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

On September 20, 2019 a Motion,Ex Parte 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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FILED
7/28/2020 1:06 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kevin Molden DEPUTY

NO. DC-19-15404

RALPH LUBINS TIME, Individually, and IN THE DISTRICT COURT
as Independent Executor 0f the Estate 0f
Judith Sharon Richman, Deceased, and as
Trustee 0f the Richman 2008 Revocable
Trust, and as Trustee 0f the Ralph Lubins
Time Exempt Trust;
ROBIN MICHELE BECKERMAN,
Individually, and as Trustee 0f the Stefani
Alyson Beckerman Exempt Trust, and as
Trustee 0f the Victoria Time Beckerman
Exempt Trust; AND,
BRENDA DEANE TIME, Individually,
and as Trustee 0f the Arielle Time Burstein
Exempt Trust, and as Trustee 0f the Rafael WWWWWWWWWWWWWWWWWWWWWWWWWWW

Time Burstein Exempt Trust, and as
Trustee 0f the Zev Time Burstein Exempt 68TH JUDICIAL DISTRICT
Trust,

Plaintiffs/Counter-Defendants,

RICHMAN TRUSTS, a Texas general
partnership; MARC H. RICHMAN; and
HARVEY A. RICHMAN,
Defendants/Counter-Plaintiffs. DALLAS COUNTY, TEXAS

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants Richman Trusts, a Texas general partnership (“RTP”), Marc H. Richman

(“Marc”), and Harvey A. Richman (“Harvey”) (collectively “Defendants” 0r “Counter-

Plaintiffs”), pursuant t0 Texas Rule 0f Civil Procedure 166a, move for partial summary judgment

against Plaintiffs (herein “Plaintiffs” or the “Heirs”). Speciﬁcally, Defendants move for

traditional partial summary judgment (the “M0ti0n”) as t0 the following of Plaintiffs’ claims: 1)

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 1
4814—3046—7779.4
declaratory judgment; 2) trespass t0 try title; and 3) breach 0f ﬁduciary duty.1 These claims

made by Plaintiffs were brought despite clear statutory authority negating them and a lack 0f any

basis in law existing t0 support such claims, Defendants are entitled t0 summary judgment.

SUMMARY OF ARGUMENT
Plaintiffs’ claims for: 1) declaratory judgment that the Plaintiffs are partners in RTP; 2)

trespass t0 try title and related declaratory judgment that they own an undivided 1/3 interest in

the Properties in Dispute; and 3) breach 0f ﬁduciary fail as a matter 0f law, and summary

judgment should be granted and these claims dismissed for the following reasons:

First, Plaintiffs declaratory judgment claiming they are partners in RTP based upon an

assignment executed over 16 months after Judith Richman’s death fails as the Judith Richman

Estate only had a creditor’s redemption interest in the partnership, and an assignment 0f that

interest does not make the assignees partners, only creditors 0f the partnership. In addition,

neither Harvey nor Marc signed the assignment document consenting t0 make the Heirs partners

in RTP.

Secondly, Plaintiffs’ trespass t0 try title claim and declaratory judgment claim that they

own an outright 1/3 interest in 304 S. Record, Dallas, Texas 75202, 306 S. Record, Dallas, Texas

75202, 21 17-2129 Greenville Avenue, Dallas, Texas 75206 and 5632 Richmond Avenue, Dallas,

Texas 75206 (collectively, the “Properties in Dispute”), fail as Defendant RTP has equitable title

t0 the Properties in Dispute that is superior t0 legal title Plaintiffs’ claim. In addition, a

declaratory judgment is an improper cause 0f action t0 establish title t0 property.

Finally, Plaintiffs’ breach of ﬁduciary duty claim fails as there is n0 ﬁduciary duty owed

t0 creditors, and since the Plaintiffs were only creditors 0f the partnership not partners, neither

the partnership nor the partners owe any ﬁduciary duty t0 creditors as a matter 0f law. Plaintiffs

1
Pursuant t0 Tex. R. CiV. P. 166a(d) Defendants intend t0 use unﬁled discovery products as summary
judgment proof.
DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 2
4814-3046-7779.4
are not tenants—in-common and, therefore, there is n0 ﬁduciary duty owed t0 them. Since there is

n0 ﬁduciary duty, there cannot be a breach 0f that duty.

I. Undisputed Facts

Victor “Victor” and Maryon “Maryon” Richman had three children — Judy Richman

(Hereinafter “Judy,” “Judith,” 0r sometimes called by her married name “Judy Time”), Harvey

and Marc. Declaration 0f Marc Richman dated July 24, 2020 (“Richman Dec.”) at 11
2.

