# Denton v. Allenbrooke Nursing and Rehabilitation Center

> District Court, W.D. Tennessee · October 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10440126

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** October 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10440126

## How later opinions describe it (automated extraction)

- finding “arbitration is a matter of contract,” and “[a]n agreement to arbitrate a gateway issue” proper under the FAA
- finding that the party relying on the contract has to prove its existence by a preponderance of the evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MABEL DENTON, Next of Kin of )
Reginald Denton, deceased, and on behalf )
of the wrongful death beneficiaries of )
Reginald Denton, )
)
Plaintiff, )
) No. 2:20-cv-02282-TLP-tmp
v. )
)
ALLENBROOKE NURSING AND )
REHABILITATION CENTER, LLC, d/b/a )
Allenbrooke Nursing and Rehabilitation )
Center, et al., )
)
Defendants. )

ORDER DENYING DEFENDANT ALLENBROOKE NURSING AND
REHABILITATION CENTER, LLC’S MOTION TO
COMPEL ARBITRATION AND STAY PROCEEDINGS

This case arises from the alleged mistreatment of Reginald Denton while at Allenbrooke
Nursing and Rehabilitation Center, LLC, in Memphis, Tennessee. Plaintiff Mabel Denton sues
as next of kin of Mr. Denton and on behalf of his wrongful death beneficiaries. Defendant,
Allenbrooke Nursing and Rehabilitation Center, LLC,1 moves to compel arbitration of

1 Plaintiff also names Aurora Cares, LLC; DTD HC, LLC; D&N, LLC; Donald T. Denz; and
Norbert A. Bennett (collectively, “Non-Facility Defendants”) as Defendants in this suit. (See
ECF No. 1.) Defendant Allenbrooke moved to compel arbitration (ECF No. 18), and the Non-
Facility Defendants moved to dismiss Plaintiff’s claims against them for lack of jurisdiction
(ECF No. 20). Although the Non-Facility Defendants argue that this Court has no personal
jurisdiction over them, they also argue, in the alternative, that if the Court denies their motion to
dismiss, the claims against them are also subject to arbitration for the same reasons provided in
Defendant Allenbrooke’s motion to compel arbitration. (ECF No. 19 at PageID 187.)
Contemporaneous with the entry of this order, the Court denied the Motion to Dismiss. (ECF
No. 53).
Plaintiff’s claims and for the Court to stay the case pending arbitration. (ECF Nos. 18 & 19.)
Plaintiff timely responded in opposition. (ECF No. 24.) The Court granted Allenbrooke leave
to reply and Plaintiff leave to file a sur-reply. (See ECF Nos. 33 & 34.)
For the reasons below, the Court DENIES Allenbrooke’s motion to compel arbitration of
Plaintiff’s claims. The Court also DENIES Allenbrooke’s motion to stay the case.

BACKGROUND
Plaintiff took her son, Reginald Denton, to Allenbrooke’s long-term care and
rehabilitation facility in December 2017. (ECF No. 1 at PageID 9.) Allenbrooke then admitted
Mr. Denton who resided at the nursing home until July 2019 when it transferred him to Baptist
Memorial Hospital East. (Id.) Then Baptist discharged him to Grace Healthcare of Cordova.
(Id.) Mr. Denton passed away in August 2019. (Id.)
Plaintiff alleges that, while under Allenbrooke’s care, Mr. Denton suffered mental
anguish, pain and suffering, and physical injuries including, but not limited to, pressure sores,
severe pain, and injuries to his dignity which eventually led to his death. (Id. at PageID 15.)

Plaintiff contends that these injuries arose because of Allenbrooke’s negligence in caring for
Mr. Denton. (Id. at PageID 15–16.)
And so Plaintiff sued for “survival and wrongful death” alleging all Defendants were
negligent under the Tennessee Healthcare Liability Act, Tennessee Code Annotated §§ 29-26-
101, et seq.; and, in the alternative, the Non-Facility Defendants are liable for ordinary
negligence. (Id. at PageID 12–20.) Allenbrooke now moves to compel arbitration and stay this
case pending resolution of that arbitration. (ECF No. 18.)
When Allenbrooke admitted Plaintiff’s son , Plaintiff signed many documents on Mr.
Denton’s behalf. One document was an appointment of surrogate form (“Surrogate Form”).
(ECF No. 19-2.) The form designates Plaintiff as Mr. Denton’s surrogate. (Id. at PageID 200.)
The date by her signature is legible. It reads December 5, 2017. (Id. at PageID 201.)
Mr. Denton’s primary physician, Dr. Dana Nash, also signed the form designating
Plaintiff as Mr. Denton’s health care surrogate. (Id. at PageID 201.) Dr. Nash checked a box
reflecting her determination that Mr. Denton lacked capacity to make and communicate health

decisions for himself. (Id.) But because the date by Dr. Nash’s signature is illegible, it is
unclear when Dr. Nash made that determination. (Id.) Ordinarily the date of the doctor’s
signature is the date when the surrogate’s authority is binding.
But this Surrogate Form included language seeking to backdate Dr. Nash’s designation to
when the surrogate signed. The text above Dr. Nash’s signature reads, “[i]t is my intention that
the designation of surrogate is effective back to the date of acceptance by the surrogate, so that
healthcare decisions made by the surrogate for the resident date back to that day are valid.”
(Id.)
Plaintiff also executed a “Resident and Facility Arbitration Agreement” (the

