Delisa Roose v. Bath Fitter Tennessee, Inc.

04/10/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 9, 2025 Session

DELISA ROOSE v. BATH FITTER TENNESSEE, INC.

Appeal from the Chancery Court for Franklin County

No. 21124 Melissa T. Willis, Chancellor

___________________________________

No. M2023-01767-COA-R3-CV

___________________________________

The defendant, Bath Fitter Tennessee, Inc. (“Bath Fitter”), appeals the denial of its motion

to submit its contract dispute with the homeowner to arbitration pursuant to the Federal

Arbitration Act (“FAA”). The parties executed a written contract for the installation of a

new shower for the homeowner, the parts for which were manufactured in Canada. Both

parties signed the contract on the front page of the two-page agreement where the signature

lines were provided; however, neither party signed or initialed the arbitration provision that

appeared on the back of the contract. Although not explicitly stated in its order, it appears

that the trial court denied arbitration based upon the Tennessee Uniform Arbitration Act

(“TUAA”), which, at the time of contracting, required that arbitration clauses in residential

construction contracts be separately signed or initialed. It is undisputed that the materials

installed by Bath Fitter were manufactured in Canada; thus, the transaction involves

interstate commerce. For that reason, the FAA applies. Because the FAA does not require

signatures or initials to indicate approval of arbitration clauses and preempts conflicting

state laws that invalidate otherwise valid arbitration agreements, we reverse and remand

with instructions to submit the contract dispute to arbitration pursuant to the FAA and stay

proceedings until arbitration is complete.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Reversed and Remanded

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

T. Dylan Reeves, Nashville, Tennessee, for the appellant, Bath Fitter Tennessee, Inc.

Floyd Don Davis, Winchester, Tennessee, for the appellee, Delisa Roose.

OPINION

FACTS AND PROCEDURAL HISTORY

On January 31, 2020, Bath Fitter entered into a written contract (“the Contract”) for

the installation of a shower in a home located in Franklin County, Tennessee and owned

by David Roose and Delisa Roose, husband and wife. The front of the two-sided agreement

lists, inter alia, the parts Bath Fitter was to provide, the services it was to perform, and the

contract price.1 The terms and conditions, which include an arbitration provision, appear

on the reverse side of the Contract.

The Contract identifies the customers as “David & Delisa Roose.” David Roose

(“Mr. Roose”) signed the Contract on a signature line that reads: “Property Owner or Duly

Authorized by Property Owner.” A representative of Bath Fitter also signed the Contract.

The signatures appear only on the front side of the Contract.

In the paragraph that immediately follows the signature lines, the Contract states in

capitalized bold print: “THE NOTICE OF CANCELLATION AND OTHER TERMS

AND CONDITIONS ARE PRINTED ON THE REVERSE SIDE OF THE FORM.”

The terms and conditions contained on the reverse side of the Contract include an

arbitration provision, which provides in its entirety as follows:

21. Applicable Law and Dispute Resolution. The Contract Documents

shall be governed and construed in accordance with the laws of the State of

Tennessee. Any claims, dispute or other matter in controversy arising out of

or related to this Contract Documents, or the breach of any provision thereof,

shall be determined by final and binding arbitration in accordance with the

commercial rules of the American Arbitration Association. The place of

arbitration shall be Nashville, Tennessee and the non-prevailing party in the

arbitration shall pay the prevailing party’s reasonable attorney fees, costs,

and expenses.

Immediately following the last of the terms and conditions, the Contract contains two

additional signature lines for the property owner and Bath Fitter’s representative. Neither

Mr. Roose nor Bath Fitter’s representative signed the back of the Contract. Bath Fitter

subsequently installed the shower and was paid in full according to the Contract.

Approximately three years later, on March 27, 2023, Mrs. Roose2 commenced this

action against Bath Fitter in Franklin County Chancery Court, claiming that Bath Fitter

1

The total cost of the parts and services was $5,700.00. The Contract indicated that there was a

$400.00 deposit and that $5,300.00 was due on completion. The full price was paid following installation

of the shower.

