author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    In re: N.E.C., Meredith Craft v. Juvenile Court of Shelby County, Tennessee, et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 20, 2005 Session.
    Feb. 17, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 29, 2005.

      Craig E. Willis and Debra L. Fessenden of Memphis for Appellant, Juvenile Court of Shelby County, Tennessee.
    Robert S. Weiss of Memphis for Appellant, Nancy Polk.
    Virginia M. Alexander for Appellee, In Re: N.E.C., Meredith Craft.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

The juvenile court and custodial party in a dependency and neglect proceeding were granted a Rule 10 application for extraordinary appeal from the chancery court’s order staying and restraining proceedings of dependency and neglect in the juvenile court. We reverse the order of the chancery court.

I. PROCEDURAL HISTORY

On August 11, 2003, the Tennessee Department of Children’s Services initiated proceedings, in the juvenile court, pursuant to T.C.A. § 37-1-103, to determine whether N.E.C. and A.S.C., the minor children of Meredith Craft (hereinafter Mother), should be removed from the custody of their parents and placed in the custody of their grandmothers. On that date, the juvenile court issued a protective custody order which awarded temporary custody of A.S.C. to the paternal grandmother, Glenda Craft, and awarded temporary custody of N.E.C. to the maternal grandmother, Nancy Polk (“Ms.Polk”).

Subsequent proceedings were held in the juvenile court on September 24, 2003, wherein temporary custody of A.S.C. was awarded to the mother and father, N.E.C. remained in the custody of Polk, and the parents were awarded visitation with N.E.C. The proceedings were then continued to January 7, 2004. On January 7, 2004, the juvenile court made an oral ruling wherein the Tennessee Department of Children’s Services was permitted to withdraw its petition as to A.S.C., who was to stay with his parents temporarily, but N.E.C. was to remain in Polk’s custody pending further investigation, with his parents having the right to unsupervised visitation with N.E.C. one weekend every month. The juvenile court retained jurisdiction over the matter and continued the proceedings until July 6, 2004 to permit an Interstate Compact Investigation to be conducted. The juvenile court refused to accept the voluntary dismissal filed by TDCS.

The parties later discovered that the written Order entered on January 7, 2004, had possibly transposed the children’s names, leading to confusion concerning the mother’s right to take custody of N.E.C. No appeal was taken from any Order of the juvenile court by the Mother, nor was there any request by the mother for a rehearing in the juvenile court. The course of proceedings in the chancery court which gave rise to the instant appeal were initiated on April 2, 2004 when the Mother filed a Habeas Corpus proceeding in Chancery Court and obtained custody of N.E.C. from Polk. The fiat on the petition was executed by Circuit Court Judge Rita Stotts by interchange, and a hearing was set for April 22, 2004 in chancery court. Juvenile court was not served with notice of this hearing until April 21, 2004.

II. FACTS

In May or June of 2003, Meredith Craft left her children, N.E.C. and A.S.C., with Glenda Craft, the paternal grandmother of A.S.C., while Meredith Craft went to Minnesota in an attempt to secure housing. Mother contends that she called Memphis every two or three days to check on the children. When a devastating storm hit Memphis on July 22, 2003, Glenda Craft’s utility service was interrupted and Glenda Craft asked Nancy Polk, the maternal grandmother of the children, to take N.E.C. into her home.

At some point after Ms. Polk took custody of N.E.C., Glenda Craft and Ms. Polk went to juvenile court and stated (falsely, Meredith Craft alleges) that Meredith Craft had abandoned A.S.C. and N.E.C. Based on this information, on August 11, 2003, the Tennessee Department of Children’s Services filed a sworn petition in juvenile court alleging that N.E.C. and A.S.C. were dependent and neglected children. On the same day, Judge Kenneth Turner entered a protective custody order finding that the placement of the children with Glenda Craft and Ms. Polk was in the children’s best interests. Judge Turner further ordered that an investigation into the welfare of N.E.C. and A.E.C. be conducted by Court Appointed Special Advocates (CASA).

On September 24, 2003, a hearing was held before Referee Claudia S. Haltom. Referee Haltom ordered that the case be continued to January 7, 2004; that N.E.C. remain at Ms. Polk’s home; that temporary custody of A.S.C. be awarded to the mother and father; and that the mother and father be given reasonable and liberal visitation with N.E.C. at Ms. Polk’s residence.

Referee Cary Woods presided over the January 7th hearing. At the January 7th hearing, Glenda Craft recanted the allegations she had earlier made to DCS, and moved to dismiss the petition filed by DCS. However, Ms. Polk did not recant her allegations. Referee Woods refused to dismiss the proceedings in light of Ms. Polk’s allegations and in light of certain facts uncovered during the CASA investigation, which required further involvement by the juvenile court. Referee Woods orally ruled that N.E.C. was to stay with Ms. Polk pending further orders from the juvenile court. Referee Woods also entered a written order that stated:

1. That the case should be continued to July 6, 2004, so that an Interstate Compact Investigation could be conducted;
2. That the Mother and Father should have temporary custody of A.S.C.
3. That DCS was permitted to withdraw its petition as to N.E.C. but that the matter of A.S.C. be continued due to CASA’s investigation discovering relevant issues related to the best interest of the child, which required further involvement by the Court.
4. That the mother and father shall have unsupervised visitation with the children one weekend a month from 6 p.m. Friday until 6 p.m. Sunday, to be agreed upon by mother, father, and Polk, pending further orders of the Court.

The juvenile court asserts that the names of N.E.C. and A.S.C. were transposed in Item B above, and that based on Referee Woods’ oral ruling, it is clear that Referee Woods intended to write that DCS was permitted to withdraw its petition as to A.S.C., not N.E.C. No appeal was taken from this written order.

On April 2, 2004, Meredith Craft filed a petition for habeas corpus as to N.E.C., alleging, inter alia, that DCS dismissed the petition as to N.E.C. and that the written order did not reflect the oral order of the juvenile court. On April 2, 2004, a fiat on the habeas corpus petition was executed by Circuit Court Judge Rita Stotts by interchange, and a hearing was set for April 22, 2004 in Chancery Court, Part I. Juvenile court was not served with the habeas corpus petition until April 21, 2004.

On April 8, Nancy Polk filed a petition in juvenile court alleging that N.E.C. was a dependent and neglected child.

At the April 22 hearing in chancery court on Meredith Craft’s petition for ha-beas corpus, juvenile court requested a continuance on the ground that it had only been served with the petition the day before, and a critical witness was unavailable. This request for a continuance was denied, and the juvenile court’s request to consider the affidavit of the critical witness, Gail Tarpy, was also denied. The chancery court refused to consider an audio-recording of the juvenile court proceeding held January 7, 2004. The chancery court also refused to consider any testimony as to what occurred in juvenile court. Upon learning that a second protective custody order had issued from juvenile court returning N.E.C. to Polk, the chancellor enjoined further proceedings in the juvenile court other than the Interstate Compact Investigation.

On May 5, 2004, the chancery court entered an order giving the mother custody of the minor child, N.E.C. The order reads, in its entirety, as follows:

This matter having been heard by the Honorable Walter L. Evans, Chancellor of Part I of the Chancery Court of Shelby County, on Thursday, April 22, 2004, all parties of interest being before the Court, upon the pleadings filed in this cause, exhibits presented, and statements of counsel, the Court finds as follows:
1. The dependent and neglected petition filed by the Department of Children’s Services on August 11, 2003 in the Juvenile Court of Shelby County that placed the child in the custody of Respondent, Nancy Polk, was the only petition filed in this matter prior to the Writ of Habeas Corpus issued on April 2, 2004.
2. The Department of Children’s Services filed a Notice of Voluntary Dismissal on January 9, 2004, because the allegations in the petition were later determined to be based on false and unverifiable allegations.
3. The Juvenile Court order dated January 7, 2004, allowed the Department to withdraw their Petition per their notice of January 9, 2004.
4. The oral motion of Respondent, Nancy Polk, to dismiss the Writ of Habeas Corpus shall be denied.
5. The oral motion of Respondent, Juvenile Court of Shelby County, to continue the matter to permit Respondent an opportunity to respond to the Petition for Writ of Habeas Corpus served on Respondent on April 21, 2004 shall be denied.
6. The Writ of Habeas Corpus signed on April 2, 2004, by interchange by the Honorable Rita Stotts, Judge of Division 4 of the Circuit Court of Shelby County, and issued by the Chancery Court Clerk of Shelby County shall be confirmed.
7. The Court will continue the matter until June 30, 2004, in order for the Respondents to show cause as to why this order should not be made permanent.
8. If the Court determines that Respondents have shown that the order of April 2, 2004 should not be made permanent; and Respondents have shown that further action by this Court is needed to safeguard the welfare and interest of the child; then the Court may consider temporary custody arrangements at that time.
9. All proceedings on this matter in the Juvenile Court of Shelby County shall be stayed, pending the resolution of whether or not the Writ of Habeas Corpus issues on April 2, 2004, prior to the April 8, 2004 Order of Protective Custody issued by the Juvenile Court Referee, should not be made permanent.
10. The Juvenile Court of Shelby County is a party to these proceedings and is restrained from any further action in this matter pending adjudication from this Court.
11. Any Interstate Compact Investigation order by Juvenile Court may continue.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1.The verbal motion of Respondents to dismiss the Writ of Habeas Corpus is denied.
2. The verbal motion of Respondent, Juvenile Court of Shelby County, to continue this matter is denied.
3. The Writ of Habeas Corpus signed on April 2, 2004, by interchange by the Honorable Rita Stotts, Judge of Division 4 of the Circuit Court of Shelby County, and issued by the Chancery Court Clerk of Shelby County is confirmed.
4. All proceedings on this matter in Juvenile Court of Shelby County are stayed, pending an adjudication on June 30, 2004, at 10:00 a.m. as to whether or not there is any cause why the Writ of Habeas Corpus issued on April 2, 2004, and sustained by this Court on April 22, 2004, should not be made permanent.
5. The Juvenile Court of Shelby County is restrained from any further action in this matter pending resolution from this Court on June 30, 2004.
6. Any Interstate Compact Investigation ordered by Juvenile Court may continue.

