                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 April 20, 2010 Session

  ALLISON J. PERSON, AS ADMINISTRATRIX OF THE ESTATE OF
 EFFIE J. WOOTEN, Deceased, ET AL. v. KINDRED HEALTHCARE, INC.,
      d/b/a PRIMACY HEALTHCARE AND REHABILITATION
                         CENTER, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-006261-04     Karen R. Williams, Judge


                  No. W2009-01918-COA-R3-CV - Filed May 7, 2010


This is an action for negligence and wrongful death filed against a nursing home by the
administrator of decedent patient’s estate. The trial court denied Defendant nursing home’s
motion to dismiss or, in the alternative, for summary judgment upon finding decedent patient
was not competent to execute the power of attorney pursuant to which decedent’s daughter
had executed an arbitration agreement with Defendant. Defendant appeals. We dismiss the
appeal for lack of jurisdiction.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

William Lee Maddux, T. Ryan Malone, Chattanooga, Tennessee, for the appellants, Kindred
Healthcare, Inc., Kindred Healthcare Services, Inc., Kindred Healthcare Operating, Inc.,
Kindred Nursing Centers limited Partnership, George A. Munchow, J. David Marchant and
Melisa Lucinda Hall.

Cameron C. Jehl, Deborah Truby Riordan and Carey Lynn Acerra, Little Rock, Arkansas,
for the appellee, Allison J. Person.

                                        OPINION

      This appeal arises from protracted proceedings in an action originally filed by
Wendolyn Petties (Ms. Petties), as Administratrix of the Estate of Effie J. Wooten, deceased,
and on behalf of the wrongful death beneficiaries of Effie J. Wooten, against Kindred
Healthcare, Inc., d/b/a Primacy Healthcare and Rehabilitation Center (“Kindred Healthcare”),
and several individuals, in their professional capacities, in the Circuit Court for Shelby
County in November 2004. In her complaint, Ms. Petties alleged that, on October 22, 2003,
decedent Effie Wooten (Ms. Wooten), was admitted to a nursing home operated by Kindred
Healthcare in Memphis. She alleged that Ms. Wooten was of unsound mind and unable to
attend to her affairs when she entered the nursing home; that she suffered multiple injuries
while a resident of the nursing home; that, as a result of these injuries, Ms. Wooten required
medical attention and hospitalization; and that Ms. Wooten died on March 27, 2004, after
being removed from the nursing home in February 2004. Ms. Wooten asserted claims arising
from injuries due to negligence; gross negligence and willful, wanton, reckless, malicious
and/or intentional conduct; medical malpractice; violation of the Tennessee Adult Protection
Act; and breach of contract. She asserted claims for survival and wrongful death, and prayed
for compensatory and punitive damages and demanded a trial by jury.

       In December 2004, Kindred Healthcare filed a notice of removal to the United States
District Court for the Western District of Tennessee. On December 30, Ms. Petties filed a
motion to remand the matter to the Circuit Court of Tennessee. The district court granted her
motion to remand on April 25, 2005.

        On May 23, 2005, Kindred Healthcare filed a motion in the circuit court styled
“MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT,
AND TO STAY ALL PROCEEDINGS, INCLUDING DISCOVERY.” In its motion,
Kindred Healthcare “move[d] [the] [c]ourt for an Order dismissing Plaintiff’s Complaint or,
in the alternative, for summary judgment against Plaintiff in this matter.” Defendants further
“move[d] to stay all proceedings, including discovery, not relevant to the validity and
enforceability of the alternative dispute resolution agreement at issue in this case.” Kindred
Healthcare asserted,

       Plaintiff’s Complaint fails to state a claim upon which relief can be granted
       against Defendants by this Court because all claims are barred by the
       Alternative Dispute Resolution Agreement between the parties. In the
       alternative, Plaintiff can show no genuine issue as to any material fact, as
       evidenced by the Alternative Dispute Resolution Agreement Between Resident
       and Facility. . . . Defendants are, therefore, entitled to summary judgment as
       a matter of law.

Kindred Healthcare attached to its motion a copy of an alternative dispute resolution
(“ADR”) agreement that was executed by Ms. Petties on Ms. Wooten’s behalf on October
30, 2003.



