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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.