On June 4, 2004, the juvenile court filed a motion in chancery court, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, for permission to file an interlocutory appeal. Argument was heard on June 11, 2004, and the chancery court denied the motion for permission to file an interlocutory appeal.

III. ISSUE

The Juvenile Court of Shelby County, along with Respondent, Nancy Polk, filed an application for extraordinary appeal pursuant to Rule 10, Tenn. R.App. P. This Court granted the Rule 10 application in part, stating: “the Court grants permission to appeal the portions of the chancery court’s May 5, 2004 order that stayed and restrained the proceedings and actions of the Shelby County Juvenile Court. The remainder of this application is denied.”

Appellant, the Juvenile Court of Memphis and Shelby County, presents several issues for review on appeal, as does Appel-lee. However, we perceive there to be only one issue in this appeal, which can be stated as follows:

Whether the Order of the chancery court imposing a stay upon all proceedings in juvenile court concerning a child at issue in dependency and neglect proceedings is contrary to law such that it requires reversal by this Court.

IV. STANDARD OF REVIEW

This appeal concerns solely a question of law; there are no disputed facts at issue in this appeal. Our review of a trial court’s determinations on questions of law is de novo with no presumption of correctness. Gonzalez v. State Dep’t of Children’s Servs., 136 S.W.3d 613, 616 (Tenn.2004).

V. ANALYSIS

Our sole task in this appeal is to determine whether the challenged order issued by the chancery court, imposing a stay of all proceedings in juvenile court concerning N.E.C., is contrary to law because it encroaches upon the exclusive and original jurisdiction of the juvenile court. We will first review the relevant law, and then we will consider the application of the law to the facts in the case at bar.

Under Tennessee law, juvenile courts hold exclusive and original jurisdiction over proceedings to determine whether a child is dependent or neglected. The statute granting this exclusive, original jurisdiction is Tennessee Code Annotated, § 37-l-103(a), which reads, in pertinent part:

The juvenile court has exclusive original jurisdiction of the following proceedings, which are governed by this part:
(1) Proceedings in which a child is alleged to be delinquent, unruly or dependent and neglected, or to have committed a juvenile traffic offense as defined in § 37-1-146 ...

This statute is unambiguous, and this Court has interpreted it consistently to mean that no other court shares jurisdiction with juvenile court in deciding dependency and neglect proceedings. As we stated in one leading case, “[t]hat this jurisdiction was intended to be exclusive is reinforced by the omission of dependency and neglect proceedings from T.C.A. § 37-1-104, which lists the various proceedings in which the juvenile court shares concurrent jurisdiction with other courts.” Arnold v. Gouvitsa, 735 S.W.2d 458, 460 (Tenn.Ct.App.1987), overruled on other grounds by Seessel v. Seessel, 748 S.W.2d 422 (Tenn.1988); see also Marmino v. Marmino, 34 Tenn.App. 352, 238 S.W.2d 105, 107-8 (1951); Carpenter v. Carpenter, 1989 WL 139721, at *3 (Tenn.Ct.App. Nov.16, 1989); State o/b/o Whitehead v. Mattie, No. 01A01-9511-CH-00538, 1997 WL 749465, at *2-3 (Tenn.Ct.App. Dec.5, 1997). Therefore, if the chancery court’s order interferes with the juvenile court’s exercise of its jurisdiction over dependency and neglect proceedings, the order cannot stand.

Applying this law to the facts of this appeal, it is clear that the chancery court’s order was intended to restrain the juvenile court from conducting any proceedings to determine whether N.E.C. was a dependent or neglected child, and the proper disposition of the case. In the April 22, 2004 hearing before the chancery court, Robert S. Weiss, the attorney for Ms. Polk, asserted strenuously that juvenile court had exclusive jurisdiction over dependency and neglect proceedings and that the chancery court could not properly restrain juvenile court proceedings on a dependency and neglect petition. The trial court argued that, because the petition for a writ of habeas corpus was filed prior to Ms. Polk’s petition alleging that N.E.C. was dependent and neglected, the matter in chancery court had precedence over the dependency and neglect proceeding:

MR. WEISS: Your honor ... the matter that’s before Your Honor is a petition for habeas corpus. The petition for habeas corpus is a separate and completely independent petition from a petition alleging dependency and neglect which would be filed in Juvenile Court.
Your Honor, there is no petition before Your Honor in order to seek the relief to stay that matter. A dependency and neglect petition is solely in Juvenile Court. They have exclusive jurisdiction. Judge Woods — Referee Woods took jurisdiction by issuing that protective custody order.
THE COURT: Referee Woods’ order would not supersede this Court’s order. The Court is staying any further proceedings in the Juvenile Court pending a resolution of the matter as to whether or not there is cause to be presented as to why the habeas corpus confirmation should not be made permanent.

We conclude that the chancery court’s order restraining proceedings in juvenile court constituted an unlawful encroachment upon the exclusive and original jurisdiction of juvenile court to hear matters in which a child is alleged to be dependent and neglected. The chancery court was mistaken in its assertion that, because the petition for writ of habeas corpus was filed prior to Ms. Polk’s petition alleging that N.E.C. was dependent and neglected, the chancery court was empowered to restrain proceedings in juvenile court until the conclusion of the habeas corpus proceedings. The chancery court, in effect, is taking on the responsibility to determine a dependent and neglect case, which is the exclusive province of the juvenile court. The chancery court is not, under any circumstances, empowered to restrain matters that lie within the exclusive jurisdiction of juvenile court. For this reason, we vacate the order of the trial court.

YI. CONCLUSION

The order of the chancery court, restraining proceedings in juvenile court concerning the petition alleging that N.E.C. is dependent and neglected, is reversed. The costs of this appeal are assessed to Meredith Craft.

      . We are puzzled by the chancery court’s statement that juvenile court proceedings must be stayed pending resolution of the question of "whether or not there is cause to be presented as to why the habeas corpus confirmation should not be made permanent.” Habeas corpus, by its very nature, is permanent ab initio.


source: Caselaw Access Project

author: W. FRANK CRAWFORD, P. J., W.S.,

license: Public Domain

text:
    Mary E. FOSSETT, et al. v. Dorothy GRAY, et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 21, 2004 Session.
    Sept. 16, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.

      John W. Harris, Jr., Intervening Defendant/Appellant, Pro Se.
    James F. Schaeffer, Jr., of Memphis, For Appellees, Mary Fossett and James F. Schaeffer, Sr.
    Randall J. Fishman, of Memphis, For Appellee, American Logistical Properties, Inc.
   OPINION

W. FRANK CRAWFORD, P. J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

Numerous heirs to property in Fayette County sought to sell two parcels of land for partition. Defendants/Appellees opposed the partition of one of the tracts. The trial court ordered that both tracts be sold for partition by auction, which was held on September 30, 2000. During the pendency of the partition suit, an investor bought the fractional interests in the property from numerous heirs, and intervened as a defendant in the case. The interest of the intervening defendant was foreclosed upon by the individual who had loaned him funds to purchase the fractional interests in the land. After the foreclosure, first intervening defendant brought a cross-claim against second intervening defendant/appellant. The trial court entered a judgment against second intervening defendant for the amount of overbid at foreclosure, $150,000. Second intervening defendant/appellant appeals and also appeals the final judgment in the partition case. We affirm in part, reverse in part, and remand.

This appeal involves a partition suit to two tracts of land in Fayette County, Tennessee. Numerous heirs of the subject property sought to have it sold for partition. The trial court decreed that both tracts be sold for partition. Intervening defendant, Dr. John W. Harris, Jr. (“Dr.Harris”), appealed from the chancery court’s final judgment and presents numerous issues for review.

I. FACTUAL AND PROCEDURAL HISTORY

The Partition Lawsuit

This appeal concerns a suit to partition two tracts of land, comprising approximately 130 acres, in Fayette County, Tennessee. Parcel I (also known as the “Granderson Grandberry tract”) consisted of approximately 116.5 acres of land; Parcel II (also known as the “Cassie Grand-berry tract”) consisted of approximately 13.8 acres of land. Both tracts originally belonged to Granderson Grandberry, who died intestate in 1910. Granderson Grand-berry was survived by nine children who inherited his interest in the tracts of land at issue in this litigation. However, it appears that no action was taken to determine the status of the title to the property until 1978, when Mary Fossett, one of the heirs of Granderson Grandberry, contacted attorney James Schaeffer, Sr., to discuss the possibility of determining the heirs to the property.

Mr. Schaeffer investigated the status of title to the property and conducted extensive research to determine the heirs to the property. In 1991, numerous heirs to the property contracted with Mr. Schaeffer to bring an action to quiet title, determine the heirs, and partition the land. In 1992 Mr. Schaeffer filed the Complaint to Determine Heirship, to Quiet Title, and to Sell Land for Partition, in the chancery court of Fayette County. In June of 1996 the chancery court entered its first Order on Complaint to Determine Heirship, to Quiet Title, and to Sell Land for Partition.

