### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 31, 2003 Session ANN UTTER ( FORMERLY MO ONEYHAN), E XECUTRIX OF THE ESTATE OF JERRY

A. MOONEYHA N, DECEASED v. HOWELL H. SHERROD, JR.
Appeal from the Chancery Court for Washington County No. 32296 Kindall T. Lawson, Judge, by Interchange

FILED JUNE 25, 2003

No. E2002-00848-COA-R3-CV

Howell H. Sherrod, Jr. (“Defendant”) and Jerry A. Mooneyhan

(“Dr. Mo oney

han”) w ere par

tners. Defendant

sued Dr. Mooney

han reg arding

one of the ir partne rship pro jects, Qu ality

Dental Pr oducts. Dr. Mooneyhan died dur

ing the pendency

of that matter. That suit resulted in a jury verdict for

Dr. Mooneyhan

that was a ffirmed on appea l. After the Quali ty D ental Pro ducts suit, Def endant w ithheld Dr. Mooneyhan’s por

tion of the rents from

another partnership property , the Bristol building. Ann Utter (formerly

Moone yh an) as Executrix of the Estate of Jerry A. Moone yhan, dec eased (“Plaintiff”), sued Defendant in chancery court seeking partition of the Bristol bui lding and an accounting as to another partnership business, World Tech Fibers. Defendant claimed the chancery court lacked j urisdicti on beca

use he pr eviously had file d a claim a

gainst t he estat e in proba te court , which, Def

end ant argued, caused jurisdiction to be vested solely in the probate court. The Trial Courtdeterminedit had jurisdiction over the partition action and issues relating only to the Bristol bu ilding and World Tech Fibers. The Trial Court ordered a nd then confirmed partition by sa le, awarded Plaintiff a judgment for certain sums related to the Br istol building andWorld Tech Fibers , and awarded Defendant a winding up fee as the surv ivin g partner. Defendant and Plaintiff e ach appeal. We affirm in part, reverse in par t, and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Revers ed in Par

t; Case R emande d.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined. Thomas C. Jessee, Johnson City, Tennessee, for the Appellant, Howe ll H. Sherrod, Jr.

Robert D. Arnold, Johnson City, Tennessee, for the Appe llee, Ann Utter (formerly Mooneyhan), Executrix of the Estate of Jerry A. Mooney han, deceased.1 The fact ual si tuat ion of t

his ca se is extre mely complex and convolut ed. For purposes of simplicity, we discuss only the facts dire ctly releva nt to the issu es on app eal.
-2- OPINION Background

In the 1980' s, Defe

ndant and Dr. Moone

yha n entere d into a pa

rtnersh ip that over

the
course of the next decade encompassed several bus iness p rojects. 1 Those businesses included, among others, Q

uality Dental Pr oducts, Wor

ld Tech F ibers, F ranklin Pl az a, th e M ov ie la nd pr op er ty,
an d the Bristol building. Defendant and Dr. Mooney han never had any

written agreement concerning their

partnership. Defendant testified that “any time we had a venture, every body got out of it what they put in it, and then whateve r was left we split 50-50 . . . .”

Sometime

around 1984, De fendant and Dr. Mooneyhan purchased the assets of World Tech Fibers. Dr. Mooneyha n obtained a loan for this business and signed a note. Defendant did not sign the World

Tech Fibers note. Defendant and Dr. Mooney han treated World Tech Fibers as part of their partnership and Defendant admits he was liable f or one-half of the loan a mount. Un fo rt un at el y, the World Tech Fibers business failed. After this business failed, the World Tech Fibers equipment was stored in a building owned by Defendant. Defendant testified theequipment
was stored in his building from 1984 through 1996, and t hat he never made any demand on Dr. Mooneyhan

to pay rent for the stora ge of th is equipme

nt. Defe ndant tes tified th e partner s tried unsuccessfully for

many y ears to sell the World Tech Fibers equipment.

