Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County, Ct. No. BC333900 Mel Red Recana, Judge.
Zelle, Hofmann, Voelbel, Mason & Gette, Douglas J. Rovens, Steven A. Lamb, Stephanie R. Lewis, Marc Shrake; Squire, Sanders & Dempsey, Steven A. Lamb, and Douglas J. Rovens for Plaintiff and Appellant.
O’Melveny & Myers, Robert C. Welsh, Lee K. Fink; Yee & Belilove, Steven R. Yee, Steve R. Belilove, and Frank E. Marchetti for Defendants and Respondents.
SUZUKAWA, J.
Plaintiff Gordon T. Odell owned and operated a business with defendants Timothy D. Ryan and Thomas A. Turner, Jr., initially as a partnership and then as a corporation. The business was called Midiman. In 1998, Odell sued to dissolve the corporation, among other things. The parties settled that lawsuit, and Odell sold back his shares in the corporation. As part of that settlement, Odell released all claims against Ryan, Turner, and the Midiman corporation, except claims related to the Midiman partnership, which owned the building out of which the Midiman business operated.
Odell filed the instant lawsuit in 2005, after the corporation was acquired by a larger company for a significant sum of money. In essence, Odell contends that when Midiman was incorporated, the partnership transferred to the corporation only certain assets and did not transfer three important assets: two European entities that sold Midiman products overseas (Midiman U.K. and Midiman Germany) and the Midiman trademark. Odell alleges that Ryan and Turner committed fraud and breached various duties owed to him when they transferred those partnership assets to the new company.
The trial court granted defendants’ motion for summary judgment on the ground that the release from the prior lawsuit precluded all of Odell’s claims in this lawsuit. After reviewing the express terms of the release, we conclude that Odell agreed to release all claims against defendants, with the exception of any claim relating to the partnership’s interest in the real property in Arcadia. As a result, we do not address Odell’s claim that extrinsic evidence created a disputed issue of fact as to whether all of the assets relating to the Midiman business were transferred from the partnership to the corporation. We affirm the order of the trial court.
BACKGROUND
Midiman manufactured electronic components for the music industry. Odell and Ryan formed the Midiman partnership in 1988. Turner, the partnerhip’s attorney and a member of the patent and trademark bar, joined the partnership in 1991. In 1997, the three partners formed a corporation, Midiman, Inc., and transferred assets of the partnership to the corporation. All of the shares in the corporation were owned by the three partners, in proportion to their percentage interests in the partnership—Odell owned 40.5 percent, Ryan owned 49.5 percent, and Turner owned 10 percent. The corporation thereafter ran the Midiman business. The partnership continued to own the building, located in Arcadia, out of which the business operated. After the corporation was established, the partnership showed no income from the operation of Midiman on its income tax returns.
Odell worked for the corporation until sometime in September 1998. He subsequently filed a lawsuit against the corporation, Ryan, and Turner, alleging claims for dissolution of the corporation, breach of fiduciary duty against Ryan and Turner (based upon their status as directors, officers, and majority shareholders of the corporation), and dissolution of the partnership. In response to the claim for dissolution of the corporation, the corporation exercised its right under Corporations Code section 2000 to buy back Odell’s shares. During the course of the nearly two-year litigation, each side submitted appraisals of the corporation to the trial court to determine the fair value of those shares. On July 27, 2000, before the parties learned of the trial court’s determination, they settled the lawsuit. As part of the settlement, Odell sold his shares back to the corporation and entered into a release of all claims against Ryan, Turner, and the corporation, with the following exception: “Notwithstanding any other provision in this Agreement, it is expressly agreed that nothing in this Agreement releases, waives, compromises or discharges any claim, debt, right, liability or cause of action which either Odell, Ryan and/or Turner may have against each other arising out of the conduct of their partnership having as its subject the ownership of the real property commonly known as 45 East St. Joseph Street, Arcadia, situate [sic] in the County of Los Angeles, State of California.”