The Dispute Over Parcel II

Shortly after the chancery court entered its order, Granville Grandberry and Wilma Buckley, two heirs to the Grandberry property, petitioned the court to set aside its order of June, 1996. They asserted that their contract with Mr. Schaeffer, Sr., had only pertained to Parcel I, the larger of the two tracts, and that the court had improperly ordered the sale of Parcel II. The resolution of the partition suit was delayed by these objections, as well as by other complications, including the death of some heirs, the discovery of other heirs, and other difficulties occasioned in partitioning land among such a large number of heirs.

The Intervention of American Logistical Properties, Inc.

Thomas Burrell, through his company, American Logistical Properties, Inc. (ALP), contacted a number of the heirs to the Grandberry estate and purchased their fractional interests in the land. Ultimately, a large number of heirs sold their fractional interests in the land to ALP, which was then allowed to intervene in the litigation. ALP opposed the sale for partition of Parcel II on the ground that it had acquired all the fractional interests in Parcel II; however, the purported conveyance to ALP by one heir, Jerry Cotton, was later revoked by Cotton on the basis of his minority at the time of the conveyance.

ALP’s purchase of the fractional shares in the land was made possible, in part, by a loan of approximately $100,000 made by Dr. Harris, who in turn received promissory notes in the amount of $375,000 secured by a deed of trust on the fractional interests in the property acquired by ALP.

The Property Interest Acquired by Plaintiffs Attorney

While the partition suit was pending, one of the plaintiffs and Grandberry heirs, Killis Truehart, became ill and asked the plaintiffs’ attorney, James F. Schaeffer, Sr., to advance him his share of the proceeds from the anticipated sale for partition. Mr. Schaeffer advanced him the funds, and Killis Truehart transferred his ownership interest in the property to Mr. Schaeffer. Upon learning that Mr. Schaeffer held an ownership interest in the subject property, ALP filed a motion to disqualify Mr. Schaeffer, asserting that Mr. Schaeffer’s acquisition of the interest in the property constituted a violation of numerous Ethical Considerations and Disciplinary Rules of the Tennessee Code of Professional Responsibility. Noting that Mr. Schaeffer, Sr., had agreed to convey the fractional share of the land to the Clerk and Master of the Fayette County chancery court pending further orders of the court, the court denied the motion to disqualify Mr. Schaeffer.

The Foreclosure by Dr. John W. Harris, Jr.

In November 1999, Dr. Harris (who had helped finance ALP’s acquisition of the fractional interests in the Grandberry property by loaning funds to ALP) learned that Burrell had faded to pay the property taxes on the property, in violation of the loan agreement between ALP and Harris. Dr. Harris immediately instituted foreclosure proceedings on the property. The Court then permitted Dr. Harris to intervene as defendant in the lawsuit. Dr. Harris has acted pro se during his involvement in this litigation. Dr. Harris, who stepped into the shoes of ALP when he foreclosed upon the property and intervened in this litigation, was bound by ALP’s admissions as to the identity of the heirs and the fractional interests owned by the heirs of the subject property.

The Cross-Claim by ALP

When Dr. Harris loaned approximately $100,000 to ALP, he received a promissory note in the amount of $375,000. At the foreclosure sale of the fractional interests acquired by ALP, Dr. Harris placed a winning bid of $250,000 for the property, $150,000 more than he had actually advanced to ALP. ALP filed a cross-claim against Harris for the excess funds. At a hearing held on May 23, 2002, the Court awarded a judgment against Dr. Harris in the amount of $150,000.

The Chancery Court’s Final Decree

On January 28, 2003, the Fayette County Chancery Court, Dewey C. Whitenton, Chancellor, entered its final decree in this matter. The decree reads, in relevant part:

IT IS ... ORDERED, ADJUDGED AND DECREED by the Court that the prior Orders of this Court concerning partition by sale of the subject lands and the approval of the sale of the lands as a result of the auction of the land held on September 30, 2000 are incorporated herein by reference and made a part of this final decree.
IT IS FURTHER ORDERED by the Court that the Order awarding damages in the amount of $150,000.00 to American Logistical Properties, Inc. and against Dr. John W. Harris, Jr., Trustee, is incorporated herein by reference and made a part of this final decree.
IT IS FURTHER ORDERED by the Court that the attorneys are awarded their reasonable and necessary expenses in the amount of $18,500.00 which shall be paid out of the common fund created by the sale of the land and being held pursuant to orders in trust by the clerk of this Court.
IT IS FURTHER ORDERED by the Court that said attorneys shall be awarded their reasonable and necessary attorneys fees in the amount of $100,000.00 likewise out of the common fund created by the sale of the land and being held by the clerk of this Court.
IT IS FURTHER ORDERED by the Court that the attorneys are awarded additional attorneys fees in the amount of $56,850.00 which fees shall be paid exclusively from the undivided shares and interests of Dr. John W. Harris, Jr. and which the Court found above were the result of the delay and unnecessary expense caused by Dr. Harris in this cause.
The costs of this cause are adjudged against the common fund created by the sale of the land and being held by the clerk of this Court for which execution may issue as necessary.

On April 2, 2003, the Court entered an Order on Plaintiffs’ Motion to Alter or Amend Judgment, awarding Plaintiffs’ counsel “to recover pre-judgment interest on their expenses incurred prior to 01-01-98 in the amount of $9,673.73 to accrue at the rate of 10% simple interest from and after January 1, 1998 to the date of the Final Decree entered on January 29, 2003....”

Dr. Harris filed his Notice of Appeal on April 21, 2003.

II. STANDARD OF REVIEW

Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the trial court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.1996) and Tenn. R.App. P. 13(d). The trial court’s factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993).

III. ISSUES FOR REVIEW

This case consolidates two separate appeals, one involving the cross-claim of American Logistical Properties, Inc., against Dr. Harris arising from the purchase of the interest in the property by ALP, Inc., and the subsequent default and foreclosure; and the other arising from the partition lawsuit in which Dr. Harris was Intervening Defendant. In each appeal, Dr. Harris raises multiple issues.

Appeal I

Issue 1: Did the court err by allowing ALP and Thomas Burrell to remain in the lawsuit after Dr. Harris foreclosed on ALP?

Harris asserts that the chancery court erred in permitting ALP to remain in the lawsuit after he foreclosed on ALP’s interest in the property at issue. ALP’s continued involvement in the lawsuit was premised on ALP’s cross-claim against Harris arising out of the foreclosure. Tenn.R.Civ.P. 13.07 governs when a party-may bring a cross-claim against a co-party:

A pleading may state as cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action.

ALP was the original defendant in this matter until the appellant, Dr. Harris, foreclosed upon ALP’s interest in the property. The chancery court found that Harris bought the property at the foreclosure sale for $250,000, an amount that was $150,000 in excess of the consideration he advanced to ALP. In its cross-claim, ALP alleges that Dr. Harris’s loan was usurious and that Dr. Harris should be liable for the $150,000 overbid. Without question, ALP’s cross-claim against Mr. Harris “relatives] to ... property that is the subject matter of the original action.” Therefore, we find no error in the chancery court’s decision to allow ALP to remain in the lawsuit to litigate its cross-claim against Mr. Harris.

Issue 2: Did the court err by awarding ALP/Burrell a $150,000 judgment at the end of the trial?

The second issue Dr. Harris raises in this appeal is whether the chancery court erred in awarding ALP a judgment against Dr. Harris in the amount of $150,000 as a result of Dr. Harris’s overbid at the foreclosure sale of the property. In his brief, Dr. Harris alleges that the chancery court’s ruling “amounted to an improper modification of the contract between the parties.” Dr. Harris further maintains that he is owed $125,000, since the amount on the face of the note was $375,000, and he bid $250,000 on the land at the foreclosure sale.

The implicit basis for the chancery court’s award of the $150,000 judgment against Dr. Harris was that the terms of the loan were usurious. In its trial opinion, the court wrote:

... Dr. Harris loaned American Logistical the sum of approximately $100,000.00 and received promissory note(s) in an amount substantially in excess of the actual amount loaned and the notes were secured by a Trust Deed on the interests of the heirs acquired by American Logistical.

The promissory notes had a value of $375,000, and were given in exchange for consideration of $100,000. They were therefore usurious on their face. Under Tennessee law, courts look to the substance, not the form, of a transaction in determining whether the terms of a loan are usurious. As this court explained in Adams v. Schwartz, 49 Tenn.App. 523, 356 S.W.2d 597, 600 (1960), “If the contract is in truth and fact a loan of money at usurious rates, it matters not what devices may be resorted to for the purpose of concealing its true character, the law will strip from it these devices, and adjudge it by what it is in fact, rather than by what it may in its terms appear to be.” Therefore, the chancery court could correctly have found that the contract was usurious and that Appellant, Dr. Harris, was only owed $100,000, the amount of consideration he extended to ALP.

Since the chancery court found that Dr. Harris was owed $100,000 by ALP, the court was correct in awarding ALP a judgment for $150,000, as the surplus from the foreclosure sale. A creditor is entitled only to the balance owed to him out of the proceeds of the foreclosure sale; any surplus goes to the debtor. See Guinn v. Locke, 38 Tenn. 110, 1858 WL 2865, at *2 (1858).

Appeal II

Issue 1: Did the court err by allowing plaintiffs’ attorney, James F. Schaeffer, Sr., to remain as plaintiffs’ attorney after he purchased an interest in the property that is the subject of this dispute?

