Akilah Louise Wofford v. M.J. Edwards & Sons Funeral Home Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 27, 2015 Session
AKILAH LOUISE WOFFORD, ET AL. v. M. J. EDWARDS & SONS
FUNERAL HOME INC, ET AL.
Appeal from the Chancery Court for Shelby County
No. CH140197 Jim Kyle, Chancellor
________________________________
No. W2015-00092-COA-R3-CV – Filed November 23, 2015
_________________________________
This appeal concerns the enforceability of an agreement to arbitrate a dispute between a
consumer and funeral home. The trial court refused to compel arbitration, finding no meeting
of the minds as to the arbitration agreement. On appeal, the funeral home argues that this
Court should consider not only the signed agreement, but also another document allegedly
incorporated by reference into the parties‘ contract in compelling arbitration. We hold: (1) the
additional document providing details regarding arbitration was not incorporated by
reference into the parties‘ contract; and (2) the arbitration provision actually contained in the
parties‘ contract is unenforceable because it is beyond the expectations of an ordinary person.
Affirmed and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and BRANDON O. GIBSON, J., joined.
John R. Branson, Jacob A. Dickerson, and Austin K. Purvis, Memphis, Tennessee, for the
appellants, M.J. Edwards & Sons Funeral Home, Inc.
Kathryn E. Barnett, Nashville, Tennessee, for the appellee, Akilah Louise Wofford.
OPINION
Background
Plaintiff/Appellee Akilah Wofford‘s father, L.C. Wofford, died on June 10, 2013 after
suffering a heart attack in his yard. Ms. Wofford, who graduated from high school in 2008,
was a college student at the time of her father‘s death. She was raised by her father. When
her father passed away, her aunt assisted her with making the funeral arrangements. The
family contacted Defendant/Appellant M.J. Edwards & Sons Funeral Home, Inc.
(―Edwards‖) to arrange the funeral services.1
Edwards took possession of Mr. Wofford‘s body on June 10, 2013. Edwards
subsequently began the process of securing life insurance proceeds to cover the cost of
services. By June 11, 2013, Edwards had embalmed the body, worked with the family to
publish an obituary, and procured a death certificate. It appears that most of the planning
decisions regarding the services and burial had been made by June 11, 2013. Indeed,
Edwards placed an internal order for the casket on that day. Also on June 11, 2013, Ms.
Wofford and Edwards entered into certain discussions regarding the services and agreed to a
document entitled ―Statement of Funeral Goods and Services.‖ There is no dispute that this
document does not contain an arbitration provision. Moreover, no one from Edwards
discussed arbitration with Ms. Wofford on June 11, 2013.
On June 12, 2013, Edwards asked Ms. Wofford to return to complete the final
paperwork. On this day, Ms. Wofford signed a purchase agreement (―Contract‖). The
Contract contained the prices for each service that Edwards provided. On the bottom of the
second page of the Contract, directly above Ms. Wofford‘s signature, is the following
language in bold type:
NOTICES TO PURCHASER/CO-PURCHASER
SEE PART THREE FOR TERMS AND CONDITIONS THAT
ARE PART OF THIS AGREEMENT. DO NOT SIGN THIS
AGREEMENT BEFORE YOU READ IT OR IF IT
CONTAINS ANY BLANK SPACES. YOU ACKNOWLEDGE
RECIEPT OF AN EXACT COPY OF THIS AGREEMENT.
BY SIGNING THIS AGREEMENT, YOU ARE AGREEING
THAT ANY CLAIM YOU MAY HAVE AGAINST THE
SELLER SHALL BE RESOLVED BY ARBITRATION AND
1
In its brief, Edwards asserts that the proper name for Edwards is M.J. Edwards-Hillside Chapel, Inc.,
d/b/a M.J. Edwards Funeral Home Stage Road Chapel. Throughout the proceedings, however, the party named
as a defendant has been M.J. Edwards & Sons Funeral Home, Inc. There does not appear to be a dispute that
regardless of the legal name of Edwards, the current defendant is the real party in interest. Accordingly, we will
utilize the name contained in the caption of the trial court proceedings.
2
YOU ARE GIVING UP YOUR RIGHT TO A COURT OR
JURY TRIAL, AS WELL AS YOUR RIGHT OF APPEAL.
It is undisputed for purposes of this appeal that Ms. Wofford was not provided a copy of
Part 3 of the Contract.2 Part 3 of the Contract, however, provides:
ARBITRATION: YOU AGREE THAT ANY CLAIM YOU
MAY HAVE RELATING TO THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT (INCLUDING
ANY CLAIM OR CONTROVERSY REGARDING THE
INTERPRETATION OF THIS ARBITRATION CLAUSE)
SHALL BE SUBMITTED TO AND FINALLY RESOLVED
BY MANDATORY AND BINDING ARBITRATION IN
ACCORDANCE WITH THE APPLICABLE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION (―AAA‖);
PROVIDED, HOWEVER, THAT THE FOREGOING
REFERENCE TO THE AAA RULES SHALL BE DEEMED
TO REQUIRE ANY FILING WITH THAT ORGANIZATION,
NOR ANY DIRECT INVOLVEMENT WITH THAT
ORGANIZATION. THE ARBITRATOR SHALL BE
SELECTED BY MUTUAL AGREEMENT OF THE PARTIES.
IF THE PARTIES FAIL TO OR UNABLE TO AGREE ON
THE SELECTION OF AN APPROPRIATE ARBITRATOR,
THE AAA SHALL SELECT THE ARBITRATOR
PURSUANT TO ITS RULES AND PROCEDURES UPON
THE APPLICATION OF ONE OR BOTH PARTIES. . . .
Ms. Wofford admits that she only read the portion of the Contract containing the prices to
ensure they were correct. According to Ms. Wofford, she signed the second page of the
Contract without reading all its terms, including the reference to Part 3 of the Contract or the
provision regarding arbitration. The arrangements for Ms. Wofford‘s father were carried out
by Edwards as planned, and the family was apparently satisfied with the services provided by
Edwards. Ms. Wofford‘s father‘s body was interred at Galilee Memorial Gardens cemetery.
Eventually, allegations came to light that Galilee Memorial Gardens was improperly
handling and disposing of human remains. Accordingly, on February 9, 2014, Ms. Wofford,
along with three other named plaintiffs and all similarly situated persons, filed a Class Action
2
In its appellate brief and at oral argument, Edwards concedes that it has no evidence, documentary or
testimonial, to support a finding that Ms. Wofford was provided Parts 3 and 4 of the Contract. Additionally,
evidence from Cedric Collins, the funeral director and manager of Edwards, indicates that Edwards was not
providing Parts 3 and 4 of the Contract to any of its customers during this time period.
3
Complaint in the Chancery Court of Shelby County against Edwards, Galilee Memorial
Gardens and related entities (collectively, ―Galilee Memorial Gardens‖),3 and a number of
other unrelated funeral homes.4 The complaint was subsequently amended on March 3,
2014. Specifically with regard to the defendant-funeral homes, the amended complaint
alleged that the defendant-funeral homes breached a duty to the plaintiff-customers in failing
to supervise burials and ensure that the burials of those entrusted to their care was
―accomplished in a proper fashion.‖ Only the allegations against Edwards are at issue in this
appeal.
On March 19, 2014, Edwards filed a motion to compel arbitration and to stay
proceedings pending the outcome of arbitration. On the same day, Edwards also filed its
answer, which preserved its right to compel arbitration. Ms. Wofford and the other plaintiffs
filed a Second Amended Complaint on April 25, 2014.5 Edwards similarly responded to this
complaint. Ms. Wofford and Edwards agreed to limit discovery at this juncture to the issue of
arbitration. The parties took the depositions of both Ms. Wofford and Cedric Collins, the
funeral director and manager of Edwards. Both depositions were filed in the trial court on
December 4, 2014.
On December 8, 2014, the trial court heard oral argument on the motion to compel
arbitration. At the conclusion of the hearing, the trial court ruled that there was not sufficient
notice to Ms. Wofford that she was agreeing to arbitrate her claims against Edwards.
According to the trial court:
What I do find interesting in this whole proposition is the
contract. And on Page 2 of the contract, Ms. Wofford signs.
Generally speaking, most folks sign contracts at the end of the
3
These entities include JM&M Services, Inc., Lambert Memorial Co., a/k/a Lambert Memorials, Inc.,
Lambert and Sons, Inc. and its principals, Jemar Lambert, Marje Lambert, and Mary Lambert, as well as the
Tennessee Commissioner of Commerce and Insurance, in its capacity as receiver for Galilee Memorial
Gardens.
4
These funeral homes include N.J. Ford and Sons Funeral Home Inc. and Christian Funeral Directors,
Inc., d/b/a Christian Funeral Directors South East, in addition to unnamed funeral homes and directors.
5
The April 25, 2014 Amended Complaint added as additional named defendants E.H. Ford Mortuary
Services, Inc.; Joseph Sampson Ford, individually and d/b/a Joe Ford Funeral Home; James E. Herndon, III,
individually and d/b/a J.E. Herndon Funeral Home, LLC; Casey M. Sanders, individually and d/b/a Hardeman
County Funeral Service; Signature Funeral Services, LLC; Vernal H. Bins Jr., individually and d/b/a V.H. Bins
and Son Funeral Home, Inc.; R.S. Lewis Funeral Home LLC; Durell Antoine Williams, individually and d/b/a
Calvary Memorial Funeral Home; Family Mortuary Inc.; Harrison‘s Funeral Home, Inc.; Preston Jefferson,
individually and d/b/a Jefferson Mortuary; Millington Funeral Home, Inc.; and SLS, LLS, d/b/a Superior
Funeral Home Hollywood Chapel.