Sometime in early 2004, the partnership sold the Arcadia property. According to Ryan and Turner, the partnership subsequently was dissolved, although Odell asserts that he received no documentation of the purported dissolution other than a tax return. In August 2004, the corporation entered into a merger agreement with Avid Technology, Inc., in which the shareholders of the corporation agreed to exchange their shares for cash and shares of Avid. Because Odell no longer was a shareholder in the corporation, he received no compensation from the merger. In May 2005, Odell filed the instant lawsuit. Odell asserted seven causes of action—breach of fiduciary duty, fraudulent concealment, constructive fraud, professional negligence, breach of fiduciary duty by an attorney, civil conspiracy, and dissolution of the partnership and an accounting—all of which are premised on Odell’s assertion that the partnership did not transfer to the corporation the European entities and the Midiman trademark.
Defendants stated in their motion for summary judgment that this last cause of action for dissolution of the partnership was dismissed by Odell after defendants filed a motion to quash service on the ground that the partnership had been dissolved. There is no dismissal in the record on appeal, although there is a reference in the case summary to a partial dismissal filed by Odell in January 2006, shortly before a hearing on a motion to quash was taken off calendar.
Defendants moved for summary judgment, on three grounds. First, they argued that Odell could not prove his claims because all assets of the partnership were transferred to the corporation in 1997. Second, they argued that Odell released all claims against them in the prior lawsuit. Third, they argued that all of Odell’s claims were barred by statutes of limitation. The trial court granted the motion on the second ground, finding as a matter of law that Odell “released and discharged defendants from any and all claims [Odell] has or may have except claims relating to the real property known as 45 East St. Joseph Street, Arcadia, California,” and that all of Odell’s claims alleged in this lawsuit were encompassed by the release. The court identified three undisputed facts: (1) “The Midiman partnership was incorporated in 1997”; (2) the partnership reported no gross receipts or sales since 1998; and (3) Odell never personally paid any taxes arising from the operation of the European entities.
See footnote 1, ante.
Odell timely appealed from the resulting judgment.
DISCUSSION
The sole issue here is whether the trial court correctly interpreted the terms of the written release. Its ruling that the language of the release was unambiguous is a question of law that is subject to independent review. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165-1166 (Winet).) The interpretation of the release is governed by the same principles applicable to any other contractual agreement. (Id. at p. 1165.) We must decide whether the language is reasonably susceptible to the interpretation urged by the individual parties. “When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is ‘reasonably susceptible’ to the interpretation urged by the party. If it is not, the case is over. [Citation.]” (Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 847-848.)
Defendants argue that “the only plausible interpretation of the release language . . . is the one provided by the trial court below: ‘plaintiff fully released and discharged defendants from any and all claims plaintiff has or may have except claims relating to the real property known as 45 East St. Joseph Street, Arcadia, California.’” We agree, based on the release language, that defendants’ interpretation is reasonable.
Odell argues, “[t]he descriptive language, ‘having as its subject the ownership of the real property . . . ’ does no more than provide some identification of the partnership, and was not intended to define or restrict the conduct of the partnership or its assets.” He contends that the language in the release is ambiguous, but does not explain why. Instead, he presumes the language is ambiguous and argues that we must evaluate the extrinsic evidence he presented in the trial court. He points to his declaration in opposition to defendants’ summary judgment motion wherein he stated: “I never intended to and did not release any claims, rights, or interest in any of the Midiman partnership’s assets, which included the Midiman trademark, Midiman UK and Midiman Germany, which I continued to hold for the benefit of the Midiman partnership.” He asserts the declaration is sufficient to raise a triable issue of material fact concerning the intent of the parties. We disagree.