In approxima

tely 1985, Defendant and Dr. Mooneyhan pur chased property in Sullivan County th at th ey r eferr

ed to as th e Bristol building. This property was leased to the State of Tennessee for a

five-ye ar period. Originally , Dr. Mooneyha n kept the books and business records for the Bristol building.

Defendant

and Dr. Moon ey

han also w ere invo lved in a business kn own as Qu ality Dental Products. In 1990, a fire destroy ed the Quality

Dental Pr oducts bus iness. Subsequently, Dr. Mooneyhan

took some o f the equ

ipment fr om the fa iled World Tech Fib ers busi ne ss to re-start Quality Dental Pr

oducts at a new locat ion. At that time, Defendant’s and Dr. Mooney han’s partner ship owned bot

h Quality Dental Product s and World Tech Fibers. Some time later, Dr. Mooney han boug ht out Def

endant’ s interes t in Quality Dental Pr

oducts.

In 1996, Dr. Mooneyha

n sol d Quality

Dental Pr

oducts. D efenda

nt claime d to still
own an interest in that busine ss and demanded a portion of the purchase price . Dr. Mooneyha n refused and Def endant su ed. Dr. M ooney han died d

uring th e pende ncy of the suitand his estate was substituted as a party . The Quality Denta l Products litigation resulted i n a jury verdict for Dr. Mooneyhan’sestate that was affirmed on appeal. I n the Quality Dental Products suit, the par ties2 Plain tiff ent ered a bid of

$37 0,00 0 at the partition sale. Prior t o the sal e being conf irmed, Def

endant ent

ered
a rai sed bi d of $407, 000, which wa s ten percent above the bi d price. The sale t o Defendant was subsequent ly conf irmed by the T rial Co urt. -3- specific ally

reserved on the reco rd all issues involving four other business projects, namely the Bristol building, the Movieland property , Franklin Plaza, and World Tech Fibers.

After lo sing t he Quality Denta l Products suit, Defendant kept, and claimed for tax purposes , one-hundre d perce nt of the rentals from the Bristol building, despite the fact that Dr

. Mooneyhan’sestate still owned the property with Defendant and was entitled to one-half of the rent

. Defendant

testified that after losing the Quality Dental Products suit he decided “[Dr. Mooneyhan] took the denta

l business . I’m

going to keep w

hat’s le ft.” Defendant also took control of the bookkeeping for the Bristol building.

Pl aintiff filed suit in the Chan

cery Court for

Washingt

on County

(“Tria l C ourt” ) seeking partition of

the Bristol building and an a ccountin g rela

ting to income der

ived fro m World Tech Fibers. Defendant

filed an Answer and Counter Complaint admitting the Bristol building was jointly owned by

the parties and also asking for partition of this property

. Defend ant, however, claimed the Trial Court lacked jurisdiction because Defendant previous ly

had filed a claim against Dr. Mooney han’s estate in probate court, which, Defe ndant argued, caused jurisdiction to be vested sol ely with the pr

obate co urt. Def endant’ s claim fi led in probate court is for “[b]reach of contract, neglig en t misrepre se ntation plus punitive damages” arising outof Qualit

y D ental Pro ducts. Pla

int iff’s Complaint filed in the instant case specifically raises issues relating only

to the Bristol building and World Tech Fibers. While Defendant’s Answer and Counter Co mpl aint in the

instant ca se does not specifi cally addressany

other bus iness ent

ities, it does request

that if the Trial Court makes an accounting as to the Br istol Building and World Tech Fibers to “make a

full accounting between the parties in connection with all the business ventures b etween the part

ies . . . .” The Tria

l Court det

ermined its jurisdiction was li

mited to ma

tte r s involving th e Bri stol buildin g and Wor ld Tech F

ibers, a nd that the

Defend ant could

bring hi s remaining claims before the Probate Court for Washing ton County.

The Trial Cour

t ordere d a partition sa

le and Defendant purchased the Bristol buil ding. 2 The parties then went to trial on the remaining issues regarding

the Bristol building and World Tech Fibers.

