good morning sir good morning counsel so i'm going to start richard suburb did not conduct a farming operation with his son casey solberg in two thousand and seventeen in the form of a partnership named solberg farms buff appellants claim that there is a material issue a fact with respect to whether there was a partnership and that the facts before the lower court support the conclusion that the two thousand and seventeen crops were produced by a partnership consisting of richard or rick sometimes referred to in case he so that they have any type that my clients the appellants have any type of lien against two thousand and seventeen crops that belong solely to richard solberg if there were any that is not our argument rather we are arguing that they have a valid claim in two crops grown by solberg farms a partnership consisting of richard in case he sold burke in two thousand and seventeen it's important to remember that my bank had no secured argues that even if it's a partnership sites at least still loses because it never filed at u c c financing a statement against either the daughter or the partnership what's your response to that they they don't have a claim either bammer banks are against the have any perfect and security interest or any claim to crops that were gone grown by the partnership if it's a partnership and sites didn't follow financing statement then don't you have a dispute between two and perfected security interest s we have a dispute as to whether they're even bram or is even a creditor of the partnership i agree with that and our position is that there's not been any facts that would support their creditor the partnership but  can but in any event the trust is on secured so their fight is you know i mean they have an unsecured client they i would i would say that it appears they have an unsecured claim based on the facts that are before the court that have not been fully developed but that is what it appears as of this time but again they get issue isn't i i'm sorry no because that still the issue of whether or not there was a partnership and if there was a partnership who had claims against if it was a partnership zients made a claim has a claim clearly against the partnership based on what and what it said in the documents submitted in opposition to summary judgment there's been nothing submitted by bam or bank to indicate it has a claim against the partnership so if you determine there was a partnership but if the secured claim of not con and if you will the unsecured claim of the state's trust would take priority over any claim of bammer bank unless it can show it someone had a security interest in the partnership past your saying that they would be not just on perfected but not even have a claim against the partnership bammer bank and i would be happy because they there's no evidence that they loaned money to the partner only had a security interest in the individual assets of rickshaw burke and i can't remember quite frankly if they had anything against a shoulder but isn't it inconsistent and that they created partnership just what steps do they take to create a partnership ok well i think we have an hour twenty five they don't have to per say sit down and me say we have a partnership minnesota is very clear that you can form a car a partnership even with out having a meeting of the minds if you are engaged in business together for profit that is a definition of partnership right in the universe are there supportive fact that indicate they did not operate as a partnership with regard to some of the assets for example the crop insurance if they were in if they intended to operate as a partnership in two thousand and seventeen why wasn't the crop insurance put in the partnership name i mean by my bank apparently was able to assert their claim about bat and no one is arguing about it doesn't that doesn't that mitigate the fact that a partnership w where they tried to i don't believe so your honor you can't take individual facts and the fact intensive our partnership analysis of whether a partnership existed or not to determine that because there's this one  fact there is no part time to look at the totality of it and then you weigh those facts yes so are you saying to me that a farm operation can operate as a partnership in some areas when it wants to and not as a partnership in other areas if it chooses not not at all but you can have a situation and we don't know if that exists in this case you can have a situation where they engage in a partnership as to let's say one hundred acres and then the some far off land  separately farm by one of them that can occur and is that in that is that in the record is up the fact well we have in this record there was far off land in shifts in county that was rented by one but was farmed by both so you can have assets contributed by an individual to a partnership even though those assets are titled in an interview jools name unfortunately i think it happened it's rampant people do not keep track of who's property is who's winning come into a partnership kept referring in their depositions to we we we we needed financing we did this together we did that together the evidence is complete feral that they had in their mind a joint operation to the have an agreement on division of profits we don't know that your honor the record hasn't been developed so it is not a credit card is that required under minnesota law no partnership no no you can have because the law is clear that you have a partnership without intending it to be one you have a situation that basically creates a mess because if the parties don't ultimately agree as to the division of the profits and the expenses then it's going to end up in court but you're contradicting yourself because you say that these individuals either they intended or didn't intend a partnership but you're saying they had one don't they have to do something with the with the proceeds of their effort i mean they can't i mean how how do you have a partnership if there isn't some division of those proceeds or there has to be a division of proceeds though it's a record does not here i support anything as i understand that but that's a