“Agreement”) on December 5, 2017. (ECF No. 19-1 at PageID 199.) Plaintiff signed on the
line for “Signature of Family Member or other Representative.” (Id.) The Agreement declares
that it constitutes a “health care decision” and becomes part of the Resident’s underlying
Admission Agreement. (Id. at PageID 197.) The Agreement designates Mr. Denton as the
“Resident.” (Id. at PageID 197.) And it defines “Resident” as collectively referring “to those
signing with or for the Resident,” and designates the “Resident” as a “a third party beneficiary”
of the Agreement. (Id.)
Under the Agreement:
Any and all disputes between the Resident and the Facility shall be submitted to
binding arbitration where the amount in controversy exceeds $25,000. This
includes any disputes arising out of or in any way relating to this Agreement (its
enforceability), the Admission Agreement, or any or the Resident’s stays at the
Facility, whether existing or arising in the future, whether for statutory,
compensatory or punitive damages, and irrespective of the legal theories upon
which the claim is asserted.

(Id.) What is more, the Agreement purports to bind both the person receiving services (Mr.
Denton) and any person signing on his behalf (Plaintiff) or any of the Resident’s “successors,
assigns, agents, attorneys, third party beneficiaries, insurers, heirs, trustees and representatives,
including the personal representative or executor of the estate, the spouse, children,
grandchildren, all decedents and next friends, and any person whose claim is derived through
the Resident.” (Id. at 198–99.)
The Agreement also provides that the Resident may receive services at Allenbrooke, even
if the Resident does not sign the Agreement. (Id. at PageID 199.) It advises those signing that
they may consult an attorney (Id. at PageID 197) and can revoke the Agreement by written
notice within thirty days of signing. (Id. at PageID 199.)
Allenbrooke now moves to compel arbitration relying on the Agreement. Plaintiff
opposes the motion. The parties present several issues for the Court:
1. Is Plaintiff challenging the enforceability or the existence of the Agreement?
2. Did Plaintiff have authority to create a contract between Allenbrooke and Mr.
Denton?
3. Is Mr. Denton bound to the Agreement as a third-party beneficiary?
4. Is Plaintiff bound to the Agreement in her individual capacity?
5. Should the Court allow the parties to engage in arbitration-related discovery?
The Court will address these issues in turn.
COURT’S AUTHORITY TO DETERMINE THE EXISTENCE
OF A VALID ARBITRATION AGREEMENT

I. Legal Standards for Determining the Existence of an Arbitration Agreement
A. The Federal Arbitration Act
The Agreement says that the arbitrator will apply the law of the state where the facility is
located, except that “the parties expressly stipulate that the Federal Arbitration Act, 9 U.S.C. §§
1–16 shall exclusively govern the enforcement of this Agreement.” (ECF No. 19-1 at PageID
197.) Although the Tennessee Uniform Arbitration Act (“TUAA”), Tennessee Code Annotated
§§ 29-5-301 et seq., governs the conduct of any arbitration, the Federal Arbitration Act (“FAA”),
which preempts any conflicting state laws, governs whether the Court has to enforce an
arbitration agreement. See Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 271–72
(1995).
So the FAA is the starting point for this analysis. Congress enacted the FAA “to
overcome judicial resistance to arbitration.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.
440, 443 (2006). Under the FAA, a party to a contract may petition a court to compel arbitration.
9 U.S.C. § 4. Before compelling arbitration, courts first determines whether the parties agreed to
arbitrate. Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000). Next, a court has to decide
the scope of that agreement. Id. Finally, if not all the claims are referred to arbitration, the court
must decide whether to stay the remainder of the case. Id.
Section 2 of the FAA reflects the Act’s breadth. Under this section,

