Motion for Summary Judgment in RALPH LUBINS TIME, et al vs. RICHMAN TRUST, et al| Trellis.Law

On September 20, 2019 a Hearing was filed involving a dispute between Beckerman, Robin, Time, Brenda Deane, Time, Ralph Lubins, and Richman, Harvey, Richman, Marc, Richman Trust, for PROPERTY in the District Court of Dallas County.

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8/28/2020 4:38 PM
FELICIA PITFL
DISTRICT CLEF.
DALLAS CO., TEXA
Rosa Delacerda DEPUT

CAUSE NO. DC-19-15404

RALPH LUBINS TIME, INDIVIDUALLY,AND AS IN THE DISTRICT COURT
INDEPENDENT EXECUTOR 0F THE ESTA TE 0F JUDITH
SHARON RICHMAN, DECEASED, AND AS TR USTEE 0F
THE RICHMAN 2008 REVOCABLE TRUST, AND AS
TR USTEE 0F THE RA LPH L UBINS TIME EXEMPT TR UST;
ROBIN MICHELE BECKERMAN, INDIVIDUALLK AND
AS TRUSTEE 0F THE STEFAN] ALYSON BECKERAMN
EXEMPT TR UST, AND AS TR USTEE 0F THE VICTORIA
TIME BECKERMAN EXEMPT TR UST; AND
BRENDA DEANE TIME, INDIVIDUALLY, AND AS
TR USTEE 0F THE ARIELLE TIME BURSTEIN EXEMPT
TR UST, AND AS TR USTEE 0F THE RAPHAEL TIME
BURSTEIN EXEMPT TR UST, AND AS TR USTEE 0F THE 68TH JUDICIAL DISTRICT
ZEV TIME BURSTEJN EXEMPT TR UST,

PLAINTIFFS,

VS.

RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP;
MARC H. RICHMAN; AND
HARVEY A. RICHMAN,

DEFENDANTS. DALLAS COUNTY, TEXAS

TO DEFENDANTS’ TRADITIONAL
PLAINTIFFS’ RESPONSE
MOTION FOR PARTIALSUMMARY JUDGMENT AND PLAINTIFFS’ CROSS-
MOTION FQR?ARTIAL SUMMARY JUDGMENT
ON THE SAME CLAI'MS'AND EMERGENCY MOTION FOR LEAVE
TO SET CROSS-MOTION FOR HEARING ON SEPTEMBER 14, 2020 WITH
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

COMES NOW Plaintiffs Ralph Lubins Time, individually, and as Independent Executor

offhe Estate ofJudz'th Sharon Richman, deceased, and as Trustee offhe Richman 2008 Revocable

Trust, and as Trustee 0f the Ralph Lubins Time Exempt Trust, Robin Michele Beckerman,

individually, and as Trustee offhe Stefam' Alyson Beckerman Exempt Trust, and as Trustee 0fthe

Victoria Time Beckerman Exempt Trust, and Brenda Deane Time, individually, and as Trustee 0f I

Plaintiffs’ Response t0 Defendants’ 1

Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
the Arielle Time Bursteirz Exemptr'szyst, and as Trustee 0f the Raphael Time Burstein Exempt

Trust, and as Trustee 0f the Zev Time Burstez‘n Exempt Trust (collectively, “Plaintiffs” and/or

“Judith Richman’s Heirs”), and pursuant to Rule 166a 0f the Texas Rules 0f Civil Procedure,

present this Response t0 Defendants’ Traditional Motion for Partial Summary Judgment (the

“Response”) and Plaintiffs’ Cross-Motion for Partial Summary Judgment 0n the Same Claims (the

“Cross—Motion”) and Emergency Motion for Leave t0 Set Cross-Motion for Hearing 0n September

14, 2020 with Defendants’ Motion for Summary Judgment. In support thereof, Plaintiffs would

respectfully show the Court as follows:

MOTION FOR ORDER GRANTING LEAVE TO HAVE CROSS-MOTION SET ON
SAME DAY AS HEARING ON DEFENDANTS’ MOTION
1. Defendants’ Motion'iél‘fc‘éurrent set t0 be heard by this Court 0n September 14, 2020

at 10:00 am. As a result, Plaintifféx’ respohée t0 such motion is not required to be ﬁled until

September 7, 2020—7 days prior to the hearing. Tex. R. CiV. P. 166a.

