text:
    W. Michael BYRD v. Mary Etta BYRD.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Jan. 4, 2005 Session.
    July 6, 2005.
    Permission to Appeal Denied by Supreme Court Feb. 21, 2006.
    Rehearing Denied March 27, 2006.

      Jeffrey L. Levy, Nashville, Tennessee, for the appellant, W. Michael Byrd.

      Mary Etta Byrd, Washington, D.C., Pro Se.
    FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and WILLIAM B. CAIN, J., joined.
   OPINION

Husband appeals the denial of his third petition to terminate or reduce his in futu-ro alimony obligations. He contends he is unable to work due to a medical disability, that Wife has experienced an increase in her earning capacity, and that she no longer has a need for alimony. He also contends that his current alimony obligation exceeds 50% of his income in violation of 15 U.S.C. § 1678. Finding the evidence preponderates in favor of a reduction of alimony, we modify the judgment and remand with instructions to reduce Husband’s alimony in futuro obligation. We affirm the trial court in all other respects.

W. Michael Byrd, M.D., and Mary Etta Byrd (Husband and Wife, respectively) were married for nineteen years. Wife was granted a divorce in August of 1990 on the grounds of cruel and inhuman treatment. Following a five-year long, bitterly contested divorce proceeding Wife was awarded $1,000 per month as alimony in futuro, and $1,000 per month in child support payments for their then 15-year old son.

The parties’ affinity for protracted litigation did not end with their divorce. The issues on appeal arise from Husband’s third petition to terminate or reduce alimony. A review of some of the prior proceedings will aid in understanding the facts presently at issue.

Husband’s first petition to terminate or reduce alimony was filed 'pendente lite, in November of 1991, four years prior to the entry of the final order in the divorce proceedings. The stated basis for Husband’s first petition was his desire to pursue a master’s degree at Harvard University, which he claimed would increase his earning capacity. He contended he would be required to cease his medical practice while attending graduate school. The trial court granted the petition and reduced alimony and child support to $500 each per month until September 1992. That order, however, did not conclude the first petition to modify alimony. In April 1993, the trial court “reviewed” the status of the first petition for modification and restored the original $1,000 per month alimony obligation. This was based on findings that Husband had the ability to pay $1,000 per month and that Wife needed the support.

Husband was then endowed with both a medical degree and a master’s degree and thus his earning capacity had been restored if not enhanced. Significantly, the trial court made a finding at that time that Husband was voluntarily underemployed, in an attempt to avoid or minimize his duty to pay alimony and child support, and that Husband’s petition to reduce the alimony and child support was not in good faith.

Husband filed a second petition to terminate or reduce alimony in 1996. He contended that he had suffered severe health problems since the original alimony award and that his medical condition prevented him from obtaining gainful employment. The trial court denied the second petition based upon a finding that Husband failed to carry his burden of proof. Husband appealed. This court affirmed, finding Husband had the ability to pay $1,000 per month and that Wife still had a need for such support.

The petition now at issue, Husband’s third, was filed in 2001. He contends that his medical condition has deteriorated since the 1996 petition. He provided proof that he had undergone open heart surgery in 2000. He also testified that the heart surgery had contributed to the further deterioration of his health and greatly impaired his earning capacity. Husband contended that he was incapable of earning income, except for infrequent speaking engagements. He also testified that he had established his weakened medical state to the satisfaction of the Social Security Administration. He receives a disability benefit of $15,600 per annum. Husband testified that his disability benefits are his only income. Husband also presented expert medical proof. J. Jacques Carter, M.D. testified on his behalf via deposition.

Husband also presented evidence that Wife had a job, working as an executive assistant to the president of the Village Foundation in Alexandria, Virginia, earning $65,000 in 2001. Wife, however, countered explaining that her $65,000 a year employment terminated and that she was unable to find similar compensation. She further testified she could not find employment for months. With the exception of her employment with Village Foundation, for which she was handsomely compensated for a period of time, Wife’s annual compensation since her divorce has ranged between $22,000, her compensation at the time of the previous petition to modify, and $28,000, her present compensation at the fifing of this petition.

Following an evidentiary hearing, the trial court denied the petition based upon findings that Husband’s health had improved since the open heart surgery and that his health problems were manageable. The trial court further found that Husband was voluntarily unemployed and that he had an earning capacity sufficient to justify an alimony obligation of $1,000 per month. In the order from which this appeal lies, the trial court stated:

The petition for termination of alimony or reduction thereof is most respectfully denied and the petition is hereby dismissed.
The Court finds although Dr. Byrd has had health problems they are manageable and have improved since his surgery. He can and must produce enough income to meet his alimony obligation. He continues to hold down his income in an effort to avoid this Court’s order. He now relies on his present wife’s six figure income to meet the expenses he desires to pay.
The Court further finds the former wife, Mary Etta Byrd has a need for the alimony at the rate of one thousand dollars ($1,000.00) per month as of the trial of this cause and she must further supplement the same by finding employment to pay her total expenses.
Further, this Court has reviewed all the evidence presented at the trial and has reviewed Dr. Byrd’s present medical history through the deposition of Dr. J. Jacques Carter and finds his health has improved.
The Court concludes Dr. Byrd continues to set upon a course to defeat the alimony order of this Court. The Court finds he has the ability to pay said amount and his former wife has a continuing need for this assistance.

STANDARD OF REVIEW

The standard of review of a trial court’s findings of fact is de novo and we presume that the findings of fact are correct unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 18(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001). For the evidence to preponderate against a trial court’s finding of fact, it must support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App.2000); The Realty Shop, Inc. v. RR. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct.App.1999). Where the trial court does not make findings of fact, there is no presumption of correctness and we “must conduct our own independent review of the record to determine where the preponderance of the evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999). We also give great weight to a trial court’s determinations of credibility of witnesses. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn.1997); B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App.2000). Issues of law are reviewed de novo with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).

Alimony

Modifications of alimony may be granted only upon a showing of substantial and material change in circumstances since entry of the original support order. Tenn. Code Ann. § 36-5-101(a)(l). A change is considered substantial when it significantly affects either the obligor’s ability to pay or obligee’s need for support. Bogan v. Bogan, 60 S.W.3d 721, 728 (Tenn.2001); Watters v. Watters, 22 S.W.3d 817, 821 (Tenn.Ct.App.1999). A change is considered material if the change occurred since the original support decree’s entry. Even a substantial and material change of circumstances does not automatically result in a modification. Bogan, 60 S.W.3d at 730. Modification must also be justified under the factors relevant to an initial award of alimony, particularly the receiving spouse’s need and the paying spouse’s ability to pay. Id. Where there has been such a change in circumstances, the ability of the obligor spouse to provide support must be given equal consideration to the obligee spouse’s need. Id. Generally, the party seeking the modification bears the burden of proving the modification is warranted. Freeman v. Freeman, 147 S.W.3d 234, 239 (Tenn.Ct.App.2003).

It is clear that willful and voluntary unemployment or underemployment will not provide a basis for modifying spousal support. Watters, 22 S.W.3d at 823. When called upon to determine whether a person is willfully and voluntarily unemployed or underemployed, the courts must consider the person’s past and present employment, as well as the reasons for the unemployment or the taking of a lower paying job. Id. If the decision for unemployment or for taking a lower paying job is reasonable, the court will not find the person to be willfully and voluntarily underemployed. Willis v. Willis, 62 S.W.3d 735, 738 (Tenn.Ct.App.2001). Courts have confronted situations in which a divorced spouse seeks to avoid an alimony obligation by quitting work or by taking a lower paying job. Walker v. Walker, M2002-02786-COA-R3-CV, 2005 WL 229847 (Tenn.Ct.App. Jan.28, 2005). To remedy this strategy, a spouse’s support obligation should not be measured by his actual income, but rather by his earning capacity. Tenn.Code Ann. § 36-5-101(d)(1)(E)(i) (2005).

The trial court concluded that Husband was voluntarily unemployed because he does not want to pay alimony. We agree with this conclusion. However, we are unable to agree that Husband’s alimony obligation should not be reduced. While Husband’s motives and credibility are suspect, as the trial court noted, his petition to reduce alimony is supported by uncontroverted medical proof provided in the deposition of Dr. Carter that his earning capacity is diminished due to a deterioration of his medical condition.

The most significant facts provided in Dr. Carter’s testimony are the following: An echocardiography report dated June 20, 2000 was significantly worse, showing deterioration of the left-hand side of the heart — “it’s not pumping well”; the right-hand side of the heart is still functionally depressed, although not as bad as it had been; husband has a major embolus (blood clot) to his lungs that led to a significant right-heart failure; he is in a frequent weakened condition; he sleeps a lot, has little endurance and suffers from several illnesses; he will not be able to do any work that requires physical endurance; he must rest several times during the day, and without this rest, his “two or three hours awake at a time” would not be very productive; he cannot drive; he cannot walk more than one-quarter block without sitting and resting; he can only be without oxygen for a limited amount of time.

