author: DAVID R. FARMER, J.,

text:
    Roger M. RALPH, et al. v. Robert R. PIPKIN, et al.
    Court of Appeals of Tennessee, at Jackson.
    Feb. 17, 2005 Session.
    May 17, 2005.
    Application for Permission to Appeal Denied by Supreme Court Dec. 5, 2005.

      James L. Robertson, Jackson, Mississippi and David M. Livingston, Brownsville, Tennessee, for the appellants, Roger M. Ralph and Kem L. Ralph.
    J. Kimbrough Johnson, Memphis, Tennessee, for the appellees, Robert R. Pipkin and Pipkin Insurance Agency.
    Gary R. Wilkinson and C. Michael Becker, Memphis, Tennessee, for the appellee, Grange Mutual Casualty Company.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

Plaintiffs in this action, Roger Ralph and Kem Ralph, were sued in federal court for patent infringement and breach of contract. Their farmer’s liability insurance carrier, Grange Mutual, denied coverage and refused to defend. Plaintiffs filed a complaint in the Lauderdale County Chancery Court against Grange Mutual seeking a declaratory judgment, a judgment for breach of contract, and specific performance. They also filed a complaint for professional negligence and breach of contract against their insurance agent, Pipkin Insurance Agency/Mr. Robert Pipkin. The trial court granted Grange Mutual’s motion to dismiss and awarded the Pipkin Insurance Agency/Mr. Pipkin summary judgment. We affirm.

This lawsuit arises from a claim brought by Monsanto Company (“Monsanto”) against Roger M. Ralph and Kem Ralph, d/b/a Ralph Brothers Farms (“the Ralphs”), for patent infringement and breach of contract. The Ralphs are farmers and partners in Ralph Brothers Farms near Covington. They have been farming together since 1977 and grow cotton, soybeans, and corn. In their operations, they have routinely saved seed from their cotton and soybean crops and planted those seeds in subsequent years.

In 1996, Monsanto began marketing seeds with certain herbicide and insect resistant “traits.” Monsanto licensed these patented seeds to other seed companies. In 1998, the Ralphs purchased seeds bearing the patented Monsanto traits and saved and cleaned the seed from their 1998 crop for use in 1999 and 2000. In January 2000, Monsanto sued the Ralphs for patent infringement and breach of contract, alleging the Ralphs “knowingly and intentionally used, saved, transferred, made, sold and/or offered for sale” the patented seed (“the Monsanto action”);

The Ralphs gave timely notice of the Monsanto action to their commercial farmer’s liability insurance carrier, Grange Mutual Casualty Company (“Grange Mutual”), and their insurance 'agent, Robert R. Pipkin (Mr. Pipkin). Grange Mutual denied coverage on April 25, 2001, and refused to defend the Ralphs against the Monsanto lawsuit. The Monsanto action went to trial in December 2002 in federal district court. Ultimately, Monsanto won a judgment for damages against the Ralphs.

Meanwhile, in September 2001, the Ralphs filed a complaint against Grange Mutual and the Pipkin Insurance Agency (“Pipkin Insurance”) and Mr. Pipkin, who had sold them their liability policy. The Ralphs sought a declaratory judgment, a judgment for breach of contract, and specific performance. They asserted insurance coverage under the Grange Mutual policy under the property damage liability coverage; personal injury coverage; and advertising liability coverage. The Ralphs further asserted, in the alternative, a claim against Pipkin Insurance and Mr. Pipkin for breach of contract, negligent failure to procure coverage, and professional liability in tort.

Grange Mutual filed a motion to dismiss for failure to state a cause on December 10, 2001 and Mr. Pipkin filed a motion for summary judgment on June 20, 2002. The trial court granted both motions on May 14, 2004, and the Ralphs filed a timely notice of appeal to this Court. We affirm.

Issues Presented

The Ralphs have raised 12 issues for our review. However, we perceive the disposi-tive issues to be:

(1) Whether the trial court erred in determining that Monsanto’s claims against the Ralphs were not covered under the commercial farmers’ liability policy issued by Grange Mutual and in dismissing the Ralphs’ action against Grange Mutual.
(2) Whether the trial court erred by granting summary judgment to Robert Pipkin and Pipkin Insurance on the Ralphs’ claim for professional negligence and failure to provide insurance.

Dismissal of Action Against Grange Mutual

A Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint itself. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). The grounds for such a motion is that the allegations of the complaint, if considered true, are not sufficient to constitute a cause of action as a matter of law. Id. A motion to dismiss should be granted only if “it appears that the plaintiff can establish no facts supporting the claim that would warrant relief.” Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999). We review a trial court’s award of a motion to dismiss de novo, with no presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997).

We begin our analysis of this issue by noting that the courts review an insurance policy under contract principles. Certain Underwriter’s at Lloyd’s of London v. Transcarriers Inc., 107 S.W.3d 496, 499 (Tenn.Ct.App.2002) (citations omitted). As long as the terms of a contract are unambiguous, the contract will be enforced as written. Id. We generally will construe ambiguous terms against the drafter. Id. However, the courts will not rewrite an unambiguous term simply to avoid harsh results. Id. The interpretation of a contract is a matter of law which we review de novo, with no presumption of correctness afforded to the trial court. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999).

In their 2001 complaint, the Ralphs asserted that, under the commercial farmers’ liability insurance policy, Grange Mutual was required to defend them against the Monsanto action and to insure them against any liability to Monsanto. The Ralphs prayed for a declaratory judgment that, under the policy, Grange Mutual is legally obligated to pay them any sums that they may become obligated to pay to Monsanto as damages. They further prayed for an award of specific performance requiring Grange Mutual to defend them against the Monsanto action and to reimburse them for all attorneys fees and expenses incurred by them to defend the action. The Ralphs also prayed for a permanent injunction enjoining Grange Mutual from refusing to honor its obligations under the policy as alleged, for prejudgment interest, and for punitive damages.

The issue before this Court is whether the insurance policy issued by Grange Mutual, read in such a way as to construe any ambiguity against Grange Mutual, provides coverage where a third party has brought an action for patent infringement and breach of contract. In their brief to this Court, the Ralphs do not contend that the insurance policy protects them against liability for damage to intangible intellectual property. Section IV of the policy, moreover, defines “property damage” as “physical damage to tangible property, including all resulting loss of use of that property.” (Emphasis added.) Rather, the Ralphs’ argument, as we understand it, is that Monsanto’s damages result from the loss of use of tangible property (gene sequences or the “traits” contained in the seeds) and are within the policy’s property damage liability coverages; that Monsanto’s damages result from disparagement and are within the personal injury liability coverage; and that Monsanto’s damages arise from infringement of Monsanto’s “title” in the seeds and are within the advertising liability coverage.

We agree with the trial court that the contract of insurance does not obligate Grange Mutual in this case. Although we find the Ralphs’ arguments to be intriguing, as the trial court observed, Monsanto did not bring an action against the Ralphs for property damage, disparagement, or damages resulting from the Ralphs’ advertising, but for patent infringement and breach of contract.

We agree with the trial court that an action for patent infringement is not equivalent to an action for damages to tangible property or for personal injury as defined by this contract of insurance. The purpose of the patent laws is to “promote the Progress of Science and useful Arts.” U.S. Const., Art. I, § 8, cl. 8.; Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 730, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002). To this end, a patent rewards innovation by giving the inventor a temporary monopoly. Festo Corp., 535 U.S. at 730, 122 S.Ct. 1831. This monopoly is a property right. Id. However, it is an intellectual property right that protects an item from being copied until the monopoly right has expired. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). As this Court has. noted, intellectual property is part of “a species of intangible personal property ... as opposed to tangible personal property that can be seen, felt, weighed and measured.” Corporate Catering, Inc. v. Corporate Catering, LLC, No. M1997-00230-COA-R3-CV, 2001 WL 266041, at *5 (Tenn.Ct.App. Mar.20, 2001) (no perm. app. filed). The law recognizes important differences between the two. For example, in Tennessee, a civil action for conversion, the wrongful appropriation of tangible property, is not recognized for the appropriation of intangible personal property. B & L Corp. v. Thomas & Thorngren, Inc., 917 S.W.2d 674, 680 (Tenn.Ct.App.1995).

