one morning if these the court my name is todd anderson i represent all of the defendants appellants in this matter including myself the district court must be reversed because he exceeded his jurisdiction when he purported to empower the court appointed commissioner to be the defendant's agent to force them into a joint venture agreement with a mine operator additionally the district court must be reversed because he exceeded his jurisdiction when he purported to make the plaintiff the defendant's agent for purposes of collecting modifying or selling the royalty of you have been involved in titian action before in a partition action petition yes no your honor what happened here is really quite common in partition actions and i guess what i'm struggling with in this case is doing was replying it seems to me that what you have propose would in effect make any kind of a sale almost worthless because you've got big machines to get in the earth it's really hard little piece here little piece there you go the whole areas that deal with it in order to get the best price if the parties can agree and it's pretty obvious here the parties can agree you really have to get into a sale situation it's extremely common so what i'm what i'm struggling with is how this works in practicality one of things that like to know is there was a sixty day period that the judge provided for allowing anybody to come up with a better offer than had been  made to that point did you or anyone else come forward with a better offer at that point sixty five days later yes we did but not sixty days not sixty days in the sixty days we asked for six months the defense asked for six months to come up with a new buyer someone to buy out the plaintiff or buy out everyone and then the district court arbitrarily granted sixty days to the defendants to come up and sixty five days later fifty five such and such a number of days what was arbitrary about a sixty day period well first of all it should not be on the defendants to market the property that's the job of the commissioner when the court appoints a commissioner with respect  counsel you're you're going off on a different track my question to you is this i want to know whether there was another offer that was produced the court said sixty days bring in your offers sixty days it happens all the time with sales o property trusts each that it's after and also in partition actions so what i'm understanding you say is that nobody did come forward within the sixty days provided i correct that's right yes so you said in sixty five days there was an offer from a group did the court look at that did you move for reconsideration if you do anything to ask the court to consider that offer yes and they did consider the offer and it it stated that it's only debatable which of the two offers is better and that i wasn't convinced that what invest think was making as an actual binding offer but it did consider the offer ok and the court said that because it wasn't a binding offer or with their terms in it that were conditional of the court felt made it less attractive than the other offer in the offer it's investing said we are prepared to to pay four point two million dollars and the plaintiff argued oh that doesn't mean that they're committing themselves they're just saying they're prepared to pay it and that was that was the argument that that's as you well know it was a maternity words matter and i gather you're saying that just picked court concluded that the offer was somehow contingent is that correct characterization i can't speak for the district court but it seemed like the district court i believe it said that it did not was not convinced that that was a binding offer so if you're right i don't think so it was an offer it was not any it was just as binding as prepared an actor i say if i say to you i would give you this building if the moon doesn't rise tonight now i have a pretty good or you know there's seems to be some doubt of your ability to perform for example what i'm trying to get to is i'm i'm struggling to see what the district judge did that was out of the ordinary in a partition action like honestly a month scene and i'm on you to help me what he what he did wrong here ok first the day thing doesn't trouble me at all ok first of all any cell any partition by cell must be for all cash the arizona's statutory scheme for partition used to allow a judge to sell for cash or upon other terms as the court may direct but that language has been taken out at some point it was taken out of the statutory scheme in arizona which leaves us with a cell a cell meaning all cash he know and when you rely on for that case law the wealth of the arizona stuff there is no case law or in there is no statute that says a district court or any court can sell through partition in arizona a property for something for terms other than all cash and when it when i'm asking for it is or arizona case law or an arizona statute that says that that must be for all cash like like i said no but like i say we're it when statutory language when certain language is removed would stand you say there is well actually let me change my answer if i could please i would point to the two thousand and eight owens case which is cited that you are fifty four in owens the arizona supreme court said that any partition action must comply with the step with the statutory scheme and then the statutory scheme there is no authority for a court to sell and sell a property in exchange for promises or some promises and some cash if the court great latitude does it not to fashion  that are outlined in the road map it did not first hold a hearing to determine the share or interest of each of the parties it did not order that the property first be physically divided it did not then a point three zero or more commissioners and your contention is that is required by the statute in all cases in all cases yes unless the defendant or defendants waive their right to have those steps implemented ok and you have any authority for that proposition well the only case where that that we know of where in there is on a property was partition myself by way of summary judgment is the registry be coleman case but in that case the defendant there once his first argument failed he was first arguing that he owns one hundred percent of the property because of an oral contract that he had reportedly had with this mother and once that argument failed his principal argument he did not oppose the sale and for all cash and so that property was and it was one month after the plaintiff made a strategic move when it transferred when all the plaintiff members transferred all of their interest to an l l c so that there would be two owners instead of six that the court saw that was the first move and as a response to plaintiff's strategic move defended john anderson did make twelve property interest transfers with an eye toward preserving value so that plaintiff is not allowed to spoil the value ok now you say you contend that by having all these different sales it would increase the value do you have any evidence that would show that had there been twelve different sales that the value would have been increased over what was the pain in the sale of actually took place if it w but if we look at the recent comparable sales of fractional interests undivided fractional interest