Odell’s declaration was inadmissible. Extrinsic evidence is relevant to prove a meaning to which the language of the release is reasonably susceptible. (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37.) His evidence purporting to establish that the release does not apply to other Midiman partnership assets does not prove a meaning that can be gleaned from a fair reading of the express language used by the parties. If the parties understood that the post-release partnership included the operation and assets of the Midiman partnership, the release could have clearly said so. The one-page partnership agreement signed in April 1997 provided that “[t]he name of the partnership has been and shall continue to be MIDIMAN.” If the parties had intended to exclude the Midiman partnership from the scope of the release, they could easily have referred to that partnerhip by name. However, the release allows the pursuit of only those claims “arising out of the conduct of their partnership having as its subject the ownership of the real property commonly known as 45 East St. Joseph Street, Arcadia, situate [sic] in the County of Los Angeles, State of California.” The plain language of the release expressly defines the partnership as one that owns the real property located in Arcadia. It does not suggest the partnership conducts any other type of business or owns any other assets. Parol evidence is not admissible “to flatly contradict the express terms of the agreement.” (Winet, supra, 4 Cal.App.4th at p. 1167.) Odell’s declaration was not competent evidence for an additional reason. He does not claim that he discussed his intent to limit the scope of the release with defendants at the time it was drafted. His later undisclosed intent was irrelevant to interpreting the release. (See Blumenfeld v. R. H. Macy & Co. (1979) 92 Cal.App.3d 38, 46.)
Moreover, Odell’s construction would render all of the words following “having as its subject” meaningless, thus violating the general rule that we must avoid interpreting the release in a manner that would render certain language surplusage. (See Boghos v. Certain Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, explaining the effect of Civ. Code § 1641 [“[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other”].)
In a case strikingly similar to ours, Winet, supra, 4 Cal.App.4th 1159, the parties, Price, an attorney, and Winet, his client, got into a dispute over legal fees. After Price’s firm filed an action to collect its fees, the parties settled the matter and signed a general release. As in our case, the release applied to all claims whether known or unknown, waived all rights under Civil Code section 1542, and carved out an exception allowing the pursuit of any claims relating to a specific partnership. (Id. at pp. 1162-1163.) Nearly 15 years later, some of the limited partners in a partnership not named in the exception sued Winet. He sued Price. (Id. at p. 1164.)
At the time of the settlement, the section provided: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Price moved for summary judgment, arguing that the terms of the release were unambiguous and barred Winet’s claim. The trial court granted summary judgment. Winet argued, as does Odell, that the release did not comport with his subjective intent. The appellate court found that Winet’s belated attempt to offer extrinsic evidence was unavailing.
The court stated: “We note, first, that the parol evidence tendered by Winet is his uncommunicated subjective intent as to the meaning of the words of the contract. Winet does not suggest that he ever communicated to Price or his attorney his intent to retain the right to sue Price in the future. [Fn. omitted.] Further, parol evidence is admissible only to prove a meaning to which the language is ‘reasonably susceptible’ [citation], not to flatly contradict the express terms of the agreement. [Citation.]” (Winet, supra, 4 Cal.4th at p. 1167.)
We conclude the reasoning of Winet applies here. Odell cannot get past the hurdle of explaining how the express language of the release can mean anything other than that he retained only the right to pursue any claim arising out of the partnership’s operation of the property in Arcadia. Consequently, the present lawsuit, which attempts to resurrect the issue of the Midiman partnership’s assets, is barred.
Citing Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 67, Odell contends that disputes concerning the scope of a release always raise an issue of material fact and may not be resolved by way of summary judgment. Although Nakash held the trial court correctly determined that the scope of the settlement agreement raised triable issues of fact, it did not state that summary judgment may never be granted where the meaning of such an agreement is in dispute. Indeed, Odell’s argument is belied by the Winet case we have discussed.
Because Odell’s other extrinsic evidence, involving acts that allegedly took place after the signing of the release, suffers from the same defects set forth above, we need not further address his claims.
DISPOSITION
The trial court order granting summary judgment is affirmed. Defendants are awarded their costs on appeal.
I concur EPSTEIN, P. J., WILLHITE, J.
I respectfully dissent.
The trial court granted defendants’ motion for summary judgment on the ground that the release from the prior lawsuit precluded all of plaintiff Gordon Odell’s claims in this lawsuit. In this appeal from the summary judgment, the controlling issue is whether there is a disputed issue of fact regarding the scope of that release. That determination rests upon whether the evidence is undisputed that the European entities and the Midiman trademark were transferred from the partnership to the corporation at incorporation. I conclude that the evidence regarding the transfer is not undisputed because the scope of the release is ambiguous and Odell presented evidence from which a jury could conclude that the Midiman trademark was not transferred. If the jury so concludes, the release would not bar Odell’s claims to the extent they are based upon the partnership’s ownership of the trademark. Because neither of the other grounds upon which defendants based their summary judgment motion eliminates all of Odell’s claims, I would reverse the judgment.
