*1 receiving guilty it is likewise the bank conversion_
Id., at 699-700. Scott, and Delores Charles SCOTT chancellor, memorandum, em- Petitioners-Appellees, phasized fact that Duncan did not him- v. check, stating: deposit self PULLEY, Intervening Elizabeth Aurelia pick up money I think the bank can don’t Petitioner-Appellant, deposit, not off the desk intended deposit money,
themselves and then v. right deposits rely upon the to take SERVICES, CHRISTIAN COUNSELING This is not the normal case where debts. Respondent-Appellee. person savings account or check- has gets in default. Under account Tennessee, Appeals of Court of circumstances, course, those the bank Section, at Nashville. Middle every to take those accounts theory, self-help under a but I think the Nov. 1985. self-help goes too far under these facts. Application Appeal for Permission Court, by Supreme supports Denied
The rationale of Winslow respect conclusion. With Jan. the chancellor’s check, to the cashier’s David Duncan did “depositor” legal in a sense.
not become took the check
When the bank officer negoti on his desk
which had been left apparent intent to set-off
ated it with equity against
the Duncans’ Dun David debt, business he over-reached his
can’s
authority because the bank officer was not to establish a debtor-creditor re
authorized
lationship the Duncans and the between Moreover, is no indication that there
bank. ever “ratified” the transac
the Duncans
tion.
Finally, ownership Duncans’ funds from the sale was as tenants depositing the entirety and the bank’s in an account for the Duncans
funds ownership change the nature of their regard, In this a contract estab
interest. against
lishing right of set-off one of only would not enable the bank to
tenants
the account
set-off. See
reach
Griffin
(Tenn.1982).
Prince,
v. remaining considered the issues
We have find them to be without merit. the chancellor is af- judgment cause at the cost and the
firmed
remanded.
PARROTT, P.J., GODDARD,J., con-
cur. *2 Hirsch, Sr., Nashville, peti-
Renard A. for tioners-appellees. Kirk, Woods, Watson,
Kim L. &Woods Nashville, intervening petitioner-appel- for lant. Dale, Nashville, respondent-
Lucien for appellee.
OPINION LEWIS, Judge. appeal by
This an Aurelia Elizabeth Pulley from the Trial Court’s dismissal of her “Motion for Permission to Intervene in Proceedings” Adoption “Petition Re- voke Surrender of Child.” Pulley is natural mother of child born out of wedlock on December She 1983. surrendered the child Chris- (CCS) Counseling tian before the Services January 13, Honorable Muriel Robinson on Pulley, at the time she executed CCS, surrender to was one month from her birthday. nineteenth She was second year University, Tech student Tennessee major studying towards a in mass commu- nications.
Approximately one week
the child
before
born,
told her obstetrician
give
baby up
that she wanted to
Her obstetrician referred
agency,
of Life.”
informed
“Choice
She
place
“Choice Life” that she wanted to
baby
that,
while she
preference
religion,
pre-
no
as to
adopting parents
ferred that
by Judge
with three la-
she was informed
“black.” After consultation
Robinson that
mind,
period
changed my
thirty days”
Life” for a
“if I
I had
dies at “Choice of
hours,
by Judge
three
she was referred CCS.
to revoke.
was asked
some
Robin-
surrendering
if she was
her child under
went to CCS on December
duress, and she answered that she was not.
Morsh who
conferred with Rebecca
*3
Judge
question,
In
Robinson’s
answer
gave
Preliminary
her a “Natural Parent
Pulley
that
Miss
stated
she felt it was in
Questionaire.”
Pulley
ques-
the
Miss
took
interest of both herself and the
the best
completed
home where she
it and
tionaire
child for the child to be surrendered for
questionaire
returned it to CCS. The
con-
adoption.
tained,
alia,
following: “Q.
inter
the
At
point,
your plans for
what are
the
13th,
February 12th or
On either
Miss
baby?
may
You
not have made a definite Pulley
mother call CCS to see if
had her
yet,
you
decision
but in what direction are
anything she could do
there was
about
leaning?”
“Adoption.”
She answered:
Pulley
getting her child back. Miss
testi-
up
mind that
really
fied that she
made
A.M. on De-
The child was born at 2:00
keep the child after she had
she wanted to
any anesthesia or nar-
cember 13th without
days
him
after the sur-
seen
some several
Pulley.
being
cotic
to Miss
administered
render was final.