very close with the in the sense of the sea ascent isabella sometimes referred to as the missi claims we see that a fifteen percent ownership interest and undivided ownership interest in thirty two acres in that area and mineral rich section thirty two sells for at least five hundred thousand dollars so that would lead us to believe that all sixteen mining claims are worth approximately thirty two million dollars but isabella are right below the coop right group acclaims it's a stone's throw away and it's all on the same mountain they're all right next to the open pit mine known as the core not a mine and they're all right next to the open pit mine known as the garfield mine and i would point out that it really is no reason to partition an arizona mining claim plaintiff cannot point to a single example where an arizona mining claim has ever been partitioned by sale or partitioned in any way because there's no reason for it freefor itself only owns eighty five percent of the marine sea mine it has an eighty five percent stake and it only owns eighty percent of the scent of the sea and sent isabella yet its money in those properties because any owner of a mining claim can mine that planted did not want to divide the property in kind and plaintiff did not want to actually sell the property plaintiff wanted to trade the property for approximately ten percent of its value up front plus a set a business contracts a joint venture agreement plus at the defendants when there's a defendant not waiving the right that are the rights that are and that are there in the arizona statutory scheme when unlike register be coleman the defendants here are searching their rights to have the substance of law in arizona apply to this action to have the procedure followed the steps followed and and so it's not appropriate in this case for the district court to grant a motion for summary judgment when the defendants are saying wait a minute what about arizona substance of law what about the procedures what about having having the the hearings that the law requires and if this matter had been filed in state court a state law judge likely would have simply said well i know you want this deal with freeport makram but yours you've asked for partition i have to look at the arizona statutory scheme because in two thousand and eight the arizona supreme court in the owens case said that any remedy must comply with the statutory scheme and so i've got to follow the procedure we have a procedure here in arizona for partition and i've got to follow the steps and if the defendants  saying yes they want all the steps followed then i have to follow them and hear what plaintive was asking is for the district court to circumvent arizona's statutory scheme which is arizona's subsets of law in arizona so that they can achieve the result that it wanted which was a business deal and not not exactly a sale a cell must be for all cash especially considering the fact that courts in arizona used to have discretion to sell for something other than all cash and there's no they loan longer have that discretion when the arizona state legislature removed that language allowing the court to self for something other than all cash they also removed that court's discretion that's my position and i only have thirty seconds left if i can preserve or thank you will hear from you really thank you good morning my name is gary throughout these proceedings and that at that summary judgment was was properly granted for the plaintiffs in this case you've heard let me just ask you one thing before we get too far into th asked you to be prepared to comment on the role of erie if anything arizona law does speak about a trial which of course did not occur here is that a procedural matter that would be covered by curious since this is a federal court or do we rely upon the arizona supreme court case that seems to prove it as well but didn't discuss the statute  well the this particle or statute that we're talking about twelve twelve eighteen does use the word trial whether it contemplates a trial i'm not completely convinced and so at this point i'm not even convinced that there's a procedure or a substantive right to trial in this situation because if you follow the partition process according to what the andersons claim should have been followed you're to have a fall a lawsuit filed you're going to have commissioners appointed commissioners are going to try to physically divide the property if they can't do that they're going to report to the court the courts then going to order a sale where's the room for a trial if we follow construction of this particularly language however that being said even if you you construe the word trial as a substantive right we still have that eerie considerations that still bring the court to a proper summary judgment in this case as we know under erie a federal court sitting in in diversity jurisdiction will follow substance substantive state law and procedural federal law and trials in this case would be procedural yes yes what do you rely upon that well the the simple fact that that well a couple of things first of all  obviously you may have a you may have a substantive right to a trial but how you go about going through that trial is governed by the rules of procedure and the rules of procedure include rule fifty six now in arizona  for example you may look at the arizona constitution which guarantees a trial in in court cases of article six section seventeen now if you've got a substantive right to trial in every case under arizona law if if you're going to say that that summary judgment is in the applicable to overcome the substantive right to trial then we'd never have a summary judgment motion ever so obviously obviously it's appropriate even under state law that that summary judgment is appropriate in situations where a trial is not necessary because of the summary judgment considerations no material facts in question parties and toddled to summary judgment as a matter of law and of course erie contemplates all of this that eerie test you look at the outcome determination test under eerie you ask yourself this question if we're going to prosecute this case under state law would the result be substantially different and of course we look at this case and the answer is no the result is not going to be substantially different as we've pointed out in our memorandum arizona itself has adopted the federal standard for granting summary judgment so under rule fifty six they follow the federal standard since hundred ninety with the arm school case in arizona and so as a result if you were to prosecute this case in state court the result would have been no different and and basically that satisfies  court followed the procedural track to summary judgment and ended up in the same place as if they would have done so under under so statement and correct either by virtue of the fact that  the federal procedural standard rule fifty six or its equivalent under state law there and i think you have an arizona state supreme court allowed a summary judgment on partition action right despite the languages well there are there are actually two there's there's the case that there's the case that mr anderson cited and then there's the register we called in case and then there's also the owens case in which the court gra summary judgment and and those