Although defendants’ moving papers asserted that defendants also sought summary adjudication, they failed to comply with the rules governing summary adjudication motions. The trial court denied the summary adjudication motion on that ground, and defendants did not cross-appeal from that ruling.
A. Scope of the Release
Odell argues that summary judgment was improper in this case because the scope of the release is ambiguous. Defendants argue that it is not. The release states: “Notwithstanding any other provision in this Agreement, it is expressly agreed that nothing in this Agreement releases, waives, compromises or discharges any claim, debt, right, liability or cause of action which either Odell, Ryan and/or Turner may have against each other arising out of the conduct of their partnership having as its subject the ownership of real property commonly known as 45 East St. Joseph Street, Arcadia, situate in the County of Los Angeles, State of California.”
It is reasonable, as defendant’s argue and the trial court found, to construe the operative language -- causes of action the partners may have against each other “arising out of the conduct of their partnership having as its subject the ownership of” the Arcadia property – as describing only claims that themselves relate to the Arcadia property. So construed, the release would bar any other claims Odell might have regarding the conduct of the partnership.
However, it is also reasonable to construe the language as meaning that it is the partnership which “[has] as its subject the ownership” of the Arcadia real property, and that the reserved causes of action are those the partners may have against each other that “aris[e] out of the conduct” of that partnership. Further (as discussed below), the partnership, which has as its subject the Arcadia property, nonetheless may own the Midiman trademark and engage in conduct relating to it.
Arguably, in other words, in describing causes of action that the partners may have against each other arising out of the conduct of their partnership which has as its subject the ownership of the Arcadia property, the release may not mean only causes of action that themselves involve the real property. Indeed, it is at best ambiguous to describe a “debt,” “liability,” or “cause of action” as having “as its subject the ownership” or real property. The release might also preserve causes of action arising out of the conduct of the partnership unrelated to the Arcadia property.
Because the language of the release might reasonably preserve claims related to property owned by the partnership unrelated to the Arcadia property, I turn to the evidence presented on summary judgment.
B. Evidence on Summary Judgment
Odell contends the besides the Arcadia property, the partnership also owned the two European entities and the Midiman trademark. If Odell is correct, any claims related to those assets would not be subject to the release. Therefore, the evidence presented to the trial court must be examined to determine whether there are disputed issues regarding the ownership of those assets.
1. Evidence Regarding the Ownership of the European Entities
It is undisputed that Odell started, on behalf of the partnership, two European entities in 1995 to distribute Midiman products overseas. Odell presented evidence that the entities were set up as “sole trader account[s]” in Odell’s name. He admitted, however, that both entities were set up using partnership funds, that all revenues generated belonged to the partnership, and that all expenses were paid by the partnership. Indeed, Odell admitted in interrogatory responses that although each entity was set up as a sole proprietorship, they were held for the benefit of the partnership, and that the owners of the entities were the partnership and each of the partners.
Odell testified in his deposition in this case that once the corporation was formed, “the sales, revenues, expenses and inventories were transferred” to the corporation, but that “the ownership” of the businesses was not. Yet Odell does not explain what is left to “own” of a business whose sales, revenues, expenses and inventories have been transferred to another entity. Moreover, when Odell sought dissolution of the corporation in the prior lawsuit, he filed a declaration in which he referred to the entities as “two foreign subsidiary Midiman companies” that were part of a company -- the corporation -- that generated $4.2 million in sales. And the appraisals of the corporation that were done to determine the fair value of Odell’s shares expressly included the two European entities as part of the corporation.
In short, the undisputed facts before the trial court establish that the two European entities were part of the corporation. Hence, to the extent Odell’s claims in this lawsuit are based upon Ryan’s or Turner’s conduct with respect to those entities, they are precluded by the release.
