# FILED
November 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
LANNY McC

ORMACK, In dividually ) 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 CHANCE RY COURT O F GILES COU NTY AT PULASKI, TENNESSEE THE HONORABLE WILLIAM B. CAIN, CHANC ELLOR

ROBERT D. MA

SSEY 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. FA

RMER, J. HOLLY KIRBY LI LLARD, J.2

Plainti ff Lanny McCormack appeals the final judgment entered by the trial court in this dissol ution o f partnership case. In its final judgment, the trial cour t ordered Defendant/Appellee Zollie McCormack to p ay Lanny McCormack $1 37,453 for all of the latter’s right, title, an d interes t in the McCormack Farms partnership. On appeal, Lanny McCormackhas raised only one issue for this court’s review: whether the trial court, which previouslyhad adopted a special master’s report, erred when it ruled that Lanny’s interest in the partnership would be r esolved in a

manner which was not one of three options set forth in the special master’s report. We affirm the trial court’s judg ment.

This lawsuit began whe n brothers Lanny and Bartt M cCormack, individual ly and as partners of McCormack Farms, filed a c omplaint against their father, Zoll ie McCormack, seekin g dissol ution of the McCo rmack F arms par tnershi p and oth er reli ef. Much of t h e proce dural history of this law suit is not relevant t

o 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, incl uding “the p roper division among the parties of

the assets and liabiliti es of the partnership upon its dissolution.” After appointing the special master, but before the special master had issued his report, the tr ial court entered an o rder of partial dismissal which dismissed Bartt McCormack from this lawsuit based on the representations of the p arties’ atto rneys that Bartt and Zollie McCor mack had “completely resolv ed their differences arising out of this lawsuit.” Accordin gly, the dispute between Lanny McCormack and Zollie McCormack remained the only dispute before the speci al master and the trial cour t.

In December 1996, thespecial master issued his report. As pertinent to this appeal, paragraph 23 of the report indicated that the parties had stipu late d the partnership’s net worth as of December 31, 1995, to be $950,000. I nasmuch as Lanny McCormack owned
a 14.47% inter

est in the par

tnership, the special ma ste r determined that interest to be worth $137,453. The sp ecial master ’s report concluded by stating that, “[i]f Zoll ie and Lanny cannot divide the assets and liabilities in kind , or if one cannot buy from the other,3

the former assets of the partnershi p 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’ objectionsto the special master’s report and, except as otherwise indicated, c

onfirming the report. Regarding the methods of final dissolution set forth at the conclusion of the special master’s report, the tri al court ordered that

[S]hould the partiesnot agree to settle this matter based upon the buy-out pursuant to the fig ures set forth in Paragraph 23, Page 6 of the Sp ecial Master’s report that either party may request that the Cou rt revi ew the feasibility of the other methods of final dissolution set forth in Paragraph 23 shou l d they not agree upon same.
In June 1997, after conducting a hearin g on the method of dissolution issue, the t rial court entered an order granting Lanny McCormack ten (10 ) days within which to choose from two methods of dissolving the partnership. The first method pro vided t hat Zollie McCormackwould pay

Lanny McCormack $137,453 for Lanny’ s interest in the partners hip. The second method provided that Zollie McCormack would purchase Lanny McCormack’s partnership interest under the e xact same terms and conditions w hereby Zollie had purchased Bartt McCormack ’s partnership interest

earlier in the laws uit.
Lanny McCormack declined to ch oose either of these options, apparently taking the position that the t rial court had no alternative but to order the sale of the partnership
ass ets. Consequently, after the ex piration of ten days, the tr ial court entered its final judgmentdissolving the partn ership by orde ring Zollie McCor mack to pay Lanny McCormack the sum of $137,453 for Lanny ’s interest in the partner ship.

On appeal, Lanny

McCormackcontends that the trial cour t’s method of dissolving the partnership violated the “concurrent finding r ule.” Under this rule, concurrent

findings by the mas ter and trial court [are ] conclusi ve o n appeal unless (1 ) the issue should no t have been referred to the master; (2) the findings are based on an error of law; (3) the fin dings in volve a question of law or a mixed qu estion of law and fact; or (4) the find ings are not supported by substantial an d 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 conc urrent findin g of the master and chancellor, which under the princi ples now obtaining is bi nding on the appellate courts, the Court of Appeals shall not have the r ight to disturb such findi ng”). Relying on this rule, Lanny McCormack contends that once the trial court approved the special master’s report setting forth the proc edure for dissolving the partnership, the trial court thereafter was bound by the concurrent finding rule to employ this pr

ocedure.

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

tain f actual issues which w ere concurrently deter

mined by the special master and the trial court. We are not convinced, however, that the concurrent finding rule operates to preclude

the trial c

ourt from r

evisin g its previous ord er adopting the special master’s report. W hile the c oncurren t findin g rule clea rly applie s to cases on appea l, 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 c ase. The concurrent

finding rule applies only to findings of fact and does not apply to questions of law or t o mixed questi ons 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, 49 2 (Tenn. App. 1993). We believe that the question of which method to em ploy t o dissolve the partnership was a q uestion

of l aw to be determined by the trial court after a consideration of all the facts and circumstances of this case. Our conclusion is supported bythe fact that, in t he absence of a partnership agreement to the con trary, the Uniform Partnership Act (codified at T.C.A. §§ 61-1-101 to -147 (1989 & Supp. 1997)) controls the
manner of dealing with partner ship assets in the event o f a dissolution of the partnershi p. 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, 76 4-65 (Tenn. App. 1982). As a genera l rule , deciding the meth od of dissolvi ng a partnership will require construction of the Uniform Partnership Act or interpretation of the partnership agreement, both of which co nstitute questionsof law. Beare Co. v. D epartment of Revenue , 858 S.W.2d 906, 907 (Tenn.1 As we previously indicate d, Lanny McCormack’s

sole issue on appeal relates to the co ncurrent finding rule. He has not questioned whether t he method of dissolutionemployed 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 Accordin gly, the concurrent finding rul e did not prohibit the trial court in this case from departing from the special mast er’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 re port. The master’s report stated that , “[i]f Zollie and Lanny cannotdivide the assets and liabilities in kind, or if one cannot buy from the other, the former assets of the partnershi p should be partitioned by sale and division of the net proceeds, after payment of all expenses.” Lanny McCormack insists th at, inasmuch as the parties failed to agree on a divi sion of the partnership’s ass ets or a purchase of the other partner’s interest, the t rial co urt was left wi th no alternative but to or der 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 di vision of thenet proceeds” only in the e vent that (1) Zollie and Lanny could not agree on a div ision of assets and liabili ties, and (2) neithe r partner was capable of buying the other partner ’s interest in the partner ship. App arently, Zo llie McCormackwas capable of pu rchasing L anny M cCormack’s interest i n the partnership, and, thus, the trial court entere d a final jud gment ordering that method of dis solving the partnership. Inasmuch as one partner was capabl e of buying the other partner ’s interest, the trial court did not errin ordering this method of dissolution rather than ordering the sale of the p artnersh ip proper ty.

The judgm ent of th e trial court is hereby affirmed. Costs on appeal are tax ed to Lanny McCo rmack, f or which exe cution m ay issue if necessar y.6 HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.