2. Plaintiffs acknowledge that even in the case 0f a cross—motion for summary

judgment, opposing parties are still entitled t0 twenty-one days’ notice 0f a summary judgment

hearing, unless the Court grants leave t0 permit a shorter notice period. Plaintiffs, therefore, move

the Court for an order granting them leave t0 set the foregoing Cross-Motion for Summary

Judgment (which also serves as Plaintiffs’ response to Defendants’ Motion) set on the same date

as Defendants’ Motion. The basizhs“ fgféPlaintiffs’ motion for leave is simple—Plaintiffs are moving

for summary judgment 0n the exac‘f’é‘végme claims underlying Defendants’ Motion, and the interests

t-hé
ofjudicial economy (especially in time of a worldwide pandemic) dictate that the Court hear

both motions for summary judgmehf lat the same time.

Plaintiffs’ Response t0 Defendants’ 2
Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
3. Plaintiffs’ counsel contacted’Defense counsel regarding the foregoing motion for

leave, requesting that Defendants agree and/or not oppose such relief. Nevertheless, without any

legitimate basis, Defense counselfrerfused t0 agree t0 Plaintiffs’ request. Unfortunately, such

refusal was expected as Defense coﬁlisel has yet t0 even try to coOperate With the Plaintiffs 0n any

matter in this case. Regardless, because 0f Defendants’ response, Plaintiffs have been forced t0

ﬁle the foregoing motion, seeking an‘order graI/lting them leave t0 have this Cross-Motion set for

hearing 0n September 14, 2020 at 10:00 am. along With Defendants’ Motion.

4. If granted, Defendants would still be provided with seventeen (17) days’ notice of

the hearing 0n Plaintiffs” Cross—Motion and since Plaintiffs’ Cross-Motion seeks summary

judgment 0n the exact same claims underlying Defendants’ Motion (except the claim for breach

0f ﬁduciary duty, Which Plaintiffs solely respond t0 herein as opposed t0 moving the Court for

summary judgment thereon) there is n0 prejudice, surprise, or negative impact 0n Defendants

whatsoever. Plaintiffs” sole goal lstopush this case towards a resolution, and an order granting

Plaintiffs leave will undoubtedly d6 jhst that.

5. Plaintiffs’ motion forizlgavégis, thus, made in good faith and solely in order t0

effectuate justice, not for delay.

6. In the alternative, if the Court is prepared t0 deny Plaintiffs’ motion for leave,

Plaintiffs respectfully request that the Court postpone ruling on Defendants’ Motion until after the

Court has considered Plaintiffs’ Cross-Motion for summary judgment.

7. Put simply, it does not make sense, and is instead seems t0 be an extremely

unnecessary waste 0f judicial resources, to consider Defendants’ Motion and Plaintiffs’ Cross—

Motion at separate times.

Plaintiffs’ Response t0 Defendants’ r
_
‘
I
3
Motion for Partial Summary Judgment '&"
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
8. Plaintiffs intend 0n obtaining a setting for this Cross—Motion t0 be heard in the event

this Court denies Plaintiffs’ motion for leave. Plaintiffs Will Contact the clerk to cancel that setting

if and/or when the Court rules on the foregoing. Plaintiffs are also ﬁling the same Motion for

Leave as a separate ﬁling t0 ensure the matter is pre presented t0 the Court 0n an emergency basis.

II.

SUMMARY
A. Summary 0f the Motions fol“, Partial Summary Judgment Before the Court.

9. A11 of the Defendants in this case have moved for partial summary judgment 0n

Plaintiffs” claims for (1) declaratory judgment, and (2) trespass t0 try title, and in addition,

Defendant Marc Richman has also moved for partial summary judgment 0n Plaintiffs’ claims

against him for breach 0f ﬁduciary duty. See Defendants’ Motion at p2.

10. In response, Plaintiffs ﬁle this Cross—Motion, seeking partial summary judgment 0n

the exact same claims underlying Defendants’ Motion (e.g., Plaintiffs’ claims 0f trespass t0 try

title, declaratory judgment, and breach 0f ﬁduciary duty).

B. WARNING — Defendants’ Motion is replete With misrepresentations, misleading
statements, and references t0 “evidence” and case law that do NOT in any way
support the proposition for which they are cited.

11. Before addressinétheblmms underlying Defendants’ Motion and Plaintiffs’ Cross-

Motion, Plaintiffs must warn the Court t0 be cautious When considering Defendants’ Motion.

12. To unearth Defeﬁdarifs’ inténtional misconduct, all one must d0 is review the

evidence cited in Defendants’ Motioh t0 check if it actually supports the proposition for Which

such evidence is cited. A11 material citations are at best misleading, and at worst, intentional

misrepresentations by Defendants and their attorney. Acting in bad faith, Defendants’ Motion not

only takes positions that contradict the evidence cited t0 support those positions, but Defendants’

Motion also takes positions that Simply defy logic. Additionally, Defendants’ Motion misstates

Plaintiffs’ Response to Defendants’ 4
Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment on Same Claims
and misapplies relevant Texas law, 5nd in addition, Defendants’ Motion intentionally fails to

discuss Texas law that Defendaﬁts knbw governs the issues before the Court.