In 1955, Victor and Maryon created 2 Trusts for each child (6 in total) and 0n their

formation combined them into a partnership at various times called Richman Trusts, Richman

Trusts Investments, and/or Richman Trusts Partnership (all deﬁned above as “RTP”). May 7,

2020 Deposition 0f Marc H. Richman dated May 7, 2020 (“MR Depo.”), 21:8-17; 21:23-22:1,

22:8-12; Harvey Richman Deposition Dated July 9, 2020 (“HR Depo.”), 31:19-23; 36:20-23;

36:25-37:1. Each 0f the 6 Trusts terminated when the beneﬁciary turned 30. MR Depo. 23:5-13;
HR Depo. 32:8-13. The last beneﬁciary turned 30 0n April 17, 1975. From that time 0n, Judy,

Harvey, and Marc were individual equal partners in RTP. MR Depo. 26:7-23.
Victor and Maryon funded RTP, and RTP purchased numerous real properties (the “RTP

Partnership Properties”) over the years. Richman Dec. at 11 6; MR Depo. 30:14-23; 31:13-32:1;

Deposition 0f Ralph Lubins Time dated June 9, 2020 (“RLT Depo.”) 153:9-13. Some 0f the RTP

Partnership Properties were purchased in the name 0f the beneﬁciaries (partners), previously

deﬁned as the “Properties in Dispute”. Richman Dec. at 11
7. In addition, Victor and Maryon

funded RTP, and RTP funded the RTP Partnership Properties in the name 0f the RTP. Richman

Dec. at 11 8.

At all times since RTP’s inception in 1955, all the purchase prices 0f the RTP Partnership

Properties were paid by RTP, and all income and expenses relating to RTP Partnership

Properties were paid into and out 0f one partnership bank account. MR Depo. 30: 14-23; RLT
DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 3
4814—3046—7779.4
Depo. 153:9-13. As shown below, the deposition testimony 0f Plaintiffs and Marc Richman

agree that n0 individual partners ever used any 0f the RTP Partnership Properties, including the

Properties Dispute, for their own purposes. They were all purchased by RTP, operated and

controlled solely for the use and beneﬁt 0f RTP. Richman Dec]. 11 13; Motion Pg. 4,

1T 4 (below).

Victor totally managed and controlled RTP until about 1985 when his health began t0

fail. The RTP Partnership Properties were all managed and controlled by either Victor as the

Grantor 0f the initial trusts and/or Manager 0f RTP, and after 1985, by Marc as the Managing

Partner of RTP. MR. Depo. 24:11-17. Marc has remained managing partner t0 this day. MR
Depo. 16:4-1 1.

Since the partnership has never had a formal written partnership agreement, it is a general

partnership under Texas Law. MR Depo. 32:12-24; BDT Depo. 53:5-8. Since there was n0

partnership agreement, the Business Organizations Code governed all management and

ownership issues. Tex. Bus. Org. Code § 152.002(a).

The partners 0f RTP always intended for RTP to retain ownership of the RTP Partnership

Properties, including the Properties in Dispute, as the following indicia 0f ownership show:

o All 0f the RTP Partnership Properties were purchased With partnership funds.
Richman Dec. 1W 6, 8 and 13. MRDepo. 30:3-23, MR
Depo. 215:11-216:5 (RTP
Partnership Properties), HR Depo. 31:6-18; RLT Depo. 154:17-155:9, 155:11,
159:13-17, 160:2-6, Deposition 0f Brenda 16, 2020 (“BDT
Dean Time, dated June
Depo.”) 19:5-6, 19:13, 19:16-17, 19:19, 21:2-5, Deposition of Robin Michelle
Beckerman dated June 19, 2020 (“RMB Depo”) 13:1-4, 13:20-23 (304 S. Record);
RLT Depo. 162:3-5, 162:7, 162:13-15, BDT Depo. 22:25-23:4, 23:25-24:4, RMB
Depo. 15:14-17, 16:11-12, 16:14, 16:22-24 (306 S. Record); RLT Depo. 163:16-19,
164:13-15, BDT Depo. 26:10-18, RMB Depo. 18:21-24, 19:8-11(Greenville); RLT
Dep0.166:16-167:2, BDT Depo. 30:20-22, 31:9-12, RMB Depo. 21:3-5, 21:9-11
(Richmond).
o RTP federal tax returns showed the RTP Partnership Properties owned by RTP.
Richman Dec. at 11 14.
o The RTP Partnership Properties were always operated out 0f the partnership
account and were carried as partnership property 0n all partnership tax returns.

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 4
4814—3046—7779.4
Richman Dec. at 11 15; RLT 16:1-24; 17:2-7; 19:24-20:3 and Exhibit 2 t0 RLT Depo,
RLT Bates N0. 1160-1 161.
o All expenses 0r income related t0 the RTP Partnership Properties were paid out
0f one bank account in the name at 11 16; RLT Depo.
0f RTP. Richman Dec.
154:17-155:9, 155:11, BDT Depo. 14:25-15:2 (304
Depo. 22:13-14, 22:16-19, RMB
S. Record); RLT Depo. 162:16-22\, BDT Depo 25:5-9 (306 S. Record); RLT Depo.