Dr. Harris contends that the chancery court erred in permitting plaintiffs’ attorney, James F. Schaeffer, Sr., to continue representing plaintiffs after he purchased an interest in the property at issue in this dispute. As the basis for this assignment of error, Dr. Harris alleges that Mr. Schaeffer’s acquisition of this property interest was in violation of numerous provisions of the Tennessee Code of Professional Responsibility, particularly Ethical Consideration 5-2, which reads, in relevant part:

After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make the lawyer’s judgment less protective of the interests of his client.

Whether Mr. Schaeffer’s action in purchasing the land should have disqualified him from continued representation of the Plaintiffs is a matter for the sound discretion of the chancery court. We note at the outset that this Court has stated in the past that “courts should be reluctant to disqualify a litigant’s counsel of choice and should grant disqualification motions sparingly.” Whalley Dev. Corp. v. First Citizens Bancshares, Inc., 834 S.W.2d 328, 331-2 (Tenn.Ct.App.1992). Furthermore, “[cjourts should disqualify counsel with considerable reluctance and only when no other practical alternative exists.” In re Ellis, 822 S.W.2d 602, 605 (Tenn.Ct.App.1992). Keeping in mind that disqualification of an attorney is a drastic option to be used only when strictly warranted, we must determine whether the chancery court abused its discretion in refusing to disqualify Mr. Schaeffer under the circumstances of this case. The record shows that, in December 1997, Mr. Schaeffer informed, by letter, approximately twenty-five heirs that a settlement agreement had been reached and that they would be paid for their fractional interests in the land at the price of $2,500 per acre. Soon after agreeing to this settlement, one of the heirs, Killis Truehart IV, contacted Mr. Schaeffer and explained that he was in desperate need of the funds due to a medical condition that required Mr. Truehart’s immediate return to California. Mr. True-hart asked Mr. Schaeffer to advance him the funds for the sale of Mr. Truehart’s fractional interest in the land; in consideration, Mr. Truehart would convey his fractional interest in the land to Mr. Schaeffer. Mr. Schaeffer agreed to this arrangement and advanced the funds to Mr. Truehart. There is evidence in the record that Mr. Schaeffer intended to transfer the deed to Mr. Burrell upon the conclusion of the settlement, but the settlement fell through, and Mr. Schaeffer did not transfer the deed to Mr. Burrell at the expected time. However, he did divest himself of the interest by conveying the property to the clerk and master of the chancery court, as trustee, pursuant to an order of the chancery court and pending further orders by the court.

Under the circumstances of this case, we find that the chancery court did not abuse its discretion in refusing to disqualify Mr. Schaeffer. The chancery court could reasonably have found that Mr. Schaeffer, in advancing the funds to Mr. Truehart in exchange for a quitclaim deed to the property, was only trying to help Mr. Truehart and did in fact intend to transfer the title to Mr. Burrell upon the consummation of the settlement. The fact that Mr. Schaef-fer transferred the property to the clerk and master removes any suggestion of impropriety from Mr. Schaeffer’s conduct. We therefore find this issue to be without merit.

Issue 2: Did the court err by allowing the 13.8 acre tract to be sold when it was not included in the original partition contract of Plaintiffs’ attorney?

Appellant, Dr. Harris, next alleges that the chancery court erred in ordering Parcel II, the 13.8 acre tract, to be sold when it was not included in the plaintiffs’ original partition contract with their attorneys. Dr. Harris argues that only the larger of the two tracts should have been partitioned. We must first point out that Dr. Harris has no rights under the plaintiffs’ contract with their attorney. Dr. Harris cannot be heard to base his appeal on the plaintiffs’ contract with their counsel.

We will therefore construe Dr. Harris’ second assignment of error in more general terms, as a challenge to the chancery court’s legal authority to partition the second, smaller tract of land.

We concede that plaintiffs must meet a high burden to sell land for partition, when any tenant in common opposes the sale. “A sale for division will be ordered only if the premises are so situated that the partition thereof cannot be made or where the premises are of such description that it would be manifestly for the advantage of the parties that the same be sold instead of partitioned. If either of the foregoing conditions exist, a sale is justified .... The burden of proof is on him who seeks the sale.” Glenn v. Gresham, 602 S.W.2d 256, 258 (Tenn.Ct.App.1980). The chancery court found, upon hearing expert testimony, that the land was not suitable for partition in kind. The court, in its trial opinion, wrote:

After the action was filed in 1994.... James Thompson, an experienced Fay-ette County real estate broker, was employed to appraise the property and to evaluate whether or not the land could be partitioned in kind.
At the hearing of the cause in May, 1996 ... Mr. Thompson testified concerning the partitioning of the land in kind. The Court found that the land was not suited to be equitably partitioned in kind. This finding was based upon the location and topography of the property, the number of acres, and the large number of heirs.

No transcript of the May, 1996 hearing was included in the record on appeal. In Coakley v. Daniels, 840 S.W.2d 367 (Tenn.Ct.App.1992), this Court noted:

Where the issues raised go to the evidence, there must be a transcript. In the absence of a transcript of the evidence, there is a conclusive presumption that there was sufficient evidence before the trial court to support its judgment, and this Court must therefore affirm the judgment. McKinney v. Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn.Ct.App.1977). This rule likewise applies where there is a statement of the evidence which is incomplete. The burden is upon the appellant to show that the evidence preponderates against the judgment of the trial court. Capital City Bank v. Baker, 59 Tenn.App. 477, 493, 442 S.W.2d 259, 266 (1969). The burden is likewise on the appellant to provide the Court with a transcript of the evidence or a statement of the evidence from which this Court can determine if the evidence does preponderate for or against the findings of the trial court.

Id. at 370. See also Scarbrough v. Scarbrough, 752 S.W.2d 94, 97 (Tenn.Ct.App.1988) ("When the trial court hears the evidence, but the evidence is not included in the record on appeal, it is presumed that the evidence supports the ruling of the trial court.”). We must presume, therefore, that the evidence does not preponderate against the chancery court’s ruling that the property could not be partitioned in kind. We find no error in the chancery court’s order to sell for partition both tracts of land, Parcels I and II. This assignment of error is without merit.

Issue 3: Did the court err by awarding a $56,850 punitive award to the plaintiffs’ attorney resulting from the intervention of John W. Harris, Jr., Trustee?

Dr. Harris next contends that the chancery court erred in ordering that he pay $56,850.00 in attorney fees to plaintiffs’ attorneys, Mr. James Schaeffer, Sr. and Mr. James Schaeffer, Jr., due to the delay that was caused by his intervention in this litigation. In its trial opinion, the court stated:

[T]he Court finds that it is reasonable that Dr. Harris should pay, in addition to his pro-rata part of the $100,000.00 fee and the expenses, for a substantial portion of the fees of the attorneys for the plaintiffs incurred since the intervention of Dr. Harris in this cause. Dr. Harris, of course, now is the owner of the undivided interests of Mr. Burrell and American Logistical as a result of the foreclosure sale. It is the additional litigation time created by Dr. Harris in his attempt to re-litigate settled issues, and to unduly delay this matter, that the Court finds should be compensated by him out of the sale funds due him.
Therefore, the Court, after reviewing all of the credible evidence, finds it is equitable that Dr. Harris should pay, in addition to his pro-rata part of the $100,000.00 attorneys fee and the expenses, attorneys’ fees, for the extraordinary litigation and trial preparation time required as a result of his intervention in this case.

It is a general rule in this State that litigants must pay their own attorney fees. Howard G. Lewis Const. Co., Inc. v. Lee, 830 S.W.2d 60, 64 (Tenn.Ct.App.1991). In the absence of a statutory provision or a contractual agreement between the parties, attorney fees, incurred by a litigant, are not a proper element of damages. John J. Heirigs Const. Co., Inc. v. Exide, 709 S.W.2d 604, 609 (Tenn.Ct.App.1986); Goings v. Aetna Cas. & Sur. Co., 491 S.W.2d 847, 848 (Tenn.Ct.App.1972). Such an award is contrary to the public policy of Tennessee. Howard G. Lewis Const. Co., Inc., 830 S.W.2d at 64.

In the case at bar, the chancery court cited no statutory authority for its award of attorney fees as damages. We note that Rule 11 of the Tennessee Rules of Civil Procedure permits the award of attorney fees as a sanction against a party, when a court finds that that party has presented pleadings, motions, or other papers to the court “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” This basis for sanctions under Rule 11 is similar to the chancery court’s stated reason for awarding additional attorney fees in the case at bar. However, there is no indication in the record that a party made a motion for sanctions under Rule 11.02, or that the court followed the procedure prescribed by Rule 11 when the court initiates sanctions on its own initiative.

Because we find no authority, other than Rule 11, for awarding attorney fees as a sanction, and because there is no indication that the procedure required by Rule 11 was followed by the chancery court, we vacate the award of $56,850.00 attorney fees as a sanction, and we will remand this issue to the trial court for further proceedings for the purpose of considering whether Rule 11 sanctions against Dr. Harris are merited.

Issue 4: Did the court err by refusing to appoint commissioners to partition the disputed land?

Dr. Harris next alleges that the chancery court erred in refusing to appoint commissioners to partition the land at issue in this litigation, pursuant to T.C.A. 29-27-114 (2001). The statute in question reads, in relevant part:

Whenever the judgment of partition is rendered, the court will appoint three (3) or more respectable freeholders, any three (3) of whom may perform the duty, to make the partition so adjudged, according to the respective rights and interests of the parties, as the same are ascertained and determined.

