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Hall v. TWS (06/10/2005) sp-5907
Hall v. TWS (06/10/2005) sp-5907
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOE B. HALL, )
) Supreme Court No. S-10878
Appellant, )
) Superior Court No.
v. ) 4FA-00-1927 CI
)
TWS, INC., a Georgia Corporation, ) O P I N I O N
)
Appellee. ) [No. 5907 - June 10, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Richard W. Wright, Fairbanks,
for Appellant. Douglas L. Blankenship,
Blankenship Law Office, Fairbanks, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
In an action to collect on a judgment against Raymond
Moore, TWS, Inc. obtained a charging order against his interest
in a purported mining partnership with Joe B. Hall and
subsequently purchased his interest at a foreclosure sale and
sued to dissolve the partnership. The superior court found that,
although Moore and Hall formed a partnership at will in 1990, the
partnership was dissolved in 1993 when Hall filed for bankruptcy
and no new partnership was subsequently created. Accordingly,
the court ruled that Moore and Hall held the mining claims as
tenants in common and, therefore, that TWS could reach Moores
fifty percent interest in the claims to satisfy its judgment
against him. We affirm.
II. FACTS AND PROCEEDINGS
Hall and Moore purchased thirty-five mining claims1 in
1990 in the name of Ray Moore and Joe B. Hall d/b/a Golden
Slipper II. Shortly thereafter, Moore approached Clifford Cook,
a childhood friend and a resident of Georgia, for funds to pay
expenses related to annual labor and filing fees in exchange for
an ownership interest in part of the claims. Cook continued to
provide Moore with funds until 1996 when, after traveling to
Fairbanks to formalize their business relationship, Cook
determined that Moore did not intend to grant him an ownership
interest in the mining claims. Cook subsequently obtained a
judgment against Moore in Georgia to recover the funds he had
advanced, and he sued in Alaska for recognition and enforcement
of that judgment. In April 1999 the superior court entered
judgment against Moore in the amount of $57,508.89, and Cook
later assigned this judgment to TWS, Inc., a Georgia corporation
owned by Cook.
To collect on this judgment, Cook attempted to seize
Moores shares in Golden Slipper II, Inc., a corporation owned
jointly by Moore and Hall. Cook believed that the corporation
owned the Marshall Dome claims or some other assets. During a
deposition with Hall in November 1999, however, Hall testified
that the claims were not held by Golden Slipper II, Inc., a
corporation, but by Golden Slipper II, a mining partnership
formed through an oral partnership agreement between Hall and
Moore. Hall testified that he and Moore each owned a fifty
percent share of the partnership, but that they had assigned a
thirty-five percent interest in the partnership proceeds to two
attorneys who had provided legal representation to the
partnership and to Hall personally. Hall testified that no other
parties had an interest in the partnership. Hall also testified
that he had filed for bankruptcy in 1993. While he was uncertain
whether the bankruptcy was discharged in 1995 or 1997, the record
shows that the bankruptcy trustee sold his interest in the claims
in 1996.2
In December 1999 Cook obtained a charging order against
Moores individual interest in the partnership, and the
partnership was ordered to distribute to Cook all earnings and
withdrawals that would be payable to Moore.3 This order also
granted Cook authority to sell Moores interest at a foreclosure
sale, and TWS subsequently purchased Moores interest at a
foreclosure sale held in February 2000. Immediately thereafter,
TWS notified Hall of its purchase and demanded that the
partnership provide it with records related to the partnership
and its ownership of the mining claims. After reviewing some of
the records, TWS recommended that the partnership be dissolved
and its assets distributed to Hall and TWS. Hall later informed
TWS that Moore had assigned his entire interest to other
creditors prior to the foreclosure sale and that TWS had
consequently purchased no interest in the partnership. TWS
suspected that the alleged assignments were an attempt to prevent
collection and brought suit against Hall, Moore, and Golden
Slipper II, alleging that no partnership existed and that the
claims were held by Moore and Hall as tenants in common and, in
the alternative, for appointment of a receiver and for
dissolution of the partnership. Moore did not defend in the
superior court.