13th, Rebecca
At 1:00 P.M. on December
Pulley’s hospital room
Morsh came to Miss
Pulley’s mother talked with
at-
Miss
and,
Pulley's
presence
of Miss
moth-
torney
Birmingham
sometime
either
er,
Pulley
sign releasing
“to
asked Miss
March, 1984, regarding revo-
February or
baby
custody
to the
of Christian Counsel-
attorney ad-
the surrender. This
cation of
Pulley executed the
ing Services.” Miss
Miss Pul-
Pulley’s
Miss
mother that
vised
witnessing the
document with her mother
something
hurry”
“in a
about
ley
do
should
Pulley
signed a
release form. Miss
also
that
Pulley
Miss
testified
the surrender.
second document at that
time which al-
attorneys
different
she talked with three
plans
lowed the CCS to make
for the child.
hired
her before she
representing
about
these attor-
present counsel. One of
Pulley understood the document
Miss
conflict,
them told
and two of
neys had
was not under the
and stated that she
prevail.
could
they did not feel she
her that
any drug and that it was at
influence of
sign
that
time her intention
doc-
event,
intervene
petition
In
releasing
ument
the child.
November
was not filed until
surrender
petition
revoke the
scheduled before
The surrender was
20, 1984.
not filed until December
January
Judge Robinson for
1984. Miss
date, and the surrender
Pulley missed this
testimony
Pulley’s
It was further Miss
was rescheduled for
had decided
that one of the reasons she
that she
give
up
the child
Pulley’s
came to Miss
home
Ms. Morsh
sup-
family
did not feel that her
January 13th and took her to the David-
on
however,
testified,
portive
her.
County
for the surrender.
son
Courthouse
hospi-
in the
was still
she learned while she
neither Ms. Morsh
Pulley admits that
Miss
the child that
following
tal
the birth of
anything
else did or said
anyone
nor
help
very supportive and would
family was
signing
her into
or “coerce”
“intimidate”
her child.
caring
her in
one
document. No
insisted
the surrender
through
Pulley go
with the sur-
re-
that after she
Pulley stated
prior
At no time
render.
mixed emo-
experienced
turned home she
anyone
Pulley tell Ms. Morsh or
did Miss
great deal
tions,
her child a
that she missed
changed
her mind about
else
do. She was
uncertain what to
but was
placing the child for
the sur-
even before
impression
under the
possible
get
surrender,
not be
Pulley
while Miss
render that it would
theAt
Chambers,
and,
time of the sur-
child back
at the
Robinson were alone
Judge
render,
hearing
she was
to revoke the surren
experiencing
confused and
At the
der,
was on Miss
great pressure
stress.
the burden
to show
under duress and that
she was
issue,
By her
first
insists
brought
about
undue in
surrender of
for adop-
“[t]he
[her]
fluence.
tion came as a
of imposition
result
of un-
influence,
due
Trial
Court therefore
other
Pulley relies on cases from
denying
petition
erred in
for revoca-
[her]
of her
jurisdictions
insistence
tion of surrender.”
forcing
applied
influence was
undue
her child.
her to surrender
Undue influence
been defined as
that influence which
controls
mental
NAB,
In
Mission Home
Methodist
v.
operations
of the one influenced
over-
(Tex.Civ.App.1970),
S.W.2d 539
the mother
coming
power
of resistence and thus
for unwed
entered a home
mothers. The
*4
obliging
adopt
another,
him to
the will of
court
that
found
the staff mambers had
thereby producing a disposition of prop-
caused
natural
mother to believe that
or
erty
performance
by
of some act
parents’ support
own
for her
to
decision
person
influenced
which he otherwise
keep
put
her child was an effort to
some-
would not have done.
thing
on the natural
over
mother. She was
by
told
the staff of the home that
had
she
no
(1973).
50 A.L.R.3rd
920
right
keep
to
her child. The
also
court
considering
parental
In
whether
con-
depen-
found that the natural mother was
to
or
sents
to the surrender of
upon
dent
the staff of the home
assis-
placement
their children to child
or sim-
finding
tance in
employment
place
and a
to
agencies
through
ilar
were obtained
du-
live. The facts Methodist
Home
Mission
ress, courts have defined and construed
are
to
inapposite
the facts here.
according
gener-
the term “duress”
to its
ally
meaning,
signify
understood
to
D_,
(Mo.App.