13. Further, Defen‘dants’ Motion presents approximately ﬁve (5) pages 0f What

Defendants claim t0 be “undisputed facts.” See Defendants’ Motion at pp. 3-8. Plaintiffs, however,

take issue with and dispute most 0f such “facts.” See infra.

14. Ultimately, Plaintiffs simply warn the Court 1191 to take the representations made in

Defendants’ Motion as true, but instead t0 carefully verify all of Defendants’ citations t0 evidence

and the law. The Court Will then see that Defendants’ traditional motion for summary judgment is

misleading, packed full 0f blatant misrepresentations, contradictory to well settled Texas law, and

must be denied. Accordingly, as shown herein, Defendants’ Motion should be denied and

Plaintiffs’ Cross—Motion should be_ granted.

III.

OBJECTIONS & MOTION TO STRIKE

15. Plaintiffs obj ect t0 Exhibits A—L attached t0 Defendants’ Motion. Plaintiffs Will ﬁle

speciﬁc objections t0 such exhibits prior t0 the hearing currently set 0n this matter.

16. Plaintiffs respectfully request that the Court rule 0n all 0f Plaintiffs’ objections t0

Defendants” Motion, the evidence attached thereto, as well as all other objections asserted herein,

and Plaintiffs respectfully request that the Court do so by written order prior to ruling on the merits

0f the Motion.

17. Additionally, Plaintiffs move to strike Exhibit A (in its entirety), Exhibit B (portions
thereof), Exhibits C-L (in their entirety), land Exhibit J (portions thereof). Like the objections

mentioned above, Plaintiffs willﬁﬁl’e their motion t0 strike along with their speciﬁc obj actions t0

the same evidence prior t0 the hearing currently set 0n this matter.

Plaintiffs’ Response t0 Defendants’ 5
Motion for Partial Summary Judgment &
Plaintiffs’ Cross—Motion for Summary Judgment on Same Claims
Objection t0 Unpled Afﬁrmative Defenses.

18. In response t0 the claims asserted by Plaintiffs in this case, Defendants’ First

Amended Answer asserts only two (2) afﬁrmative defenses: (1) that no ﬁduciary duty is owed by

any of the Defendants to any 0f the Plaintiffs, and (2) estoppell. Defendants’ First Amended

Answer at W 7—8. Nevertheless, Deféﬁdant Marc Ri’chman seeks summary judgment on Plaintiffs’

claim against him for breach of ﬁduciary duty because 0f the statute 0f limitations. See Defendants’

Motion at p.31. Defendant Marc Richman did not (nor did any other Defendant) plead the

afﬁrmative defense 0f statute 0f limitations and as such, he cannot obtain summary. judgment on

Plaintiffs claim as a result thereof. See Roark v. Stallworth Oil & Gas, Ina, 813 S.W.2d 492, 494

(Tex.1991). Plaintiffs therefore object t0 any consideration by this Court 0f such afﬁrmative

defense.

IV.
PLAINTIFES? SWIVJMMARY JUDGMENT EVIDENCE

19. In accordance withie‘Xas Rule of Civil Procedure 166a(d), Plaintiffs hereby state

their intent t0 use the discovery prqcflﬁc‘it(s)mbe‘19w, which are not on ﬁle with the clerk 0f the court,

as summary judgment proof, in support 0f both Plaintiffs’ Response t0 Defendants’ Motion for

Partial Summary Judgment as well as Plaintiffs’ Counter/Cross Motion for Partial Summary

Judgment:

a. Defendant Harvey Richman’s Responses t0 Ralph Lubins Time’s First Set of
Requests for Production;

b. Defendant Harvey Richman’s Responses to Ralph Lubins Time’s Second Set 0f
Requests for Production;

(

‘
Speciﬁcally, Defendants assert
r
fﬁthat Plaintiffs are estopped from claiming they are partners in the
a

Richman Trusts.” Id.

Plaintiffs’ Response t0 Defendants’ A
‘
I 6
Motion for Partial Summary Judgment &'
Plaintiffs’ Cross-Motion for Summary Judgment on Same Claims
Defendant Marc Richman’s Responses t0 Ralph Lubins Time’s First Set 0f
Requests for Production;

Defendant Marc Richman’s Responses to Ralph Lubins Time’s Second Set 0f
Requests for Production;

Defendant Richman Trust’s Responses t0 Ralph Lubins Time’s First Set 0f
Requests for Production;

Defendant Richman Trust’s Responses t0 Ralph Lubins’ Time’s Second Set 0f
Requests for Production;

Documents produced by Defendants in response t0 the requests for production
propounded by Plaintiffs;

Excerpts from the Oral Deﬁosition 0f Defendant Marc Richman; and

Excerpts from the Orél Deposition of Defendant Harvey Richman.