2. Evidence Regarding the Ownership of the Trademark
Unlike the evidence regarding the two European entities, the evidence regarding the Midiman trademark does not indisputably establish the corporation’s ownership. Defendants did not present any evidence that expressly documents the transfer of the Midiman trademark from the partnership to the corporation. Rather, they rely upon the “automatic transfer doctrine.” Under that doctrine, absent evidence to the contrary, it is presumed that when a business is transferred from one entity to another, the common law trademark associated with that business also is transferred even if there is no formal assignment of the mark. (See, e.g., 3 Callmann, Unfair Competition, Trademarks & Monopolies (4th ed. 2004), § 20:63, pp. 20-537-20-538, and cases cited therein.)
In support of their summary judgment motion, defendants presented evidence that the entire Midiman business was transferred from the partnership to the corporation upon its formation in 1997. But Odell points to other evidence before the trial court that he contends shows that the trademark was not transferred from the partnership to the corporation: the minutes from the first meeting of the corporation, which describe the consideration paid by each of the partners for their shares in the corporation. Those minutes state, “Consideration is expressed as the percentile amount of the interest of each of the partners of a going business, ‘MIDIMAN,’ a California partnership and the assets thereof, transferred to the corporation in exchange for the common shares issued and having a Fair Value to the corporation as determined by the directors of $246,865.00 and consisting of [¶] Cash $105,185 [¶] Accounts Receivable 289,849 [¶] Inventory 288,913 [¶] Furniture & Equipment 32,555 [¶] Deposits & Misc Assets 2,000.” (Italics added.)
Odell argues that this statement could be interpreted to mean that only the assets listed were transferred to the corporation. He buttresses this interpretation with the undisputed fact that the federal registration of the trademark, which was held by the partnership at the time of the transfer, was never assigned to the corporation. Defendants argue that the statement cannot be interpreted as Odell suggests because the minutes state that the partnership transferred the “going business,” and under federal law the partnership could not retain ownership of the trademark if it no longer owned the “going business.” Defendants are incorrect. There is nothing in federal law that absolutely bars ownership of a trademark by an entity that does not actually use the trademark itself in a going business. Indeed, many companies transfer their trademarks (and the goodwill associated with them) to intellectual property holding companies that do nothing but license the right to use the intellectual property rights they own. (See, e.g., Chestek, Control of Trademarks by the Intellectual Property Holding Company (2001) 41 IDEA 1.) Although the holding companies often are subsidiaries of the licensee, they need not be; an owner-licensor simply must be “related” as defined in the Lanham Act, i.e., it must exercise control over the nature and quality of the goods or services associated with the mark. (See, e.g., Coolley, Related Company: The Required Relationship in Trademark Licensing (1987) 77 Trademark Rep. 299, 306-307, 309.)
The failure to assign the federal registration to the corporation is not dispositive of the issue of ownership of the mark. (See, e.g., Ph. Schneider Brewing Co. v. Century Distilling Co. (10th Cir. 1939) 107 F.2d 699, 703 [where business with registered trademark was sold without a written assignment of the registration, the common law rights in the mark are deemed transferred absent contrary evidence].)
Although defendants presented considerable evidence from which a jury could conclude that the trademark was in fact transferred, that evidence does not require such a conclusion or negate the evidence Odell relies upon to raise a disputed issue regarding the applicability of the automatic transfer doctrine. For example, defendants presented the tax returns of the partnership for every year from 1997 through 2004. Those returns show that the partnership reported no income from the Midiman business. Defendants contend the absence of reported income after 1997 establishes that the partnership transferred all assets of the Midiman business, including the trademark, to the corporation. But as Odell notes, the absence of income does not necessarily establish lack of ownership of the trademark, since a trademark owner may license another to use the trademark, with or without the payment of a royalty, and with or without a written license agreement, even if the owner no longer uses the trademark. (See, e.g., Doeblers’ Pennsylvania Hybrids, Inc. v. Doebler (3d Cir. 2006) 442 F.3d 812, 823; 3 Callmann, Unfair Competition, Trademarks & Monopolies, supra, § 20:54, p. 20-487 [license may be implied by conduct of the parties].) The only requirement is that the owner must maintain adequate control over the nature and quality of the goods sold. (Doeblers’ Pennsylvania Hybrids, Inc. v. Doebler, supra, 442 F.3d at p. 823.)