164:6-7, 164:9-12, BDT Depo. 28:10-13, RMB Depo. 20:9-24 (Greenville), RLT
Depo. 167:15-19, RMB 22:12-14 (Richmond).
o All leases contracts 0f any kind relating t0 any 0f the RTP Partnership
and all

Properties have been entered into by the Richman Trusts, a Texas general
partnership. MR Depo. 30:14-23 (RTP Partnership Properties); RLT Depo. 161:3-
16lz5, BDT RMB Depo. 14:22-24 (304 S. Record); RLT
Depo. 21:24-22:1,
Dep0.167:23-25, BDT 24:25-25:1, 25:3-4, RMB 17:18-23 (306 S. Record); RLT
Depo. 164:16-18, BDT Depo. 28:5-9, RMB Depo. 20:4-7 (Greenville); RLT
Dep0.164:16-18, 167:20-22, BDT Depo. 32:3-7, RMB Depo. 22:8-11 (Richmond).
o RTP operated as landlord for RTP Partnership Properties from the time 0f
purchase until the present. Richman Dec. at 11
18.
o All income RTP Partnership Properties from the time 0f purchase until
from the
the present were deposited in the RTP bank account. Richman Dec. at 19; RLT 11

Depo. 159:18-159:23, 16021-16024, BDT Depo. 20:6-10, BDT Depo. 21:15-17,
21:19, RMB Depo 13:5-8. (304 S. Record); RLT Depo.161:18-22, 162:16-19, BDT
Depo. 23:7-23:18, 24:16-20, RMB Depo. 15:18-21, 16:15-21, 17:4-13 (306 S.
Record); RLT Dep0.163:8-11, BDT Depo. 26:25-27:3, RMB Depo. 18:25-19:3,
19:19-24 (Greenville); RLT Dep0.166:9-12, 167:10-12, 167:14, BDT Depo. 30:23-
25, 31:21-24, RMB Depo. 21 :6-8 21 :21-24 (Richmond).
,

o All taxes due 0n the RTP Partnership Properties from the time 0f purchase until
the present have been paid by RTP. MR
Depo. 30:14-23 (RTP Partnership
Properties), RLT Depo. 160:9-160:18; 160:20, BDT Depo. 21:6-8, 21:10-14, RMB
Depo. 13:24-14:1, 14:3 (304 S. Record); RLT Dep0.162:8-10, 162:12, BDT Depo.
24:5-15, RMB Depo. 16:25-17:3 (306 S. Record); RLT Depo. 163:20-22, 163:24-
164:1, BDT Depo. 27:19-22, RMB Depo. 19:12-17 (Greenville); RLT Depo. 167:3-
4, 167:6-7, 167:9, BDT Depo. 31:13-20, RMB Depo. 21 17-20 (Richmond). :

