s “legitimate business reason to consolidate its distributors, without 

evidence of a breach or violation of the OABFA by Esber, [the distributor], does not 

constitute just cause to unilaterally terminate the franchise between [the manufacturer] 

and Esber. Id. at ¶ 28. 

{¶31} The matter before us presents a situation similar to St. Killian and Esber 

Beverage. In the instant case, there is no dispute that Euro USA/BelVino was the 
exclusive distributor of il Molino’s wines when the franchise relationship was terminated 

in April 2010. Furthermore, there is no dispute that Euro USA/BelVino distributed il 

Molino’s wines for more than 90 days without a written contract. Euro USA/BelVino 

was registered as the exclusive distributor of il Molino wines in the state of Ohio in July 

2009. il Molino, as the maker of wine, is considered as a manufacturer under the 

OABFA. Therefore, Euro USA/BelVino and il Molino had a manufacturer-distributor 

franchise relationship that was protected under the OABFA. Unilateral termination and 

restructuring are the exact situations contemplated in R.C. 1333.85 that do not constitute 

just cause. 

{¶32} il Molino and Empson argue that Empson could terminate Euro 

USA/BelVino’s distributorship without “just cause” because Empson is a “successor 

manufacturer” under the OABFA. Under R.C. 1333.85(D), a successor manufacturer 

can terminate, via written notice, a previous manufacturer’s franchise agreements within 

90 days of the date of the acquisition provided that it “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[.]” 

{¶33} However, “‘[a] manufacturer can only rely on [R.C. 1333.85(D)] ‘when 

there is a change in ownership and control of brands through an arms-length merger or 

acquisition.’” St. Killian at 3, quoting InBev USA LLC v. Hill Distrib. Corp., S.D. Ohio 

No. 2:05-CV-00298, 2006 WL 2010218 (Apr. 3, 2006). Thus, “an entity can only 
qualify as a ‘successor manufacturer’ under subsection (D) if one of the situations in 

subsection (B) does not apply.” Id.

{¶34} In the instant case, when Empson took over as il Molino’s exclusive 

importer in February 2010, Empson did not acquire any ownership rights in il Molino. 

The record demonstrates that il Molino continues to maintain control over its brands and 

can terminate its relationship with Empson at any time. 

{¶35} il Molino’s reasoning for the change was that it was effectively reorganizing 

its business structure. Because the wine remains under the ownership and control of il 

Molino, Empson does not qualify as a “successor manufacturer” under R.C. 1333.85(D). 

Rather, the record reveals that prior to its relationship with il Molino, Empson was 

considered a manufacturer, who supplied alcohol to another Ohio distributor. As a 

manufacturer, Empson should have complied with the mandates of the OABFA, by 

offering in good faith a written franchise specifying the rights and duties of both parties 

and by not terminating BelVino/Euro USA’s distributor relationship without just cause. 

By failing to do so, il Molino and Empson failed to comply with the mandates of the 

OABFA when il Molino’s franchise relationship with Euro USA/BelVino was 

unilaterally terminated. 

{¶36} Moreover, the policy rationale behind OABFA supports finding in favor of 

BelVino and Euro USA/BelVino. As the court in Beverage Distrib., Inc. v. Miller 

Brewing Co., S.D.Ohio Nos. 2:08-CV-827, 2:08-CV-931, 2:08-CV-1112, 2:08-CV-1131, 

and 2:09-CV-0022, 2009 WL 1542730 (June 2, 2009), stated: 
The [OABFA] 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. Id. at 5. 

See also St. Killian at 4, quoting Beverage Distrib., Inc.

{¶37} Thus, just as in St. Killian and Esber Beverage, we find that il Molino’s 

reasons for terminating its franchise agreement, coupled with its retention of ownership 

and control of its brand did not constitute “just cause” to terminate Euro USA/Belvino’s 

distributor relationship. 

{¶38} Accordingly, we reverse the trial court’s judgment on BelVino’s declaratory 

judgment and breach of contract claims (Counts I and II) and remand with instructions for 

the trial court to enter judgment, as a matter of law, in favor of BelVino. See App.R. 

12(B). 

Interference with Contract and Business Relationships

{¶39} In Count III, BelVino claims that Empson intentionally interfered with il 

Molino’s performance of its franchise agreement. As a result of the assignment, BelVino 

argues that this claim is based on Euro USA/BelVino’s relationship with il Molino. 