20. In further support 0f the facts and positions taken in this response / counter—motion

for partial summary judgment, Plaintiffs rely on the pleadings 0n ﬁle with this Court, the

Declaration 0f Michael B. Tobolowsky (attached hereto and incorporated herein by reference), as

well as all other summary—judgment evidence in the appendix ﬁled with this response / counter-

motion for partial summary judgment, including the following, Which are hereby incorporatad

herein by reference:

a. Stipulation and R1113 11 Agreement Re: Abstracts 0f Title to Properties Underlying
Claim for Trespass t0 Try Title, ﬁled and effective April 7, 2020;

b. Certiﬁed Deed t0 304- 306 S Record Street, Dallas, Texas 75202, ﬁled 0f record
I

on November 3 1967

c. Certiﬁed Deed t0 21 17—2129 Greenville Avenue, Dallas, Texas 75206, ﬁled 0f
record on March 10, 1969.

d. Certiﬁed Deed t0 5632 Richmond Avenue, Dallas, Texas 75206, ﬁled 0f record on
October 16, 1972.

e. Proposed Ownership Redemption Agreement, dated April 2015.

f. Sworn Declaration by Marc Richman, dated January 2020.

Plaintiffs’ Response t0 Defendants’ 7
I

Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment on Same Claims

1’13;
g, Assumed Name Certiﬁczate‘ ﬁled by Richman Trust general partnership, dated 1983.

h. Assumed Name Certiﬁcate ﬁled by Richman Trust general partnership, dated 1993.

i. Assumed Name Certiﬁcate ﬁled by Richman Trust general partnership, dated 201 5.

j. Signed Richman Trust Partnership Agreement, dated January 23, 2019.

k. Last Will and Testament of Judith Richman (aka Judith Time).

1. 2008 Richman Trust Agreement.

m. Assignment of Partnership Interest, dated January 2010, but made effective August
1, 2009;

n. Sworn Declaration 0f Plaintiff Ralph Lubins Time;

o. Schedule K-ls Issued by the Richman Trust partnership t0 Plaintiffs from 2009-
2018.

p. Richman Trust Paﬁﬁéfship reéOrds (3f draws to partners.

q. Richman Trust Statement 0f Assets, Liabilities and Equity (2008 — 201 5).

r. Amended 2018 Richman Trust Partnership records 0f draws t0 partners.

s. Defendants’ redemption demand letter dated September 21, 2018.

t. Texas Franchise Tax Ownership information (2010 — 2016).

u. Richman Trust Partnership 2018 and 201 9 form 1099—INT issued t0 Plaintiffs.

V. Richman Trust form 1065 partnership return for year 2009.

W. Collection of emiaiilis erm Defendants Harvey Richman and Marc Richman from
2013 through 2015.

x. Richman Trust Partﬁéfship checks issued as draws to Plaintiffs.

y. November 19, 2018 vlgegal invoice issued by Katherine Compton to the Richman
Trust Partnership.

z. Correspondence from Victor Richman dated August 12, 1982.

Response t0 Defendants’
Plaintiffs’ 8 .

Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment on Same Claims
V.
FACTS

21. This case arises ouf 6f feal e’state located, primarily, in Dallas County, Texas, and a

family’s dispute regarding the true OWners of such real estate. The family in question is the Richman

family and the relevant facts are és follows.

A. Background Facts.

22. Victor Richman and his Wife, Maryon Richman, had three (3) children—Judith

Richman, Harvey Richman, and Marc Richman (collectively, the “Richman Siblings”). See

Defendants’ Motion at p.3. Plaintiffs are the children 0f the eldest Richman Sibling, Judith

Richman, and thus, the grandchildren of Victor and Maryon Richman.

23. Victor Richman was a prominent tax attorney Who practiced in that ﬁeld from

approximately 1935 until he passed away in 1987. See Exhibit A at 14:6-16.
24. Over time, Victor andMaryon Richman acquired various ownership interests in real

estate located throughout the State 0f Téxas (and some in the State 0f Illinois), Which at some point

(whether inter—Vivos 0r testamenfar§) 'the couple then transferred to their children, in equal shares

0f undivided interests. Victor and Maryon Richman also, from time to time, acquired pieces of real

estate for and directly in the names of their children both individually and/or through trusts created

for each of their children. Other times, properties were acquired by 0r for the Richman Siblings

through what is known as the Richman Trust Partnership, a Texas general partnership.

