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New Court filings!
It certainly appears that both sides have now filed appeals. Like I said TMM FOUND GUILTY but this case is just warming up! TMM may be tied up in litigation for YEARS!
12/28/2016 Notice of Appeal
Notice of Appeal
12/28/2016 Case Appeal Statement
Case Appeal Statement
TMM FOUND GUILTY!!!
You cant excuse away what the court found its on record forever now!
Electronically Filed 11/22/2016 02:45:41 PM
DISTRICT COURT
CLARK COUNTY, NEVADA
CLERK OF THE COURT
DIMENSION, INC., a Nevada Corporation;
DIGITAL FOCUS MEDIA, INC., a dissolved California Corporation,
Counterclaimants,
v.
TMM, INC., a Nevada Corporation, and DIGITAL FOCUS, INC., a California Corporation;
Counterdefendants.
Case No.: A-13-678054-B
Dept. No.: XI
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
This matter having come on for non-jury trial (footnote 1) before the Court on November 16 -18, 2016, F. Christopher Austin, Esq. and Ryan Gile, Esq. of the law firm of WEIDE & MILLER, LTD. appeared on behalf of Counterclaimants DIMENSION, INC. and DIGITAL FOCUS MEDIA, INC., and Joe Laxague, Esq. of the law firm of LAXAGUE LAW, INC. and Arash Shirdel, Esq. of the law firm of PACIFIC PREMIER LAW GROUP appeared on behalf of Counterdefendants TMM, INC. and DIGITAL FOCUS, INC., and the Court having read and considered the pleadings filed by the parties; having reviewed the evidence admitted during the trial; and having heard and carefully considered the testimony of the witnesses called to testify; the Court having considered the stipulations of counsel; the oral and written arguments of counsel; and with the intent of deciding all remaining claims before the Court pursuant to NRCP 52(a) and 58; the Court makes the following findings of fact and conclusions of law:
PROCEDURAL POSTURE
The Counterdefendants moved to voluntarily dismiss its Complaint. The Court granted that motion by order entered on February 22, 2016. Following certain motions related to the counterclaim, the remaining issue for trial related to the claim for declaratory relief in the counterclaim. (footnote 2)
FINDINGS OF FACT
I. The PVS/SGI Code also known as the VDK 2.0 Code (the "Code") was created by Iterated Systems, Inc. ("ISI") who is the predecessor in interest of MediaBin.
2. TMM, Inc. ("TMMI") is a Nevada corporation, and the purported holder of the license to the Code.
3. Digital Focus, Inc. ("DFI") is a California Corporation, who entered into an agreement with ISI, for a license to the Code.
4. Digital Focus Media, Inc. ("DFMI") is a California Corporation, who alleges it obtained the license to the Code from DFI.
5. Dimension is a Nevada corporation, and the purported holder of a license to the Code who is the successor in interest of DFMI.
6. Larry Panik ("Panik") was a shareholder in TMMI, DFI, and DFMI.
7. Panik is currently the president and sole director of Dimension.
8. Panik also at certain times served as an officer of DFI and as a director of DFMI.
9. In early 2000, a group of twenty-nine investors transferred their TMMI stock to Thomas Simpson ("Simpson") to use as collateral for a loan for TMMI. Simpson sold the shares without the prior authorization of those shareholders. A portion of the proceeds from the sale of the shares, $500,000, was needed to pay ISI for the License to the Code.
10. On or about March 2000, DFI entered into a license agreement with ISI for the license to the Code ("License Agreement").
11. The License Agreement was executed by Simpson on behalf of DFI and by Alan Sloan on behalf of ISI.
12. The License was purchased for $500,000, and Simpson put the License in a pre-existing inactive company that Simpson owned called "DFI."
13. Under the terms of the License, ISI was to receive 5% of DFI 's stock in exchange for the License. After execution of the License Agreement it was determined that as a subchapter-S corporation, DFI could only issue stock to individuals and not to a company such as ISI.
