author: D. MICHAEL SWINEY, J.,

text:
    Bowdoin Grayson SMITH v. Ginger Lee Marenchin SMITH.
    Court of Appeals of Tennessee, Eastern Section, at Nashville.
    July 8, 2004 Session.
    Oct. 20, 2004.
    Permission to Appeal Denied by Supreme Court May 2, 2005.

      James L. Weatherly, Jr., Nashville, Tennessee, for the Appellant, Ginger Lee Mar-enchin Smith.
    Clark Lee Shaw, Nashville, Tennessee, for the Appellee, Bowdoin Grayson Smith.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

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

Bowdoin Grayson Smith (“Father”) and Ginger Lee Marenchin Smith (“Mother”) were divorced in 1996. Mother was granted sole custody of the parties’ four minor children, and Father was granted visitation and ordered to pay child support. Two years later, Father filed a petition for joint custody and later a petition to modify child support. After a hearing, the Trial Court found that Father had failed to prove a material change in circumstances and denied the petition for joint custody; modified the visitation schedule; granted Father telephone and e-mail contact with the children at specified times; found that Mother had proved monthly expenses of $7,500 were reasonably necessary to provide for the support and needs of the children, but that Father would be responsible for paying only $5,000 in monthly child support with Mother responsible for the remainder; and granted Mother attorney’s fees. Mother appeals claiming the Trial Court erred in finding that only $7,500 per month was reasonably necessary for the support of the children and in holding that Father would be responsible for only $5,000 of these expenses. Father raises additional issues claiming the Trial Court erred in dismissing the petition for joint custody and in awarding Mother attorney’s fees. We affirm, in part; modify, in part; vacate, in part; and remand solely for the collection of the costs below.

Background

Mother and Father were divorced in 1996. They have four minor children. Mother was granted sole custody of the parties’ children and Father was granted visitation and ordered to pay child support. In 1998, Father filed a petition for joint custody. In 2001, Father filed a petition for a reduction in child support. Prior to filing his petition for reduction in child support, Father had been ordered by the Trial Court to pay $10,769.50 per month in child support. In August of 2002, the Trial Court dismissed the petition for a reduction in child support and granted Father leave to file an interlocutory appeal. Father’s application for permission to appeal was denied by this Court. Father then filed a motion asking the Trial Court to reconsider its dismissal of the petition for reduction in child support. Subsequently, the Trial Court heard both the petition for joint custody, which had been pending since 1998, and the petition for a reduction in child support in February of 2003.

At the hearing, Father testified there have been numerous times when he has asked to exchange visitation weekends with Mother and has been denied. He also testified he has asked to pick the children up thirty minutes early to take them to the circus and Mother has refused. Further, Father testified that when his father died, he asked Mother if he could keep the children overnight to take them to their grandfather’s funeral, but Mother refused. However, Mother did take the children to the funeral home on the day of the funeral to attend the services. Father also testified that on many occasions, he has not been allowed to talk to the children on the phone. In the initial decree, Father was granted visitation with the children on alternating birthdays, in addition to his other visitation, but has exercised none of these birthday visits.

When Father filed the petition for joint custody in 1998, he was married to Robin Nixon. This was his second marriage after Father and Mother divorced in 1996. Prior to marrying Ms. Nixon, Father was married to, and divorced from, Beth Boatman. Father admitted Ms. Nixon was addicted to crack cocaine and he later divorced her sometime after filing the petition for joint custody. At the time of the hearing, Father had been married to Melissa Smith for approximately fourteen months. Father has adopted his current wife’s two children, who are in the same age range as the minor children at issue in this case.

Evidence was presented that the private school the children attend is changing its schedule to a modified block schedule with nine weeks on and two weeks off, and a summer vacation. This change makes the summer break a little shorter and gives the children a two-week fall break, a two-week spring break, and a Christmas break.

Both Father and Mother are physicians. Exhibits in the record on appeal show that Father’s income exceeds $600,000 annually, or over $50,000 monthly. Mother, who significantly cut back her work schedule when the children were born, now practices medicine approximately only one-half a day, or three hours, a week. The evidence shows that all four children are in school Monday through Friday from around 6:30 in the morning until 4:00 in the afternoon.

Mother testified to monthly expenses for the children of approximately $12,500. These expenses included, among other things, the mortgage payment, utility payments, school tuition, car expenses, and charges for band, dance lessons, camp, and horseback riding lessons.

In its order entered May 5, 2003, the Trial Court found that Father had failed to prove a material change in circumstances and denied the petition for joint custody; modified the visitation schedule taking into account the school’s new modified block schedule; granted Father telephone and email contact with the children at specified times; found that Mother had proved monthly expenses of $7,500 were reasonably necessary to provide for the support and needs of the children, but that Father would be responsible only for $5,000 in monthly child support with Mother responsible for the remaining expenses; and granted Mother attorney’s fees. Further, the Trial Court found that Mother is “willfully underemployed or unemployed” and is “qualified, educated, and capable of working, but she chooses to stay home.” The Trial Court disallowed several expenses Mother testified to including, among other things, a mortgage payment, furniture purchases, painting, and driveway maintenance, and stated it was taking into account the standard of living of the children, Father’s standard of living, and the standard of living of Father’s two adopted children “since they’re all his children now, they should all ride in the same boat.” The Trial Court made the order for child support effective from the date the petition was filed, in August of 2001. Mother appeals to this Court.

Discussion

Although not stated exactly as such, Mother raises three issues on appeal: 1) whether the Trial Court erred in finding that the expenses reasonably necessary to provide for the needs of the four minor children were limited to $7,500 per month; 2) whether the Trial Court erred in reducing Father’s child support obligation to $5,000 per month given the Trial Court’s finding that expenses of $7,500 per month were reasonable and necessary; and 3) whether Mother is entitled to an award of attorney’s fees on appeal. Father raises three additional issues which we restate as: 1) whether the Trial Court erred in dismissing his petition for joint custody; 2) whether the Trial Court erred in awarding Mother attorney’s fees; and 3) whether Father is entitled to an award of attorney’s fees on appeal. We will consider the issues in turn except for the issues regarding an award of attorney’s fees on appeal. We will consider the issues regarding an award of attorney’s fees on appeal after we discuss all the other issues.

Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). A trial court’s conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001). We review child support decisions for abuse of discretion. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn.Ct.App.2000). However, a trial court’s discretion is limited because such “discretion must be exercised within the strictures of the Child Support Guidelines.” Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn.2000); see also Jones v. Jones, 930 S.W.2d 541, 545 (Tenn.1996).

We first will consider whether the Trial Court erred in finding that the expenses reasonably necessary to provide for the needs of the four minor children were limited to $7,500 per month.

Tennessee Code Annotated § 36-5-101(e)(1) provides, in pertinent part:

(B) Notwithstanding any provision of this section or any other law or rule to the contrary, if the net income of the obligor exceeds ten thousand dollars ($10,000) per month, then the custodial parent must prove by a preponderance of the evidence that child support in excess of the, amount, [calculated by multiplying the appropriate percentage set forth in the child support guidelines by a net income of ten thousand dollars ($10,000) per month], is reasonably necessary to provide for the needs of the minor child or children of the parties. In making, its determination, the court shall consider all available income of the obligor, as required by this chapter, and shall make a written finding that child support in excess of the amount so calculated is or is not reasonably necessary to provide for the needs of the minor child or children of the parties.

Tenn.Code Ann. § 36-5-101(e)(1)(B) (2001).

The child support guidelines provide that an obligor with four children, as is the situation in this case, pay 46% of his or her net income in child support. Father is a high income obligor whose income exceeds $10,000 per month. Calculated on a monthly net income of $10,000, Father would, thus, have to pay $4,600 per month unless Mother proved by a preponderance of the evidence that child support in excess of $4,600 was reasonably necessary for the support of the children. For many years, one of the stated purposes of child support has been “[t]o ensure that when parents live separately, the economic impact on the child(ren) is minimized and to the extent that either parent enjoys a higher standard of living, the child(ren) share(s) in that higher standard.” Tenn. Comp. Rules & Regs. Ch. 1240-2-4-.02(2)(e) (2003).

In this case, Mother testified to expenses for the children totaling approximately $12,500 per month. The Trial Court disallowed several of the expenses Mother testified about and found that only $7,500 of the claimed expenses were reasonably necessary for the support of the children. The evidence does not preponderate against this finding.

We next consider whether the Trial Court erred in reducing the Husband’s child support obligation to $5,000 per month given the finding that expenses of $7,500 per month were reasonably necessary for the support of the children. The Trial Court stated it “believes that it is proper to look to the earning capacity of the Mother in determining what support over the $4,600 per month should be paid by the Father.” The Trial Court then found Mother was “willfully underemployed or unemployed” and used this finding as a basis for reducing Father’s obligation from $7,500 to $5,000.

