                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    March 17, 2005 Session

          ARLEN WHISENANT v. BILL HEARD CHEVROLET, INC.

                A Direct Appeal from the Chancery Court for Shelby County
               No. CH-03-0589-2    The Honorable Arnold Goldin, Chancellor



                     No. W2004-01745-COA-R3-CV - Filed July 12, 2005


        Appellee brought suit against Appellant, a car dealership, after experiencing problems with
purchased vehicle. Among other things, Appellee alleged fraud in the inducement. Appellant sought
to enforce arbitration agreement in the contract for sale. The trial court ruled that, under Tennessee
law, claims of fraud in the inducement are not arbitrable. Appellant appeals the trial court’s
judgment. Finding no error, we affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R FARMER , J., joined.

Charles A. Sevier and James E. King, Jr., of Memphis, for Appellant, Bill Heard Chevrolet, Inc.

Kevin A. Snider of Germantown for Appellee, Arlen Whisenant

                                             OPINION

                                 I. FACTS AND PROCEDURE

        On February 6, 2002, the Appellee, Arlen Whisenant, bought a specially equipped and
modified Chevrolet LT Duty C1500 truck from the Appellant, Bill Heard Chevrolet. Shortly after
purchasing the vehicle, Whisenant began experiencing problems with the vehicle modifications,
including problems with the steering and turning system, problems with engine noise, and problems
with the slip yoke and related items. Incident to the sale, the parties entered into an arbitration
agreement, providing for submission to arbitration of all issues related to the transaction, including
issues related to representations regarding the transaction. The parties also agreed that the law of
Tennessee would govern the sale of the vehicle; the relevant provision of the contract for sale reads
as follows:
       The law of Tennessee will govern this transaction. It is also governed by applicable
       federal law and regulations. In the event of a dispute, the exclusive forum, venue, and
       place of jurisdiction will be in Tennessee, unless otherwise required by law.

        On March 28, 2003, Whisenant filed suit alleging fraud in the inducement, consumer
protection violations, Tennessee Lemon Law violations, and Magnassun Moss Warranty Act
violations. Appellant filed a Motion to Require Arbitration and filed a general answer to the
complaint. The trial court denied Appellant’s motion to require arbitration holding that contract
formation issues, including claims of fraud in the inducement, are not arbitrable when the agreement
provides that it is governed by Tennessee law.

                                              II. ISSUE

       The Appellant, Bill Heard Chevrolet, presents the following issue on appeal:

       Under Tennessee law, even if the parties have agreed to arbitrate contract formation
       issues, such as fraud in the inducement, whether these issues are subject to arbitration
       as set forth in the Tennessee Supreme Court’s ruling in Frizzell Constr. Co. V.
       Gatlinburg, LLC, 9 S.W.3d 79, 85 (Tenn. 1999).

                                  III. STANDARD OF REVIEW

        This appeal concerns solely a question of law; there are no disputed facts at issue in this
appeal. Our review of a trial court's determinations on questions of law is de novo with no
presumption of correctness. Gonzalez v. State Dep't of Children's Servs., 136 S.W.3d 613, 616
(Tenn.2004).

                                           IV. ANALYSIS

         In this appeal, we must determine whether the Appellee’s claim of fraudulent inducement
is arbitrable under the terms of a contract between Appellant and Appellee for the sale of a specially
modified Chevrolet truck. Appellant, Bill Heard Chevrolet, contends that under the express terms
of the contract, the Appellee’s claim for fraudulent inducement is arbitrable. Appellee, Arlen
Whisenant, contends that, since the claim for fraudulent inducement calls into question the very
existence of the contract for sale, the claim for fraudulent inducement is not arbitrable under
Tennessee law. At trial, the court held for Whisenant and denied Bill Heard Chevrolet’s Motion for
an Order Requiring Arbitration and for a Stay.

        Bill Heard Chevrolet contends the trial court erred and asserts that the parties’ agreement to
arbitrate all disputes arising from the contract is “valid, enforceable, and irrevocable.” In support of
this contention, Bill Heard directs us to the “Arbitration Agreement” executed by Bill Heard
Chevrolet and Arlen Whisenant. This document reads, in relevant part, as follows:



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       Buyer/lessee acknowledges and agrees that the vehicle purchased or leased herein has
       traveled in interstate commerce. Buyer/lessee thus acknowledges that the vehicle and
       other aspects of the sale, lease or financing transaction are involved in, affect, or have
       a direct impact upon, interstate commerce.