o All expenses 0f the RTP Partnership Properties from the time 0f purchase until
the present have been paid by RTP. Richman Dec.
Depo. 160:25- at 11 21; RLT
161:2, BDT Depo. 21:20-23, RMB Depo. 14:8-21 (304 S. Record); RLT Depo.
162:20-22, BDT Depo. 24:21-24, RMB Depo. 17:14-17 (306 S. Record); RLT Depo.
164:6-7, 164:9-12, BDT Depo. 27:23-28:4, RMB Depo. 20:1-3 (Greenville); RLT
Depo. 167:15-19, BDT Depo. 31:25-32:2 RMB Depo. 21:25-22:7 (Richmond).
o All proﬁts 0f the RTP Partnership Properties from the time 0f purchase until the
present were disbursed through RTP. Richman Dec. at 11 22; RLT Depo. 161:6-
161:1 1, RMB Depo. 14:25-15:2 (304 S. Record), RLT Dep0., 163:1-3, 163:4-
161:13,
6, BDTDepo. 23:7-17, RMB Depo. 17:24-18:4 (306 S. Record) BDT Depo. 26:25-
27:3 (Greenville Avenue), BDT Depo. 32:8-10 RMB Depo. 22: 12-14 (Richmond).
o N0 individual partner 0f RTP ever used 0r exercised control over the RTP
own individual use 0r beneﬁt.
Partnership Properties for their Depo. 31:14- MR
32:1, Depo. 159:24-160:1, 161:6-11, 161:13, 161:14-17, BDT 20:21-21:1,
RLT
22:21-24, RMB Depo. 13:9-10, 13:13-18, 14:4-7, 14:25-15:2, 15:3-6 (304 S.
DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 5
4814—3046—7779.4
Record); RLT Depo. 16123-16125, 162:2, 162:16-19, 163:1-3, 163:4-7, BDT Depo.
23:21-24, 25:10-14, RMB 16:15-21, 17:4-13, 17:24-18:4, 18:5-9 (306 S. Record);
RLT Depo.163:12-15, 164:2-5, 164:19-165-3, 165:4-7, BDT
Depo. 27:4-12, 28:14-
18, RMB Depo. 18:25-19:3, 19:4-7, 19:19-24, 20:9-24, 20:16-19 (Greenville), RLT
Dep0.166:13-15, 167:23-25, 168:1-168:4, BDT Depo. 31:1-4, 32:8-10, 32:11-16,
RMB Depo. 21:6-8, 21:21-24 22:12-14, 22:15-20 (Richmond).
o At n0 time did the individual partners pay any taxes 0r expenses related t0 any
RTP Partnership Properties. MR Depo. 30:14-23 (RTP Partnership Properties);
RLT Depo. 160:9-160:18, 160:20, 16025-1612, BDT Depo. 21:20-23, RMB Depo.
14:8-21 (304 S. Record); RLT Dep0.162:8-10, 162:12 (306 S. Record), RLT
Dep0.163:20-22, 163:24-164zl, 164:6-7, 164:9-12, BDT Depo.27:19-22, 27:23-28:4,
RMB Depo. 19:12-17(Greenville) RLT Dep0.167:3-5, 167:6-7, 167:9, 167:15-19,
BDT Depo. 31:25-32:2 (Richmond).
o N0 individual partner 0f RTP received any direct, individual beneﬁt 0r income
from the RTP Partnership Properties. Richman Dec.at 11 25; RLT Depo. 162:16-
19, RLT Depo. 163:1-3, 163:4-6, 16723-16725, BDT Depo. 31:1-4, 32:8-10, RMB
14:4-7, 14:25-15:2, 16:15-21, 17:4-13, 17:24-18:4, 18:5-9, 19:4-7, 19:19-24, 20:16-
19, 21:9-1 1, 21:21-24. 22:12-14.
o Neither Judy nor Judy’s Estate ever claimed any individual interest in the RTP
Partnership Properties (including the Properties in Dispute, deﬁned below) — her
only claim was an interest in RTP. RLT Depo. 41:1-44:6 and Exhibit 4 thereto;
RLT Depo. 157:8-11 at Exhibit I hereto, RLT Depo. 97:18-98:22, 97:24-99:3 and
Exhibit 7 thereto RLT Bates N0. 498-515, BDT Depo. 27-4:7, 31:1-4, 32:8-10, RLT
Bates N0. 496-5 1 5 at Exhibit I hereto.
o In the probate 0f Judy’s by judicial admission, under oath by the Executor,
Will,
the properties held
by the RTP
were listed as partnership properties, and the
Estate 0f Judy claimed n0 personal interest in any 0f the RTP Partnership
Properties including the Properties in Dispute). RLT Depo. 41:1-44:6 and Exhibit
4 thereto, RLT Bates N0. 304-314; RLT 97:18-99:3 and Exhibit 7 thereto, RLT
Bates N0. 496-515; BDT Depo. 72:13-75:15.
o Judy, during her lifetime, never asserted any personal ownership interest in any
RTP Partnership Properties. RLT Depo. 159:24-160:1, 161:6-11, 161:13, 161:14-
17 (304 S. Record); RLT Dep0.161:22-161:25, 162:2, 162:16-18, 163:1-3, 163:4-7,
RMB Depo. 18:5-9 (306 S. Record); RLT Dep0.163:12-15, 164:2-5, 164:19-165-3,
165:4-7, BDT Depo. 27:4-6 (Greenville), RLT Depo. 166:13-15, 167:23-25, 168:1-
168:4 RMB Depo. 22: 12-14 (Richmond).
o Plaintiffs only asserted Judy’s personal ownership interest in the Properties in
Dispute (deﬁned below) 11 years after Judy’s death in their Original Petition
With the only proof 0f personal ownership being the original 50+ year 01d deeds
0f acquisition. Petition 1W 26-33; 41-48, 52-53.
o The taxing authorities/appraisal districts list RTP Partnership Properties in the
name 0f RTP. Richman Dec. at 11
30.
o RTP has ﬁled Assumed Name Certiﬁcates verifying that RTP was a partnership
0f the three siblings.MR Depo. 44: 10-45:4, BDT 33: 13-19, RTP 14288-14289.

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 6
4814—3046—7779.4
Prior t0 her death, Judy created the 2008 Richman Revocable Trust (the “2008 Trust”),

and upon her death, her Estate (the “Estate”) bequeathed all 0f her property t0 this 2008 Trust.

Richman Dec. at 32. On August 28, 2008, Judy died.

Since there was n0 written partnership agreement, by operation 0f law, her death

constituted a withdrawal from the partnership, and she was n0 longer a partner as a matter 0f

law. Since her death constituted a withdrawal from the partnership neither the Estate, the 2008

Trust, nor the Heirs were ever a partner in RTP as a matter 0f law. Tex. Bus. Org. Code §§

152.501(a); 152.501(b)(7)(A); and 152.406(a)(2)(A). The Heirs own communications conﬁrm

that their own attorneys told them Judy’s partnership interest was transformed into a redemption

creditor’s interest in RTP and an obligation 0f RTP t0 redeem that creditor’s interest in RTP for

the fair market value 0f Judy’s interest 0n the date 0f her death. Id. RLT Bates N0. 595-596, RLT

Bates N0. 690, RLT Bates N0. 582-583, RLT Bates N0. 565, BDT Bates N0. 798.

