author: E. RILEY ANDERSON, J.,

text:
    Phyllis A. YOUNG v. TAYLOR-WHITE, LLC.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 8, 2005 Session.
    Oct. 20, 2005.

      Daniel R. Goodge and Alexandra S. Deas, Knoxville, Tennessee, for the Appellant, Taylor-White, LLC.
    Terry E. Hurst and Brad L. Davidson, Newport, Tennessee, for the Appellee, Phyllis A. Young.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and ADOLPHO A. BIRCH, JR. and JANICE M. HOLDER, JJ., joined.

We granted review in this workers’ compensation case to determine whether the trial court erred in awarding benefits to an employee injured while attending an employer-sponsored company picnic. After reviewing the evidence and applicable authority, we conclude that the employee’s injury did not occur in the course of her employment and therefore is not compen-sable under the workers’ compensation law. Accordingly, we reverse the trial court’s judgment.

Phyllis A. Young (‘Young”) filed a complaint against her employer, Taylor-White, LLC (“Taylor-White”), alleging. that she suffered a compensable injury to her shoulder on September 14, 2002, at a company-sponsored picnic. Taylor-White denied that the injury was compensable because it did not arise out of and in the course of employment. At trial, the parties agreed that the only issue before the court was whether Young’s injury of September 14, 2002 was compensable.

Background

The pertinent facts as developed at trial are undisputed. Young went to work for Taylor-White in 1999 making television sets and was fifty-four years old at the time of trial.

On September 14, 2002, Taylor-White sponsored a company picnic. The picnic was held on a Saturday, outside of work hours, at a public park off of the company’s premises. Young and other employees were informed of the picnic by signs on the Taylor-White plant’s bulletin boards and by word-of-mouth from one of the supervisors.

Young testified that she attended the picnic with her friend, Sarah Bales (“Bales”), also a Taylor-White employee, and participated in a number of games. These included a hula-hoop contest, a balloon toss, and a three-legged race. The three-legged races were organized in heats, with the winners of each heat advancing. Young and Bales had won two races and were competing in a third when Young stepped on something and fell, injuring her shoulder. After she fell, Jack Lester, a member of Taylor-White management, came to see what had happened and told Young’s sister-in-law to take her to the hospital.

Eddie Cooper (“Cooper”) testified that he was a Human Resources Specialist at Taylor-White and that his duties included helping to organize the annual picnic. Taylor-White hired an entertainment company called Funville to organize the picnic. A Funville D.J. played music and organized a number of games at the picnic, including the three-legged race. Prizes were offered to the winners of some of the games, including a $50.00 prize to be split between the two winners of the three-legged race. Taylor-White also gave door prizes to attendees. Taylor-White usually spent between $17,000 and $19,000 on the picnic.

Cooper explained that Taylor-White required employees to sign up for the picnic in advance so that the company could get an attendance count for purchasing food. Upon arrival at the picnic, employees had to check in and received an arm band to wear during the picnic. Neither employees nor management were required to attend the picnic. There were no adverse consequences if an employee signed up but did not attend the picnic, and no one was paid for attending. Cooper said that he did not attend the picnic one year and that there were no consequences for his failure to attend.

Young conceded that she was not required to attend the picnic and was not required to participate in any games at the picnic. She said that the announcer had particularly encouraged her and Bales to pai'ticipate, referring to them as “Laverne and Shirley,” and she felt that the announcer “kept insisting” that she participate in the games. She said, however, that her Taylor-White supervisors did not require her to participate, and she understood that the picnic was a benefit Taylor-White provided to show its appreciation to its employees.

Sarah Bales testified that she did not feel that Taylor-White or her supervisor expected her to attend the picnic or required her to participate in any games. Bales had worked at Taylor-White for five and a half years and had attended the picnic every year but one. She said that there were not any consequences for her failure to attend the picnic that year.

Following her shoulder injury, Young was off work for four months. She then returned to work at Taylor-White, but continued to have difficulty with her shoulder. She began seeing Dr. Stephan Ponder, who told her that she “was keeping it aggravated.” Dr. Ponder recommended surgery, and Young underwent surgery on December 17, 2003.

After hearing the testimony of only three witnesses, Young, Bales, and Cooper, the trial court held that the injury was compensable. The trial court reasoned that although Taylor-White did not officially require Young or any other employee to attend the picnic, she was encouraged to participate in the race both by the verbal inducement of the Funville announcer and by the offer of the $50.00 prize for first place. The trial court noted that Taylor-White paid for the picnic as it had for several years; that it promoted the picnic; and that the company approved of the games and activities offered by Fun-ville at the picnic.

Taylor-White appealed. We accepted review before the case was heard or considered by the Special Workers’ Compensation Appeals Panel.

Analysis

Our standard of review of factual issues in a workers’ compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (2005); see also Blankenship v. Am. Ordnance Sys., LLS, 164 S.W.3d 350, 353 (Tenn.2005). Our standard of review of questions of law is de novo without a presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003).

To be compensable under the workers’ compensation law, an injury must “aris[e] out of and in the course of employment.” Tenn.Code Ann. § 50-6-102(13) (2005). “In Tennessee, as in most jurisdictions, the statutory requirements that the injury arise out of and occur in the course of the employment are not synonymous, although both elements exist to ensure a work connection to the injury for which the employee seeks benefits.” Blankenship, 164 S.W.3d at 354 (citing Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 901 (1957)).

An injury arises out of the employment when “there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Blankenship, 164 S.W.3d at 354 (citing Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn.2005)). An injury occurs in the course of employment if “it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.” Blankenship, 164 S.W.3d at 354 (quotation and citation omitted). The issue in this case is whether Young’s injury occurred during the course of her employment with Taylor-White.

The requirements that an injury arise out of and occur in the course of employment exist to ensure that there is a rational relationship between the employment and the activity in which the employee was engaged when the injury occurred. See, e.g., id. Therefore, the fact that an injury occurs at an employer-sponsored event, or even on the employer’s premises or during normal work hours, is not determinative of whether it occurred during the course of the employment. This is particularly so when participation in the activity causing the injury is not required by the employer. For example, in Blankenship, the employee sustained a back injury while performing a voluntary strength test on the employer’s premises. The employer paid for the test and administered it to employees who were interested in applying for different jobs within the employer’s plant. We held that the injury did not occur in the course of the employment because the evidence established that taking the test was strictly voluntary; there was “no element of compulsion on the employer’s part.” Id. at 355 (internal quotation omitted); see also Ward v. Mid-South Home Serv., 769 S.W.2d 486, 487-88 (Tenn.1989) (holding that construction worker’s knee injury did not occur in the course -of employment where it was sustained during an impromptu basketball game during work break at job site).

We recognize, however, that when an employee acts at the request of his or her employer, the activity may occur in the course of the employment even though the activity'is outside the scope of the employee’s normal duties or occurs off of the job site. Under some circumstances, the course of employment extends beyond the normal bounds of work; injuries causally connected to such extended job circumstances necessarily arise from the employment as well. For example, in McCann v. Hatchett, 19 S.W.3d 218 (Tenn.2000), we adopted the rule that traveling employees remain in the course of their employment throughout the duration of their trip, unless “there is a distinct departure on a personal errand.” 19 S.W.3d at 221. In McCann, we reversed the grant of summary judgment to the employer where the employee drowned in a motel pool while on a business trip for the employer. We held that “[bjeeause an employee who travels on the business of the employer is considered to be within the course of his or her employment continuously during the trip, reasonable recreational activities properly undertaken by the employee during the trip are rationally connected to the work.” Id. at 222.

Put another way, because the employee serves at the pleasure of the employer, when the employee is engaged in an activity required by or at the direction of the employer, the employer’s compulsion brings the activity within the course of the employment. The injury arises out of the employment if the injury is causally related to the activity required by the employer, even if that activity bears no relationship to the employee’s normal work duties.

The trial court resolved this case by applying a test formulated by Professor Larson addressing recreational injuries as a particular class of work-related injuries. The so-called “Larson test” provides that:

Recreational or social activities are within the course of employment when
(1) they occur on the premises during a lunch or recreational period as a regular incident of the employment; or
(2) the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of the employee, brings the activity within the orbit of the employment; or
(3) the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

2 Larson’s Workers’ Compensation Law § 22.01 (2001).

Although never explicitly approved by this Court, two Special Workers’ Compensation Appeals Panels have applied the Larson test in resolving cases involving recreational injuries. Segars v. Liberty Mut. Ins. Co., 1996 WL 164453, *3 (TennWorkers Comp.Panel 1996) (holding injury sustained by employee while playing volleyball at company picnic was compen-sable where employee testified that his employer told him he expected to see him there and requested three times that he play volleyball); see also Tucker v. Acme Boot Co., Inc., 856 S.W.2d 703, 705 (Tenn. Workers’ Comp. Panel 1993) (holding employee’s injury sustained while playing softball on company team was not compen-sable).

In light of the principles discussed above, we decline to adopt the Larson test as a rule for resolving all cases involving recreational injuries. In our view, the voluntary nature of the activity, rather than the fact that the activity occurs on the employer’s premises or provided a benefit to the employer, is the touchstone for determining whether the injury occurred during the course of employment.

The trial court and the parties correctly identified the issue in this case as whether Young’s participation in the three-legged race at the picnic was voluntary or was impliedly required as part of her employment. The trial court, relying heavily on Segars, held that Young’s participation was not voluntary, because she testified that the D.J. encouraged her to participate in the race. The trial court also reasoned that the $50.00 first prize, to be split between the two winners, was an inducement by Taylor-White to participate in the race.

