Levine v. March

• Decision Date: 27 November 2007
• Docket Number: No. M2006-00297-COA-R3-CV,M2006-00297-COA-R3-CV
• Citation: 266 S.W.3d 426
• Parties: Lawrence LEVINE et al. v. Ron MARCH et al.
• Court: Tennessee Court of Appeals

266 S.W.3d 426

Lawrence LEVINE et al. v. Ron MARCH et al.

No. M2006-00297-COA-R3-CV

Court of Appeals of Tennessee, at Nashville.

November 16, 2006 Session.

November 27, 2007.

Permission to Appeal Denied by Supreme Court May 5, 2008.

Dan R. Alexander, Nashville, Tennessee; and Fletcher W. Long, Springfield, Tennessee; for the appellants, Ron March, Kathy March Breitowich, and Lee Breitowich.

C.J. Gideon, Jr. and Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees,

Lawrence Levine and Carolyn Levine.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., joined. WILLIAM B. CAIN, J., not participating.

This appeal involves a dispute over the personal property of a wife who was murdered by her husband. Following their appointment as conservators of her property, the wife's parents filed suit in the Circuit Court for Davidson County against their son-in-law and certain members of his family seeking to recover their daughter's personal property. Following a three-day trial, the jury returned a $222,449.10 verdict for the parents against the husband's brother, sister, and brother-in-law. On this appeal, the husband's family members take issue with the denial of their motion for directed verdict based on the statute of limitations, the failure to join the original conservator as a necessary party, the admissibility of certain evidence, and the jury instructions. We have determined that the trial court did not commit error during the trial and, therefore, affirm the judgment.

I.

The mysterious disappearance of Janet March on August 16, 1996 spawned civil and criminal litigation in the state and federal courts of two states that has lasted for the past eleven years. The criminal litigation has focused on the culpability of Perry March for his wife's death.¹ The civil litigation, in its various forms, has amounted to a legal battle royale between Mr. March and his wife's parents, Lawrence and Carolyn Levine, over the custody of the March children and over Ms. March's property. While these disputes have attracted the attention of a national audience, little will be served by recounting all the details again.²

This case involves the dispute between the Levines and the members of Mr. March's family regarding the personal property Ms. March left behind in her house on the Blackberry Road, as well as Mr. March's efforts to obtain part of the proceeds of the sale of that house.³ In September 1996, approximately one month after his wife's disappearance, Mr. March and his children moved to the Chicago area. As part of this move, Mr. March, with the help of his father, Arthur March, and his brother, Ron March, removed most of the furnishings and personal property from the house on Blackberry Road and placed them in the house in Illinois in which he and the children were living. In December 1996, Mr. March and the children moved into a house in Wilmette, Illinois, owned by Dr. Kathy March Breitowich and Lee Breitowich, his sister and brother-in-law.

By this time, the tug-of-war between Mr. March and the Levines over Ms. March's property had begun in earnest. The Circuit Court for Davidson County had declared Ms. March an absentee and had appointed a conservator for her property. When the Levines opposed Mr. March's efforts to gain access to Ms. March's and the March children's bank accounts, the trial court joined them as parties in the conservatorship's proceeding. The court had also stopped the Levines' efforts to foreclose on the Blackberry Road house to prevent it from falling into Mr. March's hands.

In early February 1997, the trial court directed the conservator to sell the Blackberry Road house. The conservator found a willing buyer, and in late February sought the court's approval to sell the house. In response, Mr. March hurriedly prepared and recorded five deeds of trust identifying the house as security for pre-existing debts to himself, Arthur March, Ron March, Dr. Breitowich, and Mr. Breitowich. Mr. March recorded a lien lis pendens based on these deeds of trust.