The significance of the foregoing findings by Dr. Carter are ameliorated by the following additional findings by Dr. Carter: with pulmonary rehabilitation, his breathing may improve slightly; he can lecture but not on a full-time or day-to-day basis; and he cannot practice as an OB-GYN on a full-time basis. We read these findings by Dr. Carter to mean that Husband is impaired, he cannot work on a full-time basis, but he can work. As a medical doctor, Husband’s services are valuable, even in an impaired physical condition. Thus, Husband has an earning capacity; it is merely less than it would be if he were able to work full time, whether in an OB-GYN practice or as a lecturer. The evidence in the record shows that Husband has authored two books and has been compensated for such efforts with royalties. He has also been retained for speaking engagements for which he has been compensated. While Husband may no longer be able to practice medicine in the same manner and be compensated as before, he is economically empowered by a medical degree, thus he has an earning capacity.

Willful and voluntary unemployment or underemployment will not provide a basis for modifying spousal support. Watters, 22 S.W.3d at 823. Rather than using his medical education to earn income, Husband has voluntarily chosen to rely on Social Security disability payments and support provided by his current wife. Husband’s voluntary unemployment does not exempt him from his obligations; to the contrary, his obligation should be measured not by his actual income but by his earning capacity. See TenmCode Ann. § 36-5-101(d)(l)(E)(i). We therefore find that the evidence does not preponderate against the trial court’s finding that Husband is voluntarily unemployed. Therefore, Husband’s alimony obligation should not be terminated but should be modified based on his ability to pay and Wife’s need.

The second component in an alimony analysis is need, that being whether and to what extent the recipient of alimony needs such support. Bogan, 60 S.W.3d at 730. Husband contends that Wife’s earning capacity is now $65,000, instead of $22,000, which was her rate of compensation as of the previous petition to modify alimony. Wife, however, has explained that her $65,000 a year employment was short lived and she has been unable to find similar compensation. In fact, she has not found employment providing a salary equal to one-half of that amount. With the exception of her work for the Village Foundation, Wife’s annual compensation has not exceeded $28,000 per annum. Evidence that Wife was temporarily employed at a higher income is a factor to be considered along with all other relevant factors. However, Wife’s temporary employment at a higher pay scale should not be the only factor. Her increased income was short lived and she has been unable to find other employment at half the compensation. Based on these factors, we find that Wife’s present need is not as great as before; however, she still has a need for support.

Husband’s earning capacity has been reduced by the deterioration of his physical condition and Wife’s need is not as great as before. Therefore, Husband’s alimony in futuro obligation is reduced to $350 per month, retroactive to the filing of the petition at issue.

Attorney’s Fees

Lastly, Husband appeals the trial court’s award of $3,500 attorney’s fees to Wife. The trial court is given wide discretion in awarding attorney’s fees and expenses. Threadgill v. Threadgill, 740 S.W.2d 419, 426 (Tenn.App.1987). This court will not interfere with the trial court’s award unless there is an abuse of discretion. Id. While Husband’s petition to reduce alimony is partly successful, it does not preclude him from paying attorney’s fees. Husband brought this action and Wife employed counsel at the trial level to defend the action. We find that the trial court did not abuse its discretion, and thus affirm the assessment of Wife’s attorney’s fees against Husband.

Conclusion

The judgment of the trial court is therefore reversed and this matter is remanded with instructions to set Husband’s alimony obligation at $350 per month, with such modification retroactive to the filing of the petition at issue. We affirm the award of attorneys fees to Appellee. Appellee was not represented by counsel on appeal; therefore, she did not incur such fees on appeal and there are none to award. Costs of appeal are assessed against the appellant, Dr. W. Michael Byrd.

      . The divorce was granted in 1990 but the divorce proceedings continued until the division of marital property and final order was entered in September of 1996.

      . The child is now emancipated and child support is not at issue.

      . Both Husband and Wife are frequent filers of petitions for contempt and to modify.

      .- He sought a temporary termination or reduction in alimony and child support.

      . The September 1992 date coincided with Husband’s expected graduation from graduate school.

      . Wife was also awarded reasonable attorney’s fees in the amount of $3,500.00.

      . Wife collected unemployment compensation for several months while looking for work.

      . We are mindful that Husband was approved for Social Security disability status in 1997 and that he has received disability payments since that date. In 2002, Husband received $16,044.00 in Social Security payments after medical insurance deductions. This however does not preclude this court from finding that he has an earning capacity and is voluntarily unemployed.


source: Caselaw Access Project

author: D. MICHAEL SWINEY, J.,

license: Public Domain

text:
    Rabia KAFOZI, et al. v. WINDWARD COVE, LLC.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    July 11, 2005 Session.
    Aug. 26, 2005.
    Permission to Appeal Denied by Supreme Court Jan. 30, 2006.

      John R. Anderson and Robert S. Grot, Chattanooga, Tennessee, for the Appellant, Windward Cove, LLC.
    John E. Eberly, Chattanooga, Tennessee, for the Appellees, Rabia Kafozi and Audry C. Kafozi.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court, in

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

Rabia Kafozi and Audry C. Kafozi (“Plaintiffs”) signed an installment sales contract to purchase real property from Windward Cove, LLC (“Defendant”). Plaintiffs made some, but not all of the payments as scheduled. Defendant declared a default and then sold the real property to another party. Plaintiffs sued Defendant seeking, among other things, either specific performance or the return of payments made by them. The case was tried and the Trial Court held, inter alia, that the installment sales contract did not set a due date and, therefore, Plaintiffs never were in default. Defendant appeals claiming the Trial Court erred in interpreting the installment sales contract. We reverse, and dismiss Plaintiffs’ claims.

Background

Plaintiffs and Defendant signed an Installment Sales Contract (“the Contract”) in January of 2000. Under the Contract, Plaintiffs were to purchase Lot 37 in the Windward Pointe Subdivision located in Hamilton County, Tennessee (“Lot 37”) from Defendant. In pertinent part, the Contract provides:

2. Purchase Price. [Plaintiffs] agree[ ] to pay therefor the sum of One Hundred Thousand Dollars ($100,000.00) to be payable as follows:
(a) Twenty-five Thousand Dollars ($25,000) on the signing of this agreement, which is non-refundable in any event, the receipt of which is hereby acknowledged; and
(b) Two Thousand Dollars ($2,000.00) on March 10, 2000, and on the tenth (10th) day in each and every month thereafter for twelve (12) months until February 10, 2001, when the balance of the purchase price shall become due and payable, regardless of loss, destruction or damage to any of the improvements thereon, if any; provided, however, [Plaintiffs] can extend for an additional six (6) months upon written notice to [Defendant]. For every month beyond the eighteen (18) months above-stated, [Plaintiffs] will pay a penalty of five percent (5%) figured on an annual basis of the unpaid balance till paid.
4. Default by [Plaintiffs]. In the event that the [Plaintiffs] shall make default in any way of the covenants herein contained, or shall fail to make the payments aforesaid at the times specified, the times of payment being declared to be the essence of this agreement, if [Plaintiffs] default[] and such defaults are not cured within ten (10) days, then the [Defendant] may declare this agreement null and void. Upon default, [Plaintiffs] forfeitf] all payments and any and all rights to the Property.
7. Construction. No later than twelve (12) months from the final payment date, [Plaintiffs] agree[ ] to enter into a construction agreement with CDM & Associates, Inc., or its designee, for the construction of a residence on the Property, upon reasonable terms and conditions, including, but not limited to providing that construction must commence within twelve (12) months of the date this contract is closed and title passes to [Plaintiffs]. Failure to do so by [Plaintiffs] will be a breach of this Agreement.

Plaintiffs made the $25,000 initial payment and the first twelve months’ worth of payments, although not exactly as scheduled. Plaintiffs availed themselves of the additional six months extension to pay the balance of the purchase price as provided by the Contract. Defendant then granted Plaintiffs an additional six month extension to pay the balance of the purchase price. Plaintiffs still did not pay the balance of the purchase price at the end of the second six month extension. In February of 2002, Defendant sent Plaintiffs a certified letter stating that “this letter constitutes notice of payment default and a demand for payment in the amount of $46,455.85. If payment is not received within 10 days as provided in the Installment Sales Agreement, [Defendant] will exercise its rights to terminate the Agreement.” Plaintiff Audry Kafozi signed for receipt of this letter on February 15, 2002.

In March of 2002, Plaintiffs sued Defendant requesting the Trial Court to, among other things, issue an order either to require Defendant to convey to Plaintiffs Lot 37 upon receipt of the balance of the purchase price, or to require Defendant to return to Plaintiffs the money paid by them under the contract with interest. In April of 2003, Plaintiffs moved the Trial Court for permission to add Pamela M. Mabee as a party defendant claiming that Ms. Mabee was related to Danny Mabee who was, or had been, an officer of Defendant and that the property was sold to Ms. Mabee in a “ ‘sweetheart’ deal to keep Plaintiffs from acquiring the premises.” The Trial Court entered an order in June of 2003 allowing Plaintiffs to amend them complaint to add Pamela M. Mabee as a party defendant.

The case was tried in June of 2004. At trial, Richard J. Ebersole, chief manager and owner of two-thirds of Defendant Windward Cove, LLC testified. Mr. Ebersole testified that Dale Mabee, who at one time was a one-third owner of Defendant Windward Cove, LLC, signed the Contract for Defendant. Mr. Ebersole testified that during the first twelve months of the Contract, Plaintiffs made irregular payments, but they eventually did pay all of the $24,000 due for those twelve months, and that he granted Plaintiffs two extensions to pay the balance.

