Russell Realty Associates v. Russell

724 S.E.2d 690, 283 Va. 797
CourtSupreme Court of Virginia
DecidedApril 20, 2012
Docket110380
StatusPublished
Cited by1 cases

This text of 724 S.E.2d 690 (Russell Realty Associates v. Russell) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell Realty Associates v. Russell, 724 S.E.2d 690, 283 Va. 797 (Va. 2012).

Opinion

724 S.E.2d 690 (2012)
283 Va. 797

RUSSELL REALTY ASSOCIATES, et al.
v.
C. Edward RUSSELL, Jr., individually and as Co-Trustee.

Record No. 110380.

Supreme Court of Virginia.

April 20, 2012.

Kelly L. Faglini (John R. Walk; Andrew P. Sherrod, Richmond; Hunton & Williams; Hirschler Fleischer, on briefs), for appellants.

John C. Lynch (Jason E. Manning; Troutman Sanders, on brief), Virginia Beach, for appellee.

Present: KINSER, C.J., LEMONS, MILLETTE, MIMS, McCLANAHAN and POWELL, JJ., and LACY, S.J.

OPINION BY Senior Justice ELIZABETH B. LACY.

In this appeal we consider whether the circuit court erred in granting judicial dissolution of Russell Realty Associates (RRA or the Partnership) pursuant to Code § 50-73.117(5) based on its findings that the economic purpose of RRA is likely to be unreasonably frustrated and that the business can no longer practicably operate in conformity with the partnership agreement. Because we find that there is sufficient evidence to support the circuit court's findings, we will affirm that judgment.

FACTS

In October of 1978, Charles E. Russell, Sr. created an irrevocable trust which he divided into two separate trust shares. One-half of the trust was for the benefit of his daughter, Parthenia Russell Randolph (Nina), and one-half for the benefit of Nina's children, Robert and Isham. The children's trust was subsequently divided into equal shares. Nina and *691 her brother C. Edward Russell, Jr. (Eddie) were named trustee (co-trustees) of Nina's trust, Robert's trust and Isham's trust. The trust estate consisted of the interests held by Nina and Eddie as co-trustees in RRA.

Charles Russell created RRA at the time he created the irrevocable trust. The purpose of RRA was to acquire, hold, invest in, lease and sell investment properties, including but not limited to real property. The original capital of the Partnership consisted of real property which Charles Russell deeded to the Partnership. The partnership interests were held by Charles Russell, Eddie, individually, and Eddie and Nina as co-trustees of the trusts created for the benefit of Nina and her two sons. Between 1978 and 1985, Charles Russell decreased his partnership interest. Following Russell's complete withdrawal from the Partnership in 1985, Eddie had a 50 percent interest in the Partnership, Eddie and Nina as co-trustees for Nina's trust had a 25 percent interest, and Eddie and Nina as co-trustees for Robert and Isham's trusts had a 12.5 percent interest for each trust.

The Partnership Agreement, as relevant here, provided that

7. Management. The partnership business shall be managed by all partners, but in the event of any disagreement between them the decision of Edward Russell shall be controlling. As a matter of convenience, Edward Russell, shall have the authority, by his sole act, to borrow, execute, and deliver instrument[s], including any deed or lease, on behalf of the partnership.
....
10. Withdrawal. No partner shall have the right to withdraw from the partnership.
....
11. Admission. Additional partners may be admitted to the partnership by the unanimous vote of all the partners.

Eddie increased his active involvement in the operation of RRA over the years, and by the time Charles Russell withdrew from the Partnership, Eddie conducted RRA's business. For many years Nina had not been actively involved in the management of RRA but was kept informed of RRA business matters and participated in business meetings electronically. During most of this time she lived in Seattle, Washington. Nevertheless, issues of communication and trust existed between Nina and Eddie. For example, the financing and development of property which Eddie and Nina jointly owned, known as the Crossroads, was jeopardized because Nina delayed and vacillated in reaching decisions and executing necessary documents. When Charles Russell died in 1992, leaving a number of properties to Eddie and Nina as tenants-in-common, the siblings engaged in strenuous disagreements over whether the properties should be developed or sold. Nina and Eddie each hired separate legal counsel and finally reached an agreement on property division to avoid a partition suit.

In 1989, Harry R. Pollard, IV was engaged to act as a mediator and consultant to facilitate the relationship between Nina and Eddie and advance RRA partnership affairs. Pollard's involvement continued throughout the years up to and including the time of trial.

In 2003, Nina and Eddie began discussions about trust distributions because Nina's son, Rob, would be entitled to distributions in August 2004. These discussions also included issues relating to whether Rob would be admitted as a partner of RRA and whether the Partnership should be converted into a limited liability company (LLC). Nina and Rob's intentions and goals for Rob's admission as a partner and the conversion of RRA to a LLC differed from Eddie's intentions and goals on the future of RRA, particularly with regard to management control, liability issues and succession. Nina and Rob also disagreed with Eddie's recommendation that Rob's trust distribution be paid partly in cash and partly in property to ensure that Isham could receive an equal trust distribution. During the course of these discussions Nina, Rob and Eddie each retained separate counsel to represent their individual interests.

Over the next few years, negotiations concerning Rob's distribution from the trust, operational control of the Partnership, liability, and succession continued, by and through *692 counsel and Pollard, but the parties' differences and conflicts escalated.

By January 2006, the parties still were divided on these issues. Eddie sent a proposal to Nina and Rob in which he agreed to vote for Rob as a partner, conceded to Nina and Rob's demands on succession and liability issues, but continued to insist that he maintain management control of the business. Nina and Rob did not respond to Eddie's proposal. Months later, Eddie received a counter-proposal with different terms that were not responsive to Eddie's proposal. Further discussions were unsuccessful and Eddie ultimately told Nina that he would not agree to add Rob as a partner. This decision created more conflict and distrust among Eddie, Nina and Rob.

Following the stalemate on the restructuring of RRA and Rob's status as a partner, Nina increased her involvement in RRA's management, insisting that she, as well as Rob, be informed and involved in any and all RRA communications, including meetings, telephone calls, and written and electronic communications. During these communications she continually questioned or objected to Eddie's business management proposals or decisions. In addition, Nina began editing the minutes of the quarterly partnership meetings, asserting that they did not accurately reflect the substance of such meetings. RRA staff complained that the resulting minutes did not contain sufficient narrative and were not objective or helpful in describing the business affairs conducted. Nina also insisted on two tape-recordings of all RRA meetings and meetings with third parties who were interested in purchasing RRA properties. Nina and Rob disputed the amount of the office overhead and, despite RRA's accountant's recommendations, opposed the continued employment of certain RRA staff members.

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Bluebook (online)
724 S.E.2d 690, 283 Va. 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-realty-associates-v-russell-va-2012.