The deeds of trust and the lien lis pendens clouded the title of the Blackberry Road house and jeopardized its sale. Accordingly, on April 1, 1997, the trial court struck the encumbrances on the house and transferred the lien lis pendens to the proceeds of the sale of the house. At this point, the conservator and Mr. March negotiated a settlement of Mr. March's claims to the Blackberry Road house and the disputed personal property. In return for Mr. March's agreement to drop all of his claims, the conservator agreed that Mr. March would receive a 1996 Volvo, a 1990 Jeep, and $60,000 of the proceeds from the sale of the house. The trial court approved this settlement over the Levines' vehement objections.⁴

The closing on the Blackberry Road house took place in June 1997. Because the lien lis pendens and deeds of trust were still attached to the proceeds of the sale, the conservator sent Mr. March and the members of his family checks to settle their claims to the proceeds of the sale. Dr. Breitowich received $25,000; Mr. Breitowich received $10,000; and Ron March received $10,000.⁵

In addition to the dispute over the house itself, the Levines and Mr. March were at odds over the contents of the Blackberry Road house. The Levines insisted that most of the contents belonged to Ms. March. They also insisted that several items belonged to members of the Levine family. Accordingly, they demanded that the personal property that Mr. March had removed from the house be returned. The trial court permitted the Levines to videotape the contents of the house in Wilmette where Mr. March and the children were living.⁶

On June 27, 1997, the trial court entered an order directing Mr. March to return certain items to the Levines. When Mr. March did not comply, the parties returned to court on August 15, 1997. On August 18, 1997, the conservator sent a letter to Ron March, who at that time was acting as his brother's lawyer, expressing his understanding of the June 27, 1997 order. According to the letter, Mr. March had agreed to turn over certain items of property to the Levines by August 21, 1997. The order also provided that in return for signing a bailment agreement,⁷ Mr. March would be permitted to retain most of the personal property taken from the Blackberry Road house as long as he was using it for himself and his children.

In August 1997 and again in October 1997, the Levines filed petitions in the trial court seeking to hold Mr. March in contempt for failing to return property that he had removed from the Blackberry Road house. On July 15, 1998, the trial court filed a memorandum and order finding Mr. March in civil contempt for failure to deliver certain items of personal property that he had been ordered to turn over to the Levines and imposing Tenn. R. Civ. P. 37 sanctions on Mr. March because of his behavior during a deposition.

In May 1999, Mr. March and the children abruptly left Wilmette, Illinois and moved to a small town in Mexico where Mr. March's father resided. They left behind virtually all the personal property that had been removed from the Blackberry Road house.⁸ At this point, the focus of the litigation between Mr. March and the Levines shifted from the property issues to the custody of the March children. The Levines obtained custody of the children in June 2000, but in April 2001, the federal courts ordered them to return the children to Mr. March in Mexico.

After Mr. March and the children moved to Mexico, the Levines apparently inspected the personal property that had been left behind in the house owned by the Breitowiches. In mid-1999, Dr. Breitowich sold Ms. March's 1996 Volvo and used the proceeds to pay off some of Mr. March's debts. In October 1999, the Breitowiches also sold the house in Wilmette in which Mr. March and the children had been living. Ron March and the Breitowiches stored the contents of the house in a forty-foot storage trailer. In February 2000, they divided up the items in the trailer between themselves and either gave away or discarded the rest. They did not consult with or inform either the conservator or the Levines regarding their actions.

The original conservator withdrew from the case, and on December 19, 2001, the trial court appointed the Levines as the successor conservators of Ms. March's property. In a telephone call with Dr. Breitowich on July 29, 2002, Ms. Levine requested information regarding the location of the property that had been in Mr. March's house when he moved to Mexico. Dr. Breitowich's answers were vague and evasive. She did not provide direct answers to Ms. Levine's questions regarding the location of the property, and she eventually suggested that Ms. Levine should talk with Ron March. Dr. Breitowich did not tell Ms. Levine that she had placed Ms. March's custom-made granite table, six chairs, and artwork in her own house or that Ron March had taken a television set, a wooden table, couches, pictures, chairs, ottomans, and corner cabinets that had been in the Blackberry Road house.

On August 19, 2002, the Levines' lawyer mailed certified letters to Ron March and the Breitowiches requesting them to return the furniture that Mr. March had left behind when he moved to Mexico and the portions of the proceeds from the sale of the Blackberry Road house they had received in June 1997. On December 6, 2002, after receiving no response to their letters, the Levines filed suit in the Circuit Court for Davidson County against Mr. March and his family⁹ seeking to recover the property and sale proceeds.¹⁰ Ron March and the Breitowiches filed a joint answer in April 2003. In general terms, they denied that they had destroyed or converted any property belonging to Ms. March or to the Levines or that they had engaged in champerty. In addition, they asserted affirmative defenses based on lack of jurisdiction, laches, statute...