was entered into on behalf of dk c columbus with menards the court held mr claus was liable as a matter of law under nebraska revised statute twenty one twenty six thirty five because he executed the lease assignment on behalf c columbus before d casey columbus was properly formed the district court reasoned that mr cluff did not and could not have authority from de casey at the time of the execution because d k c columbus did not exist became effective and before de casey incurred any obligation under that lease assignment second the district court erred by refusing to account for the parties intent as manifested in the lease assignment as well as their the course of dealings is the context of columbus and how they became involved in this lawsuit was that dial columbus was also on the brassica limited liability company and they actually were the ones that negotiated a purchase agreement with  c columbus would be the actual ones on the sublease it was exhibit b to the purchase agreement and the february exchange was right before the closing on the purchase agreement and it was executed on behalf of on the assignment that is the only entity that is that is recognized on the document correct council there was a purchase agreement to buy this land from menards to go to a different shopping center area and build a store and in paragraph thirty of that purchase agreement the agreement is as a part of this  and dials a sign here by agreed to assume responsibility for the existing lease between minority and wal mart for those rental space located in the west in columbus nebraska that's their  lease assignment consent and release agreement which is what you're talking about exhibit me and then later when exhibit b was actually executed that liability and you have a new one which at the time that was executed was not in existence in that correct but let but before the effective date of people hiring or i mean paying for the lease payments because minorities continued to occupy that space and paid the lease after this until they moved over to the store in that right that is correct around at that point in time dk c up and running in their papers had been filed directly to the k c columbus became properly filed on october thirtieth two thousand and seven the new minard store did not open until april twenty ninth i believe it was two thousand and eight after that time the k c columbus made two us two installment payments right records not entirely clear as to the amount but i think it's implied from the record that they argue against my case but i think what apple you would say is that there was a factual finding in part three that there was a factual finding there made by the district court that it was maybe half on the one corporation right exactly and well i think you're right that determining the intent of the parties is something that's a factual question that does require a trial that is something that we argue down below and that obviously didn't argue as well as we'd hoped to hear in our briefing  say should be developed in a trial well i think going to what you have to look at and judge bhima have been discussing about as far as the in the intent of the parties what they intended what specific intent questions do you think should be resolved them specifically because you're it sounds like you're now adopting a new argument that you didn't brief so i just want to be clear what you say should be tried well i think another issue that should be tried is whether or not  terry cloth had authority by the time the lease became effective and that was something that was was thoroughly briefed and the fact is that under nebraska law that  an entity can adopt a contract and when they do so it provides original authority as if it was made at the time of the act well it is called either and barnhart versus henderson which is found at twenty four northwest six fifty four it talks about both adoption and ratification the district court made a conclusion that this could not be a ratification under the authority of still mayor versus back because he said that because cases do hold that however i would say this case is very distinguishable from that for the purpose that no the parties intended mr klaus to be liable so the typical ovation situation would be when a promoter signed behalf on a corporation information and everyone noted knew that that was the case because everyone would understand that the party would be personally liable i have another question of law i think it is here for you and counsel for menards the statute that you keep saying he had authority to do this and he had authority to do that the nebraska statute volunteer reads if i'm sure all persons who assume to act as a limited liability unable to find any case where they interpreted that statute without authority from whom exactly i mean i think the district court said without the authority of  that who do you get authority from if if he could form an l l c by him self well from the entity which would be who would he be jointly liable with the entity i mean i  means right and i think you know unfortunately there are not any nebraska supreme court cases on this as belfour there ever will be a matter of law it's up to us or that it was up to the district court to interpret it and tell us what that means if it's going to be applied to make your client liable not that right correct your honor be up to predict what the nebraska supreme court would do based on any indication the supreme court has given and i think it's absolutely key to recognize that when we're talking about this of forty we entered this lease assignment the lease assignment was very clear and all parties intended that the lease of it would not become effect of until after the new menard store was open and this would serve a couple of purposes i think you mentioned the judge being one of them would allow me to continue at their old store during this time and section language or similar language yes your honor so so basically what you have there is a condition preceding that says until this occurs so the new store opens there's no lease assignment there's no binding obligation upon the k c columbus and because of that it sprung to life once the menard store did open which was in april of two thousand and eight which by that time mr klaus did of the statute narrow and understand these are all now repealed and so we're going back to we're we're playing the statute there's no dispute that this statutory scheme was in the fact and applied to this transaction the uniform law has been adopted this is yes your honor and so both sides cite and rely upon twenty one dash twenty six thirty five which judge beam read from the position of the up only your honor that reference also needs to be made as the as the district court did to twenty one dash two six zero eight which talks about what an l l c can and can't do and in that statute it says a limited liability shall not transact business or incur indebtedness except to the extent it's incidental to the formation of that