In this case, the chancery court found that the land was not amenable to partition in kind, and ordered that the land be sold for partition. The chancery court refused to appoint commissioners, explaining that the statute only required the appointment of commissioners when land is to be partitioned in kind. Dr. Harris contends that the court should have appointed commissioners even though the land was to be sold for partition.

A close reading of T.C.A. 29-27-114 (2001) and related statutes reveals that the appointment of commissioners is contemplated only when a court has ordered land to be partitioned in kind. It is implicit in the phrase, “make the partition so adjudged,” that the commissioners will be making a physical partition of the land; i.e., a partition in kind. This reading is borne out by a reading of T.C.A. 29-27-116 (2001), in which the role of the commissioners is described only in the context of a partition in kind:

In making partition, the commissioners shall divide the premises and allot the several shares to the respective parties, quality and quantity relatively considered, according to the respective rights and interests of the parties as adjudged by the court, designating the several shares by posts, stones, marked trees, or other permanent monuments; and they may employ a surveyor, with the necessary assistants, to aid therein.

This description of the procedure the commissioners are to follow, “designating the several shares by posts, stones, marked trees, or other permanent monuments,” clearly contemplates their involvement only in a partition in kind. Such procedure, performed “according to the respective rights and interests of the parties as adjudged by the court,” would have no purpose in a sale for partition. Clearly, the only role contemplated for these commissioners is pursuant to a partition in kind. Therefore, we find no error in the chancery court’s refusal to appoint commissioners.

Issue 5: Did the court err by awarding Plaintiffs’ attorney $18,500 for expenses and in awarding pre-judgment interest on $9,673.73 of the $18,500?

Dr. Harris contends that the chancery court erred in awarding plaintiffs’ attorneys $18,500.00 for expenses, and further erred in awarding the plaintiffs’ counsel pre-judgment interest on $9,673.73 of that amount, at the rate of 10% simple interest from January 1,1998.

The amount of expenses to which plaintiffs’ attorneys are entitled is a question of fact. A presumption of correctness attaches to the chancery court’s factual findings, and will be reversed only if the evidence preponderates against the chancery court’s factual finding. Having reviewed the record, including the record of expenses submitted. by plaintiffs’ attorneys, we do not find that the evidence preponderates against the chancery court’s award of $18,500.00 in expenses to plaintiffs’ counsel.

The Tennessee prejudgment interest statute, T.C.A. 47-14-123 (2001), states, in relevant part:

Prejudgment interest, i.e., interest as an element of, or in the nature of, damages, as permitted by the statutory and common laws of the state as of April 1,1979, may be awarded by courts or juries in accordance with the principles of equity....

The statute’s definition of prejudgment interest as an “element of, or in the nature of, damages,” suggests that an award of prejudgment interest is available only to parties to a case — not to their attorneys. An- attorney is not a party to a case and cannot be awarded damages for delay caused by a party’s intervention, however vexatious it may have been. This conclusion is supported by the reasoning of our supreme court, in the case of Myint v. Allstate Insurance Co., 970 S.W.2d 920 (Tenn.1998), in which the court explains the rationale underlying prejudgment interest:

Simply stated, the court must decide whether the award of prejudgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing.

Id. at 927. Prejudgment interest, then, is not properly awarded to counsel for the costs incurred in representing a client. In this case, the plaintiffs’ attorneys have been awarded their costs and a fair attorney fee. We therefore reverse the chancery court’s award of prejudgment interest on the amount of $9,673.73, and order that the plaintiffs’ attorneys be awarded $18,500.00 for their costs, without interest.

Issue 6: Did the court err in requiring Intervening Defendant pay a pro rata share of the $100,000 attorney fee in this cause?

Dr. Harris contends that chancery court erred in ordering that the attorney fee awarded to the Shaeffers be paid from the common fund of proceeds from the sale of the land, with the effect that Dr. Harris must pay a pro rata share of the $100,000 attorney fee in this case. The Tennessee statute governing the award of attorney fees in partition cases is T.C.A. 29-27-121 (2001), which reads, in relevant part:

The court may, in its discretion, order the fees of the attorneys for the complainant and defendant to be paid out of the common fund, where the property is sold for partition....

We review the chancery court’s decision for abuse of discretion.

We begin our analysis by noting that the “common fund doctrine” rests on the equitable principle that all individuals who have “received a benefit should bear some of the cost of obtaining that benefit.” Method of Calculating Attorneys’ Fees Awarded in Common-Fund or Common-Benefit Cases—State Cases, 56 A.L.R.5th 107 (1998). The common-fund doctrine is commonly invoked in the context of class-action lawsuits, but it is also widely applied in partition cases. We are persuaded by the reasoning of the Alabama Supreme Court which stated that “when attorney’s fees are allowed [to be paid from the common fund in partition cases], it is on the basis of, and solely for, the benefits inuring to the common estate and to the tenants in common....” Godwin v. Dorgan, 811 So.2d 503, 506 (Ala.2001) (quoting Ex parte Martin, 775 So.2d 202, 206 (Ala.2000)).

The chancery court, in making its determination that a sale for partition is necessary, must do so in light of what is most beneficial to all tenants in common. Therefore, this court must presume that the efforts of the plaintiffs’ attorneys, the Schaeffers, in seeking the partition of the land, redounded to the benefit of all parties with an interest in the land, Dr. Harris as well as the Schaeffers’ clients. In light of the fact that all parties enjoyed the benefits of the Schaeffers’ representation, it is equitable that all the parties, including Dr. Harris, should pay their share of the attorney fees in proportion to their interest in the land at issue in this litigation. We therefore find that the chancery court did not abuse its discretion in ordering that Dr. Harris pay a pro rata share of the attorney fees.

Issue 7: Did the court err in disbursing from the general fund the auctioneer’s fee of $60,000.00?

Dr. Harris’s final assignment of error concerns the disbursement of the auctioneer’s fee of $60,000 from the general fund. The court, in its Order Approving Auctioneer’s Contract entered on August 4, 2000, directed that the auctioneer should receive a 6% commission from the sale of the land and should be allowed expenses incurred in connection with the sale not to exceed $7,000.

Under T.C.A. 35-5-112 (2001), the chancery court has discretion to appoint and fix the compensation of an auctioneer in a public sale of property:

Auctioneer services and fee. (a) Whenever real or personal property is to be sold at public sale under any order or decree of any court in this state, the court, judge, or chancellor under whose jurisdiction such sale is to be made has the discretionary authority to secure the services of an auctioneer licensed in this state to conduct such public sale and to fix the auctioneer’s fee, such fee to be not more than six percent (6%) of the sale price of real property.

As we explained in our discussion of Appeal II, Issue 6, supra, we believe that the sale for partition benefitted all parties, including Dr. Harris. Under such circumstances, it is appropriate to order such fees to be paid out of the common fund, so that they are paid on a pro rata basis, proportionately to the amount of benefit a party derived from the sale. We therefore find that the chancery court did not abuse its discretion when it ordered that the auctioneer’s fee be paid out of the common fund. This assignment of error is without merit.

IY. CONCLUSION

The judgment of the chancery court ordering that Dr. Harris pay $56,850 in additional attorney fees to plaintiffs’ attorneys out of his share of the sale proceeds is reversed; we remand this case to the trial court for further proceedings under Tenn. R. Civ. P. 11 to determine whether Rule 11.02 sanctions against Dr. Harris are warranted. We also reverse the chancery court’s award to Plaintiffs’ attorneys of prejudgment interest on the amount of $9,673.73. The chancery court’s judgment is affirmed in all other respects. Costs of this appeal are assessed to Dr. John W. Harris, Jr. and his surety.

      . On May 28, 1999, the chancery court entered a Decree for Partition of Land, finding that owners of fractional interests in both Parcels I and II desired that the land be sold for partition and that it was in the best interests of the parties that both parcels be sold as one tract. The court ordered that the land be surveyed by the Fayette County Surveyor within sixty days and "sold ... as soon as lawful and practicable.” On July 12, 2000, the chancery court entered an Order Granting Plaintiff's Motion to Allow Engaging an Auctioneer and/or Real Estate Agent to Assist the Clerk and Master in Conducting and Consummating the Sale as Special Commissioner. On August 4, 2000, the chancery court entered an Order Approving Auctioneer’s Contract.

      . On May 23, 2002, the chancery court entered an Order of Judgment against Dr. Harris. The court’s Order stated, "It ... appears to the Court that after a full hearing and consideration of all of the evidence and exhibits presented at trial, that the Plaintiff be and is hereby awarded a Judgment against Defendant, John W. Harris, Jr., Trustee for the sum of One Hundred Fifty Thousand and No/100 ($150,000.00) Dollars.”


author: WILLIAM B. CAIN, J.,

text:
    Ludmilla LAMBRIGHT, et al. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA.
    Court of Appeals of Tennessee, at Nashville.
    Sept. 8, 2004 Session.
    Feb. 3, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 22, 2005.
    Robert Orr, Nashville, Tennessee, for the appellant, National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    Peter M. Olson, Clarksville, Tennessee, for the appellees, Ludmilla Lambright and Antonio Lambright.
    C. Benton Patton, Nashville, Tennessee, for the appellee, United Services Automobile Association.
    Frank Thomas, Nashville, Tennessee, for the appellee, Michael George Eberly.
    John Thomas Feeney, III, Nashville, Tennessee, for the appellee, Progressive Insurance Company.
   OPINION

WILLIAM B. CAIN, J.,

delivered the opinion of the court,

in which PATRICIA J. COTTRELL and FRANK G. CLEMENT, JR., JJ., joined.