A written provision in . . . a contract evidencing a transaction involving commerce
to settle by arbitration a controversy thereafter arising out of such contract . . . shall
be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.
9 U.S.C. § 2. Also “any ambiguities in the contract or doubts as to the parties’ intentions should
be resolved in favor of arbitration.” Stout, 228 F.3d at 714. But despite the FAA’s broad reach,
plaintiffs can challenge an arbitration agreement under the savings clause in § 2. Under the
savings clause, a party can invalidate an arbitration agreement “upon such grounds as exist at law
or in equity for the revocation of any contract.” 9 U.S.C. § 2. A party therefore can challenge

the validity, enforceability, or formation of an arbitration agreement.
But who determines the validity, enforceability, or formation of an arbitration
agreement—the Court or the arbitrator? It often depends on the contract. Rent-A-Center, West,
Inc. v. Jackson, 561 U.S. 63, 69–70 (2010) (finding “arbitration is a matter of contract,” and
“[a]n agreement to arbitrate a gateway issue” proper under the FAA). Parties can agree to
delegate “threshold arbitrability question[s] to an arbitrator,” such as whether the arbitration
agreement applies to a particular issue. Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.
Ct. 524, 530 (2019). When parties do delegate such questions to the arbitrator, “a court
possesses no power to decide the arbitrability issue.” Id. at 529. But courts do have power when

the question is whether an arbitration agreement exists.
Whether an arbitration agreement exists is a question for the court, not the arbitrator. Id.
at 530 (“[T]he court determines whether a valid arbitration agreement exists”); Granite Rock Co.
v. Int’l Broth. of Teamsters, 561 U.S. 287, 297 (2010); John Wiley & Sons, Inc. v. Livingston,
376 U.S. 543, 547 (1964); see also 9 U.S.C. § 3 (directing court to stay case and refer issue to
arbitration “upon being satisfied that the issue involved in such suit or proceeding is referable to
arbitration under such an agreement”). “[N]o matter how strong the federal policy favors
arbitration, ‘arbitration is a matter of contract between the parties, and one cannot be required to
submit to arbitration a dispute which it has not agreed to submit to arbitration.’” Simon v. Pfizer
Inc., 398 F.3d 765, 775 (6th Cir. 2005) (quoting United Steelworkers, Loc. No. 1617 v. Gen.
Fireproofing Co., 464 F.3d 726, 729 (6th Cir. 1972)). Courts therefore decide whether a contract
exists.
B. Burden of Proof on a Motion to Compel Arbitration
The Sixth Circuit treats motions to compel arbitration like motions for summary

judgment. Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 889 (6th Cir. 2002). The court views
all facts and inferences in the light most favorable to the nonmoving party. Id. The movant
“bears the ultimate burden of establishing the existence of a valid agreement to arbitrate,” and
must present “some evidence” that the parties agreed to arbitrate. Hammond v. Floor & Decor
Outlets of Am., Inc., No. 3:19-cv-01099, 2020 WL 2473717, at *3 (M.D. Tenn. May 13, 2020);
Foust v. Comcast Corp., No. 3:19-CV-173-HSM-DCP, 2020 WL 1891755, at *4 (E.D. Tenn.
Jan. 28, 2020). Once the movant makes a prima facie showing of the agreement’s existence, the
party opposing arbitration “must show a genuine issue of material fact as to the validity of the
agreement to arbitrate.” Great Earth Cos., Inc., 288 F.3d at 889.

II. Analysis of Defendant’s Delegation Argument
The Agreement here says that all disputes “arising out of or in any way relating to this
Agreement (its enforceability), the Admission Agreement, or any of the Resident’s stays at the
Facility” must go to arbitration. (ECF No. 9-1 at PageID 197.) Plaintiff argues that, when she
signed the Agreement, she lacked authority to enter a contract for Mr. Denton. (ECF No. 24 at
PageID 254.) This, she claims, is a question of contract existence. Allenbrooke, however,
argues that Plaintiff challenges the enforceability of the agreement. (ECF No. 33 at PageID 504–
505.) And so Allenbrooke argues that the Court should refer the case to arbitration without first
deciding whether Plaintiff had authority to enter the Agreement on Mr. Denton’s behalf. (Id.)
But Allenbrooke’s argument is not convincing. Instead, the Court finds that Plaintiff
challenges the existence of the arbitration agreement. Plaintiff argues that she lacked authority
to enter the Agreement on Mr. Denton’s behalf. If Plaintiff lacked the authority to enter the
Agreement, then Allenbrooke and Mr. Denton never formed a binding contract. In other words,
no arbitration agreement exists between the parties here unless Plaintiff properly signed as Mr.

Denton’s surrogate.
Allenbrooke also argues that, by personally signing the Agreement, Plaintiff herself
agreed individually to arbitrate her claims. (ECF No. 33 at PageID 504–505.) But again, this
raises a question about the existence of a contract, not its enforceability. So before the Court can
send Plaintiff’s claims to arbitration, it first has to determine: (1) if Plaintiff had the authority to
create a contract between Allenbrooke and Mr. Denton; and (2) if Allenbrooke and Plaintiff
formed a contract that binds Plaintiff in her individual capacity.
CONTRACT BETWEEN ALLENBROOKE AND MR. DENTON
I. The Court’s Subject Matter Jurisdiction