At trial, several issues involving World Tech Fibers were raised. One of these issues concerned

the World Tech Fibers note. Plaintiff tes tified the World Tech Fibersnote was paid in full, but that Defendant had not paid his one-half of the final thre e $25,000 pay ments. Defendant admitted h

e owed ha

lf of the d ebt on the World Tech Fibers note and admitted he did not pay any share of the final three $25,000 payment s on the note. Defendant stipulated there were $75,000 worth of checks paid on the World Tech Fibers no te, but claimed he only owed ha lf of $50,000-4-

because he was e ntitled to a

n offset for his half of another $25,000 obligation of the parties that he had paid in full.

Also in dispute was the equipment that Dr. Mooney han had takenfrom World Tech Fibers to re-sta

rt Q ua li ty D ental Products. Defendant claimed he was entitled to one-ha lf of the value of this equipment.

The other issues raised regarding World Tech Fibers involved the equipment that was stored in Defendant’s building from 1984 to 1996 and then sold. Defendant claimed he was entitled to rent for storing the equipment from 1984 to 1996. De fendant, ho wever, admitted there was nothing in writing to indicate he was to receive re ntfor storing the World Tech Fibers equipment and at no time did h

e make de

mand on Dr . Mooney

han or Dr . Mooney

han’s es t ate for such

rent. Defendant also testifie d that af ter storing the e quipment u ntil 1996, h

e eventu ally

was able to sell it for $28,000. Defendant testified he paid a $3,000 commission on the sale. De fendant was unab le to produce

any document s or rec ords to substantia te his claims regar

ding the sale of th e equipme

nt.
Several issues als o were tr ied rega rding t he Bris tol b uild ing. Defendant admitted Dr. Mooneyhan’sestate was entitled to one-half o f the r entals that Defendant had withheld, minus expenses. Defendant also requested a winding up f ee of eight percent of the

income on the Bristol building because he is the surviving partner of the partnership. Defendant testified the winding up fee was for “taking in the income, depositing it, splitting it and paying the bills, [and] dealing with the [tenant].” Defendant also testified thewinding up involve d handling

“every thing fr om birds in the roof to leaky f

aucets to . . . a continuation of what we had before in that building.” The eight percent would total $21, 988 for the period since Dr. Mooney han died in 1997.

The Trial Court’s Novembe r 5, 2001 O

pinion and

its subsequent November 28, 2001 Order contain specific findings of fac t and conc lu sions of law including, inter alia : that its jurisdiction was limited to issu es rela ting to the partiti on of the B ristol pro perty and any claims between the parties relating to the Bristol property and World Tech Fibers as describe d in the complain t, and t hat Defen dant coul d bring h is claims r elating to the Movi eland pr

operty and Fra nklin Plaza before the probate court; the parties had a partnership in the name d businesses and had agreed to be equal partners; Defendant is the surviving partner and by statute is entitled to a winding up fee for the Bristol building; Defendant had not pa

id his shar

e of the f inal thre e pay

ments on the Worl d Tech Fiber s note, but had testified credibly regarding making

payment on another

obligation and, thus, was entitled to an off-set for one of the $25,000 pay ments on the World

Tech Fibers note; there
was no agree

ment to pay rent f

or the storage of the World Tech Fiber s equipment and Defendant was unable to prove his claim that he is entitled to such rent; Defendant sold the remaining World Tech Fibers equipmen

t for $25, 000 net and Plaintiff was entit led to one -half of

this amount; and the f

acts relating to the disposition of the eq uipment Dr . Mooney

han took f rom World T ech Fib ers to Quality Dental Products were very unclear and Defendant was not entitled to a portion of the value of this equipment. The Trial Court, inter alia , approved the partition sale; awarded Defendant $3,000 as
a winding up fee for the Bristol building; awa rded Plaintiff

$76,854.45 constituting one-half of the rentals from t he Bris tol b uild ing up throu gh July of 2001 withh

eld by Defend ant, minus expenses;-5-

awarded Plaintiff on e-half of the net rental proceeds due from the B ristol building for the months of Au gu st , S ep te mb er an d O ct ob er of 20 01 , a nd on e- ha lf

of th e n et re nt al s f or an y propo rtionate share of any subseque

nt month or months until the clerk tran sfers the Bristol b uilding p roperty to Defend ant; awarded Plaintiff $25,000 as reimbursement for one-ha lf of the two payments on the World Tech Fibers note; awarded Plaintiff $12,500, which is one-half of the value of the World Tech Fibers equipment sold by Defe ndant; ordered that the Clerk and Master apply

Defendant’s share of the proceeds from

the partition sale toward the judgment in favor of Plaintiff; and order ed the Clerk and Master to deduct the costs of the partition from Plaintiff’s share of the pr oceeds.

Discussion

Alth ough not stated exactly as such, Def endant rai ses several issues on appeal: 1) whether the Trial Cour t lacked jurisdict ion to hea

r the matt

ers alle ged in th

e pleadings bec ause jurisdiction as to those

matters w as veste d solely in th e pr obate court; 2) whether the Trial Court erred by r efusin g to do a full accounting as to all partnership projects; 3) whe ther the Trial Court erred by failing to a

llow Defendant

an off-set based

upon the use of Defendant’s building to store the World Tech Fibers equipment; 4) whether the Trial Court err ed in finding Def

end ant was not
en title d to one-ha

lf the va lue of the World Tech Fibersequipmen t that was transfe

rred to Q uality Dental Products; 5) whether the Trial Court erred b y or

dering the Clerk and Maste

r to pay the first mortga ge from t

he proceeds of the partition sale; 6) whether the T rial Court erred in ordering the Clerk and Master to pay

the monetary judg

ment from Defendant’s portion of the proceeds from the partition sale; and 7) whether the Trial Court erred in requiring Defendant, as the succe ssful bidder at the partition sale, to pay the e ntire purchase price e ven th ough he already owned half of the property be

ing partitioned.

Plaintiff raises several more issues which we restate: 1) whether the Trial Court erred in awarding Defendant a winding up fee for the Bristol building en ti ty; 2) whether the Trial Court erred in allowing Defendant a credit or off-set against the pay

ments made on the World Tech Fibers note; 3) whether the Tr

ial Court e

rred in c hargin g Pl aintiff w ith the costs of the partition sale; 4) whether the Trial Court erred in failing to award Plaintiff intere st on the money owed by Defend ant; and 5) what was the legal eff ect of the claim filed by

Defendant in probate court.

Our review is de novo upon the r ecord, a ccompan ied by a presum ption of c orrect

ness of the findings of fact

of the tri al court , unless the preponderanc e of the e vidence is otherwise. Tenn. R. App. P. 13( d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

Defendant

argues the Trial Court lacked jurisdiction beca use Defendant

previous ly had filed a claim in probate court causing jurisdiction to be vested sole

ly in the prob ate c ourt. We find this argumen t unco nvin cing. A thorough review of the recor d shows the claim Defendant filed in probate court is one for “[b]reach of contrac t, negligent misrepresentation plus punitive damage s” arising solely out of

Quality Dental Products. The c omplaint attachedto the cla im filed in

probate-6-

court contains allega

tions reg arding

only Quality Dental Pr

oducts and not any of De fendant’s and Dr. Mooney

han’s o ther par

tn ership projects. The suit before us involves issues rega rding two partner ship project s other th an, and in stead of , Quality Dental Pr

oducts. Jur

isdiction a s to those other projects was not veste d solely in the pro

bate cou rt by virtue of Defend ant’s cla

im in proba

te court concerning Quality

Dental Products. Defendant’s probate court cla im did not destroy the Trial Cou rt’s jurisd iction over the partition and partnership accounting cla ims and related issues raised in the complaint in this cas e. We, therefore, hold the Trial Court correctly held it did have jurisdiction to hear the claims regarding the Bristol building and World Tech Fibers.

Defe ndan tthen argues that if the Trial Court had jurisdiction, it should have heard “all issues relating to the various business endeavors between the parties.”

Rule 8 of the Tennessee Rules of Civil Procedure provides, in pertinent part,:

Rule 8.01 C laim s for R

elie f. - A pleading which

sets forth a claim for relief, whether an original claim, counterclaim, cros s-c laim, or th ird-par ty c laim, shall
c onta in: (1) a sho

rt and pla in stateme

nt of the c laim showi ng that t he plead er is entitled to relief; . . . .

* * * *

Rule 8.05. Pleading to Be Concise and Direct - Statutes , Ordinances and Regulatio ns - Consistency. - (1) Eac h ave rment of a pleading shall be simple, concise and direct. No technical forms of plea ding or motions are required . . . .

Rule 8.06 Const

ruction of P

leadings. - All pleadings shall be so construed as to do substantial justice.

Tenn. R. Civ. P. 8. While a complaint need not contain “in minute detail” the facts giving r ise to the claim, it never

theless must conta

in allegations “from which an inferenc e may fa irly be drawn that evidence on these

material points will be introduced at trial.” Trau-Med of Am., Inc . v. Allsta te Ins. Co. , 71 S.W.3d 691, 704 ( Tenn. 200 2). “[T]he re is no du

ty on the par

t of the c ourt to cr

eate a c laim that the pleader does not spell out in his complaint.” Id . At 704 (citations omitted).

The complaint in this case addresses only issues related to the Bristol building and World Tech Fibers. Defendant filed an A nswer and Counter Complaint, neithe r of which specific ally

addressthe other

partner ship project s Defendant claims should have been considered, i.e., Movieland and Frank lin Plaza. However, Defendant’s Answer and Counter Complaint does request that if the Court grants Plaintiff’s request concerning an accounting of two of t he parti es’ partner ship ventures that the Court then should “make a full accounting be tween the part

ies in connection with all

the business ventures between the parties . . . .” We believe Defendant’s Answer and Counte

r Complain

t is suffic ient that “ an infer ence ma y f airly be draw n that evi dence o n these material points [a full accounting] will be introduced at trial.”-7- The Trial Court specifically held that “t he relationship of the parties in the above referenced

businesses constituted a part nership . . . .” Based upon this finding, the Trial Court correctly held it had jurisdiction to do an accounting of that partnership. However, what the Trial Courtdid was a partial accounting of the partnership. Plaintiff has cited us to no law why the Trial Courthad juris diction to d o a parti al partnership a ccountin g but no ju

ris dict ion to do a f

ull partner ship accounting. In fact, Plaintiff does not even address Defendant’s arg

ument on this issue in Plaintiff’s brief. As we agree with Plaintiff that the Trial Court had juris dicti on of t he acco unti ng, we hold that it was error f or t he Trial

Court to re

fuse Defendant ’s claims to do a com plete partner ship accounting, including the Movieland property and Franklin Plaza as part of that
accoun ting. That portion of the Trial Court’s judgment is reversed and this matter is remanded for the Trial Court to complete the accounting by including the Movieland

prop erty and F rank lin Pla za in th e accou ntin g.

We next consider whether the Trial Court erred byfailing to allow Defendant an offset basedupon the use of

Defendant’s building to store the World Tech Fibers equipment. The Trial Courtfound there was no agreement between De fendant and Dr. Mooney

han that any re

nt would be paid to Defendant for

storage of the World Tech Fibers equipment. De fendant testified that

at the beginning of this business endeavor, he and Dr. Mooney han agreed that Defe

ndant would provide
a place for storage and ope ration of the business and Dr. Mooney han would provide the fi nanci ng. The Trial Court

found that based upon the evidence, Defenda nt had failed to prove his claim that he is entitled to rent for storage of the World Tech F ibe r s equipment. The evidence does not prepond erate agains t the Tria

l Court’s f

indings r elative t o this claim. We find no error by the Trial Courtin determining that Defendant had failed to prove t his claim, and, ther

efore, we affi

rm on this issue.