During the course of the litigation, Hall and Golden
Slipper II failed to respond to discovery requests served by TWS,
despite two orders by the superior court compelling Hall to
provide the information, which was relevant to whether Moore and
Hall owned the mining claims as tenants in partnership or as
tenants in common. Unable to adequately prepare for trial, TWS
filed a motion for sanctions, which the superior court resolved
at trial by limiting Halls defense to evidence it had already
produced, consisting primarily of his 1999 deposition testimony
and attachments. Halls counsel agreed to this limitation without
objection. While the superior court suggested that Halls failure
to provide the requested information was willful or contemptuous,
the parties agreed to proceed with trial so long as evidence to
support Halls defense was limited to information provided to TWS
before trial. This ruling prevented Hall from introducing
additional evidence to prove the existence of a partnership with
Moore, as well as records relating to his bankruptcy.
TWS argued that Moore and Hall owned the claims as
tenants in common, but that, if a partnership did exist, the
court should appoint a receiver and dissolve the partnership so
that its assets could be distributed to Hall and TWS. Hall
defended that the claims were owned by a partnership formed in
1990 with the purchase of the Marshall Dome claims. According to
Hall, the partnership agreement was oral but its existence was
proven by a 1990 deed made out in the name of Ray Moore and Joe
B. Hall d/b/a/ Golden Slipper II. The alleged partnership had no
letterhead, phone number, bank account, or tax identification
number, nor did it ever file federal income tax returns. For
many of the years in question, Hall filed tax returns as a sole
proprietor, listing his business name as Golden Slipper II.
The superior court noted that, even if Hall and Moore
had formed a partnership in 1990, it would have been dissolved by
operation of law when Hall filed for bankruptcy in 1993.4 If the
partnership was dissolved in 1993 and not subsequently re-formed,
the contested mining claims would have been held by Moore and
Hall as tenants in common, rendering the suit unnecessary. After
it became clear that neither the parties nor their attorneys were
well-versed in the law of partnership and did not understand the
potential implications of the bankruptcy petition, the court
adjourned to permit them to research the impact of Halls 1993
bankruptcy on the continued existence of the Golden Slipper II
partnership. When the trial resumed, Hall argued that, although
the partnership was dissolved in 1993, it was immediately re-
formed with the same assets. In support of this argument, he
cited evidence that allegedly proved the existence of a
partnership after 1993, including the superior courts decision to
grant Cook a charging order against Moores interest in the Golden
Slipper II partnership, correspondence between Cook and Hall
after the foreclosure sale referencing partnership property,
Halls deposition testimony, and other litigation on behalf of
Golden Slipper II to quiet title in the mining claims.5
The court ultimately concluded that Hall and Moore
formed a partnership in 1990, that the partnership was dissolved
when Hall filed for bankruptcy in 1993, and that no new
partnership was subsequently created. The court further found
that, if the partnership had survived the bankruptcy, the court
was compelled by law to dissolve it and order distribution of its
assets. The superior court relied upon AS 32.05.270(b), which
states that [o]n the application of the purchaser of a partners
interest [at a foreclosure sale] the court shall decree a
dissolution . . . at any time if the partnership was a
partnership at will when the interest was assigned or the
charging order was issued. (Emphasis added.) Halls counsel
stated during trial that the partnership was at will, and no
evidence to the contrary was presented at trial. While Halls
counsel later retracted this statement, and claimed instead that
the parties intended the partnership to continue until the mining
operation was completed, the superior courts findings of fact
rely upon the in-court admission. Thus, according to the
superior court, Moore and Hall owned the claims as tenants in
common and TWS could foreclose on Moores one-half interest.