Contrary to the Ralphs’ contention, the gravamen of the Monsanto action for patent infringement was not predicated on physical damage to the seeds or the “traits.” Nor was the Monsanto action one for personal injury. On the contrary, the “damage” to the physical, tangible seeds evidence the occurrence and extent of the wrongful misappropriation of Monsanto’s intellectual property right. The property actually damaged was Monsanto’s right to a monopoly over its innovation under the patent. Although Monsanto’s intellectual property right could not have been damaged without some physical interference with its patented innovation, Monsanto’s right to damages does not arise from the loss of tangible property, but from the loss of its monopoly right. The measure of the extent of that loss notwithstanding (e.g., technology fees), it is not damage to tangible property for which it seeks compensation. This intellectual property right is an intangible intellectual property not covered by the policy of insurance issued by Grange Mutual.

Likewise, the Monsanto action is not an action for personal injuries arising from disparagement. The policy of insurance issued by Grange Mutual defines “personal injury” as “injury, other than ‘bodily injury,’ arising out of one or more of the following offenses.” An offense enumerated by the policy, which the Ralphs’ assert is applicable here is “[o]ral or -written publication of material that ... disparages a person’s or organization’s goods, products or servicesf.]” We agree with the trial court that patent infringement is not equivalent to personal injury-arising from disparagement.

Disparagement is defined as a statement which is intended to “be understood or which is reasonably understood to cast doubt upon the existence or extent of another’s property in land, chattels, or intangible things, or upon their quality.” Black’s Law Dictionary 422 (5th ed.1979). Disparagement of goods is defined as “[a] statement about a competitor’s goods which is untrue or misleading and is made to influence or tends to influence the public not to buy.” Id. Disparagement of title is “detraction from title ... [[Injurious falsehood in which aspersion is cast on person’s title to property.”

Certainly, actions may be maintained for disparagement of products. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Likewise, actions may be maintained for disparagement and dilution of intellectual property such as trademarks. See, e.g., Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 431, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003). However, an action for patent infringement is not an action for disparagement. See, e.g., U.S. Test, Inc. v. NDE Environmental Corp., 196 F.3d 1376, 1382 (Fed.Cir.1999). Additionally, we note that the Monsanto action is not predicated on an “oral or written publication of material that ... disparages” that would be covered under the Grange Mutual policy of insurance. Thus, the Ralphs’ argument must fail.

The Ralphs further contend that Monsanto’s damages arise from their infringement of Monsanto’s “title” to the seeds and is covered by the advertising clause of the contract for insurance. Federal courts construing policies with language identical to that of the advertising clause in this case have noted that infringement of title unequivocally cannot be construed to mean patent infringement. Id. at 1381.

As the U.S. Test court noted, the courts have uniformly held that this standard, identical language in advertising clauses does not include coverage for patent infringement. Id. at 1380-81 (citing: See United Nat’l Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 452 n. 2 (6th Cir.1999); Herman Miller, Inc. v. Travelers Indem. Co., 162 F.3d 454, 455, 49 USPQ2d 1223, 1224 (6th Cir.1998); Heil Co. v. Hartford Accident & Indem. Co., 937 F.Supp. 1355, 1365 (E.D.Wis.1996); Owens-Brockway Glass Container v. International Ins. Co., 884 F.Supp. 363, 367 (E.D.Cal.1995); Gencor Indus., Inc. v. Wausau Underwriters Ins. Co., 857 F.Supp. 1560, 1564, 32 USPQ2d 1296, 1298 (M.D.Fla.1994); St. Paul Fire & Marine Ins. Co. v. Advanced Interventional Sys., 824 F.Supp. 583, 586, 27 USPQ2d 1624, 1626 (E.D.Va.1993); Julian v. Liberty Mut. Ins. Co., 43 Conn.App. 281, 682 A.2d 611, 613-14 (Conn.App.1996) (following Owens-Brockway, Gencor, St. Paul); Maxconn Inc. v. Truck Ins. Exch., 74 Cal.App.4th 1267, 88 Cal.Rptr.2d 750, 756 (1999); FileNet Corp. v. Chubb, 324 N.J.Super. 476, 735 A.2d 1203, 1215-16 (N.J.Super.Ct.Law Div.1997)). We agree with these courts that it is apparent from the language of the policy that the parties did not intend that patent infringement would be covered under the policy as an “advertising injury.”

Finally, we reject the Ralphs’ argument that Monsanto’s claim for relief could have been one for “all damages suffered by Monsanto because of the property damage described above [damage to tangible property (seeds and gene sequences)]; all damages suffered by Monsanto because of personal injury as described above; and/or all damages suffered by Monsanto because of advertising injury as described above[.]” This is not, contrary to the Ralphs’ contention otherwise, a question of mere semantics. Absent its patent, Monsanto simply would have had no cause of action against the Ralphs. The damages to Monsanto resulting from the Ralphs’ infringement of its patent are not covered by the commercial farmers’ liability policy issued by Grange Mutual. Accordingly, we affirm judgment of the trial court granting Grange Mutual’s motion to dismiss.

Award of Summary Judgment to Pipkin

Summary judgment is appropriate only when the moving party can demonstrate that there are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The party moving for summary judgment must affirmatively negate an essential element of the nonmoving party’s claim, or conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).

When a party makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion that the non-moving party has no evidence does not suffice to entitle the moving party to summary judgment. Id. In determining whether to award summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000). The court should award summary judgment only when a reasonable person could reach only one conclusion based on the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at 588. We review an award of summary judgment de novo, with no presumption of correctness. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002).

In this case, the Ralphs’ argument, as we understand it, is that, in the alternative, if the policy issued by Grange Mutual does not obligate Grange Mutual to defend and indemnify the Ralphs against the Monsanto action, then Mr. Pipkin negligently failed to procure coverage that would cover them “one hundred percent” as promised by Mr. Pipkin. We begin our analysis by noting that the Ralphs do not contend that the Grange Mutual policy is not a standard commercial farmers’ liability policy. Likewise, the Ralphs do not assert that they specifically requested insurance against claims of patent infringement. Rather, they submit they requested coverage against all foreseeable risks; that by 1996 the risk of an action for patent infringement arising from the increased use by area farmers of seed containing patented technologies was known and foreseeable by Mr. Pipkin, who held himself out to be experienced and knowledgeable in the industry; and that Mr. Pipkin negligently failed to provide the “100%” coverage against all foreseeable risks.

Mr. Pipkin, in response, asserts that insurance coverage is not available and cannot be procured from insurance companies for breach of contract, patent infringement, intentional acts, and fraud. He asserts the Ralphs sought and received a standard commercial farmers’ liability policy; that they first obtained the policy in 1996 and renewed the same policy from 1997-2000; and that he cannot be held liable for the Ralphs’ failure to read and understand the policy. In the alternative, Mr. Pipkin asserts that, under Tennessee Code Annotated § 56 — 6—115(b), if he was negligent in failing to procure the coverage sought by the Ralphs, Grange Mutual, as the insurance agent’s principal, is liable for any negligence.

We begin our analysis by noting that this case is not about the negligence of an insurance agent to maintain an existing policy or to procure a coverage requested by an insured. The Ralphs do not dispute that Mr. Pipkin procured a standard commercial farmers’ liability policy or that he maintained the policy. Rather, in this case, the Ralphs assert that they did not understand what kind of coverage they had purchased, or the extent of coverage they might need. Roger Ralph stated in his affidavit the he had

never understood that it was the insurance customer’s responsibility to know of all the risks to which he is exposed ... I know that other people and their lawyers will sue you over a lot of different things, and I know I can’t keep up with all of these and I certainly can’t figure out all of these in advance. I have lived long enough to know that the things that other people can sue you over keep changing.

In essence, the Ralphs assert that they relied on Mr. Pipkin to procure coverage against any civil action.