In Re
“Moral duress” consists in tion. influence, oppression, undue or the tak-
ing
advantage
of undue
of the business
She
that she had
see
testified
asked to
or financial stress or extreme necessities
they
told
child before
surrender
another,
or weakness of
and relief is her she
not see it until the
could
surrender
granted in such eases on
basis
counsel, therefore,
final.
become
Her
benefiting
the party
thereby has received
only thing
she
concludes that
did
she
money, property, or
advantages
other
signed
could in order to see the child—“she
good
equity
which
conscience he
form.”
retain,
not be permitted
should
said
persuaded by
We are not
this conclusion.
the court in Huebert v. Marshall
The
Pulley
record shows that Miss
is a
App
132 Ill
2d
child be surrendered for prescribe fit to be used under the form knew before she the surrender that have here. The circumstances such as we family supportive would be of her and prepared fully form which CCS help rearing her in the child. complies requirements with the of Tenn. Code Ann. 36-1-114. There is no merit agreed §
While the record shows that CCS to this issue. pay if the child was the medical costs adoption, surrendered for there is no show- Pulley that the “sur- next contends indigent that it that Miss rendered void render of her son is necessary rely on CCS rights equal protec- denial her of her financial assistance. tion of the laws and the assistance coun- sel.” nothing We in this record to show find that Miss under duress or that pro Ann. 36-1-117 § Tenn.Code exerted there was undue influence pertinent part vides in natural sign upon her which forced her to the sur- parent circum- render. There are no “force of shall have the absolute to revoke present in which could stances” this case *5 (30) thirty days the surrender within coercing upon be deemed to have a effect execution of the from the date of the that Pulley. Miss There is little doubt (90) ninety days from surrender or within always circumstances” there is “duress of of the surren- the date of the execution parent to consent present causing a natural executed to a der if the surrender was place adoption that to surrender and/or child-placing licensed person other than a However, parent’s was said in child. as human department of agency or the state N.M. 307 P.2d Reidy,
Barwin v. 62 services.... (1957), parent would “What natural statutory Pulley that this Miss contends adoption his or her ever consent to the between the class provision discriminates child in the absence of duress of circum- child- children to parents who surrender stances.” agencies those who surrender placing This issue is without merit. adoptive parents prospective directly to the Pulley’s issue is whether Miss second permitted a revocation since the former are comply failure to with the statutes days while the latter are period thirty “[t]he chil- governing surrender of of Tennessee to re- ninety days within which permitted purported adoption dren for renders the insistence It is her voke the surrender. void.” surrender of the minor child equal classification violates this Amend- of the Fourteenth protection clause statutes are der States Constitution. ment of the United ogation law and must be of the common an attor- Pulley’s mother contacted Miss Huss, strictly complied with. In re Van Alabama, Birmingham, who advised ney in (1960). It is 207 Tenn. 338 S.W.2d something Pulley Miss do her to have Pulley’s contention that Tenn.Code Miss quick “as as revoking the surrender about complied with in Ann. 36-1-114 was not § given not later possible.” This advice prescribed form was not used. Further, March, Pulley Miss than by at the time of the advised the Court form set forth The surrender surrender that she had only execution of the applies Ann. 36-1-114 Tenn.Code § days to revoke sur- by thirty within which the “surrender of child when [is] [the] fully under- pro render. She testified parent(s) directly natural to the her. had told stood what court spective adoptive parents.” unless, unnecessary deem it We to address the ate shall not be set aside consider- record, constitutionality involving error of this statute. Miss Pul- whole right probably substantial than not ley standing more challenge lacks the constitu- judgment or affected the would result tionality of Tenn.Code Ann. 36-1-117. § prejudice judicial process.” Tenn.R. the surrender documents on 36(b). App.P. ninety-day 1984. Even if the provision applicable Pulley, Miss is merit. This issue without nothing shows that she did record re- five, By Pulley issue contends voke the until December appel- in denying Trial Court erred “[t]he 1984, almost eleven months after the exe- opportunity give rehabilitating lant the cution the surrender form. testimony.” showing Pulley There is no that Miss during shows that cross-ex- record adversely been affected Tenn. Code re- questioned amination Miss Ann. 36-1-117. Under the circumstanc- § garding appellees actions taken es, find we no merit to this issue. executing into or to coerce her Pulley’s place issue fourth her under duress. She testified “[t]he such exami- denying Trial Court erred acts did occur. On redirect nation, petition Pulley’s counsel adoption proceed- to intervene asked