25. If properties were being acquired by 0r for the partnership, like for example 600

Jackson Street, Dallas, Texas 75201, the deed conveying such property did so t0 the Richman Trust

Partnership. Otherwise, it was cl‘ear'tha‘t'Vi‘ctor and Maryon Richman were acquiring properties in

the name 0f the Richman Siblings thh the intention that such properties would be owned by their

children, as co—owners, not partners. Xécordingly, when properties were acquired for the Richman
‘ A

l
'V

Plaintiffs’ Response t0 Defendants’ 9
Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
Siblings, each sibling acquired a one-third (1/3) undivided ownership interest in each such piece 0f

real estatez. Thus, Whenever the Richman Siblings acquired a piece of real estate, the relevant

deed (all 0f Which were ﬁled 0f record) transferring interest in such real estate was Clear and

unequivocal as t0 Whether the property was being acquired by the partnership 0r by the Richman

Siblings in equal shares 0f undivided interests.

26. Regardless, there is n'o que'sﬁon it was always Victor and Maryon Richman who

funded the acquisition 0f propertieé, Whether in the names of the Richman Siblings 0r Richman

Trust partnership. Exhibit A at 215:13 —-
216:10; 223:17-19 (“when Pop bought 304 and 306”);

57:17-21; Exhibit F at 31:15-18; sée Defendants’ Second Amended Counterclaim at {I20 (“all 0f

the properties Which had been contributed by Grantor, Victor Richman and his wife, Maryon

Richman”).

27. Judith Richman passed away in August 2008. At that time, her heirs (e.g.,

Plaintiffs) were admitted into the partnership as general partners, collectively holding Judith’s 1/3

interest therein. And although same was done With the consent of Defendants, because 0f a dispute

that arose between the parties in 0r about 2015/2016, Defendants now try to claim Plaintiffs were

never admitted as partners. Addltlonally, Because of the above referenced dispute, Defendants also

began asserting that the partnership BQned certain properties that Victor and Maryon Richman had

clearly bought for the Richman Siblings; in their individual capacities. Unfortunately, by 2018 the

parties’ dispute ‘came t0 a head When, maintaining their frivolous claim that Plaintiffs are not

partners of RTP, Defendants sent Plaintiffs a demand letter, demanding that Plaintiffs agree on a

“redemption value” which the partnership could pay them to redeem What had originally been

2
Some properties were acquired in equal one-sixth (1/6) shares, with each 0f the three (3) siblings receiving
two (2), one-sixth (1/6) shares (collectively a one-third (1/3) share) undivided ownership interest in the entire interest
being acquired.
Plaintiffs’ Response t0 Defendants’ 10
Motion for Partial Summary Judgment & ¥

Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
Judith’s 1/3 interest in the partnership. By sodoing’, Plaintiffs had no more than one (1) year to

either resolve the dispute 0r ﬁle suit to resolve the dispute. Despite making efforts t0 put an end t0

the family ﬁght, Defendants maintained their blatantly unreasonable positions, forcing the Plaintiffs

t0 initiate this lawsuit.

28. In this case, Plaintiffs (as the heirs of Judith Richman and the Executor of her Estate)

have asserted a claim against Defendant Richman Trusts for declaratory judgment and trespass t0

try title so as t0 conﬁrm that Plaintiffs, collectively, own an undivided one-third (1/3) interest in the

properties set forth below, and that Plaintiffs were properly admitted as general partners of the

Richman Trust Partnership in pléce 6f Judith Richman, effective August 1, 2009. Defendant

Richman Trusts, on the other hand, asserts that the Prpperties below are “owned only by RTP” (e.g.,

ahdigtshgt‘ Plxaiﬁ‘tiffs
the Richman Trust Partnership) are not partners in RTP.

29. Plaintiffs’ claim pertaining to ownership 0f properties purchased by Victor and

Maryon Richman for the Richman Siblings include: (1) 304—306 S. Record Street, Dallas, Texas

75202 (
“Record Street”); (2) 2117—2129 Greenville Avenue, Dallas, Texas 75206 (“Greenville

Ava”); and (3) 5632 Richmond Avenue, Dallas, Texas 75206 (“Richmond Ava”) (collectively,

the “Properties”). See Plaintiffs” Original Petition at W 41-48; see Exhibit A at 215:13 — 216:10;
223:17-19 (“When Pop bought 304 and 306”); 57:17—21; Exhibit F at 31:15-18; see Defendants’

Second Amended Counterclaim at 1120 (“all of the properties Which had been contributed by

Grantor, Victor Richman and his Wifé, Maryon Richman”).