4
contract. But this isn‘t the end of the contract. There is another
page of the contract, a page which we don‘t have. We know
what it would say if it was added. There‘s no proof to the
contrary that Ms. Wofford -- that those pages are missing. Three
and four are missing.
Generally speaking, I would say that y‘all can correct me -- but
most folks have an expectation that when you sign the
document, that that‘s the document to which you are being
bound by. Now, Page 2 does say, Part Three is on the way; you
need to pay attention to what‘s on Part Three. And by signing
this agreement, you are subject to arbitration. That‘s right above
their signature, well below the price.
And that is what is in my mind the determining factor as to the
set of the facts as to whether or not this contract was enforceable
based upon the ability of the parties to understand that which
they were agreeing to. If there had not been a Page 3 at all and it
simply had that simple sentence that says, you have to be in
arbitration, I'm not really sure that the law would say that that is
sufficient notice of the rights one has under arbitration.
Consequently, I‘m going to deny the motion for arbitration, and
we will proceed with the litigation accordingly.
On December 16, 2014, the trial court entered a written order denying the motion to compel
arbitration, incorporating by reference its oral ruling.
On December 19, 2014, Edwards filed a motion to stay litigation pending the outcome
of Edwards‘s appeal of the decision on the arbitration issue. On January 9, 2015, the parties
argued the motion for a stay before the trial court. At the conclusion of the hearing, the trial
court denied the motion and reiterated its decision regarding the denial of the motion to
compel arbitration. Specifically, the trial court stated:
This Court‘s authority to rule on this matter comes from the
Constitution as ratified by the people. Yet, there are other ways
to resolve disputes. And arbitration is one of the ways. It is a
favored way. But whether a party participates in arbitration or
not is where a party consented to participate in arbitration
through a contract that says that we have a dispute; we will
resolve that dispute, not through the court system, but through
arbitration.
5
It‘s been long held in the state in Davidson versus Martin
Marietta Energy at 797 Fed. Supplement 613 that arbitration is a
matter of contract, and a party cannot be required to arbitrate
any dispute which he has not agreed to submit. Also, in French
versus First Union Securities, federal case Fed. Supplement 818:
Since arbitration agreements are creatures of contract, a party
cannot be required to submit to arbitration unless he or she has
agreed to do so.
The Court‘s ruling -- and perhaps the Court wasn‘t clear in
previous proceedings – was that this Court has not ruled that this
matter is appropriate for arbitration. This Court hasn‘t ruled that
the arbitration agreement follows – is an appropriate document
that would cover this type of injury. This Court hasn‘t ruled that
this type of damage claim is subject or appropriate for
arbitration.
What this Court has ruled is by the clear facts of the case that
the parties never had a meeting of the minds and never had a
contract to order arbitration, to go to arbitration. The most
damaging fact is that the plaintiff signed the contract on Page 2
and that it was a four-page contract.
And as stated again today, there cannot be any -- while there
[are] statements concerning arbitration, describing what
arbitration is and how it will work is on the page of a contract
which the Edwards company cannot, as stated again today,
cannot state that the plaintiff even got.
So I haven‘t gotten to whether this is right to arbitration or not
right to arbitration or appropriate for arbitration or inappropriate
for arbitration. I‘m simply stating there is not a contract to
compel arbitration, and therefore, there was no meeting of the
minds.
The trial court thereafter denied the motion to stay by written order entered January 15, 2015.
Edwards timely appealed the denial of its motion to compel arbitration, invoking its statutory
right to appeal pursuant to Tennessee Code Annotated Section 29-5-319.
While this appeal was pending, on February 5, 2015, Edwards filed a motion in this
Court to stay the proceedings in the trial court pending resolution of this appeal. Ms. Wofford
6
responded in opposition to the motion, but it was eventually granted on February 25, 2015, as
to the claims against Edwards only.6
Issue Presented
Edwards raises one issue in this appeal: Whether the trial court erred in denying
Edwards‘s motion to compel arbitration?
Standard of Review
When the facts are not disputed, we review the denial of a motion to compel
arbitration de novo, with no presumption of correctness in the trial court's decision. See
Owens v. Nat'l Health Corp., 263 S.W.3d 876, 882 (Tenn. 2007). In this case, the underlying
facts surrounding the Contract and Ms. Wofford‘s execution are undisputed. The only
questions concern whether there was mutual assent to arbitration and whether the arbitration
provision was unconscionable. ―The issue of whether an arbitration clause is unconscionable
under applicable contract principles is also a question of law, subject to de novo review.‖
Berent v. CMH Homes, Inc., 466 S.W.3d 740, 745 (Tenn. 2015). In contrast, ―[w]hether a
meeting of the minds occurred is a question of fact.‖ Harvey v. Turner, No. M2014-00368-
COA-R3-CV, 2015 WL 1451702, at *6 (Tenn. Ct. App. Mar. 26, 2015), perm. app. denied
(Tenn. Aug. 14, 2015) (quoting In re Estate of Josephson, No. M2011-01792-COA-R3CV,
2012 WL 3984613, at *2 (Tenn. Ct. App. Sept. 11, 2012) (citing 17B C.J.S. Contracts § 1008
(2012)). However, ―when a trial court is called upon to make a finding of fact based on
uncontroverted evidence, its conclusion is one of law, and the appellate courts will review
that finding as a question of law.‖ Executone of Memphis, Inc. v. Garner, 650 S.W.2d 734,
736 (Tenn. 1983) (citing Billington v. Crowder, 553 S.W.2d 590, 595 (Tenn. Ct. App. 1977);
6
Also during the pendency of this appeal, the parties filed no less than four supplemental authorities
pursuant to Rule 27 of the Tennessee Rules of Appellate Procedure. Rule 27 provides:
When pertinent and significant authorities come to the attention of a party
after the party‘s brief has been filed, or after oral argument but before
decision, a party may promptly advise the clerk of the court, by letter, extra
copies to the clerk for each judge of the appellate court, and a copy to all
other parties, setting forth the citations. There shall be a reference either to
the page of the brief or to a point argued orally to which the citations pertain,
but the letter shall without argument state the reasons for the supplemental
citation. Any response shall be made promptly and shall be similarly limited.
Rule 27 places no express limit on the number of supplemental authorities that may be filed after briefing is
completed. While some of the cases cited in supplemental authorities were issued after briefing was completed,
several of the authorities were issued prior to briefing being completed in this case (some as early as 1982).
Unless new authority is issued, parties should endeavor to include all relevant material in their initial briefs to
this Court.
7
Continental Ins. Co. v. Cooper, 58 Tenn. App. 316, 430 S.W.2d 661 (Tenn. Ct. App. 1968));
see also Allman v. Boner, No. 01A01-9306-CH-00270, 1993 WL 541111, at *1 (Tenn. Ct.
App. Dec. 29, 1993). Accordingly, our review is de novo in this case.
Analysis
The crux of this appeal is whether Ms. Wofford is required to arbitrate her claim
against Edwards. We first look to Tennessee law concerning the enforcement and
interpretation of agreements to arbitrate.7 Arbitration is judicially and legislatively favored in
Tennessee. See generally Buraczynski v. Eyring, 919 S.W.2d 314, 317 (Tenn. 1996)
According to the Tennessee Uniform Arbitration Act (―TUAA‖):
A written agreement to submit any existing controversy to
arbitration or a provision in a written contract to submit to
arbitration any controversy thereafter arising between parties is
valid, enforceable and irrevocable save upon such grounds as
exist at law or in equity for the revocation of any contract;
provided, that for contracts relating to farm property, structures
or goods, or to property or structures utilized as a residence of a
7
The parties exclusively relied upon Tennessee law in the trial court and their appellate briefs. At oral
argument, counsel for Edwards asserted, for the first time, that application of federal law may be appropriate
under the Federal Arbitration Act (―FAA‖) because funeral homes such as Edwards are subject to federal
regulations. See Serv. Corp. Int’l v. Lopez, 162 S.W.3d 801, 807 (Tex. Ct. App. 2005) (holding that a funeral
services contract is governed by the FAA because funeral services are governed by federal law); Serv. Corp.
Int'l v. Fulmer, 883 So. 2d 621, 630 (Ala. 2003) (same). Generally, arguments that are raised for the first time
on appeal are waived, see Welch v. Bd. of Prof’l Responsibility for the Supreme Court of Tenn., 193 S.W.3d
457, 465 (Tenn. 2006), unless the arguments question the court‘s subject matter jurisdiction. See Landers v.
Jones, 872 S.W.2d 674, 675 (Tenn. 1994). Other courts have previously held that arguments regarding the
applicability of the FAA were waived by the parties by their failure to raise the arguments at trial. See Estate of
Blanchard ex rel. Blanchard v. Cent. Park Lodges (Tarpon Springs), Inc., 805 So. 2d 6, 10 (Fla. Dist. Ct.
