A21-1320

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1313
A21-1320

Wayne O’Connor,
Appellant (A21-1313),
Respondent (A21-1320),

vs.

Byron O’Connor,
Respondent (A21-1313),
Appellant (A21-1320).

Filed June 13, 2022
Affirmed
Jesson, Judge

Rice County District Court
File No. 66-CV-18-2742

Bryan R. Freeman, Peter C. Hennigan, Maslon LLP, Minneapolis, Minnesota (for
appellant/cross-respondent)

Heidi J. Bassett, Katherine A. Herman, Hellmuth & John son, Edina Minnesota (for
respondent/cross-appellant)

Considered and decided by Wheelock, Presiding Judge; Jesson, Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After farming together as partners fo r forty years, brothers Wayne and Byron
O’Connor tasked the district court with disso lving their partnership. On appeal, they
2
challenge the court’s division of their partnership’s property. Wayne1 argues that the court
did not award him enough money, while Byr on contends that the court improperly
confirmed a third-party neutral’s award and abused its discre tion by finding that he acted
in bad faith. Because we conclude that the district court equitably divided the partnership’s
property, and the record supports the district court’s bad-faith-conduct finding, we affirm.
FACTS
Taking over their father’s land, Wayne, appellant and cross-respondent, and Byron,
respondent and cross-appellant, began farming grain and raisi ng hogs together in 1975.
Generally, Wayne handled the grain farming wh ile Byron oversaw the hogs, but at times
they worked together. The brothers did not have a wri tten agreement but operated as a
general partnership called O’Connor Brothers, which acquired many parcels of land over
the years. In 1991, Wayne and Byron’s younger brother began to farm alongside them but
did not join the partnership. And in 2012, Wayne and Byron formed two offshoot limited
liability corporations (LLCs), one that sold seeds and another that sprayed seeds to increase
yields.2
In 2017, the brothers’ business relationship began to unravel. Their younger brother
decided to separate his farm ing operation that year. And in 2018, Byron approached
Wayne about dissolving the partne rship. At this time, the pa rtnership owned real estate
worth approximately $11,000, 000 and equipment worth abou t $1,500,000. Wayne and

1 Because the brothers share a last name, we refer to them by first name.
2 Before the formation of th e LLCs, the partnership conduc ted the seed-selling business
although the work was primarily Wayne’s responsibility.
3
Byron attempted to divide the partnership’s assets through mediati on, but these efforts
failed. Wayne then petitioned the district c ourt for an order dividi ng the partnership’s
assets and liabilities.3
In November 2019, the matter proceeded to a court trial. But because the 2019
farming season was ongoing, the trial only addressed the partnership’s assets and liabilities
through the end of 2018. The district court appointed a senior judge as a third-party neutral
to divide the remaining assets and liabilities incurred after the trial.
Trial Order
The task before the district court was to fairly divide the partnership property
between the two brothers. To do so, the court had to satisfy the partnership’s debt and then
split the remaining assets. Fi nally, the court had to resolv e the brothers’ claims of
entitlement to further compensation. We begin with the district court’s undisputed division
of property and then turn to its disposition of the brothers’ various claims.
The district court started with the partnership’s debt. The court found that the total
amount owed by the partnership was approximately $1,200,000. And the total value of the
equipment owned by the partnership was $1,489,650. Accordingly, the court ordered the
brothers to sell the partnership’s equipment by auction to satisfy the debt.4
After accounting for the partnership’s debt, the district court turned to its real estate.
The court divided the real estate into two parcels. Byron received land worth $5,855,458,

