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