In the case of Gray v. Gray, our Supreme Court held:

that the use of a comparative analysis of the parties’ earnings is improper under the Child Support Guidelines. Rule 1240-2-4-.03(2) specifically states that “the income of the obligee should not be considered in the calculation of or as a reason for deviation from the guidelines in determining the support award amount.” Consideration of the parties’ relative incomes, therefore, is precluded by Tennessee’s Child Support Guidelines.

Gray v. Gray, 78 S.W.3d 881, 884-85 (Tenn.2002).

We hold it was error for the Trial Court to consider Mother’s income, or lack thereof, and to use this as a basis for deviating in the amount of child support. Mother proved that $7,500 per month was reasonably necessary for the support of the children. Tenn.Code Ann. § 36-5-101(e)(1)(B) does not purport to address the child support obligation of Mother as the obligee. Rather, the statute simply assigns Mother the burden of proving that the expenses are reasonably necessary for the support of the children, which she did. We also note that this statute specifically provides that “[i]n making its determination, the court shall consider all available income of the obligor, as required by this chapter....” Tenn.Code Ann. § 36-5-101(e)(1)(B) (2001) (emphasis added). The Legislature in enacting this statute made no mention of considering all available income of the obligee. Therefore, we modify the Trial Court’s holding to direct that Father shall pay $7,500 per month in child support.

Next, we consider whether the Trial Court erred in dismissing the petition for joint custody. In Kendrick v. Shoemake, our Supreme Court held that “a trial court may modify an award of child custody when both a material change of circumstances has occurred and a change of custody is in the child’s best interests.” Kendrick v. Shoemake, 90 S.W.3d 566, 568 (Tenn.2002). The Kendrick Court stated:

As explained in Blair, the “threshold issue” is whether a material change in circumstances has occurred after the initial custody determination. Id. at 150. While “[tjhere are no hard and fast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or her custody,” the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change “has occurred after the entry of the order sought to be modified,” the change “is not one that was known or reasonably anticipated when the order was entered,” and the change “is one that affects the child’s well-being in a meaningful way.” Id. (citations omitted).

Id. at 570 (quoting Blair v. Badenhope, 77 S.W.3d 137 (Tenn.2002)).

When making a determination regarding the best interest of the child for purposes of modifying custody:

The court shall consider all relevant factors including the following where applicable:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that where there is a finding, under § 36-6-106(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a non-perpetrating parent has relocated in order to flee the perpetrating parent, that such relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that where there are allegations that one (1) parent has committed child abuse, [as defined in § 39-15-401 or § '39-15-402], or child sexual abuse, [as defined in § 37-1-602], against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of fact connected thereto. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(9) The character arid behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; and
(10) Each parent’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

Tenn.Code Ann. § 36-6-106(a) (2001).

Father’s appellate brief argues, that Mother “will never ‘... encourage a close and continuing parent-child relationship between the children and the other parent, consistent with the best interest of the child.’ ” Father’s brief also argues that Tenn. Code Ann. § 36-6-106(8) regarding emotional abuse applies in this case” because “the mother’s use of these children to punish them father is tantamount to emotional abuse.” However, Father’s argument deals with whether a change of custody would be in the best interest of the children. The Trial Court found that Father failed to prove a material change in circumstances. The evidence does not preponderate against this finding. As Father did not make this threshold showing, we need not reach the best interest analysis. Therefore, we affirm the Trial Court’s dismissal of the petition for joint custody.

We next consider whether the Trial Court erred in awarding Mother attorney’s fees. The Trial Court specifically found that Mother “has substantial earning ability and is willfully underemployed or unemployed.” The evidence does not preponderate against this finding. Given this finding, along with the fact that Father was successful in having his child support reduced from the $10,769.50 per month now to $7,500, we hold that it was error to award Mother attorney’s fees. We, therefore, vacate the award of attorney’s fees to Mother.

Finally, we consider whether either Mother or Father is entitled to an award of attorney’s fees on appeal. In the exercise of our discretion, we decline to award either party attorney’s fees on appeal.

Conclusion

The judgment of the Trial Court is affirmed as to the Trial Court’s finding that the expenses reasonably necessary to provide for the needs of the four minor children were limited to $7,500 per month, and the Tidal Court’s dismissal of the petition for joint custody; modified as to the amount of monthly child support Father is ordered to pay by setting Father’s child .support at $7,500; vacated as to the award of attorney’s fees to Mother; and this cause is remanded to the Trial Court for collection of the costs below. The costs on appeal are assessed against the Appellee, Bowdoin Grayson Smith.


source: Caselaw Access Project

author: HOLLY M. KIRBY, J.,

license: Public Domain

text:
    James Roy SMITH, Jr. v. Mary Elizabeth SMITH and Air Draulics Engineering Company, Inc., Garnishee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 16, 2003 Session.
    Feb. 5, 2004.
    Permission to Appeal Denied by Supreme Court Sept. 7, 2004.

      Howard B. Hayden, Memphis, Tennessee, for the appellant, Air Draulics Engineering Company, Inc.
    Valerie Corder, Memphis, Tennessee, for the appellee, James Roy Smith, Jr.
    Terese B. Deboo, Guardian Ad Litem, Memphis, Tennessee, appellee, pro se.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

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

This is a garnishment case. In the underlying child custody proceedings, the father obtained primary custody of the parties’ minor child, and the mother was ordered to pay child support. The father and the child’s guardian ad litem subsequently obtained judgments against the mother for child support, attorney’s fees, and guardian ad litem fees. To collect on the judgments, the father and the guardian ad litem filed four garnishments against the mother’s wages. After the fourth garnishment was filed, the garnishee failed to answer. A hearing was set to determine whether a conditional judgment should be against the garnishee for the entire debt. On the eve of the hearing, the garnishee filed an answer to the garnishment, admitting liability. Nevertheless, the trial court entered a conditional judgment against the garnishee for the entire amount of the mother’s debt. After a subsequent scire facias heating, the trial court made the conditional judgment a final judgment for the entire amount of the debt. The garnishee now appeals. We reverse, concluding that, because the garnishee filed an answer, albeit untimely, the trial court was without authority to enter a conditional judgment against the garnishee.

On February 24, 1999, Garnishor/Appellee James Roy Smith, Jr. (“Father”), and Mary Elizabeth Smith (“Mother”) were divorced by final decree. The trial court awarded the parties joint custody of their minor son, with Mother designated as the primary custodial parent. During the divorce proceedings, Garnishor/Appellee Therese B. Deboo (“Guardian”) was appointed as guardian ad litem to represent the child.

Subsequently, a petition for contempt was filed against Mother for her willful failure to adhere to the custody arrangement as ordered by the trial court. On July 28, 1999, Mother was held to be in contempt of court. On December 10,1999, upon the joint petition of Father and the Guardian, the trial court ordered a change of custody, awarding full custody of the parties’ son to Father. In that order, the trial court also found that Mother was in civil contempt of unspecified court orders. The trial court ordered Mother to pay child support and attorney’s fees to Father, and also ordered her to pay all of the Guardian’s fees. On March 2, 2000, Mother was again held in civil contempt for, among other things, failure to pay child support, failure to obey injunctive orders, and failure to comply with orders relating to Mother’s contact with the parties’ son.

The proceedings in the trial court resulted in several money judgments against Mother in favor of Father and the Guardian. During this time, Mother was employed by Garnisb.ee/Appellant Air Draul-ics Engineering Company, Inc. (“Air Draulics”). In order to collect on the judgments, Father and the Guardian began what turned out to be repeated, frustrating attempts to garnish Mother’s wages from Air Draulics. On August 31, 1999, Father’s first garnishment issued. On September 20, 1999, Air Draulics answered the garnishment and paid $231.85 into the court clerk’s office. On November 3,1999, Mother filed a motion and affidavit for a stay of the garnishment, and on November 12, 1999, the garnishment was stayed.

A second garnishment was issued in April 2000. Mother then filed a Chapter 7 petition in bankruptcy. On June 5, 2000, the bankruptcy court issued an automatic stay in the bankruptcy case, resulting in a stay of the second garnishment. Father and the Guardian initiated adversary proceedings in the bankruptcy court, seeking to collect on the judgments against Mother. In February 2001, the bankruptcy court entered two orders, granting summary judgment to both Father and the Guardian, respectively. The bankruptcy court held that, because Mother’s debts to Father and to the Guardian were for child support, they were nondisehargeable debts. See 11 U.S.C. § 523(a)(5).

On March 7, 2001, Father and the Guardian filed their affidavits of garnishment, and a third garnishment was issued against Mother’s wages at Air Draulics. Mother thereafter filed a Chapter 13 petition in bankruptcy, and sought to stay the garnishment proceedings. However, her bankruptcy petition was dismissed on August 3, 2001, for failure to abide by the bankruptcy court’s orders.