This Court has diversity jurisdiction over Plaintiff’s claims. The parties are diverse and
the amount in controversy exceeds $75,000.2
II. Choice of Law Analysis
The Court begins with the FAA. Under the FAA, courts must enforce arbitration
agreements unless state law contract principles instruct otherwise. 9 U.S.C. § 2. When acting
under diversity jurisdiction, federal courts apply the choice of law rules of the forum state. State
Farm Mutual Auto. Ins. Co. v. Norcold, Inc., 849 F.3d 328, 331 (6th Cir. 2017). Without a

2 See the Court’s order on Defendants’ Motion to Dismiss (ECF No. 53), issued concurrently
with this opinion, for a full analysis of this Court’s subject matter jurisdiction.
choice of law provision in the contract, Tennessee applies the rule of “lex loci contractus,” which
presumes that “a contract is []to be governed by the law of the jurisdiction in which it was
executed absent a contrary intent.” Blackwell v. Sky High Sports Nashville Operations, LLC, 523
S.W.3d 624, 632 (Tenn. Ct. App. 2017) (quoting Messer Griesheim Indus., Inc. v. Cryotech of
Kingsport, Inc., 131 S.W.3d 457, 474–75 (Tenn. Ct. App. 2003)). And when all parties “have

acquiesced—without comment—to the use” of a certain state’s law, a federal court does not have
to “delve too deeply” into the choice of law analysis. GBJ Corp. v. E. Ohio Paving Co., 139
F.3d 1080, 1085 (6th Cir. 1998).
The parties here did not stipulate about what law applies, and the Agreement does not
identify where the parties executed it. Yet both parties seem to agree that Plaintiff signed the
forms when Allenbrooke admitted Mr. Denton into its facility in Memphis, Tennessee. (ECF
Nos. 19 at PageID 188; 24 at PageID 253.) So most likely the parties executed the documents in
Tennessee. And Plaintiff and Mr. Denton were both Tennessee residents when Plaintiff executed
the Agreement, and Allenbrooke’s facility is in Tennessee. (ECF No. 1 at PageID 1–2.) What is
more, the Surrogate Form says that it is the appointment of surrogate form for Tennessee.3 (ECF

No. 19-2 at PageID 200.) And both the Agreement and Surrogate Form implicate events and
services performed in Tennessee.
In addition, the parties “have acquiesced—without comment—to the use” of Tennessee
law. GBJ Corp., 139 F.3d at 1085. Both parties rely on federal law and Tennessee law in their
briefings. (ECF Nos. 24 at PageID 253; 19 at PageID 33; see also ECF Nos. 1, 24-2 & 34.)

3 The title of the form reads, “APPOINTMENT OF SURROGATE (Tennessee).” (ECF No.
19-2 at PageID 200.)
In short, the parties both assumed Tennessee law applies to this dispute. So the Court
does not have to “delve too deeply” into the choice of law analysis. GBJ Corp., 139 F.3d at
1085. For these reasons, the Court applies principles of Tennessee contract law.
I. Legal Standards for Determining Plaintiff’s Authority
A. The Tennessee Health Care Decisions Act

If Plaintiff had the authority to sign the Agreement on Mr. Denton’s behalf, then a
binding agreement to arbitrate exists between Allenbrooke and Mr. Denton. Under § 68-11-1806
of the Tennessee Health Care Decisions Act (“THCDA”), a surrogate may make a health care
decision for an adult patient “if, and only if” the parties satisfy these circumstances:
(1) The patient has been determined by the designated physician to lack capacity;
and
(2) No agent or guardian has been appointed or the agent or guardian is not
reasonably available.
T.C.A. § 68-11-1806(b). The Act defines “health care decision” as “consent, refusal of

consent or withdrawal of consent to health care,” and the term “health care” includes
“any care, treatment, service or procedure to maintain, diagnose, treat, or otherwise affect
an individual’s physical or mental condition . . . .” § 68-11-1802(a)(6) & (7).
“The statutory language is directive, mandating that both the determination of the
patient’s incapacity and the identification of the patient’s surrogate be made by the
patient’s ‘designated physician,’ the physician with primary responsibility for the
patient’s case.” Barbee v. Kindred Healthcare Operating, Inc., No. W2007-00517-COA-
R3-CV, 2008 WL 4615858, at *11 (Tenn. Ct. App. Oct. 20, 2008). What is more, “a
surrogate may make health care decisions on the patient’s behalf only if these
requirements are met.” Id. Even if the patient were clearly incapacitated when the
surrogate made the health care decision, the surrogate’s authority only becomes valid
once the individuals satisfy the statutory requirements. Id. at *11–12. That said, who has
the burden of proof?
B. Burden of Proof