Mr. Ebersole testified he sold Lot 37 to Pamela Mabee on February 27, 2002, some twelve days after Plaintiff Audry Kafozi had signed for receipt of the default letter, and therefore the sale to Pamela Mabee was after the ten day default period had passed. He testified that he received a phone call from a Mr. Bourne at Cornerstone Bank on February 28, the day after he sold the property, and that he told Mr. Bourne that it was too late for the Plaintiffs to pay because the deadline had passed. Mr. Ebersole testified: “I was unaware of any activity on a loan prior to the call I received from Mr. Bourne.... ” Mr. Ebersole further testified he does not believe he had any communications from anyone regarding Lot 37 during the ten day default period and stated: “I just — I can’t recall whether anybody called me between — I don’t have any recollection of having been contacted between February the 13th and February the 25th or the 27th. The first communication I can recall was the 28th of February.” However, Mr. Ebersole later admitted that he went to Mr. Kafozi’s office on February 15 or 16 and spoke with Mr. Kafozi regarding the payment and that he also later spoke with Mr. Kafozi on the phone.

Mr. Ebersole testified that “Mike Bourne contacted me on the 28th because it was the day after the sale.” Mr. Eber-sole further stated that even when he spoke with Mr. Bourne of Cornerstone Bank, “I was never given any evidence of any kind of any loan commitment from any lender.” Mr. Ebersole stated:

I would benefit far more from the [Plaintiffs] maintaining that lot, purchasing that lot and letting them build a house than I would from selling the lot to anybody else. It was only because they could not come up with the money, and their banker gave me no comfort, evidence, of any kind' that he was in a position to make a commitment when he called me after the deadline passed.

Plaintiff Rabia Kafozi testified that after he and his wife received the default letter, Mr. Ebersole came to his office and told him their time was up. Mr. Kafozi testified that he replied:

No, my time is not up. Our agreement clearly says that if I don’t pay because of religious reasons I couldn’t pay interest unless I have to. So I told him, the 18-month period that we did not pay interest, I didn’t have to pay interest, but now I do, so I can pay you the 5 percent, and I clearly told him not to write it in the Contract, not to write interest, penalty, so I can pay the 5 percent penalty, and then I said, By the way, I mean I needed to — I had the payment of $10,000 in the office to pay to him. And then he said, I’m sorry, I cannot take your payment, I need the whole sum right now.

Mr. Kafozi testified that at that time, Mr. Ebersole suggested Plaintiffs get a loan. Mr. Kafozi testified that on that same day, after speaking with Mr. Eber-sole, Mr. Kafozi called Cornerstone Bank to apply for a loan. Mr. Kafozi testified he delivered his financial statements to Cornerstone Bank the next morning, which was three days after Plaintiffs received the default letter. Mr. Kafozi testified that he then received a call from Cornerstone Bank requesting the address of the property, and so he called Mr. Ebersole immediately and obtained this information. Mr. Kafozi testified that Mr. Bourne from Cornerstone Bank then called him the next day asking for the lot number. Mr. Kafozi stated that this phone call occurred four days after Plaintiffs received the default letter. Mr. Kafozi testified that at this time, he gave Mr. Ebersole’s phone number to Mr. Bourne. Mr. Kafozi testified that Mr. Bourne called him again later that same day, four days after Plaintiffs received the default letter, and told him to call Mr. Ebersole. Mr. Kafozi testified that he and his wife attempted to reach Mr. Ebersole and finally were able to do so later that evening, at which time Mr. Ebersole told them that the property already was sold. Mr. Kafozi testified that everything happened within the week, “we didn’t get the weekend.” Mr. Kafozi also testified that he was able to get the loan and would have been able to complete the purchase. However, no one from Cornerstone Bank testified regarding whether Plaintiffs ever were approved for a loan and Plaintiffs admitted that they themselves did not have the money to pay the balance due.

The Trial Court entered an order on June 17, 2004, granting judgment in favor of . Plaintiffs and awarding Plaintiffs $54,500 plus interest at 10% per annum from February 27, 2002. The Trial Court based its decision solely on its interpreting the Contract in a manner so that the Contract did not provide a due date for the payment by Plaintiffs of the balance of the purchase price. The June 17 order also dismissed Plaintiffs’ claim against Pamela Mabee.

Discussion

Although not stated exactly as such, Defendant raises one issue on appeal: whether the Trial Court erred in interpreting the Contract not to provide a due date for the payment by Plaintiffs of the balance of the purchase price and, then holding as a result of that interpretation that Plaintiffs did not breach the Contract by not paying the balance of the purchase price. Plaintiffs’ sole argument in response is that the Trial Court correctly interpreted the Contract.

Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). A trial court’s conclusions of law are subject to a de novo review with no presumption of correctness. Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

In resolving a dispute concerning contract interpretation, our task is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contract language. Planters Gin Co. v. Fed. Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn.2002)(citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999)). A determination of the intention of the parties “is generally treated as a question of law because the words of the contract are definite and undisputed, and in deciding the legal effect of the words, there is no genuine factual issue left for a jury to decide.” Planters Gin Co., 78 S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on Contracts, § 24.30 (rev. ed.1998); Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn.2001)). The central tenet of contract construction is that the intent of the contracting parties at the time of executing the agreement should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’ intent is presumed to be that specifically expressed in the body of the contract. “In other words, the object to be attained in construing a contract is to ascertain the meaning and intent of the parties as expressed in the language used and to give effect to such intent if it does not conflict with any rule of law, good morals, or public policy.” Id. (quoting 17 Am.Jur.2d, Contracts, § 245).

This Court’s initial task in construing the Contract at issue is to determine whether the language of the contract is ambiguous. Planters Gin Co., 78 S.W.3d at 890. If the language is clear and unambiguous, the literal meaning of the language controls the outcome of the dispute. Id. A contract is ambiguous only when its meaning is uncertain and may fairly be understood in more than one way. Id. (emphasis added). If the contract is found to be ambiguous, we then apply established rules of construction to determine the intent of the parties. Id. Only if ambiguity remains after applying the pertinent rules of construction does the legal meaning of the contract become a question of fact. Id.

In this case, the Contract provides that Plaintiffs would make a down payment, then make monthly payments for a twelve month period:

until February 10, 2001, when the balance of the purchase price shall become due and payable, regardless of loss, destruction or damage to any of the improvements thereon, if any; provided, however, [Plaintiffs] can extend for an additional six (6) months upon written notice to [Defendant]. For every month beyond the eighteen (18) months above-stated, [Plaintiffs] will pay a penalty of five percent (5%) figured on an annual basis of the unpaid balance till paid.

Our initial task is to determine if this language in the Contract is ambiguous. Planters Gin Co., 78 S.W.3d at 890. The Contract clearly provides that Plaintiffs were to make payments “until February 10, 2001, when the balance of the purchase price shall become due and payable. ...” (emphasis added). The Contract further provides “[Plaintiffs] can extend for an additional six (6) months upon written notice to [Defendant].”

The Contract clearly provided for a date, February 10, 2001, when the balance of the purchase price was due. The Contract then provided for a six month extension of this due date triggered by Plaintiffs providing written notice of the extension. Even given the second six month extension granted by Defendant beyond what Plaintiffs were entitled to under the Contract, the Contract still provided for a date certain when the balance of the purchase price would be due. Taking the two six month extensions into consideration, the due date when the balance of the purchase price was due and payable was February 10, 2002. The Contract is clear and unambiguous.

The provision providing for a 5% penalty for every month beyond the original 18 months does not eliminate the specific due date set in the Contract. Rather, this provision acts only as a penalty clause to provide Defendant with an additional remedy if Plaintiffs did not pay by the extended due date eighteen months out. The penalty clause simply provided for an additional amount to be owed to Defendant if Plaintiffs did not pay by the extended due date. It clearly was the intent of the parties to provide both a set due date and for an additional cost to Plaintiffs if Plaintiffs did not pay the balance by the extended eighteen month due date set in the Contract. This penalty provision in no way removed Defendant’s right to declare a default if Plaintiffs failed to pay the balance of the purchase price on the due date. We find no ambiguity in these provisions of the Contract.

The Contract also provides:

In the event that the [Plaintiffs] shall make default in any way of the covenants herein contained, or shall fail to make the payments aforesaid at the times specified, the times of payment being declared to be the essence of this agreement, if [Plaintiffs] default[] and such defaults are not cured within ten (10) days, then the [Defendant] may declare this agreement null and void.

Plaintiffs failed to make the final payment of the balance of the purchase price by February 10, 2002. Defendant clearly had the right to declare a default, and Defendant chose to exercise this right and sent Plaintiffs the default letter. Under the Contract, Plaintiffs had ten days to cure the default. Plaintiffs did not tender payment within those ten days and failed to cure the default within the ten days as allowed under the Contract.

