Appeals court uses humor to finish a frosty fight in the 'sno-ball' industry

By Tara Mapes | Sep 25, 2016

NEW ORLEANS – The courtroom is not a common place to find humor. However, some judges like to lighten the litigious mood when delivering decisions.

A three-judge panel with the U.S. Court of Appeals for the 5th Circuit did just that when it handed down a pun-packed ruling in the snowball industry’s decade-long lawsuit.

Interactions in the local flavored shaved ice industry undoubtedly turned icy before the bitter battle ensued over the course of 10 years. Hundreds of claims and a handful of lawsuits were wrapped up into a consolidated case in the 5th Circuit Court of Appeals. The final round of the "sno-ball" fight was warmed by a cleverly worded decision issued Aug.15.

"Relations between the parties are frosty, to say the least," the ruling reads, "What began as a flurry of cease-and-desist letters between the companies has turned into a blizzard of patent, trademark and antitrust litigation. Each party has attempted to use the courts to freeze the other out of the sno-ball market."

The cold war between the "sno-ball" competitors began when SnoWizard Inc. acquired several patent and trademark rights between 2003 and 2008. “This led SnoWizard to conjure up an avalanche of lawsuits against their competitors in the sno-ball industry," the ruling said.

Southern Snow filed its first claim in state court in 2006, which was later moved to federal court. Southern Snow and SnoWizard fought over claims to the syrup flavors, SnoWizard’s use of the term "sno-ball" to describe frozen treats, and even patent rights to SnoWizard’s snowball-making equipment.

“Plaintiffs Southern Snow, Snow Ingredients and Simeon are all owned by the same person, Milton ‘Bubby’ Wendling," Jack Morris, attorney for SnoWizard, told the Louisiana Record. " Plaintiff Theodore Eisenmann, the former owner of Eisenmann Products Company, sold the assets of his company to Southern Snow in 2005. They and plaintiff Parasol Flavors were the only direct competitors of SnoWizard. All of the remaining plaintiffs, Raggs Supply, Special T Ice, Plum Street Snoballs and Van’s Snowballs, were customers of Southern Snow, which enlisted them into the lawsuit and paid the attorney fees and costs for them. Southern Snow plaintiffs and their lawyer filed a total of six lawsuits against SnoWizard at varying intervals over a six-year period, the first five of which were consolidated in two separate orders a year apart.”

When Southern Snow attempted to reintroduce claims already decided in a consolidated case, the court denied them, along with more than 175 others, writing, “Plaintiffs are only allowed one bite at the sno-ball.”

“Southern Snow enlisted its customers Raggs Supply, Special T Ice, Plum Street Snoballs and Van’s Snowballs into the lawsuit for the purpose of refiling previously dismissed claims and to assert the baseless RICO claims," SnoWizard President Ronald R. Sciortino told the Louisiana Record. "Not only did Wendling pay the attorney fees and costs for all of the plaintiffs, but one of the plaintiffs, Jason Guidry of Special T Ice, testified at trial that he was not even aware he was suing SnoWizard, and Van Howenstine of Van’s Snowballs testified he was suing SnoWizard for emotional distress and loss of affection.”

Despite the length of the lawsuit and the gravity of the claims; one side appreciated the court’s humor; “The Court of Appeals’ clever opinion confirms SnoWizard’s position that the claims of the Southern Snow plaintiffs and their attorney were, in fact, laughable. Otherwise, SnoWizard found nothing funny about having to defend itself repeatedly against the same claims brought over and over again by the same parties and their attorney at great cost to SnoWizard,” Morris said.

Morris said although it is rare, there is a precedent for such pun-filled judicial opinions. He recalled a case in which the plaintiff wanted to set aside a sale of a house because he claimed was haunted. Among other paranormal-themed puns, the New York appellate court joked, “From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: ‘Who you gonna call?’ as a title song to the movie ‘Ghostbusters’ asks.”

The court concluded its "sno-ball" decision by writing, “The parties could have shaved down the overwhelming costs in time, expense and scarce judicial resources that this litigation has consumed if they could have abandoned their unrelenting desire to crush the opposition.”

The parties agreed, at least legally, that it was time to end the bitter battle. The parties entered into a consent judgment to dispose of many of the claims between the parties not decided by the court.

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