App. 2001) (noting that the parties attempt to ―couch[] its argument in terms of subject matter jurisdiction‖ was
merely an attempt to avoid waiver); Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal. 4th 1334, 1350, 190
P.3d 586, 597 (Cal. 2008) (holding that party waived argument that judicial review of an arbitration award
should be governed by the FAA by failing to raise the argument in the trial court or in its appellate brief); see
also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32, 103 S. Ct. 927, 942, n. 32,
74 L. Ed. 2d 765 (1983) (holding that the FAA does not confer an independent basis for subject matter
jurisdiction in federal courts). Furthermore, Tennessee clearly has subject matter jurisdiction to consider a
motion to compel arbitration in a common law tort case irrespective of whether federal or Tennessee law will
determine the arbitration issue. See Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 84 (Tenn. 1999)
(considering a motion to compel arbitration under the FAA); Mid-S. Maint. Inc. v. Paychex Inc., No. W2014-
02329-COA-R3-CV, 2015 WL 4880855, at *5 (Tenn. Ct. App. Aug. 14, 2015) (considering a case that is
governed by the FAA and New York law). Thus, we conclude that Edwards‘s argument regarding the
applicability of the FAA was waived by its failure to raise this issue in the trial court or in its brief.
8
party, the clause providing for arbitration shall be additionally
signed or initialed by the parties.
Tenn. Code Ann. § 29-5-302(a). Further, as explained by this Court:
In permitting and indeed encouraging arbitration of disputes, the
legislature sought to facilitate and promote a quicker, more cost
effective, less cumbersome, yet binding means of dispute
resolution. Buraczynski, 919 S.W.2d at 317; Dewitt v. Al-
Haddad, No. 89-394-II, 1990 WL 50727, at *7 (Tenn. Ct. App.
April 25, 1990) (no perm. app. filed). An agreement to arbitrate
does not affect the rights and duties of the parties. It simply
shifts the forum of dispute settlement. Buraczynski, 919 S.W.2d
at 319. Unless a contract containing the arbitration clause is
otherwise revocable upon grounds existing at law or in equity,
such as fraud or unconscionability, the terms of an arbitration
provision are binding on the parties. D & E Constr. Co. v.
Robert J. Denley Co., 38 S.W.3d 513, 518 (Tenn. 2001); see
Buraczynski, 919 S.W.2d at 320. Additionally, section 29-5-
303(a) requires that where parties have become bound by a
written agreement to arbitrate disputes between them, and one
party refuses to arbitrate, ―the court shall order the parties to
proceed with arbitration, but if the opposing party denies the
existence of the agreement to arbitrate, the court shall proceed
summarily to the determination of the issue so raised and shall
order arbitration if found for the moving party. . . .‖ Tenn. Code
Ann. § 29-5-303(a)(2000) (emphasis added). Thus if the court
finds a valid written agreement to arbitrate, whether to order the
parties into arbitration is not a matter of discretion for the court,
but is statutorily required.
T.R. Mills Contractors, Inc. v. WRH Enters., LLC, 93 S.W.3d 861, 868 (Tenn. Ct. App.
2002).
Despite the favorability of arbitration agreements, parties ―cannot be forced to
arbitrate claims that they did not agree to arbitrate.‖ Frizzell Constr. Co. v. Gatlinburg,
L.L.C., 9 S.W.3d 79, 84 (Tenn. 1999) (involving a contract under the FAA, but applying
―ordinary state-law principles‖ to issues of contract formation) (citing First Options, 514
U.S. at 944). In ―deciding whether parties agreed to arbitrate a particular issue,‖ the court
should ―‗ascertain the intention of the parties by a fair construction of the terms and
provisions of the contract, by the subject matter to which it has reference, by the
9
circumstances of the particular transaction giving rise to the question, and by the construction
placed on the agreement by the parties in carrying out its terms.‘‖ Frizzell, 9 S.W.3d at 84
(quoting Penske Truck Leasing Co. v. Huddleston, 795 S.W.2d 669, 671 (Tenn.1990)).
―[W]hile courts are required to give an arbitration agreement ‗as broad a construction as the
words and intentions of the parties will allow‘, this applies to the scope of the agreement, and
not whether grounds exist to deny enforceability of the agreement.‖ Howell v. NHC
Healthcare-Fort Sanders, Inc., 109 S.W.3d 731, 733 (Tenn. Ct. App. 2003) (citing Urology
Assocs., P.C. v. Cigna Healthcare of Tenn., Inc., No. M2001-02252-COA-R3-CV, 2002
WL 31302922, at *5 (Tenn. Ct. App. Oct. 11, 2002)). Accordingly, we must determine
whether, applying ordinary contract-formation principles, an enforceable agreement to
arbitrate existed between the parties.
The Parties’ Contract
From the record in the trial court, we can discern that that trial court denied Edwards‘s
motion to compel arbitration because it concluded that notice provided by the Contract and
the circumstances did not indicate that there was a meeting of the minds as to arbitration. The
Tennessee Supreme Court has indeed held that mutual assent to a contract‘s material terms is
an essential element of contract formation and enforcement:
It is black letter law that in order for a contract to be
consummated, the parties must mutually assent to the material
terms. See Arthur M. Kaufman & Ross M. Babbitt, The
Mutuality Doctrine in the Arbitration Agreements: The
Elephant in the Road, 22 Franchise L.J. 101, 102 (2002).
Tennessee courts have referred to this requirement as a ―meeting
of the minds.‖ Staubach Retail Servs.-S.E., LLC v. H.G. Hill
Realty Co., 160 S.W.3d 521, 524 (Tenn. 2005) (quoting Doe v.
HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn.
2001)). A meeting of the minds is determined ―by assessing the
parties‘ manifestations according to an objective standard.‖
Moody Realty Co. v. Huestis, 237 S.W.3d 666, 674 (Tenn. Ct.
App. 2007); see also Paragon Refining Co. v. Lee, 98 Tenn.
643, 644–49, 41 S.W. 362, 363–64 (1897); Black’s Law
Dictionary 124 (8th ed. 2004) (―In modern contract law, mutual
assent is determined by an objective standard—that is, by the
apparent intention of the parties as manifested by their
actions.‖). The traditional common-law rule is that where mutual
assent is lacking, no contract was ever formed. See Higgins v.
Oil, Chem. & Atomic Workers Int'l Union, Local No. 3-677,
811 S.W.2d 875, 879 (Tenn. 1991) (―The facts of this case,
10
plainly and simply, fail to establish mutual assent. Hence, no
contract between the parties ever arose.‖); accord Restatement
(Second) of Contracts § 17 & cmt. c (1981); see generally 21
Steven W. Feldman, Tennessee Practice: Contract Law and
Practice § 4:5, at 277–78 (2006).
Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 528 (Tenn. 2012).
In this case, Edwards argues that regardless of whether Ms. Wofford actually read the
whole of the Contract, she is presumed to have done so and the Contract may be enforced
against her, including Part 3. Indeed, this Court had repeatedly held that in the absence of
fraud:
[A]n individual who signs a contract is presumed to have read
the contract and is bound by its contents. See Giles v. Allstate
Ins. Co., 871 S.W.2d 154, 157 (Tenn. Ct. App. 1993); see also
Beasley v. Metro. Life Ins. Co., 190 Tenn. 227, 229 S.W.2d
146, 148 (1950). To hold otherwise would make contracts not
―‗worth the paper on which they are written.‘‖ Beasley, 229
S.W.2d at 148 (quoting Upton v. Tribilcock, 91 U.S. 45, 50, 23
L. Ed. 203 (1875)).
84 Lumber Co. v. Smith, 356 S.W.3d 380, 383 (Tenn. 2011); see also Giles, 871 S.W.2d at
156 (indicating that the above presumption applies when there is no showing that the
individual has been the ―victim of fraud‖). Because there are no allegations of fraud in this
case, Edwards asks that this Court reverse the trial court‘s finding that there was no mutual
assent to arbitration and, instead, enforce the arbitration provisions contained in both Parts 2
and 3 of the Contract.
To determine whether there was a meeting of the minds as to arbitration, we must first
determine what documents constitute the Contract in this case. Stated another way, whether
the parties had a meeting of the minds as to arbitration depends, in part, on whether Part 3 of
the Contract was properly incorporated by reference. Here, there is no dispute that Ms.
Wofford was provided, and signed, Part 2 of the Contract, which mentions arbitration clearly,
but briefly. Edwards argues, however, that Ms. Wofford is also bound by Part 3 of the
Contract because it was incorporated by reference into the signed Contract, regardless of the
fact that Ms. Wofford was not presented with this part of the Contract. It is difficult to
discern Ms. Wofford‘s position on this issue. In some parts of her appellate brief, Ms.
Wofford discusses the terms of Part 3 of the Contract, giving the impression that Ms.
Wofford concedes that Part 3 was properly included as part of the Contract. In other parts of
her brief, however, Ms. Wofford appears to argue that this Court should disregard Part 3
11
because she was never provided with a copy of it. In an abundance of caution, we will
consider whether Part 3 was properly considered part of the Contract.
We agree with Edwards that in the typical circumstance, additional writings or
documents may be considered part of a contract as a whole where they are incorporated by
reference into the document signed by the parties. As the Tennessee Supreme Court
explained:
Other writings, or matters contained therein, which are referred
to in a written contract may be regarded as incorporated by
reference as a part of the contract and therefore, may be properly
considered in the construction of the contract. Where a written
contract refers to another instrument and makes the terms and
conditions of such other instrument a part of it, the two will be
construed together as the agreement of the parties.
Construing contemporaneous instruments together means simply
that if there are any provisions in one instrument limiting,
explaining, or otherwise affecting the provisions of another, they
will be given effect as between the parties themselves[.] And all
persons charged with notice so that the intent of the parties may
be carried out and the whole agreement actually made may be
effectuated.