On August 28, 2001, Father and the Guardian made another attempt to garnish Mother’s wages. This was the fourth garnishment. On October 10, 200Í, this fourth garnishment was served on Air Draulics. Air Draulics did not answer the garnishment at that time, and paid no money into court.

Eight months later, on June 29, 2002, Father and the Guardian filed a joint motion for a conditional judgment, a joint petition for a scire facias hearing, and a petition for final judgment against Air Draulies, based on its failure to honor the garnishment. The motion asserted that Air Draulies had not answered the garnishment or paid any money into court, and that Father and the Guardian were therefore entitled to a conditional judgment and a scire facias hearing pursuant to Tennessee Code Annotated § 26-2-209. That statute provides:

26-2-209. Failure to appear or answer. — -The date garnishee’s answer is received by the court clerk shall be noted on the docket book in the proper manner, whether or not the answer discloses any property subject to garnishment. If the garnishee fails to appear or answer, a conditional judgment may be entered against the garnishee for the plaintiffs debt, upon which a notice shall issue to the garnishee returnable at such time as the court may require, to show cause why judgment final should not be rendered against the garnishee. On failure of the garnishee to appear and show cause, the conditional judgment shall be made final, and execution awarded for the plaintiffs entire debt and costs.

Tenn.Code Ann. § 26-2-209 (2000). The hearing on the joint motion for a conditional judgment was noticed for July 19, 2002.

On July 18, 2002, the day before the conditional judgment hearing, Air Draulies filed the affidavit of Julie Krute (“Krute”), the corporate representative who was responsible for Ah’ Draulies’ payroll. The document was titled “Affidavit of Julie Krute/Answer to Garnishment of Ah’ Draulies Engineering Co., Inc.” In the affidavit, Krute acknowledged that Air Draul-ics was served with the garnishment in October 2001, and that Ah’ Draulies failed to answer the garnishment. Krute said that the failure to answer the garnishment was due to her “oversight.” The affidavit also stated that Mother’s bi-weekly earnings were $1,333.60, and that $290.77 was being taken out of each paycheck pursuant to a court-ordered income assignment and paid to the Tennessee Child Support Receipting Unit.

On the following day, July 19, 2002, the trial court held a hearing and granted the motion for a conditional judgment against Air Draulies for the entire amount of Mother’s debt to Father and the Guardian, which totaled $82,817.40. The trial court set the scire facias hearing for August 21, 2002, “requiring [Air Draulies] to appear and show cause, if any it has, why the conditional judgment should not be made final.” At the hearing, the trial court indicated that Air Draulies’ answer would not prevent the grant of a conditional judgment because it was untimely filed. In its order, the trial court simply stated that the garnishee’s motion was “well-taken and should be granted.”

On August 20, 2002, the day before the scire facias hearing, Air Draulies filed a supplemental affidavit of Julie Krute with attached exhibits. Krute again stated that she “failed to answer the subject garnishment through simple negligence or inadvertence on [her] part.” The supplemental affidavit noted that Mother’s bi-weekly earnings had increased in February 2002 from $1,333.60 to $1,387.20, because Mother had received a raise. The exhibits provided more detañed information about Mother’s net income, and concluded that, had Air Draulies properly responded to the garnishment, $2,797.66 would have been withheld from Mother’s net earnings and remitted to the court clerk. Later, counsel for Air Draulies stated in open court that the amount in the supplemental affidavit was wrong, and that $3,308.76 would have been the proper amount due under the garnishment.

On August 21, 2002, the trial court conducted the scire facias hearing on the conditional judgment. Several witnesses testified, including Julie Krute and Bruce and Sheila Siegal. The Siegals had been co-owners of Air Draulics; Mr. Siegal was the president and Mrs. Siegal was the secretary/treasurer. At the time of the hearing, Mr. Siegal was the vice-president and general manager of Air Draulics, employed by the parent company.

Krute testified that she worked out of an office in Cleveland, Ohio, and was responsible for the payroll system at Air Draulics in Tennessee. She said that $290.77 was being deducted from Mother’s salary on a bi-weekly basis pursuant to an income assignment for child support, and that the money was being paid into the central child support collections unit in Tennessee. Krute acknowledged that she had received the garnishment on Mother’s wages in October 2001. However, Krute testified that she thought it had been answered, so she simply filed it in Mother’s file. She said that she did not discover that it had not been answered until this lawsuit was filed, sometime in July 2002. She claimed that she was never instructed by either Mr. or Mrs. Siegal to disregard the garnishment notice.

Mother also testified, and portions of Mother’s deposition were read into evidence. Mother stated that she had worked for Air Draulics since February 1995. Mother was questioned at length about her relationship with the Siegals outside of their working relationship. Mother said that she had a friendship with the Siegals, but that they did not socialize together. Mother explained that she at times stayed with the Siegals’ daughter, who has Down Syndrome, while the Sie-gals went out of town. Mother explained that she knew the Siegals’ daughter because she was in Mother’s Sunday school class. Mother was asked about the car she was driving, and she acknowledged that it belonged to Mr. Siegal. In her deposition, Mother said that Mr. Siegal purchased the car for $9,700 for her as a gift because she did not have transportation to work. However, documents filed in Mother’s bankruptcy proceedings were entered into evidence, indicating that Mother represented to the bankruptcy court that she purchased the car and that the money paid by Mr. Siegal was a loan to her. At the scire facias hearing, Mother said that her deposition testimony was in error, and maintained that the car was not a gift to her, but rather that it was paid for through a loan from Mr. Siegal. Mother testified that Mr. Siegal had loaned her money on other occasions in the past, and that the previous loans were repaid by deductions from her payroll check.

Mother was also asked about the October 2001 garnishment. Mother testified that she remembered receiving a copy of the garnishment, but does not remember how she got it. She said that she made sure that the Siegals received a copy of it so that it could be forwarded to the proper office. She noticed that no money was being taken from her paycheck, but did not inquire about it or voluntarily pay the garnishment.

Mrs. Siegal testified at the hearing. She said that Mother had watched her house and babysat for her children, but that she never paid Mother for those services. She claimed that she did not discuss the details of the garnishment proceedings with Mother, but acknowledged that she was aware of them. The only personal loan to Mother that Mrs. Siegal could remember was the loan for the car. Any other loans made to Mother were discussed between Mother and Mr. Siegal. Mrs. Siegal stated that she was familiar with the proper management of a garnishment, and that she had never obtained legal advice to determine whether she was handling the garnishments correctly. Mrs. Siegal thought that she had properly handled the October 2001 garnishment. She acknowledged having received an October 1999 letter from Father’s counsel to Air Draulics, advising Air Draulics that the first garnishment was not being paid in full. The letter asked Air Draulics to correct its misconduct and urged it to consult with counsel regarding the proper treatment of the garnishment. Mrs. Siegal, however, took no action in response to the letter. Mrs. Siegal testified that she sent the October 1991 garnishment to Krute in Ohio for Krute to handle in her office. Mrs. Siegal indicated that Mother never asked her to try to keep her wages from being garnished.

Mr. Siegal also testified at the hearing. Mr. Siegal admitted that he had made several loans to Mother and that he never charged her interest on those loans. He said that he had purchased the car Mother was using and loaned it to her, and claimed that he told Mother to pay him back “when she could.” Mr. Siegal asserted that he had made loans to other employees, because “it was the right thing to do.” Mr. Siegal conceded that he had read the letter from Father’s counsel to Air Draulics indicating that the October 1999 garnishment was being mishandled. He said that it caused him some concern, but he took no action because he assumed that Mrs. Sie-gal would deal with the problem properly. A portion of Mr. Siegal’s deposition was then read in to evidence, in which Mr. Siegal was asked whether he believed that the letter from Father’s attorney presented a serious question. In his deposition, Mr. Siegal said that, had he thought that the letter presented a serious question, he would have dealt with the garnishment himself.

At the conclusion of the hearing, the trial court held that the conditional judgment should be made final. On October 4, 2002, the trial court entered a final order consistent with its oral ruling. The trial court determined that Mother and the Sie-gals were “not credible at all.” In light of that credibility determination, the trial court made the following findings of fact:

... That the Court concludes that beginning some years ago, both Mr. and Mrs. Siegal were completely indifferent to handling the garnishments correctly.
... That Mr. Siegal’s own testimony today is one the Court can best characterize as reckless indifference. He is so cavalier with regard to even the importance of doing these garnishments correctly. He does not act as a reasonably prudent person in a management position should under the circumstances in responding to this court[’s] order to garnish wages.
... That despite receiving the letter from [Father’s counsel], ... to get his attention and try to make him care about something that he seems to be indifferent to, Mr. Siegal’s response was that he did not see this as alarming; it did not cause Mr. Siegal much concern; he asked his wife, the same person that he is being told is not taking care of the garnishment properly, to take care of it....
... That the cavalier approach by Mr. and Mrs. Siegal can best be categorized as a historical pattern of gross negligence and willful, reckless indifference in dealing with these garnishments.
... That the reason for the reckless conduct of the Siegals is their friendship with Mary Smith, which they do not want to characterize as a friendship.
... That the Siegals got caught up in this friendship, got a mind-set that they were going to protect [Mother], they were going to resist this; they were going to play games with this because it isn’t right, she shouldn’t have to pay all of this.
... That this process of obstruction occurred prior to the last garnishment and continued thereafter.
... That Julie Krute has, as a supervisor at Applied Industrial Technologies, pursued an ongoing pattern of gross negligence that existed before this event, continued through this event, and continues today.
... That this conduct of Julie Krute constitutes gross negligence; it is not a mistake; it is not a single act of simple negligence as in the cases cited by [Air Draulies]; it is gross negligence.
... That the fourth garnishment was not timely received by Ms. Krute.
... That Exhibit 2 shows how Mrs. Sie-gal continued in her misplaced efforts to help her friend by obstructing the processes of the Court wherein Mrs. Siegal writes “if this garnishment can be held up on this check, that would be great!”
... That Mrs. Siegal [and Ms. Krute have] been doing these for years and [are] imputed to know that payments on garnishments are supposed to go to the bankruptcy trustee....
... That on top of everything, ... that despite knowing on July 2nd of this year with absolute certainty that no answer had been filed, no answer still has been filed.

In accordance with these findings, the trial court held that the conditional judgment against Air Draulies in the amount of $82,817.40 should be made final. From this order, Air Draulies now appeals.

On appeal, Air Draulies first argues that the trial court erred in entering a conditional judgment against it for the entire debt, because it filed an answer to the garnishment prior to the July 19, 2002 hearing. Air Draulies asserts that, under the garnishment statutes, once an answer is filed, a conditional judgment is not warranted. In the alternative, even if the trial court was justified in entering a conditional judgment against it, Air Draulies argues, the trial court erred in entering a final judgment against Air Draulies in the amount of Mother’s entire debt. Air Draulies asserts that this was error because its failure to pay under the garnishment was the result of ordinary negligence and, therefore, sufficient cause was shown for relief from the conditional judgment. Air Draulies also argues that this Court should exercise its discretion to reduce the amount of the final judgment, because it is grossly excessive under the circumstances.

Because this case was decided by the trial court sitting without a jury, we review it de novo on the record, with a presumption that the trial court’s findings of fact are correct, unless the preponderance of the evidence is otherwise. See Ball Bros. Furniture Co. v. Ferren, 1987 WL 12388, at *2 (Tenn.Ct.App. June 18, 1987); Tenn. R.App. P. 13(d). The trial court’s conclusions of law are reviewed de novo, with no such presumption of correctness. See State v. Levandowski, 955 S.W.2d 603, 604 (Tenn.1997). Issues of statutory interpretation and the application of a statute to particular facts involve questions of law, subject to de novo review. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997); State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 754 (Tenn.Ct.App.2001).

This appeal involves interpretation and application of the garnishment statutes. As background, a “[g]arnishment is in the nature of an attachment of a debt due the judgment debtor from the garnishee; and, service of the garnishment upon the garnishee is a warning to the garnishee not to pay the debt but to answer the garnishment and hold the fund subject to the orders of the Court.” Meadows v. Meadows, 1988 WL 116382, at *3 (Tenn.Ct.App. Nov.2, 1988) (quoting Stonecipher v. Knoxville Sav. & Loan, 42 TennApp. 86, 298 S.W.2d 785 (1957)). If a garnishee answers the garnishment and admits a certain indebtedness to the judgment debtor, then a judgment against the garnishee in the amount of the admitted debt may be entered. See Tenn.Code Ann. § 29-7-112; Meadows, 1988 WL 116382, at *3. However, evidence may be offered to show that a different amount of indebtedness is due. After the trial court ascertains the proper amount of the garnishee’s indebtedness to the judgment debtor, it may enter a judgment on the garnishment against the garnishee. Meadows, 1988 WL 116382, at *3.

A conditional judgment for the entire amount of the judgment debtor’s debt is a statutory remedy available against a garnishee if the garnishee fails to appear or answer the garnishment. See In re Warner (First Tenn. Bank Nat’l Ass’n v. Warner), 191 B.R. 705, 710 (Bankr.W.D.Tenn.1996). Such a conditional judgment is authorized under Tennessee Code Annotated § 26-2-209, quoted above, which states that a conditional judgment may be entered “[i]f the garnishee fails to appear or answer.” Tenn.Code Ann. § 26-2-209 (2000). The award of a conditional judgment is also addressed in Tennessee Code Annotated § 29-7-114:

§ 29-7-114. Default by garnishee— Conditional judgment. — If, when duly summoned, the garnishee fail[s] to appear and answer the garnishment, the garnishee shall be presumed to be indebted to the defendant to the full amount of the plaintiff’s demand, and a conditional judgment shall be entered up against the garnishee accordingly.

Tenn.Code Ann. § 29-7-114 (2000). Therefore, both statutes use language indicating that the conditional judgment is predicated on the garnishee’s failure to appear and answer the garnishment. A conditional judgment is similar to a default judgment, in that both remedies recognize a failure to respond to process. Meadows, 1988 WL 116382, at *4. Unlike a default judgment, however, a conditional judgment does not admit facts alleged, but, rather, “[fit is a threat of final judgment if [a] response should not be forthcoming. It is a means of inducing a response and a threat of penalty for failure, but it is not a judgment establishing any rights.” Id.; see Ball Bros., 1987 WL 12388, at *2 (“The conditional judgment is an enforcement tool.”). The conditional judgment is not intended to be punitive, but is intended as an enforcement tool, a “wake up call” to the garnishee, a warning that a proper defense must be asserted to prevent the entry of a final judgment. In re Warner, 191 B.R. at 710-11. “[T]he conditional judgment gives ‘another opportunity’ to the garnishee ‘to answer the garnishment.’ ” Id.

Air Draulics argues on appeal that a conditional judgment is warranted under the statutes only “[wjhere no answer is made by the garnishee.” Meadows, 1988 WL 116382, at *3. Because it had filed an answer to the garnishment at issue, Air Draulics argues, the trial court erred in entering the conditional judgment against it. Air Draulics acknowledges that its answer was untimely, filed on the eve of the hearing on the conditional judgment. It argues, however, that the filing of an answer, even though untimely, vitiates the basis for a conditional judgment.

Father and the Guardian argue that Air Draulics’ filing of its answer was untimely and substantively deficient and, therefore, did not prevent the trial court from entering a conditional judgment. First, they argue, the purported answer was filed almost nine months after the original garnishment was served-and, therefore, cannot be considered to suffice as an “answer” under the pertinent statutes. In addition, though the document filed by Air Draulics was titled an “answer,” it failed to meet many of the requirements of an “answer” under the pertinent garnishment statutes. For example, Air Draulics’ answer did not include a statement of Mother’s dependent children under the age of sixteen, required under Tennessee Code Annotated § 26-2-214(a)(2), nor did it credit Mother with $2.50 per child, as is required under Tennessee Code Annotated § 26-2-107(a), all information necessary to calculate the exempt portions of Mother’s salary. Father and the Guardian argue that other information required by statute was either in’sufficient or omitted altogether. Therefore, because the answer did not contain the proper aspects of an answer under the statutes, it would not prevent the trial court from entering a conditional judgment. Father and the Guardian also note that no funds were paid into court, as is required under Tennessee Code Annotated § 26-2-215. Thus, they argue, the document filed by Air Draulics on July 18, 2001 was so deficient that it “amounted] to no answer at all,” and the trial court had ample justification for entering a conditional judgment against Air Draulics for the entire amount of Mother’s debt.

In interpreting a statute, the court is to give effect to the legislative intent. Kyle v. Williams, 98 S.W.3d 661, 664 (Tenn.2003). “Legislative intent is to be ascertained primarily from the natural and ordinary meaning of the language used.” Id. Where the language of the statute is clear, the statute must be applied as written, with the presumption that the legislature “says in a statute what it means and means in a statute what it says.” Id. (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn.2000)); see also Schering-Plough Healthcare Prods., Inc. v. State Bd. of Equalization, 999 S.W.2d 773, 775-76 (Tenn.1999).

The statutes at issue in the instant case are Tennessee Code Annotated §§ 26-2-209 and 29-7-114. Section 26-2-209 states that a conditional judgment “may be entered” against the garnishee “[z ] / the garnishee failfe] to appear or answer” the garnishment. Likewise, section 29-7-114 states that a conditional judgment “shall be entered” against the garnishee “[z] / ... the garnishee fail[s] to appear and answer the garnishment....” Thus, both statutes authorize the imposition of a conditional judgment if the garnishee fails to answer. In this ease, Air Draulics in fact filed an answer prior to the imposition of a conditional judgment, though clearly the answer was untimely. The trial court made no determination as to whether the answer was “sufficient,” i.e. contained all the necessary information required in an answer, under the garnishment statutes.