2

Mr. Roose died prior to the commencement of this action.

-2-

breached the Contract by failing to install the bath systems correctly and according to

industry standards. As a result of Bath Fitter’s “faulty workmanship, poor design, and

installation of the bath systems[,]” Mrs. Roose claimed that the shower began to leak in

late 2022, which “caused damages to [Mrs. Roose’s] home including damages to her floor,

mold in the bathrooms, as well as causing the wood in the bathrooms to rot.” Mrs. Roose

requested compensatory damages in the amount of $50,000.00 for the property damage

incurred because of Bath Fitter’s alleged breach and requested that the case be heard before

a jury.

In May 2023, Bath Fitter motioned the court to refer the dispute to arbitration under

the provisions of the FAA and to stay the case pending arbitration. Bath Fitter claimed that

the Contract involves interstate commerce because the materials provided and installed by

Bath Fitter “consisted of acrylic baths and showers, walls, accessories, and butyl adhesives

that were manufactured in Saint-Eustache, Canada and shipped to Tennessee.” Thus, Bath

Fitter claimed the arbitration provision was governed by the FAA.

Mrs. Roose opposed the motion, averring, inter alia, that the arbitration provision

was an unenforceable “one-sided provision of a contract of adhesion” that did not “contain

reasonable term[s] considering the circumstances.” She also claimed that the Contract was

not provided until “after the Plaintiff had provided some sort of partial payment for

services,” and as such, she had no ability to bargain over the arbitration provision.

The trial court held hearings on Bath Fitter’s motion on May 23, November 7, and

November 29, 2023, during which it heard oral argument from the parties, but did not

receive testimony or evidence other than an affidavit Bath Fitter filed in support of its

motion to compel arbitration.3 From the record before us, it appears that the issues

discussed at the hearings included whether Mrs. Roose’s claims should be settled by

arbitration and, if so, who should arbitrate the dispute, where arbitration should occur, and

which arbitration rules should apply.

On December 11, 2023, the trial court entered an order denying Bath Fitter’s motion

to compel arbitration. While the trial court did not state with specificity whether the FAA

or the TUAA governed, it is implicit from the trial court’s order that it applied the TUAA,

specifically, Tennessee Code Annotated § 29-5-302, which, when the Contract was formed,

3

There is no transcript of the hearings. In June 2024, Bath Fitter filed a Tennessee Rule of Appellate

Procedure 24(d) notice that it would not be filing a transcript or statement of the evidence with respect to

this appeal. In her appellee brief before this court, Mrs. Roose contends that Bath Fitter’s appeal should be

dismissed for to its failure to file a statement of the evidence pursuant to Tennessee Rule of Appellate

Procedure 24(c). Bath Fitter counters that it was not required to submit a statement of the evidence because

“the Trial Court did not hold an evidentiary hearing or receive ore tenus testimony.” We agree with Bath

Fitter because the facts are undisputed, and the issues presented are purely questions of law. Accordingly,

the absence of a statement of evidence does not impact our analysis of the issues on appeal.

-3-

prohibited the enforcement of private agreements to arbitrate in residential construction

contracts unless the arbitration clause was separately signed or initialed by the parties. The

court found that while both parties had signed the front of the Contract, neither had signed

the back of the Contract, which “had signature lines and dates for both parties to sign and

date and contained specific language regarding arbitration.” For these reasons, the trial

court denied Bath Fitter’s motion to compel arbitration.

This appeal followed.

ISSUES

Bath Fitter presents three issues for our review:

1. The Tennessee Uniform Arbitration Act (“TUAA”) contains a[n]

additional signature/initial provision that the Federal Arbitration Act

(“FAA”) does not and, thus, Tennessee state courts cannot enforce the

TUAA provision when the FAA applies. Because the FAA governs and

does not require an additional signature under the arbitration provision,

and both parties signed the contract elsewhere, did the trial court err in

denying Bath Fitter’s motion to compel arbitration[.]

2. Whether the trial court erred when it denied Bath Fitter’s motion to

compel arbitration[.]