Mr. Kafozi testified that he and his wife were told before the ten day cure period had elapsed that the property already had been sold to another party. Unfortunately however, the only evidence in the record regarding when the property actually was sold is Mr. Ebersole’s testimony that he sold Lot 37 to Ms. Mabee on February 27, twelve days after Plaintiff Audry Kafozi signed for the default letter. In addition, no one from Cornerstone Bank testified regarding whether Plaintiffs ever were approved for a loan, and Plaintiffs admitted they did not have the money themselves to pay the balance due. Perhaps even more importantly, Plaintiffs did not raise this argument anywhere in their brief in this appeal. Plaintiffs, instead, raised only one argument with that argument being that the Trial Court’s interpretation of the Contract that there was no set due date for Plaintiffs to pay the balance of the purchase price was correct.

We hold that the Trial Court erred in its interpretation of the Contract. The Contract is clear' and unambiguous and the intent of the parties clear. The Contract did provide a due date for Plaintiffs’ payment of the balance of the purchase price. Plaintiffs did not pay the balance due by the due date and, therefore, were in default. As Defendant properly exercised its right to declare a default and the evidence shows that Plaintiffs did not cure the default within the ten day cure period, we reverse the Trial Court’s June 17 order and dismiss Plaintiffs’ claims against Defendant. The dismissal of the Plaintiffs’ claim against Pamela Mabee was not challenged on appeal, and it remains in place.

We recognize that our decision results in a harsh outcome for Plaintiffs who had made payments totaling approximately one-half of the purchase price of Lot 37, payments that under the Contract they now forfeit. However, it is not the role of this Court “to make a different contract than that executed by the parties.” Posner v. Posner, No. 02A01-9710-CV-00249, 1997 WL 796216, at *2, 1997 Tenn.App. LEXIS 930, at *6 (Tenn.Ct.App. Dec.30, 1997), no appl. perm, appeal filed. See also, e.g., Central Drug Store v. Adams, 184 Tenn. 541, 201 S.W.2d 682 (1947). “In the absence of fraud or mistake, a contract must be interpreted and enforced as written even though it contains terms which may be thought to be harsh or unjust.” Tenpenny v. Tenpenny, No. 01-A-01-9406-CV-00296, 1995 WL 70571, at *6, 1995 Tenn.App. LEXIS 105, at *15 (Tenn.Ct.App. Feb.22, 1995), appl. perm, appeal denied July S, 1995. While this may not be the result this Court would prefer, it is the result mandated by the law and the evidence.

Conclusion

The judgment of the Trial Court is reversed, Plaintiffs’ claims against Defendant are dismissed, and the case is remanded to the Trial Court for reassessment of and collection of the costs below. The costs on appeal are assessed against the Appellees, Rabia Ka-fozi and Audry C. Kafozi.

      . We note that the Contract gave Plaintiffs the right to the first six month extension.


author: HOLLY M. KIRBY, J„

text:
    Author R. TURNER v. STATE of Tennessee.
    Court of Appeals of Tennessee. Western Section, at Jackson.
    Assigned on Briefs April 7, 2005.
    June 30, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      Author Ray Turner, Henning, Tennessee, appellant, pro se.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael B. Schwegler, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.
   OPINION

HOLLY M. KIRBY, J„

delivered the opinion of the Court, in

which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This is a medical negligence case brought by a state prisoner. The plaintiff prisoner alleges injury stemming from an act of medical negligence by a state employee in August 2001, while the plaintiff prisoner was in state custody. In March 2002, the prisoner erroneously filed a lawsuit in chancery court, which was dismissed in January 2003. In February 2003, the prisoner filed the instant claim with the claims commission. The claims commission found that the statute of limitations was not tolled by the filing of the chancery lawsuit because the Attorney General had not agreed to transfer the chancery lawsuit, and dismissed the claim as untimely. The plaintiff prisoner appealed. This Court reversed the dismissal on the basis that the agreement of the Attorney General to the transfer was no longer required, and remanded for further proceedings. On remand, the claims commission found that the plaintiff prisoner’s claim was not in the class of cases eligible for transfer from chancery court, and on that basis again dismissed the plaintiff prisoner’s complaint as being untimely. The plaintiff prisoner again appeals. We affirm, concluding that the statute of limitations was not tolled by the erroneous filing of the chancery court lawsuit, and that consequently the plaintiff prisoner’s claim with the claims commission was untimely.

This is the second appeal in this case. The opinion in the first appeal, Turner v. State, No. W2003-02889-COA-R3-CV, 2004 WL 1196102 (Tenn.Ct.App. May 27, 2004), sets forth the background facts. It states that Plaintiff/Appellant Author R. Turner (“Appellant”) is:

an inmate in the custody of the Tennessee Department of Correction (“TDOC”) and is incarcerated at the West Tennessee- State Penitentiary. Appellant suffers from migraine headaches and, as part of his medical treatment, he takes daily dosages of Elavil and Midrin. On August 18, 2001, Appellant began to have convulsions at two o’clock in the morning, which Appellant later claimed to be the result of state employee negligence. As a result, he was taken to the Baptist Memorial Hospital in Nashville, Tennessee, for observation and was released [from the hospital] on August 19, 2001.

Turner, 2004 WL 1196102, at *1.

On or about March 7, 2002, Appellant filed a complaint in the Chancery Court of Lauderdale County (“Chancery Court”) based on the state employee’s alleged medical negligence. Apparently, this lawsuit was later dismissed.

On February 25, 2003, Appellant filed a claim against the State of Tennessee (“State”) with the Tennessee Division of Claims Administration, based on the same allegation of state employee medical negligence. On May 29, 2003, Appellant’s administrative claim was transferred from the Tennessee Division of Claims Administration to the Tennessee Claims Commission (“Claims Commission”) pursuant to Tennessee Code Annotated § 9-8^402(c).

On September 9, 2003, the State filed a motion to dismiss, alleging that Appellant’s claim was barred by the one-year statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1), and that Appellant’s claim did not fall within the jurisdictional categories eligible for transfer under Tennessee Code Annotated § 9-8-307. The Appellant prisoner argued that the statute of limitations should have been tolled by the lawsuit erroneously filed in the Chancery Court. The State maintained, however, that the filing of an action in state court does not toll the running of the statute of limitations when the Attorney General did not agree to the transfer from Chancery Court to the Claims Commission. See Locust v. State, 912 S.W.2d 716, 717-19 (Tenn.Ct.App.1995). On November 10, 2003, the Claims Commission dismissed Appellant’s claim, stating that “[sjince there was no agreement [for the transfer] by the Attorney General [as is required under Section 9-8-307(i)(l) ], the Claimant cannot rely upon the filing of the complaint in Lauderdale County to toll the running of the statute of limitations.” See Turner, 2004 WL 1196102, at*l.

Appellant, acting pro se, appealed to this Court, arguing that the Claims Commission erred in dismissing his claim. Id. On May 27, 2004, this Court reversed the dismissal of Appellant’s claim, noting that Tennessee Code Annotated § 9-8-307© provides that some cases filed in the wrong court may be transferred to the Division of Claims Administration, and that the “statute no longer requires an agreement with the Attorney General before a transfer.” On this basis, the appellate court reversed the Claims Commission’s dismissal and remanded for further proceedings. Id. at *2.

On June 7, 2004, the State filed a petition for rehearing in the appellate court, asserting that the Chancery Court action was ineligible for transfer and, therefore, the statute of limitations was not tolled by the filing of the Chancery Court lawsuit. On June 22, 2004, this Court entered an order denying the petition to rehear, stating, “Defendant-Appellee has filed a thoughtful petition to rehear raising grounds which more properly should be addressed to the trial tribunal on remand.”

On July 15, 2004, before mandate issued, the State filed with the Claims Commission a motion to dismiss the Appellant prisoner’s claim on the basis asserted in the petition to rehear. On August 18, 2004, the Claims Commission sent a letter to Appellant informing him of his duty to respond, and giving him until August 30, 2004, to file his response. On September 2, 2004, mandate issued. On September 15, 2004, the State filed another motion to dismiss identical to the July 15, 2004 motion. Appellant did not file a response to either of the State’s motions.

On September 19, 2004, the Claims Commission entered an order again dismissing Appellant’s claim. The Claims Commission stated:

[Section] 9 — 8—307(i)(1) was amended in 1998 and no longer requires an agreement with the Attorney General prior to a transfer from circuit court. However, the 1998 amendments also severely limit the class of cases eligible for transfer. The new statutory language reads as follows:
Claims that were filed against a state employee with a court of competent jurisdiction and that fall within the jurisdiction of the claims commission found in subsection (a)(1)(A) shall be dismissed as to the state employee and transferred to the division of claims administration to proceed as a claim against the state ... § 9-8-307(i)(l) (Emphasis added).
Subsection (a)(1)(A) includes only cases alleging “negligent operation or maintenance of a motor vehicle or any other land, air or sea conveyance” by a state employee.
The gravamen of Mr. Turner’s claim is that he passed out and suffered convulsions after taking medication prescribed by a state employee. There is no allegation involving the negligent operation or maintenance of a motor vehicle or other conveyance. Thus, Claimant’s filing of an action in the Chancery Court. of Tennessee for Lauderdale County did not toll the statute of limitations.
The date of Mr. Turner’s alleged injury is August 18, 2001. He filed his claim in February, 2003. It is clear, therefore, that the statute of limitations had expired prior to the filing of the claim with the Divisions of Claims Administration.