BelVino argues that when Empson convinced il Molino to unilaterally and without just 

cause terminate its agreement with Euro USA/BelVino, Empson interfered with Euro 

USA/BelVino’s franchise agreement. To prevail on a claim of intentional interference 

with a contract, BelVino must prove “(1) the existence of a contract, (2) [Empson’s] 
knowledge of the contract, (3) [Empson’s] intentional procurement of the contract’s 

breach, (4) the lack of justification, and (5) resulting damages.” Kenty v. Transamerica 

Premium Ins. Co., 72 Ohio St.3d 415, 1995-Ohio-61, 650 N.E.2d 863, paragraph two of 

the syllabus. 

{¶40} In Count IV, BelVino claims that Empson intentionally destroyed Euro 

USA/BelVino’s business when it purposefully caused il Molino to discontinue its existing 

relationship with Euro USA/BelVino. Tortious interference with a business relations 

occurs when “a person, without privilege, induces or otherwise purposely causes a third 

party not to enter into, or continue, a business relationship, or perform a contract with 

another.” Castle Hill Holdings, LLC v. Al Hut, Inc., 8th Dist. No. 86442, 

2006-Ohio-1353, ¶ 47, citing Juhasz v. Quik Shops, Inc., 55 Ohio App.2d 51, 379 N.E.2d 

235, paragraph two of the syllabus (9th Dist.1978). However, one is privileged 

purposely to cause a third person not to enter into or continue a business relation with a 

competitor of the actor if “(a) the relation concerns a matter involved in the competition 

between the actor and the competitor and (b) the actor does not employ wrongful means 

and (c) his action does not create or continue an unlawful restraint of trade and (d) his 

purpose is at least in part to advance his interest in competing with the other.” 

Restatement of the Law, 2d, Torts, Section 768(1) (1979). 

{¶41} In the instant case, there is no evidence that Empson used improper means to 

become il Molino’s national importer. Moreover, Empson’s purpose in becoming il 

Molino’s importer was to further its interests in business competition. As a result, 
Empson was privileged to compete with Euro USA/BelVino. Thus, we find that the trial 

court properly granted summary judgment in favor of Empson on Counts III and IV. 

{¶42} Accordingly, the first assignment of error is sustained in part and overruled 

in part. 

Motion for Relief from Judgment

{¶43} In the second assignment of error, BelVino argues that the trial court erred 

when it denied its motion for relief from judgment under Civ.R. 60(B). However, based 

on our disposition of the first assignment of error, this assignment of error is overruled as 

moot. See App.R.12(A)(1)(c). 

{¶44} Judgment is reversed with respect to Counts I and II and affirmed with 

respect to Counts III and IV. The matter is remanded with instructions for the trial court 

to enter judgment in favor of BelVino on Counts I and II. 

It is ordered that appellant recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court 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. 

 

 

MARY EILEEN KILBANE, JUDGE 
KATHLEEN ANN KEOUGH, J., CONCURS; 

MELODY J. STEWART, P.J., DISSENTS (SEE SEPARATE DISSENTING OPINION) 

MELODY J. STEWART, P.J., DISSENTING: 

{¶45} I would find that at the time BelVino filed its complaint, Euro USA/BelVino 

was the real party in interest under Civ.R. 17(A) and that the court should have dismissed 

all of BelVino’s claims that derived from the assignment of Euro USA/BelVino’s choses 

in action sounding in violations of the Franchise Act. 

{¶46} It is a familiar proposition that a party in interest may assign its legal claims 

to a third party, typically by a contract assigning its full and exclusive interest in a legal 

claim to the assignee. Sprint Communications Co. v. APCC Servs., Inc., 554 U.S. 269, 

284-285, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). When a legal claim or “chose in 

action” is assigned, Civ.R. 17 is implicated. That rule states that “[e]very action shall be 

prosecuted in the name of the real party in interest.” A real party in interest is one who is 

directly benefitted or injured by the outcome of the case. U.S. Bank Natl. Assn. v. 

Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032 (5th Dist.), citing 

Shealy v. Campbell, 20 Ohio St.3d 23, 24, 485 N.E.2d 701 (1985). 

{¶47} In Wells Fargo, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092 

(“Jordan”), we held that an assignment of judicial rights after a complaint had been filed 

was ineffectual because the plaintiff could not have been the real party in interest at the 

time the action was filed. Wells Fargo, a mortgagee, filed a foreclosure action against 

mortgagors. The note and mortgage, however, named a different party as the original 
lender. When Wells Fargo sought summary judgment, it attached an assignment of the 

note and mortgage from the named lender to the mortgagee. The assignment, however, 

was dated more than one month after the complaint had been filed. The trial court 

dismissed the case and we affirmed, finding that Wells Fargo “was not the real party in 

interest on the date it filed its complaint seeking foreclosure against Jordan.” See also 

Deutsche Bank Natl. Trust Co. v. Triplett, 8th Dist. No. 94924, 2011-Ohio-478, ¶ 12; 

Wells Fargo Bank N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 

(1st Dist.) (“Byrd”). 