This Court has noted that “it is a universal general rule that an agent or broker of insurance who, with a view to compensation for his services, undertakes to procure insurance for another, and unjustifiably and through his fault or neglect, fails to do so, will be held liable for any damage resulting therefrom.” Massengale v. Hicks, 639 S.W.2d 659, 660 (Tenn.Ct.App.1982). The Tennessee Code, moreover, provides that an insurance agent who solicits or negotiates an application for insurance shall be regarded as the agent of the insurer. Tenn.Code Ann. § 56-6-115(b)(2004 Supp.). This statute has been liberally construed in favor of the insured, moreover, in order to “prevent the insurance company from denying responsibility for representations and actions from the agent from whom applications are voluntarily accepted and to protect an applicant who relies on such representations or actions.” Bill Brown Const. v. Glens Falls Ins., 818 S.W.2d 1, 4 (Tenn.1991) (quoting 15 Tenn. Jurisprudence, Insurance, § 9 at 180-81(1984); quoting Industrial Life & Health Ins. Co. v. Trinkle, 30 Tenn.App. 243, 204 S.W.2d 827 (1947)).

In Brown Construction, the Tennessee Supreme Court held that insurance companies do not have “immunity from legal liability for express commitments” made by their agents. Id. at 13. It also analogized a contract of insurance to a good under the law of sales and quoted Vulcan Life and Accident Insurance Company v. Segars, 216 Tenn. 154, 391 S.W.2d 393, 397-98 (1965), for the proposition that, like a vender supplying an article which he knows is to be used for a specific purpose, the insurance agent impliedly warrants that the contract of insurance is suitable for that for which it is purposed. Id. at 11-12.

However, the courts of this state have repeatedly noted that the value of all contracts would be destroyed if, in the absence of fraud, a party was permitted to admit that he signed a contract but did not read it or know its stipulations. Beasley v. Metropolitan Life Ins. Co., 190 Tenn. 227, 229 S.W.2d 146, 148 (1950)(citing with approval, 17 C.J.S., Contracts, § 137). In this case, Mr. Pipkin provided a standard commercial farmers’ liability policy. The Ralphs do not allege that Mr. Pipkin misrepresented the coverages of the policy or that he failed to procure coverages requested. They argue only that they did not know whether the Grange Mutual policy protected them against liability for patent infringement, but that it should have. They assert Mr. Pipkin was negligent in failing to provide such coverage because it was foreseeable that farmers such as themselves would have been exposed to claims of patent infringement arising from the saving of seed.

Foreseeability is an essential element of duty. Biscan v. Brown, 160 S.W.3d 462, 479 (Tenn.2005). In this case, we find it unnecessary to address Mr. Pipkin’s assertion that insurance against patent infringement and the actions alleged by Monsanto in its complaint against the Ralphs is not available because it cannot reasonably be argued that the Monsanto claim against the Ralphs was foreseeable at the time the policy was issued in 1996 or when it was renewed in 1998. The Ralphs’ action giving rise to Monsanto’s cause of action for patent infringement occurred in 1998. The Ralphs assert that, beginning in 1996, Monsanto introduced and began the commercial sale of its genetically modified, patented seed. They further submit in their brief to this Court that saving seed produced in one crop year for use in subsequent years was “routine” among farmers and that Monsanto “has moved heaven and earth to change all of this” beginning in 1996. They assert that although Monsanto started suing farmers for saving and replanting the seed, they “did not know this until much later.” Thus, it simply was not foreseeable in 1996 or 1998 that farmers’ liability policies provided less than full coverage against foreseeable risks when they did not provide coverage against patent infringement of the type alleged in the Monsanto complaint. Accordingly, we affirm summary judgment for Mr. Pipkin and the Pipkin Insurance Agency.

Holding

In light of the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the Appellants, Roger M. Ralph and Kem L. Ralph d/b/a Ralph Brothers Farms, and to their surety, for which execution may issue if necessary.

      . Under Rule 7.02(1) of the Tennessee Rules of Civil Procedure, a motion to dismiss must "state with particularity the grounds therefor." The party moving for dismissal must state the particular grounds for the motion in the motion itself. Merely moving for dismissal based on the failure to state a claim and stating the grounds in an accompanying memorandum does not fulfill the requirement. Willis v. Tennessee Dept. of Con., 113 S.W.3d 706, 709 n. 2 (Tenn.2003). Additionally, under Tennessee Rule of Appellate Procedure 24(a), trial briefs and memoranda of law are not part of the record on appeal. Id.

      In Finchum v. Ace, USA, this Court stated that it would “sua sponte require proper procedures to be followed.” Finchum v. Ace, USA, 156 S.W.3d 536, 538 n. 2 (Tenn.Ct.App.2004)(Susano, J., dissenting). In Finchum, we held that the trial court should not have considered a motion to dismiss that failed to fulfill the requirements of Rule 7.02 and, accordingly, vacated the trial court's judgment and remanded the matter for further proceedings. Id. at 539.
      In the case now before us, Grange Mutual’s motion to dismiss failed to state with particularity why the Ralphs' cause of action should be dismissed for failure to state a claim. However, Grange Mutual fully addressed the grounds in its brief to this Court, the trial court clearly stated the grounds for dismissal in its order, and the Ralphs have not raised the deficiency of the motion to dismiss as an issue for our review. Additionally, we observe that in Willis, the Tennessee Supreme Court considered the merits of the motion to dismiss notwithstanding the motion’s deficiency. In the interests of judicial economy, therefore, we will follow the Willis court's lead and address the merits of Grange Mutual’s motion to dismiss.
      We emphasize, however, that a motion to dismiss that merely states that a party moves for dismissal under Rule 12.02 but fails to "state with particularity the grounds” supporting the motion is procedurally inadequate under our Rules of Civil Procedure.


source: Caselaw Access Project

author: CHARLES D. SUSANO, JR., J.,

license: Public Domain

text:
    In re ESTATE OF Kenneth Marvin JONES.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 9, 2005 Session.
    July 29, 2005.
    Permission to Appeal Denied by Supreme Court Dec. 27, 2005.

      Douglas R. Beier, Morristown, Tennessee, for the appellant, Wanda Sue Jones.
    John T. Milburn Rogers and William S. Nunnally, Greeneville, Tennessee, for the appellees, Charles Anthony Jones and Lei-sa Jones Matthews.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

This case involves a dispute in probate between Wanda Sue Jones (“the widow”) — the surviving spouse of Kenneth Marvin Jones (“the decedent”) — and the children of the decedent’s first marriage— Charles Anthony Jones and Leisa Jones Matthews (“the decedent’s children”). We affirm in part and reverse in part. Case remanded with instructions.

I.

The decedent and the widow were married on December 2, 1989. Each brought property into the marriage: the decedent owned two tracts of land in Greene County — a tract of approximately 78 acres (“the Henry farm”) that he acquired in 1987 from Iva Kate Henry, and a tract of some 141 acres (“the Jones farm”) acquired by him in September, 1989, from his mother and sisters following the death of his father; the widow owned a 66-acre farm in Hamblen County that she acquired by way of an inheritance in 1987. In addition, the decedent owned a herd of cattle and some farm equipment. No children were born to the parties’ marriage.

The Jones and Henry farms both were burdened with a mortgage at the time of the parties’ marriage. On January 4, 1990, the widow, according to her testimony, gave the decedent $30,000 so he could pay off the mortgage on the Henry farm. The widow claims that her payment was not a loan, but rather, again according to her, payment for a one-half interest in the Henry farm. It is undisputed that the decedent never deeded an interest in this property to the widow.

At the time of their marriage, both of the parties worked at TRW. In 1993, the decedent left TRW and established a poultry business on the Jones farm. The widow continued to work at TRW. On June 15, 1993, the decedent and the widow executed a note and deed of trust on the Jones farm to Farm Credit in exchange for a borrowing of $155,000 to build the initial poultry houses on the property. The debt was increased to $313,500 on June 11, 1994, when more chicken houses were built. In addition to the deed of trust, Farm Credit had a purchase money security interest in the equipment of the poultry business. The amount of the Farm Credit debt at the time of the decedent’s death was approximately $140,000. It was paid off out of the proceeds of a credit life insurance policy on the decedent’s life.

The parties also jointly purchased a 32.69-acre tract adjacent to the Jones farm in June, 1995. The 32.69 acres was owned by them as tenants by the entirety. The couple had a joint bank account maintained in the names of “Kenneth M. Jones or Sue Jones.” They deposited a portion of their wages and income in this account. From this account, they made payments on the promissory notes, and paid for expenses incurred in the operation of the poultry business. These expenditures included the purchase of equipment for the business.