       Buyer/lessee and dealer agree that all claims, demands, disputes, or controversies of
       every kind or nature that may arise between them concerning any of the negotiations
       leading to the sale, lease or financing of the vehicle, terms and provisions of the sale,
       lease or financing agreement, arrangements for financing, purchase of insurance,
       purchased [sic] of extended warranties or service contracts, the performance or
       condition of the vehicle, or any other aspects of the vehicle and its sale, lease or
       financing shall be settled by binding arbitration conducted pursuant to the provision
       of 9 U.S.C. Section 1 et seq. and according to the Commercial Rules of the American
       Arbitration Association. Without limiting the generality of the foregoing, it is the
       intention of the buyer/lessee and the dealer to resolve by binding arbitration all
       disputes between them concerning the vehicle, its sale, lease or financing, and its
       condition, including disputes concerning the terms and conditions of the sale, lease
       or financing, the condition of the vehicle, any damage to the vehicle, the terms and
       meaning of any of the documents signed or given in connection with the sale, lease
       or financing, any representations, promises or omissions made in connection with
       negotiations for the sale, lease, or financing of the vehicle, or any terms, conditions,
       or representations made in connection with the financing, credit life insurance,
       disability insurance, and vehicle extended warranty or service contract purchased or
       obtained in connection with the vehicle.

Bill Heard argues that, under the Federal Arbitration Act, there is a presumption of arbitrability when
a contract between parties contains an arbitration clause. Quoting United Steel Workers of America
v. Mead Corp., Fine Paper Div., 21 F.3d 128, 131 (6th Cir. 1994), Bill Heard contends that this
Court “should not deny an Order to arbitrate ‘unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” Because
the arbitration agreement explicitly states that it covers “any representations, promises or omissions
made in connection with negotiations for the sale, lease or financing of the vehicle,” then any claim
of fraudulent inducement clearly falls within the ambit of the arbitration agreement. Moreover, Bill
Heard contends that the arbitration agreement is enforceable because Whisenant knowingly and
voluntarily signed the agreement, the agreement was not obtained by fraud, and the agreement was
not unconscionable.

        Appellee, Arlen Whisenant, makes a two-fold argument. First, Whisenant argues that
Tennessee law does not permit the arbitration of claims of fraudulent inducement. Whisenant cites
the case of Frizzell Construction Co., Inc. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn. 1999), in
which the Tennessee Supreme Court held that a fraudulent inducement claim was excluded from
arbitration, despite the fact that the contract contained an arbitration clause that evidenced an intent
to submit all issues to arbitration, including issues of contract formation. Whisenant contends that


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“the Court determined that the fraudulent inducement claim was excluded from arbitration, a
determination which was in the parties’ contemplation having chosen Tennessee law.” Whisenant
further notes that it does not contravene the Federal Arbitration Act for Tennessee to invalidate an
arbitration clause as it applies to fraudulent inducement claims; Whisenant quotes Taylor v. Butler,
142 S.W.3d 277, 284 (Tenn. 2004), which states that “states may regulate contracts, including
arbitration clauses, under general contract principles and they may invalidate an arbitration clause
‘upon such grounds as exist at law or in equity for the revocation of any contract.’ 9 U.S.C. § 2.”

        Whisenant’s second argument is that it would be contrary to the Federal Arbitration Act for
him to be compelled to arbitrate the fraudulent inducement claim: “Although the FAA seeks to
ensure the enforceability of agreements between private parties, parties cannot be forced to arbitrate
claims they did not agree to arbitrate.” Whisenant quotes Frizzell in support of this point:

       The FAA does not compel arbitration of any issue unless

       (1) an express agreement exists to arbitrate a specific issue, or
       (2) doubt exists as to whether the parties intended to withhold a specific issue from
       arbitration.

Frizzell Construction Co., Inc. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 84 (Tenn. 1999). Whisenant
argues that the language of the arbitration agreement cited by Bill Heard Chevrolet, as mandating
arbitration of the fraudulent inducement claim, is “overly technical language” and that Whisenant
was an “unsophisticated consumer who is not educated in the method of interpreting complicated
legal jargon into understandable terms and was unaware that he was waiving any legal remedy
regarding any concerns on the validity of the contract itself.”

