Opinion
B197962
10-29-2008
STEVEN J. RUBEN, Plaintiff and Appellant, v. RONALD W. MAKAREM et al., Defendants and Respondents.
Law Offices of Barry P. King and Barry P. King for Plaintiff and Appellant. Altman & Ray and Anthony M. Altman for Defendants and Respondents.
Not to be Published
Appellant Steven J. Ruben brought an action against respondents Ronald W. Makarem and the law firm of Ruben & Makarem for dissolution of a law partnership, an accounting, breach of fiduciary duties and declaratory relief. The matter was tried to the court and resulted in a judgment in all respects favorable to respondents. We affirm.
FACTS
In March 1997, Makarem was hired by the firm of Ruben & McGonigle; Ruben was a partner in the firm. McGonigle left and the firm was renamed Ruben & Jones, LLP (R&J); Ruben and Mark Jones were partners, with respectively 60 percent and 40 percent interest in the firm. There was no written partnership agreement.
Makarem became a partner in R&J on January 1, 2001, with a 22.33 percent interest in the firm. Rubens and Joness interests were decreased respectively to 44.34 percent and 33.33 percent. The trial court found in the statement of decision that as of January 1, 2001, the partnership agreement was oral and was for an indefinite term. Whether Makarem was required to "buy" into the partnership was one of the issues in the case. Makarem testified that, when he became a partner, there was no discussion about him having to buy in to the partnership and the court found in accordance with this testimony. The court noted there was no written record of a "buy in" agreement, Rubens personal accountant was unaware of any such agreement and Ruben himself could not name the amount of the alleged "buy in." R&J was not particularly successful financially at this time. The partnership distributions in 2000 totaled $98,800.
Jones died of leukemia in October 2001. Rubens and Makarems interests were adjusted to 60 percent and 40 percent effective January 2002, and in April 2003 the firm name was changed to Ruben & Makarem LLP (R&M). Joness death produced a claim by his estate against the firm, which was ultimately settled by Makarem.
The Schneider litigation, which was to prove a very valuable firm asset, was a malpractice action that was initially tried to a verdict of approximately $70,000 by Ruben. The plaintiff appealed, secured a reversal of the damage award, and a second trial, also by Ruben, in January 2002 ended with a verdict of approximately $2.9 million. Not surprisingly, there were difficulties with collecting this award. For one, it exceeded the policy limits, which necessitated a bad faith action by the judgment defendant. The award was, of course, also appealed. And the plaintiff in Schneider ended up suing R&M for malpractice with the object of limiting R&Ms fees. R&M paid all costs and fees arising from these activities in 2003 and 2004.
In March 2002, Ruben had heart surgery and, for all practical purposes, ceased practicing law. He occasionally provided some consulting services with lawyers in the firm and with meeting clients. But he did not bill any work and reported himself as totally disabled. Nonetheless, he received $ 1,083,230 from the firm between 2002 and 2004 as his partnership distribution. In addition, Ruben drew disability benefits of $17,000 a month. One of the disability policies that paid $ 10,000 a month had been purchased by R&M.
Makarem continued to operate R&M through August 2004. Between 2002 and 2004, the firm averaged distributions of $774,412. In 2003, in light of Rubens inactivity, the interest in the firm was divided 50-50 between Ruben and Makarem. In late 2003, this was again adjusted to 70 percent for Makarem and 30 percent for Ruben. In 2004, the monthly draw was $10,000 for Makarem and $5,000 for Ruben.
In July 2004, the difficulties with the Schneider case were finally resolved and $592,000 was paid to the firm. A dispute arose between Ruben and Makarem regarding this fee. Rubens demands regarding this fee escalated over time and, in the end, Ruben claimed that he was entitled to the entire fee. We take up the Schneider issue again as we discuss Rubens contentions on appeal.
Makarem notified Ruben that he was dissolving R&M effective August 31, 2004, and that he would wind up the firms affairs. After August 31, 2004, R&M became Makarem & Associates (M&A). The office lease was assigned to M&A, who paid the security deposit to R&M. M&A took over the physical assets and paid R&M for the assets. Makarem also settled the claim of the Jones estate for $200,000.
