author: WILLIAM C. KOCH, JR., P.J., M.S.,

text:
    In re M.O.
    Court of Appeals of Tennessee, at Nashville.
    Feb. 9, 2005 Session.
    Feb. 25, 2005.
    Permission to Appeal Denied by Supreme Court May 16, 2005.

      Aubrey L. Harper, McMinnville, Tennessee, for the appellant, L.O.R.
    Paul G. Summers, Attorney General and Reporter, and Pamela A. Hayden-Wood, Senior Counsel, for the appellee, Tennessee Department of Children’s Services.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

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

This appeal involves the termination of a biological father’s parental rights with regard to his nine-year-old daughter. After determining that the child had been sexually abused by her father, the Tennessee Department of Children’s Services filed a petition in the Circuit Court for Grundy County seeking to terminate the father’s parental rights. Following a bench trial, the trial court determined that the father had committed severe child abuse and that his daughter’s interests would be best served by terminating his parental rights. The father asserts on this appeal that the Department failed to present clear and convincing evidence that he had committed severe child abuse. We have determined that the record contains clear and convincing evidence that the father committed severe child abuse and that terminating his parental rights is in his daughter’s best interests.

I.

F.E.T. gave birth to M.O. on December 12, 1994. F.E.T. was not married to her daughter’s biological father, L.O.R., and so she took sole custody of the child. However, two years later, F.E.T. surrendered custody of M.O. to the Tennessee Department of Children’s Services after allegations of child abuse surfaced. Within six months of the child’s removal from F.E.T.’s custody, L.O.R. obtained custody of M.O.

M.O. lived with L.O.R. and two of his brothers in a double-wide trailer. The trailer had three bedrooms, one of which was used for storage. L.O.R. and M.O. shared one bedroom, and L.O.R.’s brothers shared the second bedroom. A babysitter cared for M.O. during the week. L.O.R. would bring M.O. to the babysitter in the morning, and the babysitter would take the child to school, pick her up after school, and care for her until L.O.R. picked her up at the end of the day. L.O.R. kept M.O. on the weekends; however, the babysitter would occasionally care for M.O. on Saturday.

M.O. began to have difficulties at school as she grew older. Her abilities to learn and communicate appeared to be severely impaired. Her teachers were initially uncertain whether M.O.’s problems stemmed from the fact that English was her second language or from some more serious learning disability. Over time, most came to believe that M.O. had a learning disability. After M.O. was forced to repeat kindergarten, extensive testing confirmed that she was functioning at the level of a three-year-old. To add to their concerns, M.O.’s teachers suspected that she had an eating disorder and eventually began to suspect that she had also been sexually abused.

In early August 2002, M.O.’s teachers shared their concerns with the Tennessee Department of Children’s Services. After interviewing M.O.’s teacher and babysitter, the Department’s investigators conducted separate interviews of L.O.R. and M.O. at its offices on August 22, 2002. L.O.R. brought an interpreter to the interview, and he was accompanied by his two brothers. The Department also arranged for its own interpreter.

During her interview, M.O. revealed that she and L.O.R. shared the same bed. She also stated that she and her father took showers together and that he ejaculated on her head during these showers. She also described how L.O.R. would touch her breasts when they were playing. When the investigators asked M.O. to explain some marks on her legs, she laid on the floor, spread her legs, and stated that L.O.R. would touch her and hurt her with his cowboy boots. During his interview, L.O.R. at first admitted that he shared a bed with M.O. but later insisted that he slept on the floor beside her bed. He also agreed that M.O. had an eating disorder and that she had difficulty sleeping at night.

On September 17, 2002, M.O. was interviewed by a forensic interviewer in Chattanooga. During this interview, M.O. provided additional details about L.O.R.’s activities during their showers together. She was also able to identify male and female sexual organs and to explain in some detail what happens when a man and a woman have sexual intercourse. A physical examination conducted after the interview confirmed that M.O. had a vaginal infection. Based on this information, the Department determined that M.O. should be removed from L.O.R.’s custody.

Two Department employees, a police officer, and an interpreter went to L.O.R.’s trailer to inform him of the decision to remove M.O. from his custody. Upon learning of the Department’s decision, L.O.R. became extremely angry. He insisted that the Department was responsible for M.O.’s abuse and that little girls could lose their virginity by falling down. When the Department’s employees inspected the trailer, they found no indication, like a pallet or sleeping bag, that L.O.R. slept on the floor in M.O.’s bedroom. They also observed that none of the rooms looked like a little girl’s room and that there were no toys in the trailer.

The Department placed M.O. in a foster home after removing her from L.O.R.’s custody. The foster mother was not informed of the allegations of sexual abuse by L.O.R. However, M.O.’s foster mother soon began to observe the child engaging in unusual, sexually-oriented behavior. She fondled herself, and she refused to take a bath by herself because she explained that her father would bathe with her. M.O. also had several instances of bed wetting, refusing to use the restroom by herself, and being unable to dress herself.

One particularly disturbing event involved a framed photograph of M.O., her father, and one of her father’s brothers that M.O.’s foster mother gave to her. Within one day after she gave M.O. the picture, the foster mother discovered that the little girl had taken the picture out of the frame and had scratched out her face and her uncle’s pelvic area. When asked why she had defaced the picture, M.O. told her foster mother about an incident when she and her uncle were in his bedroom naked, he was showing her his “private parts,” and they were touching each other. L.O.R. discovered them, and M.O. began to cry because she thought she was in trouble. However, according to M.O., her father walked over to the bed, patted her on the head, told her that it was okay, and then left the room.

M.O.’s behavior appeared to improve as time passed; however, she seemed to have setbacks whenever L.O.R. visited her. On one occasion, L.O.R. questioned M.O.’s foster mother’s decision to permit her to use the bathroom by herself. After L.O.R. whispered something to M.O., the child refused to bathe herself, to use the restroom alone, or to sleep without a light on. Eventually, M.O. was required to leave her foster home after she began cutting herself at school.

M.O. was hospitalized in Chattanooga in February 2003. Her treating physicians determined that she had severe developmental and emotional delays. She was also psychotic and depressed at times and often engaged in severe self-mutilation and self-stimulation. Her conduct was consistent with someone who had been sexually traumatized. M.O. frequently talked about sexual abuse by her father and her two uncles. She never named anyone else as an abuser.

While M.O. was hospitalized, the Department arranged for visitations by her father and her babysitter. The Department permitted M.O. to stay with her babysitter for a few days at a time but permitted L.O.R. to have only supervised visitation. The Department soon discontinued L.O.R.’s visits because the hospital staff observed a significant increase in self-stimulating conduct after M.O. spent time with her father.

On December 28, 2003, the Department filed a petition in the Circuit Court for Grundy County to terminate L.O.R.’s parental rights. During a hearing in March 2004, both the Department’s and L.O.R.’s experts agreed that M.O. was the victim of sexual abuse, but they could not identify the perpetrator or perpetrators. All the witnesses agreed that M.O. had never accused anyone other than her father and his two brothers of sexual abuse. L.O.R. denied any involvement in or knowledge of sexual abuse. He admitted that he showered with his daughter, but he explained that he was simply trying to teach her to bathe. He also refused to believe that M.O. had stated that she had been sexually abused and minimized the seriousness of his daughter’s developmental delays and psychological condition. He expressed an unwillingness to seek help for M.O. because of his distrust of physicians and the government and insisted that the government was responsible for any abuse that M.O. had suffered.

On September 9, 2004, the trial court filed an order terminating L.O.R.’s parental rights with regard to M.O. The court concluded that L.O.R. had committed severe child abused as defined in Tenn.Code Ann. § 37-l-102(b)(21)(B) (Supp.2004) and that terminating L.O.R.’s parental rights was in M.O.’s best interests under Tenn. Code Ann. § 36-l-113(i)(6), (7) (Supp. 2004). L.O.R. has appealed. He argues that the Department failed to prove by clear and convincing evidence that M.O. had been sexually abused. He also insists that he and M.O. have a positive relationship and that it is not in her best interests to terminate that relationship. Finally, he argues that the Department failed to make reasonable efforts to reunite him with M.O.

II.