The parties do not cite, nor have we found, a case determining whether a conditional judgment is an available remedy when the garnishee has filed an answer, albeit untimely or otherwise defective. Cases discussing the function and purpose of a conditional judgment indicate that such a remedy is appropriate only if the garnishee fails to file an answer. See ECI Bldg. Components, Inc. v. Chanl-Loc Docks, Inc., No. 03A01-9509-CH-00301, 1996 WL 93769, at *2 (Tenn.Ct.App. Mar.5, 1996) (stating that a conditional judgment “is available only when a garnishee fails to appear or answer”); Meadows, 1988 WL 116382, at *3 (“Where no answer is made by the garnishee, the statutory remedy is by ‘conditional judgment’.”); see also In re Warner, 191 B.R. at 709 (“The garnishee is, however, required to respond or risk total liability”). Moreover, the plain language of the statutes authorizes the imposition of a conditional judgment if the garnishee fails to answer the garnishment. There is no language in the statutes indicating that if the answer is not timely or sufficient, a conditional judgment may be entered. The conditional judgment remedy is clearly intended to be a “wake-up call” to the garnishee, warning the garnishee that it must present a defense to the statutorily imposed presumption that it is indebted to the plaintiff “to the full amount of the plaintiffs demand.” See Tenn.Code Ann. § 29-7-114 (2000). If the garnishee files an answer before the conditional judgment is imposed, this obviates the need for such a “wake-up call.”

In this case, the answer filed by Air Draulics admitted that Mother was employed during the pertinent period, provided information about her salary, and asserted that the reason for its failure to answer the garnishment in a timely manner was due to simple negligence. The answer stated in part:

9. At the time Air Draulics was served with the October 2001 garnishment, Ms. Smith was an employee of Air Draulics and her bi-weekly gross earnings were $1,333.60 and her net bi-weekly earnings were $1,041.15. As set forth hereinabove, the sum of $290.77 was withdrawn from Ms. Smith’s net earnings on a bi-weekly basis pursuant to the court-ordered income assignment for child support. The amount -withheld pursuant to the income assignment represented 27.9% of Ms. Smith’s net biweekly earnings at the time the garnishment at issue was served on Air Draul-ics.
10. Ms. Smith continues to be an employee of Air Draulics as of the present date. Her current gross bi-weekly earnings are $1,387.20 per month. Her average bi-weeMy net earnings are $1,092.63 from which the amount of $290.77 continues to be withheld pursuant to the court ordered income assignment. Ms. Smith is single and is claiming no dependents.

This is sufficient to constitute an answer and rebut the statutory presumption that Air Draulics was indebted to Father and the Guardian for the entire amount of Mother’s debt. Under all of these circumstances, we must conclude that the garnishment statutes do not authorize the trial court’s entry of a conditional judgment against Air Draulics.

We are mindful of the trial court’s explicit findings that the agents of Air Draul-ics acted in bad faith, that they persistently worked in concert with Mother to defeat the garnishments against her, and that Krute was grossly negligent in her handling of the garnishment at issue. We do not address what remedies, penalties or sanctions, if any, may be available to Father and the Guardian for Air Draulic’s misconduct. We hold only that, under the plain language of the garnishment statutes at issue, a conditional judgment was not among the available options.

The decision of the trial court is reversed and the cause is remanded for further proceedings consistent with this Opinion. Costs on appeal are to be taxed to Appellees James Roy Smith, Jr., and Terese B. Deboo, for which execution may issue, if necessary.

      . Mother filed a timely notice of appeal from that order, but the appeal was later dismissed for failure to file a transcript, statement of the evidence, or notice of no transcript or statement.

      . Air Draulics is now a wholly-owned subsidiary of Applied Industrial Technologies, Inc.

      . The bankruptcy court also exercised its right of permissive abstention, declaring that any further disputes between the parties should be resolved by the trial court. See 28 U.S.C. § 1334(c)(1).

      . Apparently at the outset of the hearing, an issue arose as to whether counsel for Air Draulics had violated "the Rule” by informing the Siegals outside the courtroom that counsel for Father had indicated in his opening statement that he planned to assert that Mother’s friendship with the Siegals motivated the Siegals to attempt to defeat or circumvent the garnishment. The trial judge questioned the witnesses at length about this.

      . That statute provides:
      ... If it appears that the garnishee is indebted to the defendant, or has property and effects of the defendant subject to the attachment, the court may, in case recovery is had by the plaintiff against the defendant, give judgment against the garnishee for the amount of the recovery or of the indebtedness and property'.
      Tenn.Code Ann. § 29-7-112 (2000).

      . That statute provides:
      The employer garnishee shall remit to the court all moneys [sic] withheld as provided under § 26-2-214 not less than one (1) time each calendar thirty (30) days.
      Tenn-Code Ann. § 26-2-215 (2000).

      . Air Draulics argues that no issue regarding the sufficiency of its answer was raised to the trial court, and that consequently, it cannot be raised in this appeal. Our holding makes it unnecessary to address this issue in this appeal.

      . Father and the Guardian cite Ancro Fin. Co. v. Johnson, No. W2000-02709-COA-R3-CV, 2001 WL 1298913 (Tenn.Ct.App. Oct.23, 2001), to support their argument that a conditional judgment may be entered if the garnishee’s answer is insufficient. The trial court in that case did indeed enter a final judgment against the garnishee, even though a purported answer had been filed by the garnishee several weeks earlier. However, the garnishee in that case did not attend the subsequent scire facias hearing, resulting in a judgment against it. The garnishee did not appeal the judgment, but instead challenged the decision by filing a writ of certiorari and supersedeas in the circuit court. The circuit court denied the writ. On appeal, this Court’s review was limited to determining whether the trial court had properly denied the writ. Therefore, the propriety of the trial court's decision to enter a conditional judgment was not at issue in the appeal, and Ancro is therefore not applicable to this case.


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

text:
    Woodrow Jerry HAWKINS v. CASE MANAGEMENT INCORPORATED, et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    On Brief July 23, 2004.
    Sept. 7, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 24, 2005.

      Woodrow J. Hawkins, Pro Se.
    Cheryl M. Hearn, Memphis, For Appel-lees, Case Management Incorporated and Rosaline McGee.
   OPINION

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

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and DAVID R. FARMER, J., joined.

This is an appeal from the trial court’s grant of Defendants/Appellees’ motion for summary judgment. Under T.C.A. § 40-38-108, the trial court found that Defendants/Appellees were immune from prosecution for their alleged failure to properly inform PlaintiffiAppellant of his possible right to recover from the Tennessee Criminal Injury Compensation Fund. We affirm.

Case Management, Inc. (“CMI”) is a Tennessee non-profit 501(c)(3) tax exempt organization that assists individuals with mental health issues in all types of administrative and daily living matters. CMI receives grant funding under the Victims of Crime Act (VOCA). Rasaline McGee (“McGee,” and together with CMI, “Defendants,” or “Appellees”) is a Case Manager with CMI. McGee formerly served as CMI’s VOCA Advocate via the Victims Assistance Center of the General Sessions Criminal Court.

On or about May 12, 2000, Woodrow Jerry Hawkins (“Hawkins,” “Plaintiff,” or “Appellant”) was involved in a physical altercation with a co-worker while employed as a temporary employee with LSI Temporary Services, LLC. Hawkins filed criminal charges as a result of the altercation. On or about May 31, 2000, the General Sessions Court counselor referred Hawkins to the VOCA Advocate at CMI for possible assistance under the VOCA program.

The Tennessee Criminal Injuries Compensation Act, T.C.A. §§ 29-13-101 et seq., allows innocent victims of violent crimes to recover, under certain circumstances, for expenses incurred due to their victimization. If granted, the reimbursement is paid from the Tennessee Criminal Injury Compensation Fund (the “Fund”), according to its guidelines.

After his referral to VOCA, CMI proceeded with an assessment and investigation of Hawkins’s claim. It was determined that Hawkins had initiated the altercation that led to his injury. CMI then advised Hawkins that he was not eligible for relief from the Fund. Notwithstanding this assessment, CMI contends that they provided Hawkins with information on the Fund, which included instructions for filing a written claim for benefits. Hawkins failed to file a claim within the one year time period outlined in the Fund guidelines.

On October 29, 2002, Hawkins filed an action in the General Sessions Court of Shelby County. Hawkins specifically alleged that CMI and McGee failed to advise him of his rights, failed to provide him with access to a claim form for compensation under the Fund, and failed to tell him of the time limit for filing his claim. CMI denied all allegations made by Hawkins. On February 10, 2003, a General Sessions Judgment was entered in favor of Defendants. On that same day, Hawkins appealed to the Shelby County Circuit Court. On October 3, 2003, Defendants filed a Motion for Summary Judgment, along with a Statement of Material Facts. On October 22, 2003, Hawkins filed a Motion for Summary Judgment, along with his Statement of Facts in support thereof. The trial court heard the motions on November 14, 2003. The trial court found that, pursuant to T.C.A. § 40-38-108 (2003), Defendants were immune from prosecution. On November 17, 2003, the trial court entered its Order, granting summary judgment in favor of Defendants.

