                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 27, 2012 Session

   PEDIATRIX MEDICAL GROUP OF TENNESSEE, P.C., v. VICTOR J.
                    THOMAS, M.D., et al.

                 Appeal from the Circuit Court for Hamilton County
                 No. 11C367 Hon. W. Jeffrey Hollingsworth, Judge


             No. E2011-02421-COA-R3-CV-FILED-OCTOBER 29, 2012




This action arises out of a dispute between the parties on issues arising out of an employment
contract. The parties have been before this Court previously on this contract, and we ruled
that they were required to arbitrate the issues, and remanded the case. Plaintiff employer
filed a declaratory judgment action as a dispute arose over the selection of arbitrators. The
employer had selected its arbitrator, and the Trial Judge ruled that its selection was
appropriate and that the Trial Court did not have jurisdiction to determine whether the
selected arbitrator was proper under the American Health Lawyers Association rules of
procedure for arbitration. On appeal, we affirm the Judgment of the Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


John C. Harrison, and Jennifer H. Lawrence, Tennessee, for the appellants, Victor J. Thomas,
M.D., and Lizbeth A. Kennedy, M.D.

Stephen D. Barham and Nathaniel S. Goggans, Chattanooga, Tennessee, for the appellee,
Pediatrix Medical Group of Tennessee, P.C.
                                              OPINION

      This is an appeal from a grant of summary judgment in favor of plaintiff against
defendants, in a declaratory judgment action.

       This action arises out of an employment contract dispute between plaintiff and its two
employees, Drs. Thomas and Kennedy, defendants. The Doctors had entered into identical
employment contracts with plaintiff, that contained an arbitration clause whereby any dispute
arising out of the contracts would be submitted to arbitration. This dispute arose when the
defendants’ terms of employment expired in 2009.

        On June 12, 2009, the Doctors filed a Complaint for Declaratory Judgment against
Pediatrix, and in that suit the Doctors sought the Court’s determination as to the legality of
the restrictive covenants contained in the employment agreements.1 In that case the Chancery
Court denied the Motion to Dismiss, and refused to order the parties to arbitration. On
appeal, this Court issued an opinion reversing the judgment of the Chancery Court and
holding that all issues arising from the employment agreements must be arbitrated. See
Thomas et al. v. Pediatrix, E2009-01836-COA-R3-CV, 2010 WL 3564424 (Tenn. Ct. App.
Sept. 14, 2010).

        In the case before us, plaintiff filed a Motion for Summary Judgment, and the Circuit
Court granted the Motion for Summary Judgment, holding that Pediatrix’s selection of a Mr.
Lemons as its arbitrator was in compliance with the provisions of the contracts. Defendants
filed a Motion to Alter or Amend, as did Pediatrix. The Trial Court entered an order granting
the motions to amend holding that: (1) it did not have subject matter jurisdiction to decide
whether Mr. Lemons should be disqualified as such decision must be made in the arbitration
process; (2) the Doctors must choose an arbitrator within forty-five days of entry of the order
and: (3) the October 11, 2011 order is a final judgment, granting Pediatrix’s complaint for
declaratory judgment and dismissing the Doctors’ counterclaim.

        Defendants have appealed and raise these issues:

        A.      Was the Trial Court correct when it granted Pediatrix’s Motion for Summary
                Judgment and held that the parties’ choice of arbitrators was not limited to
                those arbitrators included on the AHLA’s resolver list furnished to the parties?

        B.      Was the Trial Court correct when it sustained Pediatrix’s Motion for Summary


        1
          See Victor J. Thomas, M.D., Lisbeth A. Kennedy, M.D. and Regional Obstetrical Consultants, P.C.
v. Pediatrix Medical Group of Tennessee, P. C., Case No. 09-0437.

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               Judgment and held that it lacked subject matter jurisdiction to rule on whether
               Mr. Lemons should be disqualified as an arbitrator?

        The granting or denying of a motion for summary judgment is a matter of law, and our
standard of review is de novo with no presumption of correctness. Kinsler v. Berkline, LLC,
320 S.W.3d 796, 799 (Tenn. 2010)(citing Blair v. W. Town Mall, 130 S.W.3d 761, 763
(Tenn.2004)). Summary judgment should be rendered “forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Here, the parties agree
that there were no issues of material fact before the Trial Court.