As fees were received for work done by R&M, they were deposited into an R&M account. M&A took over all the cases from R&M without objection by Ruben and continued to do work on these cases. As fees were collected, they were deposited in the M&A account, with reports made to Ruben. These funds, including fees earned by former R&M cases being worked by M&A, were distributed in 2004, 2005 and 2006 between Makarem (70%) and Ruben (30%). The exception was the fee received in Schneider, which was in dispute and was therefore not distributed.
PROCEDURAL HISTORY
The action filed by Ruben on September 15, 2004, alleged in substance that in January 2003 Ruben and Makarem had entered into an oral agreement under which Ruben would be bought out over a period ending in December 2005. The other salient provisions of the alleged 2003 oral agreement (hereafter 2003 oral agreement) were: (1) 100 percent of the fees generated by Schneider were to be paid to Ruben; (2) Ruben would waive the "buy-in" that Makarem had allegedly agreed to pay; (3) Ruben would pay from the Schneider fee $225,000 to the Jones estate to resolve all remaining issues regarding Joness interest in the firm.
Makarem filed a cross-complaint in which he alleged: (1) Ruben misappropriated partnership funds; (2) Ruben altered firm policies for his personal benefit; and (3) Ruben failed to contribute in any meaningful way to the partnership between March 2002 and August 2004, even though he was paid partnership distributions and draws.
The parties waived a jury and the case was tried to the court between November 7 and 17, 2005. In this first phase of the proceedings the court was to determine the existence and terms of the partnership agreement(s) and whether either party breached its fiduciary duties. The second and separate phase would address accounting issues, if the parties were unable to agree.
The first phase concluded with the filing of the statement of decision on January 18, 2006. The second phase was completed in November 6, 2006. The outcome of both phases was, on all principal issues, favorable to Makarem.
The court found in Rubens favor on four issues. Makarem had claimed that Ruben breached his duties to the partnership by not contributing significantly after March 2002, by drawing disability pay when he was not really disabled, by charging $18,000 on the firm American Express account and by not participating in the winding up process. The court found that Makarem had ratified all of the foregoing by not objecting thereto.
DISCUSSION
1. Rubens Credibility
As Makarem correctly notes, in a case like this where the trial court must decide, based on the testimony of two antagonistic witnesses who are the sole principals, whether an oral agreement existed and, if so, what its terms were, credibility is necessarily a pivotal matter. It is also true that the determination of credibility is consigned to the trier of fact. (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243.)
In this case, the trial court repeatedly rejected Rubens testimony as not credible. In each such instance, as we discuss below, the trial court was careful to explain precisely why his testimony was not credible, and why Makarems testimony was credible. Yet it is undeniable that Ruben also generally damaged his credibility, apart from the specifics of this case, by claiming vis-à-vis his disability carriers that after March 2002 he was completely disabled and yet also claiming, in the litigation of this case, that he was working hundreds of hours on the firms cases, such as Schneider, and was also spending time discussing issues with the client. Significantly, he also represented to the disability carriers that he was not entitled to salary continuation after he became disabled when this was definitely not true.
Even though, as a general matter, credibility is not for us to determine, we are satisfied that there is solid evidence that supports the trial courts repeated rulings on Rubens lack of credibility.
2. Ruben Is Barred from Claiming That He "Dissociated" Himself from the Partnership in 2002
The trial court concluded that the partnership was at will and that Makarem was empowered to dissolve the partnership in August 2004. In challenging the trial courts finding that the partnership was at will, Ruben contends on appeal that when he informed Makarem in March 2002 that he would no longer be trying cases, Ruben "dissociated" himself from the partnership in terms of Corporations Code section 16601, subdivision (1). The effect of this "dissociation," according to Ruben, is that from March 2002 forward, the "at will" partnership was transmuted "into one that was winding-up from that day forward." The point of this argument is that Makarem was not empowered to dissolve the partnership in August 2004 and that his actions at that time were therefore wrongful.
"A partner is dissociated from a partnership upon the occurrence of any of the following events: [¶] (1) The partnerships having notice of the partners express will to withdraw as a partner or on a later date specified by the partner." (Corp. Code, § 16601, subd. (1).)