The thirty day period for filing an appeal began to run on November 18, 2003 and expired on December 17, 2003. Hawkins did not file an appeal during this period. On January 13, 2004, Hawkins filed a “Motion to Set Aside Summary Judgment.” In his Motion, Hawkins asserted that he was not time barred from filing due to his medical condition. On December 3, 2003, Hawkins suffered a stroke and was hospitalized until December 11, 2003. On January 29, 2004, Hawkins’ treating physician wrote a letter to the trial court indicating that Hawkins would require thirty days from release to recover. Defendants were given an opportunity to dispute the doctor’s contention. The trial court chose to treat Hawkins’ “Motion to Set Aside Summary Judgment” as a Tenn. R. Civ. P. 60.02 motion. Based upon the one year time period for filing a Rule 60.02 motion, the trial court found that Hawkins’ Motion was timely. In light of Hawkins’ stroke and subsequent medical treatment, the trial court found that there were extraordinary circumstances and extreme hardship and, consequently, vacated its Order of November 17, 2003. On February 5, 2004, the trial court entered a second Order, granting Defendants’ Motion for Summary Judgment.

Hawkins filed a timely appeal from this second Order. The sole issue for review is whether the trial court erred in granting Defendants’ Motion for Summary Judgment on the grounds that Defendants are immune from prosecution under T.C.A. § 40-38-108.

It is well settled that a motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ.P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.

The resolution of the issue before this Court hinges upon whether the Defendants are immune under T.C.A. § 40-38-108 (2003). The construction and interpretation of a statute is a question of law. The Beare Co. v. Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn.1993). Summary judgment is a preferred vehicle for disposing of purely legal issues. See Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993); Bellamy v. Federal Express Corp., 749 S.W.2d 31 (Tenn.1988). Consequently, this issue is particularly suited to disposition by summary judgment. See, e.g., Browder v. Logistics Management, Inc., 1996 WL 181435, 1996 LEXIS Tenn.App. 227 (Tenn.Ct.App.1996); see also Rainey [v. Stansell], [836 S.W.2d 117 (1992)] at 119. Since only questions of law are involved here, there is no presumption of correctness regarding the trial court’s grant of summary judgment. Bain at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

T.C.A. § 40-38-108 provides immunity for failure to comply with any provision of the Victims’ Bill of Rights, which would include a victim’s right to “[b]e fully informed orally, in writing, or by video tape ... [of][t]he methods by which the victim may obtain a monetary award or other benefits from the criminal injuries compensation fund and information about obtaining assistance in securing such award or benefits.... ” T.C.A. § 40-38-103(1X1). Under T.C.A. § 40-38-108, this immunity extends to “the state, a political subdivision of the state, a government employee, or other official or entity.” Id. (emphasis added). When interpreting a statute, the role of the Court is to “ascertain and give effect to the legislative intent.” Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn.1996). In the absence of ambiguity, legislative intent is derived from the face of a statute, and the Court may not depart from the “natural and ordinary” meaning of the statute’s language. Davis v. Reagan, 951 S.W.2d 766, 768 (Tenn.1997); Westland West Community Assoc. v. Knox County, 948 S.W.2d 281, 283 (Tenn.1997). In addition to being bound by the plain language of the statute, this Court is also bound by the general rules of grammatical construction. See, e.g., Melton v. State, 160 Tenn. 273, 23 S.W.2d 662 (1930); McCollum v. Huffstutter, No. M2002-00051-COA-R3-CV, 2002 WL 31247077 (Tenn.Ct.App. Oct.8, 2002).

CMI and McGee contend that they are immune under T.C.A. § 40-38-108 because they were acting in an official capacity on behalf of the District Attorney General to provide information to victims of criminal acts within the State of Tennessee. While we find nothing in this record to indicate that CMI or McGee was either authorized or implored to act on behalf of a governmental entity, we nonetheless find that, under the plain language of T.C.A. § 40-38-108, association with a governmental entity is not required for immunity. The statute specifically extends immunity to “other” officials or entities, but does not specify whether those officials or entities must be governmental. In the context of this statute, we cannot stretch grammatical construction so far as to read the word “government” (as in “government employee”) to modify anything other than the word “employee”. In short, the words “other official or entity” are not limited by the legislature’s use of modifiers. We must, therefore, read “other official or entity” expansively to include any other official or entity. Consequently, under T.C.A. § 40-38-108, both CMI (as an “entity”) and McGee (as an “official” of that entity) are immune from prosecution for any failure to properly inform Hawkins of his rights.

For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are assessed against Appellant, Woodrow Jerry Hawkins, and his surety, if any.

      . T.C.A. § 40-38-109(2003) reads, in relevant part, as follows:
      40-38-108. Immunity for failure to comply. — Failure to comply with any provision of this part shall not create a cause of action or claim for damages against the state, a political subdivision of the sate, a government employee or other official or entity, and no such cause of action shall be maintained ...


author: JOSEPH M. TIPTON, J.,

text:
    STATE of Tennessee v. Kevin MAGNESS.
    Court of Criminal Appeals of Tennessee, at Nashville.
    July 21, 2004 Session.
    Sept. 28, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 14, 2005.
    Petition to Rehear Denied Feb. 28, 2005.

      Steven R. Roller, McMinnville, Tennessee, and Donald Capparella, Nashville, Tennessee, for the appellant, Kevin Magness.
    Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JOSEPH M. TIPTON, J.,

delivered the opinion of the court,

in which NORMA McGEE Ogle and ROBERT W. WEDEMEYER, JJ., joined.

A Warren County Circuit Court jury convicted the defendant, Kevin Magness, of manufacturing more than one hundred grams of methamphetamine, a Class B felony, and the trial court sentenced him as a Range I, standard offender to eight years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction, and (2) the trial court erred by allowing into evidence the manner by which the state calculated the weight of the substance containing methamphetamine. We hold that the evidence is sufficient to show felonious manufacturing but that an incorrect standard was used to calculate the weight of the controlled substance. We modify the defendant’s conviction to reflect a conviction for a Class C felony, and we remand the case to the trial court for resentencing.

This case relates to the defendant’s manufacturing methamphetamine on June 12, 2002. At trial, Warren County Sheriffs Deputy Stewart Caldwell testified that he received a tip that the defendant was operating a methamphetamine laboratory (“meth lab”) at his house on Old Shelby-ville Road. He said that he and Warren County Sheriffs Deputy Kevin Murphy decided to investigate by driving to the defendant’s house. Deputy Caldwell testified that they drove into the defendant’s driveway, parked,, and approached the house. He said the defendant came out of his house and asked them why they were there. Deputy Caldwell said he explained to the defendant that he had received information that someone at the defendant’s address was manufacturing methamphetamine and asked the defendant for permission to search the premises. He said the defendant consented to the search.

Deputy Caldwell testified that they went to the defendant’s barn and began to search. He said he found a “large garbage bag containing trash from a meth lab” as soon as he began to search. He said the trash consisted of “brake cleaner and coffee filters that were stained.” Deputy Caldwell testified that they stopped the search upon finding what they believed to be evidence of a meth lab.

Deputy Murphy testified that when they stopped the search, he advised the defendant of his Miranda rights and that, upon their request, the defendant signed a consent form allowing the deputies to continue searching the barn. Deputy Murphy said that after the defendant consented in writing, other law enforcement officers arrived at the defendant’s home to conduct the search. - He said that during the search, he found layered liquids of what he believed to be iodine.

Deputy Murphy testified that he had been responsible for the evidence log during the search of the barn. He said many different items were found during the search which are used in the process of manufacturing methamphetamine. He testified that these items included (1) a jar containing a layered liquid, (2) two twenty ounce bottles containing layered liquids, (3) iodine crystals, (4) Red Devil lye, (5) a respirator, (6) a tea jug containing red residue, (7) “several matchbooks with striker pads missing,” (8) stained coffee filters, (9) a chemical suit, (10) rubbing alcohol, (11) cans of brake cleaner, and (12) an exhaust system. He testified in meticulous detail as to how each of these items is used in order to manufacture methamphetamine.

Warren County Sheriffs Department Lieuténant Jody Cavanaugh testified that he obtained a search warrant in order to search the defendant’s house and that the search of the house revealed over four hundred eighty diet and sinus pills containing pseudoephedriné, a substance critical to manufacturing methamphetamine. Lieutenant Cavanaugh also explained how the items discovered in the barn were used in the methamphetamine manufacturing process.

