Number One Beverage, Inc. v. Miller Brewing Co.
| Decision Date | 20 July 1982 |
| Docket Number | No. 1-881A233,1-881A233 |
| Parties | NUMBER ONE BEVERAGE, INC., Plaintiff-Appellant, v. MILLER BREWING COMPANY, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Thomas A. Withrow, Diane Hubbard Kennedy, Henderson, Daily, Withrow, Johnson & Gross, Indianapolis, Ging, Free, Brand, Tosick & Van Winkle, Greenfield, for plaintiff-appellant.
Stephen W. Terry, Jr., Charles T. Richardson, Baker & Daniels, Indianapolis, George J. Lewis, Lineback & Lewis, Greenfield, for defendant-appellee.
Plaintiff-appellant Number One Beverage, Inc. (Number One) appeals from an order of the Hancock Circuit Court granting defendant-appellee Miller Brewing Company's (Miller) motion for summary judgment upon Number One's complaint for injunctive relief and damages.
We reverse.
On September 26, 1975, Number One filed a complaint for injunctive relief and damages against Miller and Maco Beverage Corporation (Maco). Number One, a beer wholesaler, commenced this action to prevent Miller, a beer manufacturer, from selling Lite beer to Maco, another beer wholesaler in Madison County, Indiana. Prior to this lawsuit, Miller, by agreement, sold Lite beer to Number One alone in Madison County; however, Miller began selling Lite beer to Maco who was the exclusive distributor of Miller High Life brand beer in Madison County, Indiana. On April 17, 1980, following extensive pretrial discovery, motions and hearings, Number One and Maco entered into, and the trial court granted, a stipulation of dismissal pursuant to a mutual covenant not to sue agreement signed by the parties. Number One agreed to dismiss with prejudice its cause of action against Maco upon certain mutual promises. The stipulation also provided that "it is not the intention of the parties that this dismissal shall in any way affect the claim of Number One against Miller Brewing Company for damages." The underlying agreement, upon which the stipulation was entered between Number One and Maco, involved, inter alia, the sale and transfer from Number One to Maco of Number One's "good will, sale records and customer lists which are associated with the sales by Number One of Lite beer to retailers located in Madison County, Indiana." The agreement further contained mutual covenants regarding the lawsuit Number One filed against Miller and Maco, providing:
"COVENANTS
WHEREAS, NUMBER ONE BEVERAGE, INC. ('Number One') is a beer wholesaler, duly licensed by the State of Indiana to engage in the business of selling alcoholic malt beverage products wholesale, with its principal place of business in Anderson, Madison County, Indiana; and WHEREAS, MACO BEVERAGE CORPORATION ('Maco') is also a beer wholesaler, duly licensed by the State of Indiana to engage in the business of selling alcoholic malt beverage products wholesale, with its principal place of business in Anderson, Madison County, Indiana; and
WHEREAS, Number One claims that Maco tortiously and wrongfully interfered with certain of its rights to distribute Miller Lite Beer, interfered with existing contractual arrangements between Number One and others pertaining to the distribution and marketing of Miller Lite Beer, and conspired with others to terminate Number One as the Lite beer wholesaler in Madison County, Indiana; and
WHEREAS, Maco denies any liability whatsoever and denies further that it was guilty of any misconduct of any kind; and
WHEREAS, on September 26, 1975, Number One filed a lawsuit against Maco, et al., which lawsuit is presently pending in the Hancock Circuit Court, Cause No. 36537 (the 'Lawsuit'), asking for damages against Maco and for a permanent injunction against Maco and Miller to restrain both of them from selling or delivering Lite beer in contravention of Number One's agreements with Miller; and
WHEREAS, Maco has filed a counterclaim against Number One in such lawsuit; and
WHEREAS, Number One and Maco desire to resolve their differences to avoid continued litigation between themselves, but with the understanding that this Agreement shall not impair or affect the claim of Number One against any other persons, corporation or entity, other than Maco, its successors and assigns;
NOW, THEREFORE, in consideration of mutual covenants and agreements contained herein, NUMBER ONE BEVERAGE, INC. covenants and agrees for and on behalf of itself, its successors and assigns, to and with MACO BEVERAGE CORPORATION, its successors and assigns, that it will immediately discontinue the lawsuit against MACO BEVERAGE CORPORATION, only, styled Number One Beverage, Inc. v. Miller Brewing Company and Maco Beverage Corporation, Cause No. 36537, pending in the Circuit Court of Hancock County, and shall dismiss with prejudice all claims asserted against Maco and agrees not to refile or reinstate any claims arising out of the transaction alleged. Maco and Number One agree that it is not the intention of the parties that the dismissal of Maco shall in any way affect Number One's claim against Miller Brewing Company for damages.