         We begin our analysis by noting that the arbitration agreement at issue in this appeal does
not explicitly state that “fraud in the inducement” is to be an arbitrable claim between the parties.
The closest that the agreement comes to stating that a claim of fraud in the inducement is arbitrable
is in the following passages, both of which are contained in the arbitration agreement:

       “Buyer/lessee and dealer agree that all claims, demands, disputes, or controversies
       of every kind or nature that may arise between them concerning any of the
       negotiations leading to the sale, lease or financing of the vehicle .... “

       “Without limiting the generality of the foregoing, it is the intention of the
       buyer/lessee and the dealer to resolve by binding arbitration all disputes between
       them ... concerning the terms and conditions of the sale, lease or financing ... [or] any
       representations, promises or omissions made in connection with negotiations for the
       sale, lease, or financing of the vehicle.”

These phrases, taken alone, arguably imply that a claim of fraud in the inducement is arbitrable. A
claim of fraud in the inducement would most likely concern the “negotiations leading to the sale ...


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of the vehicle,” just as such a claim would likely concern “representations, promises or omissions
made in connection with negotiations for the sale ... of the vehicle.” However, we must turn to the
case law concerning arbitration clauses, to determine whether Whisenant’s claim of fraud in the
inducement is arbitrable under Tennessee law.

        In the case of City of Blaine v. John Coleman Hayes & Assoc., 818 S.W.2d 33 (Tenn. Ct.
App. 1991), the city of Blaine, Tennessee, sought rescission of a contract with Hayes & Associates
to provide engineering services for construction of a waste water treatment and collection system.
The city of Blaine filed suit seeking rescission of the contract due to alleged fraud and
misrepresentations by Hayes & Associates that induced Blaine to enter the contract. The question
before this Court was whether the arbitration provisions of the contract between Hayes and the city
of Blaine required that a claim of fraud in the inducement of the contract be submitted to arbitration.
We noted that the arbitration agreement in the contract was

       quite broad in providing for arbitration of ‘all claims, counter-claims, disputes and
       other matters in question between the parties hereto arising out of or relating to this
       agreement or the breach thereof....’

Id. at 36. Reviewing the Tennessee law on this question, we concluded that the City of Blaine was
entitled to a judicial resolution of the issue of fraud in the inducement. We acknowledged that this
was a “minority view”:

       In 1983, when the Tennessee legislature passed the Uniform Arbitration Act, they
       had full knowledge of the long established right of a person to seek rescission of a
       contract procured by fraud. With this knowledge, we find it logical for the legislature
       to intend to except actions for rescission from a decision by arbitrators and giving the
       language of the statute its usual and ordinary meaning, the legislature did just that.
       This legislative intent is exemplified by Justice Black in the Prima dissent. “Fraud,
       of course, is one of the most common grounds for revoking a contract. If the contract
       was procured by fraud, then, unless the defrauded party elects to affirm it, there is
       absolutely no contract, nothing to be arbitrated.” 87 S.Ct. at 1810. It would be
       difficult to improve on this language.

               In the case at bar, Blaine is entitled to a judicial determination on the issue of
       rescission. Although perhaps representing a minority view, we feel this approach
       represents the better view.

Id. at 38. Thus, City of Blaine establishes that where the parties have agreed that Tennessee law
governs a transaction, the issue of fraudulent inducement must be excluded from arbitration.

       In the case of Frizzell Construction Company, Inc. v. Gatlinburg, L.L.C., 9 S.W.3d 79
(Tenn. 1999), the owner of a hotel construction project was sued by a contractor for breach of
contract. The project owner counterclaimed alleging fraudulent inducement. The arbitration


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provision at issue in Frizzell required arbitration of “[a]ll claims, disputes and or other matters in
questions arising out of, or relating to, this Agreement or breach thereof.” Id. at 81. The agreement
further included a choice of law provision stating that the agreement would be governed by
Tennessee law. The chancellor, in a decision affirmed by the Court of Appeals, held that the
fraudulent inducement claim must be withheld from arbitration. Noting that the parties chose the law
of Tennessee to govern the contract, the Tennessee Supreme Court held that “the contract evidences
the intent to judicially resolve a claim of fraudulent inducement,” and affirmed the decision to
withhold the fraudulent inducement claim from arbitration. Id. at 82. The Court said:

                By stating that the contract is to be governed by Tennessee law, the
                parties have indicated their intention to arbitrate all disputes "arising
                out of, or relating to" their agreement—but only to the extent allowed
                by Tennessee law. Interpreting each clause in light of the other, we
                read the arbitration clause to more accurately state, "In accordance
                with Tennessee law, all claims, disputes, and other matters in
                questions arising out of, or relating to, this Agreement . . . shall be
                decided by arbitration . . . ." Therefore, because Tennessee law
                contemplates judicial resolution of contract formation issues, we
                conclude that the parties have indicated their intention not to submit
                such issues to arbitration.