Hall moved for reconsideration in February 2002
claiming that the partnership continued after Halls bankruptcy,
but this motion was stricken because it attempted to present new
evidence not introduced at trial. Hall again moved for
reconsideration in October 2002 and this motion was denied. The
court also awarded fees and costs in favor of TWS. Hall appeals.
III. STANDARD OF REVIEW
Whether Hall and Moore formed a partnership in 1990 or
subsequent to Halls discharge from bankruptcy is a question of
fact, which we review for clear error.6 We will find clear error
only if, after a thorough review of the record, we come to a
definite and firm conviction that a mistake has been made.7 We
review an award of attorneys fees for abuse of discretion.8 We
can affirm a decision of the superior court on any basis
supported by the record.9
IV. DISCUSSION
Joe B. Hall appeals the superior courts ruling that he
and Moore hold the Marshall Dome claims as tenants in common and
the courts award of costs and fees to TWS. Hall argues that the
superior court erred by failing to accord proper weight to
evidence allegedly demonstrating the continued existence of a
partnership after the 1993 bankruptcy. He points to superior
court orders entered after 1993 that refer to Golden Slipper II,
Halls deposition testimony, TWSs initial complaint that alleged
the existence of a partnership, and other documentary evidence
that purportedly supports the existence of a partnership after
Halls 1993 bankruptcy. Hall also argues that the superior court
misunderstood partnership law when it ruled that Golden Slipper
II could not continue after Halls bankruptcy.
Whether Hall and Moore owned the Marshall Dome claims
as tenants in partnership or tenants in common affects whether
and how TWS can reach the claims to satisfy its judgment against
Moore. Partnership property is generally shielded from execution
to satisfy a partners personal debts,10 so if the claims are held
as tenants in partnership TWS could only foreclose on Moores
interest in the partnership, which is his share of the profits
and surplus.11 After TWS purchased Moores interest, it could
reach the mining claims only if it requested a judicial decree of
dissolution, which is granted only if a partnership is at will.12
But if Hall and Moore purchased the claims as tenants in common,
or if the partnership dissolved in 1993 when Hall filed for
bankruptcy13 converting their partnership into a tenancy in
common14 TWS could foreclose directly on Moores interest in the
underlying claims.15
A. Hall and Moore Formed a Partnership that Terminated
when Hall Filed for Bankruptcy.
As a preliminary matter, we note that mining
partnerships are governed by the Uniform Partnership Act (UPA),16
which was recently repealed and reenacted in Alaska with
amendments.17 Because this action concerns events that occurred
and rights that accrued prior to the effective date of the
revised Uniform Partnership Act, it is governed by former AS
32.05.18 Hall bears the burden of proving, by a preponderance of
the evidence, the existence of a partnership.19
The superior court found that Hall and Moore formed a
partnership in 1990 with the purchase of the Marshall Dome mining
claims, that this partnership was at will, and that it was
dissolved in 1993 when Hall filed for bankruptcy. In the
alternative, it ruled that, if the partnership survived Halls
bankruptcy, it was judicially dissolved. Based upon the evidence
presented at trial, these factual determinations are not clearly
erroneous.
