Del-Fair, Inc. v. Conrad Seyferth

Decision Date06 June 1981
Docket NumberC-800277,81-LW-3022
PartiesDEL-FAIR, INC., Plaintiff-Appellee, v. CONRAD SEYFERTH, Defendant-Appellant.
CourtOhio Court of Appeals

Messrs Robert K. Sachs and James W. Hengelbrok, 500 Tri-State Building, 432 Walnut Street, Cincinnati, Ohio 45202, for Plaintiff-Appellee.

Mr Richard C. Curry, 1201 Second National Building, 830 Main Street, Cincinnati, Ohio 45202, for Defendant-Appellant.

DECISION.

PER CURIAM.

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas, Hamilton County, Ohio, the transcript of the proceedings, the briefs and the arguments of counsel.

On November 30, 1976, appellee Del-Fair, Inc., owner of a shopping center, filed a complaint against appellant Conrad Seyferth, president of Del-Fair, Inc. The complaint alleged that appellant was contemplating construction of a building on a common service area of the shopping center. The complaint further alleged that the building would interfere with tenants' access to their stores and that its construction was contrary to the orders of Del-Fair's board of directors. Appellee sought preliminary and permanent injunctions restraining appellant from building on the proposed site. After a hearing on the application for a preliminary injunction, the injunction was issued on January 9, 1980. On January 31, 1980 there was a trial on the application for a permanent injunction. The court found for appellant, dissolved the preliminary injunction, and released the injunction bond posted by appellee that same day. On February 15, 1980 appellant filed a motion for damages allegedly resulting from the issuance of the preliminary injunction. After a hearing on the motion held March 19 1980, the motion was denied. In its judgment entry the court found that the preliminary injunction was properly granted based upon the evidence presented.

As his single assignment of error appellant contends that the trial court erred in overruling his motion for damages and in refusing to hear evidence on the amount. He argues that the dissolution of the preliminary injunction entitled him to recover damages on the bond because the dissolution established that the temporary remedy should not have been granted. We do not agree.

The test for recovery on an injunction bond is found in Civ. R 65(C). The Rule states that no preliminary injunction is operative until the party obtaining it gives a bond sufficient "to secure to the party enjoined the damages he may sustain if it is finally decided that the . . . injunction should not have been granted." In order to recover on an injunction bond there must be a judicial finding that the preliminary injunction should not have been granted. Benrus Watch Co. v. Weinstein Wholesale Jewelers (6th Dist. 1959), 108 Ohio App. 525, 163 N.E.2d 406; Columbus H. V. & T. Ry. Co. v. Burke (1896), 54 Ohio St. 98, 43 N.E. 282; Krug v. Bishop (1886), 44 Ohio St. 221, 6 N.E. 252.

In Williams v. Baker (1896), 13 C.C. 500, 7 C.D. 515, the court found an appellate court's reversal of the granting of a permanent injunction to be in effect a decision that the injunction should not have been issued. The Ohio Supreme Court has stated the dissolution of an injunction is conclusive evidence that it was wrongfully issued.®1¯ Berkey Co. v. Sylvania Co. (1917), 97 Ohio St. 67, 119 N.E. 140.

Footnote 1 . Although citing to the Berkey Farmers case, the court in Benrus Watch Co. indicated that dissolution of a preliminary injunction is not equivalent to a finding that it was wrongfully issued. "It seems clear that the court in the case in which the temporary injunction is issued has jurisdiction, upon its dissolution, in his discretion, to determine whether or not the injunction was properly granted." (6th Dist. 1959), 108 Ohio App. 525, 529, 163 N.E.2d 406, 410.

The above two cases are not controlling since they can be distinguished from the case sub judice. Williams v Baker, supra, concern...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT