FILED

November 6, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

LANNY McCORMACK, Individually )

and as partner of McCORMACK )

FARMS, ) 

)

Plaintiff/Appellant, ) Giles Chancery No. 8800

)

VS. ) Appeal No. 01A01-9707-CH-00341

)

ZOLLIE McCORMACK, )

)

Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF GILES COUNTY

AT PULASKI, TENNESSEE

THE HONORABLE WILLIAM B. CAIN, CHANCELLOR

ROBERT D. MASSEY

Pulaski, Tennessee

Attorney for Appellant

BEN BOSTON

CHARLES W. HOLT, JR.

BOSTON, HOLT & SOCKWELL, PLLC

Lawrenceburg, Tennessee

C. ANTHONY EDWARDS

Columbia, Tennessee

Attorneys for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
2

Plaintiff Lanny McCormack appeals the final judgment entered by the trial court in

this dissolution of partnership case. In its final judgment, the trial court ordered

Defendant/Appellee Zollie McCormack to pay Lanny McCormack $137,453 for all of the

latter’s right, title, and interest in the McCormack Farms partnership. On appeal, Lanny

McCormack has raised only one issue for this court’s review: whether the trial court, which

previously had adopted a special master’s report, erred when it ruled that Lanny’s interest

in the partnership would be resolved in a manner which was not one of three options set

forth in the special master’s report. We affirm the trial court’s judgment.

This lawsuit began when brothers Lanny and Bartt McCormack, individually and as

partners of McCormack Farms, filed a complaint against their father, Zollie McCormack,

seeking dissolution of the McCormack Farms partnership and other relief. Much of the

procedural history of this lawsuit is not relevant to this appeal. What is significant,

however, is that in May 1996 the trial court entered an order appointing a special master

to determine and report several issues to the trial court, including “the proper division

among the parties of the assets and liabilities of the partnership upon its dissolution.” After

appointing the special master, but before the special master had issued his report, the trial

court entered an order of partial dismissal which dismissed Bartt McCormack from this

lawsuit based on the representations of the parties’ attorneys that Bartt and Zollie

McCormack had “completely resolved their differences arising out of this lawsuit.”

Accordingly, the dispute between Lanny McCormack and Zollie McCormack remained the

only dispute before the special master and the trial court.

In December 1996, the special master issued his report. As pertinent to this appeal,

paragraph 23 of the report indicated that the parties had stipulated the partnership’s net

worth as of December 31, 1995, to be $950,000. Inasmuch as Lanny McCormack owned

a 14.47% interest in the partnership, the special master determined that interest to be

worth $137,453. The special master’s report concluded by stating that, “[i]f Zollie and

Lanny cannot divide the assets and liabilities in kind, or if one cannot buy from the other,
3

the former assets of the partnership should be partitioned by sale and division of the net

proceeds, after payment of all expenses.” 

The trial court subsequently entered an order overruling most of the parties’

objections to the special master’s report and, except as otherwise indicated, confirming the

report. Regarding the methods of final dissolution set forth at the conclusion of the special

master’s report, the trial court ordered that

[S]hould the parties not agree to settle this matter based upon

the buy-out pursuant to the figures set forth in Paragraph 23,

Page 6 of the Special Master’s report that either party may

request that the Court review the feasibility of the other

methods of final dissolution set forth in Paragraph 23 should

they not agree upon same. 

In June 1997, after conducting a hearing on the method of dissolution issue, the trial

court entered an order granting Lanny McCormack ten (10) days within which to choose

from two methods of dissolving the partnership. The first method provided that Zollie

McCormack would pay Lanny McCormack $137,453 for Lanny’s interest in the partnership.

The second method provided that Zollie McCormack would purchase Lanny McCormack’s

partnership interest under the exact same terms and conditions whereby Zollie had

purchased Bartt McCormack’s partnership interest earlier in the lawsuit. 

Lanny McCormack declined to choose either of these options, apparently taking the

position that the trial court had no alternative but to order the sale of the partnership

assets. Consequently, after the expiration of ten days, the trial court entered its final

judgment dissolving the partnership by ordering Zollie McCormack to pay Lanny

McCormack the sum of $137,453 for Lanny’s interest in the partnership. 

On appeal, Lanny McCormack contends that the trial court’s method of dissolving

the partnership violated the “concurrent finding rule.” Under this rule,

concurrent findings by the master and trial court [are]

conclusive on appeal unless (1) the issue should not have

been referred to the master; (2) the findings are based on an

error of law; (3) the findings involve a question of law or a

mixed question of law and fact; or (4) the findings are not

supported by substantial and material evidence.
4

Shepherd v. Griffin, 929 S.W.2d 336, 344 (Tenn. App. 1995); see also T.C.A. § 27-1-113

(1980) (providing that, “[w]here there has been a concurrent finding of the master and

chancellor, which under the principles now obtaining is binding on the appellate courts, the

Court of Appeals shall not have the right to disturb such finding”). Relying on this rule,

Lanny McCormack contends that once the trial court approved the special master’s report

setting forth the procedure for dissolving the partnership, the trial court thereafter was

bound by the concurrent finding rule to employ this procedure.

We recognize that the concurrent finding rule may operate to preclude this court

from revisiting certain factual issues which were concurrently determined by the special

master and the trial court. We are not convinced, however, that the concurrent finding rule

operates to preclude the trial court from revising its previous order adopting the special

master’s report. While the concurrent finding rule clearly applies to cases on appeal, we

have found no authority for applying the rule while a case is still at the trial court level.

Moreover, even if the rule is applicable in the trial court setting, we conclude that the

rule does not apply in this case. The concurrent finding rule applies only to findings of fact

and does not apply to questions of law or to mixed questions of law and fact. Long v.

Long, 957 S.W.2d 825, 829 (Tenn. App. 1997); Genesco, Inc. v. Scolaro, 871 S.W.2d 487,

492 (Tenn. App. 1993). We believe that the question of which method to employ to

dissolve the partnership was a question of law to be determined by the trial court after a

consideration of all the facts and circumstances of this case. Our conclusion is supported

by the fact that, in the absence of a partnership agreement to the contrary, the Uniform

Partnership Act (codified at T.C.A. §§ 61-1-101 to -147 (1989 & Supp. 1997)) controls the

manner of dealing with partnership assets in the event of a dissolution of the partnership.

Fowler & Rowntree v. Williams, 1986 WL 1033, at *4 (Tenn. App. Jan. 24, 1986); see also

Hodge v. DMNS Co., 652 S.W.2d 762, 764-65 (Tenn. App. 1982). As a general rule,

deciding the method of dissolving a partnership will require construction of the Uniform

Partnership Act or interpretation of the partnership agreement, both of which constitute

questions of law. Beare Co. v. Department of Revenue, 858 S.W.2d 906, 907 (Tenn.
1As we previously indicated, Lanny McCormack’s sole issue on appeal relates to the concurrent finding rule.

He has not questioned whether the method of dissolution employed here was authorized by the Uniform Partnership Act

or the partnership agreement.

5

1993); Eyring v. East Tenn. Baptist Hosp., 950 S.W.2d 354, 358 (Tenn. App. 1997).1

Accordingly, the concurrent finding rule did not prohibit the trial court in this case from

departing from the special master’s report on the issue of the method of dissolution.

In any event, we fail to see how the trial court’s method of dissolving the partnership

deviated from the special master’s report. The master’s report stated that, “[i]f Zollie and

Lanny cannot divide the assets and liabilities in kind, or if one cannot buy from the other,

the former assets of the partnership should be partitioned by sale and division of the net

proceeds, after payment of all expenses.” Lanny McCormack insists that, inasmuch as the

parties failed to agree on a division of the partnership’s assets or a purchase of the other

partner’s interest, the trial court was left with no alternative but to order a sale of the

partnership assets. 

We disagree. By its terms, the master’s report specified that “the partnership should

be partitioned by sale and division of the net proceeds” only in the event that (1) Zollie and

Lanny could not agree on a division of assets and liabilities, and (2) neither partner was

capable of buying the other partner’s interest in the partnership. Apparently, Zollie

McCormack was capable of purchasing Lanny McCormack’s interest in the partnership,

and, thus, the trial court entered a final judgment ordering that method of dissolving the

partnership. Inasmuch as one partner was capable of buying the other partner’s interest,

the trial court did not err in ordering this method of dissolution rather than ordering the sale

of the partnership property.

The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Lanny McCormack, for which execution may issue if necessary.
6

 

HIGHERS, J.

CONCUR:

 

FARMER, J.

 

LILLARD, J.