“[T]he burden of proving the existence of a valid contract is upon the person relying on
the contract.” Randolph v. Randolph, 937 S.W.2d 815, 821 (Tenn. 1996); Next Generation, Inc.
v. Wal-Mart, Inc., 49 S.W.3d 860, 864 (Tenn. Ct. App. 2000) (finding that the party relying on
the contract has to prove its existence by a preponderance of the evidence). The movant in a
motion to compel arbitration “bears the ultimate burden of establishing the existence of a valid
agreement to arbitrate.” Hammond, 2020 WL 2473717, at *3. And “[t]he burden of proving that
one had authority to make health care decisions for another under the THCDA lies with the party
seeking to establish that authority.” Brown v. Quince Nursing & Rehab. Ctr., LLC, No. 2:18-cv-
2740, 2020 WL 4673471, at *4 (W.D. Tenn. Aug. 12, 2020); Barbee, 2008 WL 4615858, at *12

(finding that defendants failed to carry burden of proving plaintiff had authority to execute
arbitration agreement on decedent’s behalf). So the burden here lies with Allenbrooke.
II. Analysis of Plaintiff’s Authority to Sign the Agreement on Mr. Denton’s Behalf
Signing the Agreement is a health care decision under the THCDA.4 Under § 68-11-
1806, a surrogate can make a health care decision for a patient “if, and only if,” the patient “has
been determined by the designated physician to lack capacity.” And here, Dr. Nash found that

4 The Agreement qualifies as a health care decision under T.C.A. § 68-11-1802(a)(6) & (7).
Furthermore, the Agreement specifically states that it is a health care decision. (ECF No. 19-1 at
PageID 197.)
Mr. Denton lacked capacity. (ECF No. 19–2 at PageID 201.) But the question remains when did
Dr. Nash make that determination—before or after Plaintiff signed the Agreement.
According to the plain language of the statute, the physician has to make the capacity
determination before the surrogate qualifies to make a health care decision for the patient. First,
the statute says that a surrogate can act “if, and only if” a physician declares the patient

incompetent. Second, a surrogate can act for the patient only if the patient “has been
determined” to lack capacity by the physician. By using the words “has been” instead of “will
be” or “is,” the statute suggests that the physician should make the capacity determination before
the surrogate can make a health care decision for the patient. So the plain language of the statute
reflects that the timing of the capacity determination is crucial.
The part of the Surrogate Form where Dr. Nash signed is pre-printed and it says “[i]t is
my opinion that this is true both on the day the surrogate accepted the appointment and today. It
is my intention that the designation of surrogate is effective back to the date of acceptance by the
surrogate, so that healthcare decisions made by the surrogate for the resident date back to that

day are valid.” (ECF No. 19-2.) This language differs from the plain language of the THCDA.
Under § 68-11-1806, a surrogate’s health care decision is valid only after the physician
determines capacity. The statute says that the surrogate’s authority kicks in when the patient
“has been determined” to lack capacity. Tenn. Code Ann. § 68-11-1802. So despite the
Surrogate Form’s language to the contrary, a physician has to make the capacity determination
before a surrogate’s health care decisions are “valid.”5

5 Without delving too deeply into the attempt by Allenbrooke to use preprinted language to make
Dr. Nash’s determination retroactive, the Court simply finds that passage unpersuasive.
This Court agrees with the analysis of the court in Sanders v. Allenbrooke et al., No.
2:20-cv-02001, 2020 WL 5576696, at *7 (W.D. Tenn. Sept. 17, 2020). There, the court found
that “the THCDA provides an order of operations for the appointment of a health care
surrogate.” Id. The physician must find that the patient lacks capacity before a surrogate can
make a health care decision on the patient’s behalf. See id. This analysis aligns with the

Tennessee Court of Appeals reading of § 68-11-1806(b). See Barbee, 2008 WL 4615858, at *12
(finding patient’s son lacked authority as surrogate because physician had not made “the
requisite determination that the Decedent lacked capacity to make and communicate her health
care decisions” before son signed admission documents); McKey v. Nat’l Healthcare Corp., No.
M2007-02341-COA-R3-CV, 2008 WL 3833714 (Tenn. Ct. App. Aug. 15, 2008) (finding that
physician must make “a prior determination” that patient lacks capacity before surrogate can be
authorized to act on patient’s behalf under the THCDA).
With that in mind, the central question here is when Dr. Nash signed the Surrogate Form.
Plaintiff signed it on December 5, 2017. (ECF No. 19-2 at PageID 201.) And she signed the

arbitration agreement that same day. (ECF No. 19-1 at PageID 199.) At some point, Dr. Nash
determined that Mr. Denton lacked capacity and then signed and dated the Surrogate Form. But
the date of Dr. Nash’s signature is illegible to the Court. (Id. at PageID 201.)
Most of Plaintiff’s response here centers on the timing of Dr. Nash’s signature. (See ECF
No. 24.) Plaintiff argues that, though the date is “not entirely legible,” the earliest Dr. Nash
signed the Surrogate Form was December 18, 2017—thirteen days after Mr. Denton signed the
Agreement.6 (Id. at PageID 259.) Plaintiff filed an affidavit swearing that no physician was

