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Gatlinburg v. Greenstein

Court of Appeals of Tennessee, Knoxville

June 29, 2017

CITY OF GATLINBURG
v.
MAURY R. GREENSTEIN, ET AL.

          Session January 26, 2017

         Appeal from the Chancery Court for Sevier County No. 14-5-175 Telford E. Forgety, Jr., Chancellor

         This appeal involves post-judgment proceedings following a final judgment in favor of the city that the appellants pay $45, 175 for unpaid maintenance fees on their commercial real property. The appellants appeal the trial court's action overruling a motion to pay the judgment by installments under the so-called "slow-pay" statute, Tennessee Code Annotated section 26-2-216. We affirm the decision of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded.

          Matthew A. Grossman and Kevin A. Dean, Knoxville, Tennessee, for the appellants, Maury R. Greenstein and Joan Greenstein.

          James H. Ripley, Sevierville, Tennessee, for the appellee, City of Gatlinburg.

          John W. McClarty, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE.

         I. BACKGROUND

         The City of Gatlinburg ("City") sued Maury R. and Joan Greenstein ("the Greensteins"), residents of Ohio, for unpaid maintenance fees relating to the Greensteins' ownership of commercial real property in City. These properties have been the subject of prior appeals: City of Gatlinburg v. Kaplow, No. E2013-01941-COA-R3-CV, 2014 WL 2194517 (Tenn. Ct. App. May 27, 2014), appeal denied (Oct. 22, 2014); Kaplow v. City of Gatlinburg Bd. of Adjustments & Appeals, No. E2014-00347-COA-R3-CV, 2015 WL 3964212 (Tenn. Ct. App. June 30, 2015).[1]

         After the trial court referred this case to a special master, hearings were conducted in February 2016. On March 30, 2016, the trial court again took up the matter to hear exceptions to the special master's report. On April 14, 2016, a final judgment in the amount of $45, 175 was issued in favor of City. The Greensteins did not appeal from the final judgment. However, on July 5, 2016, they filed a motion pursuant to Tennessee Code Annotated section 26-2-216 to pay the judgment by monthly installments of $1, 250. In the initial affidavit in support of their motion to pay by installments, the Greensteins asserted that "over the past six (6) months our rental properties in Gatlinburg, Tennessee have operated at a net loss."

         In its response in opposition, City incorporated the sworn testimony of Stuart Kaplow (the Greensteins' lessee) from the special master's hearing. Kaplow testified that he operated the Greensteins' 175 rental units in City and that the units produced income of $100 to $225 per unit, per week. City argued that using a medium unit charge of $150 per week, the properties would produce an annual gross income of $1, 365, 000 (175 units x $150 x 52 weeks = $1, 365, 000).

         In addition to Kaplow's testimony, City's response included deeds revealing ownership by the Greensteins of various properties in Tennessee, Ohio, and Florida. The Greensteins' affidavit, however, fails to mention their ownership of properties in Florida and Ohio or other assets. No details were provided ...


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