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Wednesday, July 16, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In John M. Abbott, LLC, Class Representative and All Others Similarly Situated v. Lake City Bank , a 9-page opinion, Judge Crone writes:

John M. Abbott, LLC (“Abbott LLC”), acting as class representative, filed a class action against Lake City Bank (“the Bank”), maintaining that the Bank breached the terms of its promissory note (“the Note”) executed in conjunction with certain commercial real estate loans. The dispute concerned the Bank’s use of a 365/360 interest calculation method and its alleged impact on the interest owed. The Bank filed a motion for summary judgment, which the trial court granted. Abbott LLC now appeals, asserting that genuine issues of material fact exist that render summary judgment improper. Finding no genuine issue of material fact, we affirm the trial court’s summary judgment order. * * *

Under Indiana law, a party to a contract “is presumed to understand and assent to the terms of the contracts he or she signs.” Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 418 (Ind. Ct. App. 2004), trans. dismissed (2006). Additionally, here, the Note specifies that each borrower acknowledges reading and understanding the Note’s terms before signing. In other words, the timeframe for a borrower to seek clarification concerning the terms is before signing. In the case of Abbott LLC, there is no designated evidence to indicate that John Abbott ever sought clarification before signing. Instead, Abbott LLC’s designated extrinsic evidence comprises evaluations and opinions offered years after the date of execution of the Note. Even if an ambiguity were present, this evidence would shed no light on the parties’ intent as of the time of contract formation.[2]

Based on the foregoing, we conclude as a matter of law that the Note is not ambiguous. As such, we affirm the trial court’s order granting summary judgment in favor of the Bank. Affirmed.
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[2] We reject Abbott LLC’s assertion that the Note is a contract of adhesion, observing that adhesion contracts (standardized contracts, which, imposed and drafted by a party of superior bargaining strength, relegate subscribing parties only the opportunity to adhere to the contract or reject it) are not per se unconscionable. Sanford, 813 N.E.2d at 417. A contract is unconscionable only where there is a great disparity in the parties’ bargaining power, such that the weaker party is made to sign unwillingly or without being aware of the contract’s terms. Id. Abbott LLC has failed to designate any evidence that the class member borrowers were made to sign unwillingly or were unaware of the Note’s terms.

In Serenity Springs, Inc. and Laura Ostergren v. The LaPorte County Convention and Visitors Bureau, by and through its Board of Managers, a 17-page, 2-1 opinion, Judge May writes:
Serenity Springs appeals a judgment in favor of the LaPorte County Convention and Visitors Bureau (“the Bureau”) that permanently enjoined Serenity Springs from using the internet domain name visitmichigancitylaporte.com and transferred the domain name to the Bureau. As “Visit Michigan City LaPorte” was not a protectable trade name and Serenity Springs’ use of it was not unfair competition, we reverse. * * *

In Serenity Springs I, we determined the designation “Visit Michigan City LaPorte” was not subject to protection because it was merely descriptive of the geographic location of the goods and services the Bureau promotes, and it had not acquired a secondary meaning through actual use of the mark prior to Serenity Springs’ first use. Id. at 325. As the Bureau had asserted additional claims, including common-law unfair competition, that the trial court had not yet addressed, we remanded. Id. at 327.

On remand, the trial court found Serenity Springs had committed seven common-law torts: common-law trade name infringement, a common-law tort based on Serenity Springs’ intent to deceive, common-law acts amounting to cybersquatting, unfair competition in the form of conversion of intangible value, tortious interference with a contract or business relationship, tortious behavior in the nature of “palming off,” and general unfair competition. It permanently enjoined Serenity Springs from using the mark “Visit Michigan City LaPorte” or the domain name visitmichigancitylaporte.com. The case now before us is an appeal from the trial court’s decision on remand. * * *

[1. Trade Name Infringement] As there was no protectable trade name, the trial court erred in determining there was a “tort in the nature of trade name infringement.”