McCall v. Towne Square, Inc., 503 S.W.2d 180, 183 (Tenn. 1973) (quoting 17 Am.Jur.2d,
Contracts § 263B65); see also 11 Williston on Contracts ' 30:25 (4th ed.) (AGenerally, all
writings which are part of the same transaction are interpreted together.@)). Thus, writings
referred to in a written contract are incorporated by reference into the contract and generally
will be considered as part of the agreement of the parties.
Here, Edwards cites several cases wherein this Court has held a party to the terms
contained in other documents that were incorporated by reference into the document signed
by the party seeking to avoid the contract. See Lasco Inc. v. Inman Constr. Corp., 467
S.W.3d 467 (Tenn. Ct. App. 2015); Robert J. Denley Co. v. Neal Smith Const. Co., No.
W2006-00629-COA-R3CV, 2007 WL 1153121, at *1 (Tenn. Ct. App. Apr. 19, 2007); T.R.
Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d 861 (Tenn. Ct. App. 2002).
Each of these cases, however, is materially different from the case-at-bar.
In all three cases, the agreements at issue involved large construction contracts
between relatively sophisticated parties, rather than the consumer contract that is at issue in
12
this case.8 See Lasco, 467 S.W.3d at 468 (involving a contract between a general contractor
and subcontractor for the construction of a College of Pharmacy Building at the University of
Tennessee Health Science Center); Denley, 2007 WL 1153121, at *1 (involving a contract
between a contractor and a developer for the construction of a subdivision); T.R. Mills, 93
S.W.3d at 864–65 (involving a contract between a contractor and a corporation for the
construction of a subdivision). In one case, there was no dispute regarding the parties‘
obligations to arbitrate, but only a question as to whether an attorney fee provision contained
within the Rules of the American Arbitration Association was incorporated by reference into
the parties‘ contract. See Lasco, 467 S.W.3d at 470. Additionally, there was no dispute that
both parties were fully aware of the attorney‘s fee provision, as both parties had requested
attorney‘s fees pursuant thereto. Id. at 474. Although the issues in Denley and T.R. Mills
involved the enforceability of an arbitration provision that was only included in the parties‘
form construction contracts by reference to another document (referred to as the A201
document), there was no dispute in either case that the parties had an opportunity to read the
A201 document but simply had not. Denley, 2007 WL 1153121, at *1; T.R. Mills, 93 S.W.3d
at 864–65. Indeed, the Court in T.R. Mills noted that the party seeking to avoid the terms of
the A201 document was an experienced contractor who had signed similar contracts in his
business in the past. T.R. Mills, 93 S.W.3d at 864–65. In contrast, in this case, there is no
evidence that Ms. Wofford had ever previously executed a contract with a funeral home or,
more importantly, that she was ever given a copy of Part 3 of the Contract. Instead, Ms.
Wofford had no opportunity to read or understand the terms of Part 3 of the Contract.
This Court recently considered a somewhat similar factual situation in Capps v.
Adams Wholesale Co., No. E2014-01882-COA-R3-CV, 2015 WL 2445970 (Tenn. Ct. App.
May 21, 2015) (no perm. app. filed). In Capps, the disputed arbitration provision was
contained within the limited warranty covering decking boards manufactured by the
defendant. Each bundle of the product and each individual piece of decking board contained
a notice referencing the limited warranty and providing the phone number and website where
the terms of the limited warranty could be found. The limited warranty contained a broad
arbitration provision. Id. at *1. The buyer of the products eventually sued the manufacturer
for defects in the products and misrepresentation. Id. at *1–*2. The manufacturer filed a
motion to dismiss or to stay the proceedings to compel arbitration. The trial court denied the
motion to compel arbitration, finding that the buyers were unsophisticated and that it would
be unconscionable to enforce the arbitration agreement against them.
8
On appeal, Edwards devotes nearly four pages of its initial appellate brief to a discussion of Ms.
Wofford‘s education and employment, nearly all of which was achieved by Ms. Wofford after signing the
contract at issue. Even considering this evidence, the contract at issue represents an agreement between one
relatively more sophisticated party and one relatively less sophisticated party, as discussed in detail, infra.
13
The Court of Appeals affirmed, concluding that there was no meeting of the minds as
to the arbitration provision because of certain circumstances surrounding how the provision
was presented to the buyer. According to the Court:
We . . . agree that failure to read an agreement does not absolve
a contracting party from the terms contained in an agreement.
Giles v. Allstate Ins. Co., 871 S.W.2d 154, 156 (Tenn. Ct. App.
1993). However, the ―contemplated mutual assent and meeting
of the minds cannot be accomplished by the unilateral action of
one party.‖ Jamestowne on Signal, Inc. v. First Fed. Sav. &
Loan Ass'n, 807 S.W.2d 559, 564 (Tenn. Ct. App. 1990)
(citations omitted). In this case, [buyers] were not provided with
a copy of the limited warranty that contained the arbitration
agreement prior to their purchase or when the product was
delivered for installation. The notices provided on the product
did not reference an arbitration agreement or provide any
indication that acceptance of the product was tantamount to
acceptance of an arbitration agreement. [Buyers], like any
ordinary consumer, did not consult their warranty to contact the
manufacturer of the product until after they experienced an
issue, approximately six months after the product was installed.
Under these specific circumstances, we hold that an arbitration
agreement was not formed because there was never an objective
mutual assent to the terms of the agreement when [buyers] were
not notified that such an agreement existed.
Capps, 2015 WL 2445970, at *3. Accordingly, the Court of Appeals affirmed the trial court‘s
denial of the motion to compel arbitration.
The situation in Capps is, to a certain extent, analogous to the situation in the case-at-
bar. Here, like the buyers in Capps, Ms. Wofford was not provided with the part of the
Contract that Edwards now seeks to enforce against her. In Capps, the notice provided to the
buyer did not specifically mention arbitration; in this case, however, there is no dispute that
Part 2 of the Contract expressly mentions arbitration. We note, however, that at this juncture
the issue is not whether arbitration should be enforced against Ms. Wofford, but whether Part
3 should be considered incorporated by reference into the parties‘ Contract. With regard to
the incorporation question, of particular relevance is the fact that the buyers in Capps were
provided with an avenue to obtain the portion of the contract that was never provided to
them; Ms. Wofford was never afforded such an opportunity. Moreover, Edwards‘s failure to
14
provide Ms. Wofford with Part 3 of the Contract was not an oversight; Mr. Collins indicated
in his deposition that Edwards chose not to provide this portion of the Contract to its
customers during the period of time in which Ms. Wofford was a customer.
Under the circumstances of this case, we cannot conclude that Edwards has shown
mutual assent to the terms contained in Part 3 of the Contract. This is not a situation where a
party is provided with a contract but voluntarily fails to read and understand its terms. Simply
put, Ms. Wofford cannot be said to have consented to terms of a contract that she was never
given an opportunity to review. As previously discussed, ―where mutual assent is lacking,
no contract was ever formed.‖ Allstate, 363 S.W.3d at 528 (citing Higgins, 811 S.W.2d at
879). Here, like in Capps, Ms. Wofford never had reason to question the missing document
until a dispute arose as to its applicability. See Capps, 2015 WL 2445970, at *3 (noting that
the buyer did not consult the warranty until after a dispute arose). In this particular
circumstance, because Ms. Wofford was never provided with Part 3 of the Contract, it never
became a part of the parties‘ agreement. Accordingly, we will only consider the
enforceability of the arbitration clause contained in Part 2 of the Contract.
Contract of Adhesion
Having determined what constitutes the parties‘ agreement with regard to arbitration,
we must next consider whether the arbitration provision actually included in the Contract is
enforceable. To support her argument that the arbitration provision is unenforceable, Ms.
Wofford argues that the Contract at issue constitutes a contract of adhesion. The Tennessee
Supreme Court outlined the appropriate analysis for determining a contract of adhesion in
Buraczynski v. Eyring, 919 S.W.2d 314 (Tenn. 1996). According to the Tennessee Supreme
Court:
An adhesion contract has been defined as ―a standardized
contract form offered to consumers of goods and services on
essentially a ‗take it or leave it‘ basis, without affording the
consumer a realistic opportunity to bargain and under such
conditions that the consumer cannot obtain the desired product
or service except by acquiescing to the form of the contract.”
Black's Law Dictionary 40 (6th ed. 1990); Broemmer [v.
Abortion Services of Phoenix Ltd.], 840 P.2d [1013,] 1015
[(1992)]. Professor Henderson has observed that ―the essence of
an adhesion contract is that bargaining positions and leverage
enable one party ‗to select and control risks assumed under the
contract.‘‖ [Stanley D. Henderson, Contractual Problems in the
Enforcement of Agreements to Arbitrate Medical Malpractice,]
58 Va.L.Rev. [947,] 988. Courts generally agree that ―[t]he
15
distinctive feature of a contract of adhesion is that the weaker
party has no realistic choice as to its terms.‖ Broemmer, 840
P.2d at 1016 . . . .
Buraczynski, 919 S.W.2d at 320 (some citations omitted). In Buraczynski, the Court
concluded that the medical services arbitration contract at issue was a contract of adhesion
because:
The agreements are standardized form contracts prepared by the
contracting party with superior knowledge of the subject
matter—the rendition of medical services. The agreements, by
[the physician‘s] own admission, were offered to the patients on
a ‗take it or leave it‘ basis. Had these patients refused to sign the
agreements, [the physician] would not have continued rendering
medical care to them. Although the patients could have refused
to sign the arbitration agreements and sought out another
physician in the area, that action would have terminated the
physician-patient relationship (ordinarily one of trust) and
interrupted the course of the patient‘s treatment. To make any
choice would be difficult; but to choose not to sign would result
in the loss of the desired service—medical treatment from [the
physician].