Thus, the Claims Commission found that Appellant’s Chancery Court lawsuit did not “fall within the jurisdiction of the claims commission found in subdivision (a)(1)(A)” and, therefore, was not eligible for transfer to the Claims Commission. On this basis, the Claims Commission determined that the filing of the Chancery lawsuit did not toll the statute of limitations for filing an administrative claim. Appellant, still pro se, appeals once again.

We review a direct appeal from the Tennessee Claims Commission in accordance with the Tennessee Rules of Appellate Procedure. Crew One Prods., Inc. v. State, 149 S.W.3d 89, 92 (Tenn.Ct.App.2004); see Tenn.Code Ann. § 9-8-403(a)(1) (1999). The sole issue presented in this appeal is a question of law. Therefore, our review is de novo, with no presumption of correctness afforded to the decision of the Claims Commission. Crew One Prods., 149 S.W.3d at 92.

On appeal, Appellant argues that the Claims Commission erred in determining that the one-year statute of limitations was not tolled by the filing of his Chancery Court lawsuit. He notes that Tennessee Code Annotated § 16-1-116 provides that, when a lawsuit is filed in a state or county court that lacks jurisdiction, the court shall transfer the case to the proper court, and the case should proceed as if it were filed in the proper court as of the date of the original filing. The Appellant prisoner contends that his lawsuit could have been transferred to the Claims Commission under this statute, and that therefore the one-year statute of limitations should be deemed to have been tolled during this period.

The statute upon which Appellant relies, Section 16-1-116, states:

Notwithstanding any other provision of law or rule of court to the contrary, when an original civil action, an appeal from the judgment of a court of general sessions, or a petition for review of a final decision in a contested case under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, is filed in a state or county court of record or a general sessions court and such court determines that it lacks jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was originally filed. Upon such a transfer, the action or appeal shall proceed as if it had been originally filed in the court to which it is transferred on the date upon which it was actually filed in the court from which it was transferred.

Tenn.Code Ann. § 16-1-116 (Supp.2004) (emphasis added). This statute indeed provides that a trial court may transfer a case that was incorrectly filed “to any other such court in which the action or appeal could have been brought,” when the trial court determines that the interests of justice would be served by such a transfer. Transfer pursuant to this section is not, however, automatic; rather, the trial court determines, in its discretion, whether the transfer is warranted. See Elliott v. Akey, No. E2004-01478-COA-R3-CV, 2005 WL 975510, at *3 (Tenn.Ct.App. Apr.27, 2005).

While Section 16-1-116 applies generally to cases incorrectly filed in one court which may be transferred to another court, Tennessee Code Annotated § 9-8-307 applies specifically to the transfer of claims from a court to the Claims Commission. It is a common rule of statutory construction that “[sjpecific statutory provisions control over conflicting general provisions.” Arnwine v. Union County Bd. of Educ., 120 S.W.3d 804, 809 (Tenn.2003). “[Wjhere the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to affect the more particular provision.” Id. (quoting Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013, 1015 (1946)). Section 9-8-307 specifically addresses the transfer of cases to the Claims Commission that were erroneously filed “with a court of competent jurisdiction,” and therefore directly addresses the facts presented in this case. Consequently, we conclude that the more general statute, Section 16-1-116, is inapplicable.

We now consider the language in Section 9-8-307 to determine whether the Claims Commission erred in dismissing Appellant’s claim as untimely. In Locust, supra, a prisoner filed a claim for legal malpractice against the State, within the one-year time limitation, in the local circuit court rather than with the proper division of the Tennessee Claim Commission. The circuit court did not transfer the case to the Claims Commission, however, because the requirements of Section 9 — 8—307(i)(l) had not been met. The plaintiff subsequently filed a claim with the Claims Commission, but it was filed after the one-year limitations period had expired. Locust, 912 S.W.2d at 718. The Claims Commission dismissed the claim as untimely, and the plaintiff appealed. This Court held that, since the circuit court in which the case was originally filed did not transfer the case because it did not meet the criteria in Section 9 — 8—307(i) (1), the plaintiff could not rely on the filing of the circuit court lawsuit to toll the statute of limitations.

Here, Appellant appears to contend that his Chancery Court lawsuit met the criteria for transfer under Section 9-8-307(i)(l), and that therefore the statute of limitations applicable to his claim should have been tolled by the filing of that lawsuit. As noted by the Claims Commissioner, however, Section 9-8-307 formerly provided that claims erroneously filed in a court of competent jurisdiction “that fall within the jurisdiction of the [Claims Commission] found in subsection (a) may be transferred to the division of claims administration .... ” Tenn.Code Ann. § 9-8-307(i)(l) (1987) (emphasis added). Subsection (a) then listed all of the types of claims over which the Claims Commission had jurisdiction, including claims for negligence and professional malpractice. After the 1998 amendment, however, the transfer provision allowed a transfer from a court to the Claims Commission only if the case fell “within the jurisdiction of the [Claims Commission] found in subsection (a)(1)(A).” Tenn.Code Ann. § 9-8-307(i)(l) (1999) (emphasis added). Subsection (a)(1)(A), only one category of claims, provides that the Claims Commission has jurisdiction over matters involving “[t]he negligent operation or maintenance of any motor vehicle or any other land, air, or sea conveyance.” Id. It is undisputed that the instant case is based solely on medical negligence, and does not involve the negligent operation of a motor vehicle or other land, air, or sea conveyance. Therefore, even if Appellant had requested such a transfer, Section 9 — 8—307(i)(l) would not have authorized the Chancery Court to transfer Appellant’s lawsuit to the Claims Commission. Accordingly, as in Locust, the request would not have been granted for failure to meet the criteria of Section 9 — 8—307(i)(l), and consequently the filing of the Chancery lawsuit did not toll the statute of limitations. See Locust, 912 S.W.2d at 719. Therefore, we find no error in the decision of the Claims Commission dismissing the Appellant’s claim as untimely. Other issues raised by Appellant are pretermitted by our decision.

The decision of the Tennessee Claims Commission is affirmed. Costs on appeal are to be taxed to Appellant Author R. Turner, and his surety, for which execution may issue, if necessary.

      . Though the Chancery Court complaint is not included in the record on appeal, the Tennessee Claims Commission found that Appellant in fact filed a complaint in the Lauder-dale County Chancery Court.

      . In his appellate brief, Appellant asserts that the Chancery Court lawsuit was dismissed on January 29, 2003, but this information is not in the appellate record.

      . Appellant contends that the Claims Commission failed to give him an adequate time to respond after the second motion to dismiss. Appellant, however, does not indicate how the State’s filing of two identical motions, one before mandate was issued and one after, precluded him from responding, nor does he identify any argument that he was prevented from proffering to the trial court based on time constraints. Under these circumstances, we must conclude that any error by the Claims Commission in this regard was harmless.

      . There is no indication in the record as to whether the Appellant prisoner sought such a transfer of his Chancery lawsuit.

      . As noted in the earlier appeal in this case, the statutory provision formerly required an agreement of the parties and the consent of the Attorney General before cases could be transferred from a court to the Claims Commission. Turner, 2004 WL 1196102, at *2.


author: Justice O’NEILL

text:
    THE CHAIR KING, INC., Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc., Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., Jeffrey K. Musker, D.C., and Pope Escrow Company, Petitioners, v. GTE MOBILNET OF HOUSTON, INC., and Chick-Fil-A, Inc., Respondents.
    No. 04-0570.
    Supreme Court of Texas.
    Argued April 14, 2005.
    Decided Feb. 3, 2006.

      Anne Cohl Gravelle, Akin Gump Strauss Hauer & Feld, LLP, Austin, Steven M. Zager, Murry B. Cohen, Akin Gump Strauss Hauer & Feld, LLP, Houston, for Petitioner.
    Julius Glickman, Ashton Carlo Bachyn-sky, Glickman & Hughes, L.L.P., Thomas C. Wright, Chad Michael Forbes, Richard Russell Hollenbeck, Wright Brown & Close, LLP, Geoffrey H. Bracken, Kimber-
    ly Robinson Phillips, Gardere Wynne Se-well LLP, Houston, for Respondents.
   Justice O’NEILL

delivered the opinion of the Court.

The suit underlying this appeal complains of unsolicited faxes sent in violation of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), which grants those who receive illegal faxes a private cause of action in state court “if otherwise permitted by the laws or rules of court of a State.” 47 U.S.C. § 227(b)(3). Texas did not expressly permit a private right of action for unsolicited faxes until September 1, 1999, when the Legislature amended the Business and Commerce Code to allow parties to bring suit in state court for TCPA violations. Act of May 26, 1999, 76th Leg., R.S., ch. 635, § 1, 1999 Tex. Gen. Laws 3203 (current version at TEX. BUS. & COM. CODE § 35.47(f)). We must decide whether the faxes at issue in this case, which were sent before September 1, 1999, are actionable in Texas state courts under the TCPA. We conclude that they are not, and reverse and render judgment against the recipients.