3 While he did not join Wayne’s petition, Byron requested an order from the district court
declaring the extent of partnership property.
4 Both Wayne and Byron had the opportunity to purchase any of the equipment pre-auction,
provided that they notified the other in writing five days before the purchase.
4
and Wayne received land worth $5,135,386. As part of this division, because the brothers
did not produce sufficient evidence concerning the value of their re spective homesteads,
the district court ruled that each homestead was a “wash” that did not further factor into its
division of real property. And because the total land awarded to Byron possessed a higher
value, the district court concluded that Wayne was entitled to $360,036, half of the
difference in value between the two parcel s. After making a dditional adjustments
uncontested here, the court awarded Wayne $141,740.5
On appeal, the brothers do not directly challenge the approximately $11 million
award dividing the land and equipment. But e ach brother asserts that the other owes him
more. At trial, Wayne claimed that Byron used $819,764.64 more of partnership funds to
pay for personal expenses than he did and claimed to be entitled to half of those “personal
draws.” Wayne also argued that the district court should award him one half of the revenue
earned from selling hogs that Byron had deposited into a personal account over the years.
In response, Byron contended that Wayne had improperly classified payments to Byron’s
children for partnership labor as personal draws attributable to Byron. To contextualize
these remaining claims, we begin with some of the partnership’s general practices as
explained in uncontested trial testimony and then consider the cour t’s resolution of the
claims.

5 The further adjustments were based on the district court’s conclusion that Byron owed
Wayne $4,200 for appraisals of partnershi p property, $19,950 for loan payments, and
$8,037.50 for expert-witness fe es. And the court concluded that Wayne owed Byron
$6,250 for checks not deposited into the partnership account, $95,057 for personal-vehicle
purchases, and $7,436 for other personal expenses.
5
Over the life of the partnership, the brothe rs funded their partnership and personal
activities through a shared checking account and operating line of credit. Each could draw
freely from the partnership account without consent from the other, although they conferred
at the end of each year about their respec tive personal draws. Wayne handled the
bookkeeping and produced records from 1999 through 2018.6
The partnership’s bookkeeping was largel y an after-the-fact process of compiling
the profits and expenses at the end of each year. Each brother reported expenses, some
personal and others related to partnership business, but they did not verify how the other
classified each expense. From this inform ation, Wayne compiled a profit-and-loss sheet
each year detailing the partnership’s finances. As part of that process, Wayne generated a
balance sheet that tracked the brothers’ personal draws from partnership funds for personal
expenses. Wayne provided these records to Byron each year.
Once Wayne had prepared the profit-and-loss sheets and the balance sheet, he would
give them to the partnership’s accountant.7 The accountant testified that after he received
the records from Wayne, they would discuss the preferred amount of income to be reported
for the partnership for that year.8 After adjusting the partnership income to an agreed-upon
level, the accountant would receive information from the brothers (who filed individual tax

6 The brothers did not have financial records predating 1999.
7 Two accountants testified, the partnership’s main accountant and a forensic accountant
retained by Byron.
8 According to the partnership accountant, the total income claimed could be adjusted by,
for example, using deferred-grain contracts, which allowed the partnership to either “push”
income into the next year or “pull” income back to the current year, depending on how
much income was advantageous for the partnership to report.
6
returns, instead of a return for the partnership) concerning their personal expenses and
income. Then he allocated most partnership profits and expenses between the brothers to
keep them below certain income levels for tax advantages.
But the former partnership assets that were now owned by the LLCs were treated
differently. The revenues and expenses for one of those businesses were reported on
Wayne’s return, but Wayne would assign Byron varying amounts of the profits each year.
The accountant testified that the amount of profit assigned to Byron “varied to get the tax
returns into the most beneficial position with the IRS.” And the depreciation in value of a
bulk seed system used for one of the LLCs—and the corres ponding tax benefit—was
allocated entirely to Wayne, although the accountant could not explain why.
With this accounting backdrop in mind, we return to the disputed claims. Although
both brothers could draw from the partnership account at will, they were supposed to do so
only for partnership expenses, and to repay any partnership funds that were used for
personal expenses. Based on th e financial records, Wayne ar gued that he was entitled to
$409,882, half of what he alleged that Byron drew from the partnership from 1999 to 2018
to pay for personal expenses. Byron disputed Wayne’s calculation of his personal draws.
Byron called a forensic accountant as an e xpert witness, who te stified that Wayne’s
calculation of the personal draws needed to be adjusted. The forensic accountant identified
personal expenses by Wayne that Wayne had characterize d as partnership expenses,
including personal vehicles, travel, meal expenses, and Wayne’s use of partnership funds
to build a new garage. Finally, the forensic accountant identified payments made by Byron
7
to his children for labor performed on behalf of the partnership that Wayne had classified
as personal draws by Byron.
Separately, Wayne claimed that Byron had diverted $185,22 4.71 in hog-sale
revenue from 1992 to 2016.9 Byron asserted that he deposited those funds into his personal
checking account to pay his ch ildren for labor performed on be half of the partnership.
Byron claimed that he paid his children a total of $356,084 to compensate them for working
for the partnership over the years. He asserted that $134,418.42 of this sum came from the
past hog checks and the remaining $221,667.58 came from his personal funds.
The district court did not directly re solve the personal-dra w, hog-check, and
labor-compensation claims. The court explaine d that all of these claims implicated the
accounting methods that the parties apparently agreed to use over the life of the partnership.
In particular, the court found that Byron’s ch ildren worked for the partnership, for which
they deserved compensation, but determined that how the children were customarily paid
was “totally unclear.” Because the brothers “appeared to play fast and loose for tax
purposes” with their accounting, the court declined to reach any claim that would require
it to “go back and re-do the b ooks.” Accordingly, the distri ct court declined to further
adjust the amount owed to Wayne by Byron on the basis of the personal draws, hog checks,
or Byron’s children’s labor expenses.

