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Piano Gallery Madison, LLC v. Create Music, LLC

United States District Court, W.D. Wisconsin

February 6, 2018

PIANO GALLERY MADISON, LLC, Plaintiff,
v.
CREATE MUSIC, LLC, BENJAMIN GARBER, and DEBRA GALLA, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff Piano Gallery Madison, LLC, (PGM) operated Billings Piano Gallery in Madison, Wisconsin, until 2014. Then PGM's managing member, Grant Billings, moved to Florida and sold the business to defendant Create Music, LLC (CM). PGM alleges that CM and the other defendants failed to perform as they were required to by the asset purchase agreement executed by the parties. So PGM filed a complaint against defendants alleging breach of contract, civil theft, violation of Wisconsin's Deceptive Trade Practices Act, trade name infringement, and violation of the Lanham Act. Dkt. 5.

         Defendants move to dismiss several of PGM's claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. 10. The court will grant defendants' motion in part, dismissing PGM's claim under § 100.18.

         ALLEGATIONS OF FACT

         The court draws the following facts from PGM's complaint, Dkt. 5, and accepts them as true for the purpose of deciding defendants' motion. Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016).

         Grant Billings, like his father and grandfather, sells pianos. In 2007, Billings formed PGM, which sold Steinway & Sons pianos at a gallery in Madison, Wisconsin, under the trade name Billings Piano Gallery. Defendant Debra Galla worked as PGM's office manager. Defendant Benjamin Garber was another PGM employee.

         In June 2014, Billings decided to move to Florida to run his father's Steinway piano gallery there. He negotiated a sale of the Madison store to Garber. Billings's and Garber's attorneys drafted an asset purchase agreement under which PGM sold its business and assets to CM, a limited liability company of which Garber is the sole member. Billings and Garber executed the agreement, which became effective on October 15, 2014. Galla continued to work as the office manager for CM.

         Several terms are significant to the parties' dispute:

• The agreement defines the assets to include the “limited right and license to use and do business under the service marks ‘Piano Gallery Madison, ' ‘Billings Piano, ” ‘www.billingspiano.com, ' and ‘Billings Piano Gallery.'” Id. at 3.
• It specifies that CM's use of PGM's marks “inures to the benefit of” PGM and that if PGM determined that CM's “uses of the Marks is inconsistent with [PGM's] quality standards . . . or . . . with maintaining the goodwill inherent in the Marks, ” it could require CM to “cease all such disapproved use of the Marks.” Id.
• The agreement specifically excludes from the purchased assets all proceeds from piano sales under contract or purchase order as of the effective date.
• In the agreement, CM agrees to pay PGM in part by obtaining a release of PGM's and Billings's obligations to GE Capital for 28 pianos called the “floor plan inventory.” The agreement specifies that CM was to obtain the release by October 24 and until it did so, “title to the [floor plan] inventory . . . remains with [PGM] a[nd] any proceeds of sales from any such inventory shall be turned over to [PGM] immediately upon receipt by [CM].” Id. at 8.
• The parties agreed to pay half of the “fees and expenses incurred . . . in connection with . . . the execution, delivery and performance” of the agreement, including attorney fees. Id. at 15.

         PGM alleges that CM did not abide by the terms of the agreement. It did not pay half of “the fees that PGM incurred related to drafting and executing the” agreement. Dkt. 5, at 5. It did not obtain the GE release until December 11. Both before and after the effective date of the agreement, Garber and Galla retained payments for pianos that, under the terms of the agreement, should have been given to PGM. They altered accounting records to hide these missing payments. Billings also discovered that before the effective date of the agreement, Garber used a PGM credit card without permission. PGM complained to ...


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