VI.
RESPONSE / CROSSEMOTION FOR SUMMARY JUDGMENT

30. As set forth above, there is no dispute between the parties regarding any material

fact pertinent t0 Plaintiffs’ Claims for declaratory judgment, trespass t0 try title, or breach 0f

ﬁduciary duty. And When applying the abova undisputed/agreed facts to well settled Texas law,

Plaintiffs’ Response to Defendants’ 11
Motion for Partial Summary Judgment &
Plaintiffs’ Cross—Motion for Summary Judgment on Same Claims
there is only one conclusion that can be drawn—that Plaintiffs’ are entitled to judgment as a matter

0f law and, therefore, Defendants’ Mq’gion should be denied and Plaintiffs’ Cross—Motion should

be granted in its entirety.

31. The issues underlying both Defendants’ Motion 5nd Plaintiffs” Cross—Motion fall

into one of two categories: (1) disﬁﬁib regariding iﬁterpretation 0f deeds to three Dallas County

properties (e.g., dispute over ownership 0f real properties), 0r (2) dispute regarding Whether

Plaintiffs are partners in the Richman Trust Partnership (“RTP” and/or the “Partnership”). Portions

of Plaintiffs” claims for declaratory judgment and breach 0f ﬁduciary duty fall into both categories

(1) and (2), While Plaintiffs’ trespass to try title claim only pertains t0 dispute number (1).

A. Traditional Summary Judgment Standard.

32. Both Defendants’ Motion and Plaintiffs’ Cross—Motion seek summary judgment

under the traditional standard. T6 préVéil 6n a traditional motion for summary judgment, the party

moving for summary judgment must show there is n0 genuine issue 0f material fact and that as a

result, it is entitled t0 judgment as Va'tlr‘iatter 0f law. :See Tex. R. CiV. P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. erldmg, 289 S.W.3d §44, 848 (Tex. 2009). A defendant Who moves
for traditional summary judgment must either negate at least one essential element 0f the non—

movant’s cause 0f action or prove all essential elements 0f an afﬁrmative defense. See Randall ’s

Food Midst, Inc. v. Johnson, 891 S.W.Zd 640, 644 (Tex. 1995).

33. Further, When both parties move for summary judgment 0n the same claims—was is

the case heremeach parity must carry its own burden and neither can prevail because of the failure

0f the other t0 discharge its burden. See Guynes v. Galveston County, 861 S.W.Zd 861, 862

(Te.1993); Dallas Indep. Sch. D%Ei 'I/lfz'ﬁzan, 27 S.W.3d 220, 226 (Tex.App.—Da11as 2000, pet

denied).

H
'

Plaintiffs’ Response to Defendants’ i

12
Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
B. Defendants Intentionally Misrepresent the Facts and Evidence.

34. Defendants’ Motion intentionally and consistently misrepresents the facts and

evidence related to Plaintiffs’ claim that they were accepted and admitted as partners 0f RTP.

Fortunately, Defendants misrepresentations and misleading arguments are so preposterous on their

face that it is obvious any reasonable and fair—minded person would reach the same conclusion—

that the Defendants’ position is uﬁSuppOrtéd by the summary judgment evidence and was instead

contrived after the dispute between the parties arose for litigation purposes. See First United

Pentecostal Church ofBeaumont v. Parker, 514 S.W.3d 214 (Tex.2017). Defendants’ evidence 0n

this issue is “so weak as t0 d0 n0 more than create a mere surmise or suspicion” and as a result,

such evidence is insufﬁcient t0 obtaiﬁ summary judgment as requested in Defendants” Motion, and

such evidence does not create an issue 0f material fact sufﬁcient t0 overcome Plaintiffs’ Cross-

Motion. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex.2014). Likewise, such evidence fails

t0 disprove any of the essential elements 0f the relevant claim as a matter 0f law as required when

a Defendant moves for summary judgment on a Plaintiff’s claim. Cantey Hanger, LLP v. Byrd,

467 S.W.3d 477, 481 (Tex.2015); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 7O (Tex.2015);

Friendswood Dev. Co. v. McDchéé & C0,, 926 S.W.zd 280, 282 (Tex.1996). Accordingly,

Defendants failed t0 satisfy the burdenimposed 0n summary judgment movants and, therefore,

Defendants’ Motion must be denied:

35. As shown through a review of Defendants’ purported summary judgment evidence,

there is not a scintilla 0f competent summary judgment evidence t0 support the facts 0r positions

asserted in Defendants’ Motion. That is Why none of the evidence attached t0 Defendants’ Motion

supports any ofthe material facts for Which they are cited. There is, however, undisputed competent

summary judgment evidence that supports each essential element 0f each of Plaintiffs claims

Plaintiffs’ Response t0 Defendants’ 13
Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
underlying the Motion and Cross—Mbtibn. Accordingly, the Motion should be denied and the Cross—
x

Motion should be granted.