separate question wasn't it you know isn't it the responsibility of some party to say and they also decided they were going to divide the profits because we can't look at a record we don't have in front of us and there's a failure on the record to establish that is that a requirement to determine that a partnership exists but they did something together with money whether it was bank accounts or tax returns or the splitting of profits something about that would i believe your honor be one factor however if they never got around to it or there was an intervening bankruptcy by one party as there was in the case here things go all right i and we don't know what happened afterwards and they took positions in their bankruptcy that may be entirely inconsistent with what they actually did in the year the crops were guard in two thousand and seventeen they had vehicles that were marked solberg farms they interchange the assets they took fuel from the same fuel tank the sun paid for some repairs for the father did they do that in years before two thousand and seventeen either we don't know about it quite frankly and we haven't had a chance to develop those records that information as well and so there is sufficient evidence in this record to support a conclusion that it under minnesota law which applies here there is a quote a fact question as to whether or not a partnership existed in two thousand and seventeen and i'm afraid judge ridgeway was premature in ruling on the record before him that there was no partnership as a matter of ok i want to make sure i understand your answer to the question about division of profits because it's a critically important question so it's a two fold question what's the minnesota law on that question is distribute is dividing profits a requirement without which you cannot have a partnership secondly if it is is there any evidence in this record that these parties divided profits no your honor there is no requiring minnesota law that there be a division of the profits there's a presumption that the only definition of partnership is as i related to you a business carried on for the purpose of creating profit it just says nothing in the statute about what's an agreement as to how those are divided or how they are to be allocated in the case law doesn't address the question it's only a factor that's to be considered in the ultimate question of whether or not there's a partnership may further questions at this point i would like to reserve my i do have one further question the other the argument is also made by your opponent that even if there was a partnership there is a question about whether the property which produced these proceeds about what you were arguing was partnership property and they claim that it was not or that the record does not establish that it was what is your response to that question unless it's were jointly owned some assets were commingled assets were started to gather all stored on casey's case his property if i understand your question correctly i don't know how it matters as to again what happens out there in the country is people get together work together and contribute their assets to it it happens all the time but you just said earlier that they could have farms on land as partnerships and other i and it's not i don't know that i said hypothetically you could do that but my question is that there can be property that wasn't partnership property there's a statute which talks about the question of what's partnership property your opponent cites that and says there are some requirements to find that it's partnership property and he says that required is to have the name of the partnership without a notation of its being a partnership yes you know you never see something when you see a partnership i used to be in a partnership when we signed documents informal documents when things are delivered and something the firm name may be on it but we never had after i'm not i'm not concerned about what people practices are i'm concerned about what the law requires a lot is not required say a partnership so you believe that the evidence in the record shows that as to the proceeds you are fighting about they are so much about statutory requirement partnership property yes very good thank you any pretty question five case law and the poems brief says the question of a partnership depends upon the consent and the intention of the parties and further on it provides a page eighteen that all that is necessary is that there has to be competent talk about the depositions ever taken in this case we took the depositions of richard sober going we took the deposition of casey solberg in april before this adversarial proceeding was tried by the judge by summary judgment and everybody was a notified a two thousand and four we requested two thousand for examination so we did a deposition our examination of richard we did a separate deposition of casey solberg his son we want to find out about what they did in two thousand and seventeen to verify there's any commingle ing of assets and also they had filed a disclosure statement saying that looking in the future of having a joint venture for two thousand and eighteen so that's a reason we took the depositions in the depositions richard testified as a brief provides that number one is  that farms as a sole proprietorship of him and that is portrayed in his bankruptcy petition pages two and four makes reference as a sole proprietor of his sole proprietorship of his makes reference in his disclosure statement on page fo that he's been farming as a sole proprietor silbert farms and we think the reason he farmed in two thousand and seventeen is so sobered farm says the proprietor is a try to circumvent memory banks lanes because he sold the crops and his name arlene would show so he tried to not indicate there's any support that he did form a partnership correct i'm saying that the record is void of any property of specific and  that would prevent memory bank from obtaining summary judgment on the issue of a farm part but isn't the question of intent just by its nature factual and so he may have done all of these things in the past but maybe they records that