questions regarding understanding of ings pursuant to 24 of Rule the Tennessee questions asked her. Miss an- Civil Rules of Procedure.” just somebody swered: “I mean about Tennessee Rule of Civil Procedure forced me to do it.” provides 24.01 as follows: nobody THE proof COURT: The shows Upon timely application anyone shall lady into doing anything, coerced permitted to intervene in an action: Kirk, really proper and this is not (1) when a statute confers an uncondi- trying get redirect. You are her to intervene; tional when already testify again as to what she has *6 applicant relating claims interest to. testified property the or transaction which is the please, apolo- MS. KIRK: Your I Honor subject of the action and he is so situated appear I gize just if I to be tedious. disposition that the of may the action as simply trying to Pul- rehabilitate Miss practical impair impede matter or impeach- ley’s testimony following the interest, ability protect unless the by attorneys. ment the applicant’s adequately is repre- interest very THE She has been honest COURT: by parties; existing by stip- sented exactly with the Court. She told me parties. of all ulation the what did and two or they told us reading A of motion the to intervene and testimony in three times she wasn’t petition the revoke surrender shows by anyone. it thought coerced She they upon are allega- based the same change best at that time. has had a i.e., tions, the surrender should be of now and she knew that had heart because revoked of “undue influence.” change thirty days mind from evidentiary was afforded a full timé she the surrender she is petition on her hearing to revoke the sur- bright very young educated woman. nothing There render. is she could have purpose MS. KIRK: For the of under shown her motion to intervene that I am not to her at record hesitant ask petition not in the she did show revoke question or don’t least another two. I the surrender. annoy want to but are a Court there couple for I would of areas the record disallowing If Trial in Court erred like to address. intervene, the motion to it harmless error, judgment which Miss other Pulley’s final from counsel then asked her “[a] questions regarding appropri- relief is available and “duress.” otherwise A reading full of this record does dence. The action should be dismissed if Pulley's contention that the on the facts found applicable and the law permit Trial Court did not counsel to reha- plaintiff has shown no to relief. testimony. bilitate This issue is with- City Columbia v. C.F. Construction W. out merit. Co., (Tenn.1977). 557 S.W.2d Pulley’s sixth issue is that “[t]he appellees may While for counsel have granting appellees’ Trial Court erred in denominated their motion as a motion for a motion for directed verdict at the close verdict, directed it was treated as Rule proof presented by Pulley.” Ms. 41.02(2) motion the Trial Court. The correctly Trial Court determined that Miss This non-jury was a trial. In non- Pulley carry failed to her burden of trials, jury proper motion a motion to is proving that the surrender she executed on 41.02(2). pursuant dismiss to Tenn.R.Civ.P. 13, 1984, should be revoked. The non-jury Motions to dismiss at cases are record act on the shows there was no not to be confused with a motion for direct- part any appellees one of the which ed verdict which is authorized Tenn.R. would amount to undue influence. Civ.P. 50. made record shows that Miss Motions for a directed verdict neither are voluntarily place a conscious decision necessary is proper nor a ease which being unduly child for without being jury. tried without a Motions for by anyone. influenced It not until non-jury dismissal cases under Rule sometime later that decided that she 41.02(2), Tennessee Rules of Civil Proce- wanted to revoke the surrender. dure, and motions for directed verdicts jury cases under Rule Tennessee This issue is without merit. Procedure, Rules of are Civil somewhat seventh, last, Pulley’s issue similar, but, there is a fundamental dif- denying Trial Court erred “[t]he motions, that, ference between the two pur- appellant’s request permission case, jury judge in the is not the trier interlocutory appeal.” sue an non-jury facts in the while case he is Appellate Tennessee Rule of Procedure jury the trier of the facts. In the case he provides interlocutory by per- for an appeal must consider the evidence most favor- If trial mission from the trial court. ably plaintiff, for the allow all reasonable request permission court denies a plaintiff’s inferences in favor and dis- Rule appeal pursuant to Rule then and, evidence, regard counteracting all extraordi- Tenn.R.App.P., provides for an considered, so if there is material *7 appli- nary by permission original on appeal plain- to a verdict for evidence application cation in this No Court. tiff, deny he must the motion. But in pursuant made to Rule 10. case, non-jury when a motion the to dis- plaintiff’s is made at the close of miss appel opinion the We are of 41.02(2), judge case under Rule the trial circumstances, lant, highly unusual absent impartially weigh the must and evaluate trial predicate upon the cannot error though evidence in the same manner as request permission court’s