        The first issue pertains to the interpretation of the employment contracts entered into
by the parties. The interpretation of a contract is a matter of law that we review de novo on
the record according no presumption of correctness to the trial court's conclusions of law.
Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611-12 (Tenn. 2006)(citing Guiliano v. Cleo,
Inc., 995 S.W.2d 88, 95 (Tenn.1999); Union Planters v. Nat'l. Home Assurance Co., 865
S.W.2d. 907, 912 (Tenn.Ct.App.1993)). The second issue on appeal is one of subject matter
jurisdiction. Since a determination of whether subject matter jurisdiction exists is a question
of law, our standard of review is de novo, without a presumption of correctness. Northland
Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)(citing Nelson v. Wal–Mart Stores, Inc.,
8 S.W.3d 625, 628 (Tenn.1999)).

       Appellants contend that the Trial Court was in error when it granted Pediatrix’s
motion for summary judgment based on its interpretation of the arbitration clause in the
employment contracts. Appellants articulate three errors the Trial Court made when it found
the arbitration clause did not require that the parties select arbitrators from the Dispute
Resolver List provided by AHLA.

       First, appellants contend that the Trial Court failed to properly give effect to the intent
of the parties to the employment agreements, including the arbitration clause. Appellants’
second argument is that the Trial Court simply misinterpreted the arbitration clause when it
found that AHLA Rules do not apply to the arbitration process required by the contract.
Third, appellants state the Trial Court should have found that Pediatrix’s own conduct
showed its implicit agreement to select an arbitrator from the AHLA’s Dispute Resolver List.

       Our Supreme Court, in Allstate v. Watson, 195 S.W.3d 609, set out the basic rules of
contract interpretation Tennessee courts employ:

       A cardinal rule of contract interpretation is to ascertain and give effect to the intent

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       of the parties. Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005). In
       interpreting contractual language, courts look to the plain meaning of the words in the
       document to ascertain the parties' intent. Planters Gin Co. v. Fed. Compress &
       Warehouse Co., 78 S.W.3d 885, 889–90 (Tenn.2002). This Court's initial task in
       construing the lease at issue is to determine whether the language is ambiguous. Id.
       at 890. If the language is clear and unambiguous, the literal meaning controls the
       outcome of the dispute. Id. If, however, the words in a contract are susceptible to
       more than one reasonable interpretation, the parties' intent cannot be determined by
       a literal interpretation of the language. Id.

       Contractual language “is ambiguous only when it is of uncertain meaning and may
       fairly be understood in more ways than one.” Farmers–Peoples Bank v. Clemmer, 519
       S.W.2d 801, 805 (Tenn.1975).

                                           ****

       When contractual language is found to be ambiguous, the court must apply
       established rules of construction to determine the intent of the parties. Planters Gin
       Co., 78 S.W.3d at 890. An ambiguous provision in a contract generally will be
       construed against the party drafting it. Hanover Ins. Co. v. Haney, 221 Tenn. 148, 425
       S.W.2d 590, 592 (1968); Vargo v. Lincoln Brass Works, Inc., 115 S.W.3d 487, 492
       (Tenn.Ct.App.2003). Furthermore, when a contractual provision is ambiguous, a court
       is permitted to use parol evidence, including the contracting parties' conduct and
       statements regarding the disputed provision, to guide the court in construing and
       enforcing the contract. See Memphis Housing Auth. v. Thompson, 38 S.W.3d 504, 512
       (Tenn.2001); Fidelity–Phenix Fire Ins. Co. of New York v. Jackson, 181 Tenn. 453,
       181 S.W.2d 625, 631 (1944); Vargo, 115 S.W.3d at 494.

Allstate v. Watson, 195 S.W.3d 611-12.

       Our first task in ascertaining the parties’ intent in forming the contract is to examine
the words of the contract. If the plain meaning of the language in the contract is clear and
unambiguous, the literal meaning controls the outcome of the dispute. Only if we find that
language of the arbitration clause “is of uncertain meaning and may fairly be understood in
more ways than one” will the Court, as appellants suggest, look to the contracting parties'
conduct and statements regarding the disputed provision to guide the Court in construing and
enforcing the contract.

      We have concluded that the arbitration clause is not ambiguous, and the contractual
language at issue is in three sentences contained in the arbitration clause:

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       (1)Any controversy or claim arising out of or relating to this Agreement, or any
       alleged breach hereof . . . shall be finally determined by binding arbitration before a
       three member panel, consisting of one member selected by each party hereto, with the
       third member selected by the first two arbitrators. (2) Each party hereto shall bear the
       costs of its own nominee, and shall share equally the cost of the third arbitrator.
       (3)The arbitration proceedings shall be held in Chattanooga, Tennessee, unless
       otherwise mutually agreed by the parties, and shall be conducted in accordance with
       the American Health Lawyer's Association Dispute Resolution Service, Rules of
       Procedure for Arbitration.