Although the D.J. did encourage Young to participate in the race, neither mere encouragement nor the offer of a nominal cash prize is enough to transform what would otherwise be a voluntary activity into one within the course of employment. Young testified that she chose to attend the picnic and chose to participate in the race and that she did not feel compelled to do so. She testified that she understood that she was not required to participate in the picnic or the race; that attendance at the picnic and participation in the events was voluntary; and that there would be no employment consequences for declining to participate. Young’s co-worker and friend, Bales, as well as Human Resources Specialist Cooper, also testified that attendance at the picnic was voluntary. The preponderance of the evidence therefore does not support the trial court’s holding that Young’s participation in the race was involuntary. To the contrary, the preponderance of the evidence shows that it was voluntary. Therefore, although Young’s injury certainly arose out of her participation in the three-legged race, because the race was not within the course of her employment, the injury is not compensa-ble.

Conclusion

After considering the applicable authority and the arguments of the parties, we reverse the judgment of the trial court awarding benefits to Young. We hold that the injury to her shoulder did not occur in the course of her employment with Taylor-White. Costs of the appeal shall be assessed to the appellee, Phyllis A. Young.


source: Caselaw Access Project

author: WILLIAM M. BARKER, C.J.,

license: Public Domain

text:
    Eric TETER v. REPUBLIC PARKING SYSTEM, INC.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 8, 2005 Session.
    Nov. 29, 2005.

      John C. Harrison and William H. Horton, Chattanooga, Tennessee, for the appellant, Republic Parking System, Inc.
    B. Stewart Jenkins, Chattanooga, Tennessee, for the appellee, Eric Teter.
   OPINION

WILLIAM M. BARKER, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ. joined.

The dispute in this case arises out of an employment contract which provides severance pay for an employee who is terminated for reasons “other than gross misconduct, fraud, embezzlement, theft or voluntary termination.” The defendant employer ceased providing severance pay to the employee after the employer discovered that the employee had engaged in gross misconduct while still employed by the company. The employee sued for breach of contract, seeking the severance pay due under the contract; the employer responded that had it known previously of the gross misconduct, it would have fired the employee, thus absolving it of any duty to provide severance pay. The trial court granted summary judgment for the employee, after concluding that the employee had been involuntarily terminated, thus triggering the severance pay provision, and that there was no clear and convincing evidence that the employer would have fired the employee had it known of the gross misconduct. The employee was awarded $795,037.35, less thirty days severance pay already paid, plus prejudgment interest. The Court of Appeals affirmed. We hold that after-acquired evidence of employee misconduct need only be shown by a preponderance of the evidence in order to avoid liability in a breach of contract action, and because there is a genuine issue of material fact as to whether the employee would have been fired had the employer discovered the gross misconduct, we remand the case for trial. On the remaining issues raised by the employer, we affirm the Court of Appeals: the employee did not voluntarily resign from his position but was involuntarily terminated; the payment schedule found in the “Employment Protection Plan” regarding severance pay was incorporated into the employment contract; and the severance pay provisions did not constitute an illegal penalty.

Factual Background

Republic Parking System, Inc. (“RPS”) is a Tennessee corporation with its principal place of business in Chattanooga, Tennessee. It operates numerous parking facilities throughout the United States. James Berry (“Mr. Berry”) is the majority stockholder and Chief Executive Officer of RPS. The plaintiff, Eric Teter (“Mr. Tet-er”), previously worked for Central Parking System, which was one of RPS’s main competitors, and by 1994, was the General Manager and Vice President of European Operations for Central Parking System.

In 1995, Mr. Teter resigned his position with Central Parking System and began working for RPS as a regional vice president. His duties included the management of existing business as well as solicitation of new business. Mr. Teter and RPS entered into an employment agreement dated November 27, 1995, containing a severance pay provision under which Mr. Teter would receive 12 months base salary plus twelve months bonus and commission payments if he were “discharged for any reason other than gross misconduct, fraud, neglect of job responsibilities or voluntary termination.”

Mr. Teter was later promoted to vice president of RPS’s nationwide urban parking operations, at which time he and RPS entered into a new employment contract with an effective date of January 1, 1997 (“the 1997 contract”). This contract included the following provisions:

EMPLOYER agrees to pay EMPLOYEE for said services the sum of One Hundred Thousand dollars gross per years base ($100,000.00), plus a sum equal to Fifteen (15.0%) of the monthly profits generated from the Urban Class “A” Operating Cities above <$12,-500.00> ... The bonus will be computed and paid each month within ten days of closing the accounts.
(4) This contract may be terminated by either party upon One Hundred Twenty (120) days written notice unless EMPLOYEE is discharged or resigns as a result of the commission by him or her of an act involving theft, embezzlement, fraud or intentional mishandling of Company funds, in which event such termination will be effective immediately. In the event EMPLOYEE is discharged for any reason other than gross misconduct, fraud, embezzlement, theft or voluntary termination, EMPLOYEE will be entitled to severance pay under the terms of the “Employment Protection Plan-Change in Ownership Structure” provision attached.

The “Employment Protection Plan” referred to in the 1997 contract includes the following:

A. In the event that James C. Berry is no longer the active Chairman and CEO of EMPLOYER or EMPLOYER is sold to an outside interest, then in such event EMPLOYEE has the option of voluntarily resigning, provided that such resignation becomes effective within one hundred eighty (180) days from date of change or sale with said lump sum payment as provided below being made on the date that such voluntary resignation become effective.

Change in Ownership Structure Employment Protection Plan

Years 1-2 of Employment 1.0 times previous years salary and bonus.

Years 3-4 of Employment 2.0 times previous years salary and bonus.

Years 5 + of Employment 3.0 times previous years salary and bonus.

The division of RPS of which Mr. Teter was in charge was profitable in 1998, 1999, and 2000. As a result, Mr. Teter received significant bonuses under his employment contract during those years.

In March 2001, Mark Huth (“Mr. Huth”) became president and Chief Operating Officer of RPS. Mr. Berry continued as the Chief Executive Officer and remained the company’s majority stockholder. Mr. Berry and Mr. Huth decided that the region of which Mr. Teter was in charge should be restructured and divided into two regions — one east of the Mississippi River and one west of the Mississippi River. It was their intention to reduce Mr. Teter’s region to only that part located east of the Mississippi River.

On August 10, 2001, Mr. Huth presented Mr. Teter with a proposed new employment contract. Under this new contract, Mr. Teter’s base salary would increase from $100,000 per year to $160,000 per year, but the formula by which his bonuses would be calculated would be changed so as to be less favorable to Mr. Teter. Additionally, the proposed employment contract did not contain any provision for severance pay. Mr. Teter met with Mr. Berry and Mr. Huth on August 13, 2001, at which time he rejected the proposed employment contract. Mr. Berry and Mr. Huth presented Mr. Teter with other alternative new contracts, none of which provided for a severance package as favorable as under the 1997 contract. Mr. Teter rejected each of the new proposals.

On September 5, 2001, Mr. Berry told Mr. Teter to take the next two days off from work, as other urban executives were coming to Chattanooga for a meeting and Mr. Berry believed it would be best if Mr. Teter was not present because his contract issue had not been resolved. Between September 5, 2001, and September 10, 2001, when Mr. Teter returned to work, the locks to the RPS executive offices had been changed, and Mr. Teter was unable to access the offices.

On September 11, 2001, Mr. Berry delivered an inter-office memorandum to Mr. Teter which provides, in pertinent part:

I am disappointed in that we have been unable to reach a mutually acceptable agreement for your continued employment and association with Republic Parking System....
In conclusion, I want to emphasize again, that I feel that we made you a good and honorable proposal, and it was a mistake for you not to have given it the serious consideration it deserved. From what I detected in our conversation yesterday, you were taking the position and made your decision based upon “it’s just the principle” without giving credit to the overall fairness and merits of the offer.
Having said all the above, since you have no desire to continue with RPS which you indicated, I guess we should part company and get on with life. Although under the circumstances we do not feel that we are required to provide any severance pay, we will pay you up to six (6) months the same as we paid Mark Pratt. This will be paid to you in the same manner in which you were being paid presently, twice monthly, including 50 percent of your estimated monthly bonus.

After Mr. Teter received the above memorandum from Mr. Berry, he began cleaning out his office in preparation for leaving RPS.

On September 12, 2001, one of RPS’s employees noticed that the central processing unit of Mr. Teter’s office computer was missing. Mr. Teter returned it the next day, stating that he had taken it in an attempt to delete some personal fries. Apparently concerned that Mr. Teter had downloaded proprietary information belonging to RPS from his office computer, RPS sent the central processing unit of the computer to a data company for examination. Analysis of Mr. Teter’s computer indicated that it had been used during business hours for viewing pornographic sites on the internet. Mr. Teter’s internet use left at least 30,000 image files on the hard drive, the vast majority of which were sexually-oriented photographs.

Mr. Berry sent Mr. Teter a letter on October 24, 2001, stating:

As I told you during our discussion [of October 19, 2001], I was very disappointed and shocked at the material that was discovered on your computer hard drive.... Inasmuch as it was obtained during working hours, it certainly falls under the “Gross Misconduct” category of your employment agreement dated April 16, 1997. If I had known this material existed before or during the time of our employment contract discussions, I would have terminated you immediately.
Therefore, in view of the fact this new information has come to light, I am hereby terminating your employment on grounds of gross misconduct and withdrawing the entire memorandum that I presented to you on September 11, 2001 and all the provisions contained therein....
You have been removed from Republic’s payroll effective, October 16, 2001.

