The opinion
09/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 2, 2021
REGIONS BANK v. DOCTOR R. CRANTS
Appeal from the Chancery Court for Davidson County
No. 20-293-III Ellen Hobbs Lyle, Chancellor
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No. M2020-01703-COA-R3-CV
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This is a collection lawsuit to recover the balance Appellant allegedly owes on a
promissory note held by Appellee. On Appellant’s motion, the trial court stayed the
proceedings and remitted the matter to binding arbitration pursuant to the terms of the
promissory note. Appellant brings the instant appeal under Tennessee Rule of Appellate
Procedure 3(a). Because the order appealed is not final, this Court lacks subject-matter
jurisdiction over the appeal. Tenn. R. App. P. 3(a). Furthermore, neither the Federal
Arbitration Act nor the Tennessee Uniform Arbitration Act provides a mechanism for
appeal of Appellant’s issues to this Court. Appeal dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
KENNY ARMSTRONG, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and KRISTI M. DAVIS, J., joined.
Doctor R. Crants, Nashville, Tennessee, appellant, pro se.
Walter N. Winchester, E. Brian Sellers, and Rachel M. Hester, Knoxville, Tennessee, for
the appellee, Regions Bank (Birmingham).
OPINION
On March 13, 2020, Appellee Regions Bank (Birmingham) (“Regions”) filed suit
against Appellant Doctor R. Crants to collect monies due and owing on a promissory note
executed by and between the parties on February 14, 2014 in the original principal amount
of $437,112.66 (the “Note”). According to a demand letter sent by Regions to Mr. Crants
on February 27, 2020, the balance due on the Note was “$279,030.04, plus interest as it
continues to accrue at $47.61 per day, all attorney’s fees, [and] expenses and costs of
collection incurred with respect to the enforcement of the Note.” The Note, which was
attached to the complaint as Exhibit A, contains an arbitration clause that provides, in
relevant part:
[A]ny controversy, claim, dispute, or disagreement (any “Claim”) arising out
of, in connection with or relating to (1) Borrower’s business relationship with
Lender; (2) the performance, interpretation, negotiation, execution,
collateralization, administration, repayment, modification or extension of
this Note; (3) any charge or cost incurred pursuant to this Note; (4) the
collection of any amounts due under this Note; . . . (5) any breach of any
provision of this Note . . . will be settled by binding arbitration.
The Note further provides that if the “Borrower’s claim or counterclaim . . . is not a
consumer-related claim or counterclaim, Borrower will be responsible for paying the
administrative costs and arbitrator’s fees . . . .”
After Mr. Crants’ request for continuance was denied, he filed an answer to the
complaint on August 20, 2020, wherein he admitted that he “did not pay the Note in full
[when the balance thereon became due] on August 14, 2019.” Mr. Crants further averred
that the dispute was subject to binding arbitration under the terms of the Note, supra.
Concurrent with his answer, Mr. Crants filed a counter-complaint for breach of contract
against Regions. Mr. Crants averred that Regions reneged on its agreement to aid Mr.
Crants in obtaining construction contracts to build prisons for the State of Alabama. Mr.
Crants claimed that the damages he suffered as a result of Regions’ alleged breach usurped
any amounts he owed on the Note such that he was entitled to relief from the Note and
additional damages. In its September 16, 2020 answer to the counter-complaint, Regions
denied any liability and raised several affirmative defenses.
On August 20, 2020, Mr. Crants filed a motion, asking the trial court to stay the
proceedings and to remit the matter to binding arbitration per the terms of the Note. On
September 16, 2020, Regions filed a response to Mr. Crants’ motion, wherein it agreed that
“the Court should grant the Motion to remit this matter to arbitration.” In addition, Regions
asserted that the trial court should “direct[] that [Mr. Crants], since he is seeking to enforce
the arbitration provisions of the Note, be responsible to pay the fees required to proceed to
such arbitration.” Regions further noted that, pursuant to the terms of the Note, “any such
arbitration [should] be administered by the American Arbitration Association (hereinafter
the “AAA”) under its Commercial Arbitration Rules.” By order of October 22, 2020, the
trial court granted the uncontested motion for stay and arbitration, but declined “to grant
the remaining aspects in [Regions’] request for relief (i.e., ordering that [Mr. Crants] is
responsible for paying fees in arbitration” because Regions “cited no provision in the
Promissory Note, a statute or case law for the requested relief . . . .”
On October 28, 2020, Regions filed a motion, asking the trial court “to alter or
amend the [October 22, 2020] Order to provide that, as provided in the Promissory Note,
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[Mr. Crants] is responsible for the cost of the arbitration.” Mr. Crants opposed the motion
in a response filed on November 2, 2020. By order of November 24, 2020, the trial court
granted Regions’ motion to alter or amend and specifically held that, “[Mr. Crants] is
ORDERED, as per the terms of the Promissory Note in issue and the AAA Rules, to pay,
on or before January 5, 2021, the fees required to initiate and proceed to arbitration. . . .”
