Pharo Distributing Co. v. Stahl, Nos. 88-CA-0982-M
| Court | Court of Appeals of Kentucky |
| Writing for the Court | MILLER |
| Citation | 11 U.C.C. Rep. Serv.2d 814,782 S.W.2d 635 |
| Parties | 11 UCC Rep.Serv.2d 814 PHARO DISTRIBUTING COMPANY; David Pharo; and David Pharo, d/b/a Pharo Distributing II, Appellants, v. Eric STAHL, Appellee. and PHARO DISTRIBUTING COMPANY; David Pharo, Individually; and Pharo Distributing Company and David Pharo, d/b/a Pharo Distributing II, Appellants, v. Eric STAHL, Appellee. and Eric STAHL, Cross-Appellant, v. PHARO DISTRIBUTING COMPANY; David Pharo, Individually; and Pharo Distributing Company and David Pharo, d/b/a Pharo Distributing II, Cross-Appellees. |
| Docket Number | 88-CA-2484-MR and 88-CA-2550-MR,Nos. 88-CA-0982-M |
| Decision Date | 01 December 1989 |
Page 635
d/b/a Pharo Distributing II, Appellants,
v.
Eric STAHL, Appellee.
and
PHARO DISTRIBUTING COMPANY; David Pharo, Individually; and
Pharo Distributing Company and David Pharo, d/b/a
Pharo Distributing II, Appellants,
v.
Eric STAHL, Appellee.
and
Eric STAHL, Cross-Appellant,
v.
PHARO DISTRIBUTING COMPANY; David Pharo, Individually; and
Pharo Distributing Company and David Pharo, d/b/a
Pharo Distributing II, Cross-Appellees.
Discretionary Review Denied
by Supreme Court
Jan. 31, 1990.
Page 636
Ed W. Tranter, Ft. Thomas and Dale L. Horner, Jr., Maysville, for Pharo Distributing Co., et al.
Bernard C. Hargett, Maysville, for Eric Stahl.
Before McDONALD, MILLER and REYNOLDS, JJ.
MILLER, Judge.
These are two appeals and a cross-appeal from a judgment of the Mason Circuit Court wherein appellee/cross-appellant, Eric Stahl, upon trial by jury, was awarded $50,000 damage for breach of contract.
The facts are as follows: Appellant/Cross-Appellee, Pharo Distributing Company (the company), had a franchise agreement with Strohs-Schlitz Brewery to distribute in several Kentucky counties, including Bracken, Mason, and Lewis. The company entered into an oral, open-ended subdistributorship agreement with Stahl to distribute Schlitz products in the above-named counties. This arrangement continued for many years. Strohs products were distributed in Bracken, Mason, and Lewis counties by Parker Beverage company. On or about June 9, 1987, appellant, David Pharo (Pharo), president of the company, advised Stahl that the subdistributorship would be terminated effective June 15, 1987. Pharo had purchased the Parker Beverage Company and apparently intended to let Parker Beverage distribute both Strohs and Schlitz products.
On June 27, 1987, Stahl filed suit in the Mason Circuit Court against Pharo and the company, alleging breach of contract, willful destruction of business, tortious interference with prospective business arrangements
Page 637
(based upon Stahl's alleged efforts to purchase Parker Beverage) and slander. He sought actual and punitive damages, as well as injunctive relief. He posted a $5,000 injunction bond. Kentucky Rules of Civil Procedure (CR) 65.05. A temporary injunction was granted by the trial court, but upon motion to the Court of Appeals, pursuant to CR 65.07, same was dissolved. A hearing was held to determine whether the company and Pharo had sustained any damages during the time frame the temporary injunction was in effect. The trial court denied same.The case proceeded to trial and the jury returned a verdict in favor of Stahl for $50,000. Pharo and the company appeal, alleging (1) Stahl did not properly prove his damages (Appeal No. 88-CA-2484-MR), and (2) the trial court erred in refusing to award damages as a result of the temporary injunction (Appeal No. 88-CA-0982-MR). Stahl cross-appeals (No. 88-CA-2550-MR), alleging the trial court erred in failing to give certain instructions.