3. Whether the arbitration clause is enforceable under the FAA[.]

Mrs. Roose raises four issues:

1. Whether the Trial Court appropriately denied Bath Fitter’s Motion to

Compel Arbitration.

2. Whether the Trial Court’s decision was properly supported by adequate

findings of fact.

3. Whether the Trial Court’s decision was based on all the evidence and

filings in the record.

4. Whether the appeal filed by Bath Fitter is frivolous, constituting an

award of just damages against Bath Fitter.

STANDARD OF REVIEW

-4-

As our Supreme Court reasoned in Williams v. Smyrna Residential, LLC, 685

S.W.3d 718 (Tenn. 2024):

We review the denial of a motion to compel arbitration de novo, with no

presumption of correctness. Owens, 263 S.W.3d at 882; see also Tenn. R.

App. P. 13(d). Both the Federal Arbitration Act and corresponding Tennessee

statutes make clear that “agreements to arbitrate disputes should be treated

in the same manner as other contracts.” Harvey ex rel. Gladden v.

Cumberland Tr. & Inv. Co., 532 S.W.3d 243, 266 (Tenn. 2017). So we apply

ordinary principles of contract law to determine whether there is an

enforceable agreement to arbitrate. See Taylor v. Butler, 142 S.W.3d 277,

284 (Tenn. 2004); Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79,

85 (Tenn. 1999).

We also review questions of statutory interpretation de novo. See Lawson v.

Hawkins Cnty., 661 S.W.3d 54, 59 (Tenn. 2023). We generally interpret

statutory terms according to their “natural and ordinary meaning.” State v.

Deberry, 651 S.W.3d 918, 925 (Tenn. 2022) (quoting Ellithorpe v.

Weismark, 479 S.W.3d 818, 827 (Tenn. 2015)). That is, we ask “how a

reasonable reader, fully competent in the language, would have understood

the text at the time it was issued.” Id. at 924 (quoting Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012)).

Id. at 723.

“A trial court’s order on a motion to compel arbitration addresses itself primarily to

the application of contract law.” Trigg v. Little Six Corp., 457 S.W.3d 906, 911 (Tenn. Ct.

App. 2014) (quoting Rosenberg v. BlueCross BlueShield of Tennessee, Inc., 219 S.W.3d

892, 903 (Tenn. Ct. App. 2006)).

We review the trial court’s resolution of legal issues without a presumption of

correctness. Mitchell v. Kindred Healthcare Operating, Inc., 349 S.W.3d 492, 496 (Tenn.

Ct. App. 2008) (citing Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001)).

ANALYSIS

I.

Although each party presents several issues for us to consider, we have determined

that the dispositive issue is whether the trial court erred by denying Bath Fitter’s motion to

compel arbitration pursuant to the FAA. Nevertheless, before we address that issue, it is

appropriate for us to address a contract formation issue presented by Mrs. Roose.

-5-

A.

Mrs. Roose challenges the enforceability of the arbitration provision on appeal, as

she did below, contending that the circumstances surrounding the signing of the Contract

render it unconscionable. She specifically claims that the parties’ agreement was an

adhesion contract which was not presented to her until “after the Appellee had provided

some sort of partial payment for services.” As a result, Mrs. Roose claims that she was not

accorded the ability to bargain over the arbitration provision contained therein. Bath Fitter

maintains that the Contract is not an adhesion contract, but that even if it were, it would be

enforceable as its terms are not oppressive or unconscionable.

An adhesion contract is “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.”

Buraczynski v. Eyring, 919 S.W.2d 314, 320 (Tenn. 1996) (citing Black’s Law Dictionary

40 (6th ed. 1990)).

We note, however, that adhesion contracts are enforceable under Tennessee law

unless the terms are beyond the reasonable expectations of an ordinary person or are

oppressive or unconscionable. Berent v. CMH Homes, Inc., 466 S.W.3d 740, 756 (Tenn.

2015) (citing Taylor v. Butler, 142 S.W.3d 277, 284 (Tenn. 2004)). “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.”

Taylor, 142 S.W.3d at 285 (citing Haun v. King, 690 S.W.2d 869, 872 (Tenn. Ct. App. 1984)).