The decedent died unexpectedly on January 1, 2001, at the age of 53. At the time of his death, the decedent’s children were apparently unaware the decedent had left a holographic will. Leisa Jones Matthews testified at trial that she first saw the handwritten document, later probated as the decedent’s holographic will, several years prior to trial. She testified that she did not ask for a copy, as she did not realize its legal significance. Consequently, when the decedent’s children filed their “Petition for Administration of Estate and Issuance of Letters of Administration” on June 25, 2001, they proceeded as if the decedent had died intestate. The probate division of the trial court appointed the decedent’s children as co-administrators and issued letters of administration, all by order entered June 25, 2001. On October 29, 2001, Martha Jones Easterly and Karen Jones Ross, the sisters of the decedent, filed claims against the estate for debts owed to them in connection with the decedent’s purchase of the Jones farm.

The decedent’s children filed a declaratory judgment action against the widow on June 27, 2001. In their complaint, the decedent’s children asked the court for a declaratory judgment as to the parties’ respective interests in the decedent’s real and personal property, and in the income from the poultry business. The widow filed an answer on October 1, 2001; attached to the answer was a copy of the decedent’s holographic will. This is the first time the will appears in the record.

Upon learning that the decedent had died with a holographic will, the decedent’s children filed an amended complaint on August 9, 2002, seeking to probate a copy of the holographic will. They stated in their amended complaint that they believed the original of the will was in the widow’s possession, but that she had been unwilling to produce it.

The holographic will, which is addressed to the parties, provides, in relevant part, as follows:

[The widow] will have 100% control of the house, garage and approximately 1 acre around it for as long as she wants it or her lifetime. This also includes contents (except any personal items that belongs [sic] to either of you ... ).
There is an accidental life [insurance] policy threw [sic] T.R.W. with Anthony and Leisa listed [as beneficiaries] about 150,000. The other policy at T.R.W. is to [the widow].
The farm and cattle and equipment is hard for me to divide. First off [the widow] has ½ ownership of the property I bought from Iva Kate Henry. I want every thing [sic] to stay in the family if at all possible. Leisa I hope you will understand that I would like to see Anthony have the farm and all, if he wants to keep it. But if not it is 50/50. Leisa if Anthony wants it please settle with him at a reasonable price, say 50,000 for you [sic] part ... !

(Underlining in original). This holographic will was signed by the decedent and dated January 14, 1991. All of the parties conceded at trial that the subject instrument was, in fact, the last will and testament of the decedent.

On August 27, 2002, the widow responded to the amended complaint by filing a petition for exempt property and a year’s support, together with a notice of her election against the will and a petition for homestead. She also asked that she be appointed personal representative of the decedent’s estate. On September 6, 2002, the decedent’s children responded by filing an objection, both to her petitions and her election against the will. They contended that the widow’s filings were untimely and barred by the time limits prescribed by Tenn.Code Ann. § 31-4-102(a)(l) (Supp. 2004), a part of the elective-share statutory scheme. They also filed a partial inventory of the. decedent’s estate. The court issued a memorandum opinion with respect to the allegation that the widow’s filings were untimely, in which the court found that the widow’s petitions and election were timely filed. By a separate order entered December 3, 2002, the court admitted the decedent’s holographic will to probate and ordered that the decedent’s children would remain as co-personal representatives of the estate.

’ The trial court consolidated the various pleadings for trial. Following a two-day bench trial, the court took the case under advisement and requested the parties to file post-trial briefs. The trial court issued further opinions on June 5, 2003, and November 26, 2003, regarding the issues litigated at trial. As to the claims raised by the sisters of the decedent, the parties agreed at trial that both of their claims were valid and should be sustained. The trial court treated the sisters’ claims as “secured debts” and ordered that these claims, being $17,500 in total, be deducted as a part of the net estate calculation under Tenn.Code Ann. § 31-4-101(b) (Supp.2004).

On January 1, 2004, the trial court entered its final judgment, which detailed the assets to be included in the calculation of the net estate for the purpose of determining the widow’s elective • share. The judgment also recited the assets transferred to the widow that were to be offset against her elective share. The court further ordered (1) that the widow was to receive a year’s allowance of $10,000; (2) that she was not entitled to homestead; and (3) that there were debts of $111,757 against the gross estate. The decedent’s children were declared to be the owners of the Jones farm and the Henry farm, the court having determined that the decedent was the fee simple owner of these properties at the time of his death. The widow was declared to be the owner of the 32.69-acre tract that she had purchased with the decedent. The poultry business was declared to be one-half the property of the widow and one-half that of the estate. As a result of this division, the trial court decreed that half of the post-death profits from the poultry business would be paid to the estate, and the other half would be paid to the widow. Per the court’s calculations, the widow was entitled to an elective share in the amount of $237,503.93.

II.

Both parties raise issues on appeal relative to the trial court’s decrees pertaining to the estate. The widow argues that the trial court erred (1) in finding that the Jones farm was, in its entirety, an asset of the estate; (2) in failing to grant her a one-half interest in the Henry farm; and (3)in awarding the Jones and Henry farms to the decedent’s children. She claims that the 32.69 acres decreed to be hers by operation of law is now landlocked. In addition to responding to the issues raised by the widow, the decedent’s children contend (1) that the trial court erred in permitting the widow to dissent from the will, because, in their judgment, her petitions for an elective share, a year’s allowance, homestead, and exempt property were untimely; (2) that the trial court erred in failing to apply partnership and business law principles in assessing whether the poultry business was a sole proprietorship or a partnership; and (3) that the trial court erred in holding that income from the poultry business is part of the decedent’s “net estate” for the purpose of calculating the widow’s elective share. Both parties challenge the trial court’s treatment of the debts due Martha Easterly and Karen Ross as “secured debts.”

b-i I — (

As previously noted, the decedent’s children contend that the trial court erred in failing to dismiss the widow’s petition to elect against the holographic will of the decedent and her petition for her statutory entitlements. They argue that the widow’s petitions were not timely filed.

TenmCode Ann. § 31-4-102(a)(l) provides as follows:

The surviving spouse may elect to take such spouse’s elective share in decedent’s property by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine (9) months after the date of death, or within six (6) months after the appointment of the personal representative, whichever limitation last expires.

The statute is strictly construed in favor of compliance with the statutory time periods. See Wrenne v. American Nat’l Bank, 183 Tenn. 247, 191 S.W.2d 547, 551 (1946) (quoting Waterbury v. Netherlands 53 Tenn. 512, 521 (1871)). See also Gilliam v. Nunley, No. 80, 1990 WL 130821, at *1 (Tenn. Ct.App. E.S., filed September 12, 1990).

The decedent’s children argue that the widow did not satisfy either of the time periods specified in the statute.

As previously noted, the decedent died on January 1, 2001. The widow’s “election” petition was filed on August 27, 2002, obviously more than nine months from the date of his death. Therefore, if the widow’s petition is to be sustained as timely, it must come under the alternate time period in the statute — “within six (6) months after the appointment of the personal representative.”

The decedent’s children were initially appointed as co-administrators of the decedent’s estate on June 25, 2001. They were appointed to administer what was thought to be an intestate estate since the widow had not yet produced the decedent’s holographic will. The will was subsequently submitted for probate on August 9, 2002, and was admitted to probate on December 3, 2002. If the latter date is the operative one, the widow’s election of August 27, 2002, obviously was filed in a timely fashion.

The personal representatives were not vested with authority to administer a testate estate until it was established that the decedent died leaving a will. By the same token, as a practical matter, the widow could not formally dissent against the will until the personal representatives authorized to administer the testate estate were identified. We recognize that the widow’s failure to produce the holographic will at an earlier time is arguably what caused the delay in the commencement of the administration of this testate estate. However, be that as it may, the fact remains that there was no will to elect against until it was admitted to probate. We hold that the requirement of strict construction of the statutory time periods is honored under the facts of this case by a holding that the critical date is the date on which the trial court probated the holographic will and, for the first time, “anointed” the decedent’s children to administer this testate estate.

Accordingly, we hold that the widow’s election was timely filed.

IV.

