good morning good morning may please the court my name is john the lawyer and i represent the appellant stuff w the matters before the court on this appeal are not especially complex they deal with whether or not tribal issues of fact under rule fifty six existed or as this court reviews the matter going over all of exist on the record before this court and essentially one primary issue drill down to the essence the question is asked first asked here is was there sufficient evidence in the record to show that as of late two thousand and nine when these co owners co directors co officers  veterinarian in the papers well but i guess i want to add have you address for me first there was a mutual release provision of the december two thousand and nine stock repurchase agreement which waves wallach's right to bring any plane against right and water except for preach that agreement while like received the price for a shares a grade two by the parties and so it appears that right and want to fill their obligation under the agreement why is that why isn't that the end of the matter the mutual release is voidable as judge jury in the district court recogni if there is a fraud or a breach of fiduciary duty that existed prior to or in the formation of the agreement that can contain the mutual release and you alleged eleven such acts and he went through every one of them and said either the there's no proof for instance that there was a secret employment agreement or as far as moving the business back into the private home  all of the other issues that were addressed by judge curial don't address the trademark issue and the trademark issue is the core issue because as things played out with the eidetic purchase of ats that's some other company they would sell the assets including that trading it but there again that your client knew that at the time because there was something from million bucks at that point right there was discussion i have they there were million facts which had been turned down because they said that's not enough so your client knew that your client didn't know it was going to go for three point two back so why isn't just it but he knew that they weren't taken a million and they knew they were talking and if you look at three point eight of the repurchase agreement it sets forth what are the assets or what the deal was going to include for mr wallach to the sale to sell the trademark which was outside of that agreement so to you position is that warwick never sold the trademark correct s t p i is not a party to that underlying agreement testimony of a christian who was d v m insights on the lawyer you would think that would have occurred in the underlying case he said it never was addressed he anticipated that it would however the u s p t o is very clear a end of the value of the trademark if he agrees the recouped correct he so what is he complaining about these people for because he recoup part of that but not here it's the complaining the as i understand what you're saying is that right and the other partner didn't own the the trademark it was owned by was like and so how could they take a corporate up and i set forth the rolling up page twelve of our opening brief very clearly after judge shiria was not presented with all these trademark issues on this summer and there's a long history of that we had three years of motion practice on the motions to dismiss but we didn't know until about two months before this motion was filed because we hadn't had discovery or anything happen in the case other case down below whether or not there was an implied license to use the d v m insite name that is a corporate opportunity that was usurped and the intent to do so that actually occurred prior to opportunity that they had in quotes stolen news and judge jury else words in the order that had actually occurred but the crux of this  appeal is that judge curial made an additional finding that we believe was over and above the findings he needed to make to rule on the summary judgment he infused and was anchored on the issues regarding prior discussions out occurred with light ex about a possible sale or really deals or issues regarding damages not liability because at the time of the stock repurchase agreement all  needed to be prove that there was a breach producer in duty that was concealed and that had occurred prior to the stock purchase agreement requiring also that while it prove that there was an intent to at some point in the all is reverse and remand really with this case should go back to the district court for is for a determination by jury on the issues that judge at face value that s that there is no claim for trademark infringement as against right walters that can be amended and we were so rushed right after discovery even while still taking good morning good morning may it please the court matty a stevens on behalf of matt right and stephen walters judge jury all got this exactly right and we're hoping that this court won't throw that common sense or the law out the window in favor of these tortured arguments it's a frivolous lawsuit that judge curial was incredibly careful and painstakingly walked through t and that trademark issue is a non issue for multiple reasons including the fact that you helped mr stevens i'm a little bit muddled myself on what the claim of the trademark issue  is put it as best you could if you were mr maher what is the trademark issues that he was talking about your honor frankly candidly i have difficulty putting it together because it just doesn't make sense well you try the i will give it my best your honor and the only context is in a breach of fiduciary duty then what he has to do is bootstrap a claim that sounds in fraud or a breach of that fiduciary duty and what he's come up with with no it miscible evidence is a claim that they attempted to steal the trademark in the face of having his own lawyer also claiming breach of fiduciary duty in december of two thousand and nine when he signed the release all about that predicate fact they had and it was in wallach's ability to know they had the facts