state district court five years ago this month the first lawyer that mr holt had removed it to federal court and billings and answered the complaint admitting all of our allegations of a remove but to transfer to bismarck north dakota division which was granted counsel and unless you're going to argue something on the process or procedure we are pretty clear on that factually but i think you use your time better to i am of course aware that a couple weeks ago the trial judge judge erickson joined you is a colleague after the senate approved and he did conduct one of the most professional trials i have ever been and however we are here lonesome dove seeking a reversal and i want to focus on the he issue a line of questioning about the accounting using the verb forced out of whole during the discovery and involving about fifty four leases that  lonesome dove from the original joint venture that because decker's connections to oil and gas money investors and denver even got off the ground monies and said that ultimately invades the province of this court because whether or not there's a duty to provide an equitable excuse me to housing is an  remedy one that i will ultimately decide and i don't think that's before the jury i don't think we want to divert this trial in that direction consul all accepted that and went forth abandoning that line of questioning on behalf of lonesome dove and the jury was not where  number one as to whether or not the joint venture that they found had ever been dissolved terminated or ended secondly the jury was never worried as to whether under north dakota law if it did to get dissolved the towns of the question was there a joint venture that they answered yes  seemed to be in the present i think they found a joint venture existed as of the date of their verdict eight april of sixteen but they were never then asked in addition to whether or not it had been terminated and never show when they were never asked was a instructions offered but we withdrew them and didn't pursue that for there when the judge said what i read because to be blunt we felt that was the right ruling it probably was an issue in equity under north dakota law for an accounting and to make all of those determinations so no no one on either side urge those questions be asked book the joint venture was not wound up then why would you be in to have their own accounting i think it was clear from the tenor and text of the answer to the question was it breached and holds position and that it was over that it probably was and then as the judge had reserved equity would do the accounting well but if it war wound up i thought the jury found no breach of who she duty the only hole but they didn't find anything on accounting because the judge said he would do the accounting it was a cool mingled account in a single account in a bank in w that over one hundred million dollars was run through over a period of eight years which was the reason he defined was the duty defined doing clued in accounting know the question was not the question but the definition of a duty in the instructions the instruction never touched on the fact that if it is wound up there must be a full and final accounting under north dakota of law that traces all of this that's what the judge reserved to himself in equity and that's what we urge is error that he then refused and the language that he used when refusing to convene an equity as he had reserved to him self was the court agrees that the joint venture was not breach but fully performed and finds that further discovery would provide lonesome dove with no useful information not already presented to the court the motion for equitable relief was the night but that was step one what needed to be done was an examination of eight years of a collatz that over one hundred million went through the single bank account and we'll listen and try to separate out  where all of these leases came from and what money because before we got stopped we had shown fifty four leases that had not been paid any money to lonesome dove had in fact partially been purchased with money that lonesome dove had left with everybody else in the joint venture between the fall of zero four and the spring  the answer to that is we do know that those fifty four leases were purchased with moneys in the joint venture a colony that we're containing a lonesome dove holt and the money man from denver's money we do know that what we don't know is what they had made when they finally bundled all of those leases and sold them in a couple other separate transactions after a whole claimed lonesome dove was no longer part of it and by the way there was no evidence that dirt ever been any formal term a nation ever notice lonesome dove claimed never meant that  said the play was over back in old five hardly part of those traced fifty four leases were in the linn sale that was ninety eight million dollars  in chamblee leases just for example so i think that the language of the court in denying equity that it said it would exercise and sort out these matters of accounting that we didn't want before the jury was while it wasn't part of the court's logic was that if you succeeded in a legal claim you would have an adequate remedy at law and there be no need to address matters of equity known we didn't understand his ruling to be then at all your honor because it was clear that the evidence was stopped that was going directly to that issue and then we never did asked the jury nor did they make a determination that their hand than any kind of hounding because the judge had reserved that to himself after you know the issue was is are even still here in enjoyment was the jury determined that there was a joint venture and that it had not been breached that the the key here was you had a legal claim for a joint venture breach and had you proven that you would have had damages and in that event all of the evidence that was consumed and the question of whether there was a joint venture in existence and number three was it breached did not address the issues of if there was a joint venture which was hotly disputed and if it was not breach which we disputed there was already in that lawsuit claims for equitable accounting and distribution and we had that claim in the draft of the plaintiff's contentions for the final prepare trial order that we had asked for this equitable relief and that we wish to that would be determined a the trial that was the purpose of our questioning of the hold on cross examination when the judge sustain the objection said no this is an equity and i'll take it up myself when a jury verdict comes  obviously what he was saying if there is found a joint venture then i will convene in equity and we will sort all of this out which didn't occur and that's what