9 Wayne added this claim after filing his pe tition for dissolution because he discovered
these check deposits in the course of discovery.
8
After the trial, both brothers moved for amended findings. They agreed that the
district court’s order contained certain factual errors. Because of various delays, the parties
agreed to a June 2020 hearing on their respective post-trial motions.
The Senior Judge’s Awards
While the post-trial motions pended, the court-appointed senior judge filed his first
award in May 2020. The senior judge divide d the 2019 grain between the brothers based
upon ownership of the underlying real estate , and he adjusted the land award slightly
because the trial order did not exclude 0.95 acres of land owne d by the brothers’ mother.
Then, dividing the remaining assets and liabilities of the pa rtnership, the senior judge
awarded Wayne a total of $274,856.05, an amount Wayne received in addition to the trial
award.
The senior judge drafted a preliminary awar d and sent it to the brothers so he could
consider any requests for changes. After receiving the preliminary award, Byron objected,
claiming the senior judge had exceeded the scope of his authority. The senior judge
concluded that Byron’s objections were unfound ed because he requested that the senior
judge decide matters beyond the scope of the district court’s order, and because Byron did
not object to the procedure until after he received a copy of the preliminary award.
In July 2020, the senior judge issued a second award. Th is award principally
concerned the auctioning of th e partnership’s equipment to satisfy its debt. Wayne
purchased 32 pieces of partnership equipment before the auction. One of the items Wayne
purchased included the entirety of the tools in a partnershi p shop, for which Wayne paid
$23,000. But Byron’s son cl aimed that he owned many of the tools that Wayne bought
9
and removed those tools from the shop. Byron’s son also claimed to own a $4,000 Oliver
70 tractor that Wayne bought. The senior ju dge ordered that all items removed from the
partnership shop, including the tractor, be returned. If the items were not returned, Byron
would owe Wayne replacement costs.
Then, because the trial order treated th e brothers’ homesteads as a wash, Wayne
requested that equipment for one of the LL Cs—which was affixed to his homestead—be
considered part of that wash. The senior judge granted the request and noted that any
fixtures to Byron’s property would be exempted from the auction as well. After receiving
this award, Byron moved to remove the senior judge as the third-party neutral, contending
that the senior judge was biased against him for failing to rule on his objections.
In January 2021, the senior judge issu ed a third award. He awarded Wayne
replacement costs because the missing shop tool s were never returned. The senior judge
further found that Byron and the younger brother removed a John Deere tractor from the
auction site before the auction. Because that tractor was also neve r returned, the senior
judge found that Byron purchased the tractor for its appraised value. The senior judge
awarded Wayne $24,418.77 after resolving final debts between the brothers.
Post-Trial Motions
Both brothers sought to amend the trial order in various respects, and Byron brought
another motion objecting to the senior judge’s aw ards. The district c ourt granted in part
and denied in part the brothers’ motions to amend the trial order.10 The court amended the