1. Hall and Moore formed a mining partnership.
A partnership is defined as an association of two or
more persons to carry on as co-owners a business for profit.20 We
have previously noted that AS 32.05.010(a) consists of four key
elements.21 The first element is associational intent, which
requires the existence of an agreement to combine the [partners]
property, money, effects, skill and knowledge to carry out a
business enterprise.22 Where, as here, there is no written
partnership agreement, the existence of a partnership may be
proven by the transactions, conduct and declarations of the
parties.23 While the parties intent to create a partnership is
typically one of the most important tests for whether a
partnership exists, this is not true where the rights of third
parties are involved.24 In the absence of a written agreement,
the existence of a partnership must be proven by credible
evidence.25
The second element is co-ownership of the business,
which is evidenced by shared management authority and profit-
sharing.26 The third element is that the partners must be in
business,27 and the fourth is that the business must be intended
to make a profit.28
Mere co-ownership of the Marshall Dome claims is
insufficient evidence of the existence of a partnership because
joint tenancy, tenancy in common, tenancy by the entireties,
joint property, common property, or part ownership does not of
itself establish a partnership, whether or not the co-owners
share any profits made by the use of the property,29 but receipt
of a share of business profits is prima facie evidence that the
person is a partner.30
The superior court found that Hall and Moore created a
partnership in 1990 when they purchased the Marshall Dome claims
in the name of Ray Moore and Joe B. Hall d/b/a/ Golden Slipper
II. While there was no written partnership agreement, the record
contains credible evidence that the parties acted as if they had
formed a partnership. Hall testified that annual filings and
payments required by the state to maintain the claims were paid
in the name of Golden Slipper II. In his deposition, Hall
indicated that he and Moore had assigned thirty-five percent of
their interest in the claims proceeds to two attorneys who had
represented the partnership. Such an arrangement is consistent
with the Uniform Partnership Act, which permits the assignment of
a partners share of the profits from a partnership.31 Ultimately,
the superior court found that this evidence supported the finding
that Hall and Moore created a partnership in 1990, particularly
because they had no reason to hold themselves out as partners if
they were not, and because there was no evidence to contradict
the existence of a partnership prior to 1993.
2. The partnership dissolved when Hall filed for
bankruptcy.
The superior court found that Golden Slipper II
dissolved by operation of law in 1993 when Hall filed for
personal bankruptcy. Hall does not dispute this finding. The
Uniform Partnership Act states that a partnership is dissolved by
the bankruptcy of any partner.32 After dissolution, partners are
unable to conduct any partnership business except for that which
is necessary to wind up partnership affairs or to complete any
pending transactions.33 A partnership is not terminated upon
dissolution, but continues until all partnership affairs have
been wound up,34 a process that involves payments to creditors and
distributions to partners.35 The superior court found that the
partnership effectively wound up before the 1995 purchase
agreement for the claims between Hall and Moore and Silverado
Mines.36 Because the partnership dissolved in 1993, the superior
court correctly found that Hall and Moore owned the Marshall Dome
claims as tenants in common.
3. The argument that the partnership continued after
it was dissolved was waived.
Though Hall does not dispute that his bankruptcy
dissolved the partnership, he argues that a new partnership
called Golden Slipper II existed after the 1993 bankruptcy.
While at trial he argued that he and Moore formed a new
partnership immediately after his 1993 bankruptcy, Hall claims on
appeal that he and Moore elected to continue their existing
partnership rather than wind it up. Because this argument was
not raised below, it is waived.37
4. No new partnership was created.
The Marshall Dome claims were held by a partnership
after 1993 only if Hall and Moore formed a new partnership with
the same assets. The four considerations described in former AS
32.05.010(a) that are relevant to whether a partnership was
formed in 1990 apply to the question whether Hall and Moore
formed a partnership post-bankruptcy.38 The superior court found
no credible evidence to support Halls claim that a new
partnership was formed after 1993. Indeed, the evidence to the
contrary was overwhelming. Halls tax returns listed Golden
Slipper II as a sole proprietorship,39 a 1995 agreement by Hall
and Moore to sell their interest in the mining claims to
Silverado Mines was executed in their individual capacities, and
funds received from Silverado pursuant to this agreement were
paid to Hall and Moore individually.
The only documentary evidence tending to show that
Moore and Hall acted as if they were partners was a deed, signed
by both of them individually and on behalf of Golden Slipper II,
a mining partnership, transferring the Marshall Dome claims to
Silverado Mines (U.S.), Inc. We are not persuaded by this deed
that the superior courts finding was clearly erroneous because of
the mass of contrary evidence and the irregularity of the
transaction. This sale occurred during the pendency of Halls
bankruptcy, as evidenced by the fact that the bankruptcy trustee
sold Halls interest in the same property approximately six months
later. Because the partnership dissolved upon the filing of
Halls Chapter 7 bankruptcy petition in 1993, this sale is best
viewed as part of the winding-up process. It certainly does not
provide evidence of a new partnership, since an individual in
bankruptcy cannot contribute his assets from a dissolved
partnership to a new partnership without permission from the
bankruptcy trustee.