14. Simpson formed DFMI as the "vehicle for the License Agreement."
15. On or about September 2000, DFMI and ISI signed the Second Addendum to the License Agreement. The Second Addendum indicated that a merger between DFI and DFMI had occurred. (footnote 3)
16. The investors were issued DFMI stock in exchange for the TMMI stock they had previously transferred to Simpson.
17. Simpson conducted business between DFI, DFMI and TMMI without conducting any shareholder or board meetings.
18. The shareholders, who had transferred shares from DFI to DFMI, were repeatedly assured by Simpson in writing that the License-the only asset held by DFI-had been transferred to DFMI:
• In June 2000, Simpson wrote to shareholders "since DFMI is the owner of this technology, it can pursue the licensing of this capability to various providers around the world." (Exh. E1) (footnote 4)
• On September 11, 2000, Simpson wrote a letter to shareholders "We have spoken to Iterated Systems about the transfer of the source code and they support the move in amendment and state that the original contract allows for this. All the source code is at DFMI." (Exh. E2)(footnote 5)
• On October 26. 2000, Simpson wrote to DFMI shareholders "There is a great deal of work ahead of us to complete the task of making your CODEC the only choice for producers." (Exh. E3) (footnote 6)
• On October 27. 2000, Simpson wrote a letter to shareholders "The code that DFMI has reengineered from the fractal source code is DFMl's and DFMl's only. .. . TMM has no rights implied or otherwise to use or view DFMI's source code." (Exh. E4) (footnote 7)
• On April 18. 2001 , Simpson wrote a letter to Hoyt that an interim board of directors of DFMI would have authority to "nsure the safety of all DFMI assets including but not limited to the Fractal Codec." (Exh. E5) (footnote 8)
19. Simpson also assured the shareholders that the documents needed to transfer the License from DFI to DFMI had been executed:
• In a November 2000 communication with shareholder Hoyt, Simpson said: "Paper work transferring the Codec's contract from DFI to DFMI is available for review in the DFMI and DFI due diligence books. (Exh. E6) (footnote 9)
• On April 25, 2001, Simpson wrote a letter to shareholders, "I contacted Robin Haskins [CEO and Chairman of DFI] . . . and asked him to please send me a letter explaining that the Codec that was purchased in the name of DFI was in fact the property of DFMI. He was happy to do that and I received his letter shortly after that. (footnote 10) I also informed ISI, who had no problems also, and made note of this with an addendum to the contract. (Exh. E6). (footnote 11)
• Haskins confirmed DFMI's ownership of the PVS/SGI Source Code in a letter to Simpson, "I have also informed the DFI shareholders that all Iterated source code will be delivered to DFMI and DFI warrants that it has no claims on said code. This code was paid for and belongs to DFMI and will be held by DFMI." (Exh. E8). (footnote 12)
20. In December 2000, Panik filed a derivative lawsuit against, among others, DFMI.
21. As part of the settlement agreement to the 2000 lawsuit, on June 1 , 2001 , Simpson resigned as officer and director of DFMI.
22. Also as part of the settlement agreement to the 2000 lawsuit, on June 1, 2001, Simpson, Joe Stratter on behalf of DFI and Panik executed a "Letter Agreement" in which they all acknowledge that DFMI may have some rights to the License Agreement, through a merger or assignment.
23. This settlement agreement to the 2000 lawsuit was approximately 10 months after the alleged merger between DFI and DFMI.
24. Simpson, (footnote 13) as the primary corporate representative of the company, (footnote 14) cannot now claim that those activities were unauthorized by his failure to follow proper corporate governance procedures which would detrimentally impact the other shareholders who relied upon his representations and actions.
25. In 2002, DFMI filed suit against, among others, TMMI regarding the ownership of the License Agreement. That agreement ended in a settlement agreement, in which Simpson agreed to turn over to DFMI an executable version of the source code, which could not be modified, in exchange for approximately $150,000 subject to an audit called for under that agreement.
26. DFMI never provided Simpson with $150,000, as a result of the audit which found additional monies were owing from Simpson.
27. Simpson signed both the DFMI and DFI federal tax returns for 2000 and that he used the same tax accountant to prepare both returns.
28. DFI did not list the License as an asset in its 2000 return.
29. DFMI did list the License as an asset in its 2000 return.
30. The schedule for the form 1120 filed by DFMI for the tax year ending 12/31/2000 identified in the section "other current assets" the property "Fractal Codes" a beginning value of $0 and an ending value of $846,500. This is consistent with the acquisition of the license as a result of the execution of the assignment and second addendum executed effective March 28, 2000.
31. From 2002 to 2011, DFI never listed the License as an asset on its tax retums. (footnote 15)
32. Panik entered into a secured promissory note with DFMI in March 2007, to provide a cash infusion for continued operations. As a result of DFMI 's inability to repay the loan, Panik foreclosed on all of DFMI's assets, including the rights to the License Agreement.