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        In October 2005, the parties entered an agreed order staying all discovery other than
that reasonably calculated to lead to discovery of admissible evidence related to the validity
and/or enforceability of the ADR agreement until December 7, 2005. The agreed order
stated, “[a]fter that time, the Court will consider Defendants’ Motion to Dismiss or, in the
Alternative, for Summary Judgment.” In April 2006, the trial court entered an order
substituting Allison J. Person as Administratrix of the Estate of Effie Wooten and as Plaintiff
in this action.

        In December 2008, the Attorney General filed a notice of intervention in the matter
for the limited purpose of defending the constitutionality of Tennessee Code Annotated § 34-
6-101, et. seq., which Ms. Person challenged in her “Supplemental Brief in Support of
Response to Motion to Dismiss, or in the Alternative, for Summary Judgment.” In January
2009, the Attorney General filed a brief in the trial court responding to Ms. Petties’
November 2007 assertion that section 34-6-203(a)(3) would be unconstitutional if applied
to her case. On August 17, 2009, the trial court entered an order styled “ORDER DENYING
DEFENDANTS’ MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT.” The trial court incorporated its letter ruling dated July 23, 2009,
into the August 17 order. Kindred Healthcare filed a notice of appeal to this Court on
September 14, 2009.

                                      Issues Presented

       Kindred Healthcare presents the following issue for our review:

       Whether the trial court erred in declaring invalid the Durable Power of
       Attorney [that] Effie Wooten executed on August 28, 2003 naming her as
       attorney-in-fact her only child, Wendolyn Petties, thereby also invalidating the
       ADR Agreement signed by Ms. Wooten’s attorney-in-fact.

                                         Discussion

       Under Rule 13(b) of the Tennessee Rules of Appellate Procedure, we must begin our
discussion by first determining whether we have jurisdiction to adjudicate this appeal.
Subject matter jurisdiction concerns the authority of the court to hear a matter and cannot be
waived. Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). “Unless
an appeal from an interlocutory order is provided by the rules or by statute, appellate courts
have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones, 783 S.W.2d 553,
559 (Tenn. 1990).

       Rule 3(a) of the Tennessee Rules of Appellate Procedure provides, in relevant part:

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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.

         Any trial court order that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties is not final or appealable as of right. The subject
matter jurisdiction of this Court is limited to final orders, except as otherwise provided.
Bayberry Assocs., 783 S.W.2d at 559.

      Tennessee Code Annotated § 29-5-319 permits an immediate appeal from an order
denying an application to compel arbitration under § 29-5-303. It provides:

             (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 the
             provisions of 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.

Tenn. Code Ann. § 29-5-319(2000).

       Section 29-5-303 provides:

       (a) On application of a party showing an agreement described in § 29-5-302,
       and the opposing party’s refusal 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

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       determination of the issue so raised and shall order arbitration if found for the
       moving party; otherwise, the application shall be denied.
               (b) On application, the court may stay an arbitration proceeding
       commenced or threatened on a showing that there is no agreement to arbitrate.
       Such an issue, when in substantial and bona fide dispute, shall be forthwith
       and summarily tried and the stay ordered if found for the moving party. If
       found for the opposing party, the court shall order the parties to proceed to
       arbitration.
               (c) If an issue referable to arbitration under the alleged agreement is
       involved in an action or proceeding pending in a court having jurisdiction to
       hear applications under subsection (a), the application shall be made therein.
       Otherwise and subject to § 29-5-318, the application may be made in any court
       of competent jurisdiction.
               (d) Any action or proceeding involving an issue subject to arbitration
       shall be stayed if an order for arbitration or an application therefor has been
       made under this section or, if the issue is severable, the stay may be with
       respect thereto only. When the application is made in such action or
       proceeding, the order for arbitration shall include such stay.
               (e) An order for arbitration shall not be refused on the ground that the
       claim in issue lacks merit or bona fides or because any fault or grounds for the
       claim sought to be arbitrated have not been shown.

Tenn. Code Ann. § 29-5-303(2000).