The record contains other evidence, however, tending to contradict the assertion in Mr. Berry’s letter that he would have fired Mr. Teter immediately had he known of Mr. Teter’s viewing of pornographic internet sites at work. During his November 2002 deposition testimony, Mr. Berry stated that “I never looked at [Mr. Teter] being terminated” and that “I’d still like to have him back [at work for Republic].” The deposition also included the following:

Question: Now, Mr. Berry, prior to September 10, 2001, did you ever tell any employee that you may not use your computer during office hours for other than company business?
Answer: No, I never told any employee anything like that.
Question: Do you know of any executive within your company that ever made such a statement to anyone else in the employ?
Answer: Personally, I do not.

Mr. Teter sued RPS on November 13, 2001, for breach of contract, seeking severance pay under the terms of the 1997 contract. Mr. Teter later filed a motion for summary judgment, which the trial court granted on July 31, 2003, concluding that Mr. Teter was entitled to $796,037.35, less thirty days severance pay already paid to him. This amount represented three times Mr. Teter’s annual salary and bonus, as provided in the Employment Protection Plan referred to in the 1997 employment contract. Additionally, the trial court awarded prejudgment interest at the rate of 10% per annum.

In making its decision, the trial court found that RPS had discharged Mr. Teter; Mr. Teter did not voluntarily resign. The trial court held that after-acquired evidence of Mr. Teter’s misconduct could be used as a defense, but that RPS had to show by clear and convincing evidence that it would have fired Mr. Teter immediately had it discovered this misconduct while Mr. Teter was still employed. The court concluded that there was no clear and convincing evidence that RPS would have fired Mr. Teter. The Court of Appeals affirmed the decision of the trial court. We granted review.

It is RPS’s position that Mr. Teter voluntarily resigned his position with RPS and is therefore ineligible for severance pay. RPS also argues that the trial court erred in holding that after-acquired evidence of employee misconduct must be proven by clear and convincing evidence rather than by a preponderance of the evidence. It is RPS’s position that there is a factual issue as to whether RPS would have fired Mr. Teter. Additionally, RPS argues that the severance pay provisions of the “Employee Protection Plan” were not applicable in this case and that the severance pay provisions constitute an illegal penalty. Finally, RPS contends that the trial court abused its discretion in awarding prejudgment interest.

Standard of Review

The purpose of summary judgment is to resolve controlling issues of law rather than to find facts or resolve disputed issues of fact. Bellamy v. Fed. Express Corp., 749 S.W.2d 31, 33 (Tenn.1988). Summary judgment is appropriate only when the moving party demonstrates that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). In reviewing the record, the appellate court must view all the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). And because this inquiry involves a question of law only, the standard of review is de novo with no presumption of correctness attached to the trial court’s conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

Analysis

1. Circumstances of the Cessation of Mr. Teter’s Employment

As a preliminary issue, RPS argues that the lower courts erred in finding that RPS discharged Mr. Teter, thus triggering the severance pay provision of the 1997 employment agreement. Instead, RPS claims that Mr. Teter left the company voluntarily. The trial court found that RPS’s actions amounted to a constructive discharge; the Court of Appeals found that RPS had actually discharged Mr. Tet-er. The Court of Appeals explained that RPS “told the plaintiff, without equivocation, that his employment, as memorialized by his contract, was to be no more.” (Emphasis in original.)

The facts regarding the termination of Mr. Teter’s employment are not disputed; the dispute is whether those facts constitute a voluntary or involuntary termination. Because the facts are not in dispute, the issue is amenable to resolution on motion for summary judgment. For the reasons stated below, we agree with the Court of Appeals that Mr. Teter’s employment with RPS was involuntarily terminated, thus triggering the severance pay provision.

Mr. Teter signed an employment contract with RPS effective January 1, 1997. This contract did not have an expiration date, but was for an indefinite period of time. On August 10, 2001, Mr. Huth presented Mr. Teter with a proposed new employment contract. The reason for the new contract was not due to the expiration of the prior contract, but was due to the company’s desire to restructure the division in which Mr. Teter worked. Thus, during the time that RPS was attempting to renegotiate Mr. Teter’s contract, Mr. Teter was still working under the 1997 contract, which remained in effect. RPS and Mr. Teter were unable to reach an agreement regarding a new contract because all the proposals contained terms less favorable to Mr. Teter.

On September 11, 2001, Mr. Berry wrote a letter to Mr. Teter, expressing his disappointment that they could not “reach a mutually acceptable agreement for [his] continued employment” with RPS and suggested that it was time for them to “part company and get on with life.” Mr. Berry’s deposition testimony clarifies further that Mr. Teter’s employment was being terminated by the company:

Question: And unless [Eric Teter] would accept the new contract, he did not have an option of remaining with your company under the old contract, did he?
Answer: No.

The evidence is unequivocal that if Mr. Teter did not agree to a new, modified contract, he would be terminated. The evidence is also clear that Mr. Teter did not agree to a new contract.

Modification of an existing contract cannot be accomplished by the unilateral action of one of the parties. There must be the same mutuality of assent and meeting of minds as required to make a contract. New negotiations cannot affect a completed contract unless they result in a new agreement.

Balderacchi v. Ruth, 36 Tenn.App. 421, 256 S.W.2d 390, 391 (1952) (citing Neilson & Kittle Canning Co. v. F.G. Lowe & Co., 149 Tenn. 561, 260 S.W. 142, 143 (1924)); see also Harber v. Leader Fed. Bank for Sav., 159 S.W.3d 545, 552 (Tenn.Ct.App.2004). Therefore, because Mr. Teter did not agree to modify his existing contract and RPS would not continue to employ him under the old contract, RPS terminated Mr. Teter’s employment, and Mr. Teter did not voluntarily resign his position.

2. Burden of Proof — After-Acquired Evidence

After RPS terminated Mr. Teter’s employment, and while it was paying severance pay to him, RPS discovered that Mr. Teter had been viewing pornographic materials during working hours. RPS claims that had it known about the pornography, it would have immediately fired Mr. Teter for gross misconduct and would not have had to provide any severance pay. Under the 1997 contract, RPS is not required to provide severance pay if the employee is fired for “gross misconduct.” Thus, RPS seeks to use this after-acquired evidence to terminate any remaining obligations regarding severance pay that it would otherwise owe to Mr. Teter.

Noting that the issue of after-acquired evidence was one of first-impression in Tennessee, the trial court adopted the reasoning in Lewis v. Fisher Service Co., 329 S.C. 78, 495 S.E.2d 440 (1998), and granted summary judgment for Mr. Teter. Lewis states, in pertinent part:

Although we find that after-acquired evidence should be admissible on the issue of liability, we recognize the potential dangers of allowing employers unrestricted use of such evidence.... Thus, we conclude that although after-acquired evidence should be allowed on the issue of liability, certain limitations must be put into place so as to prevent abuse by employers. This can be achieved by restricting use of after-acquired evidence in two ways. First, the employer must prove that the wrongdoing was significant, that it was of “such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” ... Second, this proof must be established, not by a preponderance of the evidence, but by clear and convincing evidence. We believe that these two limitations will serve to exclude doubtful or insignificant evidence of employee wrongdoing, while allowing evidence of very severe wrongdoing that should properly be considered.

Lewis, 495 S.E.2d at 445 (citation omitted). Viewing the evidence in the light most favorable to the non-moving party, the trial court found that there was no clear and convincing evidence that RPS would have immediately terminated Mr. Teter had it discovered the pornography while Mr. Tet-er was still employed by the company. Therefore, the court concluded that Mr. Teter was entitled to judgment as a matter of law. The Court of Appeals affirmed the decision of the trial court, also adopting the aforementioned rule set forth in Lewis for the use of after-acquired evidence.

We agree that an employer may use after-acquired evidence of employee misconduct in defense of a breach of contract case if the employer can demonstrate that it would have fired the employee had it known of the misconduct. However, rather than applying the clear and convincing standard to the evidence, we hold that the evidence need only be shown by a preponderance of the evidence.

While this is not a breach of contract case in the same sense as the cases cited below dealing with the application of the after-acquired evidence doctrine, the same analysis applies. In the cases that follow, the controversy arose after the employee was terminated, and that employee brought a suit against the former employer claiming wrongful termination based either on breach of contract or on public policy grounds. By contrast, Mr. Teter’s breach of contract claim does not relate to his termination, but rather to RPS’s failure to continue his severance pay under the contract. Mr. Teter’s right to severance pay is not dependent upon RPS’s breach of the employment contract; rather, Mr. Tet-er is entitled to severance pay unless his discharge is based on gross misconduct or certain other types of conduct specified in the agreement. Thus in this case, in the absence of gross misconduct by Mr. Teter, RPS would be in breach of the employment agreement in failing to provide the severance pay required under that contract.

The application of the after-acquired evidence doctrine as a bar to liability presents an issue of first impression in Tennessee. A majority of jurisdictions allow the use of after-acquired evidence either as a complete bar to an employee’s recovery or to mitigate an employee’s damages. See generally, Stephen J. Humes, Annotation, After-Acquired Evidence of Employee’s Misconduct as Barring or Limiting Recovery In Action For Wrongful Discharge, 34 A.L.R.5th 699 (1995); see also O’Day v. McDonnell Douglas Helicopter Co., 191 Ariz. 535, 959 P.2d 792, 795 (1998). Those jurisdictions that have concluded that a complete bar to recovery is appropriate, generally reason that under well-established principles of contract law, the prior misconduct of the employee excuses the employer’s subsequent breach. See Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540, 547 (Colo.1997); Gassmann v. Evangelical Lutheran Good Samaritan Society, Inc., 261 Kan. 725, 933 P.2d 743, 745 (1997); McDill v. Environamics Corp., 144 N.H. 635, 757 A.2d 162, 166 (2000); see also Restatement (Second) of Contracts, § 237 (1981). Comment c, illustration 8 to section 237 of the Restatement is directly on point:

A and B make an employment contract. After the service has begun, A, the employee, commits a material breach of his duty to give efficient service that would justify B in discharging him. B is not aware of this but discharges A for an inadequate reason. A has no claim against B for discharging him.