Plaintiff Ralph Lubins Time testiﬁed during his deposition that he has had two counsel

before his present counsel and neither prior counsel said that the Heirs had a partnership interest.

RLT Depo. 110:9-17, 110:23-1 1 1 :2; 113:10-20. In addition, Plaintiffs ﬁrst counsel, Clint David,

made a partnership redemption interest proposal t0 RTP mirroring the redemption proposal

Ralph advised his siblings, Robin and Brenda, he was willing t0 accept. RTF Bates N0. 6671.

0n the 6th
Thereafter, day 0f January, 2010, a full year and a half after Judy died, the 2008

Trust distributed the redemption partnership interest owned by the Estate t0 the Heirs ( Plaintiffs

in this lawsuit) through an assignment document (the “Assignment Document”). RLT Depo.

62:4-7, MR Depo. 197:15-198:12; RLT Depo. 69: 13-17; 69:19-22.

When Judy’s Estate and the 2008 Trust subsequently transferred this redemption interest

t0 the Heirs over sixteen months after Judy’s death, by the assignment, the interest held by the

Estate was only as a creditor 0f RTP for the partnership redemption interest. Richman Dec. 11
33.

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 7
4814—3046—7779.4
Since upon her death her Estate only owned a creditor’s interest, that is all that could be

transferred, making Judy’s Heirs creditors 0f the partnership for redemption price at the time 0f

Judy’s death. See Tex. Bus. Org. Code §§ 152.501(a); 152.501(b)(7)(A); and 152.406(a)(2)(A).

MR Depo. 196:16-22; HR depo. 22:21-23:3, 24:15-25:2, 25:5-9, 25:11-26:1; 35:18-20, 35:22-

36:19; 54:1-9, 54:1 1-17; 55:16-55:4; 67:9-12; 67:14-19, 83:19-25, 95:14-20; 95:22, 100:4-10.

The Executor 0f Judy’s Estate, Plaintiff Ralph Lubins Time, conﬁrmed this fact in writing. RLT

Depo. 87:20-90:15, 90:17-20 and Exhibit 5 thereto, BDT Bates N0. 805.

At the request 0f the Executor 0f the Estate, and in accordance with the assignment, RTP

immediately began making payments 0f this debt t0 the Heirs directly. Richman Dec. 11
34. After

10 years 0f negotiation, the Heirs and RTP have not been able agree 0n a ﬁnal redemption price

for the Heirs interest in RTP. Richman Dec. at 11 35; Tex. Bus. Org. Code § 152.607. MR Depo.
105:8-25. So, RTP hired an expert appraiser, the appraiser determined an estimate 0f the

redemption price, and based 0n that estimate, RTP made a good-faith offer 0f settlement t0 the

Heirs under the provisions 0f the Texas Business Organization Code. Richman Dec. at 11
36.

RTP paid that appraised price with the required interest Richman Dec. 11
37. For 10 years

the Plaintiffs accepted these payments without question. After the last payment 0n the

redemption amount and 0n the last day 0f the limitations period, the Heirs ﬁled this lawsuit, for

the ﬁrst time alleging that they were partners and alleging that their mother (Judy) was the owner

0f 1/3 0f some 0f the Properties In Dispute 0r in the alternative, alleging that the redemption

price was not enough. See Plaintiffs’ Petition 1W 41-54. The Heirs are the Plaintiffs in this action

and RTP and the remaining partners, Harvey and Marc, are the Defendants. Id. 11
1.

II. Plaintiffs’ Causes 0f Action

Plaintiffs ﬁled suit against Defendants raising the following causes 0f action for which

the Defendants seek a summary judgment:

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 8
4814—3046—7779.4
1. Trespass t0 Try Title and Declaratory Judgment claiming that Heirs own an
undivided 1/3 interest in the Properties in Dispute: 304 S. Record, Dallas, Texas
75202; 306 S. Record, Dallas, Texas 75202; 21 17-2129 Greenville Avenue,
Dallas, Texas 75206 and 5632 Richmond Avenue, Dallas, Texas 75206;
2. Declaratory Judgment claiming that the Estate’s assignment 0f its interest t0 the
Heirs was an assignment 0f a Judy’s full partnership interest in RTP, consented t0

by the Partnership and all the partners; and
3. Breach 0f Fiduciary Duty claiming that since the Heirs are partners, 0r tenants—in-
common, Marc and Harvey owe them a ﬁduciary duty owed t0 other partners and
that Marc and Harvey breached that duty.

As shown below, Defendants seek, and are entitled t0 partial summary judgment 0n all

Plaintiffs claims.

III. Summary Judgment Standard

In a traditional motion for summary judgment, the defendant must demonstrate there are

n0 genuine issues 0f material fact and that it is entitled t0 judgment as a matter 0f law as t0 its

Claims. TEX. R. CIV. P. 166a(c); see also HIS Cedars Treatment Ctr. ofDeSoto, Texas, Inc. v.