The center piece of Rubens theory in the trial court was that he and Makarem entered into the 2003 oral agreement with the terms that we have summarized in the Procedural History at page 4, ante. As we set forth below, the trial court completely rejected Rubens theory about the alleged 2003 oral agreement, finding that no such agreement was concluded. On appeal, Ruben has jettisoned the theory of the 2003 oral agreement and substituted in its place the "dissociation" argument that we have outlined in the preceding paragraph. These two theories are at loggerheads. According to the alleged 2003 oral agreement, the partnership was intended to be dissolved in 2005, once the alleged "buy out" by Makarem had been completed. Under the "dissociation" theory, the partnership was effectively dissolved in March 2002.
"It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant." (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) "Th[is] doctrine has been applied where a plaintiff on appeal asserts liability premised on a different negligent act from that at issue at trial." (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.) In other words, a plaintiff may not pursue a theory of liability on appeal that was not litigated, or at least raised, in the trial court. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:230, p. 8-135.)
We are not inclined to make an exception to this rule. For one, the "dissociation" theory differs substantially from the theory that Ruben pursued at trial, which was that under the alleged 2003 oral agreement, the partnership would terminate in 2005. There is quite a difference between an agreed-upon termination date of 2005 and the dissolution of the partnership brought about by Rubens unilateral announcement in March 2002. It would indeed be unfair to the trial court and Makarem to address this novel theory on its merits; it rests on a construct of facts that neither Makarem nor the trial court addressed. This is readily apparent from the detailed, 14-page statement of decision that makes no mention, directly or indirectly, of the theory that Ruben is now pursuing on appeal.
Ruben testified at trial that he and Makarem agreed to continue the partnership until the end of 2005.
The doctrine of the theory of the case is designed to prevent exactly this kind of gamesmanship.
Even though this disposes of the matter, we note that this novel theory is squarely contradicted by Rubens own testimony at trial that because he had enough money to live on ". . . I was willing to let Ron [Makarem] continue with the firm and not dissolve it," referring to the period of time after he became allegedly disabled. That is, according to Rubens own testimony he made a deliberate decision not to dissolve the partnership. He cannot now contend that he acted to dissolve it in March 2002.
We note only in the margin that, at the rate Ruben was receiving partnership distributions in 2002-2004, he did not have the slightest reason to dissolve the partnership.
In his reply brief, Ruben contends that he can raise the "dissociation" argument for the first time on appeal because it is "essentially a substantial evidence argumentbased on undisputed evidence in the record." (Original underscoring and italics.)
Rubens "dissociation" argument is based on neither substantial nor undisputed evidence. In fact, it is based on the slimmest of inferences and it is contradicted by both versions of Rubens own testimony, not to speak of the great weight of the evidence that also contradicts it.
In one version, which Ruben pursued during the trial, he contended that it was agreed that the partnership would not dissolve until 2005. In the other version, he testified that since he was making enough money, he decided not to dissolve the partnership after he ceased practicing law. In light of his handsome partnership earnings in 2002-2004, this version makes the most sense. And of course it is also true that in order to "dissociate" himself from the partnership, he would have had to signify his "express will to withdraw as a partner" (Corp. Code, § 16601, subd. (1)). Had he raised this issue in the trial court, it is obvious that Makarem would have sharply contested the issue since this theory invalidated Makarems actions in August 2004. Considering that Ruben twice renegotiated his partnership interest after March 2002, that he was drawing partnership distributions for two and a half years after March 2002 and that he testified that he did not wish to dissolve the partnership, the inference that he allegedly expressed his "will to withdraw as a partner" (Corp. Code, § 16601, subd. (1)) in March 2002 teeters on the edge of improbability. It can scarcely be doubted that Makarem would have had the best of this issue but, for reasons stated, we do not address it on the merits.
The inference he seeks to draw is that it can be inferred from his announcement in March 2002 that he could no longer practice law that he was also dissolving the partnership.
3. The Finding That the Partnership Was At Will Is Supported by Substantial Evidence
The fact is that this law firm, whether in its R&J or R&M configuration, was an at will partnership with an oral partnership agreement.