Courts allowing the use of after-acquired evidence have required the employer to show that (1) the employee was guilty of some misconduct of which the employer was unaware; (2) the misconduct would have justified discharge of the employee; and (3) had the employer known of the misconduct, the employer would have discharged the employee. See Gassmann, 933 P.2d at 745; McDill, 757 A.2d at 166. We agree that in a breach of contract case, “after-acquired evidence of employee misconduct is a defense to a breach of contract action for wages and benefits lost as a result of the discharge if the employer can demonstrate that it would have fired the employee had it known of the misconduct.” O’Day, 959 P.2d at 799. This corresponds with the first prong of the test set forth in Lewis, which requires evidence of employee wrongdoing of “such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” 495 S.E.2d at 445 (citations omitted).

It is on the issue of burden of proof that we disagree with Lewis and therefore the lower courts in this case. Lewis requires that the evidence of the employee misconduct and the employer’s intent to fire the employee had it known of the misconduct to be clear and convincing. 495 S.E.2d at 445. However, no other jurisdiction that has addressed the issue of after-acquired evidence and accepted its use either as a complete bar or as a limit to liability, requires that the evidence be clear and convincing. See, e.g., Brooks v. Lexington-Fayette Urban County Housing Auth., 132 S.W.3d 790 (Ky.2004) (specifically stating that the evidence is to be shown by a preponderance); see also McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995); McCaskill v. ConAgra Foods, Inc., 296 F.Supp.2d 1311 (M.D.Ala.2003); Carroll v. Bayerische Landesbank, 150 F.Supp.2d 531 (S.D.N.Y.2001); Schiavello v. Delmarva Sys. Corp., 61 F.Supp.2d 110 (D.Del.1999); Camp v. Jeffer, Mangels, Butler & Marmaro, 35 Cal.App.4th 620, 41 Cal.Rptr.2d 329 (1995); Crawford, 938 P.2d at 547; Brown Distrib. Co. of West Palm Beach v. Marcell, 890 So.2d 1227 (Fla.Dist.Ct.App.2005); Walters v. United States Gypsum Co., 537 N.W.2d 708 (Iowa 1995); Gassmann, 933 P.2d at 745; Taylor v. Int’l Maytex Tank Terminal Corp., 355 N.J.Super. 482, 810 A.2d 1109 (2002); McDill, 757 A.2d at 166; Johnson v. Bd. of Trs. of Durham Technical Cmty. Coll., 157 N.C.App. 38, 577 S.E.2d 670 (2003); Barlow v. Hester Indus., Inc., 198 W.Va. 118, 479 S.E.2d 628 (1996). For the reasons which follow, we agree with the majority that the preponderance standard is the correct standard to use in this case.

The standard of proof required in a case “serves to allocate the risk of error and to instruct the factfinder as to the degree of confidence society expects for a particular decision.” Estate of Acuff v. O’Linger, 56 S.W.3d 527, 536 (Tenn.Ct.App.2001). Generally, in civil cases, facts are proved by a mere preponderance of the evidence. Endowment Rank of Order of K. P. v. Steele, 107 Tenn. 1, 63 S.W. 1126, 1128 (1901); Burchett v. Stephens, 794 S.W.2d 745, 748 (Tenn.Ct.App.1990). The preponderance of the evidence standard requires that the truth of the facts asserted be more probable than not, whereas the clear and convincing evidence standard requires that the truth be highly probable. “Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992).

The higher standard of clear and convincing evidence is used to promote important public policy and preserve prior judicial orders. Estate of Acuff, 56 S.W.3d at 536. For example, the Tennessee legislature has imposed a clear and convincing evidence standard in certain instances where it has found a compelling public policy. See Tenn.Code Ann. § 31-2-105 (2004 Supp.) (establishment of parental relationship for purposes of intestate succession); Tenn.Code Ann. § 36-1-113 (2004 Supp.) (termination of parental rights); Tenn.Code Ann. § 56-7-1201(e) (2004 Supp.) (existence of unknown motorist under uninsured motorist statute). The courts have also imposed a clear and convincing standard in circumstances involving extraordinary remedies. See Estate of Acuff, 56 S.W.3d at 536 (setting aside deed on grounds of fraud); Hodges, 833 S.W.2d at 901 (award of punitive damages); Pierce v. Flynn, 656 S.W.2d 42, 46 (Tenn.Ct.App.1983) (reformation of a contract).

We find no compelling public policy reason for requiring the imposition of a clear and convincing standard for after-acquired evidence in a breach of contract case. There is nothing inherently suspect about after-acquired evidence in an employment contract dispute. If such evidence is credible, there is no rationale for treating it differently from other evidence in a contract dispute. Juries have always been considered capable of comprehending such evidence, weighing it, and determining its probative value in the ultimate resolution of the case. It is for a jury to decide if an employee’s misconduct is of such severity that he or she would have been fired immediately had the employer known of it. A jury could just as easily determine that the misconduct did not rise to that level of severity, and the employer was simply fishing for any misconduct in the employee’s past in order to justify the firing. There need not be a heightened standard of evidence in order for a jury to properly make these determinations.

Thus in order to defend the breach of contract claim brought by Mi*. Teter, we hold that RPS needs to show, by a preponderance of the evidence, that Mr. Teter was guilty of gross misconduct and that had RPS known of this misconduct, it would have fired Mr. Teter immediately.

Applying the preponderance of the evidence standard, we conclude that there is an issue of material fact as to whether RPS would have fired Mr. Teter had it discovered that Mr. Teter was viewing pornography during working hours. Mr. Berry sent Mr. Teter a letter on October 24, 2001, stating: “If I had known this [pornographic] material existed before or during the time of our employment contract discussions, I would have terminated you immediately.” However, there was also evidence that suggested that Mr. Tet-er would not have been fired immediately upon discovery. For example, Mr. Berry stated in his deposition that he would still like to have Mr. Teter working for the company. Additionally, no one ever told the employees of RPS that they were not to use the internet for personal use during working hours. The Court of Appeals found that in light of the evidence suggesting that Mr. Berry would not have fired Mr. Teter, the October 2001 letter did not amount to clear and convincing evidence that RPS would have in fact fired Mr. Teter. However, under a preponderance standard, there is a material issue of fact that cannot be resolved on motion for summary judgment. Therefore, we remand this case for trial.

3. Incorporation of the “Employee Protection Plan”

RPS argues that the evidence did not support the conclusion that the 1997 contract unambiguously incorporated the severance payments set forth in the Employment Protection Plan or that the severance payments were applicable under the circumstances of this case. RPS argues that the severance pay provision was never triggered because neither of the threshold events, i.e., a change in ownership or RPS going public, ever occurred.

The 1997 contract provides that if an employee is discharged for reasons other than gross misconduct, fraud, embezzlement, theft or voluntary termination, he is entitled to receive severance pay “under the terms of the ‘Employment Protection Plan-Change in Ownership Structure’ provision.” The “Employment Protection Plan” discusses two scenarios under which an employee can receive severance pay for voluntarily resigning — (a) a change in the CEO or sale of the company or (b) RPS going public. RPS contends it only owes severance pay if one of the triggering events set forth in the Employment Protection Plan occur. On the other hand, Mr. Teter argues that the 1997 contract, by its terms, only intended to incorporate the payment schedule found in the Employment Protection Plan, and not the triggering events contained therein.

The interpretation of a contract is a matter of law and therefore is reviewed de novo. See Hamblen County v. City of Morristown, 656 S.W.2d 331, 335-36 (Tenn.1983). “When resolving disputes concerning contract interpretation, our task is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contractual language.” Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999). If a contract’s language is clear and unambiguous, then the literal meaning of the language controls the outcome of the contract dispute. See Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.2002). Additionally, “all provisions in the contract should be construed in harmony with each other, if possible, to promote consistency and to avoid repugnancy between the various provisions of a single contract.” Guiliano, 995 S.W.2d at 95.

We agree with the trial court and Court of Appeals that the only reasonable interpretation of the 1997 contract is that the parties intended to incorporate only the payment schedule from the Employment Protection Plan into the 1997 contract. The Court of Appeals explained:

It is clear that the parties intended that the plaintiff be provided severance pay, provided he was not discharged for gross misconduct, fraud, embezzlement or theft, or voluntarily terminated his employment. The position advanced by RPS — that the plaintiff was only entitled to severance pay in the event the company was sold or Mr. Berry was replaced — is simply untenable. The triggering event in the plaintiffs employment contract was clearly intended to be wrongful termination and wrongful termination only. While severance pay was also to be available in the event of a sale of the company or a change in the company’s leadership, these triggering events were in addition to, rather than in place of, the event of wrongful termination.

For these reasons, Mr. Teter would be entitled to receive severance pay under the terms of the 1997 contract, at the amount set forth in the Employer Protection Plan, so long as RPS cannot show that it would have fired him for gross misconduct, as discussed above.

4. Application of Guiliano v. Cleo, Inc.

RPS also contends that the severance pay provisions constitute an illegal penalty and argues that the intermediate court erred in its interpretation of Guiliano v. Cleo, Inc., 995 S.W.2d 88 (Tenn.1999), in finding that the severance pay provisions were valid.

In Guiliano, we differentiated between liquidated damages, which may be found to constitute a penalty, and severance pay, where recovery would be absolute upon the employee’s termination.

