Del-Fair, Inc. v. Conrad Seyferth, 81-LW-3022

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: PER CURIAM
• Parties: DEL-FAIR, INC., Plaintiff-Appellee, v. CONRAD SEYFERTH, Defendant-Appellant.
• Docket Number: C-800277,81-LW-3022
• Decision Date: 06 June 1981

DEL-FAIR, INC., Plaintiff-Appellee,
v.
CONRAD SEYFERTH, Defendant-Appellant.

No. C-800277.

81-LW-3022 (1st)

Court of Appeals of Ohio, First District, Hamilton

June 6, 1981

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...