Billewicz v. Estate of John J. Fanelli, No. 358-7-19 Wncv (Tomasi, J., Apr. 7, 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 358-7-19 Wncv
Lillian E. Billewicz, Appellant
v.
Estate of John J. Fanelli, Appellee
Opinion and Order on Appeal from the Secretary of State
This is an appeal from a determination of the Vermont Secretary of State (the
“Secretary”). The Secretary concluded that the Appellant, Lillian Billewicz, had lost
the rights to the trade name “Santa’s Land.” The Appellee is the Estate of John
Fanelli, which seeks affirmance of that determination. The Court held a de novo
evidentiary hearing on October 8, 2019 and January 7, 2020. 11 V.S.A. § 1636(c).
Ms. Billewicz, a former attorney, was present and represented herself. The Estate
was represented by John Valente, Esq. The Court makes the following
determinations based on the evidence.
I. Findings of Fact
Santa’s Land was a business that operated for decades as a Christmas-
inspired theme park in Putney, Vermont. Ms. Billewicz purchased the business in
June 2013 from Stetson Enterprises. Exhibit C. At around the same time, John
Fanelli was seeking to foreclose on a mortgage that burdened the Santa’s Land property. The multiple parties involved entered into a Stipulation permitting a
strict foreclosure on Santa’s Land but allowing a period of time for redemption. Ms.
Billewicz signed the Stipulation as Stetson Enterprises’ “successor-in-interest.”
Exhibits D–E. The Stipulation and Judgment included “personal property.” Id.
The strict foreclosure proceeded. No party redeemed the property, Exhibit F, and
Mr. Fanelli assumed ownership of the former Santa’s Land and all “personal
property . . . [that was] used in connection with the Mortgaged Property.” 1 Exhibit
D. In July 2016, the Santa’s Land property was sold to David Haversat, Exhibit J,
who wishes to run Santa’s Land as a theme park and reunite it with its trade name.
Though determination of the ownership of the Santa’s Land theme park is
beyond the scope of the present action, the Court understands that Ms. Billewicz
has made various attempts through court proceedings to reopen and undo some or
all of the transactions described above. She hopes to regain ownership of the
Santa’s Land theme park. One such action remains pending in the Windham
Probate Court. She touts those efforts to show her “intention” to use the trade
name, again, as a theme park.2
1The parties do not appear to dispute that a trade name is personal property. See, e.g., Adams v. Hartz Mountain Corp., No. C14-1174RSL, 2014 WL 7151781, at *5 (W.D. Wash. Dec. 15, 2014) (describing trade names as intangible personal property). 2In light of the Stipulation, the Court questioned both sides as to why ownership of the Santa’s Land property should not be determinative of which side should be entitled to use of the name. As the Court is now sitting in an appellate position reviewing the Secretary’s ruling, however, it has no reason to analyze that issue. Accordingly, it expresses no opinion as to whether the results of other litigation may have a future impact on either side’s entitlement to register and use the Santa’s Land trade name. 2 Ms. Billewicz testified at trial that the last time Santa’s Land theme park
admitted visitors under her ownership was early 2014. The last point in time when
Santa’s Land theme park sold any goods was October 2014. Ms. Billewicz
physically left the Santa’s Land property in the summer of 2015.
As to the trade name “Santa’s Land,” as part of her purchase in 2013, Ms.
Billewicz obtained ownership of the trade name Santa’s Land. She registered the
Santa’s Land trade name with the Secretary in July 2013. She indicated that its
business purpose was “Theme Park.” Exhibit P. The registration required that the
owner of the trade name inform the Secretary “if the business name, address or
ownership is changed.” Ms. Billewicz admitted that she did not use the trade name
at all from late fall 2014 to the fall of 2017.
In the fall of 2017, Ms. Billewicz sought to “renew” the trade name. She had
not to that point informed the Secretary of the changes in ownership of the Santa’s
Land theme park, nor did she do so in the renewal application. Ms. Billewicz
conceded that point at trial. When Ms. Billewicz submitted her renewal
application, she modified the business purpose of Santa’s Land from “Theme Park”
to “Arts, Entertainment, and Recreation; Independent Artists, Writers, and
Performers.” Exhibit Q. She stated that she made that change to reflect a new
business venture.