Rubens theory at trial was that in the alleged 2003 oral agreement, Makarem agreed to buy out Ruben by 2005 and that the partnership would terminate when the buy out was accomplished. But, other than Rubens testimony, there was nothing to support the claim that there was a buy out agreement or that the partnership would terminate in 2005. As the trial court found, no one other than Ruben, including his own personal accountant, had ever heard of this alleged buy out agreement. Makarem testified that the subject of a buy out did not even come up for discussion when he was made a partner. According to Ruben, the fees from two cases were scheduled to be paid in 2003 and thus served as the impetus for the buy out agreement did not in fact pay in 2003. One paid in 2002 and the other in 2005.
As far as the term of the partnership was concerned, Ruben concedes that historically the partnership was at will. Makarem testified that there was no change in this when he became a partner and that the partnership continued to be at will. The circumstances certainly confirm this. It is unrealistic to assume that a firm that kept taking on new cases in 2002, 2003 and 2004 and that paid its two partners excellent distributions throughout these years was intended to suddenly close its doors in 2005. It simply made no sense, particularly from Rubens point of view, during 2002-2004 to convert the partnership into one that was to terminate in 2005. The conceded fact that the partnership was at will, at least until Makarem became a partner; Makarems testimony that the firm continued as an at will partnership in 2002-2004; and the circumstances of the firm all combine to constitute substantial evidence that supports the trial courts ruling that the partnership was at will.
4. Makarem Did Not Breach His Fiduciary Duties
Ruben contends that Makarem breached his fiduciary duty by taking over the R&Ms assets and transferring them to M&A when he dissolved the partnership in August 2004.
The trial court rejected this contention. The court found that Makarem paid Ruben 30 percent of the value of the R&M assets. As to the valuation of the assets, the court found that Makarem twice requested comments from Rubens counsel concerning the value that Makarem had placed on the assets and that neither of these requests received a response.
Ruben claims that Makarem breached his fiduciary duty by cutting off Rubens monthly partnership draw and disability insurance in August 2004. It is of course patently obvious that Ruben was not entitled to partnership draws after the partnership was dissolved, nor was he entitled to have the partnership continue to pay his disability insurance.
Ruben also claims that Makarem breached his fiduciary duty by wrongfully dissolving the partnership. We have already explained that the trial court correctly concluded that the partnership was at will. As the trial court found, Makarem had the right to dissolve the partnership pursuant to Corporations Code section 16801, subdivision (1).
"A partnership is dissolved, and its business shall be wound up, only upon the occurrence of any of the following events: [¶] (1) In a partnership at will, by the express will to dissolve and wind up the partnership business of at least half of the partners." (Corp. Code, § 16801, subd. (1).)
Ruben also claims that after 2002 Makarem "acted consistently against Rubens interests." This claim is neither just nor truthful. Ruben stopped working in March 2002 but nonetheless continued to receive sizeable partnership distributions totaling well over $1 million until August 2004. That is, for two and a half years the firm prospered under Makarems management and an entirely passive Ruben benefited handsomely from those efforts.
5. Makarem Was Not Required To Make a Capital Contribution to the Partnership
Ruben contends that Makarem was required by Corporation Code section 16401 to make a capital contribution to the partnership. This theory, novel to this case (see part 2, ante), is a misconstruction of section 16401. It is when — and if — a partner makes a contribution that the partner is deemed to have an account that reflects those contributions.
"(a) Each partner is deemed to have an account that is subject to both of the following: [¶] (1) Credited with an amount equal to the money plus the value of any other property, net of the amount of any liabilities, the partner contributes to the partnership and the partners share of the partnership profits." (Corp. Code, § 16401, subd. (a)(1).)
The evidence supports the trial courts conclusion that Makarem was not required to make a capital contribution to the firm. Jones, who became a partner in 1997, did not make a capital contribution; Ruben conceded he did not know the amount of the contribution, had not discussed it with Makarem and had no documents that reflected this alleged requirement; the firms accountant testified that there was no such requirement and that Makarem had not been asked to make a capital contribution; and the firms weak performance in 2000 made it highly unlikely that Makarem would have been asked to make a capital contribution. The testimony that Ruben claims supports his claim is actually the accountants statement that there was discussion about creating a capital account for Jones. Lastly, there is Makarems testimony that there was no discussion about making a capital contribution at the time he became a partner.
The point of Rubens argument that Makarem was required to make a capital contribution is that this made it more likely that there was buy out agreement as far as Rubens interest was concerned.
The accountant explained that the capital account would be created from income, which is not an uncommon practice.