Because Halls interest in the mining claims whether as
a tenant in partnership or a tenant in common was held by the
bankruptcy trustee,40 any proceeds due to Hall from the 1995 sale
of the Marshall Dome claims should have been paid to creditors of
his bankruptcy estate. It is unclear how Moore and Hall even
entered into the 1995 contract with Silverado Mines and why this
contract remains in force although the bankruptcy trustees 1996
sale was rescinded. In any event, the deeds probative value as
evidence that a partnership existed is marginal. This is
particularly true since other documents related to the
transaction with Silverado Mines were executed by Hall and Moore
in their individual capacities.
Hall also claims that the superior court failed to
grant proper weight to a 1998 ruling in a quiet title action
apparently brought by Golden Slipper II, Inc. against Silverado
Mines that Hall claims demonstrates the existence of a
partnership in 1998. While Hall acknowledges that this
litigation cannot have preclusive effect because the parties were
different and the existence of a partnership was not litigated,41
it also appears that this action was litigated in the name of the
Golden Slipper II corporation rather than the Golden Slipper II
partnership. The superior court ruled at trial that it would not
rely on the order as evidence that a court had found a
partnership to exist, but rather as evidence that Hall and Moore
held themselves out as partners. Because the order could not
have preclusive effect, the superior court had no reason to rely
upon it as anything but evidence that Hall and Moore held
themselves out as partners.
Because the weight of the evidence supports the trial
courts conclusion that no new partnership was created after 1993,
there is no clear error.42
B. The Superior Court Did Not Err in Awarding Attorneys
Fees and Costs.
The superior court awarded fees and costs to TWS
according to Alaska Civil Rules 82(a) and 79. Hall argues that
this award was inappropriate since Hall prevailed on the only
issue of individual concern, his one-half ownership of the mining
claims. Hall misrepresents the nature of this litigation. TWS
never contested Halls one-half ownership of the claims, but
rather that the claims were held by Hall and Moore as tenants in
common rather than tenants in partnership. TWS prevailed on this
claim.
Hall also argues that the partnership should pay any
fees and costs since Hall acted as a fiduciary to maintain the
existence of the partnership. But the partnership dissolved by
operation of law in 1993 when Hall filed for bankruptcy and the
former partners subsequently held the claims as tenants in
common. It appears that Halls motivation in arguing the
continued existence of the partnership was not to ensure the
continued development of the claims, but to shield the claims
from collection by TWS by classifying them as partnership
property exempt from execution. A party cannot invoke the
existence of a partnership to thwart collection on a valid
judgment. TWS prevailed below and Hall was properly charged with
payment of costs and fees.
V. CONCLUSION
Because Golden Slipper II dissolved when Hall filed for
bankruptcy in 1993, and because Hall and Moore did not form a new
partnership after that time, we AFFIRM the judgment of the
superior court in all respects. TWS may foreclose on Moores
interests in the Marshall Dome mining claims.
_______________________________
1 These claims are known as the Marshall Dome claims.
2 In 1998 the superior court rescinded the trustees sale
of Halls interest in the Marshall Dome claims and Hall apparently
regained his interest in the claims pursuant to court order. The
record is unclear why the sale was overturned, but Halls motion
for reconsideration alleges that it was due to fraud by the
buyer, Silverado Mines (U.S.), Inc. Apparently, Silverado Mines
is currently developing the mines pursuant to a prior purchase
agreement with Hall and Moore.
