had no fact issues presented to the trial or you're simply there asking the court to address documents and also the application statute the partition the facts in this case what you need to know that really matters is that there were three grouping of real estate my client owned and dividing one third with this brothers they receive that real from their mother out of her estate and so her mother conveyed that it and she conveyed it to them subject to  the language in the right of first refusal from us the state said that my sons shall offer the real estate in the event they decide to sell to my other sons at a value they'd be willing to accept from any other buyer individually as undivided one third trysts if you go back to the trust grounds the first grouping of real estate that real estate as i said my client holds and then by one sixth interest and then there's an undivided one half interest i distributed then to his three sons so essentially all of their interests eventually will merge with the three sons again only undivided one third interest or just not there yet what the trust dictates is once the rules your view how we got here today my client daniel file a partition soon he asked the court to partition those tracks of real estate that he owned in common with his produce the brothers then came together they signed an agreed  been on behalf of daniel filed a motion for summary determination on the issue of the right of first refusal that was denied my motion sought simply to argue to the court that be right first a future was not operative in this case and i i argue has said if i sent you decide to sell you must offer together science but remember my client owns an undivided one sixth interest in this same grouping of real estate outside and free from trustee did not get it from the trust and it is held in trust for a ten year period after my spouse passes then it's to be distributed to my sons equally comma provided however if one of my sons shall decide to sell their share in real estate he must offer it to farming sons at a price you willing to accept from any other right so we don't get to the right first refusal on the trust real estate until it's distributed it requires distribution then the language comes in with respect to the right for state because the language is the same there are arguments then that would apply to all of it if if a court found in this case maybe you triggered it as beneficiary or maybe he triggered it or somehow it wasn't play then we have to look at the partition partition action all he's done is given the court discretion on whether or not sales to happen you have three potential three potential out you have a division in kind you have a division with old and then you also have a sale and in this case you also have an agreed judgment where all three gentlemen came in and said that a partition suit should go forward so even though you've given my client the ability tension you still haven't agreed judgment where they all three have come in and i would argue  complaint came from my mind so what you have to do is determine how you put in place the donor's intent i understand but you must look at the language itself and if there is no if the language is plain then you can't go off and so in this case you have to determine if the decision to sell was made by my client or not and so what we have argued is a partition action is just that he's a built in self of the statutory procedures put in place it is a creature of statute  did find it was a decision you have to follow procedures set forth in the partition and the way that you do is you submit it to a public option designed to get the fair market value and then if if in fact you want to give them says he must take any price he would be willing to take from any other buyer so now that that point is what is the intent of my client seeking the partition action and simply put his only option in a partition is a public option and so in in short circuiting that the courts go right for a public still that's not constantly anywhere in to partition acts there was some discussion about whether in fact my client could be ordered to take even two thirds of the value because there's language but the language actually says if it is two thirds of the value it can be confirmed but only upon hearing that that is the appropriate balance the court actually has an option to go ahead and submit it to another say they don't believe that so the fact is match the last bit and so i think there is that manipulation deck in your vehicle in any public auction that simply puts that's what's in statute in terms of what's required in these cases so i don't think you can they don't and you can properly address that if you look client has somehow to offer real estate that he doesn't have to troll if somehow his interest in what's in the ground in the ground of trust has to be offered to gentleman or to his brothers he would be selling his interest determine the third part of this whether or not how if it is operative how do we accomplish that and i would submit to you it's just following the partition it's very simple we have one sale on the entire piece of property on the estates if you farm family and how the family farms to go from one generation to the next generation how this family farm has to pass from the parents and wilbur down to their three sons was to distribute their farm their farm real estate to their three sons and equal shares subject to certain restrictions one of those restrictions it's not really before the court today is the right of the family certain family members to continue to farm the family farm for a number of years others direction is that should any of those sons wish to sell their real estate they first have to offer it to the other sons or the farm if you adopt the position that danced in this case by daniel then the effects you ation of that plan is to have a public auction on the public auction block paying an auctioneer commission advertising the sale to everybody and then having those people come to a place family members of course give a ten but so can neighbors so can other farmers so can real estate developers so commercial developers and anybody else that might want to bid on that property and anybody else would be allowed by that property despite what the wills of the movie and will for say we know that's danny's position because that was danny's position position when he filed his partition case when he filed his partition case the first thing he said in the documents was i file a partition case so now i don't have to abide by my parents wishes that my family continue to farm this land and i have to abide by the right of first refusal given my brothers appropriately the trial court said no that's not true those those two restrictions are still in play we're going to have to deal with them contra contrary to that and on the opposite side if you adopt  property here they're actually rather have the beneficial interest in those trusts and when one of them expresses an intent to sell then they'll be a quick efficient and economical transfer of that property in a private manner to from the son that wants out to the other sons that don't want out and that the family farm stays in the family no public auction no expanse no risk that it goes to anybody else no anything else and i