The remaining issues before us pertain to decisions made by the trial court following a bench trial. Our review of these issues is de novo on the record of the proceedings below with a presumption of correctness as to the trial court’s factual findings unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d). We accord no such presumption to the trial court’s conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

V.

The widow argues that the trial court erred in holding that the Jones farm — a tract of approximately 141 acres — -was an asset of the estate. While acknowledging the plain facts — that the property was purchased by the decedent prior to the parties’ marriage and was, at all relevant times, titled in his sole name — the widow nevertheless argues that she owns a one-half interest in the property because the mortgage payments were made out of jointly-held funds and because she contributed to the improvement of the property and the preservation of its value. She characterizes her interest as an equitable one — a resulting trust.

In its memorandum opinion, the trial court stated the following with respect to the widow’s interest in this property:

[T]he [widow] asserts that by virtue of (1) the payment of all mortgage indebtedness upon said parcel having been made by means of funds held in a joint account of [the decedent and the widow], (2) the payment of poultry business expenses having been paid by funds from the joint account, and (3) [the widow’s] efforts in working in the poultry business, title should be equitably placed with [the widow] by reason of a resulting trust. Again considering the controlling principles of resulting trust, this Court concludes that [the widow] has failed to show by clear, cogent and convincing evidence that a resulting trust should be established in her favor with regard to the 141 acre tract.

A resulting trust has been defined thusly:

Resulting trusts are those which arise where the legal estate is disposed of, or acquired, without bad faith, and under such circumstances that Equity infers or assumes that the beneficial interest in said estate is not to go with the legal title. These trusts are sometimes called presumptive trusts, because the law presumes them to be intended by the parties from the nature and character of their transactions. They are, however, generally called resulting trusts, because the trust is the result which Equity attaches to the particular transaction.

Smalling v. Terrell, 943 S.W.2d 397, 400 (Tenn.Ct.App.1996) (quoting Gibson’s Suits in Chancery, § 382 (Inman, 7th Ed.1988)) (emphasis in original). However, the overriding principle pertaining to resulting trusts is that “the trust must arise at the time of the purchase, attach to the title at that time and not arise out of any subsequent contract or transaction.” Livesay v. Keaton, 611 S.W.2d 581, 584 (Tenn.Ct.App.1980) (emphasis added). It is undisputed that in the instant case, the grounds upon which the widow relies, ie., her contributions to the property after it was purchased, do not fall under the rubric of a resulting trust as they occurred subsequent to the decedent’s purchase of the land in September, 1989. The facts of this ease do not make out a resulting trust.

VI.

The widow next argues that the trial court erred in failing to grant her a one-half interest in the Henry farm. Specifically, she contends that she gave the decedent $30,000 to pay off the mortgage on this property in consideration of his promise to give her a one-half interest in the property. The trial court, however, held that her claim was barred by the statute of frauds, as there was no writing memorializing her interest.

The statute of frauds, codified at Tenn. Code Ann. § 29-2-101(a) (2000), provides that “[n]o action shall be brought,”

(4) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one (1) year; ...
unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person lawfully authorized by such party.

While a will, under certain circumstances, can be used to satisfy the “memorandum or note” requirement of Tenn. Code Ann. § 29-2-101 (a), the holographic will now before us does not so qualify. In Lambert v. Home Fed. Sav. & Loan Assoc., 481 S.W.2d 770 (Tenn.1972), the Supreme Court examined the subject requirement:

[T]he memorandum ... must contain the essential terms of the contract, expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected, without resorting to parol evidence. ...

Id. at 773 (quoting 49 Am.Jur. Statute of Frauds, §§ 353, 363-64). In the instant case, the holographic will simply states that “Sue has 1/2 ownership of the property I bought from Iva Kate Henry.” This bald statement does not state the terms of the alleged promise or agreement between the widow and the decedent with respect to the Henry farm. Accordingly, it does not meet the definition of a “memorandum or note” of “the promise or agreement.” TenmCode Ann. § 29-2-101(a). This issue is found adverse to the widow.

VII.

The widow also argues that, since the 32.69-acre parcel to which she is entitled by operation of law is now landlocked by virtue of the trial court’s decision to give the Henry and Jones farms to the decedent’s children, this is a clear indication that the decedent intended for her to have a half-interest in the Henry farm. We find this argument to be without merit. As discussed herein, the trial court properly awarded the Henry farm to the decedent’s children. The fact that the 32.69 acres is landlocked does not disturb our decision since the decedent’s children indicated at trial that they would permit the widow to have an easement over their property to the 32.69 acres. On remand, the trial court is directed to establish the widow’s easement lest this issue remain unresolved following the end of this contentious litigation.

VIII.

The decedent’s children challenge the correctness of the trial court’s holdings with respect to the poultry business. They contend that the court erred in applying a real property analysis to the facts impacting the poultry business. They argue that the court should have applied partnership principles and general business law in determining whether the poultry business was a sole proprietorship or a partnership.

In its memorandum opinion, the trial court discussed its decision regarding the poultry business and the rationale for that judgment:

[Pjoultry operations commenced on the 141 acre farm in 1993. In addition to [the decedent] devoting his full attention and efforts to this chicken business endeavor, [the widow] assisted by joining with [the decedent] in borrowing money, the proceeds of which were used in the business. Further, certain expenses of the poultry operation were paid from funds on deposit in the parties’ joint bank account. Finally, [the widow] personally participated to a limited extent in certain poultry operations. The evidence again supports a finding that the poultry operation conducted on the 141 acre tract was owned by [the decedent and the widow] as joint tenants and not as tenants by the entirety. One-half the value of the poultry operation at the time of [the decedent’s] death constitutes the property of [the widow] while the remaining one-half constitutes an asset of [the decedent’s] estate.

As can be seen, the trial court characterized the poultry business as an asset owned by the decedent and the widow as “joint tenants and not as tenants by the entirety.” The court concluded that the parties, while owning the business jointly, did not intend that the full ownership would pass to the survivor upon the death of the other. In other words, the trial court concluded that there was no “right of survivorship.” Accordingly, the court concluded that, upon the death of the decedent, his one-half interest “constitutes an asset of [the decedent’s] estate” while the other half was the property of the widow.

There are Tennessee appellate decisions holding that businesses operated on properties owned by married persons as tenants by the entirety were intended by the parties to be owned in the same fashion.

In Oliphant v. McAmis, 197 Tenn. 867, 273 S.W.2d 151, 154 (1954), the Supreme Court held that a husband and wife held certain property as tenants by the entirety, which included their cattle business. Even though the cattle were registered in the husband’s name, as was the business account from which the business registration was paid, the evidence demonstrated that the parties intended to hold all things as common property. Id. at 158. The husband had often said that they were co-owners of the cattle operation, and where the wife was entitled to the property on which the operation was situated by virtue of tenancy by the entirety, there was no reason why she should not also be entitled to the produce of the farm, the cattle, and the farm implements. Id. at 153-54.

In a subsequent case, we declined to employ principles of partnership law where, again, the married parties owned the property on which the business was situated as tenants by the entirety. Catt v. Catt, 866 S.W.2d 570, 573-74 (Tenn.Ct.App.1993). Relying on Oliphant, we held that since the land on which the business was conducted was titled in the parties’ names as tenants by the entirety, both parties borrowed funds to open and run the business, and they had only one checking account used for both business and personal use, the parties owned the business as tenants by the entirety. Id. at 574. The mere fact that the tax returns were only filed in the decedent’s name did not prove otherwise. Id.

In the instant case, however, the poultry business was not operated on property owned by the parties as tenants by the entirety. For this reason, we do not believe that the “property” approach utilized in Oliphant and Catt can be used to justify a property analysis in the case at bar. We hold that the trial court’s judgment that the poultry business was owned by the decedent and the widow as joint tenants with no right of survivorship is not an appropriate way to characterize the ownership of this business. We agree with the decedent’s children that partnership law and general business principles should be used in this case in determining whether the poultry business was a sole proprietorship or a partnership.

It is undisputed that there is no partnership agreement memorializing the ownership of the poultry business. However, the Revised Uniform Partnership Act provides that “the association of two (2) or more persons to carry on as co-owners of a business for profit forms a partnership, whether or not the persons intended to form a partnership.” Tenn.Code Ann. § 61-l-202(a) (2002). Subject to several exceptions stated in the applicable statute, the receipt of a share of the profits of the business constitutes prima facie evidence that a partnership exists. Tenn.Code Ann. § 61-l-202(c)(3). It therefore follows that a partnership exists “[i]f the parties’ business brings them within the scope of a joint business undertaking for mutual profit — that is to say if they place their money, assets, labor, or skill in commerce with the understanding that profits will be shared between them.” Bass v. Bass, 814 S.W.2d 38, 41 (Tenn.1991) (citing Pritchett v. Thomas Plater & Co., 144 Tenn. 406, 232 S.W. 961, 969-70 (1921)). In the absence of a written partnership agreement, it is incumbent upon the party alleging its existence to prove the fact of partnership by clear and convincing evidence. Tidwell v. Walden, 205 Tenn. 705, 330 S.W.2d 317, 319 (1959); B & S Enterprises v. Rowland, No. E2003-00458-COA-R3-CV, 2004 WL 115162, at *1 (Tenn. Ct.App. E.S., filed January 26, 2004).

The key to a determination of whether or not a partnership exists is intent. The Supreme Court has stated that

[t]he intent of parties to form a partnership may be implied; it need not be expressed in writing or orally, if it can be derived from the parties’ actions. [I]t may be asserted objectively from all the evidence and circumstances. It is not essential that the parties know that their contract, in law, creates a partnership. The legal effect of the parties’ agreement, not their subjective intent, determines whether there is a partnership.

Bass, 814 S.W.2d at 41 n. 3 (quoting 59A Am.Jur.2d Partnership, § 152 (1987)). We have applied these principles in the context of a widow seeking a declaration that she owned the decedent’s business. Lamberth v. S & L Plumbing Co., Inc., 935 S.W.2d 411, 413 (Tenn.Ct.App.1996).

We hereby remand this matter to the trial court for a determination of whether the poultry business was a sole proprietorship or a partnership. It is not a “joint tenancy”. as that concept is generally known in real property law.

The decedent’s children also argue that it was error for the trial court to award the income from the poultry business as it did. Since this issue will be impacted by the trial court’s ultimate determination as to whether the poultry business is a sole proprietorship or a partnership, we decline to address this issue here. It can be addressed by the trial court on remand.

IX.

Both sides take issue with the trial court’s treatment of the debts due the decedent’s sisters, Martha Jones Easterly and Karen Jones Ross. The parties contend that the trial court treated these debts as if they were “secured debts” as that concept is found in TenmCode Ann. § 31-4-101(b) (Supp.2004). The parties claim that the trial court directed that the debts due these two individuals were to be deducted in arriving at the “net estate” under TenmCode Ann. § 31-4-101(b). They point out that neither claim was secured by a mortgage' on the Jones farm or otherwise secured by collateral.

Tenn.Code Ann. § 31-4-101(b) provides that a number of deductions are permitted in arriving at the “net estate.” One of these deductions is “secured debts to the extent that secured creditors are entitled to realize on the applicable collateral.” (Emphasis added).

We agree with the parties that the trial court erred in deducting the sisters’ claims as if they were “secured debts.” They were not. There is no evidence that these debts — resulting from the sale of the Jones farm to the decedent — were secured by a mortgage or otherwise. Therefore, they should not have been deducted under Tenn.Code Ann. § 31-4-101(b) in determining the net estate. It is clear to us that the “secured debts” deduction alluded to in Tenn.Code Ann. § 31-4-101(b), with its express reference to “collateral,” is the traditional concept of secured obligations. On remand, the court should recompute the net estate and the elective-share payable to the widow without deducting these claims.

X.

The decision of the trial court is hereby affirmed in part, and reversed in part. We remand for further proceedings consistent with this opinion. Costs on appeal are taxed to the appellant, Wanda Sue Jones.

      . The widow was not living in the residence at the time of the decedent's death. She does not raise an issue on appeal with respect to the trial court’s denial of her petition for homestead.

      . The time limitations on the filing of a petition for the statutory entitlements are identical to those set forth in the elective share statute. See, e.g., Tenn.Code Ann. §§ 30-2-101(d) & 30-2-102(g) (2001).

      . We say "arguably” because one of the decedent's children admitted she was aware of the document’s existence although she testified that she did not understand its legal significance.

      . The trial court reached the same conclusion but for a different reason. However, we can affirm a trial court’s decision if we find that it is the correct one even if we disagree with the court’s rationale. Shutt v. Blount, 194 Tenn. 1, 249 S.W.2d 904, 907 (1952).

      . See Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 57 (1928).

      . Since the widow has elected against the will, we do not have to determine if the subject language from that instrument constitutes a devise.

      . At trial, the parties agreed that the sisters' claims were valid. They also agreed as to the amounts of those claims. With respect to Ms. Ross, the parties agreed to deed her a "1.08-acre tract to satisfy her claim.” Ms. Easterly received "$6,500 to resolve her claim.” However, neither had retained a mortgage on the land or an interest in other collateral as security for these obligations of the decedent.


author: SHARON G. LEE, J„

text:
    James O. BAILEY, et al. v. Robin CRUM, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 10, 2005 Session.
    June 23, 2005.
    Permission to Appeal Denied by Supreme Court Dec. 5, 2005.

      John Stephen Anderson, Rogersville, Tennessee, for the Appellants, James 0. Bailey and Kim Bailey.
    Richard A. Spivey, Kingsport, Tennessee, for the Appellees, Robin Crum and Sonny Crum.
   OPINION

SHARON G. LEE, J„

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.

In this case, the Appellant argues that the trial court erred in holding her in willful contempt of court for violating the court’s prior order of injunction and for failing to appear for the hearing on the petition for contempt. The trial court sentenced the Appellant to ten days in jail and imposed a fine of $50.00. Upon our finding that the contempt was criminal in nature and that the Appellant was not accorded her rights of due process under Tenn. R.Crim. P. 42(b), the judgment of the trial court is reversed in part, vacated in part and the cause is remanded for further proceedings.

On October 20, 2003, the Circuit Court for Hawkins County, Tennessee, entered an order in a case then pending before it that, among other things, enjoined the Appellants, James O. Bailey and Kim Bailey, from harassing the Appellees, Robin and Sonny Crum, or the Crum children “through personal contact, verbal or otherwise ... and from contacting, mentioning or referencing [the Appellees] or their children.”

On November 13, 2003, the Appellees filed a petition requesting that the Appellants be required to appear and show cause why they should not be held in contempt for violating the trial court’s order of injunction. On the same date, a notice was filed setting the matter for hearing for November 17, 2003. Thereupon, the Appellants filed a motion for continuance upon the following stated grounds:

1. Attorney for Plaintiffs has a case that was set prior on [sic] this same date in the Chancery Court for Hawkins County, Tennessee.
2. This is a Hawkins County case.

On November 17, 2003, an amended notice was filed by the Appellees setting the hearing on the petition for contempt for November 26, 2003. As best we can discern from the available record, the case was called for hearing on November 26, 2003, but the Appellants failed to appear and, on December 5, 2003, based upon its finding “that hearing should be reset due to the serious nature of the sanctions being considered by the Court,” the trial court entered a show cause order resetting the hearing on the contempt petition to December 10, 2003.

On November 25, 2003, the Appellants filed a second motion for continuance of the petition for contempt hearing from its setting of December 10, 2003, upon the following stated grounds:

1. The Plaintiff Kim Ward Bailey has been recovering from a brain surgery and her doctor has not cleared her for the stress of litigation.
2. Discovery has not been able to be completed of Plaintiffs Kim Bailey’s health problems.

On April 8, 2004, the Appellees filed a second petition for contempt against the Appellants for alleged violation of the trial court’s order of October 20, 2003. This petition states as follows:

Petitioners Robin Crum and Sonny Crum, herewith petition and request this Honorable Court hold hearing and require Respondents James O. Bailey and Kim Ward Bailey, to show cause as to why they should not be held to be in wilful contempt of Court for their deliberate, wilful and intentional violation of the Order previously entered on October 20, 2003, in this cause by their refusal to abide by or obey the directives set forth therein enjoining them during the pendency of this cause from harassing Petitioners or their children through personal contact, verbal or otherwise, and from photographing or videotaping Petitioners or their children, and from contacting, mentioning or referencing Petitioners or their children, physical descriptions or otherwise readily identifiable descriptions of Petitioners or their children, their addresses, telephone numbers, employers or place of employment, through the use by Respondents of telephone, Internet, web sites or any form of electronic communications, and directing that any such references by Respondents which currently exist be immediately removed and deleted by Respondents.
WHEREFORE, Petitioners request that Respondents be required to appear and answer this Petition and thereafter to be held in wilful contempt for each and every violation of the Order and that appropriate penalties, including but not limited to fines and/or jail time be levied upon them as the facts of this cause shall dictate for each and every violation, and further, that Petitioners be granted such other affirmative and general relief as the Court shall deem proper, including but not limited to an aware [sic] of reasonable attorney fees for the necessity of bringing this Petition for Contempt, and that costs be taxed to Respondents.
Respectfully submitted,
ROBIN CRUM and SONNY CRUM

On April 8, 2004, an amended notice of the hearing on the petition for contempt was filed that shows that the petition for contempt would be heard on April 16, 2004.

On April 13, 2004, the Appellants filed a motion for continuance upon the following stated grounds:

1. The Attorney for Plaintiffs mother had a complete hip replacement surgery on April 9th 2004, and will need extensive care and Attorney’s [sic] for Plaintiffs 83 year old father is till [sic] recovering from a stroke, and the Attorney for Plaintiffs will be needing to take extensive time off and will not be able to adequately prepare for the trial.
2. Discovery has not been able to be completed of Plaintiffs Kim Bailey’s health problems. Plaintiff Kim Bailey has improved but Plaintiffs attorney has not received a release from her doctor.

On April 16, 2004, the date of hearing, the Appellants filed yet another motion for continuance. This motion also requests a more definite statement of the alleged contempt, asserting that the Appellants “are entitled to a more definite statement specifying what acts occurred and specific times and to whom.” The motion states that Appellants’ attorney “has a conflict and has to be in Knox County Chancery Court on April 16, 2004,” and requests “[t]hat the matter be continued until said definite statement is provided.” (This motion is in conflict with the Appellants’ previous motion that was filed just three days prior and states that the Appellants’ counsel needed a continuance because he needed to take extra time off.)

The contempt hearing was held as scheduled on April 16, 2004, and on April 23, 2004, the trial court entered its order of willful contempt which provides as follows:

This cause came on to be heard on April 16, 2004, before the Honorable Kindall T. Lawson, Judge for the Circuit Court of Hawkins County, holding Miscellaneous Day and on Amended Notice of Hearing of Petition for Contempt filed and served on behalf of Petitioners Robin and Sonny Crum and the Motion for Continuance and More Definite Statement filed the same day as hearing on behalf of Respondents James O. Bailey and wife, Kim Bailey, and from the testimony of Robin Crum regarding the latest incident warranting contempt, that being the personal contact and harassment of Robin Crum at her place of employment, Proffitt’s in Kingsport, by Kim Bailey on or about March 19, 2004, in violation of the temporary injunction entered October 20, 2003, prohibiting harassment through personal contact, the Court reserving further testimony of other numerous incidents until further proceedings, and upon the failure of Kim Bailey to appear for hearing, said failure also being cause for a finding of contempt, it appearing the Petition for Contempt was well taken and accordingly, the Court did find Kim Bailey to be in wilful contempt of Court and that the Motion for Continuance and More Definite Statement was not well taken and should be denied.
THEREFORE, it is
ORDERED:
1. That Kim Bailey be hereby declared to be in willful contempt of Court for her personal contact and harassment of Robin Crum on or about March 19, 2004, and further, based upon her failure to appear for hearing on April 16, 2004, and that sanctions shall be imposed upon Kim Bailey in the form of a jail term of ten (10) days in the Hawkins County jail which service shall have commenced at the earliest opportunity for her to be placed in custody by the Hawkins County Sheriffs Department for transport to and service of said ten (10) days and additionally, the imposition of a $50.00 fíne for the aforesaid incident of harassment.
2. All other matters and testimony shall be reserved until further proceedings of the Court and costs shall be taxed to Respondents.

The Appellants appeal this order.

At this point, we are compelled to note that, although the Appellees’ petition for contempt was filed against both Kim Bailey and James O. Bailey and this appeal was filed by both of the Appellants, the trial court’s order of contempt in this case only finds the Appellant Kim Bailey in contempt and the order does not address any charges of contempt against the Appellant James O. Bailey. There being no final order of contempt as to James O. Bailey, he has no right to an appeal under Tenn.R.App.P. 3. Accordingly, this appeal is dismissed as to James O. Bailey.

Further, we note that, although the underlying case in which the trial court entered its injunctive order of October 20, 2003, was still pending at the time of appeal, a judgment of contempt becomes final upon entry of punishment and is, thus, appealable under T.R.A.P. 3 even though the proceedings out of which the contempt arose are not complete. State v. Green, 689 S.W.2d 189 (Tenn.Crim.App.1984). Therefore, Kim Bailey has the right to appeal the trial court’s decision finding her in contempt.

The sole issue we address in this appeal is whether the trial court violated the Appellant Kim Bailey’s due process rights in finding her in willful contempt of court for violating the injunction and for failing to appear at the contempt hearing.

This is a non-jury case and, accordingly, our review is de novo upon the record of the trial court without any presumption of correctness attaching to the trial court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996) and Tenn. R.App. P. 13(d). We must, however, presume the trial court’s factual findings to be correct absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

Rights of due process in the contempt context vary according to whether the contempt is categorized as criminal or civil. The Tennessee Supreme Court discussed the distinction between the two in Ahern v. Ahern, 15 S.W.3d 73 at 78, 79 (Tenn.2000), as follows:

Traditionally, contempt has been classified as civil or criminal depending upon the action taken by the court to address the contempt.
After a finding of contempt, courts have several remedies available depending upon the facts of the case. A court can imprison an individual to compel performance of a court order. This is typically referred to as “civil contempt.” This remedy is available only when the individual has the ability to comply with the order at the time of the contempt hearing. Tenn.Code Ann. § 29-9-104. Thus, with civil contempt, the one in contempt has the “keys to the jail” and can purge the contempt by complying with the court’s order. Tenn.Code Ann. § 29-9-104. In civil contempt, the imprisonment is meted out for the benefit of a party litigant.
A court can also imprison and/or fíne an individual simply as punishment for the contempt. This remedy is commonly referred to as “criminal contempt.” Unless otherwise provided, the circuit, chancery, and appellant courts are limited to imposing a fine of $50.00 and to imprisoning an individual for not more than ten days. Tenn.Code Ann. § 29-9-103. A party who is in criminal contempt cannot be freed by eventual compliance. (Case citations omitted.)

It is apparent from the record in this case that Kim Bailey was charged with criminal contempt. And, as we have noted, the trial court’s order of April 23, 2004, states two independent grounds for holding her in willful contempt — her failure to appear at the hearing on April 16, 2004, and her violation of the order of injunction entered on October 23, 2003. The trial court was not a witness to the Appellant’s willfulness in failing to appear nor did the alleged violation of the order of injunction occur in the trial court’s presence, and, therefore, each constitutes an alleged instance of indirect criminal contempt. State v. Maddux, 571 S.W.2d 819, 821 (Tenn.1978). Previously, we have held that “trial courts may impose punishment for indirect criminal contempt only after providing notice pursuant to Tenn. R.Crim. P. 42(b).” Jones v. Jones, 01A01-9607-CV-00346, 1997 WL 80029, 1997 Tenn.App. LEXIS 132, at *8 (Tenn.Ct. App. February 26, 1997), no perm. app. The notice required is set forth at Tenn. R.Crim. P. 42(b) as follows:

The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the district attorney general or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest.

