2008-598, NICHOLAS GILMAN, TRUSTEE OF THE NICHOLAS GILMAN TRUST v. LAKE SUNAPEE PROPERTIES, LLC

The petitioner, Nicholas Gilman, Trustee of the Nicholas

and Courtney H.G. Herz on the brief, and Mr. Cole orally), for the respondent. Sheehan Phinney Bass + Green, P.A., of Manchester (Christopher Cole

Bassett orally), for the petitioner. Orr & Reno, P.A., of Concord (James P. Bassett & a. on the brief, and Mr. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. NICHOLAS GILMAN, TRUSTEE OF THE NICHOLAS GILMAN TRUST

No. 2008-598 editorial errors in order that corrections may be made before the opinion goes Merrimack Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as go to LSP. p. 2 the Gilman Trust could elect either Sublot A or Sublot B and the other would emotional attachment to the property,” and thus the probate court ruled that

have been using the property as their summer home, they had “a greater

probate court then found that because Byers-Jones and the Gilman family B. Sublot A consisted of lots 1-7 and Sublot B consisted of lots 8-13. The of the thirteen lots and then subdivided the property into Sublot A and Sublot

Based upon the evidence submitted, the probate court assigned values to each

this thirteen-lot subdivision “can be used to divide the interests of the parties.”

as a seasonal residence. appeal to the superior court. The superior court ruled that a right to a jury Jones and her family have been the primary occupants of the property, using it

so that the parties could each have their share.” The probate court found that subdivision and a suggestion as to allotting the proposed lots in such a manner parcel subdivision plan although [LSP] presented a proposed . . . [thirteen] lot

a jury trial in equitable matters, the Gilman Trust did not have a right to Sunapee Properties, LLC (LSP) by deed dated May 14, 2004. Charmain Byersequities required an unequal division in its favor.”

also noted, however, that “[n]either party presented the court with a [two]

2008). LSP filed a motion to dismiss, claiming that because there is no right to The Bartram Haines Woodruff Family Trust then conveyed its interest to Lake superior court seeking a jury trial pursuant to RSA 547-C:3 (2007) (repealed to the Bartram Haines Woodruff Family Trust by deed dated October 15, 1986. equitably divided, and . . . that if there were to be a division of property, the Disagreeing with the division of land, the Gilman Trust appealed to the deed dated April 1, 1980. Bartram H. Woodruff conveyed his one-half interest

noted that the parties submitted various proposals for subdivision at trial; it clear that [LSP] is entitled to have the property partitioned.” The probate court “[c]onsidering the size of this property and the extensive road frontage it is

fair market value. The Gilman Trust argued “that the real estate could not be Charmain Byers-Jones conveyed her one-half interest to the Gilman Trust by

ordered physical partition of the property. The probate court found that Following a bench trial, the Merrimack County Probate Court (, J.)

a financial partition, permitting the Gilman Trust to purchase LSP’s interest at by will from their father, G. Bartram Woodruff, upon his death in 1969. the property. The Gilman Trust objected to a physical partition and requested and sister over the property, LSP filed a petition in probate court to partition In February 2005, following years of disagreements between the brother

Charmain Byers-Jones and Bartram H. Woodruff inherited the property

studio. buildings are located on the property, including a residence, a boathouse and a is a right to a jury trial in all partition actions. p. 3 property.” Thus, because partition is a controversy concerning property, there is and has been customary” does not qualify “all controversies concerning

fact that should be heard by a jury. The Gilman Trust argues that the exception of “those in which another practice must be presumed to have had to the electorate when the vote was cast.”

parties have a right to a trial by jury.

