486 N.E.2d 854 | Ohio Ct. App. | 1984
Plaintiff-appellant, American Vineyards Co., Inc. ("AVC"), enters a timely appeal from the dismissal of its complaint against defendant-appellees, The Wine Group and Wine Distributors, Inc., by the common pleas court. The judgment of the court followed a bench trial in which AVC sought monetary, injunctive and declaratory relief after its distribution franchise for Mogen-David products in Cuyahoga County, Ohio was terminated by The Wine Group and awarded to Wine Distributors, Inc.
AVC's complaint alleges that The Wine Group, a wine supplier, acquired the assets of Mogen-David Corporation and terminated appellant's Mogen-David franchise in violation of R.C.
Appellant raises six assignments of error.2
Appellees have filed a timely notice of cross-appeal.3
Although AVC's argument is based in part upon the constitutionality of the Act, we find this question need not be reached in order to determine whether the Act has retroactive application. The franchise act contains no language directing retroactive application.
R.C.
"A statute is presumed to be prospective in its operation unless expressly made retrospective."
See Clifford Jacobs Motors, Inc. v. Chrysler Corp. (S.D. Ohio 1973),
This principle has been followed in Excello Wine Co. v.Monsieur Henri Wines, Inc. (S.D. Ohio 1979),
While appellant cites Capitol Beverage Distributing Co. v.Genesee Brewing Co. (1978), Franklin C.P. No. 78-CV-01-202, unreported, and Fixari Enterprises, Inc. v. Foremost McKesson,Inc. Carlton Sales Co. (S.D. Ohio 1983), No. C-2-82-1701, unreported, we note that neither of these cases actually raises the issue of retroactive application of the Act.
AVC also has submitted Schieffelin Co. v. Dept. of LiquorControl and Foremost-McKesson, Inc. v. Liquor Control Comm.
(1984),
In contrast, the Ohio Franchise Act does not contain similar language nor does its history reveal circumstances which denote a legislative intent to apply the newly enacted cancellation provision retroactively.
Accordingly, we find that the trial court correctly applied the Act prospectively.
Appellant's first and second assignments of error are not well-taken.
This assignment of error is not well-taken.
An issue which is not raised in the trial court is not proper on appeal. Webb v. Grimm (1961),
However, even assuming appellant preserved this issue for appeal, our conclusion would not be different.
A novation is characterized by an agreement under which an original party to a contract is discharged from its obligations and assigns its rights to a newly substituted party. Evidence of clear intent to form a new contract is required. See City Natl.Bank Trust Co. v. Swain (App. 1939), 29 Ohio Law Abs. 16. A novation is, in effect, a new contract between one of the original parties to a previous contract and a new party who is taken in by way of substitution. See 18 Ohio Jurisprudence 3d (1980) 206, Contracts, Section 284.
In Banks v. De Witt (1884),
"A contract by a publisher with the secretary of state, under proper legislation, to print and bind for the state volumes of law reports, may be assigned by the contractor, with the acquiescence of the state, so as to operate as a novation and vest in the assignee all the rights and subject him to all the obligations of the original contractor."
Unlike Banks, in the instant case appellant admits that it did not expressly consent to the sale between The Wine Group and its predecessors. At trial, AVC's president stated that he did not consider it his business as long as the product was supplied. Appellant cites no law in support of his assertion that assent to the assignment was implied by "continued dealings" between AVC and The Wine Group. The fact that The Wine Group continued to supply AVC is not conclusive proof that they entered into a new contract. The evidence adduced at trial supports the trial court's finding that The Wine Group acquired the franchise by assignment.
The franchise agreement continued on an oral basis after The Wine Group acquired the assets of Mogen-David with no express termination date. Under such circumstances a contract is terminable at will. Perfecto Distributing Co., supra; ExcelloWine Co., supra.
We find that the trial court's conclusion that the franchise was terminated in a reasonable manner is based upon competent credible evidence that the distributorship continued for several years until June 30, 1983, when The Wine Group sent a sixty-day written notice of termination which followed oral notice to AVC.
Accordingly, we find these assignments of error lack merit.
Accordingly, the sixth assignment is overruled.
The record reflects that appellant initially sought a preliminary injunction in this case. It is undisputed that an informal agreement by the parties was reached on the matter. No order reflecting *370 this agreement was journalized by the court.
Appellant filed a show cause motion upon hearing that Wine Group continued to supply the products under franchise to Wine Distributors in contravention of appellant's understanding of the agreement. Appellees filed a brief in opposition and request for attorney fees and costs. The trial court overruled the show cause motion and denied the request for fees.
Appellees have failed to produce evidence that appellant acted in "bad faith, vexaciously, wantonly, obdurately, or for oppressive reasons" as required under Sorin v. Bd. of Edn.
(1976),
Appellees' cross-appeal is without merit.
The judgment of the trial court is affirmed.
Judgment affirmed.
CORRIGAN, C.J., and PATTON, J., concur.
"The court erred in deciding that plaintiff's franchise was terminated in a reasonable manner after concluding that plaintiff's distributorship was terminated at will without cause."
"The trial court should have awarded defendants their costs and expenses of opposing AVC's frivolous motion to show cause. * * *"