        The issue before the Court is whether the language in the third sentence places limits
or restrictions on the first sentence. The first sentence simply states that each party gets to
select an arbitrator and that the two selected arbitrators appoint the third. The first sentence
places no restrictions or qualifications on the arbitrator each party will select. The third
sentence does contain limitations on how and where the arbitration proceedings are to be
conducted. The proceedings are to occur in Chattanooga and conducted pursuant to AHLA
Rules. The issue thus becomes whether the provision that arbitration proceedings be
conducted in accordance with the AHLA Rules means that the parties also are limited to the
default method provided in the Rules for the arbitrator selection and formation of the arbitral
forum? Appellee maintains that it made its selection of Mr. Lemons by applying a “clear,
straight-forward reading” of the arbitration clause. The Trial Court agreed, and ruled that
the unambiguous reading of the clause does not limit the selection of the arbitrator.

        In the subject paragraph no restrictions or rules are placed on the parties choice of
arbitrator and no restrictions or rules are placed on the two selected arbitrators’ choice for
the third member. This sentence is not fairly susceptible to more than one meaning. The
third sentence under examination is likewise clear, the arbitration proceeding is to take place
in Chattanooga . . . and be conducted under AHLA Rules. Thus, the arbitration proceeding’s
place and procedure is determined by this sentence. Appellants argue that arbitration
proceeding encompasses the arbitrator selection process delineated in the first sentence. This
interpretation is strained and inconsistent with the AHLA Rules.

        First, it is strained because it would require the parties, and presumably attorneys, to
be physically present in the City of Chattanooga, and no where else, when they initiate the
arbitration process by looking for appropriate arbitrators. At that part of the arbitration
process there is no reason that the parties would have to be in the same city and the city
would be Chattanooga. At that stage the parties are not required to work together nor be in
each other’s presence as they would be at a hearing. Further, the idea that the agreement
requires a presence in Chattanooga during arbitrator selection would mean that the two

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arbitrators selected by the parties would also have to be present in Chattanooga when they
jointly select the third arbitrator. We do not accept that a reasonable person could read the
arbitration clause to mean that panel selection must take place in Chattanooga. Thus, the
word "proceeding" in the third sentence cannot encompass the selection of arbitrators. It
follows, that the application of AHLA Rules requirement for proceedings in the same
sentence similarly does not apply to arbitrator selection.

        Several sections of the AHLA Rules use the words “proceedings” and “hearing”
interchangeably. See Rules 2.0, 4.06, 4.10 and 4.15. The AHLA Rules also contemplate
that parties who have agreed to arbitrate under the Rules may contract to select an arbitrator
or arbitrators under a procedure that differs from the procedure provided by the Rules. Rule
1.01 makes this general statement regarding the parties’ rights to vary from the Rules: “the
parties may vary the procedures set forth in these Rules by written agreement.” (italics
supplied in the document). Rule 1.04 states that “[i]f the arbitration agreement does not
specify the number of arbitrators, the dispute shall be heard and determined by one arbitrator.
Rule 2.0 provides the procedure for selecting an arbitrator. Rule 2.01 states that “[i]f the
parties have not provided in writing for any other method of selecting an arbitrator, the
selection shall occur in the following manner . . . ” Rules 2.01 (a) - (g), 2.02. 2.03 and 2.04
state that the parties may request a list of arbitrators and that the parties are to make their
selection jointly. Thus, the AHLA Rules provide a default procedure for selecting an
arbitrator to be followed by the parties only if the arbitration agreement does not provide a
method for the selection. Here, there is no dispute that the arbitration clause in the
employment contracts provides a methodology for arbitrator selection. Each party is to
select one arbitrator and the two selected arbitrators are to select a third. The Rules clearly
contemplate that parties who have agreed to arbitrate under the AHLA Rules may choose to
provide for a number of arbitrators and a procedure for their selection that differs from the
default procedures provided by the Rules.

       Accordingly, the AHLA Rules that are to be used at the arbitration proceeding do not
apply to nor restrict the parties’ selection of arbitrators. We affirm the Court's ruling that
the unambiguous reading of the arbitration clause does not limit the arbitrator eligibility
selection.

        The appellants asked the Trial Court to disqualify Mr. Lemons from acting as an
arbitrator. The basis for this request is the unsupported allegation that Mr. Lemons previously
functioned as an arbitrator in an arbitration in which appellee or a related entity was a
successful party. The Trial Court did not err when it declined to do so based on a lack of
subject matter jurisdiction. Appellee urges this Court to affirm the Trial Court’s ruling
based on the Tennessee Uniform Arbitration Act (TUAA), Tenn. Code Ann. § 29-5-301 et
seq., the terms of the employment contracts and the AHLA Rules.