The amended notice of the hearing on the petition for contempt in this case which was drafted to notify the Appellants of the hearing on April 16, 2004, provided as follows:

TO: JAMES O. BAILEY, KIM WARD BAILEY and their attorney, JOHN S. ANDERSON, 101 W. Broadway, Ste. 2, Rogersville, Tennessee
PLEASE TAKE NOTICE that the undersigned attorney will appear before the Honorable Kindall T. Lawson, Judge for the Circuit Court of Hawkins County, holding miscellaneous day on Friday, April 16, 2004, in the large courtroom on the second floor of the Hawkins County Courthouse located at 100 East Main Street, Rogersville, Tennessee, and then and there, or as soon thereafter as he may be heard, present for hearing to the Court the petition for Contempt against Respondents and request the Court grant the relief requested herein.
TAKE NOTICE AND GOVERN YOURSELF ACCORDINGLY.
Respectfully submitted,
ROBIN CRUM and SONNY CRUM

As we have stated on prior occasion, “[t]he Tenn. R.Crim. P. 42(b) notice must specifically charge a party with criminal contempt and must succinctly state the facts giving rise to the charge. Because the same conduct can constitute both civil and criminal contempt, the Tenn. R.Crim. P. 42(b) notice eliminates any possible confusion concerning the nature of the proceeding.” Weissfeld v. Weissfeld, E2004-0013-COA-R3-CV, 2004 WL 2070979, 2004 Tenn.App. LEXIS 606 (Tenn.Ct.App. Sept.16, 2004), citing Jones v. Jones, id. (Emphasis added in Weissfeld). Neither this notice nor the petition for contempt filed on April 8, 2004 meets either of these requirements. The Appellees did not notify the Appellant as to whether the contempt charged was criminal or civil nor did they notify the Appellant of the alleged facts upon which the charge of contempt is based. In her motion for continuance and more definite statement, the Appellant asserts that she is “entitled to a more definite statement specifying what acts occurred and specific times and to whom.” We agree and, in accord with our decision in Weissfeld, id., we hold that notification under Rule 42(b) is insufficient unless it provides a description of the particular actions alleged to be contemptuous and sets forth the dates and location of such actions.

We also must determine whether Kim Bailey’s rights of due process were observed with respect to her being held in willful contempt for her failure to appear. The trial court’s order of April 23, 2004, decrees her to be guilty of willful contempt, and, although the trial court witnessed her absence from the hearing on April 16, 2004, as we have stated, the court did not witness the Appellant’s willfulness. Section (b) of Rule 42 provides for disposition of a criminal contempt “upon Notice and a Hearing” when, as occurred in the instant matter, the trial court did not see or hear the conduct constituting the contempt and the conduct did not take place in the trial court’s presence. See also, State v. Bryan, W1999-00620-CCA-R3-CD,2000 WL 33288749, 2000 Tenn.Crim.App. LEXIS 511 (Tenn.Crim.App. June 27, 2000), wherein we found that the trial court erred in not affording a defendant a hearing before finding him guilty of contempt under Rule 42(b) for willful failure to appear. We further note that Rule 42(b) requires that a defendant in an action for criminal contempt under this section receive notice stating “the time and place of hearing” and “allowing a reasonable time for the preparation of the defense.” Kim Bailey was not provided with such notice in this case. Because she was denied both proper notice and a hearing as required by Rule 42(b), it is our determination that Kim Bailey was denied her right of due process.

We now address proper disposition of this case. Upon our finding in her favor, the Appellant requests that the trial court’s order “be set aside and a new hearing ordered.”

In State v. Bryan, id., the Court of Criminal Appeals held that a criminal contempt conviction was improper on grounds of willful failure where the trial court ruled against the defendant absent a hearing and without notice as required under Tenn. R.Crim. P 42(b). In determining whether the case should be remanded to the trial court for a hearing on the contempt charge or whether, instead, the trial court’s order should be reversed and the contempt charge dismissed, the Court set forth the following analysis at *9:

Constitutional provisions protect a person from more than once being placed in jeopardy of conviction of a crime. U.S. Const, amend. V, amend XIV; Tenn. Const, art. I, sec. 10. Principles of double jeopardy apply to criminal contempt proceedings. One principle of the double jeopardy provision is that a person may not be re-prosecuted for an offense after he or she has been acquitted of that offense. “There can be no acquittal, however until jeopardy attaches.”
Next, our analysis of the issue of disposition of the case reveals that divergent results are suggested by two basic rules of law. On the one hand, it can be posited that the trial court’s judgment of criminal contempt is not supported by sufficient evidence because the record is devoid of any evidence or judicial notice that establishes willful misbehavior, an element of the offense. As in other criminal cases, when the sufficiency of the convicting evidence is challenged on appeal, the appellate court “must review the record to determine if the proof adduced at trial supports the findings of the trier of fact of guilt beyond a reasonable doubt.” If the evidence under this standard is insufficient to support the criminal conviction, the remedy is a reversal of the conviction and a dismissal of the charge.... For double jeopardy purposes, a holding that the evidence is insufficient is essentially an acquittal. On the other hand, the trial court received no evidence, took the defendant’s characterization of his behavior as true and erroneously determined that the defendant was guilty as a matter of law. Moreover, given the dictates of Criminal Rule of Procedure 42, the trial court erred when it proceeded summarily. Hence, this court’s reversal of the contempt conviction could be viewed as based upon trial court error. Typically, reversals sought by the defendant based upon trial court error do not require dismissal of the charges, and retrial is not barred by principles of double jeopardy.
Normally, jeopardy attaches in a non-jury proceeding when a witness is sworn to testify. When there is no witness sworn and no fact trial in a contempt hearing, jeopardy cannot attach until the contempt is declared- [I]n nonsum-mary criminal contempt proceedings, jeopardy attaches “as it attaches to other criminal prosecutions.” ... However, in the present case, the trial court’s summary declaration of contempt was error. In other words, jeopardy only attached when the erroneous conviction was imposed. Under the circumstances, this analysis points to a reversal that poses no bar to retrial. (Case citations omitted.) (Emphasis in original.)

In the instant matter, the trial court essentially found Kim Bailey guilty of two instances of contempt. In part, the court decreed Kim Bailey to be in contempt upon grounds that she violated the order of injunction entered October 20, 2003. The trial court’s order of contempt indicates that the court’s grant of the contempt petition is based upon “the testimony of Robin Crum regarding the latest incident warranting contempt, that being the personal contact and harassment of Robin Crum at her place of employment, Proffitt’s in Kingsport, on or about March 19, 2004.” We must necessarily conclude from this language that Robin Crum was sworn as a witness and that a fact trial took place with regard to the charges that Kim Bailey violated the trial court’s in-junctive order by engaging in the activity described. Commensurate with the Court’s analysis in Bryan, we hold that jeopardy attached with respect to those specific charges and, therefore, the order of contempt is reversed to the extent that it decrees Kim Bailey to be in contempt for violation of the injunctive order of October 20, 2003, and retrial on charges that she violated that order by personally contacting and harassing Robin Crum at her place of employment, Proffitt’s in Kings-port, on or about March 19, 2004, is barred. While the order recites this incident as grounds for its decree, it also finds Kim Bailey guilty of willful contempt based upon her failure to appear for hearing. There is nothing before us to show that the trial court took proof as to the matter of her willfulness in failing to appear, no witness was sworn, and no fact trial took place. Accordingly, no jeopardy attached and there is no bar to retrial. Therefore, with respect to the holding that Kim Bailey is guilty of willful contempt for failure to appear, we vacate the order of the trial court and remand for trial on that issue subject to proper notice being provided as required by Tenn. R. of Crim. P. 42(b).

In concluding, we note that the hearing of April 16, 2003, and the trial court’s subsequent order of April 23, 2003, did not address any charges of contemptuous activity prior to the alleged incident of March 19, 2004, described in the order of contempt. Thus, it appears that the initial petition for contempt filed by the Appel-lees on November 13, 2003, is still pending before the trial court. Issues related to that petition are not before us in this appeal.

The judgment of the trial court is reversed in part, vacated in part and the cause is remanded for further contempt proceedings as indicated herein. Costs of appeal are adjudged against the Appellees, Robin Crum and Sonny Crum.

      . Although, as we have indicated, the show cause hearing was set for April 16, 2004, this motion for continuance requests that the trial court continue the action "from it[s] present setting of April 29th, 2004.” We assume that the Appellants intended to set forth the correct date of April 16, 2004.