K. Khan, Inc. v. Wortham

• Decision Date: 13 October 1998
• Docket Number: 73391,Nos. 72263,s. 72263
• Citation: K. Khan, Inc. v. Wortham, 983 S.W.2d 539 (Mo. App. 1998)
• Parties: K. KHAN, INC. and Shakil Khan and Kamran Khan, Plaintiffs/Appellants, v. Eric WORTHAM and Wortham Development, Inc., Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 539

983 S.W.2d 539

K. KHAN, INC. and Shakil Khan and Kamran Khan, Plaintiffs/Appellants, v. Eric WORTHAM and Wortham Development, Inc., Defendants/Respondents.

Nos. 72263, 73391.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 13, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 19, 1999.

Application for Transfer Denied Feb. 23, 1999.

Gary J. Morris, Clayton, Michael A. Gross, Cynthia A. Sciuto, St. Louis. for plaintiffs/appellants.

Charles W. Bobinette, St. Louis, for defendants/respondents.

PUDLOWSKI, Presiding Judge.

This appeal arises from breach of a subfranchisee agreement for the operation of a pizza restaurant and a subsequent judgment enforcing a settlement agreement and a judgment for contempt for failure to comply with an injunctive order. On 26 February 1995, Eric Wortham and Wortham Development, Inc. (collectively, "Wortham") entered into a subfranchise agreement with K. Khan, Inc., Kamran Khan, and Shakil Khan (collectively, "Defendants") for the operation of a Pizza Chef Gourmet Pizza restaurant in South Saint Louis County ("the Tesson Ferry store"). Additionally, on 10 August 1995, the parties entered into a licensing agreement for a Pizza and Pasta Chef restaurant located on South Lindbergh ("the South Lindbergh store").

Under the terms of their agreement, Defendants agreed to pay Wortham Development, Inc. an initial payment, a management fee of 1 percent of the gross monthly revenues, and an advertising fee of up to 2 percent of gross monthly revenues when Wortham Development, Inc. owned, managed, operated or licensed a specific number of pizza locations. If these fees were not timely paid, Wortham Development, Inc. had the right to cancel and terminate all of Defendants's rights under the agreement. In exchange for these conditions, Defendants were granted the right to use the recipes, policies and techniques of Wortham Development, Inc..

There were two civil suits filed by Wortham which were consolidated at the trial level. In April 1996, Wortham filed suit ("number 688672") against Defendants seeking injunctive relief and money damages for an alleged breach of their agreement regarding the Tesson Ferry store's licensing agreement. Wortham posted bond and the trial court temporarily enjoined Defendants from operating the Tesson Ferry store using the "Pizza Chef" name, system, recipes or other rights as granted in the 26 February 1995 licensing agreement. On 29 April 1996, Wortham filed a motion for contempt due to the failure to comply with the court's order. Further proceedings were stayed pending Defendants's filing notice of removal to the United States District Court.

Wortham filed a second suit against Defendants ("number 691171") in June 1996 alleging that the continued operation of the Tesson Ferry store injures Wortham's business reputation or dilution of the distinctive quality of its registered mark. Wortham posted bond. The preliminary injunction hearing was set for 8 July 1996, however, proceedings were stayed pending Defendants's motion to remove the case to federal court. On 11 August 1996, the United States District Court granted Wortham's motion to remand both causes to the circuit court of Saint Louis County for trial. The trial court issued its judgment in number 691171 and number 688672 on 15 November 1996. The judgment in number 688672 assessed fines against K. Khan, Inc., Kamran Khan, and Shakil Khan and in number 691171 judgment the court ordered injunctive relief and money award for the breach of contract agreement.

Defendants filed a motion for new trial in regard to number 688672. The trial court denied this motion on 17 March 1997. On 21 March 1997, Defendants timely filed notice of appeal in number 688672.

This Court remanded number 688672 on 2 June 1997. Accordingly, the trial court held a hearing as directed by this Court in June 1997 and rendered its judgment on 9 September 1997. Defendants filed notice of appeal on 17 October 1997.

Timely filing of notice of appeal is jurisdictional. In re Lunar Tool & Machinery, Inc., 857 S.W.2d 322, 324 (Mo.App. E.D.1993). The judgment regarding number 691171 was rendered on 15 November 1996. There were no post-trial motions filed regarding that case. Hence, the judgment for 691171 became final for the purpose of appeal on 15 December 1996. Defendants then had ten days in which to file a notice of appeal. The notice of appeal for cause number 691171 was not timely filed. Rule 81.05; Rule 81.07. Therefore, this Court lacks jurisdiction to consider that appeal and it must be dismissed. Defendants second notice of appeal for cause number 688672 was timely filed. Accordingly, we address Defendants's...