33. Panik then transferred the rights to Dimension.
34. Simpson on behalf of DFI assigned the License to DFMI. (footnote 16)
35. Simpson on behalf of DFI represented to various individuals and entities, including the IRS, that it had made such and assignment.
36. DFMI and its shareholders detrimentally relied upon the representation made to them.
37. TMMI had notice of DFMI's and its successor-in-interest Dimension's claims to the License at the time it acquired DFI.
38. Simpson was not a credible witness. The Court relies to the extent possible on the documentary evidence.
39. Any finding of fact set forth herein more appropriately designated as a conclusion of law shall be so designated.
CONCLUSIONS OF LAW
1. DFI assigned the License to DFMI.
2. Dimension is the successor to DFMI 's rights in the License.
3. Dimension is the sole holder of the License to the Code.
4. Simpson listed the right to the "fractal codes" on DFMI's federal tax returns and not on DFI's. This representation is one which is given great weight by the Court especially given the representation made in communications Simpson made to the shareholders.
5. The representations made by Simpson were relied upon by Counterclaimants to their detriment.
6. As a matter of public policy, DFI is prohibited from asserting a position contrary to that which it took on its federal tax returns.
7. TMMI is not a bona fide purchaser because TMMI had actual notice that DFMI, Panik and Dimension claimed rights to the License at the time TMMI acquired DFI in 2012.
8. Counterdefendant DFI is estopped from denying the assignment of the License to DFMI.
9. Because DFI also represented, contemporaneous to the execution of the Assignment and thereafter, that DFI had assigned the License to DFMI and because the Court has found that DFMI relied to its detriment on that representation, DFI is also estopped from now denying it made such an assignment.
10. Any conclusion of law set forth herein more appropriately designated as a finding of fact shall be so designated.
JUDGMENT
THE COURT HEREBY DECLARES that Counterclaimants are the sole and exclusive owners of the License to the PVS/SGI Source Code, also known as the VDK 2.0 Code.
IT IS SO ORDERED.
Dated this 22nd day of November, 2016
Certificate of Service
I hereby certify, that on the date filed, this Order was served on the parties identified on Wiznet's e-service list.
Joe Laxague, Esq.
LAXAGUE LAW, INC.
1 East Liberty, Suite 600
Reno, Nevada 89501
F. Christopher Austin, Esq. (WEIDE & MILLER, LTD.
Footnotes:
(1) At the pretrial conference on October 21, 2016, all parties waived the jury.
(2) This claim is whether Counterclaimants are the holders of an exclusive license to use a certain computer code identified as the PVS/SGI Code also known as the VDK 2.0 Code.
(3) "DFI has assigned the Agreement to DFMI as part of a merger in which DFMI acquired all the assets of DFI." Exh. B2.
(4) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 8-10, Exh. A2.
(5) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 11-13 Exh. A2.
(6) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 14-16 Exh. A2.
(7) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 17-19 Exh. A2.
(8) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 26-28 Exh. A2.
(9) DFI admits Simpson wrote this letter and that DFI was aware of it.. DFI RFA Resp. Nos. 23-25 Exh. A2.
(10) Haskin denied authoring the letter identified by Simpson. Ex. E8.
(11) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 29-31, Exh. A2.
(12) DFI admits Haskins wrote this letter. DFI RFA Resp. No. 4, Exh. A2.
(13) Simpson testified during trial that it did not matter which entity held the code because “we" had control of all the entities.
(14) For most of the history of this litigation, Simpson acted as the corporate representative including verifying the responses to requests for admission on October 25, 2013. See Ex. A l.
(15) Haskins, the CEO of DFI during this period, stated that all the tax returns were coordinated by Simpson.
(16) While a merger was apparently contemplated by the parties at the time of the execution of the assignment and second addendum the corporate formalities for a merger never occurred. Therefore, the Court declines to find that a merger occurred.
"7. TMMI is not a bona fide purchaser because TMMI had actual notice that DFMI, Panik and Dimension claimed rights to the License at the time TMMI acquired DFI in 2012."
I know you lawyers have your own language but to the rest of us that says Software Thief!!!
The courts have convicted TMM of software theft what company would be crazy enough to even listen to them? None!