exist and they've also ignored the absence of records which are there's no partnership tax returns ever filed in the partnership financial statements balance sheets depreciation get what you're doing is citing all the factors which support your side of the argument there are a number of other factors that are cited by the appellant that tend to go the other way but the threshold question is it not it's whether or not the question of partnership is a question of fact question of law under minnesota law the question of whether or not there's a partnership is a question of fact but if there isn't any genuine issues of fact that support said there's a partnership in the court is cracked and granting memory banks are really so you're admitting that the question of whether or not there is a partnership is a question of facts to support it is a partnership cracked well i drew a whole list of them out of their brief like eleven of them  so you're just saying that's not enough and on what basis do you say about not enough it seems to me there are a lot of things that showed up they worked together or their work together with some joint ownership of equipment they apparently just take one for example they did have a federal identification number for farms didn't know richard testified that he obtained the number for solberg farms but he still has his petition and his testimony says that that was his sole proprietorship and was not a farm partnership petition which schools on page two of his petition that he's doing business is so big farms in minnesota but you you used the term disclosure statement is that is this a chapter eleven case where there's a a sole proprietor and he solar's problem responsible for the management of the business decisions relating to his farming operation and in it it says for the st time he's proposing to operate with this on as a joint venture for two thousand and eighteen he filed in seventeen are so on the seeds and voices says richard solberg and then somebody wrote silbert farms and casey's name is on it the case is testified i've never operated as a farm partnership with my father i've always been my separate operation so in this case cases oberg has become a obligation or more or less a guarantor of richard's entire bill so it's a situation of just because they said we're not going to give the seed to richard alone because of his finances and then they gave the seed to richard and casey and thousand and four exam in the record that was designated can you tell me was it it was and we've cited throughout our briefs the pages of the positions and the and the but where they were they designated i mean was it filed on the docket and was it designated as a documentary or as an exhibit it worse referenced in the the exhibits which included a better banks collateral it's also included was the deposition testimony was part of our brief all tasha's one and that was i believed i could enter number twenty seven thank you you other thing they contend is that there was a lease one time with concurrent and hakan lease dated back to two thousand and twelve and they said all of a sudden in two thousand and twelve the sixteen the separate leases between casey and the landlords in separate lease of between richard casey's separate signature and casey had previously rented land in his own name previously from the same landlords that doesn't demonstrate that there's a partnership isn't there's an absence of any joint profits as the law cited by the appellants provides it says it's have a partnership people are supposed combine their property labor and skill for the purpose of joint profits there wasn't any joint profits they've always had separate profits of always accounted for the profits separately there's never been any joint profits or any a county asked if they put their farm operations a gathering as to certain land produced certain profits for one or the other it's always been separate accounting and they both testified to that in their depositions that we had in this case if you had a chance i'm not aware of any other factors that they've listed contending that there is a farm partnership well here are the ones we drew out of the brief if you wanted me to take the time to  that he was trying to get some financing but my point here is that when i when i show one of these points you have a counter to it but you're arguing the weight of the evidence we're trying to simply determine whether or not they put in enough for there to be a genuine issue of material fact aren't those two different things you're saying my argument is better than their evidence that's not the issue here the issue is whether there was a nuff to say that there was at least an issue of fact that summary judgment should not have been granted what happens in this case is that they're trying to grab at any sort of transaction the curd to contend there's a partnership and the deposition clearly provided that as to this trust land richard tried to material facts that would prohibit memory banks from receiving summary judgment and that as a matter lawyer entitled to the relief requested so at that time the issues were at that time was over the lien issues which now they've agreed that they don't they didn't offer any affidavits of any part of the offered ellen fisher's affidavit ellen st said attash or two or seven documents and also a transcript the st meeting creditors that's all that they tach to that's all the facts that they used to list yeah where did those come from did they come from the deposition or did they come from evidence that was submitted by cam it comes from both assertions made by  and they had ellen farish affidavit says allen just as she was the attorney representing trust thank you so you did but i did not see you saying in your responses brief after they had laid out these things that oh those things weren't admissible or there was no evidence to support them you just countered them by saying whether or not there are other explanations or there are other facts i don't remember you're saying in your brief that any of these things which i was detailing or other things that they detail  evidence or not supported by anything that was placed