6 Though Plaintiff admits it cannot interpret Dr. Nash’s handwriting, Plaintiff asserts that the “the
reasonable conclusion is that the date of [Dr. Nash’s] signature on the surrogate form is
present when Allenbrooke gave her the Surrogate Form. (ECF No. 24-1 at PageID 270.) She
swears that no physician had signed the Surrogate Form when Allenbrooke gave it to her. (Id.)
And Plaintiff swears that, to her knowledge, Dr. Nash never examined Mr. Denton before his
admission to Allenbrooke. (Id.) Allenbrooke has no evidence to the contrary.
In fact, Allenbrooke hardly references the timing of Dr. Nash’s capacity determination

here. Instead, Allenbrooke asserts generally that Dr. Nash made the capacity determination at
the time of Mr. Denton’s admission. (ECF No. 19 at PageID 188, 192.) In its reply brief,
Allenbrooke did not refute or even address Plaintiff’s contention that Dr. Nash signed the
Surrogate Form December 18, 2017. Thus, on the facts before it, Defendant has not convinced
the Court that Dr. Nash completed the Surrogate Form on a date before Plaintiff signed the
Agreement. So Allenbrooke failed to meet its burden to show that Plaintiff had the authority to
form a contract on Mr. Denton’s behalf, and so failed to show that a contract exists between it
and Mr. Denton.
Even still, the Court next must determine whether Plaintiff agreed to arbitrate her alleged

claims. This analysis requires that the Court determine whether Plaintiff agreed to arbitrate both
her claims on behalf of Mr. Denton and her individual survival and wrongful death claims.
CONTRACT BETWEEN ALLENBROOKE AND PLAINTIFF
I. Legal Standards for Determining whether Allenbrooke and Plaintiff Formed a
Contract

Normally, a representative who signs a contract on behalf of another does not bind herself.
84 Lumber Co. v. Smith, 356 S.W.3d 380, 382 (Tenn. 2011). But a representative may still bind
herself if the contract shows an intent to bind the representative in her personal capacity. Id.; see

December 18, 2017” and that “it is clear that Dr. Nash did not sign the form on December 5,
2017.” (ECF No. 24 at PageID 259.)
also Nazi v. Jerry’s Oil Co., Inc., No. W2013-02638-COA-R3-CV, 2014 WL 3555984, at *8
(Tenn. Ct. App. July 18, 2014) (“It is well-settled that the intent of the contracting parties at the
time of executing the agreement should govern.”). Courts determine the intent of the parties
based on the ordinary meaning of the language in the contract. 84 Lumber Co., 356 S.W.3d at
383. If the contract is ambiguous, however, the court may “look beyond the four corners of the

document and consider extrinsic evidence in order to determine the parties’ intention.”
Cummings Inc. v. Dorgan, 320 S.W.3d 316, 333 (Tenn. Ct. App. 2009).
II. Analysis of Whether Plaintiff’s Claims Must Be Arbitrated
A. Plaintiff’s Claims on Behalf of Mr. Denton
The Agreement defines “Resident” as collectively referring “to those signing with or for
the Resident.” (ECF No. 19-1 at PageID 197.) And the Agreement further says that the
“Resident” is “a third-party beneficiary” of the Agreement. (Id.) If Allenbrooke argues an
arbitration agreement exists between it and Mr. Denton as a third-party beneficiary, such an
argument lacks merit.

Courts will enforce arbitration clauses against a third party to a contract only when the
third party tries to enforce the contract. See Benton v. Vanderbilt Univ., 137 S.W.3d 614, 618
(Tenn. 2004); see also LaSalle, Inc. v. Int’l Broth. Elec. Workers Loc. No. 665, 336 F. Supp. 2d
727, 730 (W.D. Mich. 2004). Plaintiff here is not trying to enforce the Agreement on behalf of
Mr. Denton as a third-party beneficiary. Quite the opposite. Instead, Allenbrooke is trying to
enforce the contract against an alleged third-party beneficiary. As a result, Allenbrooke cannot
enforce the Agreement against Mr. Denton as a third-party beneficiary of the Agreement. So
Plaintiff need not arbitrate her claims brought on Mr. Denton’s behalf.
B. Plaintiff’s Survival and Wrongful Death Claim
Allenbrooke argues that Plaintiff personally agreed to arbitrate any disputes over the
enforceability of the Agreement. (ECF No. 33 at PageID 504–05.) To do so, however, Plaintiff
must have signed the Agreement in her individual capacity. If Plaintiff did, in fact, enter the
contract in her personal capacity, her survival claim and her wrongful death action must go to

arbitration.7
Plaintiff executed the Agreement upon Mr. Denton’s admission to Allenbrooke’s care.
(ECF No. 19-1.) Under the Agreement,
Any and all disputes between the Resident and the Facility shall be submitted to
binding arbitration where the amount in controversy exceeds $25,000. This
includes any disputes arising out of or in any way relating to this Agreement (its
enforceability), the Admission Agreement, or any or the Resident’s stays at the
Facility, whether existing or arising in the future, whether for statutory,
compensatory or punitive damages, and irrespective of the legal theories upon
which the claim is asserted.