We first address Appeal No. 88-CA-0982-MR. The trial court made a finding that Pharo could not recover for any damages while the injunction was in effect because this Court, upon dissolving same, did not make the dissolution retroactive. This fallacious argument was advanced by Stahl and is without merit. An appellate court ruling that an injunction should not have been issued is impliedly retroactive. Were we to adopt the position of Stahl, then no litigant would ever be entitled to damages for the wrongful issuance of an injunction. This is plainly not the law in this jurisdiction. As stated in Teamsters Local # 783 v. National Linen Service, Ky., 472 S.W.2d 671 (1971):
The whole concept of an injunction bond, particularly in the case of an ex parte restraining order, is that the order is issued on peril of a subsequent determination that injunctive relief is not properly grantable. The party who obtains the order takes the chance of the validity of a grant of injunctive relief.
Id. at 674.
It does not follow from the foregoing, however, that Pharo and the company are automatically entitled to damages. Where injunctive relief is the sole relief sought, damages and attorney fees are not recoverable. See International Brotherhood of Firemen and Oilers, Local 320 v. Board of Educ. of Jefferson County, Ky., 393 S.W.2d 793 (1965). However, the ancillary grant of an injunction may form a predicate for damages. Stahl argued below that the injunctive relief was not ancillary, but an integral element of the damages he sought. It appears he has abandoned this position on appeal. We conclude the injunction was ancillary to the relief sought by Stahl which was, essentially, money damages for alleged tortious conduct and breach of contract.
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...that the notice must allow the buyer reasonable time to find other arrangements. Id. at 160. In Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 11 U.C.C. Rep. Serv.2d 814, 817 (Ky. App.1989), the court held that six days notice left no "inference" other than that is was unreasonable. There......
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Farmers Ins. Exch. v. Goldan, No. DA 15–0529.
...the notice provision does not entitle [the employee] to compensation for the entire contract period”); Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 638–39 (Ky.Ct.App.1989) (concluding, “It is not the termination of an at-will contract that constitutes the breach; the right to terminate ......
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Pura-Flo Corp. v. Clanton, NO. 14-19-00479-CV
...S.E.2d 105, 106 (1992) ; Burch v. Lake Forest Property Owners' Ass'n , 565 So.2d 611, 612 (Ala. 1990) ; Pharo Distributing Co. v. Stahl , 782 S.W.2d 635, 638–39 (Ky. Ct. App. 1989) ; Martin v. U–Haul Co. of Fresno , 204 Cal.App.3d 396, 409, 251 Cal.Rptr. 17 (1988).17 See Odell , 201 F.2d at......
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N.Y. Life Ins. Co. v. Terry, No. 5:15-CV-353-HAI
...case, would allow one to make alternate arrangements upon cessation of the contract and minimize losses." Pharo Distrib. Co. v. Stahl, 782 S.W.2d 635, 638 (Ky. Ct. App. 1989). The "obvious object of the reasonable notice requirement" is "to afford the party losing the contract an opportunit......
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Intergraph Corp. v. Intel Corp., No. CV-97-N-3023-NE.
...that the notice must allow the buyer reasonable time to find other arrangements. Id. at 160. In Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 11 U.C.C. Rep. Serv.2d 814, 817 (Ky. App.1989), the court held that six days notice left no "inference" other than that is was unreasonable. There......
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Farmers Ins. Exch. v. Goldan, No. DA 15–0529.
...the notice provision does not entitle [the employee] to compensation for the entire contract period”); Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 638–39 (Ky.Ct.App.1989) (concluding, “It is not the termination of an at-will contract that constitutes the breach; the right to terminate ......
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Pura-Flo Corp. v. Clanton, NO. 14-19-00479-CV
...S.E.2d 105, 106 (1992) ; Burch v. Lake Forest Property Owners' Ass'n , 565 So.2d 611, 612 (Ala. 1990) ; Pharo Distributing Co. v. Stahl , 782 S.W.2d 635, 638–39 (Ky. Ct. App. 1989) ; Martin v. U–Haul Co. of Fresno , 204 Cal.App.3d 396, 409, 251 Cal.Rptr. 17 (1988).17 See Odell , 201 F.2d at......
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N.Y. Life Ins. Co. v. Terry, No. 5:15-CV-353-HAI
...case, would allow one to make alternate arrangements upon cessation of the contract and minimize losses." Pharo Distrib. Co. v. Stahl, 782 S.W.2d 635, 638 (Ky. Ct. App. 1989). The "obvious object of the reasonable notice requirement" is "to afford the party losing the contract an opportunit......