We nex t consider whether the Trial Court erred in holding De fendant was not en title d to one-half the val

ue of the World Tech Fibersequipmen t that was transfe

rred to Q ualit y D enta l Products. The Tria

l Court fou

nd the evi dence w as insuff icient to prove Defendant’s claim that he
was entitled to a judgment for a portion of the value of this equipment. The evidenc e sho w s Defendant

and Dr. Mooneyhan, as pa rtners, werethe owne

rs of both World Tech Fibersand Qual ity Dental Products when the equipment was transferred. The evidence f urther shows Dr. Mooneyha n later purchas ed Defe

ndant’s i nterest in Quality Dental Pr

oducts. Thus, Dr. Mooneyha n purchased any interest Defendant would have h ad inthe transferred equipment when Dr. Mooney han purchased Defe ndant’s interest in Quality Dental Products. The evidence does not preponderate ag ainst the Trial Court ’s fin dings relative to this issue. We, therefore, find no error in the Trial Court’s holding that Defendant

was not entitled to a judgment for a portion of the transferred equipment. We affirm on this issue.

As to all of Defendant’s remaining issues, Defe ndant did not comply with the Tennessee Rules of Appel late Proc edure a nd the Rule s of the Cou

rt of Appe als regarding the form
a nd contents of the brief. Rule 27 of the Tennessee Rules of Appe llate Procedure provides, i n pertinent part, that the brief of the Appellant shall contain:3 The Unif orm Part ners hip Act

was r eplac ed by the Re vised Unifo rm P artners hip Act, which became effecti ve in 20 02.
-8- An argument, which may be pr ec ed ed by a summary of ar gument, setting forth the contentions of the appellant with respect to the issues presented, and t h e reasons therefor, including the re asons why the conte

ntions re quire ap

pellate r elief, w ith citations to the authorities and approp ria te references to the recor d (which may be quoted verbatim) relied on; . . . Tenn. R. App. P. 27 (7).

Rule 6, of the Rules of the Court of Appeals provides, in pertinent part,:

No co mplaint of or reliance upon action by the trial court will be conside red o n appeal unless the

argume nt contai ns a spec ific ref

erence to the page or pages of the record where such action is recorded. No assertion of fact will be consider ed on appeal unles s the argumen t contains a reference to the pag e or pages of the recor d where evidence of such fact is recorded. R. Ct. App. 6 (b).

For good cause, this Court

may suspend the requirements of the rules, “[h]owever, the Supreme Court has held that it will not find this Court in error for not considering a case o n its merits where the plaintiff did not comply with the rules of this Court.” Bean v. Bean , 40 S.W.3d 52, 54-55 (Tenn. Ct. App. 2000).

The sections of Defendant’s brief dealing with his remaining issues contain nothing
more than bare assertions that the Trial Court erred. These sections contain neither citations to the record showing where the allege d errors occurred, nor any argument or

citations to case law or other authority indicating why

the Trial Court may have

been in error. Defendant

did not comply with the Rules of Appellate Procedure and the rules of this Court reg arding these issues and, thus, has waived these issues on review. See Bean , 40 S.W.3d at 55.

We next turn to P

laintiff ’s issues. We first c onsider w hether t he Trial Court err ed in awarding Defendant a winding up fee for the Bristol building entity. Plaintiff’s brief admits that the Uniform Partnership Act in effect in Tennessee at the time of

Dr. Moone

yha n’s deat h gover ns this issue. 3 Specifica lly, Tenn. Co de Ann. § 6 1-1-117, of the Un iform Par tnership Act provided, in pe rtinent part, tha

t “[n]o part

ner is en titled to r emunera tion for a cting in the part nership business, except that a surviving partner is entitled to reasonable compensa tion for his service in winding up the partnership affairs; . . .” Tenn. Code Ann. § 61-1-117 ( 6) (1989).

Defendant

is the surviving partner

and, thus, is entitled to reasonable compensation for winding up the partnership. Defendant reque sted the Trial Court awa rd him $21,988 as a-9-

winding up fee, which is eigh t perce nt of t he inc ome on the Bri stol buil ding. The Trial Court found Defendant

was entitled to awinding up fee of $3,000. Th

e eviden ce does not preponderate

agains t the Trial Court’s findings relevant to this issue. We find no error here by the Trial Court, and, therefore, affirm on this issue.