        In the jurisdictional statement section of its brief to this Court, Kindred Healthcare
asserts that we have jurisdiction to adjudicate this appeal under section 29-5-319. Kindred
Healthcare submits:

       Although Appellants entitled the subject motion, “Motion to Dismiss, or in the
       Alternative, for Summary Judgment and to Stay All Proceedings Including
       Discovery,” the only subject matter raised in the Motion concerned the
       enforcement of the Alternative Dispute Resolution Agreement (“ADR
       Agreement”) Wendolyn Petties executed as attorney-in-fact for her mother,
       Effie Wooten. Appellants filed their motion pursuant to Rules 12.02(6) and
       56 of the Tennessee Rules of Civil Procedure and the Uniform Arbitration Act,
       Tenn. Code Ann. § § 29-5-301, et. seq.

It asserts that, under T.R. Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d 861
(Tenn. Ct. App. 2002), we should look not to the form of its motion to dismiss or in the
alternative, for summary judgment, but to its substance. Kindred Healthcare quotes T.R.

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Mills for the proposition that we should give “the broadest effect to the underlying policy of
the Tennessee Rules of Appellate Procedure that mere technicality of form be disregarded
in order to assure a just and speedy determination of proceedings on the merits.”

       We must disagree with Kindred Healthcare that matters relating to the determination
of whether we have subject matter jurisdiction are mere technicalities. A court acting
without subject matter jurisdiction acts without authority, and its orders are void. Meighan
v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn.1996); Shelby County v. City of
Memphis, 365 S.W.2d 291, 292 (Tenn. 1963).

        In this case, as Kindred Healthcare observes in its brief, Kindred Healthcare filed its
motion in the trial court pursuant to Rule 12.02(6), Rule 56, and Tennessee Code Annotated
§ 29-5-301, et. seq. Nowhere in its motion, however, did Kindred Healthcare move the court
to stay the proceedings and to compel arbitration. Rather, Kindred Healthcare moved the
court to limit discovery and to dismiss the complaint as “barred” by the alleged ADR
agreement. It alternatively moved the court for an award of summary judgment. Similarly,
the trial court’s order denies the motion to dismiss or, in the alternative, for summary
judgment.

        As we previously have noted, the code provides that, upon granting a party’s motion
to compel arbitration, the trial court “shall” stay the action or proceeding involving the issue
subject to arbitration.        Barclay v. Kindred Healthcare Operating, Inc., No.
W2008-02828-COA-R3-CV, 2009 WL 2615821, at *2 (Tenn. Ct. App. Aug. 26, 2009);
Tenn. Code Ann. § 29-5-303(d)(2000). Where other severable issues exist, the stay may be
with respect only to the issue subject to arbitration. Id. Further, upon granting a motion to
compel arbitration, the correct procedure in the trial court is to stay the matter pending
arbitration and not to dismiss it. Id. (citing Mitchell v. Kindred Healthcare Operating, Inc.,
No. W2008-01643-COA-R3-CV, 2009 WL 16846467, at *3 (Tenn. Ct. App. June 17, 2009);
Thompson v. Terminix Int'l Co., No. M2005-02708-COA-R3-CV, 2006 WL 2380598, at *3
(Tenn. Ct. App. Aug. 16, 2006); M.R. Dillard Constr. v. J.P. Realty, II, Inc., No.
M1999-01250-COA-R3-CV, 2000 WL 48497, at *1 (Tenn. Ct. App. Jan. 21, 2000)).
Dismissal of the matter, making the trial court’s judgment appealable as a final judgment
under Rule 3 of the Tennessee Rules of Appellate Procedure, “‘amounts to an end run around
the statute.’” Barclay, 2009 WL 2615821, at *2 (quoting Thompson, 2006 WL 2380598, at
*3).

         There is no motion in this record praying the trial court to stay the proceedings and
compel arbitration pursuant to Tennessee Code Annotated § 29-5-303, and there is no order
in this record denying a motion made under section 29-5-303. We cannot agree with Kindred
Healthcare that subject matter considerations involve technical matters that may be

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disregarded by the Court. We also cannot agree that the legislature’s narrowly carved
exception to the final judgment requirements of the Tennessee Rules of Appellate Procedure
may be broadened to encompass insufficient filings in the trial court.

                                          Holding

       In light of the foregoing, this appeal is dismissed for lack of subject matter
jurisdiction. Costs are taxed to the Appellant, Kindred Healthcare, Inc., and its surety, for
which execution may issue if necessary.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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