materials into a sheet that they cut into film material the business of converters extruded films required the use of certain specific type of equipment and that equip it was brought into the building piece by piece on there were silos there were converter machines there were extruder and they were all pieced together and wel together into a large process which was then subsequently altered to the floor of this bill silence that were inside the building there were four silos inside the building and they would store the raw materials in silence they would use the spare compression system to heat the raw materials and then bring them through the six troopers the these large bats of film and wind them into bats and then it would take them to a stretch wrap machine which would actually own enveloped in a plastic type of material so that they could you be used as an end product to be sent to the to where was going to be using this film so this process involves a number of different machines it involves a stretch wrapper which is free standing the testimony of both sides weighed the evidence and made certain findings and one of the findings was was that the the destroying to equipment could not be removed without material damage to the owner not the bag or the testified that all of this equipment was well the together inside the building it was brought in piece by piece and he testified also that it could be that that wells could be broken and removed and the equipment could be taken out of the front door piece by piece without didn't notice that i'm sorry it would be useless that's not necessarily handled right in the record well you know that was the testimony of the of the owner of the bill of mr poole catulus it was not the testimony of the tennis representative but this is that the function of the trial judge to make credibility assessments to determine the  g piece by piece it was welded together inside the building it was put together and could in it in a structure that we use in connection with the tenants business and the test the only testimony regarding the removal was that the  equipment could be could be on taken apart and removed through the front doors and the wall would have to be torn down and rafters would have to be affected because rafters were taken out when the machinery was brought in so your morning some of the evidence it was before judge white it was a question as to the total integrity of the structure of the rafters so you're talking about a sizable amount again that are you saying you the building we have to pay for it just like any other tenet you'll be right back here because they'll be an issue again that that may be but i don't know that that's factually or our our our representative the representative of the tenet who put this into the building placing himself made statements that he could not definitely say what effect it would have on the rafters in this and the structural integrity of the well he himself made those statements well you're all i can say is that is that what he did testified was that this equipment could be the there were it was benefits to the rafters she just simply unscrew the poles when you look at the photographs of this because these are not real fixtures these are trade fixtures were fixtures that were placed in a building for a specific purpose and that will purpose was to be used in connection with this converter's extruded film business the warehouse had another use before converters extruded films moved in so these are trade fixtures and trade fixtures as a metal cooperate tamed their identity as personal to the factors to be considered by the court in connection with the true meaning whether an item is a trade fixture our adaptation annexation intends the adaptation factor is used if the court has to determine whether the property in question other things that that well but i'm talking about the equipment itself it equipment is a trade fixture correct but if in order to get it out other things are going to have to be this is to the back well your honor these are all separate pieces of equipment they can be it's like labels you put them together and you take them apart all of these all of these machines were connected because they were a process but they're all separate machines when you look at the photographs that are the record is will freestanding machines that can be brought into the building or taken out of the building when you use them as a process they have to be connected she just connect them removed from them from this building you take them to another building and you connect them in another building but they can all be they can all be disconnected and reconnected through removing once for up if they go through rafters and type in this some pipe work they won't use your honor eat the rafters were placed in the building in order to support the as i understand the building so they could be the tower to the rafters so that the arm that the equipment itself would be stable is obviously when you've got this kind of a process going on you need to have it connected to the floor and the building in order for for it to be secure when it's not operational that's not necessary and you can take these pieces of equipment you can disconnect them underneath them from the f and remove them from the building in the same manner that they were put in the building and that was what the testimony of the tenants representative was were you going to address the mines you see see versus the common therefore we filed in the state of missouri we did not do a fixture filing because the bank contemplated that it's cleta role would be repeat it remained personalty and therefore it did not consider it necessary to file a fixture f is so permanently attached to the real estate that it would be deemed to be a realty fixture and that is what the real issue is here whether the extruding equipment constitutes a realty fixture and and therefore is a  attached to the to the premises and constituted trade fixtures yes rather the trial court did make that finding i respectfully submit that based on the testimony at trial that finding was erroneous made please support robert wagner on behalf of the funds in this case the bank didn't do a very good job of perfecting or protecting its security interest in two thousand and five they loaned one point one million dollars to th banks typically do to protect themselves as enter into some sort of subordination agreement with the landlord subordinating the landlords fixture the interest of fixtures to that of the bank and that was not done in this case so number on the attachment to the real estate number two the intent of the parties and attaching it to the real estate whether they intended it to become part of the real estate or personal property and the impact its removal would cross the end of the real estate at the trial well that we're saying that it was i don't believe the well let's put it this way i believe the trial court resolve the issue in my client's favor with respect to the evidence we presented we had evidence on each and every one of these these issues spirit i suppose that the wherever they have to be removed but with respect to taking it out in substantial pieces that will have to come down and then the roof would have to will require some repairs spiers the evidence presented before the trial court the the landlord of course was present when the improvements were made to the to the premises he had the advantage of seeing the construction  and i believe what the what the trial court did was weigh the credibility of the witnesses there and made a determination that the landlord was more believable because of its security or knowledge of the landlord didn't have experience with this kind of equipment it was a similar similar to his business so he was able to testify i think with in a clerical fashion about all the equipment was attached well being required to tear it down and his testimony was crap rated by the photographs on the other hand mr munson testified for the bank i don't think were scared into three years after the equipment wasn't strong he himself was chief financial officer he didn't really have any hands of the legs of the silos that were bolted into the into the floor with the substantial nuts and bolts and the the owner testified that removing these pets would lead large holes in the floor again substantially damaging his proper the landlord didn't include any provision for the lease regarding the option to purchase the property and specifically didn't include any provisions in the lease regarding this property the extruding equipment or the tenants improvements or specifically any trade fixtures well assuming that it was poorly played it seems to me that it was broad enough relating to alterations additions fixtures  partitions heating then a leading air conditioning other quitman permanently affixed to the premises so we get down to the same issue that was before the court and weigh the evidence whether it was permanently attached to the to the property that's one of the factors yes but if it's permanently attached to the property that the question is whether it was intended to be called part of the real estate or whether it was intended to be a trade fixture which retains its character is personalty even if it's altered to the floor the the courts of consistently help that and in this case although the equipment was bolted to the floor in order to retain its structural integrity while it was in operation this was still used exclusively in