denial of her for making findings he of the were fact at pursuant Rule without tak appeal to conclusion of all of the evidence for both ex ing step applying the next for an and case, parties, determine the facts of the traordinary appeal pursuant to Rule 10. facts, apply the law to those and if the here fails to any In event the record plaintiff’s case has not been made out deny- disclose that the Trial Court erred in evidence, preponderance judg- of the Pulley failed ing the Rule 9 motion. Miss may against plain- ment be rendered the to relief show was entitled merits, or, judge, on the in tiff the trial pursuant to Rule 9. discretion, may decline to render judgment until This issue is merit. the close of all the evi- without of in hours after the birth of her on De- judgment It therefore results that the 13, 1983, representative of the Trial is as- cember the Court affirmed with costs agency appellant hospital the in the against appellant the visited sessed signature papers plac- her on the cause remanded to the Trial Court and obtained and agency pur- for the any the of costs the infant with the collection further facility. pose agency of observation at an necessary proceedings. of the forms indicated that this was not One CANTRELL, J., concurs. specifical- a final surrender of the child and stated, ly part: in KOCH, J., separate concurs in concur- ring opinion. my understanding It also time prior signing relinquishment, may I KOCH, Judge, concurring. request and be granted my child’s re- majority’s I concur in the opinion this lease to me. respects. in all case I do so because of the appellant This document also informed the hearing surrender the conducted trial required that she would be to reimburse judge on 1984. The record agency expenses for her medical should me, concerning proceeding convinces ultimately she decide not go through majority, appellant as it did the that the with the surrender of her child. fully informed her rights and the thereafter, having Soon reconciled with consequences of her decision and there- parents, appellant requested timely did take steps after not to rescind permitted she to see her child for the her decision to her child for surrender agency permit first time. The refused to However, conduct promised her to do but her that so she Counseling Christian should not Services could see her son after had executed go without comment. Had been for it not formal surrender documents after intervening court, I action the trial period of time within which she could would not agen- hesitate to find that this elapsed. rescind the The cy’s was improper conduct it and that fatal- requests appellant made other to see her ly validity tainted the of the pro- child each time was met with the same cess this case. response. many inAs type, cases of this we are Counseling for the Christian The reasons dealing with a young here woman one appellant to permit refusal to Services emotionally periods the most vulnerable if unstated. her child are evident even see appellant life. in this case was an agency, being primaily interested strict, teenager religious unmarried from a protes- “Evangelical placing the child family home,” who feared if her preg- ostracism the risk not desire to run tant did nancy Thus, were discovered. changing decided her mind and of the carry her child in give deciding keep having secret and to her child after up adoption immediately child its the first after it in her arms for chance hold carry Thus, only To I can conclude that the plan, birth. out this time. ahead Counseling own interests agency placing referred to Christian Servic- its only mother but also of approximately of the prior es one week of those *8 agency child’s birth. She told the child.1 pay expenses all if would of her medical the best of the child is of While interests agree she would her child. importance paramount proceedings such accepted this offer she one, because had no sight as never of we should lose means to herself. appellant parents the fact that the natural also have agreed since had no to support means rights certain fundamental constitutional parents. Thus, herself other than her with- that must be observed and honored. San anything require 1. There no evidence this record show had done would involuntarily. parent terminating parental rights appellant be or an unfit her 674 Kramer, 745, 753,
tosky v.
455
102
U.S.
1388, 1394-95,
(1982);
S.Ct.
appellant judge was informed the trial change regain
that she could her mind and
custody if she decided to do so thirty days. candidly appellant
within she was
admits that told this. There is no incapa-
evidence in the record that she was signifi-
ble or unable to understand the Thus,
cance of what she was told. following
inaction of the for- execution must,
mal surrender documents the final found to
analysis, be an irrevocable deci-
sion to surrender son.3 Department agency prior 2. See Tennessee formal surrender of Human Services ment of 172-73 (Tenn.App. Riley, v. 689 S.W.2d can be so that it will taint child coercive J., 1984) (Nearn, dissenting). notwithstanding proceeding the inter- *9 vention of the trial court. not reach case question 3. We need in this concerning place- whether a child conduct of