We next consid

er wheth er the Tr ial Court e

rred in allowing Defendant

a credit or offset against the payments made on the World Tech Fibers note. Defendant testified he wa s entitled to an off-set because he previously had paid Dr. Mooneyha

n’s half of another $25,000 indebted ness. The Trial Cour

t specifi cally

found “[D efenda

nt’s] testim

ony alone pe rsuasive on this issue

and his testimony alone is sufficient to prove his cla im.”

“When a trial court has seen and heard witnesses, especially where issues of credibi lity

and weight of

oral testimony are

involved, consider

able def erence must be ac corded t

o the trial court's factual findings.” Seals v. England/Corsair Upholstery Mfg. Co. , 984 S.W.2d 912, 915 (T enn. 1 999) ( quot ing Collins v. Howmet Corp. , 970 S.W.2d 941, 943 (Tenn.1998)).

The Trial Court made

specific finding s as to the

credibi lity

of Defendant’s testimony regarding the o ff-set. We affor d the Tria

l Court con siderab le defe rence in making

credibi lity determinations and, therefore, affirm on this issue.

We ne xtconsider whether the Trial Cour

t erred in charg ing Plain tiff with t he costs of the part ition sale . The Tri al Court no ted in its Memor andum Opi nion that D efenda nt in his
answer and counter-claim agree d that the Bristol property should be s old by partition if the Trial Courtdid not enforce an alleg ed agr eement to purchase which Defendant claimed was made by the parties prior to th

e filing of the co mplaint. The T rial Court was faced with wading throug h an exception ally

complex factual situation involving the parties’ long term part ners hip de aling s. We further note the case was complicated by t he fact that one of the partners, Dr. Mooney han, was deceased, and th e parti es had no wri tten a greemen t. Gi ven th e Trial Court ’s fin dings of facts, which the evidence does not preponderate ag ainst, along with its o ther h oldi ngs as already discussed, we find no reversible error by the Trial Court

in charging Plaintiff with the costs of the partition sale. As such, we

will not inte

rfere withthe Trial Court’s decision to assess the partition costs to Plaintiff. We affirm on this issue.

Pla i ntiff’s next issue is whether the Trial Court erred in failing to award Plaintiff interest on the mone

y ow ed by

Defend ant. I

n light of our hold ing that this matter should be remanded to the Trial Court for completion of the partnership accounting, this issue is pretermitted. We do, however, direct the Trial Court’s and the parties’ attention to Tenn. Code Ann. § 47-14-123 and the recent decisions of the Tennessee Supreme Court and this Court which hav e shifte d the balance to f

avor awardi ng prejudgment interest wheneve r doing so will more fully c ompensate a plaintiff for loss o f use

of his or he r funds. Scholz v. S.B. Int’l, Inc. , 40 S.W.3d 78 , 83 (Ten n. Ct. App. 2000).-10- Fi na ll y, we consider Plaintiff’s issue regarding what was the legal effect

of the cl aim filed by Defe

ndant in probate court. This issue is not properly befor e us, nor was it properly befor e the Trial Court, as the probate court has not ruled on the eff ect of th at claim b efore it. That cl aim is in the probate court and must first beresolved there. In addition, this issue is not germane to the issues properly bef

ore us. As such, we decline to address this issue.

Conclusion

The judgmen

t of the Tr

ia l Cou rt is reve

rsed only to the exten

t that this ma

tter is remanded for the Trial Court to complete the partnership accounting. The remainder

of the judgment is affirmed. This cause is remanded to the Trial Court to com plete the pa rtner ship accoun ting, and for such other

proceedings as may

be required consistent with this Opinion, and for collection of the costs bel ow. The c osts on app eal are assesse d one-ha

lf aga inst the Appellant, Howell H. Sherrod, Jr., and his sur

ety , and one -half a

gainst the Appellee, Ann Utter as Executrix of the Estate of Jerry A. Mooneyhan.

___________________________________ D. MICHAEL

SWINEY, JUDGE