we as reversed and sent back to north dakota to convene an equity and make this determination to include where were the proceeds of those fifty four leases that were retained that were purchased from the original joint venture fund that had blown some monies in them jury instruction that i was thinking of earlier about fiduciary duty as i read it here number thirteen said that one duty was to account to the joint venture including accounting for the appropriation of venture opportunity i didn't read the whole definition but question why didn't the jury's verdict of no breach of duty mean that holt had satisfied any duty to account to the joint venture because the exhibit from march twenty fourth two thousand and five your honor clearly limits that to one sale fidelity and it does not in fact mean that the joint venture is over that doesn't even mention the other fifty four leases that should have been in play what document are you referring to there it is appendix two one zero four i doesn't that mean the jury agreed with the hold on that point well i think they probably did agree with him that fidelity had been paid out but they didn't get to have us fully explore those other fifty four leases we were stopped on objection and the judge says that's a matter of equity and i will decide i think that it is a real stretch to argue that that document they are appendix to one hundred four in any way would satisfy the jury that there was a full and final accounting because clearly there was not that was one accounting there were no other accountings regarding the fifty four leases because we didn't get to put that evidence on with our cross examination we were probably another day or two of examination of him with the records that we had some of them quite scant but it was clear they did not hear about where those other leases went how much the sale was and how much the royalty  and the over writing interest retained earned there were earnings the ns i think they still exist but by not ordering levy in convening equity like the court said he would those questions are unresolved the jury never heard them and they would have had to hear that before they decided that the no breach meant that it had been fully wound up and accounted for mr edward you're within your chief judge members of the court counsel first of all i couldn't more strongly disagree with the opposing counsel on the issue of what the judge did in the trial court if you go to appendix at fourteen zero nine we have the exchange and that's where there was discussion about exhibit sixty which was admitted and my objection was that plaintiff's counsel said this accounting was forced out of you and i object to the term forced out because it had simply been produced in discovery and we see the judge at the bottom of the pen explore two nine saying i think when you say forced it into jack's an impropriety into and that ultimately invades the province of the jury so what the judge was saying is you can continue with the exhibit and in fact if you look at the appendix they continued at length in examining mr holt about that document they simply couldn't say it was forced out of him because it had not in fact been forced out of and what about the call or he says the accounting is a matter to me taken up by the court not the jury and accounting if required would be taken up by the court but in order to have a right to an accounting you'd have to have a joint venture that was breached and as your honor pointed out instruction number thirteen talks about the obligation to account for a joint venture and the testimony on accounting was not just that to which plaintiff's counter point of view but john holt said i told give me a complete accounting red bow decker says i was told the joint venture was over mr williams whose testimony you're given in is in the our panix beginnings page six says the joint venture was over as soon as the lease play was over that's when we concluded the final sale of the fifty thousand acres to fidelity what you had at stake in this case was three different projects if you will one of them with the mc bt lease platy one of them was big ditch and one of them was partial and in order for the pla you should exercise the right of an appellate court and say under the law the summary judgment should have been granted on those two issues but you're right we did because the judge took a safer position and said we'll send it to the jury and have the jury determine the terms of the contract and that's what happened so we had a trial the plaintiff arguing it was a continuing joint venture that continued on in order to encompass the big ditch which of course mr flynn put together under a system plea different theory than john holt had initially and mr flynn mr williams went out look for another land man and couldn't find him under the evidence and then hired john holt to do the man man work and then you have the partial play which came about when john holt two years later hears about a wel hitting so he decides to go try to get money so they can lease property and sink wells and then sell that project completely different than lease play and the jury in this case clearly found that the joint venture it found existed was a limited joint venture it was limited to mc bt and under the evidence presented they could have found three or four different things they could have found because all of the evidence was the money people controll williams they could have found that it was terminated by flynn and williams and therefore it's not john hope because remember the special verdict form says do you find a joint venture including john holt and bre question number two do you find by a preponderance of the excellent question of the three do you find by preponderance of the evidence john holt breached the joint venture and the evidence in the case was that the money people david flynn and jim weigh ins got angry because brett boat anchor hadn't done what he said he would do and they said we're not having anything further to do with them that would be a finding a conclusion by the jury fully within the evidence the jury could have found read both decker breached the joint venture agreement because doctors response was i know what you're back when john holt said i'm going forward with them so the jury could have believed all of that evidence and brought back a verdict that there was a joint venture it wasn't breached by john holt the other thing they could have done is they could have found it was a two person joint venture because remember jim williams says the money people were going to get seventy five percent twenty five percent was going to go to john holt i don't know what his deal was with her but i know bode acker was supposed to do the selling the mapping the geology and john