C. Dispute Regarding Ownership 0f Three (3) Dallas County Real Properties.

36. Plaintiffs’ ﬁrst claim on Which all parties seek summary judgment is Plaintiffs’ claim

for declaratory judgment and trespass t0 try title, conﬁrming that Plaintiffs are the rightful owners,

collectively, 0f and t0 an undivided one—third (1/3) interest in each of the following real properties

located in Dallas County, Texas:

a. 304—306 Record Street, Dallas, Texas 75202;

b. 21 17—2129 Greenville Avenue, Dallas, Texas 75206; and

c. 5632 Richmond Avenué, Dallas, Texas 75206.

37. Defendant Richman' Tfust, 0n the other hand, asserts that each of the above
>

Properties are owned ‘the Richman Trust Partnership. See Generally Defendants”
entirely by

Motion.

38. Fortunately, Plaintiffs agree with Defendants~determination 0f ownership of the

Properties is a conclusion of law‘to be reached by the Court. See Defendants’ Motion at p.24; see

also Faust v. OZdAmerican County Mut. Fire. Ins. C0. ,
977 S.W.2d 783, 787 (TexApp. Fort Worth,

1998). Plaintiffs, however, disagree With Defendants’ recitation 0f relevant law as Defendants’

Motion (1) fails t0 address all applicable Texas law 0n the issue 0f property ownership, and (2)

’thé't
incorrectly applies the relevant laws afe cited.

39. The parties do not dispute the existence 0r validity of the three (3) deeds to the

Properties. Exhibit B; Exhibit G. Nor do the parties dispute the fact that each deed transfers,

Whether through trusts 0r directly to the individual, an undivided one-third (1/3) interest in each 0f

the Properties t0 Judith Richrﬁan, Harvey Richman, and Marc Richman, respectively. Id. The

Plaintiffs’ Response to Defendants’ 14
Motion for Partial Summary Judgment &
Plaintiffs’ Cross-Motion for Summary Judgment 0n Same Claims
parties simply disagree Whether such deeds transferred title t0 the grantees, as stated in the deeds,

0r whether they transferred title t0 the Richxhan Trust Partnership but in the grantees’ names. The

Court, thus, is left to determine the meanings 0f “undiVided interests” and related language used in

the deeds so as to ascertain the true owners ~0f~the PrOperties.

40. When properly applying the undisputed material facts to all relevant Texas law,

there is only one conclusion that can be reached—that Plaintiffs are the rightful owners 0f and t0

an undivided one—third (1/3) interest in each of the Properties, and Richman Trust is not and has

never been the owner 0f such Properties.

I. Declaratory Judgment.

41. Plaintiffs and Defendant Richman Trust both seek summary judgment on the judicial

declarations requested in Plaintiffs? Original Petition regarding ownership of the Properties, Which
U ;

amount t0 a judicial declaration thaktj:

a. Judith Richman, anciijﬁbw Plaintiffs as her heirs, own an
undivided ong-third (1/3)
interest in Record Spyéet, Greenvillc Ave” and Richmond Ave.

See Plaintiffs’ Original Petition at {[5 1.

a) Declaratory Judgment is an Appropriate Cause 0f Action.

42. Defendants assert that a declaratofy judgment is not the proper vehicle t0 determine

the owners of the Properties, but that Plaintiffs’ claim for trespass t0 try title is the sole method for

doing so. See Defendants’ Motion at p.22. Although Plaintiffs have also brought a claim for

trespass t0 try title, Plaintiffs assert that Defendants are wrong and that the declaratory judgment

act is an appropriate vehicle t0 determine the owners of the Properties.

43. It is true that When :eXaS’ trespass to try title statute governs a party’s substantive

claims, that party may not proceed uncle} the Texas Uniform Declaratory Judgment Act. Kirwan v.

Plaintiffs’ Response to Defendants’ 15
Motion for Partial Summary Judgment &
Plaintiffs’ Cross—Motion for Summary Judgment on Same Claims
Garvber, 366 F.Supp.3d 818 (WD. Tex.2019); see also Kinkins v. Jinkins, 522 S.W.3d 771 (App.

1 Dist. 2017, rehearing en bane denied). That is merely not the case here.

44. Pursuant t0 the Texas Uniform Declaratory Judgment Act, “[a] person interested

under a deed...or Whose rights, status, 0r other legal relations are affected by a statute...[or]

contract. . .may have determined any question 0f construction. . .arising under the instrument,

contract. .and obtain‘.'a' declaration of 0r other relations
statute. . .
[or] . rights, status, legal

thereunder.” Tex. CiV. Prac. Rem. COde § 37.004(a).