6. Makarem Was Entitled to 70 Percent of the Schneider Fee
The trial court found as a fact that there was no agreement between Ruben and Makarem that the fee in Schneider would be treated differently from any other fee received by the firm. A fact that is broadly supportive of this is that it was the custom and practice of the firm to distribute fees based on the partnership interests at the time the fee was received.
Rubens first argument on the Schneider fee was that Makarem voluntarily agreed to limit his share of the fee to 22.33 percent, which was his partnership share when Jones died. The trial court found that there was no evidence to support this claim. Apart from the lack of evidence, the firms circumstances support the conclusion that the Schneider fee would be treated like other fees received by the firm. As we have noted, the Schneider case led to litigation between the firm and the client in 2002-2004, going so far as to cause the firm to file a cross-complaint in that action. The expenses of this litigation were borne by the firm and not by Ruben and the cross-complaint was also brought by the firm and not Ruben. Thus, during 2002-2004 the Schneider litigation was costing the firm, and not Ruben, both money and time and it therefore made no sense for Makarem to agree to limit his share of the fee.
Rubens alternative argument that under the alleged 2003 oral agreement Makarem agreed that Ruben would receive 100 percent of the Schneider fee is even more implausible, and the reasons already noted militate against it. In addition, as noted by the trial court, in two e-mails sent on March 8, 2004, and July 27, 2004, Ruben effectively conceded that Makarem had a partnership interest in the Schneider fee. It is also true that the supposed reason that Makarem was to have agreed that Ruben was entitled to 100 percent of the Schneider fee was that this was part of the alleged buy out by Makarem. Since there was no buy out agreement, there was no reason for Makarem to agree to waive his entire interest in the Schneider fee.
The trial court excluded proffered testimony by Tom McGonigle that he was receiving partnership distributions even after he left the firm. Ruben contends that this was an abuse of discretion. We do not agree. Whatever agreements McGonigle made as he left the partnership long before the Schneider fee was received do not shed any light on what the firms custom and practice was when that fee was received in 2004. In fact, the firm McGonigle left was quite different from the firm that received the Schneider fee. That firm was profitable and it was being operated by Makarem alone. No inferences could be validly drawn from McGonigles testimony because of the fundamental changes in the operations of the firm.
This was shortly after Makarem was hired in 1997.
Ruben contends that it was an unfair windfall that Makarem, who billed 64.6 hours on the Schneider litigation, received 70 percent of the fee, especially since Ruben billed 815.62 hours on that case. The first answer to this is that partnership interests bore no relationship to hours billed on a single case. Second, it ill behooves Ruben to speak of windfalls when he collected well in excess of $1 million in partnership distributions over two and a half years without making any contributions to the firm during that period. Third, Makarems 70 percent share was a figure that Ruben agreed to for the reason that both the quantity and quality of Makarems time spent on managing the firm were producing very good results. In other words, the 70 percent interest was something that Makarem had earned; it was no windfall.
Concurrently with his reply brief, Ruben filed what he entitled "Appellants Supplemental Reply Appendix." Ruben has included in this document under tab 6 thereof a compilation of billable hours and like statistics that appear to have been prepared by an accountancy firm. Among those statistics are numbers that attribute earnings to cases generated by Ruben, distinct from earnings produced by cases attributed to Makarem.
There are three reasons why we find the documents under tab 6 in the Appellants Supplemental Reply Appendix wholly unacceptable.
First, it nowhere appears that the documents under tab 6, extending from pages 55 to 81, were a trial exhibit admitted into evidence. We note that the documents under tabs 1 through 5 are all marked as having been admitted into evidence but that the documents under tab 6 are not so marked. It is simply unacceptable to present this court with documents whose provenance is entirely unknown, especially under circumstances that preclude a response thereto by respondents. Second. An appellants reply appendix may contain only documents that could have been included in the respondents appendix. (Cal. Rules of Court, rule 8.124(b)(5).) There is no showing that the documents under tab 6 in the reply appendix could have been included in the respondents appendix. Third. The claim that cases generated by Ruben produced the bulk of the earnings between 2002 and 2004 is being made for the first time in the reply brief. It has been the rule for some time that points raised in the appellants reply brief for the first time will not be considered. (Kahn v. Wilson (1898) 120 Cal. 643, 644; see generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, pp. 647-648.)
