findings of fact in responding to a motion for summary judgment a motion which it denied ignored overwhelming and undisputed of it and that the owners of the businesses involved in this matter made a legitimate and proper business decision to separate one aspect of the business from the roust and that it great expounds they documented that separation and that they took great pains to operate those businesses separately these are all facts that the underlying plan of twin city pipe  trades association has admitted there isn't any aspect of what i have just said that they denied and it was based on these improper findings of fact that the district court held that only which is the standard that must be applied in order to establish alter ego liability and that this was done as a subterfuge fancy word for deceit in order to perpetuate  wrong or to commit a fraud these are if nothing else intensely factual findings and the district court compounded this error through the improper application of collateral any subsequent lawsuit the one that brings us here today where it based it were granted judgment without having a judgment in the first lawsuit the main issues with regard to this matter are whether the on controverted facts the uncontested facts show number one that level of control and control has to do with the operation of the business it does not have to do with the a stablish ment of the business control such that one or quality services existed inform on the district court in order to have reached the decision that it did must have concluded that there were no contested issues of fact that suggest otherwise but before isn't it the collateral stoppel ruling that that is on appeal now well it's two things that are on appeal your honor number one it is that we got here through the application of collateral estoppel but we also made a to decide that number one the district court was wrong in its conclusion that indeed there are issues of fact or that collateral stop was misapplied but more importantly that in fact my client improperly denied her right but it because because your honor it was a final decision and i understand there is a final decision we have jurisdiction over the appeal challenging the order dismissing the claim based on clara law stop if for example my motion my client's motion for summary judgment had been denied we proceeded to trial and i came before this court as the as a non prevailing party in that situation and i could i could argue that the summary judgment and i was in error at that point in time and i don't think this is any different but but let's let's spend our time on the on on the collateral also went to trial you'd be asking for a motion for judgment as a matter of law that's what would be before this denial of a motion for judgment a matter of law ok i think i'm not going to i don't think so i don't think so but i don't think that that s i don't think that that prevents this court from granting judgment or ordering the granting of judgment in my client's favor but i'll let this court sort it out because we're we're also here to seek reversal of the court's judgment against my client and we do so on multiple grounds the first as is the improper application of collateral estoppel and we have to remember how this case got where it got there was a an earlier lawsuit is as the court is undoubtedly aware that resulted in the denial of my client's first my other clients first motion for summary judgment that denial in the order the judge made certain conclusion restatements and ultimately made a decision without granting judgment in favor of the pipe trades in that case that there were no factual issues to try with regard to liability because of the status of the case no judgment was ever entered on on that conclusion and then the clients that i was representing in that matter filed bankruptcy which which mooted it and of course prior to the entry of a judgment it was not appealable so there was no way that we were able to seek any kind of relief or or recovery as a result of that decision you think that that alone is dispositive it seems we look at it a little bit more broadly than just simply whether you were able to appeal it it's dispositive in that there was no judgment and that could form the basis for the application of collateral absolute prerequisite and that in certain cases it can be overlooked but it is one of the four factors that the court looks at in terms of whether to apply collateral estoppel is that a factor that s m s voluntarily chose to go into bankruptcy it was a it was a voluntary decision in that they needed to seek the protection of the bank well they had no option to do that versus proceeding with t litigation in the way i'm not sure that they had a as a practical matter that they had that option no i don't think they did i think they they would have been don know one way or the other whether they sought protection of the bankruptcy court or not and i don't think they should i don't think they should be penalized for seeking their constitutional protection or the bankruptcy law but more importantly i don't think w q ass who was not a part of that situation and was not a party in that case should now be straddled with a decision that was unappealable big house of the fact that one of the parties filed bankruptcy really then you're focusing more on the  well and not only the privity yeah but the the the fact that this this decision this original decision by the judge is unchallengable it because it was not appealed i mean there was no judgment and yes it's a technicality judge kalitan but it's and it's one that you can overlook but in this particular case i think it's critically important because there has to be findings from the from what is now being planned i don't see that it's in the record so i don't know what the district court did and if the court had just done an independent privity analysis if the court had done an independent pretty analysis of law and i could challenge a bad i would thing and and since it is the identical substantive issue that led to the entry of judgment it seems to me i should be able to argue the facts of that matter which i would like to get to because i think they're critical in this case i think there's i think there is ever a minimum at a minimum there is an issue as to the idea of control and fraud what the district court did is on a motion for summary judgment that was made seeking dismissal of the claims it held that that my clients and i at first litigation not only exercised this level of control which was completely belied by the undisputed facts but also committed fraud these people never had an opportunity to testify in response to that number one and  number two the district court made that conclusion without hearing from the witnesses themselves but from basing it on documents it was the most blatant over exercise of of a