Buraczynski, 919 S.W.2d at 320. Thus, the Buraczynski Court held that the contract was an
adhesion contract because: (1) it was a standardized form contract; (2) the offering party had
a superior knowledge of the underlying subject matter; (3) the contract was offered on a ―take
it or leave it‖ basis; (4) failing to sign the agreement would have interrupted the rendition of
services; and (5) because of the type of services involved, choosing another provider would
have caused delay, resulting in a difficult choice.
Having thoroughly reviewed the record on appeal, we conclude that the Contract at
issue in this case, like in Buraczynski, is a contract of adhesion. First, there is no dispute in
this case that the contract signed by Ms. Wofford was a standardized form contract that was
presented by Edwards. Indeed, Mr. Collins testified that the Contract was not prepared by
Edwards but by a separate contract company from whom Edwards had purchased contract
software. Edwards was familiar with the Contract as it had been using the contract since
2010. Moreover, Edwards‘s employees had a greater knowledge of the subject matter, the
rendition of funeral services, than their customers, who Mr. Collins explained could be
emotionally vulnerable during this time:
16
[W]e deal with all types of families during the worst part of their
life. Death is the worst part of a person‘s life. And so we
actually have to walk them through a process. And because most
people don‘t know the process, so we walk them through a
process from beginning to end to carry their loved one to their
final resting place.
Additionally, Mr. Collins testified that if an individual refused to sign the standard form
contract at issue in this case, Edwards ―would refuse services‖ to that individual.9
Accordingly, the undisputed evidence shows that the standard form contract was offered to
Ms. Wofford on a ―take it or leave it basis.‖
Edwards argues, however, that cases decided in the wake of Buraczynski have
indicated that in order to find that contract is one of adhesion, there must have been no
reasonable alternatives in the market. For example in Wallace v. National Bank of
Commerce, 938 S.W.2d 684 (Tenn. 1996), decided mere months after the decision in
Buraczynski, the Tennessee Supreme Court concluded that a contract between a consumer
and a bank was not a contract of adhesion because of the consumer‘s ability to obtain the
desired services by other banks in the marketplace. Id. at 687–88. According to the
Tennessee Supreme Court:
[M]ost significantly, there is no showing in the record that the
customers had no realistic choice but to acquiesce in the
imposition of the banks‘ charges. There is no showing that the
fees were the same at all the defendant banks or that banking
services could not be obtained from other institutions. It is
common knowledge that the banking industry is very
competitive. For example, different banks may charge lower
fees for some services and higher fees for other services, and
they also may charge lower interest rates on loans but higher
fees for services, thus providing choices which may appeal to
various prospective customers. In the absence of a showing that
there was no effective competition in the providing of services
among the banks in the area served by the defendants, there is
no basis for concluding that the appellants had no realistic
choice regarding the terms for obtaining banking services.
Id.
9
Mr. Collins testified, however, that he had never experienced such a situation.
17
In a more recent case, Desgro v. Pack, No. E2012-00918-COA-R3CV, 2013 WL
84899 (Tenn. Ct. App. Jan. 8, 2013), this Court considered a contract governing the
inspection of a house. Id. at *1. The inspection revealed no serious problems, and the
plaintiff purchased the house. After multiple serious problems were thereafter discovered, the
plaintiff sued the defendant-inspector. The defendant filed a motion for summary judgment,
arguing that the claim was barred by the contractual limitations period. The plaintiff argued
that the limitations period should not be enforced because the contract was one of adhesion.
Id. The Court of Appeals concluded that the contract was not one of adhesion because the
contract was not offered on a ―take it or leave it‖ basis. According to the Court:
Plaintiff did not question the terms of the agreement, did not
attempt to bargain with the defendant regarding the agreement,
and there was no proof that defendant told plaintiff he had to
sign the document to obtain the service. Plaintiff stated that he
contacted defendant at the recommendation of his realtor, but
plaintiff likely could have obtained the service from someone
else because plaintiff did not show that defendant was the only
home inspector in the area.
Id. at *3.
Edwards argues that this case is analogous to Wallace and Desgro in that Ms.
Wofford failed to read, much less question, the terms of the agreement. In addition, Edwards
asserts that Ms. Wofford has failed to show that she could not have obtained the desired
services from another funeral home. To support this argument, Edwards points out the
multiple funeral homes named as defendants in this case, none of which required their
customers to sign arbitration agreements. Additionally, the record shows that Ms. Wofford
was aware of other funeral homes where she could have obtained the desired services.
From our reading, however, the analysis in Buraczynski rests on one critical finding—
that the relationship between doctor and patient is unique and built on trust. See Buraczynski,
919 S.W.2d at 319–320. Indeed, other Courts have come to similar conclusions. See Skelton
v. Freese Const. Co., No. M2012-01935-COA-R3CV, 2013 WL 6506937, at *8 (Tenn. Ct.
App. Dec. 9, 2013) (noting that Buraczynski involved ―the physician-patient trust
relationship‖); Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351, 360 (Tenn. Ct. App. 2001)
(noting that deciding factor in Buraczynski was the ―peculiar relationship between the
parties‖). Because of this unique relationship and the exigency in which the services may be
needed, the Buraczynski Court found that it would be problematic for the patient to terminate
the relationship and seek another medical professional to perform the desired services.
18
Based upon our reading of Buraczynski, we also conclude that Ms. Wofford, like the
patient in Buraczynski, would have been faced with a difficult decision had she decided to
terminate the relationship with Edwards. First, even Mr. Collins admitted that the
procurement of funeral services is an emotional decision that is unfamiliar to most people.
Indeed, the legislative history behind the federal regulations governing funeral services
recognizes that ―[a]rranging a funeral plainly involves emotional, religious, and other
important social considerations‖ and, like in Buraczynski, is a ―unique‖ situation. Trade
Regulation Rule; Funeral Industry Practices, 47 FR 42260-01.
Moreover, because of the actions that had already taken place, Ms. Wofford had ―no
realistic choice but to acquiesce‖ in signing the Contract.10 See Wallace, 938 S.W.2d at 687
(emphasis added); see also Webster’s New World College Dictionary 1209 (5th ed. 2014)
(defining ―realistic‖ as ―tending to face facts; practical‖). Here, Ms. Wofford first spoke with
employees of Edwards on June 11, 2013. It appears that many, if not all, of the funeral plans
were finalized at this meeting. It is undisputed that at the time that Ms. Wofford was asked to
sign the Contract sought to be enforced against her, Edwards had already taken possession of
her father‘s body, moved forward with obtaining the life insurance proceeds to pay for the
services, embalmed the body, ordered the casket, worked to obtain a death certificate, and
endeavored to place Ms. Wofford‘s father‘s obituary in the newspaper. Accordingly, by the
time that Ms. Wofford was actually presented with the Contract containing the arbitration
provision, Edwards had already put the plan for the funeral services in motion. To ask Ms.
Wofford to refuse to go forward with the funeral services with Edwards at this point is akin
to asking her to ―swap horses in midstream.‖11 Thus, we conclude that, based upon the
10
In Mr. Collins‘s deposition, he testified that it was ―common‖ for funeral customers to change their
minds about where they wanted the funeral services for their loved ones to take place. He later clarified that
this situation presents in approximately 2.5 % of the times that his funeral home is contacted for services. We
cannot agree that this represents a common occurrence.
11
The proliferation of the proverb warning against ―swapping horses in midstream‖ is typically
attributed to President Abraham Lincoln in his 1864 presidential campaign. According to an article in the New
York Tribune on June 10, 1864, President Lincoln stated in support of his reelection:
I have not permitted myself, gentlemen, to conclude that I am the best man
in the country; but I am reminded, in this connection, of a story of an old
Dutch farmer, who remarked to a companion once that ―it was not best to
swap horses when crossing streams.‖
Wolfgang Meider, “Proverbs Speak Louder Than Words”: Folk Wisdom in Art, Culture, Folklore, History,
Literature, and Mass Media 208 (2008). Although President Lincoln is widely credited with authoring the
proverb, scholars have noted its presence in the American lexicon prior to 1864. See id. at 210. After President
Lincoln was reelected, the proverb gained popularity as a slogan for other politicians running for reelection. Id.
at 219. The most notable of which was President Franklin Delano Roosevelt, who successfully utilized the
19
totality of the circumstances presented in this particular case, the Contract at issue is a
contract of adhesion.12
Unconscionability
Our conclusion that the contract is one of adhesion, however, is not dispositive of its
enforceability. Instead, the party seeking to avoid the contract must also show that ―the terms
of the contract are beyond the reasonable expectations of an ordinary person, or oppressive
or unconscionable.‖ Buraczynski v. Eyring, 919 S.W.2d 314, 320 (Tenn. 1996) (emphasis
added) (citing Broemmer v. Abortion Servs. of Phoenix Ltd., 840 P.2d 1013, 1015 (1992)).