I. Background

Beginning in 1992, The Chair King, Inc., and others (collectively “plaintiffs” or “recipients”) complain that they began to receive illegal faxes from various companies advertising their products. They originally filed suit in federal court, but the court dismissed the case for lack of subject-matter jurisdiction. Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir.1997). The plaintiffs then filed this suit in state court against a number of defendants alleging a private damage claim under the TCPA, negligence, negligence per se, invasion of privacy, trespass to chattels, gross negligence, and conspiracy among the senders. The trial court granted the defendants’ joint and individual summary-judgment motions and denied the plaintiffs’ motion for partial summary judgment. The plaintiffs settled with various defendants during the course of the proceedings, leaving only GTE Mobilnet of Houston, Inc. (“GTE Mobilnet”) and Chick-Fil-A, Inc. (“Chick-Fil-A”) as defendants before the court of appeals.

The court of appeals affirmed the trial court’s judgment in part, and reversed and remanded in part. 135 S.W.3d 365. Specifically, the court affirmed the trial court’s summary judgment on all of the common-law claims, on all claims against Chick-Fil-A after applying Texas’ two-year statute of limitations, and on certain plaintiffs’ TCPA claims against GTE Mobilnet that the court considered barred by limitations. Id. at 396-97. The court reversed the trial court’s judgment as to the remaining plaintiffs’ TCPA claims against GTE Mobilnet, which were remanded for further proceedings. Id.

Both sides petitioned this Court for review, the plaintiffs challenging the court of appeals’ determination of the limitations issue and the defendants contending, inter alia, that there was no TCPA private right of action cognizable in Texas courts until the Legislature enacted enabling legislation in 1999. Alternatively, defendants claim they cannot be liable for faxes transmitted by independent advertising companies acting at the behest of independent retailers. We granted the parties’ petitions for review to consider the TCPA’s application and related issues.

II. The Telephone Consumer Protection Act

A. History

Congress enacted the Telephone Consumer Protection Act in 1991 by amending the Communications Act of 1934. Pub.L. No. 102-243, 105 Stat. 2394, (codified as amended at 47 U.S.C. § 227). The TCPA’s purposes were to “protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls ... and to facilitate interstate commerce by restricting certain uses of facsimile (fax) machines and automatic dialers.” S. REP. No. 102-178, at 1 (1991), reprinted in 1991 U.S.C.C.A.N.1968, 1968. The legislation was intended to address a growing number of consumer complaints related to the use of automated telephone equipment to make unsolicited telephone calls and faxes. That growth was spurred by a dramatic decrease in the cost of long-distance service, which in turn reduced the expenses associated with telemarketing. Id. at 2, reprinted in 1991 U.S.C.C.A.N.1968,1969-70.

Before the TCPA’s enactment, many states had promulgated regulations aimed at limiting unsolicited intrastate telemarketing, but constitutional constraints prevented them from reaching interstate communications. Id. at 3, reprinted in 1991 U.S.C.C.A.N.1968, 1970 (noting “States do not have jurisdiction over interstate calls. Many States have expressed a desire for Federal legislation to regulate interstate telemarketing calls to supplement their restrictions on intrastate calls.”). By the time the TCPA became law, over forty states had legislatively limited the use of ■automatic-dialer recorded-message players or otherwise restricted telemarketing. Id., reprinted in 1991 U.S.C.C.A.N.1968, 1970. But- given that state regulation reached only intrastate communications, consumer complaints to the Federal Communications Commission (FCC) soared. Id., reprinted in 1991 U.S.C.C.A.N.1968, 1970. The TCPA quickly followed.

B. Statutory Framework

The TCPA presents what has been described as “an unusual constellation of statutory features.” Chair King, 131 F.3d at 512. On one hand, the Act creates a federal private right of action, but on the other it confers exclusive jurisdiction on state courts to entertain it. Id. The TCPA does contain an exclusive federal enforcement component, authorizing state attorneys general to bring civil actions in federal court on behalf of their state’s residents to obtain injunctive relief against unauthorized telephone calls and facsimiles and to recover monetary damages. 47 U.S.C. § 227(f)(l)-(2). For such actions the TCPA authorizes the FCC to intervene as of right, to be heard in all such matters, and to file petitions for appeal. 47 U.S.C. § 227(f)(3). But for purposes of' private enforcement and redress, state-court jurisdiction is exclusive.

Under the TCPA, it is illegal to “use any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(c). Section 227(b)(3) creates a private right of action for recipients of unsolicited faxes to obtain monetary and injunctive relief, as follows:

Private Right of Action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.

Id. § 227(b)(3) (emphasis added). It is the import of the statutory proviso — “if otherwise permitted by the laws or rules of court of a State”- — that the parties dispute and that courts have struggled to interpret.

The defendants claim the right of action that the TCPA affords is not self-implementing; that is, the private cause of action the Act creates is not immediately enforceable in Texas courts without state enabling legislation. For the plaintiffs to bring such a claim, defendants contend, Texas laws or rules of court must “otherwise permit” it, and Texas did not until September 1, 1999, when the Legislature amended the Texas Business and Commerce Code to permit private TCPA claims. Act of May 26, 1999, 76th Leg., R.S., ch. 635, § 1, 1999 Tex. Gen. Laws 3203, 3203 (codified as amended at TEX. BUS. & COM. CODE § 35.47(f)). Defendants’ argument mirrors what has sometimes been referred to as the “opt-in” approach to the TCPA, in effect requiring some type of affirmative state buy-in before the federally-created private right of action is cognizable in state court.

The plaintiffs take a contrary view. Because the TCPA is federal law, they claim, state courts of general jurisdiction are inherently empowered, and indeed required, to enforce it. See Tafflin v. Levitt, 493 U.S. 455, 459-61, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). According to plaintiffs, the TCPA created an immediately actionable private right of action in state court and there was no need for state enabling legislation. To support their position, plaintiffs posit two interpretations of the TCPA commonly known as “acknowledgment” and “opt-out.”

For reasons that we will explain, we believe the TCPA’s plain language, purpose, and historical context favor the “opt-in” interpretation. We begin by examining all three interpretive approaches and the reasoning behind them.

C. Interpreting the Statutory Proviso

1. The “Acknowledgment” Approach

The “acknowledgment” position that some courts have adopted interprets the Supremacy Clause of the United States Constitution to require states to provide a forum for private TCPA damage claims with no ability to decline. See R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 382 Md. 689, 857 A.2d 1 (2004); Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc., 121 P.3d 350 (Colo Ct.App., 2005); U.S. CONST, art. VI, cl. 2 (“This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby ....”). The focal point of the “acknowledgment” approach is the general rule that a state may not decline to enforce a federal cause of action:

[T]he Constitution and laws passed pursuant to it are as much laws in the State as laws passed by the state legislature. The Supremacy Clause makes those laws “the supreme Law of the Land,” and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure.

Howlett v. Rose, 496 U.S. 356, 367, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). According to this view, no state enabling legislation is necessary for parties to assert private TCPA causes of action, and states may not decline to entertain them. The presumption of state-court jurisdiction over federal causes of action can be rebutted only “by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests,” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981), and courts espousing the acknowledgment view have found nothing in the TCPA’s language or legislative history to rebut the presumption. See, e.g., Consumer Crusade, 121 P.3d at 353.

It is, of course, generally true that states may not decline to recognize or enforce federal law. Howlett, 496 U.S. at 371, 110 S.Ct. 2430. But the federal law that states are required to enforce must be applied according to its terms. Had the TCPA simply provided that “[a] person or entity may ... bring ... an action based on a [TCPA] violation,” the states’ constitutional obligation under the Supremacy Clause to entertain such claims would be irrefutable. But Congress chose to qualify the private TCPA right of action it created by including the proviso “if otherwise- permitted by the laws or rules of court of a State.” 47 U.S.C. § 227(b)(3). Failure to give effect to the statutory proviso would itself run the risk of violating the Supremacy Clause by refusing to apply the federal right as written.

Under the “acknowledgment” interpretation, the TCPA’s “if otherwise permitted” language merely acknowledges states’ rights to structure their court systems and apply neutral state-court procedures to federal causes of action. See, e.g., Consumer Crusade, at 357 (stating “no state can refuse to entertain a private TCPA action, but a state is not compelled to adopt special procedural rules for such actions”). Courts adopting this interpretation have relied heavily on a speech by the TCPA’s author, Senator Ernest Hollings of South Carolina, when he introduced the substitute bill containing the private right of action eventually codified at 47 U.S.C. § 227(b)(3):

The substitute bill contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. The consumer outrage at receiving these calls is clear. Unless Congress makes it easier for consumers to obtain damages from those who violate this bill, these abuses will undoubtedly continue.
Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.

137 CONG. REC. 30821-22 (1991) (statement of Sen. Hollings). Senator Hollings’s speech on the day the substitute bill was introduced is the only available legislative history concerning the private-right-of-action provision.

We do not find the argument that Senator Hollings’s speech conlpels an “acknowledgment” interpretation persuasive. While the statement may have accurately reflected Senator Hollings’s understanding of the private right of action, there can be no certainty that it reflected the view of the entire Congress. See Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex.1993) (“[T]he intent of an individual legislator, even a statute’s principal author, is not legislative history controlling the construction to be given a statute.”). And even if we were to presume that Senator Hollings’s speech accurately captured congressional intent, it can just as fairly be read to support an “opt-in” approach. By stating his expectation that “the States will act reasonably in permitting their citizens to go to court to enforce this bill,” Senator Hollings implies that states must act in an affirmative manner before the TCPA private damage claim is cognizable in state court. In sum, we believe that Senator Hollings’s remarks are of limited interpretive value.