the legislature as well as the people, is to be always understood and explained Constitution; and (3) based upon the facts of this case, there are questions of “The language used by the people in the great paramount law which controls language of Article 20 guarantees a right to a jury trial in all property matters. Id. omitted). “In doing so, we will give the words in question the meaning they constitutional provision, we examine its purpose and intent.” Id. (brackets probate court is declared, appeal therefrom to the superior court.” Sec’y of State, 157 N.H. 795, 799 (2008). “To interpret the meaning of a guaranteed by the constitution, a person may, at the time judgment by the court’s construction of constitutional provisions does not exceed $1,500 and no title to real estate is involved, the de novo. Town of Canaan v. C. RSA 547-C:3, however, provides: “In cases where a right to jury trial is As the final arbiter of state constitutional disputes, we review the trial

in civil cases and provides:

partition actions were tried by jury prior to the adoption of the New Hampshire Article 20 provides for a jury trial in all controversies concerning property; (2) Initially, we address the Gilman Trust’s argument that the plain therefore conditioned upon whether it has a constitutional right to a jury trial. Specifically, the Gilman Trust argues that: (1) the plain language of Part I,

been customary and except those in which the value in controversy exclusive jurisdiction over petitions for partition pursuant to RSA Chapter 547- or more persons except those in which another practice is and has In all controversies concerning property, and in all suits between 2

Part I, Article 20 of the New Hampshire Constitution governs jury trials

547-C:2 (Supp. 2008). The Gilman Trust’s statutory right to a jury trial is to Part I, Article 20 of the New Hampshire Constitution and RSA 547-C:3. See RSA

to reconsider, which was denied. This appeal followed. RSA 547:3, I(k) (2007) (repealed 2008) vests the probate court with

On appeal, the Gilman Trust argues it is entitled to a jury trial pursuant

action, and granted LSP’s motion to dismiss. The Gilman Trust filed a motion trial is not guaranteed by the New Hampshire Constitution in a partition a jury trial exists.

p. 4 not resolved by a jury at the time of the adoption of the constitution, no right to without merit. We conclude that if the controversy concerns property but was has been customary” does not qualify “all controversies concerning property” is

dollars, and title to real estate is not concerned” preceding “the parties.” N.H.

language of Article 20, the exception of “those in which another practice is and

not changed. The two-part analysis articulated in

except in cases in which the value in controversy does not exceed one hundred abatement concerns property but no right to a jury trial exists); alter it. Backus v. mariners wages, the legislature shall think it necessary hereafter to See Cocheco Co., 51 N.H. at 457, 459 (holding tax

that was resolved by a jury at the time of the constitution’s adoption. remains the law. The Gilman Trust’s argument that, based upon the plain applied in Hair Excitement v. L’Oreal U.S.A., 158 N.H. 363, 368 (2009),

Thus, the original meaning of the article, and our analysis pursuant to it, has C.A.C.R. 4 (1987); N.H.S. Jour. 2065 (1987); N.H.H.R. Jour. 1385 (1987). amendments, however, was to increase the amount in controversy. See cases that can be heard by a jury. In 1877, the amendment inserted “and with N.H. CONST. pt. I, art. 20 (1987). The main purpose of the 1988 changes and word substitutions. unless in cases arising on the high seas, and such as relate to Compare N.H. CONST. pt. I, art. 20 (1989), (1989). Article 20 was also amended generally in 1988, with grammatical amended and the value increased to $1,500. N.H Manual for the Gen. Ct. 365 N.H. Const. Convention 577 (1974), prior to 1988, when Article 20 was two or more persons; and second, if it did, whether the controversy was one other unsuccessful attempts to increase the amount in controversy, see, e.g., part analysis: first, whether the controversy concerned property or involved amount in controversy was increased to five hundred dollars. Id. There were subsequent amendments modified the amount in controversy. Id. In 1960, the

Article 20 has been amended three times, each in an attempt to limit the a trial by jury; and this method of procedure shall be held sacred, Cocheco Co. v. Strafford heretofore otherwise used and practiced, the parties have a right to, 51 N.H. 455, 457 (1871). two or more persons, except in cases in which it has been See

N.H. 382, 386 (1987). We originally interpreted this article to provide a two- Laws 1788 at 12; see N.H. CONST. pt. I, art. 20 (1987); McElroy v. Gaffney, 129

In all controversies concerning property, and in all suits between

Originally, Article 20 provided:

laws were adopted.” Id. in that sense in which it was used at the time when the constitution and the and shal have Trial by a Jury.” Laws 1679, ch. 6; 1 Prov. Pap. 395. New

p. 5 did not have trials by jury, “[i]n which case any party aggreeved [could] appeal,

to equity.

provided that the parties could have a bench trial by agreement or if the court man & man.” Laws 1679, ch. 6; 1 Province Papers [Prov. Pap.] 395. This act custom of England” in all matters, “whether Capital, or Criminal, or between