The Standaeds FoR Reviewing Termination Orders

A biological parent’s right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2059-60, 147 L.Ed.2d 49 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn.1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn.Ct.App.2001). While this right is fundamental and superior to the claims of other persons and the government, it is not absolute. State v. C.H.K., 154 S.W.3d 586, 589 (Tenn.Ct.App.2004). It continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.2002); In re S.M., 149 S.W.3d 632, 638 (Tenn.Ct.App.2004); In re M.J.B., 140 S.W.3d 643, 652-53 (Tenn.Ct.App.2004).

Termination proceedings in Tennessee are governed by statute. Parties who have standing to seek the termination of a biological parent’s parental rights must prove two things. First, they must prove the existence of at least one of the statutory grounds for termination. Tenn.Code Ann. § 36-1-113(c)(1); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003); Jones v. Garrett, 92 S.W.3d at 838. Second, they must prove that terminating the parent’s parental rights is in the child’s best interests. Tenn.Code Ann. § 36-1-113(c)(2); In re AW., 114 S.W.3d 541, 545 (Tenn.Ct.App.2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn.Ct.App.2000); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App.1998).

No civil action carries with it graver consequences than a petition to sever family ties irretrievably and forever. Tenn.Code Ann. § 36—1—113(i)(1); M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 565, 136 L.Ed.2d 473 (1996); In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1917); In re D.D.K., No. M2003-01016-COA-R3-PT, 2003 WL 23093929, at *8 (Tenn.Ct.App. Dec.30, 2003) (No Tenn. R.App. P. 11 application filed). Because the stakes are so profoundly high, Tenn. Code Ann. § 36-1-113(c)(1) requires persons seeking to terminate a biological par ent’s parental rights to prove the statutory grounds for termination by clear and convincing evidence. This heightened burden of proof minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d at 622. Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn.Ct.App.Aug. 13, 2003) (No Tenn.R.App. P. 11 application filed), and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002); In re S.M., 149 S.W.3d at 639; In re J.J.C., 148 5.W.3d 919, 925 (Tenn.Ct.App.2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn.Ct.App.2002); Ray v. Ray, 83 S.W.3d at 733; In re C.W.W., 37 S.W.3d at 474.

Because of the gravity of their consequences, proceedings to terminate parental rights require individualized decision making. In re Swanson, 2 S.W.3d at 188. Accordingly, Tenn.Code Ann. § 36-l-113(k) explicitly requires courts terminating parental rights to “enter an order which makes specific findings of fact and conclusions of law” whether they have been requested to do so or not. In re S.M., 149 S.W.3d at 639; In re 140 S.W.3d at 653-54. These specific findings of fact and conclusions of law facilitate appellate review and promote just and speedy resolution of appeals. When a lower court has failed to comply with Tenn. Code Ann. § 36—1—113(k), the appellate courts must remand the case with directions to prepare the required findings of fact and conclusions of law. In re D.L.B., 118 S.W.3d at 367; In re K.N.R., No. M2003-01301-COA-R3-PT, 2003 WL 22999427, at *5 (Tenn.Ct.App. Dec.23, 2003) (No Tenn.R.App. P. 11 application filed).

The heightened burden of proof required by TenmCode Ann. § 36-1-113(c)(1) requires us to adapt Tenn. R.App. P. 13(d)’s customary standard of review for cases of this sort. First, we must review the trial court’s specific findings of fact de novo in accordance with Tenn. R.App. P. 13(d). Thus, each of the trial court’s specific factual findings will be presumed to be correct unless the evidence preponderates otherwise. Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements required to terminate a biological parent’s parental rights. Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 548-49; In re S.M., 149 S.W.3d at 640; In re M.J.B., 140 S.W.3d at 654).

III.

The Adequacy of the Department’s Evidence

L.O.R.’s principal argument on this appeal is that the Department failed to present clear and convincing evidence that he has engaged in conduct amounting to severe child abuse. The argument appears to rest on two assumptions. The first is that the probative value of the evidence is somehow undermined by the manner in which it was obtained. The second is that the clear and convincing burden of proof cannot be satisfied with circumstantial evidence. L.O.R. is wrong on both counts.

The challenges regarding the manner in which the Department investigated this case are quite vague. L.O.R. does not point to any specific constitutional principle, statute, or common-law rule that the Department violated in the process of gathering information after it received the referral from M.O.’s teachers. He simply complains that the Department should not have relied so heavily on M.O.’s statements during her initial interview in reaching the conclusion that he had sexually abused his daughter. We find nothing in the circumstances depicted in this record that reasonably calls into question the Department’s conclusion that M.O. was telling the truth about what her father was doing to her.

L.O.R.’s argument regarding the weight of circumstantial evidence also lacks merit. The law does not distinguish between direct evidence and circumstantial evidence as far as probative value is concerned. Direct and circumstantial evidence is equally relevant, Neil P. Cohen et al., Tennessee Law of Evidence § 4.01[5], at 4-10 (4th ed.2000), and equally probative. See, e.g., State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App.1999); State v. Marsh, 278 Kan. 520, 102 P.3d 445, 450 (2004); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, 502 (1991); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475, 481 (2004); see also 1A John H. Wigmore, Evidence § 26 (Tillers rev.1983). According ly, litigants may prove any material fact by direct or circumstantial evidence or a combination of both, State v. Phillips, 138 S.W.3d 224, 230 (Tenn.Ct.App.2003); Brown v. Daly, 83 S.W.3d 153, 160 (Tenn.Ct.App.2001), and in certain situations, circumstantial evidence may be more convincing than direct evidence. United States v. Robinson, 177 F.3d 643, 648 (7th Cir.1999); Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 731 (Tenn.Ct.App.2001). Based on these principles, at least one court has explicitly held that circumstantial evidence may be used to satisfy the clear and convincing evidence burden of proof in parental termination cases. In re Juvenile Appeal (85-2), 3 Conn.App. 184, 485 A.2d 1362, 1368 (1985).

The Department’s evidence regarding the grounds for terminating L.O.R.’s parental rights is largely circumstantial. This is not surprising because abusive acts are rarely performed in public and because sexual predators rarely confess their guilt. The key elements of the Department’s case consisted of: (1) the testimony of six of the Department’s employees and M.O.’s foster mother recounting M.O.’s statements regarding her father’s and her uncle’s sexual conduct; (2) L.O.R.’s concession that he showered with his daughter without any credible reason for doing so; (3) L.O.R.’s inconsistent statements regarding his daughter’s sleeping arrangements, coupled with the lack of corroborating evidence that he slept on the floor next to his daughter’s bed; (4) the photographs of M.O. at age seven in which she is wearing only panties despite her physical maturation; (5) the opinions by both parties’ experts that M.O. had been sexually abused; (6) the testimony of M.O.’s foster mother, the Department’s employees, and M.O.’s care givers at the hospital in Chattanooga describing M.O.’s acts of self-stimulation following visits with her father; (7) M.O.’s knowledge of human sexual organs and the mechanics of sexual acts that was far beyond the common knowledge of children her age; and (8) L.O.R.’s incredible assertions that young girls lose their virginity simply by falling down and that unknown government agents were actually the ones who sexually abused his daughter.

We have reviewed this record carefully and dispassionately. The conclusion we draw — the only conclusion that reasonable persons could draw — is that the Department presented clear and convincing evidence that L.O.R. has committed severe child abuse, not only by engaging in sex acts with his daughter, but also by failing to protect his daughter from the sexual conduct of his brothers. We reject L.O.R.’s effort to excuse or explain his conduct based on cultural differences. No civilized country would countenance the sort of conduct that L.O.R. engaged in with his daughter. Accordingly, we affirm the trial court’s conclusion that the Department presented clear and convincing evidence sufficient to establish that L.O.R. committed severe child abuse in violation of TenmCode Ann. § 37-l-102(b)(21)(B).

IV.

The Child’s Best InteRests

L.O.R. also asserts that the Department failed to make reasonable efforts to reunite him with M.O. and that terminating his parental rights is not in M.O.’s best interests. He asserts that the Department, notwithstanding its obligation to keep families together, removed M.O. from his custody with no intention to make any reunification efforts and that the parental relationship between him and M.O. should not be severed. We disagree with both assertions.