{¶48} It is true, as BelVino argues, that Jordan has not been followed by other 

districts. For example, in Deutsche Bank Natl. Trust Co. v. Traxler, 9th Dist. No. 

09CA009739, 2010-Ohio-3940 (“Traxler”), the Ninth District Court of Appeals declined 

to follow Jordan, stating that it has held that “a bank need not possess a valid assignment 

at the time of filing suit so long as the bank procures the assignment in sufficient time to 

apprise the litigants and the court that the bank is the real party in interest.” Id. at ¶ 11, 

citing Bank of New York v. Stuart, 9th Dist. No. 06CA008953, 2007-Ohio-1483, ¶ 12. 

 The distinction between Jordan and Traxler is one highlighted by the Tenth 

District Court of Appeals in Wells Fargo Bank, N.A. v. Sessly, 188 Ohio App.3d 213, 

2010-Ohio-2902, 935 N.E.2d 70 (10th Dist.). That court, citing to the First District’s 

decision in Byrd, noted the “glaring distinction” in Byrd that “the real party in interest 

had neither been substituted nor joined in the foreclosure suit.” Sessly at ¶ 16. 

{¶49} BelVino filed its initial complaint June 2010, before it took an assignment 
of Euro USA/BelVino’s chose in action. Even though BelVino had relinquished its 

status as a distributor in September 2008 when forming the joint venture known as Euro 

USA/BelVino, it represented itself in the complaint as the distributor of il Molino wines 

at the time Empson was hired as the new importer. BelVino filed an amended complaint 

in August 2010, shortly after taking an assignment of Euro USA/BelVino’s chose in 

action. The amended complaint did not mention Euro USA/BelVino much less state that 

BelVino was asserting Euro USA/BelVino’s rights by assignment. 

{¶50} I find no functional difference between the cited mortgage cases and this 

case. Civ.R. 17 permits a plaintiff to cure a real-party-in-interest problem by (1) showing 

that the real party in interest has ratified the commencement of the action or (2) joining or 

substituting the real party in interest. Ohio Cent. RR. Sys. v. Mason Law Firm Co., 

L.P.A., 182 Ohio App.3d 814, 2009-Ohio-3238, 915 N.E.2d 397 (10th Dist.), ¶ 33. At 

the time it filed its original complaint, BelVino was not the real party in interest. It did 

not cure any defect in that regard in the amended complaint because it did not join or 

substitute Euro USA/BelVino as the real party in interest. And it did not show that Euro 

USA/BelVino ratified the commencement of the action even though Euro USA/BelVino 

did not dissolve until December 2010 — some four months after filing the amended 

complaint. 

{¶51} What is more, there is no practical distinction between Jordan and this case. 

 It is true that il Molino and BelVino had a longstanding relationship, but that fact is 

immaterial to the question of who was the real party in interest. The Euro USA/BelVino 
joint venture supplanted BelVino as the sole distributor of il Molino wines, so il Molino 

could rightfully understand that BelVino’s lawsuit, filed in its own name, was in relation 

to its status as an importer. il Molino was not required to read between the lines to 

ascertain the real party in interest. 

{¶52} The majority’s citation to the old bromide that the civil rules should be 

liberally construed is unnecessary here: Civ.R. 17(A) specifically grants a party a 

reasonable time to permit substitution of a party. BelVino had the opportunity to amend 

its complaint after receiving the assignment of the joint venture’s legal rights, but failed 

to mention that it was suing under rights obtained from Euro USA/BelVino as the sole 

distributor of il Molino wines. In fact, BelVino failed to mention Euro USA/BelVino at 

all in the amended complaint. This was a fatal omission and could not be cured simply 

because BelVino had a course of dealing with il Molino as an importer of il Molino 

wines. BelVino and Euro USA/BelVino were distinct corporate entities with distinct 

roles under Ohio’s Franchise Act. 

{¶53} BelVino should have been barred from asserting any claims relating to the 

termination of Euro USA/BelVino as the distributor of il Molino wines. With all of the 

claims asserted by BelVino stemming from Euro USA/BelVino’s status as a distributor, I 

would find that there are no justiciable claims remaining for review. Therefore, I 

respectfully dissent.