Mason, 143 S.W.3d 794, 798 (Tex. 2004). T0 d0 so, the movant must either negate one 0r more

0f the essential elements 0f the non-movant’s cause 0f action, 0r conclusively establishes all

elements 0f a movant’s afﬁrmative defense. Doe v. Boys Clubs 0f Greater Dallas, Ina, 907

S.W.2d 472, 476-77 (Tex. 1995); Randall ’S Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644

(Tex.1995). Plaintiffs have declaratory judgment claims in this case. Declaratory Judgments are

Viewed under the same standards as summary judgments. See Tex. CiV. Prac. & Rem. Code Ann.

37.010 (Vernon 2008); Lidawi v. Progressive County Mutual Ins. C0., 112 S.W.3d 725, 730

(Tex. App. Houston [14th Dist] 2003, n0 pet).

Once the movant has established its right t0 summary judgment, the burden shifts t0 the

non-movant t0 produce evidence sufﬁcient t0 raise an issue 0f fact regarding each challenged

element. Centeq Really, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A traditional summary
judgment is appropriate when the movant has met its burden and the summary judgment record

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 9
4814—3046—7779.4
demonstrates the absence 0f a genuine issue 0f material fact. See Clear Creek Basin Auth. v.

Houston, 589 S.W.2d 671, 678 (Tex. 1979).

IV. Summary Judgment Evidence

In support 0f Defendants’ Motion, Defendants attach as an Appendix, the following

evidence:

1) Declaration 0f Marc H. Richman dated July 24, 2020 attached t0 the Appendix hereto

as Exhibit “A”;

2) Declaration 0f Harvey A. Richman dated January 17, 2020 attached t0 the Appendix

hereto as Exhibit “B”;

3) Deposition 0f Harvey A. Richman dated July 9, 2020 attached t0 the Appendix hereto

as Exhibit “C”;

4) Deposition 0f Marc H. Richman dated May 7, 2020 attached t0 the Appendix hereto

as Exhibit “D”;

5) Declaration 0f Roland Love dated July 24, 2020 attached t0 the Appendix hereto as

Exhibit “E”;

6) Deposition 0f Ralph Lubins Time dated June 9, 2020 attached t0 the Appendix hereto

as Exhibit “F”;

7) Deposition 0f Brenda Dean Time dated June 16, 2020 attached t0 the Appendix

hereto as Exhibit “G”;

8) Deposition 0f Robin Beckerman dated June 19, 2020 attached t0 the Appendix hereto

as Exhibit “H”;

9) RLT Bates Nos. as referenced herein attached t0 the Appendix hereto as Exhibit “I”;

10) BDT Bates Nos. as referenced herein attached t0 the Appendix hereto as Exhibit

“attached t0 the Appendix hereto as Exhibit “J”;

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 10
4814—3046—7779.4
11) RTF Bates Nos. as referenced herein attached t0 the Appendix hereto as Exhibit “K”;

and

12) Declaration 0f Kathy Quinn dated July 21, 2020 attached t0 the Appendix hereto as

“L”.

V. Arguments and Authorities

a. The Court should grant summary judgment 0n Plaintiffs’ claim that the assignment
0f the partnership redemption interest dated January 6, 2010 made them partners
0f RTP.

Plaintiffs allege that they are each partners in RTP based upon the recently raised theory

over 11 years after Judy’s death, that Plaintiffs obtained a general partner share 0f RTP, not by

inheritance, but by Marc and Harvey’s consent? The Heirs contend that by an Assignment

Document, created over 16 months after Judy’s death, Marc and Harvey have shown their

consent t0 have all Plaintiffs join RTP as partners. Speciﬁcally, Plaintiffs seek a judicial

declaration that:

1) The Assignment of Partnership Interest document in valid and enforceable;

2) Judith Richman’s 1/3 general partner interest in RTP was assigned/transferred t0
Plaintiffs with the consent 0f the partnership and all the partners;

3) As a result, each 0f the Heirs hold a portion 0f Judith Richman’s 1/3 general partner
interest in RTP;

4) Each Plaintiff, therefore, is entitled t0 their pro-rata share 0f proﬁts as partners in
RTP; and

5) Marc Richman has been responsible for managing RTP since August 28, 2008.

See Original Petition 11
51 (A)—(E).

Plaintiffs’ claim to a general partnership interest in RTP fails as a matter 0f law. Since

there was n0 partnership agreement at the time 0f Judy’s death, by operation 0f law, Judy’s

2
Indeed, any theory in this case that a general partner interest was inherited is completely contrary t0 the clear
provisions 0f the Texas Business Organizations Code.

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 11
4814—3046—7779.4
partnership interest automatically becomes a creditor interest3 in RTP as a matter 0f law “a

person ceases t0 be a partner 0n the occurrence 0f an event 0f withdrawal”. See Tex. Bus. Org.

Code § 152.501(a). Her death was, as a matter 0f law, a withdrawal 0f Judy from the partnership.

