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Novel's appellate brief filed: asks court of appeals to affirm lower court

By Pamela Jones et al.

Novell has filed its brief in the appeal of SCO v. Novell. It's 87 pages, so I haven't read it yet myself. I'll swing back by after I read it. But the quick look at the index and the closing words indicates Novell is asking the court to affirm the lower court: "For all the above reasons, the district court judgment should be affirmed." That's on page 67 of the filing, which is page 81 of the PDF. Keep that disparity in mind when you look up page numbers in the opening index. For example, the Summary of Argument is page 21 of the filing, but you'll find it on page 35 of the PDF.

In the opening Statement of the Case, Novell puts it in a nutshell:

This appeal concerns SCO's attempt to rewrite the plain language of the Asset Purchase Agreement ("APA"), a contract to which SCO was not a signatory, to support a new litigation-oriented business model that SCO adopted long after the APA was executed.

As for SCO's extrinsic witnesses, Novell points out that under relevant California law, the parol evidence rule, if a contract is clear, it doesn't matter if all the witnesses testify that it meant something different, because any such testimony is inadmissible. Novell also underlines all the reasons the Hon. Dale Kimball found SCO's witness testimony not credible even if it were admissible. You don't want to miss footnotes 1 and 4. We finally find out Chris Stone's side of the story.

Full post as published by Groklaw on April 09, 2009 (boomark / email).