Criminall cases.” in England and New Hampshire, focusing upon the transfer of partition actions otherwise determined. The like libertie shall be granted to all persons in by the Bench or by a Jurie, unlesse it be where the law upon just reason hath

be “tried by a Jury of Twelv good & lawful men, according to the commendable

country.”

jury trial in New Hampshire, and then discuss the history of partition actions originally tried by jury. Therefore, we first examine the history of the right to a plantife and defendant by mutual consent to choose whether they will be tryed Unlike most actions in equity, however, partition is unique in that it was

In the code of 1680, New Hampshire secured for the people the right to century, when New Hampshire united with the Massachusetts Bay Colony.

Copp v. Henniker, 55 N.H. 179, 187 (1875).

passion for trial by jury, intensified, if possible, by their experience in this

Id. At that time, New Hampshire was “full of the English

One such liberty stated: “In all Actions at law it shall be the libertie of the Massachusetts Bay Colony — the first elaborate scheme of statutory law. have consistently been described as matters in equity tried without a jury. Id. colonial legislation, New Hampshire adopted the Body of Liberties of the 1 Province Period [Prov. Per.] 1679–1702 Appendix at 755. In 1641, through been within its benefits.” legislative action, but not extending it so as to include what had not before See Our discussion of the right to a jury trial begins during the seventeenth practiced, guarding it against repeal, infringement, or undue trammel by

constitution was adopted in 1784. requires a historical discussion. As LSP points out in its brief, partition actions is whether there was a right to a jury trial in partition actions at the time the

“was a recognition of an existing right, guaranteeing it as it then stood and was 1784.” Hair Excitement, 158 N.H. at 368 (quotation omitted). Part I, Article 20 and ascertain whether the customary practice included a trial by jury before action, we generally look to both the nature of the case and the relief sought, “To resolve whether a party has a right to trial by jury in a particular

333 (2008). This satisfies the first part of the analysis. The inquiry, therefore, controversy concerning property. See, e.g., Foley v. Wheelock, 157 N.H. 329, In this case, there is no doubt that a proceeding for partition is a

damages for the taking of property for public use). Lebanon, 11 N.H. 19, 27 (1840) (holding no right to jury trial to determine court.

p. 6 legislature has granted no such right to a jury trial in probate 6 and may be granted or limited as the legislature sees fit. The right to request a jury trial in probate matters is purely statutory partition as it existed originally in England. Partition has its origins in English

jury in equity was the rule during all the subsequent colonial period.”

(quotation omitted)); without damage, or the like, the Bench shall determine such matters of equity.”

bench. therefore no such right has been created by the constitution. The We now turn to the history of partition actions, and begin by examining

N.H. at 418. jury trial);

submitted to a jury. Just as during the seventeenth century, denial of trial by without jury). “Never is there a suggestion that an equitable issue was

title of land is not Conserned”); 3 Prov. Pap. 219 (same); matter of apparent equity, as the forfeiture of an obligation, breach of Covenant See Dion v. Cheshire Mills, 92 N.H. 414, 417 (1943) (“[I]f there be Finally, prior to 1784, equity matters in New Hampshire were tried to the common law prior to the adoption of the constitution, and no right to jury trial in a will contest where no material facts in dispute).

Petition of Atkins, 126 N.H. 577, 578-79 (1985) (finding that there is

an act for breach of fiduciary duty, does not have a constitutional right to a In re Estate of Heald, 147 N.H. 280, 282 (2001) (holding an estate executor, in

Com’on Law of what nature or kind soever not Exceding twenty pound & where actions & Causes of actions & all matters & things & Causes tryable at the Concerned”); Laws 1692, ch. 10 (courts “heare try & finally determine all Probate jurisdiction, without the right to a jury trial, existed at were tried to the bench. specified monetary amount that did not concern a dispute about title to land Moreover, as our case law has explained: the right to a jury trial to all cases. For example, actions not exceeding a men . . . .”). the titles of land . . . it shall not be finally determined but by a Jury of 12 able 393 (“[I]f any difference or controversy shall hereafter arise amongst us about Reid, see also 1 Prov. Pap.