cases where both the superior court granted summary judgment they were both affirmed by the by the arizona supreme court in in which the summary judgment was affirmed now in those cases essentially the summary judgment involved issues involving ownership ownership interests in the property which is really one of the basic issues that might come up in a partition  action and and and the court had no problem with with affirming summary judgment under those circumstances now in this case the court did grant summary judgment and and contrary to what the appellants have stated it's not a matter of of having veered off this this road map but the statutory procedure does provide an alternate procedure for partition and that procedure is under arizona revised statutes twelve dash twelve eighteen that provides that if it appears obviously after trial but in this case and we believe it's appropriate for summary judgment but if it appears to the court that a fair partition cannot be made without depreciating the value of the property or if for any reason a sale is more beneficial to the parties or any of them then the court has the discretion to go ahead and order a order or a sale and in this particular case i gather there's some pretty bad blood between the parties here among the parties or i don't know if i would characterize it as bad blood but certainly some serious disagreement such sharing dinner there i don't know ok so you've got at least that and the court was of the view that doing it the way that the  plaintiffs talked about doing a bunch of separate sales that make any sense then the court would have the right to structure a sale as well right well the court the court recognized that selling individual parcels really would not be beneficial to all of the parties because when you're talking about a cluster of sixteen mining claims and you're going to sell individual pieces any party could get a much better price because they could they could squeeze you because they have that parcel the the owner of that particularly parcel can do so at the expense of all the others ok so basically your position would be that even though the owner owners the anderson family of an individual undivided interest might be able to squeeze the buyer that in the aggregate parties or any of them and this this language is very broad gives the court very very broad discretion and and at obviously the court the court pursued that i assume that your answers to the pla rs position that there is this hornbook of actions you have to take one two three four five six or you're in violation you're correct absolutely that's exactly correct you this is the section twelve eighteen provides an alternate procedure to this hornbook of of other actions that needed to be followed from from from one to the next and i think the court properly followed the statutory scheme for court properly entered summary judgment based on based on facts that were apparent in the record and the and under the circumstances involving the properties and and at this point unless you have any further questions i'm i'm not going to have one additional question i asked you are opposing counsel about another offer if you will that came in and i believe he indicated that it came and sixty five days after the sixty days you're familiar with the desktop or to your knowledge on the record what was it about  offer that would have made a motion for reconsideration irrelevant well the the the offer first of all wasn't a it wasn't what could be construed as binding offer essentially it was a it was a letter that said we're prepared to purchase obviously it also it also stated that there would be due diligence and so it con contingencies and the court also looked at it and and construed it to not be a binding offer in that if for example the court entertained this and said all k will go ahead and sell so these the the contract that was available to freeport was a was a binding offer it was a it was an offer that was that was submitted in writing and submitted to the court and was an all cash offer no that there was a there is there's there's a cash price which by the way has been paid and this offer has closed deeds and title have been transferred and the offer contains additional consideration which consists of a requirement that the purchaser freeport will conduct exploratory drilling on the property and then based on the results of that exploratory drilling then they then they may have some discretion to to ultimately mine the property and if and when they mine the property there is provision for royalty payments and that's the additional consideration that's of where land was partitioned by way of summary judgment there was a partial summary judgment in the owens case but that had to do with the the allegation of a verbal contract between the parties as to how they were they were to divide the property and once that was decided against the owner that was saying we have a verbal agreement based on the statute of frauds then it was remanded to the trial court to proceed with the partition action so as does not stand for the notion that land was partitioned by way of motion judgment only the register be called in case as an example of motion for summary judgment applying to an actual partition here we really do not have a completed cell because not all of the legal consideration has been received and so what the district court did is not a cell's not a completed sell the district or basically just tried to align rather than divide the interests of the parties he attempted to align their interests and put them in business together and that is outside the scope of partition members and so we don't know without discovery we don't know whether they are all the pointis members are the lawful owners we don't know whether the sue murray family trust has ever been an owner of record of any part of these three hundred fourteen acres we just we the defendants we don't know and so and we put that in our opposition to the motion for summary judgment that we don't know that they own five six or that the l l c owns fox we'd like to see the chain of title any other issues  dispute as far as motion for summary judgment well yes i'm not sure the plaintiff is actually asking for a partition they're not asking for a physical division and they're not asking for a complete cell they're asking for something else that the partition statues do not allow and so that's the end so we think we think if the if the district court is reversed and and and it's remanded to the district court with instruct to follow the statutory procedure in arizona it's probable that the plaintiff will say well wait a minute we don't actually want partition if you're talking about maybe geographically dividing some portion or all of this property we don't we don't want that we'll just do our thing our five six all with freeport and will fold up our tent and go away will dismiss the partition petition because we don't actually want partition we just wanted to use the defendants portion their property interest as part of our deal but but if that can happen then we'll to stuart a five sixty and eighty three percent deal with freeport and the defense are not holding up any mining or any progress any owner can mine one percent owner can mine a mining claim and so this is really just about a cram down it's not about partition