Ms. Billewicz testified that, since “summer or fall of 2017” she has operated a
“sole proprietorship” using the Santa’s Land trade name. She claimed that the
business involves having her son dress up as Santa and bring gifts or balloons to
3 children at their homes. In addition, she asserted that she writes letters to children
“from Santa” on Santa Land letterhead that she has left over from the theme park.
Other than her testimony, and despite understanding the nature of the trial, Ms.
Billewicz produced little tangible evidence of the ongoing operation of such a
business. The enterprise has no employees, no website, and runs no
advertisements. Ms. Billewicz stated that she had placed “flyers” in some stores
and laundromats, but produced no such flyers. She produced no versions of any
letters from Santa Claus, but did admit a blank piece of paper with the Santa’s
Land letterhead, which also contained the address of the theme park. Exhibit 1.
Ms. Billewicz stated that she would make copies of the letterhead and block out the
former address. She did not produce such an exhibit at trial, however.3
Ms. Billewicz testified that she kept business records in a “ledger” or an
“address book,” but did not bring the book or books to either day of trial. She
maintained that she had filed a tax return for the business. She did not produce a
copy of the return, but did provide a handwritten “copy” of the return she claimed to
have submitted for the year 2018. Exhibit 2. That return shows a gross income for
the business of $830.00. Further, she admitted that she had not filed a Schedule C
for the business. She stated that she would need to file an amended return.
Ms. Billewicz stated that the business performs 30-40 visits per year. But
she did not offer the testimony of her son or of any past customer who might have
3Nor is it clear to the Court the authority pursuant to which Ms. Billewicz continues to retain and use physical property of Santa’s Land theme park. 4 supported that assertion. At best, Ms. Billewicz could recall only that one
customer’s name was “Shelly.” Other than that, however, though operated at a
small town/local level, Ms. Billewicz could not name a single additional customer
that had used her business.
II. Analysis
Vermont law provides that an applicant who has been denied the use of a
trade name by the Secretary because it is already registered to another, can seek a
hearing to determine whether the other person is still actively using the trade
name. 11 V.S.A. § 1636(a).
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Billewicz v. Estate of John J. Fanelli, No. 358-7-19 Wncv (Tomasi, J., Apr. 7, 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 358-7-19 Wncv
Lillian E. Billewicz, Appellant
v.
Estate of John J. Fanelli, Appellee
Opinion and Order on Appeal from the Secretary of State
This is an appeal from a determination of the Vermont Secretary of State (the
“Secretary”). The Secretary concluded that the Appellant, Lillian Billewicz, had lost
the rights to the trade name “Santa’s Land.” The Appellee is the Estate of John
Fanelli, which seeks affirmance of that determination. The Court held a de novo
evidentiary hearing on October 8, 2019 and January 7, 2020. 11 V.S.A. § 1636(c).
Ms. Billewicz, a former attorney, was present and represented herself. The Estate
was represented by John Valente, Esq. The Court makes the following
determinations based on the evidence.
I. Findings of Fact
Santa’s Land was a business that operated for decades as a Christmas-
inspired theme park in Putney, Vermont. Ms. Billewicz purchased the business in
June 2013 from Stetson Enterprises. Exhibit C. At around the same time, John
Fanelli was seeking to foreclose on a mortgage that burdened the Santa’s Land property. The multiple parties involved entered into a Stipulation permitting a
strict foreclosure on Santa’s Land but allowing a period of time for redemption. Ms.
Billewicz signed the Stipulation as Stetson Enterprises’ “successor-in-interest.”
Exhibits D–E. The Stipulation and Judgment included “personal property.” Id.
The strict foreclosure proceeded. No party redeemed the property, Exhibit F, and
Mr. Fanelli assumed ownership of the former Santa’s Land and all “personal
property . . . [that was] used in connection with the Mortgaged Property.” 1 Exhibit
D. In July 2016, the Santa’s Land property was sold to David Haversat, Exhibit J,
who wishes to run Santa’s Land as a theme park and reunite it with its trade name.