See Tex. Bus. Org. Code §§ 152.501(a); 152.501(b)(7)(A); and 152.406(a)(2)(A). Thereafter, the

only way the Heirs could have gained status as partners 0f RTP was for Marc M Harvey both

“
t0 expressly consent t0 the Heirs becoming partners. a person may become a partner only with

the consent 0f a:ll partners. (emphasis added) See Tex. Bus. Org. Code §§ 152.201. This never

occurred. Richman Dec. 1W 38-39; Harvey Richman Dec. 11 4; MR Depo. 60:9-61:10; 61:11-22.

HR. Depo. 101:19:24, 102:1-7, 102:9-13; 105:9-17; 108:21:24, 109:1-2, 115:3-7, 115:9-11;

115:24-1 16:7; 116:22, 116:24-1 17:2; RLT Depo. 84:14-18; BDT Depo. 65: 19-22.

1. Plaintiffs Only Received Creditor Interest Pursuant t0 Statute

Plaintiffs’ declaratory judgment claims that they obtained a general partner/owner interest

through consent 0f Marc and Harvey Richman. It is clear that Plaintiffs did not inherit or

otherwise obtain anything but a creditor interest in RTP and since the time 0f Judy’s death there

was n0 consent from the remaining partners 0f RTP t0 being partners with the Heirs at any time.

3
A redemption interest is referred t0 in the Tex. Bus. Org. Code as an interest in the partnership, a creditor’s interest
as opposed t0 a general partnership interest. See. Tex. Bus. Org. Code § 152.406(a)(2)(a); 152.601; 152.602(a),
152.602(b); 152.602(b)(1); 152.607(a); 152.61 1(a); 152.612(a)(b) and (d).

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 12
4814—3046—7779.4
A. The Business Organizations Code“ Applies Automatically When N0
Partnership Agreement Exists

The Business Organization Code provides that “a partnership agreement governs the

relations 0f the partners and between the partners and the partnership.” Tex. Bus. Org. Code §

152.002(a). When there is n0 partnership agreement, 0r the partnership agreement fails t0

address a relevant issue, the Business Organizations Code, Chapter 152, applies t0 govern the

relationship 0f the partners and between the partners and the partnership. Id.

In the present case, it is undisputed that there was n0 written partnership agreement at the

time 0f Judy’s death. Thus, the terms 0f the Business Organizations Code apply t0 the resolution

0f all issues with the partnership and its partners. See Tex. Bus. Org. Code § 152.002(a). MR.

Depo. 32:12-24. Nor was there ever any such written agreement. Id. Plaintiffs have never

disputed this. Plaintiffs’ own email communications amongst themselves conﬁrm that, after

consulting with their attorneys, they were aware they were creditors. MR Depo. 93:25-94:1 1,

RLT Bates N0. 595-596, RLT Bates N0. 690, RLT 582-583, RLT Bates N0. 565, BDT Bates N0.

798, BDT Depo. 38:3-19. In addition, Plaintiff Ralph Lubins Time testiﬁed during his deposition

4
The Texas Business Organizations Code was enacted in 2006 t0 centralize all laws regarding various
business organizations. It was in effect When Judy passed away in 2008, and the Business Organizations Code

governs partnership law in this case. However, the Business Organizations Code adopted many 0f the provisions
already in existence from the Texas Revised Partnership Act. Therefore, because the provisions at issue in the
present case are not new, the analysis from the Texas Uniform Partnership Act and the Texas Revised Uniform
Partnership Act can still be useful t0 interpret the current law regarding partnership law. For example, under the
Texas Uniform Partnership Act, Which existed even prior t0 the Texas Revised Partnership Act, “if a business

continues instead 0f being wound up 0n dissolution 0f the partnership, the deceased partner’s representative may
claim as a creditor the value 0f the decedent’s interest . .
.” Bader v. Cox, 701 S.W.2d 677, 682 (Tex. App.—Dallas
1985) (interpreting the Texas Uniform Partnership Act); see Lewis v. Hill, 429 S.W.2d 572, 575 (Tex. App.—Tyler
1968) (Representative 0f deceased partner only entitled t0 set off 0f value 0f deceased partner’s interest.) (citing Art.

6132b). The representative 0f Judy’s estate (and therefore, the Heirs as well) “has n0 interest in any speciﬁc item 0f
partnership property, but instead [the representative] is entitled t0 the value 0f the decedents interest in the
partnership.” Id. at 683; see Cates v. Int’t Tel. & Tel. Corp, 756 F.2d 1161, 1173-74
1985) (Under the (5th Cir.

Texas Uniform Partnership Act, the heirs 0r personal representatives 0f a deceased partner “have neither any interest
in 0r right t0 possess speciﬁc partnership property nor any right t0 the management 0r administration 0f partnership
affairs, all such interests and rights vesting in the remaining partner 0r partners.”). Simply put, “[a] deceased
partner’s executor 0r other personal representative cannot step into the deceased partner’s shoes.” Biesel v. Furrh,
N0. 05-94-01429-CV, 1995 Tex. App. LEXIS 3531, at *4-5 (Tex. App.—Da11as July 28, 1995). The heir 0r
representative is left With a creditor interest. See Baker, 701 S.W.2d at 682.