                                              -6-
       The AHLA Rules provide that the parties “shall be bound by these Rules whenever
they have agreed to arbitration . . . under the Rules. (Rule 1.01.) The Rules contemplate that
any dispute regarding the neutrality of an arbitrator can be addressed within the context of
the arbitration. Rule 7.05 states:

       If a dispute arises between or among the parties regarding a conflict of interest of the
       arbitrator, the mental or physical competence of the arbitrator or any similar matter
       in which the continued service by the arbitrator is challenged and such dispute cannot
       be resolved among the parties and the arbitrator, the [AHLA] Service, at its sole
       discretion, may resolve such issues, may remove the arbitrator, and may make a
       replacement appointment based on the parties’ stated preference with respect to any
       list submitted to them, or may submit a new list to the parties.

       According to Rule 7.05, appellants could have looked to the AHLA Service to resolve
their concern about Mr. Lemons' impartiality, but they were not bound to under the Rules,
nor was the AHLA Service bound to resolve the conflict if asked. Thus, the Rules do not
support appellee's position that the courts lack subject matter jurisdiction over the issue of
Mr. Lemons' neutrality.

        Appellee also urges that the Doctors’ Employment Contracts require that the issue of
Mr. Lemons’ appointment be submitted to the arbitration panel. Section XII of the Contract,
the arbitration clause provides that [a]ny controversy or claim arising out of or relating
to this Agreement, or any alleged breach hereof (except for any controversy or dispute
relating to Section VII) shall be finally determined by binding arbitration . . . .” (emphasis
added). The appointment of an arbitrator, as required by the contract, arises or relates to the
contract, thus Mr. Lemons’ suitability or qualifications must be arbitrated. As our Supreme
Court noted: “the scope of the arbitrator's authority is determined by the terms of the
agreement between the parties which includes the agreement of the parties to arbitrate the
dispute.” Williams Holding Co. v. Willis, 166 S.W.3d 707, 711 (Tenn. 2005)(citing D & E
Constr. Co. v. Robert J. Denley Co., 38 S.W.3d 513, 518 (Tenn.2001) (quoting Int'l Talent
Group, Inc. v. Copyright Mgmt., Inc., 769 S.W.2d 217, 218 (Tenn.Ct.App.1989)); see also
Arnold, 914 S.W.2d [445] at 450 [(Tenn. 1996)].

        Appellee also maintains that under the TUAA judicial review of problems with
arbitrators is limited. Appellee argues that judicial review may only occur (1) after an award
is made, (2) only for causes of misconduct or corruption of an arbitrator or “evident
partiality” of a neutral arbitrator, and (3) only by vacating the award. See Tenn. Code Ann.
§ 29-5-313. However, Tenn. Code Ann. § 29-5-304 provides an exception to Section 313.
Section 304 of the TUAA provides:

                                              -7-
       If the arbitration agreement provided a method of appointment of arbitrators, this
       method shall be followed. In the absence thereof, or if the agreed method fails or for
       any reason cannot be followed, or when an arbitrator appointed fails or is unable to
       act and a successor has not been duly appointed, the court on application of a party
       shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers
       of one specifically named in the agreement.

       According to Section 304 the Trial Court would have jurisdiction to appoint one or
more arbitrators if the agreed method for the parties to select an arbitrator had failed or could
not be followed or if the selected arbitrator fails or is unable to act. However, before
assuming jurisdiction under Section 304, the method of selecting arbitrators must have
“failed” or a selected arbitrator must have “failed”. We hold that neither the method or Mr.
Lemons could have “failed” at this stage of the arbitration because the method of selection
was at the heart of the dispute that the Trial Court and this Court was required to resolve.
As the method was not certain, the method cannot be said to have failed. Likewise, until the
method of selection is determined, Mr Lemons’ selection cannot be certain and thus, cannot
have failed. While a court may have subject matter jurisdiction over this issue in the future
pursuant to Tenn. Code Ann. § 29-5-304, the Trial Court was correct to dismiss the Doctors’
counter-claim for lack of subject matter jurisdiction at this stage of the arbitration.

       The Judgment of the Trial Court is affirmed and the cause remanded with the cost of
the appeal assessed to Doctors Victor J. Thomas and Lizbeth A. Kennedy.




                                                     _________________________________
                                                     HERSCHEL PICKENS FRANKS, P.J.




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