Warren County Sheriffs Deputy Daniel Chisam testified that he was involved in the investigation of the defendant’s barn. He said he had received meth lab investigation and interdiction training from the Drug Enforcement Administration at a week-long program in Quantico, Virginia. He said that as a result of this enhanced training, he was certified to investigate “clandestine meth labs.” He also testified as to how the items discovered in the barn and in the house are used in the methamphetamine manufacturing process. On cross-examination, Deputy Chisam conceded that only one of the three bottles found in the barn tested positive for methamphetamine and that the bottle which did test positive lacked one step from being completed in order for the drug to be capable of being consumed. Deputy Chi-sam said the layered bottle would have to “be gassed off, using muratic acid or salt.” He explained, “What this gas does is evaporate the brake cleaner and turn the liquid into a powder.” Deputy Chisam also conceded that there was no way of knowing for certain how much methamphetamine would result after the final step was completed and that until the final step was completed, the drug could not be ingested.

David Brown of the Tennessee Bureau of Investigation, Forensic Services Division testified that he tested the substances sent to him by the Warren County Sheriffs Department. Agent Brown said that the testing revealed one of the substances contained methamphetamine and that the total weight of the substance containing methamphetamine was 101.1 grams. On cross-examination, Agent Brown acknowledged the substance containing methamphetamine was not consumable until the brake cleaner was removed.

The defendant testified that he had made methamphetamine in the past for his own personal use because he did not want to die from using methamphetamine manufactured by someone else. He said that he was not currently using or making methamphetamine and that the items recovered from his barn were either related to his work or they were “from other people doing it.” The defendant denied ever making methamphetamine in his barn, and he said he did not know how the substance containing methamphetamine got into his barn.

The jury convicted the defendant of manufacturing methamphetamine over one hundred grams. After finding no applicable enhancement factors, the trial court sentenced the defendant to a term of eight years in the Department of Correction, the presumptive minimum sentence for a Range I, standard offender convicted of a Class B felony.

I. SUFFICIENCY OF THE EVIDENCE

[REDACTED FROM PUBLISHED OPINION]

II. WEIGHING A SUBSTANCE CONTAINING METHAMPHETAMINE

The defendant claims that the trial court erred by allowing the state to admit into evidence the weight of the substance containing methamphetamine as 101.1 grams. He claims this was error because brake cleaner was included with the methamphetamine in the substance which TBI Agent Brown tested. The defendant argues that this impermissibly increased the weight of the substance containing methamphetamine because it rendered the substance unmarketable and requests this court to apply the “market-oriented” approach to Tennessee Code Annotated section 39-17-417 in order to determine the weight of a substance containing methamphetamine. The defendant claims that this issue presents a question of first impression in Tennessee.

The state has urged that we look to the plain meaning of the statute and conclude that the term “substance containing” applies to the mixture of brake cleaner and methamphetamine. The statute provides that a person who knowingly manufactures “one hundred grams or more of any substance containing amphetamine or methamphetamine” is guilty of a Class B felony. T.C.A. § 39 — 17—417(i)(10) (emphasis added). The state argues the plain meaning of this section allows it to include in its calculation the weight of the brake cleaner fluid, provided that a detectable amount of methamphetamine is present.

“A basic principle of statutory-construction is to ascertain and give effect to legislative intent without unduly restricting or expanding the intended scope of a statute.” Parks v. Tennessee Mun. League Risk Management Pool, 974 S.W.2d 677, 679 (Tenn.1998) (citing Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995)). However, if the statutory language is ambiguous “courts must look to the statutory scheme as a whole, as well as legislative history, to discern its meaning.” Parks, 974 S.W.2d at 679 (citing Owens, 908 S.W.2d at 926). If the plain meaning of a statute is applied in specific situations so as to produce an absurd or incongruous result, the intent of the General Assembly will prevail over the statutory language. See Barnett v. Barnett, 27 S.W.3d 904, 909 (Tenn.2000) (citing Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 5 (Tenn.1994)).

When the fair import of the language of a penal statute, in the context of the legislative history and case law on the subject, still results in ambiguity, the rule of strict construction would apply to limit the statute’s application to those persons or circumstances clearly described by the statute. State v. Horton, 880 S.W.2d 732, 735 (Tenn.Crim.App.1994). In other words, “[t]he rule of lenity is a tie-breaker when there is an otherwise-unresolved ambiguity.” United States v. White, 888 F.2d 490, 497 (7th Cir.1989). This rule is more than one of convenience. The application of strict construction by which ambiguities in a penal statute are construed in favor of lenity “is rooted in fundamental principles of due process which mandate that no individual be forced to speculate ... whether his conduct is prohibited.” Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979); accord State v. Richmond, 171 Tenn. 1, 100 S.W.2d 1, 3 (1937).

We begin our statutory interpretation by looking to the definition of the words “substance containing” in order to determine whether the plain meaning of that phrase allowed the state to weigh the methamphetamine along with the brake cleaner. “Substance” is defined as “physical material which has discrete existence” or “matter of a definite chemical composition.” Webster’s Collegiate Dictionary 1174 (10th ed.1996). “Contain” is defined as “to hold together, hold in,” “to keep within limits,” or “to have within.” Id. at 249.

While the state contends the statutory language “substance containing” is plain and unambiguous, we note that federal courts interpreting the identical phrase codified in the Federal Comprehensive Drug Abuse Prevention and Control Act failed to achieve a consensus on this very issue. See cert. denied Fowner v. U.S., 504 U.S. 933, 112 S.Ct. 1998,118 L.Ed.2d 594 (1992) (White, J., dissenting) (recognizing the circuit split on the interpretation of “substance containing”). For example, in United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.1991), an airline passenger was arrested at an airport after a search revealed that his briefcase’s acrylic lining had cocaine chemically attached to it. The trial court weighed the entire briefcase minus its metal parts in arriving at the appropriate sentence. On appeal, the first circuit held that the plain meaning of the phrase “substance containing” justified the trial court in weighing the entire suitcase along with the cocaine in order to calculate the defendant’s sentence under the Federal Sentencing Guidelines. 936 F.2d at 624-26; accord United States v. Restrepo-Contreras, 942 F.2d 96 (1st Cir.1991) (holding the entire weight of a statue made of cocaine and beeswax could be included for sentencing). On the other hand, in United States v. Jennings, 945 F.2d 129, 136-37 (6th Cir.1991), the court held that “interpreting the statute to require the inclusion of the entire contents of the Crockpot [containing methamphetamine and unreacted poisonous chemicals] for sentencing ... would both produce an illogical result and be contrary to the legislative intent underlying the statute.” 945 F.2d at 136 (citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982)).

Although the state believes that the language in Tennessee Code Annotated section 39-17-417 is clear and unambiguous, we note that the phrase “substance containing” was sufficiently ambiguous to create a split of authority among the federal appellate courts. We agree with the Jennings court and believe that the state’s literal interpretation approach to the phrase “substance containing” could produce illogical and absurd results. We conclude that in order to answer the question of the proper method for weighing a “substance containing” methamphetamine, we must look to the process by which our state has enacted, modified, and amended the Tennessee Drug Control Act relative to changes in federal drug laws.

In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, a statute designed to rationalize federal drug laws. See Pub.L. 91-513, Title II, § 401 (1970); 1970 U.S.C.C.A.N. 4566; accord The Nat’l Org. for the Reform of Marijuana Laws (NORML) v. Drug Enforcement Admin., 559 F.2d 735, 737 (D.C.Cir.1977). The legislative history of the act indicates that Congress intended to limit commercial trafficking in narcotics. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974); 116 Cong. Rec. 1665 (1970) (remarks by Senator Hruska).

In 1971, the Tennessee General Assembly passed the Tennessee Drug Control Act “to provide for a comprehensive system of drug abuse control for Tennessee.” 1971 Tenn. Pub. Acts ch. 163. The legislation passed by the General Assembly was modeled on the Uniform Controlled Substances Act which was drafted in order “to achieve uniformity between the laws of the several states and those of the federal government.” Unif. Controlled Substances Act, 9 (Part II) U.L.A. 2. Compare Pub.L. 91-513, Title II, § 401, with 1971 Tenn. Pub. Act. ch. 163.

In 1984, 1986, and 1988, Congress amended the Drug Abuse Prevention and Control Act of 1970. Pub.L. 100-690, Title VI, §§ 6055, 6254(h), 6452(a), 6470(g), (h), 6479 (1988); Pub.L. 99-570, Title I, §§ 1002, 1003(a), 1004(a), 1005(a), 1103 (1986); Pub.L. 98-473, Title II, §§ 224(a), 502, 503(b)(1), (2) (1984). These amendments focused on ensuring that federal drug laws would impose penalties based upon the seriousness of the offense, reserving the most serious penalties for those who were commercial traffickers of large quantities of illegal drugs. In 1989, Tennessee also reformed its criminal laws, including the Drug Control Act, to punish offenders more uniformly based upon the seriousness of the offense. See 1989 Tenn. Pub. Acts. ch. 591, at 1254-79.