Id. at 85.

        The Tennessee Supreme Court recently considered the arbitrability of fraudulent inducement
claims in the case of Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004). In Taylor, a car buyer whose
car was repossessed brought an action against the automobile dealership, alleging violation of the
Consumer Protection Act. The trial court granted the dealership’s motion to dismiss, finding that the
buyer was compelled to arbitrate her claim of fraudulent inducement, due to an arbitration clause
governing “all claims, demands, disputes or controversies of every kind or nature between [the
parties] arising from the [sale of the vehicle].” Id. at 280. The arbitration clause also stated that the
arbitration shall be “conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C.
Section 12 et seq.” Id. The Court of Appeals, relying upon its decisions in City of Blaine and
Frizzell, concluded that fraudulent inducement could not be submitted to arbitration under Tennessee
law, and reversed the trial court. Although affirming the Court of Appeals on the issue of
arbitrability, the Supreme Court reversed the Court of Appeals, noting that the facts in Taylor v.
Butler differed in a crucial respect from the facts of City of Blaine and Frizzell—Ms. Taylor’s
contract with City Auto did not provide that the laws of Tennessee would govern the transaction,
while the contracts at issue in City of Blaine and Frizzell did specify that Tennessee law would
govern the contracts. Pointing out that the court in Frizzell stressed that courts must focus on the
specific terms of the contract at issue, the Supreme Court in Taylor v. Butler went on to state: “It
is undisputed that Taylor signed a contract that specifically stated that ‘all claims, demands, disputes
or controversies of every kind or nature between [the parties] arising from the [sale of the vehicle]



                                                  -6-
shall be settled by binding arbitration pursuant to the provisions of the Federal Arbitration Act.’” Id.
at 283. The Court said:

                        This Court has also held that claims of fraud in the
                inducement are to be resolved by the courts and not by an arbitrator
                when the contract is governed by Tennessee law. Frizzell Constr.
                Co., 9 S.W.3d at 84. In Frizzell, the arbitration clause purported to
                govern “[a]ll claims, disputes and or other matters in questions arising
                out of, or relating to, this Agreement.” Id. at 81. In addition to this
                arbitration clause, the contract contained a clause stating that
                Tennessee law would form the basis for deciding questions
                concerning the contract’s scope and interpretations. We held that:

                                By stating that the contract is to be
                                governed by Tennessee law, the
                                parties have indicated their intention
                                to arbitrate all disputes “arising out of,
                                or relating to” their agreement – but
                                only to the extent allowed by
                                Tennessee law. . . . Therefore,
                                because Tennessee law contemplates
                                judicial resolution of contract
                                formation issues, we conclude that the
                                parties have indicated their intention
                                not to submit such issues to
                                arbitration.

                Id. at 85.
Id. at 282.

        We conclude that under the principles articulated in City of Blaine, Frizzell, and Taylor v.
Butler, we must affirm the judgment of the trial court in this case that Whisenant cannot be
compelled to arbitrate his fraudulent inducement claim against Bill Heard Chevrolet. Two related
considerations persuade us of the correctness of the trial court’s judgment. First, we note that
nowhere in the arbitration agreement is it stated that a claim of fraud in the inducement is arbitrable.
The second persuasive consideration is that the parties explicitly agreed that Tennessee law would
govern the transaction; as shown in our review of the case law, Tennessee law reflects the “minority
view” that even in the face of a broadly worded arbitration agreement, a party is entitled to a judicial
resolution of a claim of fraudulent inducement since such a claim calls into question the very
existence of the contract of which the arbitration agreement is part.

                                         V. CONCLUSION



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       For all the foregoing reasons, the judgment of the trial court is affirmed, and the case is
remanded for such further proceedings as are necessary. Costs of this appeal are assessed to the
Appellant, Bill Heard Chevrolet, and its surety.

                                             __________________________________________
                                             W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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