2. Unfair Competition

The trial court found Serenity Springs had committed six more torts it explicitly characterized as variants of unfair competition: a common-law tort based on Serenity Springs’ intent to deceive, common-law acts amounting to cybersquatting, unfair competition in the form of conversion of intangible value, tortious interference with a contract or business relationship, tortious behavior in the nature of “palming off,” and a “general unnamed tort of unfair competition.” (Id. at 32.) As the phrase “Visit Michigan City LaPorte,” had not become identified with the Bureau before Serenity Springs began using it, it was error for the trial court to find Serenity Springs’ use of the phrase was unfair competition. * * *

We acknowledge authority from other jurisdictions suggests a “single use” or an “initial use” is sufficient, e.g., Blue Bell, Inc. v. Farah Mfg. Co., Inc., 508 F.2d 1260, 1265 (5th Cir. 1975) (use of trademark need not have gained wide public recognition and even a single use in trade may sustain trademark rights if followed by continuous commercial utilization). But even that standard is not met in the case before us; we have only the Bureau’s statement of its intention to commence using that phrase.3 Serenity Springs’ actions therefore did not amount to unfair competition, and it was error for the trial court to so hold.

As “Visit Michigan City LaPorte,” was not a protectable trade name and Serenity Springs’ use of it was not unfair competition, we reverse.

VAIDIK, C. J., concurs.
RILEY, J., concurs in part and dissents in part. [which begins, at p. 10] Although I agree with the majority’s rather sparse analysis that ‘Visit Michigan City LaPorte’ is not a protectable trade name and therefore no trade name infringement can exist, I respectfully dissent from its treatment of the Bureau’s common law unfair competition claim. * * *

In light of this emerging move away from the rigid adherence to a “long established use” of the trademark or trade name, I would consider the Bureau’s bona fide use of the domain name during the ordinary course of its business.

Although acknowledging this new trend in the case law, the majority rather nonchalantly declared in its opinion that “even that standard [of single use] is not met in the case before us; we have only the Bureau’s statement of its intention to commence using that phrase.” Slip op. p. 9. Rather than relying on the heavily sanitized version of the facts used by the majority but instead considering the actual record before me, I find that the evidence reflect otherwise. The Bureau presented that it contracted with a private marketing firm in early 2009 to conduct a branding study for the purposes of identifying new and better ways to promote tourism in the area. On the morning of September 9, 2009, the Bureau held a televised public meeting, pursuant to its compliance with the Open Door provisions, during which it announced the results of its branding study and introduced the public to ‘Visit Michigan City LaPorte’ as its unique identifier. * * *

By registering the domain name ‘visitmichigancitylaporte.com’ and linking it to its website, Serenity ensured that Web surfers searching for information about the diverse attractions and accommodations located in La Porte County and promoted by the Bureau were diverted to Serenity’s own Web page instead. * * *

By appropriating the Bureau’s trade name and linking it to its own website, Serenity created this probable confusion and deception and consequently committed unfair competition with the Bureau. I would affirm the trial court’s finding of unfair competition in favor of the Bureau.

In light of Indiana’s sparse and outdated case law, I would urge our Legislature and supreme court, if the opportunity arises, to look beyond the man and cart method promoted by Hartzler and approved by an out-of-touch majority, and instead usher Indiana into the technological realities of the 21st Century by formulating tools appropriate to handle the complexities of the internet’s realm.

In Larry D. Knox v. State of Indiana, a 6-page opinion, Judge Najam writes:
Larry D. Knox appeals his conviction for torturing or mutilating a vertebrate animal, a Class D felony, following a bench trial. Knox raises a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We affirm.
NFP civil opinions today (2):

In the Matter of K.L., K.L., and K.G., C.L. v. Indiana Department of Child Services (NFP)

Connie Hinsenkamp, Town of Seelyville Clerk-Treasurer v. Seelyville Town Council; Jerry Jones, Council President; Jerry Reynolds, Council Member; and John Wade, Council Member (NFP)

NFP criminal opinions today (6):

M.G. v. State of Indiana (NFP)

Hubert Cook Mayhugh III v. State of Indiana (NFP)

Randell Lee v. State of Indiana (NFP)

Marvin Strong v. State of Indiana (NFP)

Ashley N. Lemon v. State of Indiana (NFP)

Maurice Amos, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on July 16, 2014 12:04 PM
Posted to Ind. App.Ct. Decisions