Though determination of the ownership of the Santa’s Land theme park is
beyond the scope of the present action, the Court understands that Ms. Billewicz
has made various attempts through court proceedings to reopen and undo some or
all of the transactions described above. She hopes to regain ownership of the
Santa’s Land theme park. One such action remains pending in the Windham
Probate Court. She touts those efforts to show her “intention” to use the trade
name, again, as a theme park.2
1The parties do not appear to dispute that a trade name is personal property. See, e.g., Adams v. Hartz Mountain Corp., No. C14-1174RSL, 2014 WL 7151781, at *5 (W.D. Wash. Dec. 15, 2014) (describing trade names as intangible personal property). 2In light of the Stipulation, the Court questioned both sides as to why ownership of the Santa’s Land property should not be determinative of which side should be entitled to use of the name. As the Court is now sitting in an appellate position reviewing the Secretary’s ruling, however, it has no reason to analyze that issue. Accordingly, it expresses no opinion as to whether the results of other litigation may have a future impact on either side’s entitlement to register and use the Santa’s Land trade name. 2 Ms. Billewicz testified at trial that the last time Santa’s Land theme park
admitted visitors under her ownership was early 2014. The last point in time when
Santa’s Land theme park sold any goods was October 2014. Ms. Billewicz
physically left the Santa’s Land property in the summer of 2015.
As to the trade name “Santa’s Land,” as part of her purchase in 2013, Ms.
Billewicz obtained ownership of the trade name Santa’s Land. She registered the
Santa’s Land trade name with the Secretary in July 2013. She indicated that its
business purpose was “Theme Park.” Exhibit P. The registration required that the
owner of the trade name inform the Secretary “if the business name, address or
ownership is changed.” Ms. Billewicz admitted that she did not use the trade name
at all from late fall 2014 to the fall of 2017.
In the fall of 2017, Ms. Billewicz sought to “renew” the trade name. She had
not to that point informed the Secretary of the changes in ownership of the Santa’s
Land theme park, nor did she do so in the renewal application. Ms. Billewicz
conceded that point at trial. When Ms. Billewicz submitted her renewal
application, she modified the business purpose of Santa’s Land from “Theme Park”
to “Arts, Entertainment, and Recreation; Independent Artists, Writers, and
Performers.” Exhibit Q. She stated that she made that change to reflect a new
business venture.
Ms. Billewicz testified that, since “summer or fall of 2017” she has operated a
“sole proprietorship” using the Santa’s Land trade name. She claimed that the
business involves having her son dress up as Santa and bring gifts or balloons to
3 children at their homes. In addition, she asserted that she writes letters to children
“from Santa” on Santa Land letterhead that she has left over from the theme park.
Other than her testimony, and despite understanding the nature of the trial, Ms.
Billewicz produced little tangible evidence of the ongoing operation of such a
business. The enterprise has no employees, no website, and runs no
advertisements. Ms. Billewicz stated that she had placed “flyers” in some stores
and laundromats, but produced no such flyers. She produced no versions of any
letters from Santa Claus, but did admit a blank piece of paper with the Santa’s
Land letterhead, which also contained the address of the theme park. Exhibit 1.
Ms. Billewicz stated that she would make copies of the letterhead and block out the
former address. She did not produce such an exhibit at trial, however.3
Ms. Billewicz testified that she kept business records in a “ledger” or an
“address book,” but did not bring the book or books to either day of trial. She
maintained that she had filed a tax return for the business. She did not produce a
copy of the return, but did provide a handwritten “copy” of the return she claimed to
have submitted for the year 2018. Exhibit 2. That return shows a gross income for
the business of $830.00. Further, she admitted that she had not filed a Schedule C
for the business. She stated that she would need to file an amended return.
Ms. Billewicz stated that the business performs 30-40 visits per year. But
she did not offer the testimony of her son or of any past customer who might have
3Nor is it clear to the Court the authority pursuant to which Ms. Billewicz continues to retain and use physical property of Santa’s Land theme park. 4 supported that assertion. At best, Ms. Billewicz could recall only that one
customer’s name was “Shelly.” Other than that, however, though operated at a
small town/local level, Ms. Billewicz could not name a single additional customer
that had used her business.