In the 1989 act, the Tennessee General Assembly provided that if any controlled substance was “designated, rescheduled, or deleted as a controlled substance under federal law ..., the commissioner, upon agreement of the commissioner of health, shall similarly control the substance” under Tennessee law. T.C.A. § 39-17-403; 1989 Tenn. Pub. Acts, ch 591, at 1257-58. Moreover, this court has noted that Tennessee’s Drug Control Act “was enacted to compliment ... federal laws regarding drug control.... ” State v. Frank Mon giove, No. 115, Sevier County, slip op. at 12, 1991 WL 9036 (Tenn.Crim.App. Jan. 31, 1991); see also Hughes v. State, Department of Safety, 776 S.W.2d 111 (Tenn.Ct.App.1989) (noting that the 1986 amendment of the General Assembly “intended to ... make the state law the same as the federal [drug] forfeiture statutes”).

Currently, the relevant Tennessee and federal statutes contain identical language for determining the method by which trial courts are to weigh methamphetamine, using the phrase “substance containing ... methamphetamine.” Cf. 21 U.S.C.A. § 841(b)(1)(A)(viii) (proscribing penalties for “500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers”) (emphasis added); T.C.A. § 39-17-417(i)(10), (j)(10) (proscribing penalties for respectively 100 and 1000 grams or more of “any substance containing amphetamine or methamphetamine or any salt or optical isomer of amphetamine or methamphetamine”) (emphasis added). Concluding that Tennessee’s illegal drug laws were enacted to mirror the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, we look-to how Congress and the federal courts have resolved the issue presented by the defendant.

Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), is the seminal case concerning the method of weighing substances containing illegal drugs in order to determine the appropriate punishment range for a defendant accused of violating federal drug laws. In Chapman, the Supreme Court held that the proper method for weighing lysergic acid diethylamide (“LSD”) made commercially marketable by placing small amounts of the drug on a carrier medium, blotter paper, was to include the blotter paper when weighing the substance. The Court focused on the legislative history of federal illegal drug laws. The Court first noted that the 1984 amendments to the Federal Comprehensive Drug Abuse Prevention and Control Act were enacted “to provide a more rational penalty structure for the major drug trafficking offenses.” Tufning to the legislative history of the 1986 amendments, the Court found Congress had “adopted a ‘market-oriented’ approach to punish drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence.” In concluding that the trial court had properly included the weight of the blotter paper in affixing the defendant’s sentence, the Court held,

By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme.

Chapman, 500 U.S. at 459-65, 111 S.Ct. 1919 (citing H.R.Rep. No. 99-845, pt. 1, pp. 11-12,17 (1986); S.Rep. No. 98-225, at 255 (1983), 1984 U.S.C.C.A.N. 3182, 3437).

The lower federal courts, applying Chapman split on the issue presented for review in this case; namely, whether trial courts should also include toxic substances and substances that have to be removed from a mixture before the illegal drug can be sold or marketed. In Jennings, supra, the sixth circuit applied the “market-oriented” approach of Chapman. The defendant in Jennings was convicted of manufacturing methamphetamine over 4000 grams. The methamphetamine seized by the government was combined with un-reacted chemicals and had not completed the “cooking” process. The court noted that the mixture or “substance containing” methamphetamine contained poisonous substances which could not be ingested by-potential methamphetamine users. The court focused its analysis on the “market oriented” approach and held that unreact-ed, poisonous chemicals could not be combined for purposes of weighing the methamphetamine because such a substance was not consumable or marketable. 945 F.2d 129,136-37 (6th Cir.1991).

However, the fifth circuit in United States v. Sherrod, 964 F.2d 1501 (5th Cir.1992), arrived at a contrary result. In Shenvd, the defendant was convicted of manufacture of methamphetamine in excess of one kilogram. The defendant appealed claiming the trial court erred by allowing the government to weigh the entire mixture or substance containing methamphetamine, which was found in three separate containers combined with unreacted chemicals. In sustaining the defendant’s conviction and resulting sentence, the fifth circuit distinguished Chapman and stated that Congress did not intend to apply the “market oriented” approach to methamphetamine. The court noted Congress had treated methamphetamine different from cocaine and heroine by providing for varying weight amounts based upon whether the methamphetamine was in a pure or diluted form. The court held that it was proper for the trial judge to weigh the unreacted chemicals and the methamphetamine together in order to calculate the defendant’s sentence under the guidelines. 964 F.2d at 1509-10.

We disagree with the fifth circuit’s analysis of Chapman. The Supreme Court distinguished methamphetamine from cocaine and heroine in Chapman to buttress its argument that Congress intended carrier agents and mediums to be included for purposes of weighing cocaine and heroine. The Court compared the statutory language and concluded that because Congress had provided for different weights based upon pure or diluted forms of methamphetamine and because it did not similarly differentiate between pure and diluted forms of cocaine and heroine, Congress intended for carrier agents and mediums to be included in calculating the weight of those substances. Unlike the fifth circuit, we believe this analysis supports the proposition that the substance must be marketable or consumable in order to weigh it.

Before the Supreme Court chose to resolve the split among the lower courts, the Sentencing Guideline Commission amended section 2D1.1 of the federal sentencing guidelines entitled “Application Notes” as follows:

1. “Mixture or substance” as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. ... If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table, the court may use any reasonable method to approximate the weight of the mixture or substance to be counted.

U.S.S.G.App. C., Amend. 484 (1993). After the implementation of Amendment 484, the lower federal courts began to apply the new “Application Note,” thereby preventing the government from calculating a defendant’s sentence based upon “materials that must be separated from the controlled substance before the controlled substance can be used.” See United States v. Levay, 76 F.3d 671, 673-74 (5th Cir.1996) (holding pursuant to Amendment 484 that wastewater and precursor chemicals cannot be included when calculating the weight of an illegal drug under the federal sentencing guidelines); accord United States v. Stewart, 361 F.3d 373, 382 (7th Cir.2004) (holding “that only usable or consumable mixtures or substances can be used in determining drug quantity under § 841(b)”); United States v. Sprague, 135 F.3d 1301, 1306 (9th Cir.1998) (holding that' under the guidelines, the government cannot include the weight of substances that must be removed before the solution containing methamphetamine can be consumed).

While the method by which our General Assembly has enacted, modified, and amended the Tennessee Drug Control Act in relation to federal drug laws provides, persuasive authority that its intent was to follow the market oriented approach, we note that this court has already addressed this issue. In State v. Ash, 729 S.W.2d 275 (Tenn.Crim.App.1986), the defendant was convicted “of possession of a substance containing more than five grams of LSD.” On appeal, the defendant contended that the phrase “substance containing” was im-permissibly vague. This court, in affirming the conviction stated,

Given the nature of the drug LSD, it is necessary that the statute not require a particular weight of the pure substance. LSD is rarely, if ever, sold in the “street” marketplace in its pure form. It is ordinarily sold in tablets, on dots of paper, or on some other agent. The dosage is measured in micrograms. Thus, it would be impossible to define with any precision the exact weight of pure LSD which constitutes criminal possession. Rather, it is the weight of the substance (agent) that can be defined, and the legislature has done so in the statute.

729 S.W.2d at 280 (emphasis added). This court in State v. Alcorn, 741 S.W.2d 135 (Tenn.Crim.App.1987), addressed a nearly identical issue in the context of cocaine when the defendant appealed his conviction for possession of a substance containing cocaine that was only 32.1 percent pure. This court cited Ash with approval stating, “Similar issues were raised in [Ash where] we concluded that given the usual forms in which the drug is marketed and consumed, the phrase ‘any substance containing LSD’ refers to the agent that contains LSD as well as the pure form of the drug....” The defendant, however, asserted that the statute was impermissibly vague because, he argued, cocaine would almost always be “contained in, or enclosed by, some other object (a bag, a fruit jar, even an automobile)” that would exceed the statutory weight. This court rejected the defendant’s argument stating, “The defendant! ] may not rely on possible applications that did not occur in this case.... Moreover, our construction of the statute would seem to preclude such possibilities.” This court then held that a “carrier medium” can be included with the pure cocaine when calculating the weight of “any substance containing cocaine.” 741 S.W.2d at 137-38 (emphasis added).

We believe Tennessee has adopted a “market-oriented” approach based upon this court’s precedents and the method by which our General Assembly has modified and amended the Tennessee Drug Control Act in relation to federal drug laws. Based upon Alcorn and Ash, and the rule of lenity, we conclude that the brake cleaner seized by the state was neither consumable nor marketable and that the nonprecursor, toxic substance used in the manufacturing process was impermissibly weighed with the methamphetamine.

Although the evidence cannot sustain the defendant’s conviction for Class B felony manufacture of methamphetamine over 100 grams, it is sufficient to support a conviction for Class C felony manufacture of methamphetamine. We modify the defendant’s conviction to a Class C felony and remand the case to the trial court for resentencing,