(Id. at PageID 197.)
The Agreement gets confusing where it tries to define the term “Resident.” First, it
designates Mr. Denton as the “Resident.” (Id. at PageID 197.) But then the Agreement defines
“Resident” as collectively referring “to those signing with or for the Resident.” (Id.) The
Agreement also says the Resident is “a third-party beneficiary” of the Agreement. (Id.) So it
seems like the Agreement is trying to bind Plaintiff in her individual capacity. But the language
is illogical.

7 Under Tennessee law, a surviving spouse does not represent the decedent when bringing a
wrongful death action. Beard v. Branson, 528 S.W.3d 487, 502 (Tenn. 2017). Instead, the
surviving spouse asserts her own right of action. Id. (“[I]n a wrongful death lawsuit, the
surviving spouse asserts his own right of action for his own benefit”). So while Plaintiff’s claims
on behalf of Mr. Denton are not subject to arbitration, we consider whether her personal claims
must go to arbitration.
According to the Agreement, Plaintiff is the “Resident,” signing the Agreement in her
individual capacity. But we know Allenbrooke did not admit Mabel Denton to its facility.
Plaintiff also signs for the “Resident,” Mr. Denton. The Agreement then says Mr. Denton is a
third-party beneficiary. And so the Agreement is unclear about the parties to it. Nor is it clear
which “Resident” is a third-party beneficiary. Applying the Agreement’s plain language, the

“Resident,” both Plaintiff and Mr. Denton, are third-party beneficiaries.
Moreover, the Agreement in its entirety reflects that the “Resident” is really the patient,
not the patient’s representative. For instance, the Agreement says that “the Resident will be
allowed to receive services at the Facility,” and the Agreement requires that the parties arbitrate
any disputes connected to the “Resident’s stays” at the facility. (Id.) Such references suggest
that the term “Resident” refers to the patient—not the representative signing for the patient.
What is more, Plaintiff signed the Agreement in the line for “Signature of Family Member or
other Representative”—not the line for “Signature or Mark of Resident.” (Id. at PageID 199.)
In 84 Lumber Co. v. Smith, the Tennessee Supreme Court found that the president of a

company signed a commercial credit agreement in both his personal and representative capacity.
356 S.W.3d at 383. There, however, the language of the contract distinguished between the
person signing the contract (the personal guarantor) and the company (the applicant). Id. The
court emphasized that the language in the contract “clearly distinguishes between ‘I,’ the person
signing the contract, and the ‘above business,’” the applicant seeking the commercial credit
account. Id. What is more, the contract specified which terms applied to both the personal
guarantor and the applicant. Id. For example, the contract’s terms and conditions clarified that
both the applicant and the personal guarantor waived the right to a jury trial. Id. at 383 n.3. As a
result, the contract’s language reflected that the president signed in both a representative and
individual capacity.
Unlike the agreement in 84 Lumber Co. v. Smith, the Agreement here does not clearly
distinguish between the person signing the contract and the resident. Allenbrooke asserts that
“[t]he language of the document [Plaintiff] signed makes plain that she is personally bound to

arbitrate the claims she now raises.” (ECF No. 33 at PageID 507.) But when interpreting the
contract according to its terms, it is unclear who is bound by the contract in an individual
capacity, who is a representative, and who is a third-party beneficiary. With that in mind, a
surrogate signing the Agreement would not understand whether the Agreement binds the
surrogate in an individual capacity or merely as a representative.
Because the language in the Agreement is ambiguous, the Court can look “beyond the
four corners of the document” to determine the parties’ intent. Cummings, 320 S.W.3d at 333.
Here, extrinsic evidence shows Plaintiff entered the contract as Mr. Denton’s representative.
Plaintiff signed the paperwork as part of Mr. Denton’s admission to the facility. (ECF Nos. 19 at

Page ID 188; 24 at PageID 253.) If Mr. Denton could complete the paperwork himself, Plaintiff
would have no reason for signing the documents. But because Mr. Denton lacked capacity, he
needed a representative to complete his paperwork for him8. When Plaintiff signed the
agreement, she made a health care decision for Mr. Denton—not herself. So the evidence
surrounding Mr. Denton’s admission and Plaintiff’s attempted surrogate appointment suggest
that Plaintiff did not sign the Agreement in her personal capacity.