The term “liquidated damages” is defined by case law as a “sum stipulated and agreed upon by the parties at the time they enter their contract, to be paid to compensate for injuries should a breach occur.” The stipulated amount represents an estimate of potential damages in the event of a contractual breach where damages are likely to be uncertain and not easily proven.
In contrast, the recovery of severance pay is not conditioned upon a breach of contract or a reasonable estimation of damages. Generally, severance pay is a form of compensation paid by an employer to an employee at a time when the employment relationship is terminated through no fault of the employee. The reason for severance pay is to offset the employee’s monetary losses attributable to the dismissal from employment and to recompense the employee for any period of time when he or she is out of work. The amount of payment is generally based upon the types of services and the number of service years performed by the employee on behalf of the employer.

995 S.W.2d at 96-97 (citations and footnote omitted).

We also differentiated between liquidated damages as compensation and liquidated damages as a penalty.

The fundamental purpose of liquidated damages is to provide a means of compensation in the event of a breach where damages would be indeterminable or otherwise difficult to prove. By stipulating in the contract to the damages that might reasonably arise from a breach, the parties essentially estimate the amount of potential damages likely to be sustained by the nonbreaching party. “If the [contract] provision is a reasonable estimate of the damages that would occur from a breach, then the provision is normally construed as an enforceable stipulation for liquidated damages.” However, if the stipulated amount is unreasonable in relation to those potential or estimated damages, then it will be treated as a penalty.

Id. at 98.

Applying these principles to this case, the Court of Appeals found that the sever-anee pay provisions are not a penalty. We agree. The 1997 contract states that Mr. Teter is entitled to severance pay if he is discharged for reasons other than gross misconduct, fraud, etc. In other words, he will receive severance pay if he is “terminated through no fault” of his own. See id. at 97. The amount of severance pay set forth in the Employment Protection Plan is based upon the plaintiffs salary and bonuses, commensurate with “the number of service years performed by” Mr. Teter. See id. Thus we find no error in the lower court’s determination that the severance pay provisions did not constitute an illegal penalty.

5. Prejudgment Interest

Because we are vacating the trial court’s award and remanding the case for trial, the issue of whether the trial court abused its discretion in awarding prejudgment interest is moot.

Conclusion

In sum, we hold that an employer may use after-acquired evidence of employee misconduct in defense of a breach of contract action, and that evidence need only be shown by a preponderance of the evidence. Because there is an issue of material fact as to whether RPS would have fired Mr. Teter had it discovered that Mr. Teter was viewing pornographic materials during working hours, summary judgment was inappropriate, and we remand the case for trial. On the remaining issues raised by RPS, we affirm the Court of Appeals: Mr. Teter did not voluntarily resign from his position but was involuntarily terminated; the payment schedule found in the Employment Protection Plan was incorporated into the 1997 contract; and the severance pay provisions did not constitute an illegal penalty. Accordingly, the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for trial.

Costs of this appeal are assessed equally between the parties Eric Teter and Republic Parking System, Inc., and their sureties, for which execution may issue if necessary.

      . In wrongful termination cases which implicate major public policy concerns, many jurisdictions apply the after-acquired evidence doctrine only to limit an employee’s damages. See, e.g., McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (applying the doctrine in an age discrimination case); Walters v. United States Gypsum Co., 537 N.W.2d 708 (Iowa 1995) (retaliatory discharge); Trico Tech. Corp. v. Montiel, 949 S.W.2d 308 (Tex.1997) (retaliatory discharge under workers’ compensation); Barlow v. Hester Indus., Inc., 198 W.Va. 118, 479 S.E.2d 628 (1996) (employment discrimination). This provides "a compromise wherein the wrongdoing of both employer and employee is considered in determining damages, ensuring that neither party receives a windfall.” Trico Tech. Corp., 949 S.W.2d at 312. This protects employees by allowing compensation for discriminatory or retaliatory discharge, while at the same time protecting employers by allowing the wrongdoing of a dishonest employee to be taken into account and limiting the amount of damages.

      . This does not mean, however, that after-acquired evidence of employee misconduct is always a complete bar to recovery. We agree with the reasoning in McKennon and its progeny that in wrongful termination cases which implicate major public policy concerns, such as discrimination or retaliatory discharge, application of the after-acquired evidence doctrine only serves to limit an employee’s damages and is not a complete bar to recovery. See McKennon, 513 U.S. at 362-63, 115 S.Ct. 879.

      . The heightened standard is also contrary to the treatment of other employment claims. For example, to disqualify a terminated employee from unemployment compensation, employers are only required to prove misconduct by a preponderance of the evidence. See Tenn.Code Ann. § 50-7-303 (2004 Supp.); Jackson v. Bible, 611 S.W.2d 588, 590 (Tenn.Ct.App.1980).


author: ALAN E. HIGHERS, J.,

text:
    In the Matter of the ESTATE OF Frances E. MILAM, Deceased.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Nov. 17, 2004 Session.
    April 7, 2005.
    Application for Permission to Appeal Denied by Supreme Court Oct. 3, 2005.

      Joseph Michael Cook, Memphis, TN, for Appellants.
    G. Rice Byars, Jr., Roberta Nevil Kus-toff, Memphis, TN, for Appellee.
   OPINION

ALAN E. HIGHERS, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This appeal involves the construction of a holographic will. Following the decedent’s death, two documents in her own handwriting were found among her papers which the probate court admitted as her holographic will. The will contained devises of real and personal property to named individuals and charities. At her death, however, the decedent owned property in excess of the devises made in her will. The executor filed three separate petitions to construe the decedent’s will. The children of the decedent’s sister argued that the decedent died intestate as to the excess personal property and her personal residence, which the decedent did not specifically devise in her will. The probate court held that the decedent’s will contained a residuary clause, therefore, all of the decedent’s remaining assets passed through the residuary clause to the individuals and charities named in her will on a pro rata basis. In addition, the probate court held that the decedent died intestate as to her residence, which passed to her sister’s children by intestate succession. We affirm in part, reverse in part, and remand this case to the probate court for further proceedings consistent with this opinion.

I.

Factual Background and Procedural History

On February 17, 2003, Frances Elizabeth Milam (“Decedent”) died a resident of Shelby County, Tennessee. Decedent never married and never had any children. She is survived by her niece and nephews: Wendell E. Sweetser, Jr., Kenneth M. Sweetser, Mark L. Sweetser, David M. Sweetser, and Janet Sweetser Rumford (hereinafter referred to as the “Sweetser Children” or “Appellants”). The Sweetser Children are the offspring of Decedent’s sister, Doris Milam Sweetser (“Sister”). Decedent’s mother, Annie Milam (“Mother”), died on July 4, 1987. Decedent and Sister were the only children of Mother, and Sister predeceased Mother and Decedent.

Found among the Decedent’s personal papers at her death were two documents in her own handwriting. The first document, dated July 14, 2002, consists of five handwritten pages and provides, in relevant part, as follows:

This is my will written in my handwriting. July 14, 2002.
I appoint Harvey Herring ... to carry out the provisions of this will as Administrator or Executor....
I want the five children of my sister, Doris Milam Sweetser, to have my half ownership of the two lots of land which I inherited from Annie B. Milam at her death July 4, 1987.... Each child should get one fifth of my one half ownership of the lots.... I want to give William C. Olgivie, Rosemont Street, Memphis, the lot I have owned at the end of Rosemont Street, namely lot 53 Rainbow S/D, Rosemont Street, Memphis, TN 38116....
I want to give to: ... Wendell E. Sweetser $25,000.00
Kenneth M. Sweetser $25,000.00
Mark Sweetser $25,000.00
David Sweetser $30,000.00
Janet Sweetser Rumford $20,000.00
Re Will Frances E. Milam
I do not have sufficient time this date to complete my will with complete information and figures, I will work on it again soon. At this time I do not have complete figures on assets on hand, investment values etc. I do not know the expenses of settling my estate, taxes involved etc. I will complete the will with as accurate information and figures as possible. I have made an educated start this date.
7-14-2002
/s/ Frances E. Milam
If I do not have sufficient funds to give each person the amounts I listed, the amounts as corrected can be adjusted up or down by considering each part a percentage of the entre total estate available after expenses of settling. FEM

The second document, dated November 9, 2002, consisted of one page providing, in relevant part, as follows:

Notes for my Will as of November 9, 2002 /s/ Frances E. Milam
I do not want any church, and “All Believers” especially, to buy or be given any part of my property — My House, or any part of the land at 839 Eugene, and lot 53 Rosemont, since they disregarded my right to use the driveway to Auburn or Craft Avenue. I do not want any of my assets-money property, personal items etc. to be divided, or given, to any of my relatives that are not named in my will....

The first document also purported to devise to various individuals and charities, including the above cited devises to the Sweetser Children, certain sums of money collectively totaling $264,000.00. At her death, Decedent’s estate, excluding her real estate and annuities, was valued at $742,895.94. Decedent also owned several annuities worth $350,793.00 which named the Sweetser Children as joint beneficiaries. In addition, Decedent owned the following parcels of real property: her residence located at 839 Eugene Street, in Memphis, Tennessee, where she resided at her death; a one-half interest in Lots number four (4) and five (5) on The Brick Road in Sanford, Florida; and Lot 53 on Rosemont Street in Memphis, Tennessee, in the Rainbow Subdivision. The total value of Decedent’s estate, as evidenced by the federal estate tax return, equaled $1,195,404.04.

On March 7, 2003, Mr. Harvey Herring (“Executor”) filed a petition in the Probate Court of Shelby County seeking to have the two holographic documents admitted into probate as the Last Will and Testament of the Decedent. Executor submitted the July 14, 2002, document as Decedent’s holographic will and the November 9, 2004, document as a codicil to Decedent’s holographic will. On March 7, 2003, the probate court entered an order admitting the holographic will and codicil into probate as the Last Will and Testament of the Decedent.