All parties sought declaratory judgment as to whether or not driver Michael George Eberly was an omnibus insured under the permissive user provisions of his employer’s policy of insurance at the time of the accident in issue. The Chancellor in non-jury trial found that Eberly had only engaged in a “minor deviation” from employer restrictions on his permissive use of the vehicle, and required National Union Fire Insurance Company to protect Eberly as an omnibus insured under the policy. We reverse the action of the trial court.

National Union Fire Insurance Company filed a declaratory judgment action, naming Ludmilla Lambright and husband, Antonio Lambright, and Michael George Eberly as defendants and seeking a determination of whether or not Michael George Eberly was afforded insurance coverage under the omnibus clause of the National Union policy. The Lambrights answered and filed a cross claim against their own uninsured motorist carrier, Union Services Automobile Association (USAA). They also joined Progressive Insurance Company as a defendant since Progressive was the insurance carrier for Michael George Eberly as to his private automobile. USAA answered. Progressive then answered and cross claimed against Eberly, seeking to avoid its coverage of Eberly under his private vehicle policy. National Union then voluntarily non-suited its declaratory judgment action, after which the Eberlys instituted their own declaratory judgment action against National Union and Eberly. National Union then filed its motion for summary judgment against the Lambrights and Eberly, and over the next several months USAA and Progressive responded to National Union’s motion for summary judgment, with Progressive supporting the motion and USAA opposing the motion. The Lambrights then filed their opposition to the motion for summary judgment. Since the final judgment in the case held that Eberly was an omnibus insured under the National Union policy, the court likewise held that the Lam-brights were not entitled to any relief against their uninsured motorist carrier, USAA, and further held that Eberly had no claim against Progressive as an insurer relative to his private vehicle.

In a rather unorthodox procedure the trial court, with the consent of all parties, converted a scheduled hearing on a motion for summary judgment into a non-jury trial on the merits. The controlling facts in the case are all but undisputed. GTE Government Systems Corporation employed Michael George Eberly in 1989 because of his skill and experience as a service technician concerning radio and other communications equipment. On his employment application, Eberly disclosed to GTE that he had two prior convictions for driving under the influence of an intoxicant. His duties for GTE involved providing technical assistance to the Army at Ft. Campbell, Kentucky. Beginning in 1992, GTE provided Eberly with a company-owned vehicle for Eberly’s use in providing technical support service to the U.S. Army.

Eberly was permitted possession, control and use of a GTE company vehicle from that date in 1992 until he was involved in the accident in issue in this case which occurred January 15, 1999. Among Eberly’s duties was to be “on call” twenty-four hours a day. Thus, Eberly was required as a condition of his employment to drive his service vehicle to and from his home and place of work. GTE entrusted Eberly with all responsibility for the upkeep of the vehicle subject to reimbursement by GTE of the cost of such maintenance. GTE also imposed a policy limiting Eberly from personal use of the vehicle. GTE also maintained a policy prohibiting the use of a GTE vehicle at any time that the driver had consumed or was consuming alcohol.

On January 15, 1999, Eberly was returning from work to his home on the ordinary road route that he customarily traveled and was within the timeframe that he ordinarily returned to his home from work. En route to his home, Eberly stopped at the Golden Nugget Lounge where he consumed four cans of beer over a one-hour period of time. The location of the lounge was on the road route customarily traveled by Eberly from work to his home. After his stop at the Golden Nugget Lounge, Eberly resumed his customary road route toward his home. He stopped at a Texaco station to purchase gasoline with a credit card provided by GTE. He then resumed his customary road route home, but before arriving at his home he struck the vehicle driven by Lud-milla Lambright in the rear. After the wreck, Eberly registered a .15 blood alcohol content in a breath alcohol test. He pleaded guilty thereafter to driving under the influence of an intoxicant, resulting in loss of driving privileges and the necessity of obtaining a restricted drivers license. At the time of the wreck on January 15, 1999, Eberly was aware of the GTE policy prohibiting operation of the company vehicle after ingesting alcoholic beverages.

Following the accident, Eberly tendered his resignation to his supervisor, Richard Kluck, who felt that termination of employment was necessary. Regional Manager Cooper, however, chose to suspend Eberly for three days and possibly withhold a pay raise rather than to terminate his employment.

The trial court, relying heavily on the employer’s post-accident decision to impose minimal discipline upon Eberly, determined that his conduct constituted a “minor deviation” from his permissive user and that such deviation did not disqualify him from insurance coverage under the omnibus clause of his employer’s insurance policy. National Union Fire Insurance Company filed a timely appeal.

The as yet unresolved question of respondent superior of the employer, GTE, for the actions of Michael George Eberly is not before the court in this declaratory judgment proceeding. That question will be resolved in the parallel tort case presently pending in the Circuit Court for Montgomery County, Tennessee, between Ludmilla Lambright and husband, Antonio Lambright, plaintiffs, and GTE and Michael George Eberly, defendants. This case solely deals with whether or not National Union Fire Insurance Company must extend coverage to and defend Michael George Eberly individually under the “omnibus clause” of its insurance policy issued to GTE as named insured.

Deviation from his route to his home from his place of work has little to do with Eberly’s status as an omnibus insured under the policy. It is his intoxication while driving his employer’s vehicle that is determinative. Eberly admits that at the time of the accident he had been long familiar with GTE’s express instructions prohibiting personal use of the vehicle and its further rule prohibiting driving its vehicles after consuming any alcohol.

We must reiterate that we are not concerned with Eberly’s violation of the two policies prohibiting personal use of a company vehicle and operation of a company vehicle after consumption of alcohol as those policies relate to whether or not Eberly was driving the vehicle within the scope of his employment by GTE and was on the business of his employer at the time of the accident. Those questions will be resolved in the tort action. We are dealing here solely with a determination of whether or not Eberly is an omnibus insured under the permissive user clause of the National Union Fire Insurance Company policy. Resolution of this issue is personal to Michael George Eberly and is not determinative of National Union’s obligation to provide coverage to its named insured, GTE, in the tort action.

While both Moore v. Liberty Mut. Ins. Co., 193 Tenn. 519, 246 S.W.2d 960 (1952) and Tenn. Farmers Mut. Ins. Co. v. Witt, 857 S.W.2d 26 (Tenn.1993) concern insured status of drivers who were driving under the influence of alcohol, neither of those cases involve the omnibus status of a person driving under the influence of an intoxicant at a time when he had full knowledge of his employer’s strict rules against personal use of the vehicle or against use of the vehicle after he had consumed alcohol.

Cases from other jurisdictions are enlightening and somewhat diverse. General Accident Ins. Co. of America v. Margerum, 375 Pa.Super. 361, 544 A.2d 512 (1988) was a declaratory judgment action under facts quite similar to the case at bar. Peter S. Hricko owned a roofing company and employed Ira Margerum, whom he considered a dependable employee, as a roofer.

In mid-January, with the onset of unfavorable winter weather, Hricko offered a van to Margerum with the following instructions: that it be used solely for commuting between home and work, that Margerum not drink and drive, and that the van not be used for personal reasons.

Margerum, 375 Pa.Super. 361, 544 A.2d 512, 513.

On January 22, 1982, Margerum requested permission to leave work early in order to attend his sister’s wedding. Hricko granted the request but specifically instructed Margerum not to take the van to the reception and not consume alcoholic beverage while driving the van. Marge-rum followed these instructions using other means of transportation until he got home from the wedding, then packed his clothes and drove the van about seven miles toward his fiancee’s residence where he intended to spend the night. The residence of his fiancee was on the same route he would take to return to the roofing company, but before he reached her residence he struck and killed a pedestrian walking along the road. At the time of the accident Margerum was intoxicated, having steadily consumed alcohol at the wedding reception. He was subsequently charged and convicted of driving under the influence.

The trial court held that Margerum was an omnibus insured under the policy and General Accident Insurance Company appealed. The superior court on appeal held that the physical deviation by Margerum was not a substantial deviation from Hricko’s permission but reversed the judgment of the trial court as to driving under the influence. Said the court:

Nevertheless, the court erred in concluding that there was no substantial deviation from Hricko’s permission. By driving under the influence of alcohol, Margerum violated an express specific restriction on his use of the van. Hricko’s reiteration of the restriction the day before the accident indicates that the restriction was not inconsequential. Since Margerum violated an express specific restriction of Hricko’s permission to use the van, his deviation in use from Hricko’s express permission was a substantial deviation. As a result, Margerum is not an insured under General Accident’s policy with Hricko.

Margerum, 544 A.2d at 514.

Three years after Margerum was decided, the U.S. Court of Appeals for the Third Circuit applied this rule in Hall v. Wilkerson, 926 F.2d 311 (3rd Cir.1991). The vigorous dissenting opinion of Senior District Judge Fullam was acknowledged but rejected by the majority in Hall, which held Margerum to be controlling. Said the majority:

We are not insensitive to the policy concerns forcefully expressed by the dissent. However, we are not free in diversity cases to apply our own notion of policy, but must predict that which is likely to be accepted by the Pennsylvania Supreme Court. The dissent suggests that that court will not accept the holding of the only Pennsylvania Appellate Court to speak to the issue. We are not convinced that the Superior Court’s Margerum decision is so far out of the mainstream of state law that it will be rejected by the Supreme Court.

Hall v. Wilkerson, 926 F.2d 311, 316 (3rd Cir.1991).

In a later case based on diversity jurisdiction, the U.S. District Court for the Eastern District of Pennsylvania again followed Margerum in a case in which a driver, in direct violation of his employer’s known rule against driving a vehicle while intoxicated, was denied omnibus coverage. TICO Ins. Co. v. March, 155 F.Supp.2d 441 (E.D.Penn.2001).