8 But, as noted above, that paperwork was not valid until Dr. Nash determined that Mr. Denton
lacked the capacity to sign for himself.
Besides, Tennessee courts have rejected Allenbrooke’s argument, and their reasoning is
sound. Ricketts v. Christian Care Ctr., Inc., No. M2007-02036-COA-R9-CV, 2008 WL
3833660, at *4 (Tenn. Ct. App. Aug. 15, 2008); Jones v. Allenbrooke Nursing & Rehab. Ctr.
LLC, No. W2019-00448-COA-R3-CV, 2019 WL 6842372, at *6 (Tenn. Ct. App. Dec. 16, 2019)
(affirming reasoning of Ricketts). In Ricketts v. Christian Care Center, a family member signed

a nursing home admission and arbitration agreement as the patient’s representative. 2008 WL
3833660, at *1. The court found that the arbitration agreement did not bind the family member
personally because she did not enter the contract on her own behalf, but acted as the patient’s
representative. Id. at *4. And finding that the contract bound the family member personally
(instead of the patient) would “circumvent the threshold requirement that there be a valid
arbitration agreement.” Id. Other courts in the Western District of Tennessee have also rejected
Allenbrooke’s argument. Sanders, 2020 WL 5576696, at *9; Order Denying Defendant Quince
Nursing and Rehabilitation Center, LLC’s Motion to Compel Arbitration and Stay Proceedings,
Sykes v. Quince Nursing & Rehab. Ctr., No. 2:19-cv-02602-SHL-tmp (W.D. Tenn. Sept. 1,

2020) (ECF No. 54 at PageID 762–63); c.f. Brown, 2020 WL 4673471, at *10–*11.
Plaintiff here signed the document as a “Family Member or other Representative.” (ECF
No. 19-2 at PageID 199.) Even Allenbrooke notes that Plaintiff “signed the admissions
paperwork on Mr. Denton’s behalf . . . .” (ECF No. 19 at PageID 189.) Plaintiff signed the
admissions paperwork, including the Agreement, only because she believed Mr. Denton could
not do so himself. Thus, despite its effort to bind Plaintiff to the Agreement, no arbitration
agreement exists between Allenbrooke and Plaintiff in her personal capacity. The Agreement
here does not bind Plaintiff to arbitrate her survival and wrongful death claim.
ALLOWING LIMITED DISCOVERY
Both parties request limited arbitrationrelated discovery as an alternative to the Court
ruling against them on this motion. (See ECF Nos. 24 at PageID 265; 33 at PageID 510-11).
Neither party however moved for discovery—instead, the parties include the request for limited
discovery as a fallback position in their responsive briefings. (See id.)

In its reply, Allenbrooke requests discovery related to the timing of the capacity
determination here. (ECF No. 33 at PageID 510.) It claims that “the parties will need to take
Plaintiff’s deposition, inquire as to whether Ms. Denton had a Power of Attorney, retain
Plaintiff’s prior medical records, and engage in discovery related to the execution of the
surrogacy form and the extent of Ms. Denton’s authority.” (Id.)
But the time to address the timing of the capacity determination has passed. In her
response, Plaintiff attached her affidavit swearing that no physician was present when she signed
Allenbrooke’s Surrogate Form; that no physician signed the form before Allenbrooke gave it to
her; and that, to her knowledge, Dr. Nash never examined her son before his admission to

Allenbrooke’s facility. (ECF No. 24-1 at PageID 270.) And Plaintiff argues that Dr. Nash’s
signature date reads December 18, 2017. (ECF No. 24 at PageID 259.)
Allenbrooke could have responded to Plaintiff’s arguments in its reply. But beyond
Allenbrooke’s general statements that Dr. Nash made the capacity determination at the time of
admission,9 it makes no other assertion that Dr. Nash signed the Surrogate Form before Plaintiff
executed the Agreement. What is more, Allenbrooke could have attached an affidavit of its own
that contested Plaintiff’s statements. But it did not do so.

9 Allenbrooke only references the capacity determination’s timing twice—each time Allenbrooke
makes a general assertion that Dr. Nash determined Mr. Denton lacked capacity at the time of his
admission to Allenbrooke. (ECF No. 19 at PageID 188, 192.)
All in all, the Court finds that the time has passed for limited discovery on the timing of
the capacity determination. As the case progresses, Allenbrooke can renew its motion to compel
arbitration if discovery leads to new information on this issue. The Court therefore DENIES the
parties’ requests for limited discovery and DENIES WITHOUT PREJUDICE Allenbrooke’s
motion to compel arbitration.

CONCLUSION
The Court finds that no valid arbitration agreement exists between the parties. Plaintiff
lacked authority to enter the Agreement for Mr. Denton. Moreover, Allenbrooke cannot bind
Mr. Denton to the Agreement as a third-party beneficiary of the contract. And Plaintiff did not
enter the Agreement in her personal capacity. Finally, limited discovery is unnecessary. The
Agreement therefore does not bind Plaintiff to arbitrate any of its claims. The Court DENIES
WITHOUT PREJUDICE Allenbrooke’s motion to compel arbitration and stay the case.
SO ORDERED, this 16th day of October, 2020.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440126. Public record. Not legal advice.