The “acknowledgment” approach to interpreting the TCPA’s “if otherwise permitted” proviso presents a number of problems. For one, it renders certain language in the TCPA “doubly redundant.” Chair King, 135 S.W.3d at 381. State district courts of general jurisdiction are presumed to have adjudicative power over federal statutory private damage claims unless Congress specifically decides otherwise, so there would be no reason for Congress to import that general principle into the statutory proviso when it does not do so in other federal statutes. See id. Nevertheless, Congress did choose to acknowledge this general principle elsewhere in the TCPA by stating that suit may be brought “in an appropriate court of that State.” 47 U.S.C. § 227(b)(3). Interpreting the “if otherwise permitted” provision to have the same meaning “would be redundant and risk rendering the words meaningless.” Chair King, 135 S.W.3d at 382.

The strongest argument supporting the “acknowledgment” approach emphasizes the statutory proviso’s reference to court rules: “if otherwise permitted by the laws or rules of court of a State ....” 47 U.S.C. § 227(b)(3) (emphasis added). “Rules of court” generally refer to the procedures courts implement to conduct official business. See, e.g., BLACK’S LAW DICTIONARY 369 (7th ed.1999) (defining “court rules” as “[regulations having the force of law governing practice and procedure in the various courts”). Plaintiffs assert that by referencing “rules of court,” which generally do not confer subject-matter jurisdiction over causes of action, Congress chose to acknowledge states’ rights to independently administer their own courts and, by negative implication, signaled no intent to require affirmative legislative action at the state level before a party could exercise the private right of action. Any other interpretation, plaintiffs claim, would render the “rules of court” language mere surplusage. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000). However, applying an “acknowledgment” interpretation to the statutory proviso is no less problematic. As we have said, the same rule against surplusage is equally applicable to the “acknowledgment” interpretation. See Chair King, 135 S.W.3d at 381 (stating “it would be redundant and risk rendering the words meaningless to interpret the ‘if otherwise permitted’ clause to have the same meaning [as the clause allowing suit ‘in an appropriate court of that State’]”). Moreover, if the statutory reference to “rules of court” was intended to imply no state option over allowing the federally created claim, the “if otherwise permitted by the laws ... of a State” language would be rendered sur-plusage. 47 U.S.C. § 227(b)(3) (emphasis added); see Spradlin, 34 S.W.3d at 580.

In sum, we see no clear indication in either the statutory language or the legislative history that would indicate Congress intended to unconditionally mandate a private TCPA damage claim in state court that the states could not choose to decline. Like the court of appeals, we reject the “acknowledgment” interpretation of the TCPA that some courts have followed.

Having determined that the statutory-proviso was intended to give the TCPA some conditional effect, we must decide whether Congress intended for the Act to apply unless a state opted out, or only if a state opted in.

2. The “Opt-out” Approach

The “opt-out” interpretation reads the TCPA to immediately authorize private rights of action in state court without the necessity of affirmative state action, but allows states to legislatively decline to entertain them. To date, this appears to be the majority view of the relatively few courts that have had occasion to decide the issue. See Mulhem v. MacLeod, 441 Mass. 754, 808 N.E.2d 778 (2004); Lary v. Flasch Bus. Consulting, 878 So.2d 1158 (Ala.Civ.App.2003); Condon v. Office Depot, Inc., 855 So.2d 644 (Fla.Dist.Ct.App.2003); Kaufman v. ACS Sys., Inc., 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296 (2003); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907 (Mo.2002); Zelma v. Market U.S.A., 343 N.J.Super. 356, 778 A.2d 591 (App.Div.2001); Aronson v. Fax. com, Inc., 51 Pa. D. & C.4th 421 (Ct.Com. Pl.2001); Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468 (2000); Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 710 N.Y.S.2d 368 (N.Y.App.Div.2000). Of the courts that follow the “opt-out” position, none has yet determined that a state has actually opted out of providing a forum for private TCPA claims.

Until this case, only one court of appeals in Texas has had occasion to interpret section 227(b)(3)’s “if otherwise permitted” proviso, and it determined that the statute’s plain language compelled an “opt-in” interpretation; that is, a state must affirmatively act before the federally-created claim is cognizable in its courts. Autoflex Leasing, Inc. v. Mfrs. Auto Leasing, 16 S.W.3d 815, 817 (Tex.App.—Fort Worth 2000, pet. denied). The court held that the “plain and ordinary” meaning of the statutory proviso indicates “Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA, before such suits under the TCPA may be brought in state courts.” Id. Because Texas did not authorize a private right of action in state court under the TCPA until September 1, 1999, and the faxes at issue in Autoflex were sent before the state legislation became effective, the court affirmed the trial court’s judgment dismissing the plaintiffs claim. Id. at 817-18.

In this case, the court of appeals rejected the Autoflex interpretation in favor of the “opt-out” approach for several reasons, some of which have similarly led other courts along the same path. Chair King, 135 S.W.3d at 379. Those reasons, generally, are that the “opt-out” interpretation gives greater deference to the Supremacy Clause, id. at 382, and the “opt-in” position is “inefficient and ineffective” considering Congress’s intention to help states regulate unsolicited interstate faxes. Id. at 380. We examine each of these considerations in turn.

The court of appeals rejected the “acknowledgment” notion that the Supremacy Clause mandates unconditional state enforcement of private TCPA damage claims because of internal inconsistencies in the statutory language such an interpretation would create. Id. at 381-82. If Congress wished to unconditionally mandate TCPA enforcement in state courts, the court of appeals explained, it could easily do so by amending the TCPA and preempting state statutes to the contrary. Id. at 382. But at the same time, by construing the TCPA private right of action as mandatory unless a state legislatively declines enforcement, it appears the court of appeals attempted to give a nod to Supremacy Clause concerns. Id. Of course, Congress’s ability to clarify the extent of its mandate by amending the statute is the same whether the proviso is construed as “acknowledgment,” “opt-out,” or “opt-in.” More importantly, as we have said, the TCPA defines the federal cause of action with a prominent proviso; giving effect to the proviso that Congress created cannot run afoul of the Supremacy Clause. Having concluded that Congress intended the statutory proviso to have some conditional effect, be it “opt-out” or “opt-in,” we fail to see how Supremacy Clause concerns are implicated at all.

The court of appeals also reasoned that the “opt-in” approach does not comport with Congress’s purpose to help states regulate and penalize illegal fax advertisements by overcoming their inability to regulate interstate faxes. Id. at 380. The court posited that there would be no reason for Congress to create a statutory remedy that would allow states to regulate illegal interstate faxes but at the same time prohibit them from doing so until the state enacted enabling legislation; such a result would be, the court concluded, “inefficient and ineffective.” Id. (citing Aron-son, 51 Pa. D. & C.4th at 429).

This interpretation, though, ignores the unique nature of the federal right of action the TCPA created. Rather than make federal court jurisdiction over private TCPA claims concurrent with that of state courts, Congress chose to make the private remedy available exclusively through state-court proceedings. Such a conscious decision was undoubtedly due, at least in part, to the estimated eighteen million telemarketing calls made daily. Telephone Consumer Protection Act of 1991, Pub.L. No. 102-243, § 2(3), 105 Stat. 2394 (1991); see Int’l Sci. & Tech. Ins., Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146, 1157 (4th Cir.1997). Understandably, Congress opted to close federal courts to the millions of potential private TCPA claims since the overwhelming locus of regulation was centered in the states. Int’l Sci., 106 F.3d at 1154. It is not unreasonable to presume, then, that Congress recognized the potential burden on state courts these claims could present. “Congress acted rationally in both closing federal courts and allowing states to close theirs to the millions of private actions that could be filed if only a small portion of each year’s 6.57 billion telemarketing transmissions were illegal under the TCPA.” Id. Considering the potential burden on state court resources a flood of private TCPA claims might present, it is logical that Congress would choose to allow the states themselves to have some voice in the matter. Id. (holding “that private actions under the TCPA may be permitted in some state courts and prohibited in others, as determined by the states, does not render the TCPA violative of the equal protection component of the Fifth Amendment’s Due Process Clause”) (emphasis added). “States thus retain the ultimate decision of whether TCPA actions will be cognizable in their courts.” Id. at 1158.

We think it significant that the reason Congress created the TCPA private right of action at all was “out of solicitude for states which were thwarted in their attempts to stop unwanted telemarketing.” Id. at 1154. Congress noted in the TCPA: “Over half the States have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operations; therefore, Federal law is needed to control residential telemarketing practices.” . Telephone Consumer Protection Act of 1991, PUB. L. NO. 102-243, § 2(7), 105 Stat. 2394 (1991). The principal motivation behind the TCPA strongly suggests that its remedies were meant to enhance the states’ existing attempts to regulate unsolicited calls and faxes. As the Fourth Circuit noted, “although Congress created the private TCPA action, it was from the beginning a cause of action in the states’ interest.” Int’l Sci., 106 F.3d at 1154. There is strong evidence that Congress wanted to assist state regulation in reaching interstate communications if a state so desired, not to create an independent regulatory framework for a potential flood of individual state-court lawsuits.