holt said i took my twenty five percent and went to breadboard akron said i'll give you half of that if you will do these things so the jury could have found and the evidence it was a two person joint venture that had not been reach by john hope my point is that there were no exceptions to the instructions there were no object exceptions taken because an instruction wasn't given the case was tried over nine days with thirteen witnesses the jury got two hundred eighty some exhibits every exhibit a decided to this court and every exhibit that was cited to the trial judge had been explained to the jury and the same arguments made that were made here this morning to you were made to the jury and the jury rejected them part of the reason for that may have been because when they put their expert on the stand who had over thirty three thousand dollars in work in the case and was an accountant who testified in twenty two other cases i said to him can you testify that there was one dollar that mr broder didn't get from the mc beatty least play that he should have got up and there was an objection planners counsel you can't ask him what evidence he's not putting on and the judge overruled the objection and he said no i said can you testify that he suffered a dollar in damage because six leases were included in big ditch that should have been included in the mc bt he said no i can't say that that's the evidence the jury heard which would fully justify them in saying it was a joint venture it was not breached by john hope and to the point of the accounting when we look at instruction number thirteen and it talks about the duty under the law which is not this long complicated duty to making a full accounting and file dissolution statements and so forth with even with a partnership under forty five twenty of the north dakota statutes there's a much broader duty to account that is more akin to what was in scooted instruction number thirteen which says you account to your partners something beau decker said he knew he was aware of and and as far as he was concerned what he had was ok but it says when you're trying to wind up a partnership your your liability is if you're grossly negligent or if you take some action that is taken with intent and the jury could have found properly so and the evidence that john holt didn't do any of those things in fact when the question comes up on the cross lease why do you include it in big did he says mr flynn told me to neither the jury nor the judge heard any evidence before the plaintiff rested the first time and before they rest of the case that these leases they're complaining about now have value and they were not discouraged in any way from putting that evidence on if they thought they could prove what happened in this case is the jury accepted the argument and the evidence put on by john hold that it was a limited deal one that yes his first counsel had a bit it was a joint venture the money people who run the deal when i'm way i'm still denied from the outset that was a joint venture they said it was a simple lease play and we became involved we amended because we contended this admission that it was a joint venture wasn't a conclusion of law which was inconsistent with the facts because nobody at trial nobody testified that all parties had control the testimony from all the witnesses was the money people control leases you buy the money leases the money controls the leases are sold the money controls when it's over and voters are kept insisting i have a right for the input he concedes at the end of my cross examination they don't have to take any of his input at all which we did lose on that argument  summary judgment and we've asked if this case goes back at this court rule as a matter of on that issue under north dakota law if you don't have joint control you don't have a joint venture it was a question the jury asked what do we do it is element number two instruction twelve what does constitute control and of course we didn't give them much of an answer is you don't accept it please read the instructions and consider the evidence so where are we today we're looking at a jury verdict on a case well tried by playing his counsel  vigorously contested on the side of the table with a jury verdict that says one joint venture but not reached by john holt and that should conclude we know what about the two counts that never went to trial so we have the i just i wouldn't yeah this just in your opinion negligent or negligent misrepresentation as i read your brief here really saying no proof of damages well on the district court didn't rely on that rationale the district court said under north dakota law as i read his order it has to be a misrepresentation that induces a contract or induces some particular act and if i can't remember there are more than that you don't think it's narrower than that under north dakota law that it has to be a misrepresentation that induces a contract i think you must allege under north dakota law facts of misrepresentation the actions that you took in reliance on those misrepresentations and then damages it was that second element that is not contained anywhere in plaintiff's complaint that is they allege a whole lot of misrepresentations they don't allege in the complaint anywhere as they testif trial that if it hadn't been for these misrepresentations i would have come rushing five hours from billings up to the area up there and i would been signing up leases they don't make that claim in their initial disclosures they don't say we have damages because we would have signed up a bunch of leases if we had known it was going on and i think what the judge was holding is that there's no allegation in the complaint that because of the misrepresentations we refrain from taking specific actions and in their briefing papers on the summary judgment i don't find anywhere in this briefing papers they said as they said a trial that had we not had that misrepresentation i would have come up to williston i would have been out there signing up leases so i think those are what was missing from that first in when we took the  misrepresentation and moved for summary judgment and that's what i thought the judge was holding but judge harmless error anyway as we point out in the brief because under north dakota law if there's a port claim in here and the contract claim that verdict form is going to have flynn and williams on it and under the evidence in the case let him weigh ins were driving that lease play completely and it was entirely likely that they would be assessed virtually all the responsibility if there was a tort and volved and that's why plaintiff's coun withdrawing our port claim and want just the jury claim submitted and that hollow quick i'm sorry you mean just the contract