Given this preface, we note that Ruben contends in his reply brief that it was inequitable to award Makarem 70 percent of the Schneider fees because the bulk of the firms earnings between 2002 and 2004, including Schneider, were generated by cases attributable to Ruben.
Rubens argument is a non sequitur. The agreement among the partners about their partnership percentages is what governs. If Ruben thought it was unfair for Makarem to hold a 70 percent interest, he should not have agreed to it. But, having agreed to it, Ruben is bound by that agreement. Indeed, the trial court could not have done other than award Makarem a 70 percent recovery since this is what the partnership agreement provided.
7. The Trial Courts Findings That Ruben Breached His Fiduciary Duties Are Supported by Substantial Evidence
Attorney Robert Silverman was a subtenant of R&J. In August 2001, Silverman owed R&J $46,575.30 in back rent. On July 18, 2003, Silverman gave Ruben a check for $37,000 that had the word "rent" written on the check. Ruben deposited this check in his own account.
The trial court found that this was a breach of Rubens fiduciary duties and found that it "was not persuaded by Mr. Rubens statement that this payment was for some unsubstantiated personal obligation of Mr. Silverman to Mr. Ruben."
Abandoning the "personal obligation" rationale, on appeal Ruben contends, without citing any authority, that a "person admitted as a partner into an existing partnership has no right to share in any partnership receivables that become liquidated prior to his or her admission as a partner." (Italics omitted.) This somewhat astonishing argument overlooks that the duty to account for $37,000 was owed by Ruben to the firm, i.e., the partnership, and not to Makarem personally; when Makarem became a partner has absolutely no relationship to the fact that the rental money that Ruben pocketed belonged to the firm. It is frivolous to contend, as Ruben does, that there is no evidence that in cashing the check Ruben acted in bad faith or with intent to breach his obligations. Pocketing a check for $37,000 marked "rent" conclusively established both bad faith and a breach of partnership obligations.
8. The Award of $81,320 to Makarem for Work Done in Winding Up the Partnership Is Affirmed
The trial court awarded Makarem a fee of $81,320 for work done in winding up the partnership. The authority for this award is subdivision (h) of Corporations Code section 16401.
"A partner is not entitled to remuneration for services performed for the partnership, except for reasonable compensation for services rendered in winding up the business of the partnership." (Corp. Code, § 16401, subd. (h).)
The trial court noted that Ruben did "not dispute the number of hours submitted by Makarem, nor the reasonableness of the fees; he argues only that Makarem is not entitled to such compensation. The court finds that the Corporations Code, Section 16401 (h) provides for such compensation."
On appeal, Ruben contends that Makarem is not entitled to any fee because he has already been compensated for the work that he did in winding up the partnership. The "rationale" behind this argument is that what he did in managing the firm during 2002-2004 is the same work that he did after 2004 in winding up the partnership. We fail to see any rhyme or reason in this approach. Obviously, time spent after August 31, 2004, is not the same as time spent before that date. Without questioning the specifics of time spent after August 31, 2004, Ruben cannot simply conflate these two separate time periods into one.
This said, this is yet another argument when Ruben abandons positions taken in the trial court for a novel theory on appeal. In addition to its obvious lack of merit, we find that Rubens contention is barred as a theory advanced for the first time on appeal.
9. The Trial Court Did Not Confuse the Buy Out Issue with the At Will Nature of the Partnership
In his reply brief, Ruben raised for the first time the argument that the trial court erred in concluding that because there was no buy out agreement on Makarems part, the partnership was at will.
This argument cannot be raised for the first time in the reply brief. (Kahn v. Wilson, supra, 120 Cal. 643, 644.) Nonetheless, in fairness to the trial court, we note that its finding that the partnership was at will was not based on the finding that there was no buy out agreement. The at will finding was based on three factors: First, the uncontested evidence was that historically the partnership was at will; second, Makarem testified that the partnership continued as at will after he became a partner; and third, the trial court found Rubens claim that there was an agreement to terminate the partnership in 2005 not credible. Considering the conflicting theories and testimony that Ruben has offered on this subject, the last finding is eminently correct.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur:
COOPER, P. J.
BIGELOW, J.