Whether a contract or a provision thereof is unconscionable is a question of law. Id. at 284–

85.

In determining whether a contract provision is unconscionable, courts must consider

“all the facts and circumstances of a particular case.” Owens v. Nat’l Health Corp., 263

S.W.3d 876, 889 (Tenn. 2007) (citing Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207,

274 S.E.2d 206, 210 (1981)). Upon review, we do not find the arbitration provision at issue

to be so one-sided or unreasonably favorable to the drafter, Bath Fitter, as to be deemed

unconscionable or oppressive. The agreement requires that both parties arbitrate claims

arising out of the Contract and contains a bilateral prevailing party agreement that awards

reasonable attorney’s fees, costs, and expenses to whoever prevails in the arbitration.

Furthermore, the arbitration clause is not hidden in the Contract. The front of the Contract

states in bold, all capital letters that important terms and conditions are contained on the

reverse side of the form. And on the back page of the Contract, the arbitration clause is

conspicuously labeled “21. Applicable Law and Dispute Resolution.” (Emphasis in

original).

-6-

We also note that Mrs. Roose alleges that the Contract was not provided until after

the deposit, $400.00, was paid; however, there is no evidence in the record to support this

allegation. Moreover, the terms and conditions include a notice of cancellation, which

allows the customer to cancel the agreement “AT ANY TIME PRIOR TO MIDNIGHT OF

THE THIRD (3RD) BUSINESS DAY AFTER THE DATE OF THIS AGREEMENT.”

(Emphasis in original). Thus, Mrs. Roose had three business days to cancel the Contract,

which negates the argument that she, or her husband, was prejudiced by the fact they were

not sufficiently informed when the Contract was executed.

For the reasons stated above, we find no basis upon which to conclude that the

Contract was oppressive or unconscionable. See Berent, 466 S.W.3d at 756; see also

Taylor, 142 S.W.3d at 284.

B.

The parties also dispute whether Mrs. Roose is a “party” to the Contract. Mrs. Roose

claims that she was a party, while Bath Fitter insists that she was “merely a non-signatory

third-party beneficiary.” We need not decide who is correct because, under either theory,

Mrs. Roose would be bound by all of the terms of the arbitration agreement. The Tennessee

Supreme Court has found that a non-signatory third-party beneficiary is bound by an

arbitration provision in a contract when the beneficiary’s claim seeks to enforce the

contract. Harvey ex rel. Gladden v. Cumberland Tr. & Inv. Co., 532 S.W.3d 243, 271

(Tenn. 2017). By bringing a breach of contract action, Mrs. Roose seeks to enforce the

terms of the Contract. Thus, as either a party or a third-party beneficiary, she is bound by

the arbitration agreement at issue to the extent that her breach of contract claim falls within

the ambit of the agreement.

Furthermore, as noted above, the Contract identifies the customers as “David &

Delisa Roose” and Mr. Roose signed the Contract on a signature line that reads: “Property

Owner or Duly Authorized by Property Owner.” Mr. and Mrs. Roose are the property

owners and Mrs. Roose makes no claim that her husband was not authorized to enter into

the Contract. Accordingly, Mrs. Roose is bound by the Contract as well as being entitled

to enforce the Contract.

C.

Having determined that the arbitration agreement is not oppressive or

unconscionable and that Mrs. Roose is bound by the Contract, we now consider whether

the agreement is governed by the FAA or the TUAA.4 It is implicit in the trial court’s order

4

As previously noted, the trial court did not make any particular findings as to whether or not the

FAA or the TUAA applied. It is evident from the court’s final order, however, that it denied Bath Fitter’s

-7-

that it denied the motion to arbitrate based on a TUAA requirement applicable at the time

of contracting that parties must sign or initial their consent to arbitrate. For the reasons set

forth below, we have determined that this was error because the Contract involved

interstate commerce.

Our reasoning is guided by the legal principle that where the FAA applies, state

courts may not apply conflicting state statutes that invalidate arbitration agreements.5

Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351, 357 (Tenn. Ct. App. 2001) (citing Allied-

Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270, 115 S.Ct. 834, 838, 130 L.Ed. 2d 753

(1995)).