Defendants also assert that transfer of the trademark is shown by the fact that the appraisals from the prior litigation included the trademark in the valuation of the corporation. The evidence on this issue, however, is not conclusive. None of the appraisers expressly included the trademark in the appraisals. Although there is evidence that the appraisers included “intangible assets” in their valuations of the corporation under some of the methods they used, they did not specify what those assets were. Moreover, even if they had specifically provided a value for the trademark, that fact alone would not be dispositive. As Odell’s appraiser testified, he did not make an independent determination as to ownership of the intangible assets. Thus, the inclusion of a value for the trademark in his appraisal would not resolve the issue of ownership, especially in light of the possibility, as asserted by Odell, that the corporation had a royalty-free license to use the trademark.
Because there is a disputed issue regarding whether the partnership owned the trademark, it cannot be said as a matter of law that the release bars Odell’s claims. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 [“even though it may appear that a trial court took a ‘reasonable’ view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented”].) Therefore, summary judgment was incorrectly granted on that ground.
C. Other Grounds Raised in Defendants’ Summary Judgment Motion
As noted above, defendants raised two additional grounds for summary judgment, and assert on appeal that the judgment may be affirmed on either of those grounds. I have addressed the first ground -- that Odell could not prove his claims because all assets of the partnership were transferred to the corporation in 1997 -- in my discussion of the scope of the release. Because there is a disputed issue regarding the ownership of the trademark, the summary judgment cannot be affirmed on that ground. The summary judgment also cannot be affirmed on the last ground, that the statutes of limitation bar all of Odell’s claims.
At the outset, I note that defendants are not entitled to summary judgment unless each of Odell’s claims is barred by the applicable statutes of limitation. (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 215, p. 626.) Therefore, there is no need to address the evidence regarding the running of the statutes of limitation for each of Odell’s claims if there is a disputed issue regarding the running of the statute of limitation for any one of his claims. I conclude there is a disputed issue with regard to Odell’s fraudulent concealment claim.
I do not mean to suggest that there are no disputed issues regarding the other claims. I express no opinion regarding those other claims.
In that claim, Odell alleges that defendants concealed from Odell the fact that they were transferring to Avid property owned by the partnership, and as a result Odell could not protect his interests. Defendants assert the claim is barred by the three-year statute of limitation under Code of Civil Procedure section 338 because Odell had actual or constructive knowledge that the corporation claimed ownership of those assets more than three years before he filed the complaint in this action. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 [statute of limitation begins to run when the plaintiff suspects or should suspect wrongdoing].) The evidence defendants cite in support of their assertion, however, does not conclusively establish that Odell knew or should have known that the corporation claimed ownership of the trademark.
I limit my discussion to the facts related to ownership of the trademark, as that is the only asset about which there is a dispute regarding ownership.
For example, defendants cite to the partnership’s income tax returns from 1998 through 2001, which do not show any intangible assets owned by the partnership. But those returns would not necessarily put Odell on notice that the corporation claimed ownership of the trademark because the partnership’s 1997 tax return (before the corporation was formed) also did not show any intangible assets.
Similarly, Ryan’s deposition testimony from the prior lawsuit, in which Ryan testified that the partnership had transferred all of its assets to the corporation, also would not necessarily establish that Odell knew or should have known that the corporation claimed ownership of the trademark. At the time Ryan testified, in 1999, the federal registration for the trademark listed the partnership as the owners. Therefore, even if Ryan’s testimony put Odell on notice to investigate (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1111), had he done so he would have discovered that the partnership was the registered owner of the trademark at that time. Although the existence of a registration is not dispositive of the issue of ownership, it certainly is sufficient to raise a disputed issue regarding whether Odell should have known that the corporation claimed ownership more than three years before he filed his complaint.
As the parties note, the federal registration subsequently was cancelled when no affidavit of continued use was filed as required under federal trademark law. There is no evidence in the record that Odell knew of the cancellation more than three years before this lawsuit was filed.
Because defendants failed to conclusively establish that Odell’s fraudulent concealment claim is time barred, they were not entitled to summary judgment on their alternative ground.
D. Conclusion
For the foregoing reasons, I conclude that the scope of the release is ambiguous, and that there are triable issues which preclude summary judgment. Therefore, I respectfully dissent.