10 The judge who oversaw the trial had retired at this point, so a different judge decided the
brother’s post-trial motions.
10
order to correct mathematical errors and fu lly account for Wayne’s son’s interest in
partnership property.11 But apart from correcting computa tional errors, the district court
denied the brothers’ remaining motions. The court concluded that the trial order considered
Wayne’s personal-draw and hog-check claims and declined to award relief, a decision the
court found “no persuasive evidence to question.”
After receiving the senior judge’s final award, Byron requested another hearing in
district court on his objections to that award. Byron argued that the senior judge deprived
him of due process by failing to hold a heari ng and exceeded the scope of the authority
given to him by the court. Wayne requested that the court enforce the senior judge’s award,
and he moved for attorney fees.
The district court confirmed the senior judge’s awards and granted Wayne’s motion
for attorney fees. The court concluded that Wayne was entitled to fees because Byron took
and destroyed property, was dishonest on mu ltiple occasions, and di sobeyed orders from
the court and the senior judge. The court awarded Wayne $74,463.50 in attorney fees.
In total, the district cour t divided just under $11 million in real estate between the
brothers. The court adjusted this award to account for the difference in value of the land
awards and ordered the brothers to auction off their equipment worth about $1.5 million to
satisfy partnership debts. And the court further adjusted its award based on certain

11 As part of this adjustment, the district court reduced Wayne’s trial award from $141,740
to $81,552.29. Adding this adjusted award to both senior judge awards, Wayne received a
total award of $380,827.11.
11
expenses that the brothers demonstrated, but it declined to make other adjustments
requested by the brothers that it found were unproven.
Wayne and Byron both appeal on separate issues. We consolidated the appeals into
the present matter.
DECISION
The brothers contest different aspects of the district court’s division of partnership
property. Wayne argues that the district c ourt erred by not awarding him relief for his
personal-draw and hog-check cl aims. Byron challenges the court’s confirmation of the
senior judge’s awards and its grant of attorn ey fees to Wayne. We begin with Wayne’s
claims.
I. The district court acted within its di scretion by determining that Wayne did
not meet his burden on his personal-draw claim.

The district court explained that it did no t reach “certain claims” that involved the
brothers’ reporting methods because: “If the Pa rtnership chose to report certain items in
certain ways for tax purposes the Court is not in a position to re-do that for them.” Wayne
asserts that either the court fo rgot to award him relief on his personal-draw claim, or that
if the court reached this claim, it erred as a matter of law by rejecting it.
Wayne argues that he is entitled to $409 ,882, one half of th e amount that he
calculated that Byron withdrew from the partnership in excess of what he (Wayne) did. He
is correct that as a general matter, partnership profits and expenses are to be shared evenly
between partners. Minn. Stat. § 323A.0401(b) (2020). But Wayne’s attempt to style this
12
issue as one of pure law fails because Byron’s alleged personal draws are part of the district
court’s overall distribution of partnership property—not a separate claim.
An action for partnership dissolutio n is one for equitable relief. Maus v. Galic ,
669 N.W.2d 38, 42 (Minn. App. 2003); see Minn. Stat. § 323A.0104(a) (2020)
(recognizing that principles of equity supplement chapter governing partnerships). District
courts sitting in equity wield broad discretion to fashion a remedy based on the unique facts
of a particular case. Gabler v. Fedoruk , 756 N.W.2d 725, 730 (Minn. App. 2008)
(quotation omitted). An equitable decision will not be overturned absent an abuse of that
wide discretion. City of N. Oaks v. Sarpal, 797 N.W.2d 18, 23-24 (Minn. 2011).
Here, the district court implicitly found that Wayne had not met his burden on his
personal-draw claim. As plaintiff, Wayne bore the burd en of proving his claim by a
preponderance of the evidence.12 Carpenter v. Nelson, 101 N.W.2d 918, 921 (Minn. 1960).
Wayne contends that he met this burden because he produced the profit-and-loss and
balance sheets, on which the trial order relied in part. The district court did adjust the
amount owed to Wayne on the basis of certain expenses contained in these records, such
as the amount spent by Wayne on personal vehicles and personal-care expenses. But the
court implicitly conc luded that other cl aimed expenses, such as Wayne’s total
personal-draw calculation, were unsupported.
Testimony from the two accountants unders cores the difficulty of evaluating the
records that Wayne relied upon to prove his personal-draw claim, and in doing so supports