differences not exceeding 40 shillings and “wherein the Title of Land is not

During the seventeenth century, however, New Hampshire did not extend

(2004) (quotation omitted). Controlling the Law: Legal Politics in Early National New Hampshire 115 designed to “guard[] the rights of the jury from the encroachment of judges.” J. Hampshire people were taught that the trial by jury was “a sacred institution” destroyed . . . .”

p. 7 who proceed without a jury.” 2 Story, usual for the court to issue a commission for the purpose to various persons,

its equitable jurisdiction on a bill filed, praying for a partition, in which it is

of which divers persons having undivided parts or purparts are greatly between whom partition should be made, and also the moieties [money] to returning of the process of summons, attachment, and distress, . . . by reason the tenants . . . to be divided, and the defective or dilatory executing and matter in equity. Id. § 879, at 257 (“And indeed if there are no suspicious Lyon, Jr. ed., 14th ed. 1918). Provided title was not in dispute, partition was a was “tedious, expensive, and sometimes ineffectual.” Freeman, Equity Jurisdiction § 872, at 250 (W.H.

method of partition thus developed wherein “by decree of chancery exercising exercise jurisdiction in suits for partition without a jury. Id. at 546. A new allotted the shares or purparts to the heirs respectively.’” Id. (quotation omitted). As a result, chancery courts began to

his justices.” entered in his favor an interlocutory judgment, . . . designat[ing] the persons and lawful persons chosen by the parties . . . to be returned . . . [to] the king or This was “by reason of the difficulty of discovering the persons and estates of petitioning landowner would then file a declaration. supra at 544. Eventually, Parliament recognized that the common law partition process

162, 167 (1919)). A.2d 1233, 1234-35 (R.I. 1981) (quoting Loyd, Partition, 67 U. Penn. L. Rev.

sheriff with a jury of twelve went upon the land, made a division of it and

was confessed, or if after trial the issue was found for the plaintiff, there was the occasion, and were to extend and appreciate the land by the oaths of good

cotenants appeared in the action, as opposed to suffering a default, the would summon the other cotenants named in the writ. Id. at 546. If the other III. at 544. The landowner would initially sue by writ of partition and the sheriff English common law subsequently evolved to include a jury. Id. § 421,

Id. § 396, at 506. occasionally select individuals, known as commissioners, to divide the land.

Id. § 420, at 541. In voluntary partitions, the parties would also

this purpose directed to four or five persons, who were appointed justices for land, partition could be compelled by the following procedure: “A writ was for to more than one heir, and the heirs could not agree upon a division of the Id. § 420, at 540. At that time, when an inheritance of real property went Compulsory partition by the court dates back to 1272 and the reign of Henry Partnership Relations Between the Co-owners § 394, at 504 (2d ed. 1886). Partition: A Treatise on the Law of Co-ownership as it Exists Independent of agreement; or (2) compulsory by court. A.C. Freeman, Cotenancy and common law, which provided for two types of partition: (1) voluntary by freeholders, known as commissioners, to divide the land according to law. p. 8 Assembly would then authorize the judge of probate to issue a warrant to five the Case of Intestacy as had been Done in other like Instances”). The General

Judge of Probate might be Authorized to cause said Division to be made as in

a Charge as the Said Heirs coud not well sustain and therefore Praying that the

or other real Estate to be made in a Summary way,

not make Division by consent & to do it by writ at common Law woud be such Common.” Laws 1766, ch. 2. This act provided: and tedious. Laws 1764, ch. 9 (“That the said Heirs being Minors they coud alternative of partition by writ at common law before a jury would be expensive

Assembly for private Acts to authorize Partition & Division of Lands

expeditious method of making Partition of Land or other real Estate held in that because the heirs were minors, they could not consent, and that the

inherited by minors. Expence & delay of making the same by a Jury where Minors or

Whereas Petitions are often presented to the General

jurisdiction over partition involving minors.