3 See former AS 32.05.230(a) (judgment creditor can
obtain charging order and foreclose on partners interest). A
charging order is generally the exclusive remedy for a creditor
seeking to reach a partners interest in a partnership. While the
creditor can foreclose on this interest at a foreclosure sale,
the assets of the partnership cannot be reached absent a judicial
decree of dissolution. Bromberg & Ribstein on Partnership
3.05(d)-(d)(3)(v), at 3:91-3:106 (Aspen 2004).
4 Citing AS 32.05.260 (causes of dissolution).
5 See supra, note 2. It should be noted that the
superior court orders from this litigation refer to Golden
Slipper II as a corporation, not a partnership. These orders
were prepared by Golden Slipper IIs attorney, Barry Donnellan,
who presumably knew whether he was representing a partnership or
a corporation.
6 Parker v. N. Mixing Co., 756 P.2d 881, 887-88 n.11
(Alaska 1988).
7 Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).
8 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380
(Alaska 2001).
9 Rausch, 80 P.3d at 737.
10 See AS 09.38.100(b) (partners right in specific
partnership property is exempt except on claim against
partnership).
11 See former AS 32.05.210 (partners interest in
partnership is his share of profits and surplus).
12 Former AS 32.05.270(b)(2) (upon application from one
who purchases partners interest at foreclosure sale court shall
decree dissolution if partnership is at will).
13 Former AS 32.05.260(5) (dissolution of partnership
caused by bankruptcy of any partner).
14 If the partnership dissolved in 1993, Hall and Moore
would also hold the claims as tenants in common. See Simpson v.
Kistler Inv. Co., 713 P.2d 751, 762 (Wyo. 1986) (partnership
realty which need not be liquidated passes to former partners,
and heirs and assigns, as tenants in common); see also Jacoby v.
Feldman, 81 Cal Rptr. 334 (Cal. App. 1978); Engleking v. Estate
of Engelking, 686 N.E.2d 932, 934 (Ind. App. 1997) (Where a
partnership is dissolved, its debts paid, and its affairs [wound]
up, undistributed partnership property belongs to the former
partners as joint tenants or tenants in common.); Zimmerer v.
Clayton, 7 N.J. Tax 15, 22 (N.J. Tax 1984) (discussing
similarities and difference of partnerships and tenancies in
common); Miernicki v. Seltzer, 458 A.2d 566, 570 (Pa. Sup. 1983).
15 AS 09.38.100(a) (creditor of individual who owns
property as tenant in common can obtain a levy on and sell
interest of individual in property).
16 See Innes v. Beauchene, 370 P.2d 174, 176 (Alaska 1962)
(applying UPA to determine existence of mining partnership).
17 See Ch. 115, 6, 8, SLA 2000 (repealing AS 32.05 and
enacting AS 32.06 effective Jan. 1, 2004).
18 Ch. 115, 10, SLA 2000. The act states that the
revised UPA does not govern actions or proceedings begun or a
right that accrued prior to January 1, 2001. Cook obtained a
charging order against Moores interest in Golden Slipper II in
December 1999, foreclosed on this interest in February 2000, and
TWS filed its original complaint in October 2000.
19 Wigger v. Olson, 533 P.2d 6, 6-7 (Alaska 1975)
(plaintiff failed to carry burden of showing existence of
partnership); see also Cavanah v. Martin, 590 P.2d 41, 42 (Alaska
1979) (applying preponderance of evidence standard to prove
existence of partnership); Innes, 370 P.2d at 179 (Arend, J.
dissenting) (burden of proving partnership rests with party
asserting its existence); Bernard v. Vatheur, 737 P.2d 128 (Or.
1987) (existence of oral partnership agreement must be proven by
preponderance of evidence).
20 Former AS 32.05.010(a).
21 Chocknok v. State, Commercial Fisheries Entry Commn,
696 P.2d 669, 675-79 (Alaska 1985).
22 Id. (citing N. Lights Motel, Inc. v. Sweaney, 561 P.2d
1176, 1187 (Alaska 1977)).