Children should be removed from their parents’ custody only as a last resort and only when the removal is necessary to protect their safety and welfare. Once the Department separates a child from his or her parents, it must, as a general matter, make reasonable efforts to make it possible for the child to return home. In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *6 (Tenn.Ct.App. Mar.9, 2004) (No Tenn.R.App. P. 11 application filed). However, the Department is not required to reunify a child with his or her parents if reunification would endanger the child’s health or safety. Tenn.Code Ann. § 37—1—166(g)(1) (2001).

M.O. was removed from L.O.R.’s custody because of her complaints that L.O.R. had sexually abused her. When the Grundy County Juvenile Court found that M.O. was dependent and neglected, the court explicitly determined that the Department had made reasonable efforts not to remove M.O. from L.O.R.’s custody and that returning M.O. to L.O.R.’s home was not “a viable option” in light of her testimony. Accordingly, even though the juvenile court stopped short of finding that L.O.R. had committed severe abuse, the Department’s decision not to aggressively pursue reunification of M.O. and L.O.R. was reasonable under the circumstances.

Determining whether terminating a parent’s parental rights is in a child’s best interests is a factually driven inquiry requiring the consideration of the factors in Tenn.Code Ann. § 36 — 1—113(i). Tenn. Code Ann. § 36 — 1—113(i)(6) provides that terminating parental rights is in a child’s best interests when the parent has sexually abused the child. In light of its conclusion that L.O.R. had committed severe child abuse on M.O., the trial court was certainly justified in determining that M.O.’s interests would be best served by terminating L.O.R.’s parental rights. There is, in fact, no evidence to the contrary.

y.

We affirm the September 9, 2004 judgment terminating L.O.R.’s parental rights and remand the case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to L.O.R. and his surety for which execution, if necessary, may issue.

      . For a short period of time, another one of L.O.R.’s brothers also lived in the trailer.

      . M.O. remained hospitalized until February 2, 2004. She was readmitted one month later in March 2004.

      . After her first visit with her father, the hospital staff observed M.O. placing her vagina over the water jets in the pool while she was swimming. She refused to stop and started screaming when she was removed from the pool. After another visit, M.O. was found in the hospital bathroom scrubbing her vaginal area with a toothbrush. On another occasion after a visit, M.O. was found rubbing her vagina on a tree in the hospital playground.

      .This right exists notwithstanding the marital status of the child’s biological parents where a biological parent has established or is attempting to establish a relationship with the child. Lehr v. Robertson, 463 U.S. 248, 262, 103 S.Ct. 2985, 2993-94, 77 L.Ed.2d 614 (1983); In re D.A.H., 142 S.W.3d 267, 274 (Tenn.2004); Jones v. Garrett, 92 S.W.3d 835, 840 (Tenn.2002); In re Swanson, 2 S.W.3d 180, 188 n. 12 (Tenn.1999). The right also extends to adoptive parents. Simmons v. Simmons, 900 S.W.2d 682, 684 (Tenn.1995).

      .U.S. Const, amend. XIV, § 1; Tenn. Const, art. I, § 8.

      . The statutory grounds for terminating parental rights are found in Tenn.Code Ann. § 36-1-113(g) (Supp.2004).

      . The factors to be considered in a "best interests" analysis are found in Tenn.Code Ann. § 36 — 1—113(i).

      . These decisions draw a distinction between specific facts and the combined weight of these facts. Tenn. R.App. P. 13(d) requires us to defer to the trial court's specific findings of fact as long as they are supported by a preponderance of the evidence. However, we are the ones who must then determine whether the combined weight of these facts provides clear and convincing evidence supporting the trial court's ultimate factual con-elusion. The Tennessee Supreme Court used this approach in In re Valentine when it recognized the difference between the conclusion that a biological parent had not complied substantially with her obligations in a permanency plan and the facts relied upon by the trial court to support this conclusion. In re Valentine, 79 S.W.3d at 548-49; see also Jones v. Garrett, 92 S.W.3d at 838-39.

      . These statements were consistent over time, and M.O. never implicated anyone other than her father and her uncles.

      . L.O.R. testified that he showered with his daughter because no adult female was available to teach her to bathe. This explanation did not account for the fact that M.O. spent much of her time with a female babysitter who could have taught her to bathe. It likewise fails to explain why L.O.R. could not have taught his daughter to bathe without actually taking a shower with her.

      .The photographs were taken by M.O.’s mother who visited L.O.R.’s trailer from time to time.

      . Tenn.Code Ann. § 37-l-166(g)(4)(A) provides that the Department need not attempt to reunify a child with his or her parents if a court has determined that the parents subjected the child to severe child abuse. In its February 6, 2003 order finding M.O. to be dependent and neglected, the juvenile court stopped short of finding that L.O.R. had committed severe child abuse. Accordingly, the Department cannot take advantage of the exception in Tenn.Code Ann. § 37-1-166(g)(4)(A).


source: Caselaw Access Project

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

license: Public Domain

text:
    In re ESTATE OF Frank SOARD.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Sept. 21, 2004 Session.
    Feb. 28, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 29, 2005.

      Robert N. Goddard, Maryville, TN, for Appellant.
    Martha S.L. Black, Maryville, TN, for Appellee.
   CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

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

OPINION

This case involves a dispute between a widow and the personal representative of her husband’s estate. The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the statute setting forth the criteria pursuant to which a surviving spouse’s elective share is computed. The trial court adopted the estate’s construction of the statute and subtracted the widow’s exempt property, homestead allowance, and year’s support allowance from the value of her percentage share of the net estate in arriving at the elective-share amount to which she is entitled. We disagree with the trial court’s interpretation of the statute. Accordingly, we reverse the judgment of that court.

I.

The parties filed a stipulation of material facts in the trial court. The stipulation provides, in pertinent part, as follows:

Frank Soard died on the 14th day of July, 2003.
Frank Soard was survived by his wife, Sarah Soard, whom he had married on the 24th day of June, 1995.
The Parties agreed that pursuant to [Tenn.Code Ann.] § 30-2-209, Sarah Soard is entitled to payment of $5,000.00 for Homestead.
The Parties agreed that pursuant to [Tenn.Code Ann.] § 30-2-102, Sarah Soard is entitled to [a] Year’s Support in the amount of $13,656.00.
The Parties agreed that pursuant to [Tenn.Code Ann.] § 30-2-101, Sarah Soard is entitled to $37,848.92 in Exempt Property.
Inasmuch as Frank and Sarah Soard had been married more than six years but less than nine years, the Parties agreed that Sarah Soard was entitled to an Elective Share of Thirty Percent (30%) of the net estate as set out in [Tenn.Code Ann.] § 31-4-101(a).
Pursuant to [Tenn.Code Ann.] § 31 — 4-101(b), the Parties agreed to the following determination of the net estate as of November 11, 2003, the Parties acknowledging, however, that the administrative expenses are subject to increase based on attorneys fees and expenses incurred in this Elective Share litigation:
Gross Estate $872,253.32
Less:
ORNL Mortgage $29,408.23
Funeral and Admin. Exp. 78,795.27
Exempt Property 37,848.92
Homestead 5,000.00
Year’s Support 13,656.00 164,708.42
Net Estate $707,544.90
30% of Net Estate $212,263.47
After determining Thirty Percent (30%) of the net estate as set out in [Tenn. Code Ann.] § 31-4-101(a) and (b), the Parties agreed that said maximum Elective Share amount is $212,263.47, but the Parties disagreed as to how that amount is to be reduced pursuant to [TenmCode Ann.] § 31-4-101(c).

(Paragraph numbering in original omitted). Although not a part of the parties’ written stipulation, it is abundantly clear from the record that Ms. Soard filed a petition for an elective share.

II.

Tenn.Code Ann. § 31-4-101, as it existed at the time of Mr. Soard’s death, ie., July 14, 2003, provides as follows:

(a)(1) The surviving spouse of an intestate decedent, or a surviving spouse who elects against a decedent’s will, has a right of election, unless limited by subsection (c), to take an elective-share amount equal to the value of the decedent’s net estate as defined in subsection (b), determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the surviving spouse were married to each other:
The elective-share percentage is:
less than 3 years 10% of the net estate
3 years but less than 6 years 20% of the net estate
6 years but less than 9 years 30% of the net estate
9 years or more 40% of the net estate
(2) For purposes of determining the total number of years to be applied to the computation provided in this subsection, the number of years persons are married to the same person shall be combined. The years do not have to be consecutive, but may be separated by divorce. All years married shall be counted toward the total number of years for purposes of this section.
(b) The value of the net estate includes all of the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession, reduced by the following: secured debts to the extent that secured creditors are entitled to realize on the applicable collateral, funeral and administration expenses, and award of exempt property, homestead allowance and year’s support allowance.
(c) After the elective-share amount has been determined in accordance with the foregoing subsections (a) and (b), the amount payable to the surviving spouse by the estate shall be reduced by the value of all assets includable in the decedent’s gross estate which were transferred, or deemed transferred, to the surviving spouse or which were for the benefit of the surviving spouse. For purposes hereof, the decedent’s gross estate shall be determined by the court in the same manner as for inheritance tax purposes pursuant to [Tenn.Code Ann.] §§ 67-8-301 et seq., except that the value of any life estate or trust for the lifetime benefit of the surviving spouse shall be actuarially determined. (d) The elective-share amount payable to the surviving spouse is exempt from the claims of the unsecured creditors of the decedent’s estate.

(Emphasis added). For ease of reference, we will hereinafter sometimes refer to this statute as “the elective-share statute” or “the current elective-share statute.”

III.

The issue before us can be simply stated as follows:

Does the “reduction” language set forth in subsection (c) of Tenn.Code Ann. § 31-4-101 — “the amount payable to the surviving spouse by the estate shall be reduced by the value of all assets includable in the decedent’s gross estate which were transferred, or deemed transferred, to the surviving spouse or which were for the benefit of the surviving spouse” — contemplate the deduction, from a surviving spouse’s percentage share of the net estate, of the value of the surviving spouse’s exempt property, homestead allowance, and year’s support allowance?

The trial court held that “subsection (c) precisely states that all assets includable in the decedent’s gross estate which are payable to the surviving spouse must be credited against the maximum [ejlective [sjhare to determine the actual amount of the [ejlective [sjhare payable to the surviving spouse.” In its order, the trial court concluded that

based [upjon the clear language of [Tenn.Code Ann.] § 31 — 4—101(c), the amounts paid to the surviving spouse for [hjomestead, [yjear’s [sjupport and [ejx-empt [pjroperty, as assets included in the decedent’s gross estate, are sums which must be credited against the maximum amount available as an [ejlective [sjhare to determine the amount “payable” to the surviving spouse.

As far as we can determine, this case presents a question of first impression.

Since the material facts are not in dispute, our de novo review is one of law and, hence, unburdened by a presumption of correctness as to the trial court’s judgment. Southern Constructors, Inc. v. Loudon Co. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

IV.

In the instant case, the parties stipulate that the gross estate is valued at $872,253.32. However, they do not identify the component parts of the “gross estate.” Furthermore, there is nothing in the other parts of the record which sets forth with specificity the items included within this concept. However, since the “gross estate” stipulation reflects that it is made “[pjursuant to [Tenn.Code Ann.] § 31 — 4—101(b),” we assume that this starting-point number of $872,253.32 comprises, in the words of the aforesaid statutory provision, the value of “all of the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession.” It is clear that this language contemplates assets that pass in probate and not those that pass outside of probate.

The parties further stipulate — again pursuant to TenmCode Ann. § 31-4-101(b) — that the value of the “net estate” is $707,544.90. They also agree that the maximum elective-share amount, determined in accordance with subsections (a) and (b) of the elective-share statute, is $212,263.47. Finally, they stipulate that subsection (c) of the elective-share statute requires that Ms. Soard’s elective-share amount be reduced by the following items:

Social Security Payment $ 250.00
VA Death Benefit 600.00
Joint Assets Passing Outside Probate 20,891.82
Total $21,741.82

We now reach the point of the parties’ very sharp disagreement. The estate argues that, even though Ms. Soard’s award of exempt property, homestead allowance, and year’s support allowance have already been subtracted from the value of “the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession” as a part of the computation of the net estate under subsection (b) of the elective-share statute, these three items must be subtracted again, this time from the value of the widow’s percentage share of the net estate, in order to arrive at the elective-share amount payable to the surviving spouse. The estate maintains that the further deduction of these three statutory entitlements is mandated by subsection (c) of the elective-share statute.

V.

The effect of the parties’ disagreement in monetary terms is illustrated thusly:

Widow’s Estate’s Computation Computation
$212,263.47 $212,263.47 Elective-share amount per subsections (a) & (b)
21,741.82 21,741.82 Less: Agreed-upon deductions
$190,521.65 $190,521.65
N/A 56,504.92 Less: Widow’s Exempt Property, Homestead, and Year’s Support
$190,521.65 $134,016.73 Elective-Share Amount due Widow

VI.

Ms. Soard argues that the critical language in subsection (c) of the elective-share statute pertains to assets that are transferred to a surviving spouse outside the estate. She points to language in our case of In re Estate of Morris, 104 S.W.3d 855 (Tenn.Ct.App.2002), which she claims is supportive of her position. She also relies upon an illustration of how the elective-share statute is applied as found in 18 Albert W. Secor, Tennessee Practice: Tennessee Probate § 10.5 (2d ed.2002). She notes that in neither authority is mention made of subtracting exempt property, homestead or the year’s support allowance from the surviving spouse’s percentage share of the net estate.

The widow further argues that the estate’s interpretation of the statute runs afoul of well-established rules of statutory construction. She contends that to construe the statute as requiring the deduction twice of the aforesaid three items “would frustrate the purpose of the legislation.” She argues that the interpretation placed on the statute by the estate renders this legislative enactment “absurd, unjust or futile.” Finally, the widow argues that the double deduction of these three items “would not be sensible, would work a manifest inconvenience, would produce an absurd result and would be unjust.”

VII.

The estate counters by pointing out that the “reduction” concept embodied in subsection (c) of the elective-share statute was not in the elective-share statute in effect prior to the amendments effective January 1, 1998. Those amendments deleted the earlier version of the elective-share statute in its entirety. The estate reads the language of subsection (c) broadly to mean, in the language of the estate’s brief, that there is a credit against the surviving spouse’s percentage share of the net estate for “all items in the gross estate that the spouse otherwise receives.” The estate notes that subsection (c) of the elective-share statute expressly provides that the “gross estate,” as that concept is used in that subsection, “shall be determined by the court in the same manner as for inheritance tax purposes.” TenmCode Ann. § 31-4-101(c). The estate contends that exempt property, homestead and a year’s support are not excluded from the gross estate for inheritance tax purposes. In support of this argument, the estate relies upon the provisions of TenmCode Ann. § 67-8-303 (2003), a section of the inheritance tax statutory scheme describing the types of property subject to that tax. As can be seen, the property which is subject to the tax is broadly stated and does not contain an express exclusion for exempt property, homestead and a year’s support. The estate argues that subsection (c) is unambiguous, and that our obligation is to enforce its provisions regardless of how we feel about the justice of its application to the facts of the case at bar.

VIII.

In this case, we are called upon to interpret and apply the provisions of the elective-share statute. In Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn.2004), the Supreme Court recited many of the general principles pertaining to statutory construction:

Issues of statutory construction are questions of law that this Court reviews de novo without any presumption of correctness.
Our duty in construing statutes is to ascertain and give effect to the intention and purpose of the legislature. “ ‘Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.’ ”
When the statutory language is clear and unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute’s application. Where an ambiguity exists, we must look to the entire statutory scheme and elsewhere to ascertain the legislative intent and purpose. The statute must be construed in its entirety, and it should be assumed that the legislature used each word purposely and that those words convey some intent and have a meaning and a purpose. The background, purpose, and general circumstances under which words are used in a statute must be considered, and it is improper to take a word or a few words from its context and, with them isolated, attempt to determine their meaning.

Id. at 506-07 (citations omitted). In construing legislation, courts must harmonize, if possible, all parts of the legislature’s enactment. See Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968) (“A statute should be construed, if practicable, so that its component parts are consistent and reasonable.... Inconsistent phrases are to be harmonized, if possible, so as to reach the legislative intent.”). See also State v. Netto, 486 S.W.2d 725, 729 (Tenn.1972).

“A construction will be avoided, if possible, that would render one section of the act repugnant to another. Or one that would produce an absurd result.” Tenn. Elec. Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937) (citations omitted). See also Turner v. Eslick, 146 Tenn. 236, 240 S.W. 786, 789 (1922).

“When the legislature enacts provisions of a uniform or model act without significant alteration, it may be generally presumed to have adopted the expressed intention of the drafters of that uniform or model act. However, when the legislature makes significant departures from the text of that uniform act, we must likewise presume that its departure was meant to express an intention different from that manifested in the uniform act itself.” Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 713-14 (Tenn.2002) (citations omitted).

IX.

Our interpretation of the current version of the elective-share statute begins with a look back at the prior version of that statute. Before January 1, 1998, the elective-share statute in Tennessee provided as follows:

(a) A decedent’s surviving spouse has the right to elect to take an elective share. The elective share is one third (1/3) of the decedent’s net estate as defined in subsection (b). The right to elect an elective share is available to the surviving spouse of an intestate decedent and a testate decedent if the surviving spouse elects against the decedent’s will. When the elective share is determined, it is exempt from the unsecured debts of the decedent incurred after April 1, 1977. In determining the elective share, it is not reduced by any estate or inheritance taxes.
(b) The net estate includes all of the decedent’s real and personal property subject to disposition under the terms of the decedent’s will or the laws of intestate succession reduced by funeral and administration expenses, homestead, exemptions and year’s support.

Tenn.Code Ann. § 31-4-101 (repealed effective January 1, 1998, by 1997 Tenn. Pub. Acts 426, § 17).

Under the earlier version of the statute, the method of calculating the surviving spouse’s elective share was clear and relatively simple to apply. A surviving spouse had an absolute right “to elect to take an elective share.” Once the election was made, the surviving spouse, regardless of the length of his or her marriage to the decedent, was entitled to one-third of a relatively well-defined concept, i.e., the value of the real and personal property that passes under the decedent’s will or the laws of intestate succession reduced by funeral and administration expenses, homestead, exempt property, and a year’s support allowance. There were no further reductions.

In 1995, the 99th Tennessee General Assembly adopted House Joint Resolution No. 223 appointing a Special Joint Commission whose charge was to “[s]tudy all aspects of the probate law in Tennessee with a view towards adopting the Uniform Probate Code by revising, updating, and clarifying the law so that it may give clear and consistent guidance to those using it and those affected by the law in order to ensure, to the extent possible, the uniformity of probate law from any legal uncertainties related to this important process; and [rjecommend legislation to effect the above goals.” (Numbering in original omitted). The commission was directed to file “the report of its findings and any recommendations concerning legislation, with the 99th General Assembly no later than December 15,1995.”

As directed by the General Assembly, the commission filed a report setting forth its fact-finding process, its decision-making process, and its recommendations. The report notes that the commission found “little or no public support for the adoption of the Uniform Probate Code in its entirety.” At another point in the report, the commission noted that it “decided that a wholesale revision of the probate law at this time is unnecessary and that the Uniform Probate Code, which also covers fields other than those typically considered to be of a probate nature, should not be adopted as a whole for various reasons.”

The commission made 15 numbered recommendations, one of which is the following:

To modernize the elective share for surviving spouses to take into account the length of the marriage and to redefine how the amount is ascertained.

Its recommendations were, in the language of the report, “incorporated into a draft of a legislative bill which accompanie[d][the] report.”

By Chapter 426, Public Acts of 1997, the General Assembly, without discussion, adopted verbatim that portion of the proposed legislation dealing with a surviving spouse’s elective share by deleting the pri- or elective-share statute in its entirety and by substituting the current version of the elective-share statute. As previously noted, the new version became effective January 1, 1998, and applies to all estates of decedents dying on or after that date.

The current version of the elective-share statute retains a few of the features of the old statute, i. e., the right to elect is still unconditional; the starting point of the calculation, once the percentage of entitlement is established, is still “the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession”; the value of the aforesaid concept is still reduced by funeral and administration expenses, homestead, exempt property, and the year’s support, before the percentage of entitlement is applied to the balance; and the surviving spouse’s entitlement under the statute is still not subject to the claims of the decedent’s unsecured creditors.

While there are similarities between the two versions, there are striking differences, both in concept and language.

The current version of the elective-share statute replaces the “one size fits all” approach of the old statute — that all surviving spouses were previously entitled to a one-third elective share — with the phased-in approach of the Uniform Probate Code (“the UPC”) under which the percentage amount of a surviving spouse’s elective share increases as the length of the parties’ marriage increases. While adopting the UPC’s approach, the current statute utilizes only four levels of percentage entitlement compared to the 16 levels of the UPC. The current statute does adopt the UPC provision that all years of marriage between the parties are counted even if those periods “may be separated by divorce.”

While the current version of the elective-share statute retains the starting point of “the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession,” the new version, in subsection (b), introduces a new deduction from the concept: “secured debts to the extent that secured creditors are entitled to realize on the applicable collateral.” Tenn.Code Ann. § 31-4-101(b).

As can be seen, the new version of the elective-share statute has significantly changed the method of determining the surviving spouse’s elective-share percentage. Under the new approach, some surviving spouses will receive more than the previous one-third share while others will receive less. While this was a major change introduced by the amendments effective January 1, 1998, it is not the one at issue in the case at bar. That “distinction” belongs to the commission’s recommendation as to “how the [elective-share] amount is ascertained.”

X.

In adopting House Joint Resolution No. 223, the General Assembly was influenced by the 1990 adoption of a new version of the UPC by the National Conference of Commissioners on Uniform State Laws. The underlying theory behind the significant revisions to the elective share sections of the UPC has been described thusly:

In constructing a new elective share, the drafters of the UPC applied two theories, both described in the General Comment to the elective share section of the 1990 UPC. Unif. Prob.Code art. II, pt. 2, gen. cmt. (1993). One theory, the marital partnership theory, views marriage as an economic partnership to which both spouses contribute productive effort. This theory holds that each spouse is entitled to one-half of the economic gains of the marriage. The other theory, the need-based theory, holds that a decedent spouse should provide for the surviving spouse. A married couple’s moral duties to one another, the expectations of the surviving spouse and public concern that the surviving spouse not be left to depend on the state for support form the basis of this theory. Taken together, the two theories establish a duty of spousal support that arises in marriage and continues to some degree after death. Therefore, each spouse has a right to a share of the economic gains of both spouses during the marriage.
To implement the need-based theory, the 1990 UPC creates a supplemental elective share of $50,000. To the extent the elective share, calculated as a percentage of the augmented estate, is less than $50,000, the surviving spouse is entitled to a supplemental elective share equal to the difference. Stated another way, the minimum amount of a spouse’s elective share is $50,000. Because the augmented estate includes the surviving spouse’s assets, the spouse will receive a supplemental elective share only if his or her own assets are less than $50,000. To implement the partnership theory, the 1990 UPC creates an augmented estate that includes property owned and controlled by both spouses — probate property and property passing under will substitutes. The guiding principle of giving each spouse one-half of the marital property made it necessary to look at the assets owned by both spouses and not just property controlled by the decedent. In contrast to the prior UPC, the 1990 UPC makes no exceptions for insurance [,] annuities and pensions.
A difficulty faced by the drafters of the 1990 UPC is that not all property owned by spouses is marital property. A spouse may have inherited property or acquired property before marriage. To avoid a post-death determination of marital and separate property, the drafters devised a phased-in elective share based on the length of the marriage. The goal of this provision was to approximate increased marital sharing and the increased contribution to the acquisition of marital assets as a marriage endures. The drafters concluded that “[bjecause ease of administration and predictability of result are prized features of the probate system,” a “mechanically determined approximation system” makes sense. Unif. Prob.Code art. II, pt. 2, gen. cmt. (1993).