12 At oral argument, Wayne agreed that he bore the burden of proof for this claim.
13
the district court’s equitable decision. For example, the partnership accountant explained
that after adjusting the total partnership income to an agreed-upon level, he would assign
income and expenses to each brother “and adjust some other figures and try to get it close
to a 50/50.” As part of this evening-up process, the partnership accountant testified that he
and Wayne would a ssign Byron a certain percentage of profits from the seed-selling
business each year, although the depreciation in value of its equipment was always reported
on Wayne’s return. In short, verifying Wa yne’s total personal-draw calculation would
require the court to comb through each brother’s returns for each of the nineteen years that
Wayne produced accounting records.
And the forensic accountant disputed th e accuracy of Wayne’ s calculation of the
brothers’ personal draws. He testified that th ere were “some adjustments that need to be
made” to Wayne’s records, including persona l-vehicle expenses, personal-care-and-meal
expenses, travel expenses, and finally the cost of building Wayne’s garage. Wayne
withdrew these sums from the partnership but did not record any of them as personal draws.
The forensic accountant also identified paym ents made by Byron to his children that
Wayne classified as personal draws by Byron. Finally, he testified that he “saw no
economic basis” for Wayne’s practice of assi gning seed-sale profits to Byron “except for
allocating tax liability.”
In sum, the records that Wayne relied u pon to prove his personal-draw claim do not
satisfy his burden of proof. Wayne did not report many of his own personal expenses as
personal draws, and some of what he reported as personal draws by Byron (e.g. at least
some of the payments to Byron’s children) were in fact partners hip expenses. This
14
inconsistent reporting, coupled with the a dditional confusion caused by the strategic
allocation of profits to both brothers for ta x advantages, supports the district court’s
decision to decline to resolve claims that would require it to reach back through years of
unclear records.
The district court appropriately exerci sed its discretion by so doing. This is
particularly true given the equitable nature of the partnership dissolution process and the
extent of the assets here. When the record is unclear—as it is with respect to the personal
draws and tax allocation—the a ppropriate role for an appella te court is to determine
whether the award was equitabl e under the circumstances. Maras v. Stilinovich ,
268 N.W.2d 541, 544 (Minn. 1978). Here, the court divided the partnership land, awarded
each brother over $5,000,000 in real estate, and awarded Wayne half the difference in value
between his land and Byron’s. Because the records do not support Wayne’s claim, and
because the brothers apparently agreed to these reporting methods for more than a decade,
the court’s division of property is equitable.
13
To persuade us otherwise, Wayne argues fi rst that the district court found that his
records were accurate and, it simply forgot to award him half of Byron’s excessive draws.
But the district court, in ruling on the post-trial motions, found that the trial order included
Wayne’s personal-draw claim when it stated that it was “not reaching certain claims.” We

13 Wayne also contends that the district court found his balance sheets reliable and therefore
was required to award him for the amount show n by those records. But that the district
court used the balance sheets does not mean that it found they were entirely accurate. In
fact, the court adjusted entries from the balance sheets where it had sufficient evidence to
do so and implicitly concluded that it lacked information to evaluate other entries.
15
review such a factual finding for clear error, and we will not set it aside unless we are left
with a firm conviction that a mistake was made. Rasmussen v. Two Harbors Fish Co. ,
832 N.W.2d 790, 797 (Minn. 2013). We have no such conviction here.14 The district court
did not abuse its discretion by declining to make such an award.
II. The district court acted within its discretion by declining to award Wayne
compensation on his hog-check claim.