Two reported decisions from sister jurisdictions are directly in point as to the issues involved in the case at bar. See Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102 (Ind.1997) and Barfield, v. Royal Ins. Co. of America, 228 Ga.App. 841, 492 S.E.2d 688 (1997).

Warner Trucking involved a car/truck collision with the following facts:

The plaintiffs-appellees, Carl and Sheri Hall, were injured when their automobile collided with a truck owned by the defendant-appellant Warner Trucking, Inc., and driven by its employee, Carl Manuel. The Halls brought an action for damages against Warner Trucking and its driver. The Halls alleged vicarious liability against the trucking company on grounds that the driver was working within the scope of his employment when the accident occurred. Warner Trucking’s liability insurance carrier, Carolina Casualty Insurance Company, brought a separate action for declaratory judgment to establish that it had no obligation under its insurance contract with Warner Trucking to defend or provide coverage for the claims seeking to impose personal liability upon the employee-driver.

Warner Trucking, Inc., 686 N.E.2d at 104.

Making the critical distinction between respondeat superior liability of Warner for the acts of the driver Manuel on the one hand, and the status of Manuel as an omnibus insured under the policy on the other hand, the Supreme Court of Indiana held:

Contrary to Warner Trucking’s argument, the existence of a rule prohibiting behavior is not solely determinative. An employer is vicariously liable for the wrongful acts of employees committed within the scope of employment. Stropes by Taylor v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind.1989). The critical inquiry is not whether an employee violates his employer’s rules, but whether the employee is in the service of the employer. Even though an employee violates the employer’s rules, orders, or instructions, or engages in expressly forbidden actions, an employer may be held accountable for the wrongful act if the employee was acting within the scope of employment. See Eagle Motor Lines, Inc. v. Galloway, 426 N.E.2d 1322, 1325 n. 3 (Ind.Ct.App.1981); Mock v. Policy, 116 Ind.App. 580, 586-87, 66 N.E.2d 78, 81 (1946); Pittsburg, Cincinnati and St. Louis Ry. Co. v. Kirk, 102 Ind. 399, 402, 1 N.E. 849, 852 (1885). Acts done “on the employee’s own initiative, with no intention to perform it as part of or incident to the service for which he is employed” are not “in the service of the employer” and are thus outside the scope of employment. Stropes, 547 N.E .2d at 247 (citations omitted). However, an employee’s wrongful act may still fall within the scope of his employment if “his purpose was, to an appreciable extent, to further his employer’s business, even if the act was predominantly motivated by an intention to benefit the employee himself’ or if the employee’s act “originated in activities so closely associated with the employment relationship as to fall within its scope.” Id. Warner Trucking’s vicarious liability for the acts of its driver therefore does not depend upon the driver’s permission to drive, but rather upon the relationship of the driver’s activities to the business of Warner Trucking.

Warner Trucking, Inc., 686 N.E.2d at 105.

The Indiana Supreme Court then addressed Carolina Casualty’s motion for summary judgment as to the driver, Manuel, under the omnibus clause of its policy. Said the court:

In its declaratory judgment action, Carolina Casualty does not question its contractual obligation to provide coverage for Warner Trucking, but seeks to establish that its insurance policy provides no coverage for liability that may be personally imposed upon the driver of the Warner Trucking vehicle involved in the accident. Carolina Casualty contends that its summary judgment motion should have been granted because the policy provides no coverage for the personal liability of employees driving a company vehicle without permission. Carolina Casualty’s claim of no coverage is based not upon the issue of scope of employment, but rather upon its contention that the employee drove contrary to Warner Trucking’s express rule denying permission to drivers who had been drinking.
The materials designated for consideration in the summary judgment proceeding included Warner Trucking’s previously noted rule that “no driver was allowed to drive a company vehicle if the driver had consumed any alcoholic beverage that day, regardless of quantity consumed.” ... The Halls do not challenge the evidence that the driver was seen consuming alcohol and they designate no evidentiary materials challenging the existence, nature, or content of the rule prohibiting driving after consumption of alcohol. Nor do they raise any issue as to whether Warner Trucking actually communicated this rule to its driver or whether the rule was consistently enforced. In response to Carolina Casualty’s claim that the rule expressly restricted the grant of permission, the Halls only point to the fact that Warner Trucking had provided its driver with his own set of keys to the truck, that he had an early delivery scheduled for June 15, that the company had provided cash to purchase fuel, and that drivers regularly filled their tanks with fuel before making their run.
While these matters may be relevant to whether the employee acted within the scope of the employment, they are insufficient to contradict the designated materials which establish that the Warner Trucking driver’s use of the company truck was restricted in the first instance — when he began to use the company truck after consuming alcohol. As recognized in Gonterman, implied permission is inadequate as a matter of law to overcome Warner Trucking’s express restriction upon permission in the first instance. Gonterman, 637 N.E.2d at 814. Thus, because there is no issue of fact regarding the driver’s violation of the company rule restricting permission, the Halls’ claim of implied permission fails. There is no genuine issue of material fact as to the application of section (D)(2) defining “who is insured” in the Carolina Casualty insurance policy. The driver is not an insured under this provision.

Warner Trucking, Inc., 686 N.E.2d at 106-7 (footnotes omitted).

The court then affirmed the denial of Warner Trucking’s motion for summary judgment as to respondeat superior and remanded the case to the trial court with instructions to grant the summary judgment motion of Carolina Casualty under the omnibus clause of the policy.

The same issues were before the Court of Appeals of Georgia in Barfield, et al. v. Royal Ins. Co. of America, et al., 228 Ga.App. 841, 492 S.E.2d 688 (Ga.App.1997). This was a declaratory judgment action brought by Royal Insurance Company and its named insured, Single Source Roofing Corp., to determine their liability for damages arising from an automobile accident involving Single Source’s employee, Andrew Fisher, who was a named defendant in the case. The other named defendants in the case were Billy Barfield and other occupants of four vehicles, these occupants having been injured in an automobile wreck with a Single Source vehicle driven by Andrew Fisher. The driver, Fisher, had express instructions not to drive the vehicle after drinking. The trial court granted summary judgment to Single Source under respondeat superior and to Royal under the permissive user provisions of the omnibus clause in the policy. Based upon reasoning very closely parallel to the reasoning in Warner Trucking, the Court of Appeals of Georgia held that summary judgment was improperly granted as to respondeat superior. As to the omnibus clause of the policy and relying on General Accident Ins. Co. of America v. Margerum, 375 Pa.Super. 361, 544 A.2d 512 (Pa.Super.Ct.1988), the Georgia Court held:

“Permissive use” clauses such as the one in Royal’s policy are valid, even where the named insured can limit the scope of the permission through instructions, rules, or regulations. See Massachusetts Bay. Ins. Co. v. Wooten, 215 Ga.App. 386, 387(1), 450 S.E.2d 857 (1994). On several occasions, this Court has held that where a driver uses a vehicle with permission, but violates the scope of the permission granted by engaging in activity the named insured has expressly forbidden, the driver is not an “insured” under the permissive use clause of a policy such as Royal’s for any collision occurring during the driver’s unauthorized use. See, e.g., Wooten, 215 Ga.App. at 387-388, 450 S.E.2d 857; Select Ins. Co. v. Register, 192 Ga.App. 145, 147, 384 S.E.2d 238 (1989).
Both Wooten and Register involved drivers who used the insured vehicle for a purpose forbidden by the owner. Here, although Fisher used the truck in an unauthorized manner by driving it while under the influence of alcohol, we find the rationale of the prior cases applicable. “[TJhere is an absence of permission within the meaning of the policy if the vehicle is being driven at a time or a place or for a purpose not authorized by the insured.” (Citation and punctuation omitted.) Register, 192 Ga.App. at 147, 384 S.E.2d 238. The test of permission under the provision at hand is an objective one, and does not involve the question of whether Fisher “reasonably believed” he had permission to drive the truck. See Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 713(1), 470 S.E.2d 659 (1996). Because the uncontradicted evidence shows Single Source told Fisher he could not drive the vehicle when he was drinking, his use of the vehicle at a time he was admittedly under the influence of alcohol was unauthorized and non-permissive.

Barfield v. Royal Ins. Co. of America, 228 Ga.App. 841, 492 S.E.2d 688, 690-91(1997).

The Court of Appeals of Missouri took a position directly contrary to the rules set forth in Margerum, Warner Trucking, and Barfield, holding under Missouri law:

Relying on [Allstate Ins. Co. v.] Sullivan [643 S.W.2d 21 (Mo.App.19820)] and [New York Cas. Co. v.] Lewellen, [184 F.2d 891 (8th Cir.1950)] we find the omnibus clause in Employer’s policy extended coverage to Hyman for this accident despite his violation of Employer’s rule against drinking alcohol while driving the van.
In reaching this conclusion, we have not ignored cases cited by United from other jurisdictions which hold that an employee who uses his employer’s vehicle while under the influence of alcohol, in violation of an express specific restriction against such use, substantially deviates from the original use, and, thus, the employee is not insured under the employer’s policy. See, e.g., General Accident Ins. Co. of Am. v. Margerum, 375 Pa.Super. 361, 544 A.2d 512 (1988); Warner Trucking, Inc., v. Carolina Cas., 686 N.E.2d 102 (Ind.1997); Barfield v. Royal Ins. Co. of America, 228 Ga.App. 841, 492 S.E.2d 688 (1997). When there is no controlling authority from Missouri courts, we may look to judicial decisions of sister states for assistance in discovering expressions of public policy. Eyerman v. Mercantile Trust Co., 524 S.W.2d 210, 217[9] (Mo.App.1975). Earlier in this opinion, we did rely on foreign authority for guidance. However, opinions of courts of other states, even on similar facts, do not have controlling effect. Triplett v. Shafer, 300 S.W.2d 528, 530 (Mo.App.1957). “Like witnesses, foreign authori ty should be weighed and not counted.” Michigan Mut. Liab. Co. v. Stallings, 523 S.W.2d 539, 545[6] (Mo.App.1975). This court adopts the views expressed in Sullivan and Lewellen rather than those stated in Margerum, Warner Trucking, and Barfield. We do so in the belief that Sullivan and Lewellen are in harmony with Missouri’s public policy concerning liability coverage for negligent motor vehicle operators. See Halpin v. Am. Family Mut. Ins. Co., 823 S.W.2d 479, 482[4] (Mo. Banc 1992).