In sum, we do not believe the Supremacy Clause concerns and purported inefficiencies that some courts have perceived in adopting an “opt-out” approach are valid in light of the explicit statutory proviso and the TCPA’s purpose to supplement state efforts to regulate unsolicited faxes. Instead, we consider the Congressional intent underlying the TCPA, as expressed in the statutory proviso and legislative history, to favor the “opt-in” interpretation.

3. The “Opt-in” Interpretation

We must begin with the text of the statutory proviso. See New York State Conf. of Blue Cross and Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (in determining congressional intent, analysis begins with interpretation of the statutory text and “move[s] on, as . need be, to the structure and purpose of the Act in which it occurs”); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex.1997) (noting that in construing a statute, a court’s primary objective is to give effect to the Legislature’s intent by considering the plain meaning of the enactment). Our challenge in this case is discerning the level of deference to the states embodied in the phrase “if otherwise permitted by the laws or rules of court of a State.” 47 U.S.C. § 227(b)(3).

We believe the requirement that states must “otherwise permit” a private right of action before a TCPA claim is cognizable in their courts can only mean that the TCPA alone does not create an immediately enforceable right. The term “otherwise” denotes “(1) in a different way or manner: DIFFERENTLY; (2) in different circumstances: under other conditions.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1961). And “permit” is defined as “(1) to consent to expressly or formally: grant leave for or the privilege of: ALLOW, TOLERATE; (2) to give (a person) leave: AUTHORIZE; ... (4) to make possible.” Id. Use of the words “otherwise permitted,” then, suggests the necessity of affirmative state action to activate the TCPA’s private cause of action.

Congressional intent underlying the TCPA also supports an “opt-in” reading of the statutory proviso. As we have said, the federal legislation was intended to supplement state regulation, and Congress was surely conscious that state courts could suddenly be burdened with a potential flood of unsolicited-fax suits. It is clear that Congress intended significant deference to states, allowing them to determine whether to entertain the private TCPA claims that Congress decided to make exclusively actionable in state court. Int’l Sci., 106 F.3d at 1156. We believe the “if otherwise permitted” language Congress crafted in creating the federal TCPA private right of action indicates deliberate deference to an area of uniquely state concern. Id.

It is true, as the plaintiffs assert, that “the statute’s intended and most important purpose [is] to swiftly wipe out unsolicited facsimile advertising.” But we believe Congress hinged the swiftness of the federal legislation on the willingness of states to bear the burden and cost of overseeing these claims. After all, the TCPA provides a federal enforcement mechanism by which state attorneys general may protect residents if the state wishes to direct state resources elsewhere:

If state residents would prefer their government to devote its attention and resources to problems other than those deemed important by Congress, they may choose to have the Federal Government rather than the State bear the expense [and administrative burden] of [the TCPA] .... Where Congress [thus] encourages state regulation rather than compelling it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people.

Int’l Sci., 106 F.3d at 1158 (quoting New York v. United States, 505 U.S. 144, 168, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)). Thus, that the Texas Legislature did not specifically authorize a private right of action for unsolicited faxes until 1999 does not mean that Texas residents were without recourse; they were free to encourage the Texas Attorney General to pursue TCPA injunctive and other relief on their behalf. See 47 U.S.C. § 227(f)(1)-(2).

Plaintiffs further contend an “opt-in” interpretation would render the TCPA’s preemption language meaningless. Section 227(e) provides that the TCPA does not preempt state laws imposing more restrictive requirements or even prohibiting the use of telemarketing equipment. 47 U.S.C. § 227(e). Plaintiffs claim the negative implication suggests that less restrictive penalties are indeed preempted. If the TCPA were inoperative absent enabling legislation, the plaintiffs assert, then the TCPA could not preempt less restrictive state law and the section would be rendered meaningless. Of course, the same argument would apply to the “opt-out” approach; if a state opted out then the preemption language would be equally meaningless. Only an “acknowledgment” interpretation, which we have rejected, would give full effect to subsection (e) if in fact it were intended to preempt less restrictive state penalties. But we do not agree with the plaintiffs’ reading of section 227(e).

First, we note that section 227(e)(1) is specifically titled “State law not preempted.” 47 U.S.C. § 227(e)(1) (emphasis added). Furthermore, Congress’s intent to supplement state legislation explains why the preemption concern would have focused on more aggressive regulation by the states. See Chair King, 131 F.3d at 513 (“By creating a private right of action in state courts, Congress allowed states, in effect, to enforce regulation of interstate telemarketing activity.”). Congress clearly did not intend the TCPA to establish a ceiling if states decided to be more aggressive in their approach, but it does not necessarily follow that Congress intended the TCPA to be a mandatory floor for private enforcement whether or not a state chose to allow it. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (“In all preemption cases, and particularly in those [where] Congress has ‘legislated ... in a field which the States have traditionally occupied,’ we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ”); Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 780, 67 S.Ct. 1026, 91 L.Ed. 1234 (1947) (internal citations omitted) (“Any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assure full federal authority, completely displacing the States.”). We reject the plaintiffs’ contention that the TCPA’s limited preemption language forecloses an “opt-in” interpretation.

III. Conclusion

We conclude that, because Texas did not otherwise permit a cause of action for the receipt of unsolicited fax advertisements until September 1, 1999, and the faxes at issue in this case were sent before that date, plaintiffs have no actionable claim. Because this conclusion is disposi-tive, we do not reach the parties’ other arguments involving the limitations period applicable to TCPA claims and the application of Texas agency law under the facts presented here. Accordingly, we reverse the judgment of the court of appeals and render judgment in favor of GTE Mobil-net.

Justice WAINWRIGHT did not participate in the decision.

      . Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc., Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., Jeffrey K. Musker, D.C., and Pope Escrow Company.

      . Like nearly all federal courts that have considered the jurisdictional issue, the Fifth Circuit determined that state court jurisdiction over private TCPA actions is exclusive of, not concurrent with, federal court jurisdiction. Chair King v. Houston Cellular Corp., 131 F.3d at 513; see Murphey v. Lanier, 204 F.3d 911, 913-15 (9th Cir.2000); Int’l Sci. & Tech. Inst., Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146, 1152 (4th Cir.1997); ErieNet, Inc. v.

        Velocity Net, Inc., 156 F.3d 513, 520 (3d Cir.1998); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 438 (2d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir.1998), modified by 140 F.3d 898 (11th Cir.1998); contra Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912, 915 (S.D.Ind.1995), Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1164 (S.D.Ind.1997). The parties do not dispute that determination, and we will presume it here.

      . Chevrolet Country, Inc., Watson Investment Group, Inc., Amaturo Group, Ltd., Budget Rent-a-Car Systems, Inc., and Hillcroft Enterprises, Inc. GTE Mobilnet and Chick-Fil-A, among dozens of others, were subsequently added as defendants in the plaintiffs’ first amended original petition.

      . The remaining claims are those of Jerome Kosoy, M.D., Beautique, Inc., Discovery Services of Texas, Inc., and Jeffrey K. Musker, D.C.

      . Texas did not recognize a private cause of action for unsolicited faxes, but had enacted a criminal statute making it a Class C misdemeanor to advertise by such means. See Act of May 23, 1989, 71st Leg., R.S., ch. 783, § 1, 1989 Tex. Gen. Laws 3469, 3469 (current version at TEX. BUS. & COM. CODE § 35.47(e)).

      . Section 35.47(f) states in pertinent part:
      A person who receives a communication that violates 47 U.S.C. Section 227, a regulation adopted under that provision, or this section may bring an action against the person who originates the communication in a court of this state for an injunction, damages in the amount provided by this subsection, or both.
      TEX. BUS. & COM. CODE § 35.47(f).

      . A recent decision from the Court of Appeals for the Fifth Court of Appeals District reviewed the TCPA’s "if otherwise permitted” proviso, but only in the context of determining the applicable limitations period. See Smith & Assocs., LLP v. Advanced Placement Team, Inc., 169 S.W.3d 816 (Tex.App.—Dallas 2005, pet. filed) (dismissing the plaintiffs TCPA claims in holding that the Texas two-year limitations period applicable to state-law claims under section 35.47 of the Texas Business and Commerce Code also applied to the TCPA claims).

      . International Science has sometimes been cited to favor an "opt-out" interpretation of the TCPA’s "if otherwise permitted” language. See, e.g., Hooters, 537 S.E.2d at 470. We do not read the court’s analysis as doing so. International Science was decided before the debate over the statutory proviso's import commenced and merely decided the jurisdictional question of whether federal courts could entertain private TCPA claims. See R.A. Ponte Architects v. Investors’ Alert, 149 Md.App. 219, 815 A.2d 816, 824 n. 7, rev’d, 382 Md. 689, 857 A.2d 1 (stating "[t]he [Fourth Circuit] was not called upon to decide, and did not decide, whether ‘unless otherwise permitted’ means that states must ‘opt-out’ or 'opt-in' to Congress's grant of the private right of action”). Significantly, the Fourth Circuit never noted the opt-in/opt-out dichotomy. In any event, it is not at all clear that International Science supports an "opt-out” interpretation, as language in the opinion can as well be read to support an "opt-in” interpretation. Int’l Sci., 106 F.3d at 1150-52 (stating state-court jurisdiction over private suits is "subject to their consent,” and that private actions may be brought in state court "so long as the states allow such actions”).