entity until the secretary of state of nebraska has issued a certificate of organization happens when you file the papers exactly your honor and so without hunter your position twenty one twenty six thirty five the authority mentioned there is the authority of the state in nebraska i believe has to be your honor otherwise if you read those inconsistently someone could have authority but not be permitted to act under state law and so they're already from themselves or if there were other members of the beauty that l l c have authority from them is that what you're saying  i think authority there has to mean to consistently interpret the statutory scheme as a whole is the authority as the secretary of state issuing a certificate of organization otherwise properly formed company does the statute apply in that situation six six two six three five no because you have a problem in your example your honor you haven't properly members whoever they may be in that organization but as to the third party here they would be contract ing in your example your honor with a properly formed l l c there would be no basis then for promoter liability court was not clearly wrong in finding that livingston was contracting as an agent for a corporation that was in existence when the contract was executed that you there the my business  counterpart is not applicable to the case of bar and i look at the trial court's opinion factual background and he says the in the agreement executed on feb twelfth despite  reference to exhibit b plus the march vice president twenty days later entering into a kind of a companion agreement we should go out was the part that tells me that there are enough facts here or after a bench trial for the court to make the same finding that was made in part three that is that mr clout was acting in signing the lease agreement to have an existing as well as a non existing l  columbus the entity that was not formed in a timely manner is somehow the argument is that this is exhibit b this lease assignment that's at issue here is somehow meant to be signed by dial columbus the other entity that's the first time i've ever heard that argued in this case if that well if that was the argument your honor then i think you you would have potentially a more analogous situation to par three as judge argument you're on or the judge gerard found the intent that they were looking at in part three which entity was meant to be a signatory on the particular document that was the fact question that they looked at intent in that case here it's undisputed and it's not even really contested that the lease assignment i mean your client's same vice president signed all three of these agreements in tent for a couple of reasons one is it's undisputed the lease assignment lists the casey columbus l l c as the signatory to that document terrycloth signs on c had been fully authorized by the state in nebraska that you obviously took in cash and you say it was a phantom to the extent that you would personally hold off personally liable for the lease payments that would have been the case your honor the signatory to the lease assignment if your well these if these parties i'm not sure your honor but i know under the become responsible and they subsequently do file articles of organization with the state of nebraska and once you get those facts judge gerard said under nebraska haw when the statute is clear and it is clear in this context the part three cases analyzed a different statute under the belt with corporations which judge gerard acknowledge there is a there is an exception a critical difference is in the corporation statute which is twenty one dash two zero two zero and allows for the defense of mistake whereas the l l  statute at the time just says thou shall be joint several liable and once you get that far on these facts you've got you've got the case is a signatory to this document they're has got a different statutory scheme and the part three case and again the intent they were looking at was who is the signatory to the stock you meant that that's not at issue here there's no dispute that  casey columbus l l c is the signatory to the lease assignment that we're talking about here and judge gerard so that was not was a justice of the supreme court the that decided the part three case so he was in a unique l c when he signed that agreement so i r three well the agreement that is being referred to the february twelfth document in the record your honor at appendix one forty seven and it's clear from that document that casey columbus is the signatory to that document dial columbus ambiguous contracts just tells me this one needs a trial respectfully disagree your honor because as judge gerard found the statutes not ambiguous there's other cases the from other jurisdictions that applied the same or or nearly similar statute and they didn't find any ambiguity in the statute and found that you don't look at intent because when the statute is clear the intent is entirely irrelevant  l c gave authority and then the other argument is somehow they did have authority when the security men somehow came to life later on they're not arguing that this is this exact same contract if you're hanging your hat on now and that doesn't seem to be a very fair outcome under the statute in what  was wrong and that the statute is not plain and on the big us they disagree with that analysis it's a question of law your honor but i want to see him out of time if i may have one one minute to conclude the only other point i would make your honor says the purchase agreement with dial columbus and that had an indemnity provision in there that his honor read from the record from the lease assignment is a different indemnity a different set of obligations other than the purchase agreement was always intended that there would be two sets of obligations here from two different l l c is this is not the part of three case yours ok well i have a question for you have you ever argued in the district court or in this court that the lease assignment was executed by clowe farm behalf of dial columbus it has never been argued that stop based on a mistake they received by operational law a personal guarantee that they did not negotiate for ever believe that they had the the reality of the matter is even if whether it's under nebraska's authority of the statute as referencing the point is that terry kluft had that authority before well before the lease assignment became effective for this reason we would pray that this court would reverse and remand for further proceedings consistent with your holding that you have argued that position in the court the examples that are in the record were part of the trial for the district in order for us on appeal all of that evidence was before the district court before somebody judgment quoting the purchase agreement correct your honor and that would include clou declaration where he says he negotiated the lease assignment on behalf of d k c that was also in there is also on the record your honor