Susan N. Gary, Share and Share Alike? The UPC’s Elective Share, 12 Prob. & Prop. 18, 20 (1998). The author opined as follows regarding the amendments to the Tennessee elective share statute effective January 1,1998:

A law adopted in Tennessee in 1997 borrows concepts from the UPC and uses them to modify what is still essentially a traditional elective share statute. The new Tennessee statute phases in the elective share percentage from 10% for less than three years of marriage to 40% for marriages lasting nine years or more. The percentage is applied to the “net estate,” which the law defines as the probate estate less certain secured debts, funeral and administration expenses and family allowances. Property that the surviving spouse receives, whether probate or nonprobate property, reduces the elective share. It appears that the law will charge disclaimed interests against the surviving spouse because the statute refers to assets “which were transferred, or deemed transferred ... or which were for the benefit of the surviving spouse.” Tenn. Code Ann. § 31-4-101(e)(1997).
The Tennessee statute considers the augmented estate, determined by reference to the Tennessee inheritance tax statute, only to reduce the surviving spouse’s share. If the decedent dies holding only nonprobate assets, the value of the net estate, and thus the elective share, will be zero....

Id. at 22 (emphasis added).

It is clear to us that the changes to the Tennessee elective-share statute effective January 1, 1998, while adopting some of the thrust of the 1990 changes to the UPC elective share provisions, depart from the model act in significant and substantial ways. First, the 1997 amendments did not adopt the UPC’s concept of a minimum elective share stated in monetary terms. It is clear that there is no such monetary minimum share under the current version of our statute. Second, as pointed out in the article just quoted, the current elective-share statute considers the concept of an “augmented estate” to reduce the surviving spouse’s elective share, but continues to use the “net estate” concept in defining the amount to which the surviving spouse’s percentage is applied.

The differences between the current version of the elective-share statute and the provisions of the UPC relating to a surviving spouse’s elective share are so significant as to lead us to conclude that the legislature’s departure “was meant to express an intention different from that manifested in the uniform act itself.” Heirs of Ellis, 71 S.W.3d at 713-14. Therefore, even though it is clear that the Special Joint Commission was directed by the General Assembly to study the probate laws of Tennessee “with a view towards adopting the [UPC],” the commission and later the legislature itself chose not to adopt the expansive and far-reaching language of the UPC as it pertains to the methodology of computing the surviving spouse’s elective share, other than the adoption of the theory of the UPC that the percentage share should be tied to the length of the parties’ marriage. We conclude from this that the intention behind the UPC is of no particular help in determining whether the language of subsection (c) of the elective share statute contemplates the reduction of homestead, exempt property, and year’s support from the surviving spouse’s percentage share of the net estate.

We have discussed the UPC extensively simply because of the General Assembly’s charge to the commission. In view of this charge, we felt it essential to expressly point out that the legislature’s 1997 amendments evidence a general intention to go in a direction other than the one charted by the UPC. For the purposes of illustration and comparison, we have attached a copy of the UPC provisions addressing the surviving spouse’s elective share, as last amended in 1993, as an appendix to this opinion. In the interest of brevity, we have omitted the official comments and illustrations.

XI.

The estate urges us to hold, as did the trial court, that the elective-share statute requires that the surviving spouse’s statutory entitlements to homestead, exempt property, and a year’s support allowance be deducted twice as a part of the computation outlined in the elective share statute, ie., first, in reducing the gross estate passing in probate to arrive at the net estate subject to the surviving spouse’s percentage share, and, second, from the product of the multiplication of the net estate by the surviving spouse’s percentage share. We agree with the widow in this case that such an interpretation leads to an absurd result.

We find ambiguity in the wording of the statute. We note that while the legislature referred to the three statutory entitlements by name in subsection (b), there is no such explicit reference in subsection (c). The fact that the legislature referred to these statutory entitlements by name in subsection (b) clearly shows that they were on the mind of that body when it adopted the 1997 amendments. Query: If the legislature had intended, in subsection (c), to mandate the deduction of these same three items a second time in this continuing statutory computation, why did it not expressly refer to them as it did in subsection (b)? In other words, if the legislature had intended to include these items in the general language of subsection (c), why did it not refer to the decedent’s “gross estate” as “the gross estate, including the surviving spouse’s homestead, exempt property, and a year’s support” or by the use of similar language?

The current version of the elective-share statute is hardly a model of clarity as far as the interplay between subsections (b) and (c) is concerned. While the author quoted earlier in this opinion may be right when she opines that our legislature “borrow[ed] concepts from the UPC and use[d] them to modify what is still essentially a traditional elective[-]share statute,” it is clear to us that the legislature rejected the comprehensive statutory scheme thought to be necessary by the Commissioners on Uniform State Law to effectuate their desire to adopt a “marital partnership theory” and a “need-based theory” in the elective-share concept. By adopting bits and pieces from the earlier version of the elective-share statute as well as concepts from the UPC and then “cutting and pasting” them with some new language into a much shorter version of an elective-share statute, the legislature has created more questions than answers. If the legislature has rejected the UPC’s dual theories mentioned above, either in whole or in part, and we believe it has, what is the theory behind the current version of the elective-share statute? What is the purpose or theory underlying the deduction set forth in subsection (c)? We are left to ponder these and related questions. Assuming that the estate is correct in its interpretation of subsection (c), what is the rationale behind the deduction of the surviving spouse’s statutory entitlements from the maximum elective share after these very same items have already been “cleared out” of the gross estate as a part of the computation leading to the calculation of that same maximum elective-share amount?

We have concluded, and so hold, that the language of subsection (c) of the elective-share statute cannot, consistent with the clear meaning of subsection (b), be read to include homestead, exempt property, and a year’s support.

We believe the reason behind the deduction of the surviving spouse’s statutory entitlements from the gross probate estate under subsection (b) is clear: it is to remove these items from the assets passing in probate before the surviving spouse’s percentage is applied. The deduction at this point in the computation ensures that the surviving spouse does not get these three statutory entitlements plus a percentage of the same items. We believe the deduction at this stage of the statutory computation was intended to avoid “double-dipping.” Thus, the deduction from the probatable assets is reasonable and logical.

We cannot say the same for a subsequent deduction of the same items as a part of what is essentially a continuing statutory computation. Such a deduction, in the overall scheme of things, is illogical and defies explanation. We recognize that it is the prerogative of the legislature to adopt such legislation as it deems appropriate so long as it does not offend a provision of the United States Constitution or the Tennessee Constitution. Certainly, it has the authority to enact legislation which appears on its face to be illogical should it choose to do so. However, we believe that, had the legislature intended to deduct these three items a second time in the same statutory computation, it would have referred to them by name in subsection (c) just as it did in subsection (b).

If one of the purposes behind the current version of the elective-share statute is to reduce the surviving spouse’s elective share to compensate for the surviving spouse’s receipt of homestead, exempt property, and a year’s support, we believe the legislature could have accomplished this objective in one of at least two ways. First, it could have — and we believe it did — construct a computation that removes these items from the gross probatable estate before the surviving spouse’s percentage share is applied. Second, had it chosen not to pursue the foregoing approach in carrying out this presumed objective, it could have structured a computation providing that (a) the percentage share is applied to the gross probatable estate without prior deduction for the statutory entitlements and (b) the result of that computation would then be reduced by the statutory entitlements. It does not make any sense, however, to do the first and then apply a significant variation of the second, resulting in a deduction of these entitlements at the beginning of the computation and then again after the maximum elective share has been determined.

We believe the estate’s interpretation is suspect for another reason. As can be seen from the illustration on page six of this opinion, the widow, having chosen to pursue her right to homestead, exempt property, and a year’s support, would receive, under the approach of the estate and the trial court, an elective share of $134,016.73 plus her three statutory entitlements of $56,504.92 or a total of $190,521.65. If she had chosen not to receive her statutory entitlements, her elective share would have been calculated as follows:

Gross Estate $872,253.32
Less:
ORNL Mortgage $29,408.23
Funeral and Admin. Exp. 78,795.27 108,203.50
Net Estate $764,049.82
30% of Net Estate $229,214.94

Thus, as the estate and the trial court interpreted the statute, the widow would receive more, ie., $229,214.94, if she fore-goes her three statutory entitlements than she would receive, ie., $190,521.65, if she claimed them. We refuse to read the statute in a way that attributes to the General Assembly an intention to discourage a surviving spouse from pursuing homestead, exempt property, and a year’s support, all entitlements granted by that same legislative body.

We have attempted to construe subsections (b) and (c) of the elective-share statute in a way that will harmonize these two provisions. See Marsh, 424 S.W.2d at 196. We believe the only way they can be harmonized is if subsection (c) is read so as not to include the surviving spouse’s homestead, exempt property, and year’s support among the items to be deducted from the surviving spouse’s percentage share of the net estate.