Next, Wayne contends that the district court was required to award him $92,612,
half of the hog-sale proceeds that By ron deposited into a personal account. 15 B y r o n
claimed that he used these funds to compensa te his children for past labor performed for
the partnership. Like the personal-draw issu e, this claim also implicates the district
court’s exercise of its equitable powers to divide the partnership property.
Schoenborn v. Schoenborn, 402 N.W.2d 212, 214-15 (Minn. App. 1987). Accordingly, we
review this decision for an abuse of discretion. Gabler, 756 N.W.2d at 730.

14 Finally, Wayne asserts that not awarding him half of Byron’s excess personal draws
would be inequitable because in effect he is being forced to finance Byron’s personal
expenditures. But, according to the test imony of the forensic accountant, Wayne
misclassified numerous personal expenses by himself as partnership expenses and
partnership expenses by Byro n as personal expenses. An d Wayne bore the burden of
proving that he should be aw arded half of specific expenditures by Byron. For some
expenses, such as the appraisal fees, loan payments, and expert-witness fees, Wayne made
this showing, and the court accordingly adjust ed its award. But the records provided by
Wayne do not support his claim that the district court abused its discretion by not awarding
him an additional $409,882.
15 Wayne also argues that because he made th is showing, the burden shifted to Byron to
justify not depositing the checks in the part nership account. But he did not make this
burden-shifting argument before the district court, and we do not reach it. Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988).
16
Here, the district court, in refusing to award Wayne this relief, explained that it
viewed this issue as intert wined with Byron’s claim that Wayne had misclassified
payments to Byron’s children over the years. The court concluded that both claims arose
from “hard feelings” caused by the dissolution and reasoned that:
The evidence clearly showed that Byron’s children did a lot of
work on the hog side for Byron . Certainly they were entitled
to get paid. What is totally unclear is how they were paid over
the years. This also is an area wh ere the Partners apparently,
and without objection, had a method of paying Byron’s
children based on what tax law permitted without any
identification. There has been no testimony explaining those
details to this Court. Theref ore this Court will not make an
award of sums due at this time. The Partners chose, years ago,
to handle these expenses in this fashion. This Court has no
facts before it to rule otherwise today. The Partners are left
with the way they chose to do business years ago.

(Emphasis added.) Because both brothers’ clai ms involved years of going back through
records complicated by thei r agreed-upon reporting meth ods, the court implicitly
concluded that neither Wayne’s hog-check claim nor Byron’s claim that Wayne had
improperly classified payments to Byron’s children as personal draws were supported by
the record.
The district court acted within its disc retion by so concluding. Like Wayne’s
personal-draws argument, both claims here would require the court to sift back through
years of unclear financial records. Although the hog checks were partnership proceeds, the
court found that Byron’s children were en titled to compensation for the labor they
performed. Based on the evid ence before it, the court did not abuse its discretion by
17
concluding that neither Wayne nor Byron met their respective burdens of proof concerning
the hog checks and payments to Byron’s children.16
III. The district court acted within its disc retion by confirming the senior judge’s
awards.

Byron contends that the district court sh ould not have confirmed the senior judge’s
award concerning replacement costs for th e equipment that went missing from the
partnership shop, the John Deere tractor, and the farming equipment attached to Wayne’s
home. We review the findings of fact confirmed by the court for clear error.
17 Rasmussen,
832 N.W.2d at 797. When reviewing a bench tr ial, we view the record in the light most
favorable to the judgment. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). And we
review the district court’s confirmation of the senior judge’s award—as part of its property
division—for an abuse of discretion. Schoenborn, 402 N.W.2d at 214-15. With this in
mind, we consider Byron’s claims.