claims minute and yet you missed a contract claim was submitted and it's in the hold appendix of page one forty six through one fifty one and one fifty one mr edwards is saying so that we're clear you have in your mind and on the record that we have withdrawn as you suggested the claim on that tort so that it is strictly the contract and that's because if you look back through that the judge is saying if we got if we have a tort claim in here mr edwards we're going to have four people on that and i've been in your shoes i would run it too because flynn i'm waynes both testified by video deposition that they're the ones that have made the decisions and even plaintiffs experts said the money people make the decision so i think to answer your question i think the negligent misrepresentation claim is properly out of there i think it would have been withdrawn anyway at the last minute because otherwise flynn and williams who are the money people and said or we said we're not going forward with them would have been assessed virtually all the fault under north dakota law the unjust enrichment claim i believe is up properly because there was a contract the question was what's the extent of the contract and all the plate of claims that the first council in their admitted all terms of the joint venture council didn't that answer that was filed admitted there was a joint venture but said there was no way am i there was no ongoing obligation it said it was contract you don't have a claim of unjust enrichment and say that we've got a contract if we can't win on that contract then we must have been judged unjust enrichment for everything else we want to have a shot at well can't you have a claim that if there's a contract that ends  certain day and then there's activity after the contract is expired that there could be unjust enrichment in the period i can't find a single case where any appellate court has upheld an unjust enrichment claim where a contract claim goes for i've seen unjust enrichment claims where there is no contract and i would suggest it doesn't make any sense for this reason your honor a contract is an offer acceptance and consideration put it on the basic level so if you do something and there 's a contract in place and you get the negotiated consideration so there's no breach of contract then particular on the facts here you have no legitimate claim for unjust enrichment because then you're asking for something beyond what you already have received consideration for and on these facts on these facts there is no claim in the evidence no fact in evidence except brubaker saying i introduced him to david flint so there is no and that that's true as to the original lease play but i thought his argument was after the joint venture ended assuming it ended after the for the hell of the sale there were there was activity as to future leases that well justify an unjust enrichment that's an argument they've sort of tailed on to late lately here but that they never have acknowledged the fact a joint meant venture may be over and i would submit that the evidence that when and under law and equity prior to the rest of the case shows nothing that would justify allowing an unjust enrichment claim to go forward after that point because even if you want to focus on these leases he talks about now and talked about to the jury before they never put any value on them and fundamentally an elite player at least play you may have leases with no value look at the fact that early on in the lease played in two thousand and four the middle of the year flynn and williams are saying we want to sell the leases so we don't get stuck with them remember these are leases for a five year term and if you don't find somebody who will buy them they're just going to expire they're not like something you have that will be forever useful if there are title problems in them if there are it's simply nobody interested in buying them then you have them and have something as worthless there's reference in the record you do have to an anaconda lease play for instance which is a little bit off topic but that's one put together by bret boat anchor where he claimed john holt went out and bought some leases for him and you remembered baumgardner did some of the early work on it with the fact in the matter is those leases all expired they were leases purchased by boat anchor in the anaconda play but there was no second side of the play so you lose it so we talked about leases out here the plaintiff had fully full opportunity to put on evidence as to what they were worth if they were the anything what the plane of did was argue a continuing lease play forever with an i that was indefinite and was everything east of the nesson epic line and the plaintiff lost that should be the end of the story the obligations they want to impose to terminate a joint venture or a limited partnership make no sense if you think of how they would apply if you have two people who get together and build a house and then split the proceeds now you've got to go out and file these things doesn't make any sense at all the judge did a good job in this case his decisions should be affirmed the ship questions that's all i have  is one of my all time favorite politicians during its run for the presidency and ninety two here's the deal the deal is we need a reversal sending it back to north dakota to conduct equity because when the judge said whether or not there's a duty to provide in the housing is an act would a bull remedy one that i will ultimately decide i don't think that's before the jury how can there be an argument that instruction thirteen then allowed the jury by finding no breach which is different then to provide a full accounting have been decided by the jury and this violates the seminal law in north dakota in the sandvik case which rick says in essence that a partnership continues until there is a complete winding up of business an accounting all we have a notion fidelity in north dakota partnerships and joint ventures treated the same yes exactly and that is the case either stuber or engstrom i can't remember which we cited in the brief but a j is equal to a partnership in north dakota and subject to and it may even have been sound big i'm sorry i forget that but there is no way a jury could have made the decision being urged here when the judge reserved it to himself and did not then do what refusing on the grounds the jury decided it when they couldn't of when he said that duty is per me i believe that what has resulted is deprivation of lonesome dove his property without due process because getting caught in that cross off it is my request that  the case be reversed on the grounds that a limited grounds that we go back to him being an equity court and do what the judge said he would do