Gayner v. Packaging Service Corp. of Kentucky

CourtCourt of Appeals of Kentucky
Citation636 S.W.2d 658
Decision Date05 February 1982
PartiesRobert E. GAYNER, Appellant, v. PACKAGING SERVICE CORPORATION OF KENTUCKY, Bernard Chapnick, Gemini Laminating Corporation, Appellees.

Stuart A. Handmaker, C. Alex Rose, Louisville, for appellant.

Gerald Kirven, Louisville, Charles H. Zimmerman, Jr., Louisville, for appellees.

Before REYNOLDS, WHITE and WINTERSHEIMER, JJ.

WINTERSHEIMER, Judge.

This appeal is from an order entered February 9, 1981, denying Gayner's motion pursuant to CR 24.01(b) to intervene as a matter of right.

The issue on appeal is whether the trial judge correctly determined that Gayner did not have a sufficient interest in the lawsuit between Packaging Service and Chapnick to permit intervention as a defendant as a matter of right.

Gayner is a New Hampshire resident who conducts his business primarily in Massachusetts. He had offered financial assistance to Chapnick who was considering purchase of 825 shares of stock from Packaging Service. Chapnick, a Massachusetts resident, is president of Gemini Laminating Corporation and owns 171/2 percent of Gemini's stock. Gemini, a Kentucky corporation, has its principal business operation in Massachusetts. It is a subsidiary of Packaging Service which owns 821/2 percent of the stock of Gemini.

Chapnick and Packaging Service entered an agreement which permitted either party first option to purchase Gemini stock upon 120 days notice. In 1979 Packaging Service advised Chapnick of its desire to sell its shares. Before the expiration of the notice, Chapnick notified Packaging Service that he desired to purchase their shares. A disagreement arose and Packaging sued Chapnick and Gemini in Jefferson Circuit Court for a declaration of rights. During discovery procedures, it was ascertained that Chapnick had insufficient financial backing to pay for the shares and had discovered a prospective financial backer, Gayner. Gayner filed suit in Massachusetts and obtained a restraining order. He also sought to intervene in the Kentucky circuit court action. Additionally Gayner filed an independent action against Packaging Service in Jefferson Circuit Court.

The Jefferson Circuit Court denied Gayner's right to intervene because he had not demonstrated a direct, substantial and legally protectable interest in the suit between Packaging and Chapnick sufficient to establish intervention.

Later the Massachusetts temporary restraining order was dissolved and Packaging and Chapnick settled and dismissed the Kentucky suit. This appeal is prosecuted from the order denying intervention in that action.

This Court affirms the order of the circuit court.

The trial judge correctly determined that Gayner did not have a sufficient interest in the litigation between Packaging and Chapnick to be entitled to intervene as a matter of right. Gayner had no present substantial interest in the subject matter of the lawsuit as distinguished from a mere expectancy or contingent interest.

The crux of the suit between Packaging and Chapnick was Chapnick's claim to an exclusive right to buy Packaging's shares of Gemini stock and Packaging's assertion that he had lost that right and that they would sell to anyone who would purchase them. Until Chapnick could win the suit against Packaging, he had no present or substantial interest in the stock as distinguished from a mere contingent interest. Gayner's only involvement was as a financial backer of Chapnick. Gayner had no actual existing interest in the Packaging stock. His interest was remote because he could only claim through Chapnick. There is evidence to the effect that Gayner charged that Chapnick reneged on his agreement to allow Gayner to have the shares.

Gayner was a total stranger to...

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15 cases
  • Baker v. Webb
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 19, 2004
    ...interest in the subject matter of the lawsuit," rather than an expectancy or contingent interest. Gayner v. Packaging Service Corp. of Ky., Ky. App., 636 S.W.2d 658, 659 (1982). This Court has never specifically addressed a party's intervention as of right in an adoption proceeding. Other c......
  • City of Mayfield v. Kennemore, 2016-CA-000841-MR
    • United States
    • Kentucky Court of Appeals
    • August 5, 2016
    ...rather than an expectancy or contingent interest. Baker v. Webb, 127 S.W.3d 622, 624 (Ky. 2004) (citing Gayner v. Packaging Service Corp. of Ky., 636 S.W.2d 658, 659(1982)). Intervention must be timely, and the intervenor must establish the elements as required by the rule: an interest rela......
  • Commonwealth v. Batie
    • United States
    • Kentucky Court of Appeals
    • May 13, 2022
    ...is "a 'present substantial interest . . . .'" Baker, 127 S.W.3d at 624 (emphasis added) (quoting Gayner v. Packaging Serv. Corp. of Ky., 636 S.W.2d 658, 659 (Ky. App. 1982)). If the temporary custody order under KRS 620.090(1) had been replaced by an order of commitment, the preference of K......
  • v. A.H.
    • United States
    • Kentucky Court of Appeals
    • April 17, 2015
    ...than an expectancy or contingent interest." (Id. (citing Baker v. Webb, 127 S.W.3d 622, 624 (Ky. 2004) and Gaynor v. Packaging Serv. Corp. of Ky., 636 S.W.2d 658, 659 (Ky. App. 1982)). Because A.H.'s "legal status to the child" remained unresolved, the family court entered the order dismiss......
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