The trial court further explained that:
In granting the [] Motion to Alter or Amend that part of the October 22, 2020
Order that denied [Mr. Crants] paying the fees, the Court concluded it did
not have jurisdiction to order payment of the fees since the Promissory Note
required arbitration, and it would be the AAA who would enforce its rules
about payment of the fees. The Court however missed [Regions’] explanation
that the Promissory Note does require [Mr. Crants] to pay up front the
arbitration fee, which makes a difference. The Promissory Note is a contract
susceptible to this Court’s jurisdiction. . . . [T]he provision in the Promissory
Note for payment of fees has now been located by the Court who determines
it does have jurisdiction to enforce that provision, and on that basis has
granted the Motion to Alter or Amend.
On December 21, 2020, Mr. Crants filed a Tennessee Rule of Appellate Procedure
3 notice of appeal to this Court. We first note that, while we are cognizant of the fact that
Mr. Crants is representing himself in this appeal, it is well-settled that “pro se litigants are
held to the same procedural and substantive standards to which lawyers must adhere.”
Brown v. Christian Bros. Univ., No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at
*3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). This Court has
held that “[p]arties who choose to represent themselves are entitled to fair and equal
treatment by the courts.” Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App.
2000); Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App.
1997). Nevertheless, “courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected to observe.”
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003); Edmundson v. Pratt, 945
S.W.2d 754, 755 (Tenn. Ct. App. 1996).
Although Mr. Crants raises several issues for review, we do not reach the
substantive issues in this case because the order appealed is not a final judgment so as to
confer subject-matter jurisdiction on this Court under Tennessee Rule of Civil Procedure
3. Furthermore, neither the Federal Arbitration Act (“FAA”) nor the Tennessee Uniform
Arbitration Act (“TUAA”) provides a mechanism for appeal of Appellant’s issues to this
Court.
The instant appeal is not interlocutory in nature, i.e., a non-final order appealed
pursuant to Tennessee Rules of Appellate Procedure 9 or 10. Rather, Mr. Crants brings his
appeal under Tennessee Rule of Appellate Procedure 3(a), which provides:
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In civil actions every final judgment entered by a trial court from which an
appeal lies to the Supreme Court or Court of Appeals is appealable as of right.
Except as otherwise permitted in Rule 9 and in Rule 54.02 Tennessee Rules
of Civil Procedure, if multiple parties or multiple claims for relief are
involved in an action, any order that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties is not enforceable or
appealable and is subject to revision at any time before entry of a final
judgment adjudicating all the claims, rights, and liabilities of all parties.
Under Rule 3(a), appeal as of right is only available from a final judgment. A final
judgment is one that resolves all of the issues in the case, “leaving nothing else for the trial
court to do.” State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App.
1997). Tennessee Rule of Appellate Procedure 13(b) requires this Court to “consider
whether the trial and appellate court have jurisdiction over the subject matter, whether or
not presented for review. . . .”
Here, the only issues adjudicated by the trial court in its October 22, 2020 and
November 24, 2020 orders were questions of arbitrability and the party responsible for
paying the cost of arbitration. The trial court did not address, much less adjudicate, the
substantive issues raised in Regions’ complaint and Mr. Crants’ counter-complaint. The
case was not dismissed or otherwise concluded. In fact, in its November 24, 2020 order,
the trial court expressly stated that, “[T]his lawsuit is stayed pending arbitration. . . .”
Therefore, there is no final order appealable under Tennessee Rule of Appellate Procedure
3(a).
Pursuant to the plain terms of the Note, the substantive case is governed by the
Federal Arbitration Act (“FAA”), 9 U.S.C. §1, et seq. As such, we turn to address the
question of whether the FAA grants Mr. Crants any right of appeal from the order requiring
arbitration or from the order requiring him to pay the cost of arbitration. From his brief,
Mr. Crants asserts that the appeal provision of the FAA, 9 U.S.C. §16,1 governs the
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9 U.S.C. § 16 provides that
(a) An appeal may be taken from—
(1) an order—
(A) refusing a stay of any action under section 3 of this title,
(B) denying a petition under section 4 of this title to order arbitration to proceed,
(C) denying an application under section 206 of this title to compel arbitration,
(D) confirming or denying confirmation of an award or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or modifying an injunction against
an arbitration that is subject to this title; or
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procedural law of this appeal. We disagree. In Morgan Keegan & Co. v. Smythe, 401
S.W.3d 595 (Tenn. 2012), the Tennessee Supreme Court held that although the substantive
provisions of the FAA may preempt the Tennessee Uniform Arbitration Act (“TUAA”),
T.C.A. 29-5-301, et seq., it does not preempt the procedural provisions of the TUAA for
appeals of arbitration orders entered by Tennessee state courts (Tenn. Code Ann. § 29-5-
319). Rather, the Court held that, “[I]f Tennessee’s appellate courts have subject matter
jurisdiction to hear appeals from orders such as the trial court’s . . . order, the grant of
jurisdiction must be found in the Tennessee Uniform Arbitration Act, not the Federal
Arbitration Act.” 401 S.W.3d at 607. Accordingly, the question of whether this Court has
subject-matter jurisdiction over this appeal must be determined under the TUAA and
specifically Tennessee Code Annotated section 29-5-319, which provides that:
(a) An appeal may be taken from:
(1) An order denying an application to compel arbitration made under § 29-
5-303;
(2) An order granting an application to stay arbitration made under § 29-5-
303(b);
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a re-hearing; and
(6) A judgment or decree entered pursuant to this part.