No I think TMM is counting on old tech coming back so they can release their new pong program. Not as sophisticated as the old Atari program but they plan to release an 8 bit color version should be very exciting and generate many PRs celebrating the HUGE pre-sales of course with comments by all 189 advisors and board members.
Viewing the TMM thread on ihub now requires a SGI workstation, cant believe you dont have one yet.
TMM moved forward? To what? Did TMM make a sale we all missed? Did TMM get a customer, a contract, anything? No, I didnt think so.
I think the judge must have realized at the trial she should have not dismissed any of the claims against TMM. Who knows maybe she will fix her mistake guess we'll have to wait and see. LOL
Yes great reminder of TMM completely blowing $100,000 of investor money on a ridiculous patent challenge when the next day Dimension received a brand new shiny patent replacing EVERY claim the patent office removed. TMM accomplished absolutely NOTHING. Which is what they are good at. LOL
Yes Im sure TMM wishes it had actually spent some of that 13 million dollars on something useful but they didnt they just blew what they didnt divide among themselves.
Read the filings, no customers, no sales, no revenues, NOTHING!!!
More important than the 16 year old version of the stolen software that TMM has is the damage done to the title to the software. TMM created confusion in the marketplace by claiming ownership of the license to the VDK 2 code.
Neither Tom Simpson or TMM ever figured out how to use the VDK 2 they simply had nobody capable of understanding it. Dimension, the actual license owner, had the original PhD's on staff who wrote it in the first place.
Hence TMMs need to use freeware to pretend they have an actual product.
And why would Dimension be desperate they already won the lawsuit. I have no idea if TMM still has any actual copies of the old version but if so they are just sitting around staring at it like a chimp holding an iphone trying to figure out what it is. LOL
The only kind of lab TMM needs is the seeing eye kind! What would they do with the other kind? They have nothing but fluffy PRs. Even their old demos are off the shelf free source codecs.
Not at all but nice to see you are starting to catch up or at least partially.
Just the tip of the iceberg!
Yes its past time that TMM went after Simpson, Haskins, Stratter and others for taking those mega millions of shares for stolen property its TMMs fiduciary duty to take them back or go after the value!!!
Really? It seems you are the one that keeps saying its over or TMM will win yet TMM lost as I predicted and then came more actions for cost and fees as I predicted and you said no and now I have predicted more and apparently you once again say no will you ever be right? Doesnt look like it.
No I dont think any of those edits will be necessary. Keep watching.
Working on TMM 2016 recap, so many items to list. Just a draft so far.
Lawsuit - Got crushed! Could owe millions and be dragged into court for more actions. The fun starts again Jan 13 in Nevada court.
Revenues - Still none but its only been 30 years whats the hurry?
Customers - See Above.
Products - See Above.
Management - Still completely useless but hey now theres more of them to suck out whatever money is raised! Woohoo!
Lawyers - Still owe the first group $450,000 when will they come to collect?
Funders - Owe new loan guys over a half million but nobody seems to know or care what the collateral is for these loans. If TMM cant make payments will they run off with the only TMM asset its PR writing guy?
Will TMM file BK before the end of the year? That is the big question. Must be some reason they hired two BK attorneys besides wanting to get their rear ends kicked in their lost lawsuit. LOL
No TMM will not be exhibiting at CES or NAB or anywhere unless they come up with a convention for vaporware providers. LOL
Maybe there was dancing and not everyone was invited, you never know.
I think they have a lot more important things going on than needing to dance on TMMs grave. Not that the idea doesnt sound appealing.
Im not sure that beating TMM in a lawsuit is worthy of a press release. Its like kicking a dead horse, a really dead horse since youre into horse analogies. Not everybody is like TMM who puts out a press release every time they think they might be on the verge of having an idea although they havent researched whether everybody else already has had that idea but since they have no employees other than the guy who write the PRs thats all they can do, but only after letting a select few know its coming.
LOL somehow I think your "hollow" description hardly applies. You may want to reconsider your opinion a little later. Meantime, you may want to read the judge's decision again.
TMM LOSES COURT CASE EXTENDS 30 YEARS OF FAILURE AND SHAREHOLDER SUFFERING!!!
Electronically Filed 11/22/2016 02:45:41 PM
DISTRICT COURT
CLARK COUNTY, NEVADA
CLERK OF THE COURT
DIMENSION, INC., a Nevada Corporation;
DIGITAL FOCUS MEDIA, INC., a dissolved California Corporation,
Counterclaimants,
v.