IT IS FURTHER COVENANTED AND AGREED, that in consideration of the mutual covenants and agreements contained herein, MACO BEVERAGE CORPORATION covenants and agrees for and on behalf of itself, its successors and assigns, to and with NUMBER ONE BEVERAGE, INC., its successors and assigns, that it will immediately discontinue the lawsuit against NUMBER ONE BEVERAGE, INC., only, styled Number One Beverage, Inc. v. Miller Brewing Company and Maco Beverage Corporation, Inc., Cause No. 36537, pending in the Circuit Court of Hancock County, and shall dismiss with prejudice all claims asserted against Number One and agrees not to refile or reinstate any claims arising out of the transaction alleged. Number One and Maco agree that it is not the intention of the parties that the dismissal of Number One shall in any way affect Number One's claim against Miller Brewing Company for damages.
IT IS FURTHER COVENANTED AND AGREED, that this instrument is not a release or an accord in satisfaction, but rather a contract between NUMBER ONE BEVERAGE, INC. and MACO BEVERAGE CORPORATION; that the execution hereof shall not be construed as a release or an accord in satisfaction; that NUMBER ONE BEVERAGE, INC. reserves all rights against all other persons, firms, corporations, associations and other entities other than said MACO BEVERAGE CORPORATION, only, its present shareholders, successors and assigns; that NUMBER ONE BEVERAGE The undersigned further represent and warrant that they were authorized, respectively, to execute this Covenants on behalf of NUMBER ONE BEVERAGE, INC. and MACO BEVERAGE CORPORATION.
INC. may proceed against Miller Brewing Company for damages only and not for an injunction; and that MACO BEVERAGE CORPORATION reserves all rights against all other persons, firms, corporations, associations, and other entities other than the said NUMBER ONE BEVERAGE, INC., only, its present shareholders, successors and assigns.
IN WITNESS WHEREOF, the undersigned hereby execute this Covenants to be effective as of the 31st day of December, 1979.
NUMBER ONE BEVERAGE, INC.
By: /s/ Richard M. Quinn
Richard M. Quinn, President
MACO BEVERAGE CORPORATION
By: /s/ Jerry R. Smith
Jerry R. Smith, Secretary/Treasurer"
Thereafter, Miller filed its motion for summary judgment alleging that the agreement between Number One and Maco taken with the dismissal with prejudice of any claims Number One had brought against Maco constituted "a release of one defendant (Maco) alleged to be jointly and severally responsible to Number One and, as such, releases the remaining defendant (Miller) from any possible liability."
After initially denying the motion, the trial court, on February 23, 1981, granted Miller's motion for summary judgment, finding, in part, that joint action by Miller and Maco would be necessary before Number One would have any claim against Miller, thus making Miller, and Maco jointly and severally responsible to Number One. The trial court also found that the agreement between Number One and Maco constituted a release of Maco and, as such, released Miller from any possible liability to Number One.
Number One presents the following issues for review:
I. Is the judgment of the trial court contrary to law in that each and every conclusion of law set forth in the Judgment Entry, upon which the judgment was based, is contrary to law?
A. Did the trial court err as a matter of law in concluding that joint action by Miller Brewing Company and Maco Beverage Corporation would be necessary for Number One Beverage, Inc. to have a claim against Miller Brewing Company making Miller Brewing Company and Maco Beverage Corporation jointly and severally responsible to Number One Beverage, Inc.?
B. Did the trial court err as a matter of law in concluding that the agreement between Number One Beverage, Inc. and Maco Beverage Corporation and the resulting stipulation and order of dismissal with prejudice of the claims against Maco Beverage Corporation constituted a release of Maco Beverage Corporation and released Miller Brewing Company from liability to Number One Beverage, Inc.?
C. Did the trial court err as a matter of law in concluding that Counts I, II, and III of the Complaint are moot because Number One Beverage, Inc. is no longer seeking injunctive relief?
D. Are there genuine issues of material fact?
II. Did the trial court err and abuse its discretion in refusing to permit Number One Beverage, Inc. to file either its...
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