In reaching our decision, we expressly do not rely upon two of the authorities cited by the widow, i.e., In re Estate of Morris, 104 S.W.3d 855 (Tenn.Ct.App.2002), and 18 Albert W. Secor, Tennessee Practice: Tennessee Prohate § 10.5 (2d ed.2002). We do not believe that either of these authorities is implicated by the facts and issue now before us.

We recognize that the “reduction” concept embodied in subsection (c) was not in the elective-share statute prior to January 1, 1998. We also recognize that the concept of the “value of all assets” as found in subsection (c) of the elective-share statute is different from, and more expansive than, the concept of the assets passing through probate as addressed in subsection (b). However, we are not persuaded that the concept in subsection (c) is broad enough to compel, for a second time, the deduction of the surviving spouse’s three statutory entitlements as a part of the statutory computation of the amount of the surviving spouse’s elective share. We specifically hold that the language of subsection (c) was not intended to include, and does not include, the statutory entitlements set forth in TenmCode Ann. §§ 30-2-101 (2001), 30-2-102 (2001), and 30-2-209 (2001). We believe a contrary holding with respect to the statutory entitlements would lead to an absurd result. We decline to go there.

XII.

The judgment of the trial court is reversed. This case is remanded to the court below for further proceedings. Costs on appeal are taxed to the Estate of Frank Soard.

APPENDIX

Uniform Laws Annotated

Uniform Probate Code 1969

Article II. Intestacy, Wills, and Donative Transfers — (Revised 1990 Version)

Part 2. Elective Share of Surviving Spouse

§ 2-201. Definitions.

In this Part:

(1) As used in sections other than Section 2-205, “decedent’s nonprobate transfers to others” means the amounts that are included in the augmented estate under Section 2-205.

(2) “Fractional interest in property held in joint tenancy with the right of survivor-ship,” whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.

(3) “Marriage,” as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent’s surviving spouse.

(4) “Nonadverse party” means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that he [or she] possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

(5) “Power” or “power of appointment” includes a power to designate the beneficiary of a beneficiary designation.

(6) “Presently exercisable general power of appointment” means a power of appointment under which, at the time in question, the decedent, whether or not he [or she] then had the capacity to exercise the power, held a power to create a present or future interest in himself [or herself], his [or her] creditors, his [or her] estate, or creditors of his [or her] estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.

(7) “Probate estate” means property that would pass by intestate succession if the decedent died without a valid will.

(8) “Property” includes values subject to a beneficiary designation.

(9) “Right to income” includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.

(10) “Transfer,” as it relates to a transfer by or of the decedent, includes (A) an exercise or release of a presently exercisable general power of appointment held by the decedent, (B) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (C) an exercise, release, or lapse of a general power of appointment that the decedent created in himself [or herself] and of a power described in Section 2-205(2)(ii) that the decedent conferred on a nonadverse party.

§ 2-202. Elective Share.

(a)[Elective-Share Amount.] The surviving spouse of a decedent who dies domi-died in this State has a right of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse
were married to each other: The elective-share percentage is:
Less than 1 year Supplemental Amount Only.
1 year but less than 2 years 3% of the augmented estate.
2 years but less than 3 years 6% of the augmented estate.
3 years but less than 4 years 9% of the augmented estate.
4 years but less than 5 years 12% of the augmented estate.
5 years but less than 6 years 15% of the augmented estate.
6 years but less than 7 years 18% of the augmented estate.
7 years but less than 8 years 21% of the augmented estate.
8 years but less than 9 years 24% of the augmented estate.
9 years but less than 10 years 27% of the augmented estate.
10 years but less than 11 years 30% of the augmented estate.
11 years but less than 12 years 34% of the augmented estate.
12 years but less than 13 years 38% of the augmented estate.
13 years but less than 14 years 42% of the augmented estate.
14 years but less than 15 years 46% of the augmented estate.
15 years or more. 50% of the augmented estate.

(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in Sections 2-207, 2-209(a)(l), and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under Section 2-209(b) and (c) is less than [$50,-000], the surviving spouse is entitled to a supplemental elective-share amount equal to [$50,000], minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonpro-bate transfers to others in the order of priority set forth in Section 2-209(b) and (c).

(c) [Effect of Election on Statutory Benefits.] If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

(d)[Non-Domiciliary.] The right, if any, of the surviving spouse of a decedent who dies domiciled outside this State to take an elective share in property in this State is governed by the law of the decedent’s domicile at death.

§ 2-203. Composition of the Augmented Estate.

Subject to Section 2-208, the value of the augmented estate, to the extent provided in Sections 2-204, 2-205, 2-206, and 2-207, consists of the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse’s property and nonprobate transfers to others.

§ 2-204. Decedent’s Net Probate Estate.

The value of the augmented estate includes the value of the decedent’s probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable claims.

§ 2-205. Decedent’s Nonprobate Transfers to Others.

The value of the augmented estate includes the value of the decedent’s nonpro-bate transfers to others, not included under Section 2-204, of any of the following types, in the amount provided respectively for each type of transfer:

(1) Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent’s death. Property included under this category consists of:

(i)Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(ii) The decedent’s fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent’s fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent’s death to a surviving joint tenant other than the decedent’s surviving spouse.

(iii) The decedent’s ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship. The amount included is the value of the decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(iv) Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(2) Property transferred in any of the following forms by the decedent during marriage:

(i) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent’s right terminated at or continued beyond the decedent’s death. The amount included is the value of the fraction of the property to which the decedent’s right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(ii) Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent’s estate, or creditors of the decedent’s estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent’s death to or for the benefit of any person other than the decedent’s surviving spouse or to the extent the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.

(3) Property that passed during marriage and during the two-year period next preceding the decedent’s death as a result of a transfer by the decedent if the transfer was of any of the following types:

(i) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under paragraph (l)(i), (ii), or (iii), or under paragraph (2), if the right, interest, or power had not terminated until the decedent’s death. The amount included is the value of the property that would have been included under those paragraphs if the property were valued at the time the right, interest, or power terminated, and is in-eluded only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent’s estate, spouse, or surviving spouse. As used in this subparagraph, “termination,” with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in paragraph (l)(i), “termination” occurs when the power terminated by exercise or release, but not otherwise.

(ii) Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under paragraph (l)(iv) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.

(iii) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent’s surviving spouse. The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.

§ 2-206. Decedent’s Nonprobate Transfers to the Surviving Spouse.

Excluding property passing to the surviving spouse under the federal Social Security system, the value of the augmented estate includes the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse, which consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:

(1) the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant,

(2) the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner, and

(3) all other property that would have been included in the augmented estate under Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

§ 2-207. Surviving Spouse’s Property and Nonprobate Transfers to Others.

(a)[Included Property.] Except to the extent included in the augmented estate under Section 2-204 or 2-206, the value of the augmented estate includes the value of:

(1) property that was owned by the decedent’s surviving spouse at the decedent’s death, including:

(i) the surviving spouse’s fractional interest in property held in joint tenancy with the right of survivorship,

(ii) the surviving spouse’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, and

(iii) property that passed to the surviving spouse by reason of the decedent’s death, but not including the spouse’s right to homestead allowance, family allowance, exempt property, or payments under the federal Social Security system; and

(2) property that would have been included in the surviving spouse’s nonprobate transfers to others, other than the spouse’s fractional and ownership interests included under subsection (a)(l)(i) or (ii), had the spouse been the decedent.

(b) [Time of Valuation.] Property included under this section is valued at the decedent’s death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subsection (a)(1)® and (ii), the values of the spouse’s fractional and ownership interests are determined immediately before the decedent’s death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subsection (a)(2), proceeds of insurance that would have been included in the spouse’s nonprobate transfers to others under Section 2-205(l)(iv) are not valued as if he [or she] were deceased.

(c) [Reduction for Enforceable Claims.] The value of property included under this section is reduced by enforceable claims against the surviving spouse.

§ 2-208. Exclusions, Valuation, and Overlapping Application.