In enacting the FAA, Congress “create[d] a body of federal substantive law . . .

applicable in state and federal courts.” Southland Corp. v. Keating, 465 U.S. 1, 12, 104

S.Ct. 852, 859, 79 L.Ed.2d 1 (1984) (quoting Moses H. Cone Memorial Hosp. v. Mercury

Const. Corp., 460 U.S. 1, 26 n. 32, 103 S.Ct., at 942 n.32)) (quotation marks omitted).

Under § 2 of the FAA, a written agreement to arbitrate disputes arising out of a contract

involving commerce6 is valid, irrevocable, and enforceable. 9 U.S.C.A. § 2 (emphasis

added). The FAA “embodies Congress’ intent to provide for the enforcement of arbitration

agreements within the full reach of the Commerce Clause.” Perry v. Thomas, 482 U.S. 483,

490, 107 S. Ct. 2520, 96 L.Ed. 2d 426 (1987); Frizzell Construction Co., Inc., v.

Gatlinburg, L.L.C., 9 S.W.3d 79, 83 (Tenn. 1999). A contract will be found to involve

interstate commerce within the meaning of the FAA when interstate commerce is present

in fact. Allied-Bruce Terminix, 513 U.S. at 281. “Where the requisite connection with

commerce is present, the federal act generally requires a court to stay the proceedings so

the parties can resolve the dispute according to the terms of the arbitration agreement.”

Owens, 263 S.W.3d at 883 (citing 9 U.S.C. § 3 (1999)).

The TUAA was enacted in 1983 to provide procedures for the enforcement of

arbitration agreements in Tennessee state courts. Hubert v. Turnberry Homes, LLC, No.

M2005-00955-COA-R3-CV, 2006 WL 2843449, at *4 (Tenn. Ct. App. Oct. 4, 2006)

(citing Act of May 11, 1983, ch. 462, 1983 Tenn. Pub. Acts 946). On July 31, 2020, when

the Contract was formed, the TUAA contained a requirement that agreements to arbitrate

regarding residential structures be separately signed or initialed. Specifically, the TUAA

provided that “for contracts relating . . . property and structures utilized as a residence of a

motion to compel based upon the TUAA’s additional signature/initial provision applicable at the time of

contracting.

5

Under the Supremacy Clause of the United States Constitution, “federal statutes are the supreme

law of the land and supersede inconsistent state laws.” Tennessee River Pulp & Paper Co. v. Eichleay

Corp., 637 S.W.2d 853, 858 (Tenn. 1982) (citing U.S. Const. art. VI, cl. 2).

6

The FAA’s definition of “commerce” includes “commerce among the several states.” 9 U.S.C.A.

§ 1.

-8-

party, the clause providing for arbitration shall be additionally signed or initialed by the

parties.” Tenn. Code Ann. § 29-5-302 (Repealed by 2023 Pub. Acts, c. 319, § 1, eff. July

1, 2023).

“Although the TUAA requires that agreements to arbitrate regarding residential

structures be separately signed or initialed, the FAA does not.” Clayton v. Davidson

Contractors, LLC, No. E2013-02296-COA-R3-CV, 2015 WL 1880973, at *3 (Tenn. Ct.

App. Apr. 24, 2015). And significantly, as we noted earlier, where the FAA applies, state

courts may not apply conflicting state statutes that invalidate arbitration agreements.

Pyburn, 63 S.W.3d at 357 (citing Allied-Bruce Terminix, 513 U.S. at 270). Thus, the

TUAA’s additional signature/initial requirement may not be imposed on arbitration

agreements governed by the FAA. Clayton, 2015 WL 1880973, at *3.

Tennessee courts have found on multiple occasions that a construction contract

“involves commerce” within the meaning of the FAA where the materials used in

construction were manufactured outside of the state. See State Farm Fire & Cas. Co. v.

Easyheat, Inc., No. M2006-02363-COA-R3-CV, 2007 WL 3306765, at *3 (Tenn. Ct. App.