United Fire and Cas. Co. v. Tharp, 46 S.W.3d 99, 107-8 (Mo.App.2001).

While there is a certain parallelism between respondeat superior under agency principles and permissive user under omnibus insurance clauses, the law as to each is separate and distinct. Tennessee law as to the scope of permissive user under an omnibus clause is considered at length in Estate of Adkins v. White Consolidated Ind., Inc., et al., 788 S.W.2d 815 (Tenn.Ct. App.1989). Subsequent cases have considerably narrowed the scope of “the liberal initial permission or hell or high water rule ...” See Estate of Adkins, 788 S.W.2d at 817(quoting Couch, G., Couch on Insurance 2d, § 45:464 at 845-46 (1981 and Supp. 1988) (footnotes omitted) This rule enunciated by our Supreme Court in Stovall v. New York Indemn. Co., 157 Tenn. 301, 8 S.W.2d 473 (1928) provided that when the owner’s permission was granted initially what happened thereafter was immaterial for omnibus clause purposes.

If ... the automobile covered by the policy is delivered to another for use, with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose hot within the contemplation of the insured when he parted with possession.

Stovall, 8 S.W.2d at 477.

The supreme court retreated from Stovall in Hubbard v. U.S. Fidelity & Guaranty Co., 192 Tenn. 210, 240 S.W.2d 245 (1951). Repetition of the analysis of cases subsequent to Stovall such as appears in Estate of Adkins is unnecessary to a decision in this case. It is enough to say that Stovall and its progeny apply only to cases where the initial permissive user is broad and unrestricted. Said the court in Adkins:

In Moore v. Liberty Mut. Ins. Co., 193 Tenn. (29 Beeler) 519, 246 S.W.2d 960 (1952), the Supreme Court again clarified the permission rules in Hubbard, Stovall, and an unreported case, Romines v. The Preferred Accident Ins. Co., decided November 26, 1932. According to the Moore Court, Hubbard and Romines held:
[W]here one has only limited permission of the owner to use the car in a specified area for a limited time and particular purpose and does not have general discretion as to the use of the car, then the coverage of the omnibus clause is not extended to his use of the car any place or for a purpose not consented to nor reasonably contemplated by the owner in giving the initial permission.

193 Tenn. at 522, 246 S.W.2d at 961 (emphasis added).

In Moore, the employee truck driver had his employer's limited permission to personally use the truck after hours to move furniture within the city of Nashville. Instead, he went on an entirely different and independent mission to Murfreesboro, drank whiskey with a friend, and was involved in an accident. The court found that the employee was not acting with the permission of the named insured and therefore there was no coverage under the policy. The Hubbard, Romines, and Stovall cases “turn upon the distinction of general custody and limited permission.” Id.

Shortly after the Moore decision was announced, the Sixth Circuit Court of Appeals addressed the same issue in Branch v. U.S. Fidelity & Guaranty Co., 198 F.2d 1007, 1011 (6th Cir.1952). The court noted that Tennessee had adopted the liberal initial permission rule in Stovall in 1928, but that the Caldwell, Romines, Hubbard, and Moore cases limit the broad rule as stated in Stovall. The Branch court stated:

In our opinion, the controlling rule of law in Tennessee, as it presently exists, is as expressed in the case of Moore v. Liberty Mutual Ins. Co., supra, its latest ruling on the question, which draws the distinction between general custody of and limited permission to use the insured automobile, rejecting the earlier rule announced in the Stovall case that liability exists where the original possession of the car was with the permission of the owner, regardless of its unauthorized and unanticipated use thereafter.
198 F.2d at 1011.

Estate of Adkins v. White Consol. Ind., et al., 788 S.W.2d 815, 819 (Tenn.Ct.App.1989).

Tennessee cases involving use of alcohol point clearly in the direction of the rules set forth in Warner and Barfield Closest by analogy is Moore v. Liberty Mut. Ins. Co., 193 Tenn. 519, 246 S.W.2d 960 (1952). However, the court in the Moore case did not specifically address any issue about the use of alcohol nor does the opinion show any specific rule of the employer about the use of alcohol.

In Tenn. Farmers Mut. Ins. Co. v. Witt, 857 S.W.2d 26 (Tenn.1993), a policy of insurance was issued to Ronald Witt, who was, in fact, the driver of the automobile at the time of the accident. While Witt and a fellow employee, Robert Michalski, were on the business of their employer, Michal-ski leased an automobile from a Hertz rental agency. At the time of the accident, Witt was driving the automobile with the permission of Michalski and was driving under the influence of alcohol. This vehicle qualified as “a non-owned auto” under the Tennessee Farmers Mutual policy issued to Witt. The position of Tennessee Farmers Mutual is a bit puzzling:

Tennessee Farmers Mutual contends that the operation of the vehicle while under the influence of alcohol was not use of the vehicle “within the scope of the consent of the owner” as required by the insurance contract and, therefore, coverage was excluded. It implicitly acknowledges that the policy extended coverage to the leased vehicle as “a non-owned auto” while operated by Witt, except when Witt was under the influence of alcohol. Its argument apparently is that coverage ceased at such time as the insured became under the influence of alcohol because he then no longer had the owner’s consent to operate the rental car.

Witt, 857 S.W.2d 26 at 29.

Holding that Witt’s permission to drive the automobile was general and without limitation, the supreme court found that he was covered under his own policy of insurance.

Here, Witt’s permission as an “authorized driver” to use the vehicle without limitation as to time, place, and purpose constitutes general custody of the vehicle. At the time of loss, Witt was an authorized operator. His operation of the vehicle while under the influence of alcohol did not violate any provision of the lease contract regarding time, place, or purpose of use. Nor did the circumstances of his operation of the vehicle, while under the influence of alcohol, convert the general custody bailment into one of limited permission. He still had the owner’s consent to operate the vehicle, though he did not have permission to operate it while under the influence of alcohol.

Witt, 857 S.W.2d 26, 31. The Witt case sheds very little light on permissive user under the omnibus clause of an insurance policy.

In this case, Eberly was well aware for many years of his employer’s policies prohibiting personal use of its vehicle and specifically prohibiting anyone to drive a company vehicle at any time after consuming alcohol. Driving home from work he stopped and consumed enough alcohol to register a .15 on the intoximeter. He then re-entered the company vehicle, drove to a service station, filled the truck with gasoline and proceeded on toward his home. The collision occurred before he could reach home. He does not deny that he drank alcohol before resuming his journey home. While he denies that he was under the influence of alcohol, he pleaded guilty to driving under the influence.

We believe that the policy most in conformity with existing Tennessee law and the more sound policy is to follow Margenan, Warner and Barfield in holding that driving under the influence of an intoxicant, in and of itself, in violation of express rules of the employer is fatal to the driver’s status as a permissive user under the omnibus clause of an insurance policy.

Under the Margenan, Warner and Barfield analysis, time, place and purpose in the use of the vehicle have little relevance. If Eberly, with permission to drive the vehicle to his home, had driven in a straight route from work to home and, without deviating from that route, had taken alcoholic beverages from the glove compartment of the truck and consumed them en route, time, place and purpose remained within the scope of his permissive use. What exceeds the scope of his permissive use for omnibus insured purposes is his consumption of alcohol in violation of the limitations imposed upon him by his employer. This is not to say that the “zero tolerance” policy of the employer rule automatically controls the issue. The logical result of such a holding would be that the driver stopping for holy communion en route to his home would lose his omnibus insured status. The employer rule relative to the use of alcohol is subject to the same “minor deviation” rule as is applicable to personal use of the vehicle in violation of an employer rule. In this case, Eberly consumed alcohol to the extent that his blood alcohol level was one and one-half times the statutory level creating presumptive impairment.

Whether or not National Union Fire Insurance Company must answer to the plaintiffs in damages for the conduct of Eberly must wait the determination in the tort case of respondeat superior issues. The only issue in this case is whether or not Eberly is an omnibus insured under the National Union policy under its permissive user provisions. His voluntary intoxication in violation of his employer’s rules disqualifies him from such status.

The judgment of the trial court is reversed and judgment will be entered in favor of the National Union Fire Insurance Company. The case is remanded for such further proceedings as may be necessary. Costs of the appeal are assessed to Lud-milla Lambright and Antonio Lambright.

      . The Barfield case from Georgia was issued October 1, 1997, while the Warner Trucking, Inc., opinion from Indiana was issued October 7, 1997.

      . At the time of the accident TCA § 55-10-408 provided that (.10%) weight of blood alcohol created the presumption. The statute was amended by Chapter 855 of the Public Acts of 2002 to reduce the weight of alcohol level to (.08%).