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Ryan v. Carmona Bolen Home for Funerals

May 24, 2001

TIMOTHY E. RYAN, INDIVIDUALLY, AND TIMOTHY E. RYAN HOME FOR FUNERALS, PLAINTIFFS-APPELLANTS,
v.
CARMONA BOLEN HOME FOR FUNERALS AND RODNEY RYAN BOLEN, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, OCN-C-00263- 98.

Before Judges Keefe, Steinberg and Weissbard.

The opinion of the court was delivered by: Steinberg, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2001

Plaintiff Timothy E. Ryan appeals from an order granting summary judgment in favor of defendants Carmona Bolen Home for Funerals (Carmona Bolen) and Rodney Ryan Bolen (Bolen). We reverse and remand.

According to their statement of material facts filed in opposition to the motion for summary judgment pursuant to R. 4:46- 2(a), Timothy E. Ryan has operated a funeral home business known as Timothy E. Ryan Home For Funerals, since 1983. They have two funeral homes in Toms River, one in Lavalette, and one in Seaside Park. In their statement of material facts, defendants admit that they operate a funeral home business under the name of Carmona Bolen Home for Funerals with one location in Toms River, and one in Whiting.

In early January 1997 the Division of Consumer Affairs filed a fifty-four-count complaint against defendants alleging that they violated the State's Consumer Fraud Act, Mortuary Science Act, and also had committed Medicaid fraud. According to plaintiffs, the investigation received widespread publicity in local newspapers, was reported on the national television program entitled "20/20," and became common knowledge in the community. Defendants did not contest the charges and, ultimately, they were fined and their individual licenses were suspended. However, the suspensions were staggered and Carmona Bolen was permitted to remain in operation. The sanctions were imposed in January 1998, effective February 1, 1998.

Rodney Bolen's middle name is Ryan. Although he previously was referred to in advertisements as Rodney R. Bolen, in July 1998, he began referring to himself as Rodney Ryan Bolen. According to Lawrence Bolen, Rodney began referring to himself as Rodney Ryan Bolen after he became manager of the Toms River home.*fn1 Plaintiffs asserted in their statement of material facts, that thereafter they began to receive telephone calls from people who were confused because they saw the name "Ryan" in the Carmona Bolen advertisements and believed the two funeral homes were affiliated. The calls were generally negative until the absence of affiliation was explained.

Contending that defendants' use of the name of Ryan damaged their goodwill and reputation, plaintiffs filed suit seeking to enjoin defendants from using the name Ryan in their advertisements, and to place a disclaimer in their advertisements stating that Carmona Bolen is not affiliated with Timothy E. Ryan Home For Funerals. The motion judge granted defendants' motion for summary judgment, concluding that "the utilization of one's name is of constitutional dimension" which is supported by "an absolute privilege."

Plaintiffs appeal, contending that the judge applied the wrong standard in considering defendants' motion for summary judgment, and there were genuine factual issues present regarding unfair competition, confusion and deception to the public precluding the granting of summary judgment. We agree.

Summary judgment must be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment of order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, require submission of the issue to the trier of fact. R. 4:46-2(c).

If there exists a single unavoidable resolution of the alleged disputed issue of fact, that issue is insufficient to constitute a genuine issue of material fact. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995). On the other hand, on summary judgment, the facts presented must be viewed in the light most favorable to the party opposing the motion. Ibid.; Rosario v. Cacace, 337 N.J. Super. 578, 581 (App. Div. 2001). If the competent evidential materials, when viewed in that light are sufficient to allow a rational fact finder to resolve disputed issues in favor of the party opposing the motion, summary judgment must be denied. Brill, supra, 142 N.J. at 540; Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 502 (App. Div. 2000). On appeal, we apply the same standard that governs trial courts in determining whether summary judgment was properly granted. Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999).

"[T]he essence of unfair competition is fair play." Columbia Broadcast Sys. v. Melody Recordings, 134 N.J. Super. 368, 376 (App. Div. 1975) (internal citations omitted). Thus, the purpose of the law regarding unfair competition is to promote higher ethical standards in the business world. N.J. Optometric Ass'n v. Hillman- Cohan, 144 N.J. Super. 411, 427 (Ch. Div. 1976) (internal citation omitted). Accordingly, the concept is deemed "as flexible and elastic as the evolving standards of commercial morality demand." Ibid. (internal citation omitted). The judicial goal should be to discourage, or prohibit the use of misleading or deceptive practices which renders competition unfair. The law must be sufficiently flexible to accommodate those goals.

In granting summary judgment, the judge concluded "that the utilization of one's name is of constitutional dimension" and that Rodney Ryan Bolen had an "absolute privilege" to use the name Ryan. We disagree. Ordinarily, a person has the right to use his or her name in the operation of a business. Sachs Furniture & Radio Co. v. Sachs Quality Stores Corp., 39 N.J. Super. 70, 82 (App. Div. 1956). While it is presumed that the use of one's own name in business is for proper purposes, the law recognizes that a person "may not use his name ...


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