Nov. 7, 2007) (a construction contract “involve[d] interstate commerce where a substantial

amount of materials used in the [construction] were manufactured out of Tennessee by

non-Tennessee entities”); Frizzell, 9 S.W.3d at 83 (finding that a construction contract for

a hotel involved sufficient interstate commerce to fall within the ambit of the FAA due to,

inter alia, the use of construction materials from out-of-state vendors); Tennessee River

Pulp, 637 S.W.2d at 855 (holding that a construction contract involving materials and

supplies from out-of-state vendors was one “involving commerce” under the FAA).

As the Contract clearly states, the Rooses purchased shower parts from Bath Fitter,

including a showerhead, tub wall, crescent shower rod, soap dish, and a 116-inch grab bar,

which Bath Fitter installed in the Rooses’ home pursuant to the Contract. Bath Fitter’s

unrefuted affidavit established that the parts were custom-made by Bath Fitter in Saint-

Eustache, Canada and shipped to Tennessee. Based upon these undisputed facts and the

above authorities, we conclude that the Contract “involves commerce” within the meaning

of the FAA. See State Farm, 2007 WL 3306765, at *3.

Because the Contract “involves interstate commerce, the [FAA] applies to ensure

that the arbitration agreement between the parties is enforced according to its terms.”

Frizzell, 9 S.W.3d at 83–84.

Nevertheless, this decision does not end our inquiry. We must also determine

whether Mrs. Roose’s claims against Bath Fitter fall within the scope of the arbitration

clause. As mentioned above, Mrs. Roose’s claim filed March 27, 2023 alleged that Bath

Fitter breached the Contract by failing to properly install the shower and remedy

subsequent leaks.

-9-

As a general matter, arbitration agreements governed by the FAA must be enforced

“unless it may be said with positive assurance that the arbitration clause is not susceptible

of an interpretation that covers the asserted dispute; doubts should be resolved in favor of

coverage.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574,

582–83, 80 S.Ct. 1347, 4 L.Ed. 2d 1409 (1960).

Arbitration under the [FAA] is a matter of consent, not coercion, and parties

are generally free to structure their arbitration agreements as they see fit. Just

as they may limit by contract the issues which they will arbitrate, so too may

they specify by contract the rules under which that arbitration will be

conducted.

Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S.

468, 476, 109 S.Ct. 1248, 103 L.Ed. 2d 488 (1989) (citations omitted). The question

therefore becomes “‘what the contract has to say about the arbitrability of petitioner’s

claim.’” Frizzell, 9 S.W.3d at 84 (quoting Mastrobuono v. Shearson Lehman Hutton,

Inc., 514 U.S. 52, 57, 115 S. Ct. 1212, 131 L.Ed. 2d 76 (1995)).

When determining whether contracting parties have agreed to arbitrate an issue,

courts should apply ordinary principles of contract law. Guffy v. Toll Bros. Real Est., No.

M2003-01810-COA-R3CV, 2004 WL 2412627, at *4 (Tenn. Ct. App. Oct. 27, 2004)

(citing Frizzell, 9 S.W.3d at 84). In Tennessee,

Contracts should be interpreted according to their plain terms, as those terms

are ordinarily understood. See, e.g., Individual Healthcare Specialists, Inc. v.

BlueCross BlueShield of Tenn., Inc., 566 S.W.3d 671, 694 (Tenn. 2019)

(explaining that “Tennessee courts give primacy to the contract terms,

because the words are the most reliable indicator—and the best evidence—

of the parties’ agreement when relations were harmonious” (internal

quotation marks omitted)); Action Chiropractic Clinic, LLC v. Hyler, 467

S.W.3d 409, 412 (Tenn. 2015) (explaining that “[w]e construe contractual

language according to its ‘plain, ordinary, and popular sense’ ” (quoting West

v. Shelby Cnty. Healthcare Corp., 459 S.W.3d 33, 42 (Tenn. 2014)));

Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 704 (Tenn. 2008) (same);

Bob Pearsall Motors v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580

(Tenn. 1975) (same); *312 Guardian Life Ins. Co. of Am. v. Richardson, 23

Tenn. App. 194, 129 S.W.2d 1107, 1116 (1939) (same).