(b) The appeal shall be taken in the manner and to the same extent as from
orders or judgments in a civil action.
Here, the order appealed granted the motion to stay proceedings and to compel
arbitration. Despite Mr. Crants’ arguments, the fact that the trial court also ordered him to
initiate arbitration and to pay the cost of arbitration does not change the trial court’s
substantive ruling compelling arbitration and staying the matter pending resolution of the
arbitration. Although Mr. Crants would have us read the trial court’s order on Regions’
motion to alter or amend as a denial of his motion for arbitration, we are unpersuaded. In
determining whether an appeal lies under TUAA § 29-5-319, we look to the substance of
the trial court’s orders, which was to grant the motion for stay and arbitration. The
imposition of costs of arbitration to Mr. Crants is merely ancillary to the trial court’s grant
(3) a final decision with respect to an arbitration that is subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not
be taken from an interlocutory order—
(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this title;
(3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.
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of the motion to compel arbitration. “There is no appeal as of right from an order
compelling arbitration.” Peters v. Commonwealth Assocs., No. 03A01-9508-CV-00295,
1996 WL 93768, at *2 (Tenn. Ct. App. Mar. 5, 1996) (discussing the reach of Tenn. Code
Ann. § 29-5-319) (citing Anderson County v. Architectural Techniques Corp., No.
03A01-9205CH-00184, 1993 WL 5921 (Tenn. Ct. App. January 14, 1993)); accord
Thompson v. Terminix Intern Co., LP, No. M2005-02708-COA-R3-CV, 2006 WL
2380598, at *3 (Tenn. Ct. App. Aug. 16, 2006) (noting that although “an order denying a
motion to compel arbitration is immediately appealable pursuant to statute[,] Tenn. Code
Ann. § 29-5-319(a)(1)[,] an order granting a motion to compel arbitration and staying the
action is not directly appealable. . . . Tenn. Code Ann. § 29-5-319 (2000)”); Blue Water
Bay at Center Hill, LLC v. Hasty, No. M2016-02382-COA-R3-CV, 2017 WL 5665410,
fn. 4 (Tenn. Ct. App., Nov. 27, 2017) (“There is no appeal as of right from an order
compelling arbitration.”) (citing Peters, 1996 WL 93768). Likewise, in Melo Enterprises,
LLC v. D1 Sports Holdings, LLC, No. M2017-02294-COA-R3-CV, 2019 WL 338941
(Tenn. Ct. App. Jan. 25, 2019), this Court cited both Peters and Blue Water Bay for the
proposition that Tennessee Code Annotated section 29-5-319 does not afford a right to
appeal a trial court’s order compelling arbitration. In a concurring opinion, Judge
McBrayer stated that, “The list of orders that may be appealed under the TUAA can
reasonably be thought to be an expression of all ‘the orders that may be appealed.’” 2019
WL 338941, at *5 (McBrayer, J. concurring) (citations omitted). Under Tennessee Code
Annotated section 29-5-319 and the Tennessee cases interpreting the statute, it is clear that
the trial court’s November 24, 2020 order granting the motion to stay proceedings and
compelling arbitration is not an order that is recognized under the statute as appealable on
an interlocutory basis as an exception to the requirement that an order must be final to be
appealable to this Court. Tenn. R. App. P. 3(a).
Before concluding, we briefly address Regions’ request for an award of its appellate
attorney’s fees and costs on the ground that Mr. Crants’ appeal is frivolous. Tennessee
Code Annotated section 27-1-122 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.
The decision whether to award damages for a frivolous appeal rests solely in this Court’s
discretion. Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). “A frivolous
appeal is one that is ‘devoid of merit,’ or one in which there is little prospect that it can
ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995).
Although Mr. Crants clearly misinterprets the provisions of the FAA and the TUAA, we
conclude that his appeal is not so devoid of merit as to characterize it as frivolous.
Accordingly, we exercise our discretion to decline Regions’ damages for frivolous appeal.
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For the foregoing reasons, the appeal is dismissed, and Appellee’s request for
frivolous appeal damages is denied. Costs of the appeal are assessed to the Appellant,
Doctor R. Crants, for all of which execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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