―Despite the favored status of arbitration agreements, Tennessee courts have refused to
enforce such agreements when they have been found to be unconscionable.‖ Trigg v. Little
Six Corp., 457 S.W.3d 906, 912 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. Nov. 20,
2014) (citing several cases discussed throughout this Opinion). Furthermore, ―[c]ourts will
not enforce adhesion contracts which are oppressive to the weaker party or which serve to
limit the obligations and liability of the stronger party.‖ Buraczynski 919 S.W.2d at 320
(Broemmer, 840 P.2d at 1015). Additionally, where it is contained in a contract of adhesion,
an arbitration provision will not be enforced unless the party seeking to compel arbitration
can show that it was ―actually bargained over the arbitration provision or that it was a
reasonable term considering the circumstances.‖ Howell v. NHC Healthcare-Fort Sanders,
Inc., 109 S.W.3d 731 (Tenn. Ct. App. 2003) (quoting Brown v. Karemor International, Inc.,
1999 WL 221799, at *3 (Tenn. Ct. App. April 19, 1999) perm. app. granted (Tenn. Jan. 18,
2000), perm. app. denied (Tenn. June 30, 2000)).13
proverb as a slogan in his 1936, 1940, and 1944 reelection campaigns. Id. at 221.
12
We recognize that a substantially similar contract was not found to be a contract of adhesion in
Service Corporation International v. Lopez, 162 S.W.3d 801 (Tex. Ct. App. 2005). While cases from other
jurisdictions are sometimes persuasive in this Court, they do not operate as controlling authority, and we are
free to come to a contrary conclusion. See Summers Hardware & Supply Co. v. Steele, 794 S.W.2d 358, 362
(Tenn. Ct. App. 1990). Furthermore, the Texas Court of Appeals indicates that Texas applies a somewhat more
exacting standard for determining whether a contract constitutes a contract of adhesion. See Lopez, 162 S.W.3d
at 809 (defining an adhesion contract as one where a ―party has absolutely no bargaining power or ability to
change the contract terms‖) (emphasis added) (citing In re H.E. Butt Grocery Co., 17 S.W.3d 360, 370–71
(Tex. Ct. App. 2000)).
13
Although the language in Howell has never been specifically adopted by the Tennessee Supreme
Court, our Supreme Court denied permission to appeal in Howell on June 30, 2003. Thus, the Howell language
remains good law. In 2006, however, this Court limited the application of the Howell rule to only contracts of
adhesion. See Diagnostic Ctr. v. Steven B. Stubblefield, M.D., P.C., 215 S.W.3d 843, 847 & n.2 (Tenn. Ct.
App. 2006) (indicating that the Howell rule only applies to contracts of adhesion); see also Broadnax v.
Quince Nursing & Rehab. Ctr., LLC, No. W200802130COAR3CV, 2009 WL 2425959, at *7 (Tenn. Ct.
App. Aug. 10, 2009) (same); Estate of Mooring v. Kindred Nursing Centers, No. W200702875COAR3CV,
20
Accordingly, we must next determine whether the arbitration clause is unconscionable
and therefore unenforceable. As the Tennessee Supreme Court recently explained:
If a contract or term thereof is unconscionable at the time the
contract is made, a court may refuse to enforce the contract, or
may enforce the remainder of the contract without the
unconscionable term. See Restatement (Second) of Contracts §
208 (1981). ―The determination that a contract or term is or is
not unconscionable is made in the light of its setting, purpose
and effect. Relevant factors include weaknesses in the
contracting process like those involved in more specific rules as
to contractual capacity, fraud, and other invalidating causes . . .
.‖ Restatement (Second) of Contract[s] § 208, cmt. a (1981).
Enforcement of a contract is generally refused on grounds of
unconscionability where the ―inequality of the bargain is so
manifest as to shock the judgment of a person of common sense,
and where the terms are so oppressive that no reasonable person
would make them on the one hand, and no honest and fair
person would accept them on the other.‖ Haun v. King, 690
S.W.2d 869, 872 (Tenn. Ct. App. 1984) (quoting In re
Friedman, 64 A.D.2d 70, 407 N.Y.S.2d 999 (1978)); see also
Aquascene, Inc. v. Noritsu Am. Corp., 831 F. Supp. 602 (M.D.
Tenn.1993). An unconscionable contract is one in which the
provisions are so one-sided, in view of all the facts and
circumstances, that the contracting party is denied any
opportunity for meaningful choice. Id.
Berent v. CMH Homes, Inc., 466 S.W.3d 740, 746–47 (Tenn. 2015) (quoting Taylor v.
Butler, 142 S.W.3d 277, 285 (Tenn. 2004)); see also Owens v. Nat’l Health Corp., 263
S.W.3d 876, 889 (Tenn. 2007) (―A contract may be unconscionable if the provisions are so
one-sided that the contracting party is denied an opportunity for a meaningful choice. . . . In
making that determination, a court must consider all the facts and circumstances of a
particular case.‖) (citations omitted).
2009 WL 130184, at *5 (Tenn. Ct. App. Jan. 20, 2009) (same). We note, however, that it is unclear how the
first part of the Howell rule, that the parties actually bargained over the term, could ever apply to an adhesion
contract, which by definition involves no bargaining between the parties. See generally Buraczynski 919
S.W.2d at 320 (discussed in detail, infra).
21
―The unconscionability analysis can be broken down into two component parts: (1)
procedural unconscionability, which is an absence of the meaningful choice on the part of
one of the parties and (2) substantive unconscionability, which refers to contract terms which
are unreasonably favorable to the other party.‖ Philpot v. Tenn. Health Mgmt., Inc., 279
S.W.3d 573, 579 (Tenn. Ct. App. 2007) (citing Elliott v. Elliott, No. 87–276–II, 1988 WL
34094, at *4 (Tenn. Ct. App. April 13, 1988)). ―For example, a contract may be found to be
procedurally unconscionable if the contract is presented to a party on a take it or leave it basis
and the party is not given the opportunity to understand the agreement.‖ McGregor v.
Christian Care Ctr. of Springfield, L.L.C., No. M2009-01008-COA-R3-CV, 2010 WL
1730131, at *5 (Tenn. Ct. App. Apr. 29, 2010). Tennessee courts, however, ―have tended to
lump the two together[.]‖ Trinity Indus., Inc. v. McKinnon Bridge Co., 77 S.W.3d 159, 171
(Tenn. Ct. App. 2001). ―Where the parties possess equal bargaining power the courts are
unlikely to find that their negotiations resulted in an unconscionable bargain, . . . and terms
that are common in the industry are generally not unconscionable.‖ Trinity Indus, 77 S.W.3d
at 171 (citing Posttape Associates v. Eastman Kodak Co., 450 F. Supp. 407 (E.D.Pa. 1978);
D.O.V. Graphics, Inc. v. Eastman Kodak Co., 46 Ohio Misc. 37, 347 N.E.2d 561 (Common
Pleas 1976)).
Because of the proliferation of arbitration agreements, there is no shortage of
Tennessee caselaw concerning the alleged unconscionability of these agreements. For
example, in 1996, the Tennessee Supreme Court in Buraczynski, as discussed above,
considered the unconscionability of an arbitration provision contained within an adhesion
contract between a patient and a physician. See id. In reaching its decision, the Court
considered several factual situations in which courts throughout the United States had refused
to enforce arbitration agreements. For example, the Buraczynski Court cited one case in
which enforcement was refused because the arbitration provision was contained within the
underlying services agreement and gave the consumer no option to revoke the contract. Id.
(citing Obstetrics & Gynecologists William G. Wixted, M.D., Patrick M. Flanagan, M.D.,
William F. Robinson, M.D. Ltd. v. Pepper, 101 Nev. 105, 693 P.2d 1259, 1260 (Nev.
1985)). The Court cited another decision in which a court refused to enforce an arbitration
provision where the contract gave a health care provider the unilateral right to reject an
arbitrator‘s decision without cause and require the arbitration to be reheard before a panel of
physicians. Buraczynski, 919 S.W.2d at 320 (citing Beynon v. Garden Grove Med. Grp.,
100 Cal. App. 3d 698, 161 Cal. Rptr. 146, 150 (1980)). Based upon these cases, the Court
explained:
An overview of these cases demonstrates that, in general, courts
are reluctant to enforce arbitration agreements between patients
22
and health care providers when the agreements are hidden
within other types of contracts and do not afford the patients an
opportunity to question the terms or purpose of the agreement.
This is so particularly when the agreements require the patient to
choose between forever waiving the right to a trial by jury or
foregoing necessary medical treatment, and when the
agreements give the health care provider an unequal advantage
in the arbitration process itself.
Buraczynski, 919 S.W.2d at 321.
Following this caselaw, the Buraczynski Court held that the arbitration provision at
issue was enforceable because none of its provisions were oppressive. Id. Specifically, the
Court focused on the facts that: (1) the arbitration agreement was not buried in the underlying
services contract; (2) the arbitration agreement contained an appropriate explanation; (3) the
arbitration procedure was specified by the agreement and gave no unfair advantage to the
physician;14 (4) specific portions of the agreement were required to be separately initialed,
making those provisions especially conspicuous; (5) patients could revoke the arbitration
agreements within thirty days of its execution; and (6) the agreements did not alter the
physician‘s duty to exercise reasonable care. Id. Thus, the Court determined that none of the
above factors led to the conclusion that the arbitration agreement was oppressive or beyond
the reasonable expectations of the parties. Id.
This Court was faced with a similar question in Howell v. NHC Healthcare-Fort
Sanders, Inc., 109 S.W.3d 731 (Tenn. Ct. App. 2003), which involved an arbitration
agreement signed by a nursing home resident‘s husband in conjunction with her admission to
the nursing home. Id. at 732. The resident‘s estate brought suit against the nursing home,
alleging abuse and neglect prior to the resident‘s death. The nursing home filed a motion to
compel arbitration based upon an arbitration provision contained in the admission agreement.