On July 3, 1766, the General Assembly passed “An Act for a more easy & Laws 1758, ch. 3; Laws 1754, ch. 3; Laws 1747, ch. 6. Such petitions noted e.g., Laws 1760, ch. 2; Laws 1758, ch. 3.

included a jury. Even more compelling, however, is the development of the probate court’s there was a clear reference to a right to a trial by jury in partition matters. partition thereof by themselves”). Thus, prior to adoption of the constitution, Laws 1778, ch. 2; Laws 1764, ch. 9; Laws 1763, chs. 6 & 7; Laws 1760, ch. 2;

determined, Except where matters of fact are either acknowledged by the method to consent. In the eighteenth century, petitions were regularly minors were unable to give consent, the law developed to provide an alternative As stated above, partition was originally by consent or by jury. Because

in equity. As in England, partition was originally by writ at common law and

the Common Law to Divide the Same, where the parties cannot agree to make Laws 1714, ch. 1 (property owners “may be Compelled by writt of partition at

186 (“[N]o Person’s Right of property shall be by any of the . . . courts property and that any dispute of fact is to be settled by a jury. See 3 Prov. Pap. passed during the seventeenth century reference the importance of the right of trajectory of “special partition” in cases of indivisible property). The acts

Cf. Crowell v. Woodbury, 52 N.H. 613, 615 (1873) (discussing

New Hampshire followed a similar pattern in the development of partition

is as much a matter of right as at law.”). circumstances, but the title is clear at law, the remedy for a partition in equity all parties.

p. 9 five freeholders to be appointed by the said Judge.”

allow’d & approv’d, shall be adjudged a good partition & binding to

Partition of such land or other real Estate to be made . . . by a Committee of Probate of Wills . . ., the said Judge be and he hereby is empowered to cause any lot, tract or parcel of Land, or other real Estate . . . to the Judge of the

Partition being so made & return’d to the said Judge & by him the real Estates of Persons dying intestate, which division and is by Law authorized to do in cases of the division & settlement of 9

fully conferred upon the court, with other equity powers, by the act of 1832.”); “That upon the Application of any Person or Persons interested with others in

to partition land.

record shows that, as of 1766, partition included trial by jury. partition was commonly done either by consent or by jury. Thus, the historical in behalf of any Party interested in the same manner & form as he Importantly, the language of this act indicates that, during this period, Whitten v. Whitten, 36 N.H. 326, 332 (1858) (“[T]he partition of real estate is an

615 (“[T]here can be no doubt but that this branch of equity jurisdiction was Act for the more easy Partition of Lands and other real Estate,” which provided: when partition actions finally became equity matters. See Crowell, 52 N.H. at

Id. This process continued into the nineteenth century,

commissions comprised of five men acting at the direction of the probate court are sometimes unknown.” Id. The General Assembly therefore authorized Parties concerned are numerous, live remote from each other, & some of them Parliament, the General Assembly, in passing this act, articulated that “the

not an option. Instead, “five freeholders” could partition the property. Estate are Minors or under any disability to make partition thereof where the Persons interested, or any of them so holding such

actions. Laws 1789, ch. 43. In that year, the General Assembly passed “An constitution, that the probate court was given jurisdiction of all partition It was not until February 4, 1789, five years after the adoption of the

expense and delay of a jury trial when a minor was involved and consent was Id. (emphasis added). The 1766 act thus provided an alternative to the other real Estate in this province held in common & undivided,

Remedy whereof General Assembly is taken up in attention to private Affairs, for

hereby is authoris’d to cause a division or Partition of any Lands or on the Estates of Persons dying intestate within this Province be & Judge of Probate of Wills & for granting Letters of administration Be it Enacted by the Governor Council & Assembly that the

consent & deed are interested, whereby much of the time of the others under any disability of making such Partition by mutual trial must be originally heard in the superior court.

p. 10 C:2. Therefore, any future partition action where any party requests a jury

jury is guaranteed by the constitution and is claimed by any party.” RSA 547court with exclusive jurisdiction “in any such case where the right to a trial by legislature, however, recently amended RSA 547-C:3 to provide the superior decree if it offends the traditional notions of equity. has the authority pursuant to Superior Court Rule 73 to set aside the jury’s

probate court is declared, appeal therefrom to the superior court.” The trial. trial procedures for screening triable issues, in my opinion the presiding justice Trust’s alternative argument that the specific facts of this case warrant a jury