in the record below did i miss that we did not assert that anything that they're asserting was inadmissible evidence we asserted that their assertions did not demonstrate as a farm partnership and was based upon the fact that we already have debtors testifying there isn't a farm partnership so if you look at it what documents and what evidence are they going to have if there's a trial in this case and there's a farm partnership you don't have the debtors intention to have a farm partnership and everybody's testified no then the other factor is was are parties agreeing contractually agreeing to combine their property for the purpose of joint profits and there is no contract there isn't an oral contract there isn't a verbal contract they both said no we had separate there isn't a document supporting well our partnership contract can be established by conduct and it can be implicit right that's correct and i'm saying is there isn't any evidence demonstrating that that there's any implicit farm partnership there is and everything there is a desire isn't any there just isn't as much as you would like or your the quality of your evidence you think is broader i'm saying there isn't any competent evidence saying that there's a farm partnership there's real quick because i'm running out of time i want to get to real quick as a law of the case what's interesting is a lot of the cases we had a claim filed by rb saying that their landlord and they filed a claim privately under name richard solberg and everybody agreed they interesting how does that inform the question we have to decide which is the interest in a different set of proceeds produced from a different operation or are tract of land well what's interesting is if you add in the crop insurance so as to the other forty two percent of the income they've never demonstrated what crops that income came from where those crops were grown were the landlords were of that crap they never demonstrated that that's the other forty eight percent of our school and forty two percent of the income to the complaint to the adversary proceeding and nobody objected to them having a valid claim because everybody recognizes a valid claim so judge ridgway didn't fact find that r v had a valid claim then judge ridgway found that richard solberg because ensured the crops for the five hundred and eighty two thousand dollars of crop insurance proceeds that those are richer suburbs are not partnership monies and that was subject to member banks elaine so once again read fifty eight percent of the total craps are grown richer children and as the other two percent of those funds for two thousand and seventeen there's no proof that it was a farm partnership there's no proof as to what crops are grown there's no professor what land those crops are derived from and we're saying once again there's no competent that stage of the proceeding but i could see a tactical decision being made based upon the mobs involved of not doing anything about it that doesn't mean my client should be pounded by something that that doesn't affect their particular claim and the linchpin are you referring now to his law the case argument yes yes the lynchpin of better banks position is that you intend to controls everything and you can ignore everything we put in the record and i actually had put together a list of twenty five different things but i probably subdivided him more than your list of ten to thirteen  partnership whether or not the persons intend to form a partnership that specifically in the statute and there is cases that are cited in my be brief where that was found even though they had arbitrary test for determining the existence of a partnership each case must be decided according to its own peculiar facts another case where they said that even an expressed intention not to form a partnership may not defeat its formation cited in page eighteen of my original brief and i don't disagree that that may be the legal standard but in a motion for summary judgment under the federal rules as they now exist aren't you required to submit evidence of there being a partnership and i know that there may be a difference between what evidence is presented and how it's w but you know if you cite two hundred and ten dollars things that indicate there's a partnership but we have affidavits and depositions and other facts submitted by your opposing party doesn't that go to the weight i mean why intent again the statute says whether or not the persons intend to form a partnership did they conduct a business for profit they obviously conducted a business together for profit that is a partnership whether or not the intend to form a partnership i've been we've been arguing against this presumption that because they have just claimed i would say for self centered reasons any purpose in forming a partnership in two thousand and seventeen doesn't undo the facts really kept saying in their record we were trying to get some financing to help we work together but getting financing help do making decisions about two thousand and seventeen expenses they kept referring to when their testimony when asked about changing his and his brother's corporation name in two thousand and eighteen when the brother transferred his cock to see the s skated if we keep things together if we keep things together that cited the reference to it as on page thirteen of my brief that presumes that they were already together the debtor constantly even though he was always subject to the examination by bammers attorney and no cross examination at a two thousand and four examiner richard solberg bankruptcy ok richard let me ask another question what's the point of sending it back i mean if we agree ok it's a question of fact there was enough for a genuine dispute but i have the same we're going to have the same trial a factor i know we will have a chance to develop what was done with the income tax records you're getting a different judge you know well he just asked you court yes there was a need for more discovery the final the seven part question if you had been indicated in the briefing process for the summary judgment motion that there had not been sufficient time question