Time Out, Inc. v. Karras, 15263

• Decision Date: 20 August 1986
• Docket Number: No. 15263,15263
• Citation: 392 N.W.2d 434
• Parties: TIME OUT, INC., Plaintiff and Appellee, v. Chris KARRAS, d/b/a Time Out Steakhouse & Restaurant, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 434

392 N.W.2d 434

TIME OUT, INC., Plaintiff and Appellee, v. Chris KARRAS, d/b/a Time Out Steakhouse & Restaurant Defendant and Appellant.

No. 15263.

Supreme Court of South Dakota.

Argued May 20, 1986.

Decided Aug. 20, 1986.

Timothy J. Nimick of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellant.

Charles L. Dorothy of Dorothy Law Firm, P.C., Sioux Falls, for plaintiff and appellee.

TAPKEN, Circuit Judge.

This is an appeal from the granting of partial summary judgment in favor of Time Out, Inc. (appellee). The judgment cancelled Chris Karras' (appellant) registration of the name "Time Out Steakhouse & Restaurant" and the logo of a referee signaling time out with the Secretary of State under the trademark protection provisions of SDCL 37-6. We reverse and remand for trial.

K.P. Kompelien opened a cocktail lounge and restaurant in Sioux Falls in the early 1970's under the name "Time Out Restaurant and Lounge." Kompelien later designed a business sign picturing a sports referee signaling time out above the words "Time Out." The sign was affixed to the building where the lounge and restaurant were located.

On October 15, 1975, the partnership G & C Realty, composed of Gus Cusulos and Chris Christopulos, agreed to purchase all of the assets of the Time Out Restaurant and Lounge from Kompelien for $105,000. The purchase price did not include the real property which G & C Realty later leased.

G & C Realty was interested in operating a bar and lounge, not a restaurant. Therefore, on October 24, 1975, G & C Realty entered into a separate joint purchase agreement with appellant. Appellant agreed to purchase the restaurant facilities, equipment, fixtures, and inventory and provide $22,000 toward the $105,000 purchase price. G & C Realty specifically purchased the bar facilities, equipment, fixtures, inventory, and on-sale liquor license. Under a separate lease agreement, G & C Realty leased the restaurant portion of the building to appellant.

In March 1978, G & C Realty purchased the real estate which it had previously leased. The property was conveyed from G & C Realty to Mr. & Mrs. Gus Cusulos as tenants in common on July 8, 1980.

On November 30, 1983, Cusulos, now the sole owner of the Time Out Lounge, agreed to sell the lounge portion of the business to Time Out, Inc., a South Dakota corporation. The closing date of the sale was set for December 12, 1983. Time Out, Inc., received a Certificate of Incorporation on December 9, 1983. A.J. Wiese and Mary Wiese were the directors and sole incorporators. The purchase agreement between Cusulos, as seller, and Time Out, Inc., as buyer, provided for the buyer's right to use the name "Time Out Lounge" as well as all logos, trademarks or copyrights owned, utilized or published by seller.

Appellant filed an application for a mark registration with the Secretary of State under the provisions of SDCL ch. 37-6. The application was granted and appellant received a Certificate of Mark Registration on August 22, 1984, as the legal registrant in South Dakota for the ownership of the name "The Time Out Steak House & Restaurant."

Appellee commenced the principal action seeking damages from appellant. Appellant, through an amended counterclaim, alleged an infringement of his trademark rights by appellee. Appellee moved for a partial summary judgment solely on the trademark infringement issue. The matter was submitted to the trial court on affidavits. Findings of fact, conclusions of law and judgment were entered in favor of appellee on November 14, 1985.

Appellee contends that this appeal is premature since the judgment entered by the trial court on November 14, 1985, did not comply with SDCL 15-6-54(b), which states:

When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Appellant did submit an amended judgment to the trial court which complied with SDCL 15-6-54(b). The amended judgment was signed on January 22, 1986, with the trial court's note, "Not needed--covered in November 14, 1985 Judgment."

Even though other issues remain to be tried in this matter, it is apparent that the trial court intended its decision concerning the trademark infringement issue to be final. The appeal from that judgment is properly before us. Riede v. Phillips, 277 N.W.2d 720 (S.D.1979).

The trial court adopted twenty-seven separate findings of fact and two separate conclusions of law prior to the entry of judgment. Findings of fact and conclusions of law are unnecessary in summary judgment proceedings. SDCL 15-6-52(a); Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968); City of Belle Fourche v. Dittman, 325 N.W.2d 309 (S.D.1982). Therefore, our scope of review on appeal is not under the "clearly erroneous" doctrine, but rather under the strict standards attendant upon entry of summary judgment as delineated in Wilson, supra:

(1) Evidence must be viewed most favorable to the non-moving party;

(2) The burden of proof is on the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law;

(3) Summary judgment is not a substitute for a court trial or for trial by jury where any genuine issue of material fact exists;

(4) Surmise that a party will not prevail upon trial is not sufficient basis to grant summary judgment on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious that it would be futile to try them (5) Summary judgment is an extreme...