decision making by the district court on a motion for summary judgment that it then deny so we are here because of motion for summary judgment was denied then that never turns into a judgment whether it was proper for the district court to grant summary judgment which you didn't even do but to grant summary judgment against my client on an intentionally factual issue which implies requires a finding of fraud so my client has been found guilty of fraud because its motion for summary judgment was denied now there's something aspect of fundamental fairness that is violated in that process that's number with when are the owner of the closely held corporation while there are two winners with the winners i should have said maybe then well i'm just trying to understand yes i mean i i mean privity in the sense that they're they have similar interests and where the winners parties to the first case one of them was so why isn't that a sufficient is there is a requirement that there be a judgement and that i understand your points on judgement and inability to peel but the last part of your argument had to do with privity so i'm just addressing the privity question only any court to conduct a fundamental fairness evaluation and that's what press painter says and the fundamental fairness aspect of of applying that the van is the fait accompli by which my client is can is essentially found to be guilty of fraud when there are ample facts in the record that show to the contrary the facts in this case frankly justify granting summary judgment in front of it in favor of my client and we have not had the opportunity to make that argument to this court nor have we had an opportunity to make that argument to a finder of fact we have motion for summary judgment in the first lawsuit and now by the operation of collateral estoppel offensive collateral estoppel were denied again and then there is something terribly wrong about that at which goes back to the requirement of a judgment and a judgment it is a technicality that can be overlooked but it is one of the requirements and when you consider the fundamental fairness aspect of the use of collateral estoppel i think that that the factor of not having a judgment not having the ability to cast the accuracy of that original finding is an absolute death now to the use of collateral in the actually the record in the first case had the issue of whether judge magnussen could issue a summary judgment in favor of my client was raised and the court clarified in a subsequent order to its order on summary judgment that it specifically intended that its decision be a judgment in favor of the plaintiff and wires that in the absence of material facts the court can enter judgment as a matter of law and it's not limited to just from the moving party but that if it is manifestly apparent from the material that the court has either party is intitled to judgment as a matter of law the court can in fact enter that judgment and in addition to that just because the bankruptcy question came up it is certainly any individual or entities constitutional right to file for bankruptcy i do appreciate that it should be worth other clients of counsel filed that bankruptcy notice it was a timing issue the notion here seems to be that there's inability to be able to of collateral stoppel unless you hear testimony that seems to be the argument but that's not all that may not be the greatest argument but what about the concern that there was no opportunity to appeal and no final judgment you know i know our cases say they're not essential but i'm not sure that well what do you say about that i mean there are cases from other circuits supr think we have referenced in our brief that a final judgment is not necessarily essential for the application of collateral right well how do we factor that in though how do we factor in the absence of a fi judgment the absence of an opportunity to appeal we're assuming they're not essential what weight do we give that in the analysis well i think part of that goes to the question your honor about what's new there was full litigation of this claim against one or quality services and the plaintiff below went to the trouble of doing document requests looking for other material opposing sarah when are going through that entire process to determine if there's another stone that needed to be unturned because the the background in the first case included that counsel had asserted that there were things that the court and the plaintiff didn't know one hadn't factored in and so in that second case against one or quality services the plaintiff went to the extent to make sure there was nothing else there but even in addition to that it is incumbent upon the defendant in a motion by the plaintiff for summary judgment to bring forward if there are critical facts that the court needs to consider what those facts are and other than the assertion of we didn't intend to engage in what would be an improper purpose in this reorganization other than saying that there was nothing else or that they have the advice of counsel when they did it there was nothing that they brought forward with specificity to allow the trial court to be able to look at what that was and it's disingenuous today to say that it's those facts that haven't been fully reviewed in explored that should be given weight in overturning the decision below the very same facts existed at the point of summary judgment in the winner quality services case as were present in the first case well i know it's just that their point is they think judge magnussen got it wrong and there was never a chance to take that issue to the eighth circuit whether it was fully developed in the first case or not and i'm trying to get a handle on whether there some ground in between appeal is a prerequisite to glottal stop will and is not required or whether we're just going to say in the eighth circuit it's irrelevant whether you had a right to appeal well your honor i think that there are if we grieve with you i mean are we going to be saying that i appreciate that your honor i think that whether a party lets the time to appeal lapse or a party takes a different you saying that that was a practical alternative the s and s had that they could have put off the bankruptcy filing in order to litigate the issue further absolutely  it's not unfortunately not in this record but the court you know certainly may take notice that in the bankruptcy filing that was made s n s had more than a hundred thousand dollars of assets on hand in the bank account and when it filed bankruptcy it was this was the notion that there was going to be a media financial dire consequence if they didn't file bankruptcy on that day is in our view is just disingenuous because there were assets that were present this came right before the damages hearing it affectively drove a stake through the ability of the