‘

45. Plaintiffs’ claim fof declaratory judgment mirrors that of Section 37.004(a)—

”
Plaintiffs, who are “interested under three (3) deeds t0 the Properties, seek a declaration of their

“ownership rights and status (and the title conveyed) under the three (3) deeds t0 the Properties”

and Plaintiffs do so by requesting that the Court “construe the three (3) deeds t0 the Properties.”

See Tex. CiV. Prac. Rem. Code § 37.004(a); See Plaintiffs’ Original petition at ﬂ 53. Put differently,

Plaintiffs seek a judicial declaration of their interests (and, therefore, Judith Richman’s interests)

under each 0f the three (3) warranty deeds t0 the Properties. This was the exact scenario in the

2012 case, Richmond v. Wells, where the Court held that the plaintiffs’ claims were property

brought as claims for declaratory judgfhent. See Richmond v. Wells, 395 S.W.3d 262 (App. 11 Dist.

2012, rehearing overruled). Further, agglaim for declaratory judgment regarding ownership interests

conveyed under a deed is particularly}appropriate When the deed/instrument t0 be construed is in

the chain 0f title. See Walker. v. Foss, 930 S.W.2d 701 (App. 4 Dist. 1996). And fortunately, the

parties have entered into a stipulation regarding the three (3) deeds t0 the Properties (the

“Stipulation”), and pursuant thereto, it is undisputed that each 0f the three (3) deeds are in the

relevant chains 0f title. See Exhibit B.

Plaintiffs’ Response to Defendants’ I
'
I
16
Motion for Partial Summary Judgméh‘t &
'

Plaintiffs’ Cross—Motion for Summary Judgment on Same Claims
b) Construction 0f the Three (3) Warranty Deeds t0 the PrOperties.

46. Plaintiffs’ declaratory judgment claim (and trespass t0 try title claim) requires this

Court t0 construe, as a matter 0f law, each 0f the three (3) warranty deeds t0 the Properties in order

t0 determine Whether Plaintiffs, collectively, own an undivided one-third (1/3) interest in each 0f

the Properties 0r if instead the Properties are all owned entirely by Defendant Richman Trusts.

Certiﬁed copies 0f each 0f the three (3) relevant warranty deeds are attached hereto as Exhibits C-

E and are incorporated herein by reference.3

1. The Deeds are Unambiguous.

47. When construing a deed in Texas, the ﬁrst iséue a court must address is Whether the

deed is ambiguous. Gore Oil C0. v. Roosth, 158 S.W.3d 596 (Tex.App. Eastland 2005). And

whether a deed is ambiguous is éiWayS a questién 0f law for the Court. Reilly v. Rangers

Management, Ina, 727 S.W.2d 527 (Tex.1987); State v. Beeson, 232 S.W.3d 265 (TexApp.

Eastland 2007). Courts may only construe a deed as a matter of law if it is not ambiguous (e.g.,

unambiguous), however, Texas Courts seldom ﬁnd deeds t0 be ambiguous. Gore Oil C0. v. Roosth,

158 S.W.3d 596 (TexApp. Eastland 2005); but see J Jiriam Moore, Ltd. V. Greer, 172 S.W.3d

609 (Tex.2005) (deed held ambiguous but only because one clause “conveys nothing” While another

clause “conveys everything”). Fortunately, none 0f the parties in this case have asserted that the

are‘yavmlgi‘g'ﬁoﬁ‘s.
three (3) deeds in question In fact, as shown by the parties’ Stipulation and

agirééﬁ'IVthat
Defendants’ Motion, the parties the deeds are unambiguous. See Exhibit B. And When

neither party asserts that the deed. is ambiguous, the deed Will

Case Info

Judge

HOFFMAN, MARTIN Track Judge’s New Case

Case No.

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Document Filed Date

August 28, 2020

Case Filing Date

September 20, 2019

County

Parties

BARGER, JESSICA Z Attorney for the Defendant
BECKERMAN, ROBIN Plaintiff
COHEN, DAK TUPPER Attorney for the Plaintiff
COMPTON, KATHERINE A Attorney for the Defendant
MARTIN, JEREMY Attorney for the Plaintiff
RICHMAN, HARVEY Defendant
RICHMAN, MARC Defendant
RICHMAN TRUST Defendant
TIME, BRENDA DEANE Plaintiff
TIME, RALPH LUBINS Plaintiff
TOBOLOWSKY, MICHAEL Attorney for the Plaintiff
Michael Lilley Attorneys for Defendants
Kenneth Fair Attorneys for Defendants
Katherine Stark Attorney

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Hearing: RALPH LUBINS TIME, et al vs. RICHMAN TRUST, et al

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