16 Once more, Wayne argues that he is entitled to one half of the hog checks as a matter of
law. But just like Wayne’s personal-draws cl aim, the court’s decision to decline to reach
this issue is an aspect of its equitable division of partnership property. Schoenborn,
402 N.W.2d at 214-15.
17 Byron contends that we can review de novo all of the district court’s conclusions that are
based on the senior judge’s findings beca use those findings are based on documentary
evidence instead of testimony. Yet the case that Byron cites to support this proposition, N.
States Power Co. v. Williams , 343 N.W.2d 627, 630 (Minn. 1984), relies on an outdated
version of Minnesota Rule of Civil Procedure 52.01. City of Lake Elmo v. City of Oakdale,
468 N.W.2d 575, 578 (Minn. App. 1991). Rule 52.01 has since been amended to state that:
“Findings of fact, whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous.” Minn. R. Civ. P. 52.01 (emphasis added).
18
Replacement Costs
Byron claims that the district cour t erred by awarding Wayne $81,554 in
replacement costs for the items that went missing from the partnership shop. Wayne paid
a total of $27,000 for property that he neve r received. Accordingly, the senior judge
ordered Byron to return the missing equipment or pay its value. Because the property was
never returned, the senior judge awarded Wayne replacement costs. The record supports
the amount of the award because Wayne incurred both replacement costs and attorney fees
in connection with the missing property. The senior judge reasoned that $40,777 would
compensate Wayne for those costs and the missing equipment. And because this sum
would come from partnership money—half of which already belonged to Wayne—the
senior judge awarded Wayne $81,554. Viewing the record in the light most favorable to
the judgment, the senior judge did not clear ly err by awarding Wayne replacement costs
for the missing equipment.
Byron’s due-process objections to the contra ry are not persuasive. The district court
empowered the senior judge to “decide any di sputes between the parties relating to the
Partnership’s 2019 activities and issue an awar d” accordingly. And the senior judge was
given “the discretion to conduct a one- to two-day hearing,” if he concluded one was
necessary. He determined that it was not. Byron has not shown that the senior judge
abused his discretion by relyin g on the inventory list prepar ed by the auctioneer and a
photograph of the tractor in Byron’s son’s possession.18

18 Byron further argues that the district court did not consider his objections, but the court
considered and rejected his objections in the second post-trial order.
19
Tractor
Next, Byron argues that the record does not support the senior judge’s finding that
he took the John Deere tractor. Wayne’s counsel raised the issue of a John Deere tractor,
valued at $425, to the senior judge after the auctioneer alerted him that Byron and the
younger brother had come to the auction site and removed the tractor. Byron did not deny
doing so. But he contends that because the information came to the senior judge through
a hearsay statement, the award must be reversed.
Hearsay is an out-of-court statement being offered in evidence to prove the truth of
the matter asserted. Minn. R. Evid. 801. Hearsay is genera lly inadmissible. Minn. R.
Evid. 802. But statements by counsel are not evidence. State v. Matthews ,
779 N.W.2d 543, 552 (Minn. 2010). And even if the statement from Wayne’s counsel was
erroneously considered by the senior j udge, the error is harmless unless Byron can
demonstrate that he was prejudiced by its use. Moore v. State, 945 N.W.2d 421, 437
(Minn. App. 2020). To prove prejudice, Byron must show that not considering the
statement might reasonably have changed the outcome of the proceeding. Olson ex. Rel.
A.C.O. v. Olson, 892 N.W.2d 837, 842 (Minn. App. 2017). Because the senior judge could
draw inferences from his experiences with the parties concerning the missing tractor—
including that Byron never denied taking it—and in light of the overall nearly $11 million
distribution split almost evenly between the brothers, Byron has not shown prejudice. See
Pearce v. Village of Edina , 118 N.W.2d 659, 670 (Minn. 19 62) (allowing courts to draw
inferences from the evidence submitted). Harmless errors must be disregarded. Minn. R.
Civ. P. 61.
20
Equipment
Byron asserts that the district court erred by exempting the equipment that was
attached to Wayne’s homestead from the auction. The district court reasoned that the
senior judge—having been appointed to resolve issues arising from the implementation of
the dissolution order—had the authority to exempt the equipment. At this point, the district
court had already ordered that the parties’ homesteads were to be treated as a wash.
Accordingly, the court concluded that it was re asonable to conclude that property affixed
to a homestead should not be subject to auction.
As noted above, the division of partnership property is an equitable decision. Maus,
669 N.W.2d at 42. And a district court sitti ng in equity has wide discretion to fashion a
remedy based on the unique facts of a particular case. Gabler, 756 N.W.2d at 730. Here,
Byron has not shown that the court abused its discretion by treating the equipment attached
to Wayne’s property like the rest of Wayne’s homestead.19
IV. The district court acted within its disc retion by granting Wayne attorney fees.
Byron argues that the district court abused its discretion by awarding Wayne
attorney fees because the record does not support the c ourt’s conclusion that Byron acted
in bad faith. Byron did not challenge the re asonableness of the fees awarded before the
district court. A district court should consider all relevant circumstances when determining