court to do that final judgment and perhaps that's clever lawyer perhaps it was just the strategic theory at the time can't know what was in the party's mind but i think that the notion that we had some sons that we could point to that there was in a media need to obtain that bankruptcy stay by filing is just doesn't make sense if again because again the defendants in the first case knew that this case against wenner quality services was now so that's how par pre shared that i had one other inquire now you recall the point of the case one of the points of the case was that the issue in the first case there was whether the parties were alter egos and our court was concerned that there were circularity is the court put it in granting clowder or stop all  when they thought the issue of privity was the equivalent of collateral estoppel do you have any basis to distinguish that case well it's distinguishable your honor i think on a couple of points the that the the determinations that are attempting to be applied in cross tankers come from an arbitrator's decision that comes from a district court in  another part of the country and those opportunities for different perspectives or elements in the proceedings i think are different than what you have in this case which is the same judge in the same district element was much more complicated you had you had holding companies or parent companies and subsidiaries you had a really diverse array of entities here we had in a regional company that ceased to operate both owned by sean and sarah when are down a cli and they attempted to take a piece of work that was being done and had been collectively bargained been covered by contribution obligations or plumbing and heating and moved out to winter quality services and not have it be subject anymore to a collective bargaining agreement and judge magnussen in the  is there a basis here to say that there was privity between the parties in the first case and q s without deciding that their alter egos i think that the  question is answered by the fact that as the minnesota district has certainly applied in the past that you have identical ownership of the entities can in and of itself  characterization being offered by the appellant but the the real conduct issue was an improper attempt to avoid their contribution obligation the obligations of like to hire you characterize it may not be an element of privity corr what about this issue of damages if i if i may are these three components all proper a risk that type damages the three components of the contributions right liquidated damages no no i meant three pieces of three different fund as i recall there are three different funds well there's probably more than three your honor there's but there are there are the the all of the benefit contributions are specified in the collective bargaining agreement and the only thing that is arguably outside the risk is the the working fee contribution that is collected for for the the local on behalf of the employees and there's an association which is fairly small we're talking sense but there's an association fee however working fee is one that i had in mind then there's the industry fund and that is that union well a credit union is a credit union is the label it was originally the vacation fung contribution and the process that has been applied is that those dollars are paid to the service association the service association  united states department of labor has taken the position in the other proceedings that that that is a restore related that what about the working feed working  not because it is it that's a contribution for the union dues however it is specified as requiring those contributions to be paid to the plaintiff service a that the claim in the complaint very plainly says sets out that these are all of these items are are payments that are due pursuant to the collective bargaining agreement the primary amount is the amount for the risk regulated contributions but the working fee in the industry fund would not be a risk or related but they are part of the the contractual obligation that is directed under the collective bargaining agreement to the service association to collect the challenge i think my concern is that the statute you know says in any action you can get damages you can get unpaid contributions and then if you go further into this statute  explains what contributions are required which are the welfare benefit plan the pension benefit plan and if you're saying well we've got some benefits here that are or some contributions or other that are required by the only in my about thirty years that this is the first time this has come up as an issue but the pleadings support that that was part of what was being sought and if below for example that challenge was was being made a viable response to that is that the pleadings can be conformed to match what actually is in dispute in the parties or to how would they have been conformed here if how would you have conformed to the policing well it would be in the form of amended complaint to reflect that under the law under the provisions of the collective bargaining agreement there's a contractual basis to enforce the collection of those contributions i mean a state law you know a kind of is that if well if you mean i think it's a state law a contract claim or some kind of federal labor law i think it would be under the u nder the national labor relations act as a provision of of the contract it also could have been a pendant state claim as well i don't know ok thank you i've gone over the time chief thank you for your  issue was raised below in the complaint only brings a claim based on a risk and that's why we ended up making that argument and if that was untimely because it was raised at the damage phase since that was a damage claim  entity has got to be able to argue the merits of this issue when it has never had the opportunity to do so before this court all i meant when i said we wouldn't normally consider  a summary judgment is that would typically go back to the district court for an entry of some kind of judgment and then you'd be entitled to appeal that saw a minute that you could never be raised and i think and i think this court van considers that issue did novel and has the opportunity to determine whether my client was entitled the summary judgment and that was an improper denial if you're going to consider it at all you have that ability if you're not going to consider it then i think there has to be some review of the original summary judgment decision that started this process which by the a gallon was a denial that didn't end up in a judgment that is to to suggest that by this this unusual series of events i can't now argue the merits of the summary judgment decision on behalf of my client w q s seems to me to violate every standard to due process and fundamental fairness