TMM, INC., a Nevada Corporation, and DIGITAL FOCUS, INC., a California Corporation;
Counterdefendants.
Case No.: A-13-678054-B
Dept. No.: XI
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
This matter having come on for non-jury trial (footnote 1) before the Court on November 16 -18, 2016, F. Christopher Austin, Esq. and Ryan Gile, Esq. of the law firm of WEIDE & MILLER, LTD. appeared on behalf of Counterclaimants DIMENSION, INC. and DIGITAL FOCUS MEDIA, INC., and Joe Laxague, Esq. of the law firm of LAXAGUE LAW, INC. and Arash Shirdel, Esq. of the law firm of PACIFIC PREMIER LAW GROUP appeared on behalf of Counterdefendants TMM, INC. and DIGITAL FOCUS, INC., and the Court having read and considered the pleadings filed by the parties; having reviewed the evidence admitted during the trial; and having heard and carefully considered the testimony of the witnesses called to testify; the Court having considered the stipulations of counsel; the oral and written arguments of counsel; and with the intent of deciding all remaining claims before the Court pursuant to NRCP 52(a) and 58; the Court makes the following findings of fact and conclusions of law:
PROCEDURAL POSTURE
The Counterdefendants moved to voluntarily dismiss its Complaint. The Court granted that motion by order entered on February 22, 2016. Following certain motions related to the counterclaim, the remaining issue for trial related to the claim for declaratory relief in the counterclaim. (footnote 2)
FINDINGS OF FACT
I. The PVS/SGI Code also known as the VDK 2.0 Code (the "Code") was created by Iterated Systems, Inc. ("ISI") who is the predecessor in interest of MediaBin.
2. TMM, Inc. ("TMMI") is a Nevada corporation, and the purported holder of the license to the Code.
3. Digital Focus, Inc. ("DFI") is a California Corporation, who entered into an agreement with ISI, for a license to the Code.
4. Digital Focus Media, Inc. ("DFMI") is a California Corporation, who alleges it obtained the license to the Code from DFI.
5. Dimension is a Nevada corporation, and the purported holder of a license to the Code who is the successor in interest of DFMI.
6. Larry Panik ("Panik") was a shareholder in TMMI, DFI, and DFMI.
7. Panik is currently the president and sole director of Dimension.
8. Panik also at certain times served as an officer of DFI and as a director of DFMI.
9. In early 2000, a group of twenty-nine investors transferred their TMMI stock to Thomas Simpson ("Simpson") to use as collateral for a loan for TMMI. Simpson sold the shares without the prior authorization of those shareholders. A portion of the proceeds from the sale of the shares, $500,000, was needed to pay ISI for the License to the Code.
10. On or about March 2000, DFI entered into a license agreement with ISI for the license to the Code ("License Agreement").
11. The License Agreement was executed by Simpson on behalf of DFI and by Alan Sloan on behalf of ISI.
12. The License was purchased for $500,000, and Simpson put the License in a pre-existing inactive company that Simpson owned called "DFI."
13. Under the terms of the License, ISI was to receive 5% of DFI 's stock in exchange for the License. After execution of the License Agreement it was determined that as a subchapter-S corporation, DFI could only issue stock to individuals and not to a company such as ISI.
14. Simpson formed DFMI as the "vehicle for the License Agreement."
15. On or about September 2000, DFMI and ISI signed the Second Addendum to the License Agreement. The Second Addendum indicated that a merger between DFI and DFMI had occurred. (footnote 3)