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 13
4814—3046—7779.4
that he has had two counsel before ﬁling suit and both prior counsel said that the Heirs were not

partners. RLT Depo. 110:9-17, 110:23-1 1 1 :2; 113: 10-20. Plaintiffs ﬁrst counsel Clint David

conﬁrmed Plaintiffs creditor status in a redemption proposal. RTF Bates N0. 6671.

B. Business Organizations Code Provides Plaintiffs With a Creditor
Interest Only

The Code makes clear that “[a] partnership continues after an event 0f withdrawal.” Id. at

§ 152.502; Scott Pelley P.C. v. Wynne, N0. 05-15-01560-CV, 2017 TeX. App. LEXIS 8228, at

*59 (Tex. App.—Dallas Aug. 28, 2017). However, under the Code, Judy’s death was a

withdrawal from RTP as a matter 0f law such that neither she nor her Estate were a general

partner upon her death. Tex. Bus. Org. Code § 152.501(b)(7)(A) (A partner’s death is an event 0f

withdrawal); Tex. Bus. Org. Code § 152.501(a) (“A person ceases t0 be a partner 0n the

occurrence 0f withdrawal.”) Once a partner withdraws the partnership does not have t0 take him

back. He must get the consent 0f all the partners t0 return. See Bendalin v Youngblood & Assocs. ,

381 S.W. 3d 719, 736 (Tex. App. — Texarkana Oct. 24, 2012)

Most important for consideration 0f Plaintiffs’ allegations, because there was n0

partnership agreement, under the Business Organizations Code, the Plaintiffs/Heirs 0f Judy

become creditors 0f RTP as a matter 0f law, entitled only t0 a redemption payment 0f the fair

market value 0f their creditor interest in RTP valued 0n the date 0f Judy’s death. See Tex. Bus.

Org. Code § 152.406(a)(2)(A) (providing that, in cases such as the present, heirs “are creditors 0f

the partnership until the redemption price is paid”). “[T]he redemption price 0f a withdrawn

partner’s partnership interest is the fair value 0f the interest 0n the date 0f withdrawal.” Tex. Bus.

Org. Code § 152.602(a); see Atterbury v. Brenson, 871 S.W.2d 824 (Tex. App.—Texarkana

1994, writ denied); see also In re Lea], 360 B.R.23 1, 235-236 (SD. TeX Jan 2007).

Speciﬁcally, Section 152.406(a)(2)(A) provide that:

DEFENDANTS RICHMAN TRUSTS, A TEXAS GENERAL PARTNERSHIP,
MARC H. RICHMAN, AND HARVEY A. RICHMAN’S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 14
4814—3046—7779.4
“(A) If the partnership interest 0f the deceased partner is subj ect t0 redemption
under Subchapter H, the partner’s surviving spouse, if any, and an heir,
devisee, personal representative, 0r other successor 0f the partner, t0 the extent
0f their respective right t0 the redemption price, are creditors 0f the partnership
until the redemption price is paid. .” .

Tex. Bus. Org. Code § 152.406(a)(2)(A). There is n0 question that the partnership interest 0f

Judy is subject t0 redemption under Subchapter H. The Heirs have admitted this facts RLT

Bates N0. 595-596, RLT Bates N0. 690, RLT 582-583, RLT Bates N0. 565, BDT Bates N0. 798.

Speciﬁcally, Plaintiffs have never disputed the elements that support application 0f Subchapter

H: that (1) Judy’s death was an event 0f withdrawal under Section 152.501(b)(7), 0r (2) there

was n0 event requiring winding up 0f the partnership within 60 days 0f Judy’s death. In fact, the

partnership continues in operation 12 years after Judy’s death. Therefore, despite Plaintiffs’

generic denial, the statutory language is clear. Subsection (A), above, applies, and the application

0f the statute clearly provides that “an heir . . . 0r other successor 0f the partner . . . are creditors

0f the partnership until the redemption price is paid.” Id. § 152.406(a)(2)(A).

Simply put, since RTP had n0 written partnership agreement when Judy died, Judy’s

Heirs are not general partners 0f RTP, rather they are creditors 0f RTP entitled t0 the fair market

value 0f their creditors’ partnership interest at the time 0f Judy’s death. There is n0 alternative t0

this clear statutory operation.

2. Plaintiffs Did Not Obtain a Partnership Interest By Consent 0f Existing Partners

Since Plaintiffs did not inherit a general partner share in RTP, Plaintiffs attempt t0 argue

Marc and Harvey consented t0 each Plaintiff, including the Trusts acting 0n behalf 0f Judy’s

grandkids, becoming general partners in

Case Info

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HOFFMAN, MARTIN Track Judge’s New Case

Case No.

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Document Filed Date

July 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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Motion,Ex Parte: RALPH LUBINS TIME, et al vs. RICHMAN TRUST, et al

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