(a) [Exclusions.] The value of any property is excluded from the decedent’s nonpro-bate transfers to others (i) to the extent the decedent received adequate and full consideration in money or money’s worth for a transfer of the property or (ii) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse.

(b) [Valuation.] The value of property:

(1) included in the augmented estate under Section 2-205, 2-206, or 2-207 is reduced in each category by enforceable claims against the included property; and (2) includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal Social Security system.

(c) [Overlapping Application; No Double Inclusion.] In case of overlapping application to the same property of the paragraphs or subparagraphs of Section 2-205, 2-206, or 2-207, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.

§ 2-209. Sources from Which Elective Share Payable.

(a)[Elective-Share Amount Only.] In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others:

(1) amounts included in the augmented estate under Section 2-204 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 2-206; and

(2) amounts included in the augmented estate under Section 2-207 up to the applicable percentage thereof. For the purposes of this subsection, the “applicable percentage” is twice the elective-share percentage set forth in the schedule in Section 2-202(a) appropriate to the length of time the spouse and the decedent were married to each other.

(b) [Unsatisfied Balance of Elective-Share Amount; Supplemental Elective-Share Amount.] If, after the application of subsection (a), the elective-share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent’s probate estate and in the decedent’s nonprobate transfers to others, other than amounts included under Section 2 — 205(3)(i) or (iii), are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent’s probate estate and that portion of the decedent’s nonpro-bate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent’s probate estate and of that portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

(c) [Unsatisfied Balance of Elective-Share and Supplemental Elective-Share Amounts.] If, after the application of subsections (a) and (b), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent’s nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of the remaining portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

      . The statute was subsequently amended by 2004 Tenn. Pub. Acts 866, § 2, effective June 8, 2004.

      . The record does not reveal whether Mr. Soard died testate or intestate. Our resolution of the issue before us is not affected by whether he died with or without a will.

      . Since the parties stipulate that these items are proper deductions from the surviving spouse’s maximum elective share, and there is no issue before us regarding the propriety of these deductions, we do not find it necessary to address whether each of these deductions is appropriate under subsection (c) of the elective-share statute.

      . 1997 Tenn. Pub. Acts. 426. Section 26 of Chapter 426 provides that the amendments shall apply to all estates of decedents dying on or after January 1, 1998. As previously noted, Mr. Soard died July 14, 2003.

      . TenmCode Ann. § 67-8-303(a)(l)(A)-(E), a part of the Tennessee inheritance tax scheme, provides as follows:
      (a) A tax is imposed for the general uses of the state, under the conditions and subject to the conditions and limitations prescribed in this part, upon transfers, in trust or otherwise, of the following properly, or any interest therein or accrued income therefrom:
      (1) When the transfer is from a domiciliary of this state:
      (A) Real property situated within this state;
      (B) Tangible personal property, except such as has an actual situs without this state;
      (C) All intangible personal property;
      (D) Proceeds of insurance policies, except as provided in this part; and
      (E) Proceeds of certain employee benefit trusts and plans to the extent provided in this part; ...

      . At one point in the resolution, the body is referred to as a "committee.” In all other parts of the resolution, it is referred to as the "commission.”

      . It appears that the legislature adopted all of the legislation proposed by the commission.

      . Clarifying amendments were adopted in 1993.

      . The "augmented estate” as that language is used in the UPC’s elective share provisions has the following expansive components: the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse's property and non-probate transfers to others. See Unif. Probate Code § 2-203 (amended 1993). Under the UPC, the surviving spouse’s elective-share is stated in terms of “the elective-share percentage of the augmented estate." Unif. Probate Code § 2-202 (emphasis added).


text:
    Kenneth E. BRASWELL v. LOWE’S HOME CENTERS, INC.
    Court of Appeals of Tennessee, at Nashville.
    Oct. 5, 2004 Session.
    Jan. 27, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 22, 2005.

      David S. Gardner, Nashville, Tennessee, for the appellant, Kenneth E. Braswell.
    Reid D. Leitner, Nashville, Tennessee, for the appellee, Lowe’s Home Centers, Inc.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined.

This appeal involves a customer who tripped over a floor mat while waiting in a cashier’s line at a home improvement store. The customer filed suit against the store in the Circuit Court for Davidson County, and a jury returned a verdict for the store after determining that the customer was sixty-five percent at fault for his injuries. The customer asserts on this appeal that the evidence does not support the jury’s verdict. We affirm the judgment.

Kenneth Braswell was shopping at a Lowe’s Home Improvement Warehouse (“Lowe’s”) in Nashville on December 15, 2000 when he slipped and fell. According to Mr. Braswell, he was standing in a cashier’s fine waiting for the customer in front of him to check out. When he decided to step out of line to ask a nearby employee a question, he slipped on a “hard plastic mat” and fell to the floor. He asserts that he injured himself when his head struck the floor.

In August 2001, Mr. Braswell filed suit against Lowe’s in the Circuit Court for Davidson County asserting that Lowe’s had been negligent in the placement or maintenance of the floor mat. At trial, several Lowe’s employees testified that Mr. Braswell had slipped on office mats that had fallen from the shopping cart of the customer in front of him, and Mr. Braswell conceded that he was unsure whether he slipped on a support mat used by the Lowe’s cashier or on the clear office mats that had fallen from the other customer’s cart. However, he insisted that even if he had fallen on the office mats, the Lowe’s employees were negligent for not picking up the fallen mats sooner or warning him that they had fallen.

The jury determined that Mr. Braswell was sixty-five percent at fault and that Lowe’s was thirty-five percent at fault. Thereafter, the trial court entered a judgment for Lowe’s and denied Mr. Braswell’s motion for a new trial. Mr. Braswell asserts on this appeal that the evidence does not support the jury’s verdict and that the trial court erred by declining to use his special jury instructions.

We turn first to Mr. Braswell’s complaint that the trial court erred by refusing to include his special instructions in its charge to the jury. He argues that without his requested instructions, which consisted of fragments from various appellate court opinions, the jury did not have a clear understanding of his duty of care as a customer and Lowe’s duty as the operator of a self-service business open to the public.

Trial courts may appropriately decline to give a requested instruction (1) if it is not supported by the evidence, (2) if its substance is already covered in the charge, and (3) if it is incorrect or incomplete in any respect. Ingram v. Earthman, 993 S.W.2d 611, 636 (Tenn.Ct.App.1998). Thus, when a party takes issue with a trial court’s refusal to give a requested instruction, our task is to review the instructions actually given in their entirety, see Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn.1992); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App.1984), and to determine whether they fairly and accurately embody the parties’ theories. See Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn.1994).

The trial court’s instructions in this case tracked the Tennessee Pattern Jury Instructions specifically prepared for cases of this sort. We have concluded that the instructions the trial court used fairly embodied the parties’ claims and defenses and provided the jury with the appropriate legal principles needed to decide the case. Accordingly, the trial court did not err in denying Mr. Braswell’s request for special jury instructions.

Mr. Braswell’s second complaint is that the evidence does not support the jury’s determination that he was sixty-five percent at fault. As every trial lawyer knows, challenging a jury’s allocation of fault is the legal equivalent of a “Hail Mary” pass. The comparison and allocation of fault is for the jury, Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn.2000), and this court will not second-guess a jury’s allocation of fault if it is supported by any material evidence. Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *9, 2002 WL 100402, at *10 (Tenn.Ct.App. Jan.28, 2002) (No Tenn. R.App. P. 11 application filed). The process of ascertaining the evidentiary support for a jury’s verdict is very deferential toward the verdict. The reviewing courts must (1) take the strongest legitimate view of the evidence that favors the verdict, (2) assume the truth of all the evidence that supports the verdict, and (3) allow all reasonable inferences that sustain the verdict. Kelley v. Johns, 96 S.W.3d 189, 194 (Tenn.Ct.App.2002).

Mr. Braswell could not testify with any certainty about the nature of the mat he fell on. However, Lowe’s presented credible evidence that Mr. Braswell fell on clear office mats that had fallen from the shopping cart of the customer in front of him and that Mr. Braswell fell before its employees had a reasonable opportunity to help the customer pick up the mats. This evidence, without more, provides a legally sufficient foundation for the jury’s verdict.

We affirm the judgment and remand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal to Kenneth E. Bras-well and his surety for which execution, if necessary, may issue.