19 Byron further argues that even if the equi pment was not subject to auction, he should
have received half of its valu e because the district court found that it was partnership
property. But he did not make this argument before the district court. We will not consider
arguments raised for the first time on appeal. Thiele, 425 N.W.2d at 582.
21
an award of attorney fees. G r e e n v . B M W o f N . A m . , L L C, 826 N.W.2d 530, 537
(Minn. 2013).
The district court conclude d that Wayne was entitled to attorney fees because Byron
“engaged in bad faith, vexatious, and wanton conduct, and also disobeyed and disregarded
orders.” Some of Byron’s conduct found by the court to justify attorney fees included his
destruction and taking of property, being dish onest, disobeying court orders, and driving
up Wayne’s attorney fees. The record supports these findings. Byron took approximately
$20,000 worth of grain that di d not belong to him and dest royed a padlock Wayne put in
place to prevent additional theft.20 He testified falsely concerning a purported right of first
refusal.21 Byron also took grain in defiance of one order and refused to return Wayne’s
property in spite of another. And Byron cau sed Wayne to incur un necessary fees with
respect to a loan he refused to pay, interfe ring with Wayne’s attempt to buy partnership
equipment before the auction, and his care of the partnership hogs. 22 Further, Wayne’s

20 Byron splits hairs by suggesting that he did not take Wayne’ s property because the
district court found that his behavior with the respect to the grain was “wrong,” not that he
“stole” it. The record supports this finding of bad faith regardless of the specific word used
by the court.
21 At a deposition before trial, Byron testified that he and the younger brother signed a right
of first refusal to partnershi p property in 2017. Wayne paid an expert to analyze the
document, and the expert concluded that it wa s created in 2019 based on analysis of the
ink and paper. At trial, Byron testified that he was mistaken at the deposition, and that he
and the younger brother had cr eated the document in 2017 bu t did not sign it until 2019.
But he never produced the original document allegedly created in 2017.
22 Byron argues that the record does not support this finding because a veterinarian opined
that the hogs were adequately cared for, an d it is normal for some piglets to die during
farrowing. But Wayne’s son found decomposing piglets in the barn, and Wayne incurred
fees attempting to remedy the situation. Because Wayne’s concern was reasonable, the
record supports the court’s finding of bad-faith conduct with respect to Byron’s care of the
hogs.
22
counsel provided detailed billing statements related to the dist rict court’s findings of bad
faith. See Farrar v. Farrar , 383 N.W.2d 436, 441 (Minn. App. 1986) (upholding fees
proved by statements), rev. denied (Minn. May 22, 1986). Accordingly, the district court
did not abuse its discretion by granting Wayne attorney fees.23
In sum, the district court acted within its discretion in di ssolving the brothers’
partnership. The court divided the existing assets and liabilities of the partnership as evenly
as possible under the circumstances and declined to reach claims that would require it to
reach back through years of unclear records. The record supports both the senior judge’s
awards and the district court’s finding that Byron acted in bad faith.
Affirmed.

23 Finally, Byron argues that the district cour t should have held a hearing on the issue of
attorney fees and that the amount awarded is excessive. But because he did not raise either
issue before the district court, we do not consider them. Thiele, 425 N.W.2d at 582.