think if you put  yourselves in the shoes of wilbur and rudy and look down and say oh look there's a public auction of our property that we've had in our family for generations i don't think they would like that i don't think that was their intent in any fashion and so to sit here and try to say that somehow that's the intent i don't think that flies so when we're when we were presented with this when the prophet was presented with this the trial court made some determinations and in order to get where we are today  two basic determinations he decided that and your words decided to sell his property and he decided and made a determination that daniel worms was willing to accept fair market value from any other buyer so that he said i was not they also never said i'm willing to accept fair market value of his mouth but his actions and what he did give a good indication and in fact the judge found that he did in december mark you and i'll explain those are the two real on the first point where we have a decision by gainey to sell any power partition case our position has been and always is the mere filing of that partition case is the decision to sell five any because the logical outcome of a partition case whether there's alternative or not a logical outcome of that is a sale of this real estate what impact the fact that your clients so the argument is though in your past this that just filing that partition case isn't really a zire cell isn't really what i want to do but to me that's the spring loaded gun that's a spring loaded gun argument because if i go and i set up a gun pointed at a door with a trip wire over to the door that when someone goes through a trigger that gun i could do all those things and walk away and say i never meant to shoot anybody i can say i never did shoot anybody but only hurt someone got shot i can't believe this is the same thing this is a case where danny followed partition he says i didn't mean to sell the obvious obvious result that partition cases of sale and including his motion to sell the property he thought a motion to sell the property after the commissioner had decided that a partition in kind wasn't possible a partition in congress of o t wasn't possible now there's only one option one option left which is this property gets sold and after that happens danny files a motion in this court in writing that says i want to have a public sale property and that sounds like and the desire to sell to me that's the gun even beyond that your honor good to judge westgate danny the option after he was ordered to sell to his brothers and the others there's zero possibility that danny's not going to have to sell because he's been ordered to sell to his brothers gave him one hundred days to withdraw its case and evidence the fact that he doesn't want to sell people's property that's all fine he didn't do it he didn't do it he didn't do it and to use my analogy again that would be like going to the victim  sell and that's what the trial court found was there was a cell in this case and nothing danny's done since before since then it's changed that he wants to sell his property as they stand here today saying we want a public auction and if we in fact have to go through this we want a public auction so that finding page you to the next question as to what what is danny willing to accept from any other buyer and judge  t that's fair market value and as was said by the show there's history by that because the first offer made by william and albert was for two thirds of fair market value based on the partition he said when he says when he was really saying is i'm willing to have a public auction to see what happens i want to have a public auction to see what happens but i'm willing to take two thirds because that's a possible outcome a possible outcome of this is there's an auction zero possibility that this land winds up with a commercial developer or another farmer and have every possibility that winds up with one of the brothers should they want and because of that you did not order the public  but he had evidence of what fair market value of this property was called the commissioner's report the commission was charged by the court to go find the fair market value the property in itself so the whole owner speaks in terms of son and when he filed this motion to sell he said i want to sell the whole thing i don't want to sell just the one half that me my brother's own ridgeley or any other smaller portion i want to sell the whole thing sold or just me monthly and that's not what was contemplated by wilbur and so i don't think that distinction holds water also there's an argument made i think that for some reason this trust doesn't operate to have these restrictions for the ten years that it's in trust that the properties in trust for ten years and then after distributed there's these rights of first refusal but that doesn't make any sense who would take the time to put those frictions on their property to keep it in the family but then give a ten year window to say anybody can buy it for any reason or any amount of money but if no one does then i'm going to put restrictions against sale on that test that just doesn't who would sit down in that from the minute these boys get the rights to sell it or get the right to sell the beneficial interest in they can't do it unless they offer it to their brothers for what they'd be willing to sell to in your approach so i don't believe that that simply asking the court follow the procedures step for what we're what we have forgotten the trial court level now we continue to kind of gloss over is this distinction on the trust there is no of first refusal on this one six hundred by the interest so he has every right to trigger the partition partition action doesn't speak in terms of here's thirty on an entire parcel here's thirty acres and here's thirty acres it's a partition on an entire tract of real estate where there's an undivided owner and a partition action is need saying to the court i don't want to own real estate with these people anymore something's not going right system least that are my interests and so what my client has done is asked interest and the problem that you're going to have is with respect to trusts ground he didn't have that power to ask the courts do he even as a beneficiary he didn't have the power to do that because it's subject to the trust provisions put in place and danny doesn't have discretion so to get that language he has to make a decision that he didn't have the power to make with respect trust he's asking on his individual portion yes that affects the entire track so if this the rights of first refusal are not yet play the donor intent you asked me about that and we have to look at that provision in there was a lot of discussion about why i don't think mom and dad would have intended for this to not be farmed by family and i don't think they would have intended for not going public option but the language is very bare bones here and we have to look at the language itself in determining the green towards the language says if you decide to sell at a price you lot of discussion about the intent in all of this but all you've got is the language on the deep we have to have a decision to sell and it also has to be the price he's willing to accept and so in this case the decision w