The trial court refused to enforce the arbitration provision.
The Court of Appeals affirmed, concluding that the arbitration provision was not
reasonable. First, the Court noted that ―the reasonableness of the provision could not be
determined simply by looking at the agreement itself.‖ Id. at 734 (citing Brown v. Karemor
Int’l, Inc., 1999 WL 221799, at *3 (Tenn. Ct. App. Apr. 19, 1999)). Second, the Court noted
that the contract containing the arbitration provision was provided to the resident‘s husband
14
In Buraczynski, both parties were bound by the decision of the arbitrator and any claim that the
physician had to unpaid fees must also have been decided by arbitration when a medical malpractice claim was
asserted. Id.
23
on a ―take it or leave it‖ basis and the resident‘s husband had no real bargaining power, given
his ―educational limitations.‖ Howell, 109 S.W.3d at 735. The Court also focused on the fact
that while a nursing home employee explained much of the agreement to the resident‘s
husband, the fact that signing the contract would result in the waiver of the resident‘s right to
a jury trial was not explained or even mentioned. Additionally, the Court noted that the
arbitration provision was buried within an 11-page admission contract, rather than in a stand-
alone contract, as in Buraczynski. Finally, the Court considered the fact that the arbitration
provision did ―not adequately explain how the arbitration procedure would work, except as
who would administer it.‖ Howell, 109 S.W.3d at 734. Based upon this constellation of facts,
the Court of Appeals concluded that the arbitration provision was unenforceable because the
nursing home ―has not demonstrated that the parties bargained over the arbitration terms, or
that it was within the reasonable expectations of an ordinary person.‖ Id. at 735.
Recently, the Tennessee Supreme Court also considered the alleged unconscionability
of an arbitration agreement contained in an adhesion contract for the purchase of a
manufactured home. See Berent v. CMH Homes, Inc., 466 S.W.3d 740, 743–44 (Tenn.
2015). In Berent, the plaintiff-purchaser sued the defendant-manufacturers for breach of
contract. The defendants filed a motion to compel arbitration, which the plaintiff resisted on
the ground that the arbitration provision was unconscionable due to non-mutuality of
remedies. Specifically, the arbitration provision required that both parties submit all disputes
other than small claims to arbitration. However, the contract provided that the manufacturers
could seek relief in a judicial forum ―to enforce their security interest‖ in the manufactured
home or ―to seek preliminary relief.‖ Id. at 756.
The Berent Court concluded, however, that the arbitration provision at issue was not
unconscionable. First, the Court held that non-mutuality of remedies, in isolation, did not per
se invalidate an arbitration provision. Id. at 751. Instead, the Tennessee Supreme Court held
that courts must ―appl[y] the doctrine of unconscionability in a nuanced manner, weighing
the degree of one-sidedness in the arbitration provision as an important factor, but not the
only factor, and viewing the arbitration provision in the context of the overall contract and
the surrounding circumstances.‖ Id. Applying this framework, the Berent Court concluded
that the circumstances surrounding the contract-at-bar did not lead to the conclusion that the
arbitration provision was unconscionable or unenforceable. To reach this conclusion, the
Berent Court distinguished the contract at issue from a previous contract that had been held
invalid due to, inter alia, non-mutuality of remedies. See id. (citing Taylor v. Butler, 142
S.W.3d 277, 286–87 (Tenn. 2004)). Unlike the Taylor contract, which was, without
justification, ―completely one-sided‖, the provision allowing the manufacturers to institute
judicial foreclosure proceedings was reasonable and necessary to preserve their security
interest, as the arbitrator was not able to grant such relief. Berent, 466 S.W.3d at 756–57. As
24
explained by the Court:
Viewing the Arbitration Agreement in the context of the overall
circumstances, we must conclude that it is not unconscionable.
While the Arbitration Agreement is contained in an adhesion
contract and has some degree of non-mutuality in the parties'
choice of forum, it is not nearly as ―one-sided‖ as the arbitration
agreement in Taylor. Moreover, the Sellers articulate a
reasonable business justification for the carve-out for
foreclosure proceedings on the manufactured home. Under these
circumstances, the Arbitration Agreement is not unreasonably
favorable to the Sellers or ―beyond the reasonable expectations
of an ordinary person, or oppressive or unconscionable.‖ Taylor,
142 S.W.3d at 286.
Berent, 466 S.W.3d at 758.
Many courts in recent years have likewise upheld the enforceability of arbitration
agreements, finding that they were not oppressive, unreasonable, or beyond the expectations
of ordinary persons. See, e.g., Trinity Indus., Inc. v. McKinnon Bridge Co., 77 S.W.3d 159,
171 (Tenn. Ct. App. 2001) (concluding that a contract was not unconscionable where there
was no unequal bargaining power between the parties and the terms were common in the
industry); Trigg v. Little Six Corp., 457 S.W.3d 906, 916 (Tenn. Ct. App. 2014), perm. app.
denied (Tenn. Nov. 20, 2014) (discerning no unconscionability where the plaintiff failed to
meet his burden of showing that the costs of arbitration would be prohibitive); Reagan v.
Kindred Healthcare Operating, Inc., No. M2006-02191-COA-R3-CV, 2007 WL 4523092,
at *15 (Tenn. Ct. App. Dec. 20, 2007), perm. app. denied (Tenn. Feb. 17, 2009) (enforcing
an arbitration agreement after finding that the contract was not one of adhesion, that the
arbitration agreement was in a stand-alone contract, that the contract explained that
arbitration resulted in a waiver of jury and appeal rights, and the contract did not change the
duties or liabilities of the parties); Philpot v. Tenn. Health Mgmt., Inc., 279 S.W.3d 573,
581–82 (Tenn. Ct. App. 2007) (enforcing an arbitration agreement where the contract was
signed under no real urgency, the plaintiff was aware of other options to acquire the desired
service, the arbitration provision and its terms were clear and prominently disclosed in the
contract in several places, and the requirement to arbitrate applied to both parties equally).
Other courts have, however, invalidated arbitration contracts where they were unreasonable
or oppressive to the weaker party. See, e.g., Taylor, 142 S.W.3d at 286 (holding
unconscionable and unenforceable an arbitration provision that allowed the dealer who
drafted the agreement to retain judicial remedies beyond arbitration while limiting the
customer's remedies to those available under the TUAA, without any justification for the
25
complete non-mutuality of remedies); Hill v. NHC Healthcare/Nashville, LLC, No. M2005-
01818-COA-R3-CV, 2008 WL 1901198, at *12 (Tenn. Ct. App. Apr. 30, 2008) (holding that
an arbitration was unenforceable due to the contract‘s lack of clarity regarding the arbitration
procedure and due to the fact that the party seeking arbitration must front the costs of
arbitration, which would deter the pursuit of claims by a consumer); McGregor v. Christian
Care Ctr. of Springfield, L.L.C., No. M2009-01008-COA-R3-CV, 2010 WL 1730131, at *7
(Tenn. Ct. App. Apr. 29, 2010) (concluding that an arbitration agreement was unconscionable
because it ―limits the obligations of the stronger party‖); Brown v. Tenn. Title Loans Inc.,
216 S.W.3d 780, 787 (Tenn. Ct. App. 2006) (invalidating an arbitration clause on the basis of
the complete non-mutuality of remedies); Raiteri ex rel Cox v. NHC Healthcare/Knoxville,
Inc., No. E2003-00068-COA-R9-CV, 2003 WL 23094413, at *8 (Tenn. Ct. App. Dec. 30,
2003) (concluding that an arbitration provision was unenforceable where the arbitration
provision was contained in an eleven-page services contract, the underlying contract was one
of adhesion, ―essential terms in the mediation and arbitration provisions are ‗buried‘ and not
clearly ‗laid out,‘‖ and the arbitration provision was not conspicuous).
Turning to the facts in this case, we must conclude that to enforce the arbitration
provision would be unreasonable under the circumstances. Howell, 109 S.W.3d at 734.
Again, we note that the only reference to arbitration properly included in the parties‘ agreed-
upon Contract states nothing more than:
BY SIGNING THIS AGREEMENT, YOU ARE AGREEING
THAT ANY CLAIM YOU MAY HAVE AGAINST THE
SELLER SHALL BE RESOLVED BY ARBITRATION AND
YOU ARE GIVING UP YOUR RIGHT TO A COURT OR
JURY TRIAL, AS WELL AS YOUR RIGHT OF APPEAL.
Several factors weigh in favor of concluding that the Contract is not unconscionable,
unreasonable, or oppressive. First, unlike in Howell and other cases, we note that while the
arbitration agreement is not included in a separate contract, see Reagan, 2007 WL 4523092,
at *15, the above clause is not hidden within a several-pages-long contract, but is included in
capitalized, bold-faced font, immediately prior to the signature section of the two-page
services contact. See Raiteri, 2003 WL 23094413, at *8 (relying, in part, on the fact that the
arbitration provision was buried in an eleven-page contract and was not conspicuous to
invalidate an arbitration agreement); Howell, 109 S.W.3d at 734 (invalidating an arbitration
clause, in part, on the fact that the clause was hidden in a long contract and was not
conspicuous). In addition, the clause clearly indicates that by agreeing to arbitration, Ms.