16. The investors were issued DFMI stock in exchange for the TMMI stock they had previously transferred to Simpson.
17. Simpson conducted business between DFI, DFMI and TMMI without conducting any shareholder or board meetings.
18. The shareholders, who had transferred shares from DFI to DFMI, were repeatedly assured by Simpson in writing that the License-the only asset held by DFI-had been transferred to DFMI:
• In June 2000, Simpson wrote to shareholders "since DFMI is the owner of this technology, it can pursue the licensing of this capability to various providers around the world." (Exh. E1) (footnote 4)
• On September 11, 2000, Simpson wrote a letter to shareholders "We have spoken to Iterated Systems about the transfer of the source code and they support the move in amendment and state that the original contract allows for this. All the source code is at DFMI." (Exh. E2)(footnote 5)
• On October 26. 2000, Simpson wrote to DFMI shareholders "There is a great deal of work ahead of us to complete the task of making your CODEC the only choice for producers." (Exh. E3) (footnote 6)
• On October 27. 2000, Simpson wrote a letter to shareholders "The code that DFMI has reengineered from the fractal source code is DFMl's and DFMl's only. .. . TMM has no rights implied or otherwise to use or view DFMI's source code." (Exh. E4) (footnote 7)
• On April 18. 2001 , Simpson wrote a letter to Hoyt that an interim board of directors of DFMI would have authority to "nsure the safety of all DFMI assets including but not limited to the Fractal Codec." (Exh. E5) (footnote 8)
19. Simpson also assured the shareholders that the documents needed to transfer the License from DFI to DFMI had been executed:
• In a November 2000 communication with shareholder Hoyt, Simpson said: "Paper work transferring the Codec's contract from DFI to DFMI is available for review in the DFMI and DFI due diligence books. (Exh. E6) (footnote 9)
• On April 25, 2001, Simpson wrote a letter to shareholders, "I contacted Robin Haskins [CEO and Chairman of DFI] . . . and asked him to please send me a letter explaining that the Codec that was purchased in the name of DFI was in fact the property of DFMI. He was happy to do that and I received his letter shortly after that. (footnote 10) I also informed ISI, who had no problems also, and made note of this with an addendum to the contract. (Exh. E6). (footnote 11)
• Haskins confirmed DFMI's ownership of the PVS/SGI Source Code in a letter to Simpson, "I have also informed the DFI shareholders that all Iterated source code will be delivered to DFMI and DFI warrants that it has no claims on said code. This code was paid for and belongs to DFMI and will be held by DFMI." (Exh. E8). (footnote 12)
20. In December 2000, Panik filed a derivative lawsuit against, among others, DFMI.
21. As part of the settlement agreement to the 2000 lawsuit, on June 1 , 2001 , Simpson resigned as officer and director of DFMI.
22. Also as part of the settlement agreement to the 2000 lawsuit, on June 1, 2001, Simpson, Joe Stratter on behalf of DFI and Panik executed a "Letter Agreement" in which they all acknowledge that DFMI may have some rights to the License Agreement, through a merger or assignment.
23. This settlement agreement to the 2000 lawsuit was approximately 10 months after the alleged merger between DFI and DFMI.
24. Simpson, (footnote 13) as the primary corporate representative of the company, (footnote 14) cannot now claim that those activities were unauthorized by his failure to follow proper corporate governance procedures which would detrimentally impact the other shareholders who relied upon his representations and actions.
25. In 2002, DFMI filed suit against, among others, TMMI regarding the ownership of the License Agreement. That agreement ended in a settlement agreement, in which Simpson agreed to turn over to DFMI an executable version of the source code, which could not be modified, in exchange for approximately $150,000 subject to an audit called for under that agreement.
26. DFMI never provided Simpson with $150,000, as a result of the audit which found additional monies were owing from Simpson.
27. Simpson signed both the DFMI and DFI federal tax returns for 2000 and that he used the same tax accountant to prepare both returns.
28. DFI did not list the License as an asset in its 2000 return.
29. DFMI did list the License as an asset in its 2000 return.
30. The schedule for the form 1120 filed by DFMI for the tax year ending 12/31/2000 identified in the section "other current assets" the property "Fractal Codes" a beginning value of $0 and an ending value of $846,500. This is consistent with the acquisition of the license as a result of the execution of the assignment and second addendum executed effective March 28, 2000.
31. From 2002 to 2011, DFI never listed the License as an asset on its tax retums. (footnote 15)
32. Panik entered into a secured promissory note with DFMI in March 2007, to provide a cash infusion for continued operations. As a result of DFMI 's inability to repay the loan, Panik foreclosed on all of DFMI's assets, including the rights to the License Agreement.
33. Panik then transferred the rights to Dimension.
34. Simpson on behalf of DFI assigned the License to DFMI. (footnote 16)
35. Simpson on behalf of DFI represented to various individuals and entities, including the IRS, that it had made such and assignment.
36. DFMI and its shareholders detrimentally relied upon the representation made to them.
37. TMMI had notice of DFMI's and its successor-in-interest Dimension's claims to the License at the time it acquired DFI.