it was incumbent on his lawyer to do the due diligence and come fast forward twenty fifteen he still doesn't have any facts that support ongoing negotiations or an attempt to steal the trademark and oh by the way under article three he doesn't even have standing to assert the claim because he doesn't own it v i owns it and that document that you've asked to take judicial notice of says there's no injury and we've had a little bit of talk about what judge curial did subsequent and the settlement subsequent that wasn't in front of judge curio at the time of this decision but even if it was it again robs wallach of any injury so now he doesn't have standing he doesn't have injury so why are we here we are here in a visit moving the needle as to what he's complaining about because i saw this case differently when i came in as opposed to  hearing about the settlement and i'm not sure that we do anything with the settlement because parties can do whatever they want i mean if they decide they don't want to come to court like in quite scared of an unpleasant experience they can decide that they don't want to pay their lawyers point two million dollars and that he was that was a mystery that was functionally misrepresented to him but i don't remember the talk about the trademark the way that we're hearing it today well  and i think in your your honor is exactly right that he does want part of that three point two million dollars but that's in the rearview mirror there is no fiduciary relationship ship after he's no longer a shareholder and the only way that he could try to bootstrap that was by making this claim at least in part of continuing negotiations in an attempt to steal the trademark and there's no there there and judge fear yelled drill down on that hard core and got to zero admissible evidence and to the contrary the evidence showed that there were no discussions of a sale and by the way i  eleven so you've got eighteen months of time that is now in the rearview mirror and this is a sophisticated party with legal representation who was already making allegations of breach of fiduciary duty in all and sundry matter at the time that he with his counsel's advice elected to settle claims all of this could have been on the plate well let me ask you this d v m i signed a non disclosure agreement with hijacks that remained open through the date the final deal closed in september of twenty eleven so why does this not create at least a triable issue of fact as to whether right and walter were in continuous negotiations with ide x during nap period they were negotiating wallach's access package axel question your honor and there's at least two reasons number one is the  corporate papers get laid around all the time right so they execute an n d a there's no obligation on the part of either i decks or right or walters has to take that off the table it's just sitting there but the record is also crystal clear walters knew or excuse me while i knew about that sale and it was rejected so everybody had all the same bank of information that was available at that time and he participated in that so that n d a comes off the table for at least those two reasons but the fast forward again you no longer at the point that they the parties i decks walters write and d v m i decide to use that and e a you're not going to reinvent the wheel it's sitting there they've already signed off on it you can say they're obligated it's not an indicia of continued negotiations and everybody from confirmed there were no continuing negotiations so all that is is speculative we've got an n d a from an old deal that he knew was dead and it doesn't revive anything by way of fact suggesting that there's continuing negotiation and he doesn't have any admissible evidence to suggest that there was courts don't involve themselves in either the wisdom or the folly of that contract and the court shouldn't do that here well he said i heard appellant saying something about if he gets to come back down there he's going to ask relieved to amend and the horse is already out of the barn so whatever claims that he might conceivably try to bootstrap the statute of limitations has already gone on those and the judge curio obviously wasn't presented with any assessment that summary judgment as well correct that's correct or not at the most not at the pleading stage correct so you've got two or three motions to dismiss and then the summary judgment and this case was pending starting in two thousand and eleven and fast forward to twenty seventeen there's not a statute that's going to save any of the claims so we would urge the court to affirm judge curios very thorough opinion and put an end to this long dark tunnel when you release claims claims are released and the parties are entitled to have faith and confidence that what they got was a release and the only time that a court will interfere with that is in face of fraud and here we have zero no it miscible evidence it didn't happen your honor we would encourage the court please affirm the lower court and put an end to this frivolous litigation and here question we do not appear to have any additional question thank your honor is because we didn't know till about a month or two prior to this motion for summary judgment being piled that it was actually the fraud of did you make a motion to continue under sixty six  of of requiring my client to prove that there was an intent to steal the trademark and sell it to i deaths in the future so while he says we didn't have a trademark claim he did address the issue because he knew the issue was a central key to the case and the key to the case ended up being largely with a summary judgment and i did for the bell and certainly what the motion for attorney's fees was about later this case should be remanded action not a trademark infringement claim unless we're allowed to amend that claim in now that we know it was the fraud right and walters that caused this whole thing kind i gave you a chance to wrap and i are two and a half minutes so far so thank you for your comments this matter will stand submitted