Wofford is waiving her right to a jury trial. See Reagan, 2007 WL 4523092, at *15
(enforcing an arbitration agreement, in part, based on the fact that the agreement clearly
indicated that agreeing would result in a waiver of the contracting party‘s right to a trial by
26
jury); Howell, 109 S.W.3d at 735 (noting one factor in declining to enforce the arbitration
agreement was the fact that the waiver of the right to a jury was never explained). Further,
nothing in the record suggests that Ms. Wofford was not provided with an opportunity to
question the terms of the agreement; instead, it is undisputed that she simply signed the
agreement after ensuring that the price was correct. See Buraczynski, 919 S.W.2d at 321
(indicating that contracts generally should not be enforced where the weaker party has no
opportunity to question the terms of the agreement). Finally, although changing funeral
homes would have been a difficult decision, as discussed supra, Ms. Wofford was aware of
other funeral homes that she could have utilized other than Edwards. See Philpot, 279
S.W.3d at 581–82 (considering the fact that the plaintiff knew of other purveyors who could
perform the desired service in declining to invalidate the arbitration agreement).
Some factors are less clear. For example, we note that the arbitration agreement
contained within the parties‘ agreement offers little notice as to the procedure and effect of
arbitration. See McGregor, 2010 WL 1730131, at *5 (holding that to determine
unconscionability, the court should consider whether the plaintiff was given an opportunity to
understand the effect of the agreement); Hill, 2008 WL 1901198, at *12 (invalidating the
arbitration agreement, in part, on the lack of clarity regarding the arbitration procedure).
Nothing in the Contract indicates the procedure for seeking arbitration, how an arbitrator will
be appointed, the binding effect of arbitration, or any of the procedure to be utilized during
the arbitration proceedings.
Edwards argues, however, that these omissions are corrected by application of the
TUAA. Specifically, Tennessee Code Annotated Section 29-5-304 provides that in the
absence of a contractual method of appointing an arbitrator, the court ―shall appoint one (1)
or more arbitrators‖ on application of the parties. In addition, Tennessee Code Annotated
Section 29-5-305 provides that unless agreed upon otherwise ―the powers of the arbitrators
may be exercised by a majority.‖ Other sections outline the procedure to be used in the
arbitration proceedings. See generally Tenn. Code Ann. § 29-5-306 (governing the
proceedings before the arbitrator); Tenn. Code Ann. § 29-5-307 (ensuring that the parties
may be represented by counsel throughout the arbitration proceedings); Tenn. Code Ann. §
313 (governing the standard for vacating an award). From our review, these statutes have
never been utilized to flesh out a meager arbitration clause like the one at issue in this case;15
15
A similar issue was presented in Diggs v. Lingo, No. W2014-00525-COA-R3-CV, 2014 WL
7431466 (Tenn. Ct. App. Dec. 30, 2014). In Diggs, the trial court refused to enforce an arbitration agreement,
finding:
[The contract] contains ambiguities relating to how an arbitration is to
proceed when there are, as here, multiple parties. While T.C.A. § 29-5-304
does provide some guidance to a court, it does not address the questions
27
instead, courts have only utilized these statutes to replace specific terms expressly included in
arbitration agreements, where those terms are made impossible by changed circumstances.
See Owens v. Nat’l Health Corp., 263 S.W.3d 876, 886 (Tenn. 2007) (holding that where the
term of the contract appointing a specific arbitrator fails, ―the court may appoint one or more
arbitrators to conduct the arbitration‖); Hill, 2008 WL 1901198, at *4 (following the holding
in Owens). However, the statutory provisions clearly apply both when a term fails and in the
absence of any term chosen by the parties. See Tenn. Code Ann. §29-5-304, -305. Thus, we
must conclude that the failure to include these terms is not per se fatal to the enforceability of
the arbitration clause. We note, however, that Edwards‘s failure to include any of the material
terms regarding the arbitration proceedings did result in a lack of clarity regarding the
process. In our view, a lack of clarity regarding the proceedings would impact an ordinary
person‘s expectations under the Contract. We will, therefore, consider the lack of clarity
regarding the arbitration process provided by the Contract‘s terms in our overall
determination regarding the reasonable expectations of an ordinary person given the
circumstances when she signed the Contract. See Hill, 2008 WL 1901198, at *12.
In addition to the lack of specific terms in the arbitration clause, other factors tend to
show that the contract is oppressive or unreasonable. First, we note that unlike in some other
cases, Ms. Wofford was required to sign the Contract at issue in an expedient manner, given
the nature of the services required. See Philpot, 2007 WL 4340874 at *6 (noting that one
factor against a determination of unconscionability was that the only urgency in signing the
contract was the plaintiff‘s desire to conclude the business during his lunch break). Next, as
previously determined, the Contract was offered to Ms. Wofford on a ―take it or leave it‖
basis. See McGregor, 2010 WL 1730131, at *5 (considering the fact that the contract was
offered on a ―take it or leave it‖ basis in determining unconscionability). In addition, because
of Ms. Wofford‘s relative lack of knowledge of the funeral services industry, there was
comparatively unequal bargaining power between the parties. See Trinity Indus, 77 S.W.3d
at 171 (considering the fact that both parties were sophisticated businesses possessing equal
bargaining power in declining to hold that the arbitration provision was unconscionable). The
arbitration provision also provides Ms. Wofford with no method to revoke the agreement
after signing. See Buraczynski, 919 S.W.2d at 320–21 (considering the revocability of the
presented here concerning the number of arbitrators, how the arbitrators are
to be chosen and what represents an agreement or the lack of an agreement
among the arbitrators. These ambiguities and others lead the Court to
conclude that the arbitration clause is so unclear as to render that clause
unenforceable. It is not appropriate for the Court to essentially create a
workable arbitration procedure when the settlor failed to do so himself.
Diggs, 2014 WL 7431466, at *3. The Court of Appeals, however, relied upon other grounds to invalidate the
arbitration agreement and did not consider this issue. Id. at *4.
28
arbitration agreement as a factor in its enforceability). Additionally, it does not appear that an
arbitration requirement is particularly common in the funeral services industry of Memphis,
Tennessee, as none of the other defendant-funeral homes included one in their contracts. See
id. (considering whether the terms alleged to be unconscionable were common in the industry
in determining the unconscionability of an arbitration agreement). Moreover, the arbitration
provision actually included in the parties‘ Contract is completely one-sided in that it
expressly requires that only Ms. Wofford is required to submit her claims to arbitration.
Berent, 466 S.W.3d at 758; Taylor, 142 S.W.3d at 286.
Given the totality of the circumstances, we must conclude that the arbitration
provision at issue is unconscionable and unenforceable. Here, the arbitration provision is
completely one-sided and offers little clarification regarding the binding effect of arbitration.
To hold Ms. Wofford to binding arbitration in light of the meager arbitration clause included
in the contract would be beyond the reasonable expectations of an ordinary person.16
Accordingly, we, like the trial court, decline to enforce the arbitration provision contained in
the Contract.
Estoppel
Edwards next argues that the Contract should nevertheless be enforced on the basis of
estoppel because Ms. Wofford is suing for breach of contract. To support this argument,
Edwards cites Wilson v. Wilson, 23 Tenn. App. 244, 130 S.W.2d 140, 145 (Tenn. 1939),
which states that: ―The rule is well settled that a party cannot claim benefits under an
instrument without at the same time becoming bound by all of its provisions.‖ Edwards cites
no cases, however, where an unconscionable term in an agreement was nevertheless enforced
because a party raised a claim for breach of contract. Furthermore, the Tennessee Supreme
Court has held that because arbitration provisions relate only to remedy, they are collateral to
16
We note that other courts have come to differing conclusions on this issue. See Serv. Corp. Int’l v.
Lopez, 162 S.W.3d 801, 807 (Tex. Ct. App. 2005) Serv. Corp. Int’l v. Fulmer, 883 So. 2d 621, 630 (Ala.
2003). As previously discussed, however, decisions from outside Tennessee are not controlling on this Court.
See Summers Hardware & Supply Co. v. Steele, 794 S.W.2d 358, 362 (Tenn. Ct. App. 1990). Furthermore,
neither Lopez nor Fulmer involved the specific issues raised in this case. We concede that both cases involved
a contract prepared by the same national software company that prepared the Contract at issue in this case; the
contracts are largely identical. In those cases, the plaintiff, like in this case, sought to avoid arbitration by
arguing that the arbitration provisions were unconscionable. Lopez, 162 S.W.3d at 809–10; Fulmer, 883 So.
2d at 631–32. Both courts found no unconscionability sufficient to invalidate the arbitration agreements.
Lopez, 162 S.W.3d at 810; Fulmer, 883 So. 2d at 632. In neither case, however, was there an allegation that
the plaintiff had been denied a copy of Part 3 of the contract. See generally Lopez, 162 S.W.3d at 809–10;
Fulmer, 883 So. 2d at 631–32. Accordingly, unlike in this case, the Lopez and Fulmer courts were able to
consider the specific terms contained in Part 3 of the contract.
29
the underlying agreement and ―severable from the main body of the contract.‖ Taylor v.
Butler, 142 S.W.3d 277, 287 (Tenn. 2004). Finally, after a thorough review of the record, it
appears that Edwards did not raise this argument in the trial court. See Welch v. Bd. of Prof'l
Responsibility for the Supreme Court of Tenn., 193 S.W.3d 457, 465 (Tenn. 2006).
Accordingly, we decline to apply the doctrine of estoppel in this case.
Conclusion
Based upon the foregoing, the judgment of the Shelby County Chancery Court is
affirmed, and this cause is remanded to the trial court for further proceedings. Costs of this
appeal are taxed to Appellant, M.J. Edwards & Sons Funeral Home, Inc., and its surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
30