38. Simpson was not a credible witness. The Court relies to the extent possible on the documentary evidence.
39. Any finding of fact set forth herein more appropriately designated as a conclusion of law shall be so designated.
CONCLUSIONS OF LAW
1. DFI assigned the License to DFMI.
2. Dimension is the successor to DFMI 's rights in the License.
3. Dimension is the sole holder of the License to the Code.
4. Simpson listed the right to the "fractal codes" on DFMI's federal tax returns and not on DFI's. This representation is one which is given great weight by the Court especially given the representation made in communications Simpson made to the shareholders.
5. The representations made by Simpson were relied upon by Counterclaimants to their detriment.
6. As a matter of public policy, DFI is prohibited from asserting a position contrary to that which it took on its federal tax returns.
7. TMMI is not a bona fide purchaser because TMMI had actual notice that DFMI, Panik and Dimension claimed rights to the License at the time TMMI acquired DFI in 2012.
8. Counterdefendant DFI is estopped from denying the assignment of the License to DFMI.
9. Because DFI also represented, contemporaneous to the execution of the Assignment and thereafter, that DFI had assigned the License to DFMI and because the Court has found that DFMI relied to its detriment on that representation, DFI is also estopped from now denying it made such an assignment.
10. Any conclusion of law set forth herein more appropriately designated as a finding of fact shall be so designated.
JUDGMENT
THE COURT HEREBY DECLARES that Counterclaimants are the sole and exclusive owners of the License to the PVS/SGI Source Code, also known as the VDK 2.0 Code.
IT IS SO ORDERED.
Dated this 22nd day of November, 2016
Certificate of Service
I hereby certify, that on the date filed, this Order was served on the parties identified on Wiznet's e-service list.
Joe Laxague, Esq.
LAXAGUE LAW, INC.
1 East Liberty, Suite 600
Reno, Nevada 89501
F. Christopher Austin, Esq. (WEIDE & MILLER, LTD.
Footnotes:
(1) At the pretrial conference on October 21, 2016, all parties waived the jury.
(2) This claim is whether Counterclaimants are the holders of an exclusive license to use a certain computer code identified as the PVS/SGI Code also known as the VDK 2.0 Code.
(3) "DFI has assigned the Agreement to DFMI as part of a merger in which DFMI acquired all the assets of DFI." Exh. B2.
(4) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 8-10, Exh. A2.
(5) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 11-13 Exh. A2.
(6) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 14-16 Exh. A2.
(7) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 17-19 Exh. A2.
(8) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 26-28 Exh. A2.
(9) DFI admits Simpson wrote this letter and that DFI was aware of it.. DFI RFA Resp. Nos. 23-25 Exh. A2.
(10) Haskin denied authoring the letter identified by Simpson. Ex. E8.
(11) DFI admits Simpson wrote this letter and that DFI was aware of it. DFI RFA Resp. Nos. 29-31, Exh. A2.
(12) DFI admits Haskins wrote this letter. DFI RFA Resp. No. 4, Exh. A2.
(13) Simpson testified during trial that it did not matter which entity held the code because “we" had control of all the entities.
(14) For most of the history of this litigation, Simpson acted as the corporate representative including verifying the responses to requests for admission on October 25, 2013. See Ex. A l.
(15) Haskins, the CEO of DFI during this period, stated that all the tax returns were coordinated by Simpson.
(16) While a merger was apparently contemplated by the parties at the time of the execution of the assignment and second addendum the corporate formalities for a merger never occurred. Therefore, the Court declines to find that a merger occurred.
There is no value in anything TMM is working on because they arent working on anything but fluffy PRs! Its their only product.
And TMMs "visit" to NAB resulted in what? NOTHING as always. Just more BS from the LOL management team.
30 years of ALL ZEROS no revenues, no customers, no contracts, NOTHING!!!
TMM skyrockets to $60 of stock trades today! Really on a roll now although it looks like the ask may drop below 4 cents again.
NAB? No, TMM will not have any exhibits.
CES? No, TMM will not have any exhibits.
Will Cavanaugh or one of the countless advisors be there to check out the newest TVs? Who knows it has nothing to do with TMM. With all the new filings and who knows how many more coming I dont see TMM doing anything next year but sitting in court.
Wow TMM breaks 20 bucks in trades today its really on the move! It took a flurry of action near the end of the day to get over that 20 dollar hump but TMM did it. TMMs president should be so proud this represents very well what he has done with the company.