Pharma Conf. Educ., Inc. v. State, 703 S.W.3d 305, 311–12 (Tenn. 2024).

We find the Tennessee Supreme Court’s analysis of a similar factual circumstance

in Frizzell Construction Company, Incorporated v. Gatlinburg to be instructive on this

issue. In that case, the arbitration clause governed “‘[a]ll claims, disputes and or other

- 10 -

matters in questions arising out of, or relating to, this Agreement or the breach thereof[.]’”

9 S.W.3d at 81. The contract also contained a choice of law clause stating that the contract

would be governed by Tennessee law. Id. An issue arose thereafter as to whether the

contract had been fraudulently induced. Id. at 82. After determining that the contract

involved interstate commerce, and was thus governed by the FAA, Id. at 82–84, the Court

turned to whether the parties had agreed to submit the issue of fraudulent inducement to

arbitration. The Court held that:

[b]y stating that the contract is to be governed by Tennessee law, the parties

have indicated their intention to arbitrate all disputes “arising out of, or

relating to” their agreement—but only to the extent allowed by Tennessee

law. . . . Therefore, because Tennessee law contemplates judicial resolution

of contract formation issues, we conclude that the parties have indicated their

intention not to submit such issues to arbitration.

Id. at 85 (footnote omitted).

The Contract in the instant case contains a broad arbitration clause through which

the parties agreed to arbitrate “[a]ny claims, dispute or other matter in controversy arising

out of or related to this Contract Documents, or the breach of any provision thereof[.]”

Similar to the arbitration agreement in Frizzell, the scope of the arbitration clause in this

case is limited by applicable Tennessee law. The Contract’s “applicable law” provision,

which immediately precedes the arbitration clause, provides that “[t]he Contract

Documents shall be governed and construed in accordance with the laws of the State of

Tennessee.” We conclude, as the Frizzell Court did, that the inclusion of this choice of law

provision evinces the parties’ intent to arbitrate claims “arising out of or related to th[e]

Contract Documents, or the breach of any provision thereof[,]” but only to the extent

allowed by Tennessee law.

This case differs from Frizzell, however, in that it involves a breach of contract issue

rather than one of contract formation. This distinction is significant because, while

Tennessee law prohibits arbitration of contract formation issues, see Taylor v. Butler, 142

S.W.3d 277, 283 (Tenn. 2004); Frizzell, 9 S.W.3d at 84, breach of contract issues may be

submitted to arbitration in Tennessee. See D & E Const. Co. v. Robert J. Denley Co., 38

S.W.3d 513, 519 (Tenn. 2001) (holding that an arbitration clause with similar language

indicated the parties’ intent to arbitrate breach of contract disputes). Because the parties

have agreed to arbitrate breach of contract claims, we hold that Mrs. Roose’s claim must

be submitted to arbitration pursuant to the FAA as stated in the Contract.

For the reasons set forth above, we reverse the judgment of the trial court and

remand with instructions to grant Bath Fitter’s motion to compel arbitration of Mrs.

Roose’s breach of contract claim and stay proceedings until arbitration is complete.

- 11 -

II.

Mrs. Roose contends that this is a frivolous appeal and that she is entitled to an

award of attorney’s fees pursuant to Tennessee Code Annotated § 27-1-122, which

provides:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include, but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the appeal.

“A frivolous appeal is one that is devoid of merit, . . . or one that has no reasonable chance

of succeeding[.]” Young v. Barrow, 130 S.W.3d 59, 67 (Tenn. Ct. App. 2003) (citations

omitted). Given that Bath Fitter has prevailed on appeal, we decline to award Mrs. Roose

damages for frivolous appeal.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the chancery court and

remand for further proceedings consistent with this opinion. Costs of appeal are assessed

against the appellee, Delisa Roose.

_________________________________

FRANK G. CLEMENT JR., P.J., M.S.

- 12 -