II. Analysis
Vermont law provides that an applicant who has been denied the use of a
trade name by the Secretary because it is already registered to another, can seek a
hearing to determine whether the other person is still actively using the trade
name. 11 V.S.A. § 1636(a). That same provision provides:
If, after notice and an opportunity for hearing, the Secretary or designee finds that the person is not doing business or intending to do business in this State as demonstrated by a substantive act or acts consistent with that intent, the Secretary may terminate the registration and register the business name to the applicant. If the business name is not taken by the person who requested a hearing under this section, the business name shall be available for selection by another registrant.
Id. § 1636(b).
In this instance, the Secretary concluded that Ms. Billewicz is “not doing
business or intending to do business in this State as demonstrated by a substantive
act or acts consistent with that intent.” The Secretary, thus, determined that Ms.
Billewicz was no longer entitled to use the trade name Santa’s Land. For
procedural and substantive reasons, and based on the evidence presented at trial,
the Court agrees with the Secretary’s result.
First, the Court sees significant procedural errors attendant to Ms. Billewicz’
“renewal” of the Santa’s Land trade name. She had not informed the Secretary of
5 the change in ownership or the change in location of the business, as she was
required to do. Such information would have permitted the Secretary to perform a
more searching evaluation of the request for renewal and evaluate any competing
claims. Additionally, Ms. Billewicz sought “renewal” of the trade name for purposes
of using it in connection with the business she described at trial, not as a theme
park. Specifically, the application described the business as “Arts, Entertainment,
and Recreation; Independent Artists, Writers, and Performers.” Exhibit Q. As a
result, Ms. Billewicz was operating a new business at a different location, and with
a different purpose. The Court does not believe that is an appropriate basis to seek
a “renewal” of a trade name, especially where no disclosure has been made to the
Secretary as to the changes in prior ownership and location of business.
Second, relying on federal case law, both sides appear to agree that the
nearly three-year period (2014–2017) in which Ms. Billewicz did not operate a
business or use the trade name Santa’s Land creates a rebuttable presumption that
the name was abandoned. They disagree as to whether the presumption has been
rebutted and which side bears the burden of proof. The Court need not resolve
those issues because the Court’s ruling would be the same regardless of which side
has the ultimate burden of persuasion.
Here, the evidence conclusively demonstrates that Ms. Billewicz has not
undertaken a “substantive act or acts consistent with [her] intent” to run the
6 Santa’s Land performance venture.4 Ms. Billewicz participated in the hearing
process before the Secretary. In the Secretary’s ruling, he concluded that Ms.
Billewicz had not produced any real evidence substantiating her claims regarding
the ongoing operation of the business. Despite having participated in that process
and despite having two hearings before this Court—separated by over three
months—Ms. Billewicz also did not present any reliable evidence supporting her
claims at trial. She produced no witnesses, including her son or customers;
customer lists; photographs; flyers; advertisements; letters; or business records
(other than the purportedly hand-copied version of a tax return that contained no
schedules). Ms. Billewicz claims that she simply did not bring the records with her
to Court. Ms. Billewicz is a former attorney. She cannot claim ignorance as to the
need for tangible proof in connection with assertions that are being contested at
trial. Ultimately, consistent with the Secretary’s decision, the Court finds the scant
evidence supporting Ms. Billewicz’ claim of an ongoing business operation to be
unreliable and wholly unpersuasive.
4The Court does not credit the litigation activity to regain ownership of the theme park as supportive of Ms. Billewicz’ claim for ongoing use of the Santa’s Land trade name in connection with her new and distinct business venture. 7 III. Conclusion
In light of the foregoing, the Court concludes that Ms. Billewicz is no longer
entitled to registration of the Santa’s Land trade name.
Dated at Montpelier, Vermont, this 7th day of April, 2020.
------------------------------------- Timothy B. Tomasi Superior Court Judge