Due to the discrepancy between the amounts listed in the devises in the will and the value of the Decedent’s estate at her death, the Executor filed a petition to construe the Decedent’s will in the probate court. Specifically, Executor sought a construction of the following clause in the July 14, 2002, document:

If I do not have sufficient funds to give each person the amounts I listed, the amounts as corrected can be adjusted up or down by considering each part a percentage of the entire total estate available after expenses of settling.

The Executor asked the court to determine whether this clause constituted a residuary clause, and whether the word “person” referred to only the named individuals in the Decedent’s will or to all named individuals and charitable entities. The Sweetser Children took the position that this clause did not constitute a residuary clause, therefore, the excess personal property not devised in the Decedent’s will passed to them through intestate succession. On July 30, 2003, the probate court entered an order finding that the clause at issue constituted a residuary clause, thereby disposing of all of the Decedent’s remaining assets on a pro rata basis, and the reference to “person” in the residuary clause included both the individuals and charities named.

On August 11, 2003, the Executor filed a second petition to construe the Decedent’s will in the probate court. In the second petition, the Executor asked the probate court to look again at the same provision in the Decedent’s will, construe the meaning of the term “amounts I listed,” and determine those assets that fall within the meaning of the words “entire total estate.” Specifically, the Executor asked the probate court to determine whether the Decedent’s real estate and annuities should be included when calculating any adjustments to the specific bequests in the Decedent’s will. The Executor took the position that such amounts should not be included in the probate estate and used in the calculation of the pro rata share of the residual beneficiaries. On November 13, 2003, the probate court entered an order containing the following findings:

[D]ecedent intended to dispose of the residuary assets in her Probate estate by determining the proportionate share that each beneficiary of a bequest received in proportion to the total bequests of $264,000.00 and then applying this percentage to determine the additional proceeds and/or property for each such beneficiary to receive from the residuary Probate estate. In determining the proportionate share for each such beneficiary to receive from the residuary Probate estate the decedent did not intend to include in these calculations the annuities passing outside of the Probate estate for which there were beneficiary-clauses nor did she intend to include the values for the real property devised in her Last Will and Testament herein admitted to Probate.

The Sweetser Children subsequently filed an appeal to this Court. On March 30, 2004, the Executor filed a third petition, once again asking the probate court to construe the Decedent’s will and codicil. This time, the Executor asked the probate court to construe the following provision of the Decedent’s will:

I want the five children of my sister, Doris Milam Sweetser, to have my half ownership of the two lots of land which I inherited from Annie B. Milam at her death July 4, 1987.... Each child should get one fifth of my one half ownership of the lots....

The Executor contended that the Decedent’s statement “my half ownership of the two lots of land” referred only to Lots four (4) and five (5) on The Brick Road in Sanford, Florida, because these were the only lots the Decedent had a one-half interest in at her death. In addition, the Executor pointed to the following clause in the holographic codicil, which provided:

I do not want any church, and “All Believers” especially, to buy or be given any part of my property — My House, or any part of the land at 839 Eugene, and Lot 53 Rosemont, since they disregarded my right to use the driveway to Auburn or Craft Avenue.

The Executor, argued that this language presupposes the Decedent intended the property located at 839 Eugene Street in Memphis to pass through the residuary clause and not to the Sweetser Children through the devise in the will.

While the third petition was pending before the probate court, the parties filed a joint motion with this Court on April 15, 2004, seeking .to temporarily suspend the appellate proceedings. By order entered on April 22, 2004, this Court granted the motion filed by the parties. On May 7, 2004, the probate court entered its order on the Executor’s third petition, finding that the Decedent’s property located at 839 Eugene Street in Memphis passed to the Sweetser Children by intestate succession. The Executor subsequently filed an appeal to this Court.

On appeal, the Appellants have presented the following issues for our review:

I. Whether the probate court' erred in finding that the holographic documents submitted to the probate court by the Appellee constituted the Last Will and Testament of the Decedent;

II. Whether the probate court erred in determining that the holographic documents admitted into probate as the Last Will and Testament of Decedent contained a residuary clause; and

III. Alternatively, if this Court determines that the Decedent’s Last Will and Testament does contain a residuary clause, whether the probate court erred in ruling that Decedent’s “entire total estate” does not include the annuities and real property for purposes of calculating the pro rata share of the remaining assets to be paid to any of the beneficiaries under the residuary clause.

In addition, the Appellee presents the following issue for our review:

I. Whether the probate court erred in determining that the Decedent’s personal residence located at 839 Eugene Street in Memphis, Tennessee, should pass to the Appellants by intestate succession.

For the reasons set forth more fully herein, we affirm in part, reverse in part, and remand this case to the probate court for further proceedings consistent with this opinion.

II.

Law and Analysis

A.

Whether the Decedent Created a Holographic Will

Although not specifically identified as an issue, the Sweetser Children argued, in their brief and at oral argument, that the documents admitted into probate do not constitute a valid holographic will. In support of this position, they point to the language in the documents themselves, where the Decedent stated:

I do not have sufficient time this date to complete my will with complete information and figures, I will work on it again soon.... I will complete the will with as accurate information and figures as possible. I have made an educated start this date.

(emphasis added). The Sweetser Children argue this language indicates that the Decedent did not intend for these documents to operate as her Last Will and Testament.

The requirements for a valid holographic will in this state are as follows: “No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.” Tenn.Code Ann. § 32-1-105 (2003); see also Smith v. Smith, 33 Tenn.App. 507, 232 S.W.2d 338, 341 (1949). In addition, “a testamentary intent must accompany the performance of the statutory requirements and this must be proven in a manner which conforms to applicable rules of evidence and procedure.” Smith, 232 S.W.2d at 341. “A holographic will, when the requirements of the statute are complied with, is of the same dignity as a will attested by subscribing witnesses.” Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 332 (1937).

Even though the purported will meets the statutory requirements, it is still open to attack on numerous grounds, including “that it was never legally assented to by the deceased as a complete and finished act to any extent.” Marr v. Marr, 39 Tenn. (2 Head) 303, 306-07 (Tenn.1859); see also R.B. Douglass & Co. v. Harkrender, 62 Tenn. (3 Baxt.) 114, 119-20 (Tenn.1873); Crutcher v. Crutcher, 30 Tenn. (11 Hum.) 377, 386-87 (Tenn.1850). A party wishing to test the validity of a will may file a will contest action. See Tenn.Code Ann. §§ 32-4-101, -104 (2003). A will contest action is an in rem proceeding instituted for the purpose of testing the validity of the will. In re Estate of Eden, 99 S.W.3d 82, 87-88 (Tenn.Ct.App.1995); Clark v. Hefley, 34 Tenn.App. 389, 238 S.W.2d 513, 516 (1950). “It is well settled that such persons only as would be entitled to share in the real or personal estate of the deceased if there were no will, or if the will were set aside, are entitled to impeach its validity.” Gore v. Howard, 94 Tenn. 577, 30 S.W. 730, 731 (1894); see also Warmath v. Smith, 198 Tenn. 257, 279 S.W.2d 257, 259 (1955). The parties do not dispute that the Sweetser Children would be entitled to share in the real and personal property in the Decedent’s estate under the law of intestate succession. See Tenn. Code Ann. § 31-2-104(b)(3) (2003).

Our review of the record, however, reveals that the Sweetser Children never instituted a will contest action in the court below. In fact, at oral argument, counsel for the Sweetser Children conceded this fact by stating that the Sweet-ser Children did not wish to file a will contest action because they did not want to disturb the devises made to certain charities in the Decedent’s will. It is well settled that questions not raised in the trial court will not be entertained for the first time on appeal. Lawrence v. J.L. Stanford & Ashland Terrace Animal Hosp., P.C., 655 S.W.2d 927, 929 (Tenn.1983). Parties are not permitted to raise in the appellate courts of this state new theories never presented for resolution in the court below. City of Cookeville v. Humphrey, 126 S.W.3d 897, 905-06 (Tenn.2004); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003); Chadwell v. Knox County, 980 S.W.2d 378, 384 (Tenn.Ct.App.1998). Accordingly, the Sweetser Children have waived this issue on appeal. In re Valentine, 79 S.W.3d 539, 544 n. 3 (Tenn.2002). Thus, for purposes of this appeal, we must treat the documents presented to the probate court as the valid holographic will of the Decedent.

B.

Residuary Clause

The Sweetser Children contend that, if the documents do constitute the Last Will and Testament of the Decedent, the Decedent died partially intestate because the Decedent’s will cannot be construed as containing a residuary clause. The Decedent’s will provided, in relevant part, as follows:

If I do not have sufficient funds to give each person the amounts I listed, the amounts as corrected can be adjusted up or down by considering each part a percentage of the entire total estate available after expenses of settling.

The probate court held that “this language serves as a residuary clause to the Decedent’s Will and disposes of all of the Decedent’s remaining assets on a pro rata basis as provided in the aforementioned clause and, therefore, the Decedent did not die partially intestate.” (emphasis added). In addition, the probate court held that “the reference to ‘person’ in the residuary clause in the Decedent’s Will does include charitable entities, and, therefore, the twenty-two (22) named individuals and charities in the Will all constitute the Residual Beneficiaries of the Decedent’s Will.” Thus, under the probate court’s construction, the named beneficiaries in the Decedent’s will stand to receive a pro rata share of the remaining assets in the Decedent’s estate after the payment of expenses.