See generally A.C. Freeman, Cotenancy and Partition: A Treatise on the Law of shall have full power to determine the respective interests of all the parties”). (listing equitable considerations); cf. RSA 547-C:10 (2007) (stating “the court

most recent version of RSA 547-C:3, it “may, at the time judgment by the discuss the contours of such right on remand. In addition to the normal pretrial when requested in partition matters, we need not address the Gilman partition before adoption of the 1784 State Constitution. I write separately to trial likely was available at law to property holders seeking compulsory HICKS, J., concurring specially. I agree with the majority that a jury

specially. BRODERICK, C.J., and DALIANIS, J., concurred; HICKS, J., concurred

pursuant to RSA 547-C:3. Because the Gilman Trust filed suit prior to the

Because we conclude that our constitution provides for a right to a jury under the jurisdiction of the probate court.

1766, ch. 2 (noting expense and delay of making the same by jury); Freeman,

The Gilman Trust is therefore entitled to a jury trial in superior court

was not until after 1784, however, that partition became an action in equity supra at 547 (method for partition by writ at common law includes jury). It

by the laws of the State, would be very troublesome and expensive.”); Laws 1783, ch. 2 (“[C]ommon method for making partition of lands, as pointed out adopted, the common method was either by consent or by jury. See Laws trial in partition actions in 1784. Thus, at the time the constitution was Based upon the foregoing, we conclude that there was a right to a jury

make a division.”), overruled by Doughty v. Little, 61 N.H. 365 (1881). partition be made, a committee is appointed, as directed by the statute, to 31 (1831) (“When a judgment has been rendered on a petition of this kind, that undoubted branch of equity jurisdiction.”); Morrill v. Morrill, 5 N.H. 329, 330- p. 11 Constitution.

Amendment right to jury trial).

the “judicial power” conferred by Part II, Article 72-a of the New Hampshire Freeman,

duty to set aside an inequitable remedy.

659 (1935) (legal rulings made after jury verdict not violative of Seventh inequitable partition at law); cf. Baltimore & C. Line v. Redman, 295 U.S. 654, court’s general equity power became constitutionally vested in 1966 as part of supra § 515 (stating that court of equity will intervene to prevent jurisdiction when the constitutional jury trial at law provides incomplete relief); Hampton v. Palmer, 99 N.H. 143, 146 (1954) (permitting equity to assume jury trial in equity case is proper only “under the direction of the court”); equitable power,

the doctrines and methods of equity . . . .”). Corp.), 880 P.2d 169, 182 (Haw. 1994). all Cases, in Law and Equity . . . .”); Richardson v. Sport Shinko (Waikiki

Cf. U.S. CONST. art. III, § 2 (“The judicial Power shall extend to

N.H. at 198. Other constitutional provisions may, however, and the superior Reid, typically cannot alter the substantive pre-1784 jury trial right. See Copp, 55

see Crowell, 52 N.H. at 616, such legislative delegations

Although later acts governing partition vested the court with certain

Hampshire only at law, elsewhere the equitable jurisdiction over such matters (4th ed. 1918) (jury is ill-equipped “to frame and deliver a decree according to N.H. at 211; 1 J. Pomeroy, A Treatise on Equity Jurisprudence § 116, at 136 power, the jury’s role in partitions would have been narrower. See Copp, 55 Crowell, 52 N.H. at 615. Doubtless had our courts been vested with such in New Hampshire courts, Copp v. Henniker, 55 N.H. 179, 210-11 (1875); Hampshire 9, 24 (2009), and likely accounted for the lack of equitable powers Legislating the Courts: Judicial Dependence in Early National New lack of an effective and independent judiciary in 1784 cannot be gainsaid, J. Partition, 67 U. Pa. L. Rev. 162, 168-69, 173 (1919). The state’s functional

While the pre-1784 jury trial right in partition actions developed in New Gordon, 117 N.H. 862, 864 (1977); Hale v. Jaques, 69 N.H. 411, 412 (1898). 329, 333 (2008); DeLucca v. DeLucca, 152 N.H. 100, 104 (2005); Gordon v. calling heavily upon the court’s equity powers. Foley v. Wheelock, 157 N.H. Whatever its genesis, it is undisputed that partition is now a matter

Co-owners § 505 (2d ed. 1886). Co-ownership as it Exists Independent of Partnership Relations Between the