23 Innes, 370 P.2d at 176; see also Parker v. N. Mixing
Co., 756 P.2d 881, 887 n.11 (Alaska 1988) (intent to create
partnership can be inferred from actions of partners).
24 59A Am. Jur. 2d, Partnership 136 (2003); see also id.
at 133 (partnership by estoppel exists for benefit of third
parties, not alleged partners).
25 Id. at 90.
26 Chocknok, 696 P.2d at 675.
27 Id.
28 Id. at 676.
29 Former AS 32.05.020(2).
30 Former AS 32.05.020(4).
31 See former AS 32.05.220 (permitting assignment of
partners share of profits).
32 Former AS 32.05.260(5).
33 Former AS 32.05.300; see also Bromberg & Ribstein on
Partnership 7.05(b)(1), at 7:85 (Aspen 2004) (bankruptcy
automatically terminates authority of bankrupt partner).
34 Former AS 32.05.250.
35 See, e.g., Harold Gill Reuschlein & William A. Gregory,
The Law of Agency and Partnership 227, at 343 & n.4 (2d ed.
1990) (discussing winding up as process of completing old
business, collecting and paying debts, and distributing remaining
assets to partners).
36 The only pieces of evidence supporting the finding that
the partners wound up the partnership were the 1995 sale of the
Marshall Dome claims to Silverado Mines (U.S.), Inc. and the 1996
sale of Halls interest in the claims by the bankruptcy trustee.
Nonetheless, if the partners continued the partnership without
winding up its affairs they acted in excess of their authority.
See former AS 32.05.280 (dissolution terminates authority of
partner to act for partnership except as necessary to wind up
partnership affairs or complete transactions begun but not
completed).
37 Although Hall raised the argument in his motion for
reconsideration that Golden Slipper II survived the bankruptcy
petition, the motion was denied because it attempted to introduce
new evidence not presented at trial. Because this argument was
not timely raised below it is waived. Reid v. Williams, 964 P.2d
453, 456 (Alaska 1998) (this court will not ordinarily consider
issues unless they were raised in the trial court).
38 See supra Part IV.A.1. Former AS 32.05.010(a)
identifies four key elements for determining the existence of a
partnership. The parties must intend to combine assets,
knowledge or abilities to carry out a business enterprise, they
must co-own the business as evidenced by shared management
and/or profit-sharing, the partners must be in business, and the
business must be for-profit. See generally Chocknok v. State,
Commercial Fisheries Entry Commn, 696 P.2d 669, 675-76 & n.8
(Alaska 1985).
39 While we have previously held that the failure to file
a partnership tax return is only conclusive of ignorance of the
tax laws, Chocknok, 696 P.2d at 674, it is nonetheless relevant
to a determination of whether a partnership was formed.
40 See 11 U.S.C.A. 541(a)(1) (2004) (bankruptcy estate
comprised of all property in which debtor has legal or equitable
interest); see also In re Shearin, 224 F.3d 346, 349 (4th Cir.
2000) (on filing bankruptcy petition, debtor transfers
partnership interest to bankruptcy estate); In re Sunset
Developers, 69 B.R. 710, 712 (Bankr. D. Idaho 1987) (same).
41 Since the issue of the existence of a partnership was
not litigated in the earlier action, and TWS was not a party to
that action, issue preclusion, or collateral estoppel, does not
bar TWS from challenging the existence of the partnership.
McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003) (issue
preclusion requires (1) the party against whom the preclusion is
employed was a party to or in privity with a party to the first
action; (2) the issue precluded from relitigation is identical to
the issue decided in the first action; (3) the issue was resolved
in the first action by a final judgment on the merits; and (4)
the determination of the issue was essential to the final
judgment.).
42 Because we uphold the superior courts conclusion that
no new partnership was formed after the 1993 bankruptcy, we need
not address whether the court had the power to dissolve Hall and
Moores alleged post-1993 partnership.