The Sweetser Children argue that the probate court ignored the language “[i]f I do not have sufficient funds to give each person the amounts I listed,” which they contend constitutes a condition precedent which the Decedent placed on the operation of the above cited clause. According to this line of reasoning, since the Decedent died with funds in excess of the general devises in her will, this clause has no application to the disposition of the remainder of her property. In addition, the Sweetser Children argue that the use of the word “up” creates a patent ambiguity because the money the Decedent directed to be paid to named beneficiaries could not be adjusted up if there were insufficient funds to pay those bequests. The Sweet-ser Children also direct our attention to the probate court’s order regarding the third petition filed by the Executor, where the court held that “the Decedent’s property located at 839 Eugene, Memphis, Tennessee, passes to [the Sweetser Children] under the laws of intestacy and does not pass under the Decedent’s will as part of the Decedent’s Residuary Estate.” (emphasis added).

“The purpose of a suit to construe a will is to ascertain and give effect to the testator’s intention.” In re Estate of Eden, 99 S.W.3d 82, 87 (Tenn.Ct.App.1995) (citations omitted). “The construction of a will is a question of law for the court.” Briggs v. Briggs, 950 S.W.2d 710, 712 (Tenn.Ct.App.1997) (citing Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn.Ct.App.1989)). Accordingly, we review the probate court’s conclusions of law de novo without affording any presumption of correctness to those conclusions. In re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn.2003) (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993)).

“It is the absolute right of the testator to direct the disposition of his property and the Court’s [sic] are limited to the ascertainment and enforcement of his directions.” Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn.1990) (citing Nat’l Bank of Commerce v. Greenberg, 195 Tenn. 217, 258 S.W.2d 765 (1953); Third Nat’l Bank in Nashville v. Stevens, 755 S.W.2d 459, 462 (Tenn.Ct.App.1988)). “The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the testator and give effect to it unless it contravenes some rule of law or public policy.” Fisher v. Malmo, 650 S.W.2d 43, 46 (Tenn.Ct.App.1983); see also Briggs v. Briggs, 950 S.W.2d 710, 712 (Tenn.Ct.App.1997); Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn.Ct.App.1989). In seeking out the testator’s intent, we have several rules of construction to aid us in that effort. However, all rules of construction are merely aids in ascertaining the intent of the testator. Sands v. Fly, 200 Tenn. 414, 292 S.W.2d 706, 710 (1956).

In gleaning the testator’s intent, we look to the entire will, including any codicil. Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn.1992); Presley, 782 S.W.2d at 488. The testator’s intent is to be determined from the particular words used in the will itself, Stickley, 850 S.W.2d at 132, and not from what it is supposed the testator intended. Briggs, 950 S.W.2d at 712; Presley, 782 S.W.2d at 488; Fisher, 650 S.W.2d at 46. “Where the will to be construed was drafted by the testator himself who was not versed in the law and without legal assistance the court in arriving at the intention of the testator should construe the language of the will with liberality to effectuate what appears to be the testamentary purpose.” Davis v. Anthony, 53 Tenn.App. 495, 384 S.W.2d 60, 62 (1964) (citations omitted). We are also guided by an additional principle of construction; when a decedent undertakes to make a will, we must presume that the decedent intended to die testate, and we must seek to construe the will, where possible, as including all of the testator’s property at death. Davis, 384 S.W.2d at 62 (citations omitted). The legislature of this state has provided as follows:

A will shall be construed, in reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, and shall convey all the real estate belonging to the testator, or in which the testator had any interest at the testator’s decease, unless a contrary intention appears by its words in context.

Tenn.Code Ann. § 32-3-101 (2003). Since this statute is in derogation of the common law, it must be strictly construed. Davis v. Price, 189 Tenn. 555, 226 S.W.2d 290, 292 (1949); see also McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 313 (1917).

Upon reviewing the Decedent’s will, we cannot agree with the probate court that the clause at issue constitutes a residuary clause. “Every word used by a testator in a will is presumed to have some meaning.” In re Estate of Jackson, 793 S.W.2d 259, 261 (Tenn.Ct.App.1990) (citing Third Nat’l Bank v. Stevens, 755 S.W.2d 459 (Tenn.Ct.App.1988)). The clause at issue, which comes after the Decedent’s signature on the last page of the will, expressly provides:

If I do not have sufficient funds to give each person the amounts I listed, the amounts as corrected can be adjusted up or down by considering each part a percentage of the entire total estate available after expenses of settling.

(emphasis added). Even though we are to construe a will liberally when written in the testator’s own hand, Davis, 384 S.W.2d at 62, we cannot ignore the clear and unambiguous statements of the testator. This phrase, despite her reference to adjustments “up or down” and “entire total estate,” is not framed in terms that would indicate the Decedent intended it to operate as a residuary clause and, thereby, dispose of that portion of the Decedent’s estate not specifically devised in her will. See Milligan v. Greeneville College, 156 Tenn. 495, 2 S.W.2d 90, 93-94 (1928) (“The testator thus undertook to describe the residue of his estate and indicate what he meant by the residue....”); In re Estate of McFarland, No. E2003-01833-COA-R9-CV, 2004 WL 2399733, at *3, 2004 Tenn.App. LEXIS 700, at *12 (Tenn.Ct. App. Oct. 27, 2004) (noting that the language “the rest of the estate” or “the remainder of my estate” signals a residuary clause). “[F]or the testator’s will to be given effect, there must be some evidence of that intent: We cannot determine the devolution of estates based upon the mere surmise as to the testator’s intention.’” In re Walker, 849 S.W.2d 766, 768 (Tenn.1993) (quoting Pinkerton v. Turman, 196 Tenn. 448, 268 S.W.2d 347, 350 (1954)).

Although we address the issue more fully below, we note here that, while the Decedent’s will contains specific devises of real property, no mention is made of her residence located at 839 Eugene Street in Memphis, Tennessee. Recognizing this, the probate court, in addressing the Executor’s third petition to construe the will and codicil, stated that this home passed to the Sweetser Children by intestate succession. This order is in direct contravention of the probate court’s order addressing the Executor’s first petition to construe the will, where the court held that the clause at issue “serves as a residuary clause to the Decedent’s Will and disposes of all of the Decedent’s remaining assets on a pro rata basis as provided in the aforementioned clause and, therefore, the Decedent did not die partially intestate.” (emphasis added).

The will itself contains further evidence that the Decedent did not intend to die testate as to her entire estate, providing:

I do not have sufficient time this date to complete my will with complete information and figures, I will work on it again soon. At this time I do not have com-píete figures on assets on hand, investment values etc. I do not know the expenses of settling my estate, taxes involved etc. I will complete the will with as accurate information and figures as possible. I have made an educated start this date.

(emphasis added). As previously stated, we must strictly construe the statutory presumption against intestacy. Davis v. Price, 189 Tenn. 555, 226 S.W.2d 290, 292 (1949). We are cognizant of the fact that the Decedent makes devises of real and personal property to numerous individuals and charities in her will. However, the presumption against intestacy will not pass property not named in a will “[w]here there are no contextual words indicating an intention to include property not specifically mentioned.” Bynum v. McDowell, 3 Tenn.App. 340, 352 (Tenn.Ct.App.1926). “The cases make clear that this presumption applies in absence of the appearance of a contrary intent and only when ‘the words used, by any fair interpretation, will embrace the property not otherwise devised.’ ” In re Estate of Dye, 565 S.W.2d 219, 221 (Tenn.Ct.App.1977) (quoting McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 313 (1918)); see also In re Last Will and Testament of Tipler, 10 S.W.3d 244, 249 (Tenn.Ct.App.1998).

The Decedent’s will as a whole demonstrates an intent contrary to the presumption against intestacy. To hold that the clause at issue constitutes a residuary clause is not only contrary to the Decedent’s express statements in her will, it amounts to the probate court “supposing” what the Decedent intended in her will. This a probate court cannot do. Presley v. Hanks, 782 S.W.2d 482, 488 (Tenn.Ct.App.1989). “Courts may not make a new will or bequest for a testator but must construe what the testator has written and published.” In re Estate of Jackson, 793 S.W.2d 259, 261 (Tenn.Ct.App.1990) (citing Andrews v. Andrews, 51 Tenn. (5 Heisk.) 4 (Tenn.1871)). The probate court erred in construing the Decedent’s will to contain a residuary clause. Accordingly, we reverse the probate court on this issue and find that the Decedent died intestate as to that portion of her estate which she did not expressly make provisions for in her will.

Finally, in addressing the Executor’s second petition to construe the Decedent’s will, the probate court held that only those assets in the Decedent’s “probate estate” should be considered for purposes of calculating the pro rata share of the residual beneficiaries. Since we have held that the Decedent died intestate as to the excess personal property not specifically devised in her will, the Appellant’s alternative issue is pretermitted.

C.

Decedent’s personal residence

The third petition to construe the Decedent’s will filed by the Executor dealt with the following provision:

I want the five children of my sister, Doris Milam Sweetser, to have my half ownership of the two lots of land which I inherited from Annie B. Milam at her death July 4, 1987.... Each child should get one fifth of my one half ownership of the lots.

The probate court held that the Decedent’s property located at 839 Eugene Street in Memphis, Tennessee, passed to the Sweet-ser Children under the laws of intestate succession and not as part of her residuary estate. Therefore, the probate court held that, through the above cited devise, Decedent only conveyed her one-half interest in the two lots in Florida.

On appeal, the Executor, relying on the validity of the residuary clause, argues that the “two lots” referred to in the Decedent’s will are actually the two lots located in Sanford, Florida, because these were the only two lots the Decedent had a one-half interest in at her death. Next, the Executor points to the language in the codicil, which provides:

I do not want any church, and “All Believers” especially, to buy or be given any part of my property — my house, or any part of the land at 839 Eugene, and lot 53 Rosemont, since they disregarded my right to use the driveway to Auburn or Craft Avenue.