I think the statement stands as is and says quite clearly that MaxD gets half of everything after lawyer expenses, which matches what is in the MaxD SEC filings. Given that its from a knowledgeable insider I'll take it at face value but everyone should make their own decision.
Comments from Rurouni on that question about how the split goes, seems clear enough:
MaxD compensation in regards 2 EA v Alphabet Inc. Google
“ The Company shall act as the exclusive agent to facilitate and negotiate any opportunities on behalf of EA Technology to Companies, Organizations and other qualified entities.
Upon any closing, EA shall receive 50% of gross dollars and the Company shall receive the other 50% at the time of a completion of any transaction opportunity, including legal settlements after subtracting applicable contingent legal fees.
In the event the Company sublicenses EA to other entities, profits shall be split evenly 50%/50% “
Basically we get settlement n future transaction upon usage of the EA Technology.
This sounds fantastic as another part of MaxD future revenue stream $$$ !
..tick tock tick tock … smiling ^_^
Yes I looked up this new TMM director. Apparently he used to be a big wig at Milk-Made and Cool Cow. OK, he was the only employee but hey thats one more than TMM has. LOL
https://www.corporationwiki.com/New-York/New-York/milk-made-inc/42747686.aspx
Hard to say what he did there. Milkshakes? Milk Duds? Ice Milk?
I think what I am suggesting is that Cavanaugh isnt bright enough to tell the lawyer NO and got talked into blowing more investor money on a wild goose chase that will likely not last long.
Or, as our resident lawyer Urban says, maybe its Dimension filing an appeal regarding the dismissal of their other claims.
Could be either one but Im betting this time its the two TMM BK specialists trying to make a buck before they actually get to do the newest TMM BK.
Urban I guess we will see how long TMMs new lawyers are willing to run a tab under a heavy barrage of legal attacks. Doubt it will be long but who knows.
Do I see more action in this case ahead, yessiree!!!
Somehow I doubt a "higher court" will be any more pleased with TMMs software theft than the lower court was. But hey maybe they will look at it and make some recommendations to prosecutors. That would be karma wouldnt it? LOL
A notice of appeal is not a motion in this case its just another lame attempt by TMM to placate their furious funders who they told they would win and then failed miserably. It doesnt buy them long as now they have to actually come up with a basis for the appeal. Thats a big problem for them as none exists. I would expect the appeal to be thrown out as soon as its reviewed by the higher court.
MORE COURT ACTIONS!!!
Yes this case is just getting warmed up! Sore LOSER TMM files appeal!
12/20/2016 Notice of Appeal
Notice of Appeal
But what will they base the appeal on? Gee your honor we had no idea our key witness was a crook even though we were suing him for theft and forgery right before we made him our key witness. LOL
Heres to another 4 years of court battles while one company moves forward and TMM as always does NOTHING!
I would agree that other than the additional cost that new management of any kind would potentially be a benefit to TMM. Of course I had that theory in 2011 and that hasnt turned out well. BTW the costs for these guys is in the TMM financials, I'll let you look it up.
Now TMM needs to find someone to run it who will try to do more than just make money issuing PRs to benefit insiders.
I am just a TMM shareholder who wants to see TMM develop a sense of ethics. But first they would have to look up the word and have someone explain what it means to them.
Yes I know they have 18 PAID advisors/directors and ZERO employees. Brilliant plan! LOL
I have not lost or won anything. TMM however has lost the lawsuit and lost it badly. Threw their own key witness under the bus and had all their other witnesses blame everything on Simpson. Unfortunately TMM had already tied itself to Simpsons fate now they get to enjoy the rewards of doing that.
Costs? Yes and now apparently they are going after attorney fees too. After all, the judge herself said they could once the trial was over so it should not be such a big surprise.
And why do you keep wondering how that other company is doing? Im sure they are doing just fine you should focus on TMM they are a mess!
Proof? I heard there was 20,000 pages of proof. Witnesses? Yes I heard every witness on BOTH sides testified against TMM, Simpson and what they did.
And yes, Simpson was last a TMM director in the very early 90's. Not sure why you keep asking that one I keep giving you the same answer.
Yarns? Sorry I only deal in facts unlike the really poor job you are doing trying to spin anything in TMMs favor.
New legal actions? Just the tip of the iceberg. You picked a bad time to finally buy TMMI. LOL