He argues that, by specifically stating that she did not want her residence to go to any church, it must be presupposed that the Decedent wanted her house to pass through the residuary clause. Stated differently, if the Decedent intended for her residence to pass by intestate succession, she would not have specifically mentioned how she did not want it to pass in her will.

Conversely, the Sweetser Children argue that, by making reference to “two lots” in her will, the Decedent is actually treating the two lots in Florida as one piece of property. They contend that the Decedent intended her residence in Memphis to pass to them through the above cited devise for the following reasons: when the Decedent originally received the home from Mother, she obtained' a one-half interest in it as well; the two lots in Florida are adjoining parcels of land; and the lots in Florida are treated as one parcel of land on the deed and for tax purposes. Alternatively, the Sweetser Children ask us to affirm the trial court’s holding and find that the Decedent’s residence passed under the law governing intestate succession.

As previously noted, the Decedent’s will does not contain a residuary clause, therefore, the Executor’s arguments to the effect that the Decedent’s residence passes through such a clause is without merit. Thus, we are left with the question of whether the Decedent intended for her residence to pass to the Sweetser Children through the specific devise cited above. In looking at the will as a whole, Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn.1992), it is apparent that the Decedent did not specifically provide for the disposition of her residence in her will. The Decedent did specifically devise Lot 53 on Rosemont Street to a friend, however, we find no specific mention of her residence among the specific devises in her will. In the codicil, the Decedent, in addition to mentioning her residence, also mentions Lot 53 on Rosemont Street when identifying those persons or entities she wished to exclude from possessing her real property. Therefore, the Executor’s argument that, by mentioning her residence in the codicil, the Decedent demonstrated her intent that it pass her residence through the residuary clause is unpersuasive.

We also note, as we did previously, that the. Decedent provided that her will was a work in progress. When construing a will, a court of this state may take note of extrinsic facts that existed at the time the Decedent made her will in order to place itself in the position of the testator at the time of drafting the will. See Gannaway v. Tarpley, 41 Tenn. (1 Coldwell) 571, 574 (Tenn.1860); Treanor v. Treanor, 25 Tenn.App. 133, 152 S.W.2d 1038, 1041 (1941). When the Decedent made her will in 2002, the Sweetser Children had already conveyed their one-half interest in the property located at 839 Eugene Street to the Decedent. Thus, the only property in which the Decedent held a one-half interest at the making of her will were the two lots in Florida. Accordingly, we conclude that the Decedent did not provide for the disposition of her residence in her will.

“Where there is no residuary clause, property not specifically bequeathed in the will passes as if the deceased died intestate.” In re Estate of Jackson, 793 S.W.2d 259, 260 (Tenn.Ct.App.1990) (citing Pinkerton v. Turman, 196 Tenn. 448, 268 S.W.2d 347 (1954); Bedford v. Bedford, 38 TennApp. 370, 274 S.W.2d 528 (1954)). The legislature has so provided, stating:

When any person shall die intestate, after the payment of debts and charges against the estate, the deceased’s property passes to the deceased’s heirs as prescribed in the following sections of this chapter. Any part of the estate of a decedent not effectively disposed of by the deceased’s will passes to the deceased’s heirs in the same manner.

Tenn.Code Ann. § 31-2-101 (2003). “Read literally, T.C.A. § 31-2-101 requires that in cases of partial intestacy, the intestate property be divided as provided for in T.C.A. § 31-2-104.” Standefer v. Booth, No. 1, 1991 WL 183667, at *3, 1991 Tenn.App. LEXIS 763, at *7-8 (Tenn.Ct.App. Sept. 20, 1991). Accordingly, we affirm the probate court’s holding that the Decedent died intestate as to her residence, located at 839 Eugene Street in Memphis, Tennessee.

III.

Conclusion

For the reasons set forth herein, we affirm in part, reverse in part, and remand this case to the probate court for further proceedings consistent with this opinion. Costs of this appeal are taxed to the Ap-pellee/Cross-Appellant, J. Harvey Herring, and his surety, for which execution may issue if necessary.

      . The Sweetser Children do not contest that the documents are in the handwriting of the Decedent.

      . At the time of Mother's death in 1987, she owned the following real estate: the house located at 839 Eugene Street in Memphis, Tennessee, and Lots number four (4) and five (5) on The Brick Road in Sanford, Florida. Pursuant to the intestacy laws, Mother’s real property passed to Decedent and the Sweetser Children. Decedent obtained a one-half interest in each parcel of property, while the five Sweetser Children collectively received a one-half interest to be divided among them. In March 1998, the Sweetser Children each conveyed their one-half interest in the property located at 839 Eugene Street in Memphis to Decedent via quit claim deeds. Decedent and the Sweetser Children continued to hold their respective interests in the property located in Florida.

      . Decedent acquired the Rosemont Street property by Warranty Deed dated January 29, 1968, from the previous owners.

      . On November 15, 2004, the Sweetser Children filed a motion with this Court seeking to have the Executor’s cross-appeal dismissed for failure to file a transcript of the proceedings before the probate court on May 4, 2004, in violation of the Tennessee Rules of Appellate Procedure. By subsequent order, this Court denied the motion filed by the Sweetser Children and permitted the Executor to supplement the record with a transcript of the hearing.

      . The Sweetser Children do not argue that the documents are not in the handwriting of the Decedent. In seeking to have the documents admitted to probate as the Last Will and Testament of the Decedent, the Executor offered the affidavits of two witnesses in order to prove that the documents were in the handwriting of the Decedent.

      . As previously noted, this holding is in direct contravention of the probate court's order regarding the Executor's first petition to construe the Decedent's will, where the probate court held that the Decedent's will contained a residuary clause which "disposes of all of the Decedent’s remaining assets on a pro rata basis.” (emphasis added).


author: MEYERS, J.,

text:
    Ex parte Tracy Allen TRAINER, Applicant.
    No. AP-74954.
    Court of Criminal Appeals of Texas.
    Nov. 2, 2005.
    Rehearing Denied Jan. 25, 2006.
    Vincent D. Callahan, San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Crim. Dist. Atty., San Antonio, Matthew Paul, State’s Attorney, Austin, for state.
   MEYERS, J.,

delivered the opinion of

the Court,

in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Applicant filed an application for a writ of habeas corpus, requesting an out-of-time petition for discretionary review. He claimed that he was unable to file a petition because he was not provided with a complete copy of the record. At the hearing held by the trial court, the applicant received a copy of the record; .however, applicant claims that the record provided to him is still not complete. This Court requested briefing on the issue of whether the United States Constitution, the Texas Constitution, or any statute requires that an appellant who wishes to pursue á pro se petition for discretionary review be provided a free copy of the trial record. We hold that there is no such requirement.

Texas Rule of Appellate Procedure 20.2 deals with an indigent appellant’s réquest for a free copy of the appellate record. The rule allows for the reporter who transcribes the record to be paid from the general funds of the county in which the offense was committed if the trial court finds that the appellant cannot pay for the record. However, the rule specifies that it is applicable only to the period “within the time for perfecting the appeal.” The time a criminal defendant has to perfect an appeal is listed under Rule of Appellate Procedure 26.2 as within 30 days after the day the sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial. These time limits refer only to a defendant’s right to appeal under Code of Criminal Procedure Article 44.02 and do not apply to discretionary review before this Court. Unlike a defendant’s right to an initial appeal under Code of Criminal Procedure Article 44.02, review by this Court is not a matter of right. See Texas Rule of Appellate Procedure 66.2; Texas Constitution Article V, § 5(b). Whole an appellant has a right to file a petition for discretionary review with this Court, there is no requirement that the petition include a copy of the trial record, so failure to provide a free copy of the record to the appellant does not violate his right to file the petition. We find no rule indicating that the convicting county must provide a free copy of the trial record to an appellant who wishes to file a pro se petition for discretionary review. In Ex Parte Jarrett, 891 S.W.2d 935 (Tex.Crim.App.1995), we stated, “We adhere to our settled position that indigent defendants are not entitled by the Constitution or laws of Texas or of the United States to the assistance of counsel for purposes of pursuing discretionary post-conviction remedies. Accordingly, an indigent defendant may not compel the appointment of counsel at state expense to seek such remedies on his behalf.” Id. at 943 (citation omitted). Similarly, indigent defendants are hot entitled to a copy of the trial record at county expense. It would be extremely costly to require trial courts to provide a free copy of the trial record so that a defendant may file a pro se petition for discretionary review. Allocation of such funds for a petition of discretionary review is a matter for the legislature, not for this Court.

Additionally, the distinction between an appellant’s right to an initial appeal and the discretionary nature of review before this Court indicates that the county’s failure to provide a free copy of the trial record to an appellant who wishes to file a pro se petition for discretionary review is not a violation of the appellant’s constitutional rights. We hold that nothing in the United States Constitution, the Texas Constitution, or any statute or rule requires the convicting county to provide a free copy of the trial record to an appellant for purposes of filing a pro se petition of discretionary review.

Relief is denied.

WOMACK, J., concurred.

      . Within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge. If after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings. When the court certifies that the appellate record has been furnished to the appellant, the reporter must be paid from the general funds of the county in which the offense was committed, in the amount set by the trial court.

      . See Code of Criminal Procedure Article 44.45(b).

      . See Rule of Appellate Procedure 68.4 regarding the Contents of Petition. The rule specifically states in section (f) that “If the petitioner has access to the record, the petitioner must (after each ground) refer to the page of the record where the matter complained of is found,” (emphasis added), indicating that it is not necessary for the petitioner to have access to the record in order to file a petition for discretionary review.