1 For ease o f referen ce, we will refer to NH C H ealthca re/K noxv ille, Inc., as if it were the sole defendant. The

identity of th e other def endants is not

crit ical to th e resol uti on of th is appeal . We note in pas sing, however, that the bri ef fil ed in response to the app ellant’s br ief reflects that it was filed on b ehalf o f the defe nda nt men tioned in this footn ote
as well as th e d ef

enda nt NHC H ealthcare/ Knoxvill e, LLC. We do not know th e relat ionshi p between t

hese t wo defen dan ts; but it is not im por tant to o ur disp osition of this ap pea l.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE August 21, 2003 Session
LYNN RAITER

I EX REL 

### . MARY HELEN COX v. NHC HEALTHCARE/KNOXVILLE, I NC., ET AL 

### . Interlocutory Appeal from the Circuit Court for Knox County No. 2-791-01 Harold Wimberly, Jr., Judge

Filed December 30, 2003

No. E2003-00068-COA-R9-CV

Ly nn Raiteri, as the daughter and next friend of

the late Mary

Helen Cox (“Mrs. Cox”), sued NHC Healthcare/Knoxville, Inc . (“the d efenda nt”), aswell as ot

hers, 1 for the w rong ful de ath o f Mrs . Cox, whose death allegedl

y resulted from improper care at the def endant’s nursing home. We granted the plaintiff’s Tenn. R. A

pp. P. 9 app lication f

or an inte rlocutor y a ppeal in o

rder to r eview the tr ia l court’s order granting the def endant’s motion to compel mediation and arbitration pursuant to the dispute reso lutio n pro cedu

res c onta ined in the defe ndan t’s nu rsing home admis sion a

gre emen t. We
reverse. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed; Case Remanded

C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Richard C . May

and Loring E . Justice, K

noxville, Te

nnessee , for the

appella nt, Ly nn Raiter i.

Dan D. Rhea and F. Michael Fitzpatrick, Knoxville, Tennessee, for the appe llees, NHC Healthcare/Knoxville, Inc. and N HC Healthcare/Knoxville, LL C.
OPINION2 W hen asked what her mo ther’s condition was in late 20 00, the plaintiff respond ed as follows:

It was no t goo d. T he ma in pro blem was she had h ad a lo t of illn esses thatthe y didn ’t know what

was wr ong w ith her. . . . [S]he got to the p oint where she w as so weak she co uld not move – well, she could move but she couldn’t st and up. She wasn’t mobile.
-2- I.

A.

Mrs. Cox, age 7 7, was ad

mitted to St. Mary ’s Hospita l with che st

pains and other sy mptoms. Her husband, Charles E. Cox (“Mr. Cox”), age 75, anticipated that his wife would receive phy sical therapy at St. Mar

y’ s so she could regain some or all of her mobility; but apparently the hospital was notprepared to render these servic es to her. Since Mr. Cox was physically unable to lift and otherwis e care for his wife at home, he made arrangements to admit her to the defendant’s nursing home. 2 On December 20, 2000, Mr. Cox met at the nursing home with the defendant’ s admissions coordinator. Mrs. Cox was not present at the meeting. The admissions coordinator asked Mr. Cox to sign the

nursing home’s “ Admission a

nd Financial Contr

act” (“the admiss ion agr

eement” ) on his wife’s behalf, even though Mrs. Cox had not been diagnosed or a d judicate d as menta

lly incompete

nt. He compl ied with herrequest. It was the intention of the par ties that Mrs. Cox would receive physical thera

py and voca

tional rehabilitation services at the nursing home.

Sometime

shortly after his wife ’s admission to the defendant’s facility , Mr. Cox also was admitted to the defendant’s nursing home. On March 8, 2001, Mr. Cox passed awa y . Mrs . Cox, while still a resident at the nursing home, died on April 19, 2001. Following her mother’s death, t he pl aintiff f

iled suit f or Mrs. Cox’ s wrong ful deat h, alleging that

the neg ligenc e, abuse , neglect, and fraud of

the defe ndant ca used her mother’sdeath. I

n her com

p l aint, the plaintiff seeks compensatory

and puniti ve damages. I n response to the complaint, the defendant filed a motion seeking to compel mediation and arbitration.

B.

Before ruling on the defendant’s motion, t he trial cou rt held an evidentiary hearing. The defendant’s admissions coordinator was the only witness for the defend ant . She testified that she met with Mr. Cox and that he read and signed the admission agreement as M rs. Cox’s “legal repres entative .” While a

cknowle dging

that she h andled so me 360 adm issions a year, she claimed that she remembered that Mr. Cox read the admission agreement. When asked if and how sh

e could remember

at the time of the hearing – on September 4, 2002 – that Mr. Cox had read the admission agreement some two y ears earlier, she responded, “I do because all of my

admissions read the contract. I see to that.”

It is undis puted tha

t Mr. Cox can

read. A lthough t he admiss ion agr

eement s pecific ally defines the term “legal representative” as “anyone

authorized by t

he [patien t] to act on t

he [patien t’s]3 Two of the chil dren were from M rs. Cox’s earli er marriage. The third ch ild, Da vid C ox, is the son of Mr. and

Mrs. Cox.

4 Neither party call ed an expert

witn ess t o testify as to M rs. Cox’s competence, and the trial court did not make
a finding regar ding Mrs. Cox’s compe tency. The evidence preponderates in favor of a fi nding that she was competent to und erstand the ad mission agree men t. See Tenn. R. App . P. 13(d).
-3- behalf,” the admissions coordinator admitted that she did notreceive any indication from either of the Coxes that Mr. Cox was authorized to sign on Mrs. Cox’s behalf. She s tated that she did not know if Mr. Cox ha

d his wife ’s author

ization to a

ct on her behalf. She testif

ied that sh e allowe d him to sign the

admission a

greem ent simply

because he wa s Mrs. Cox’s husband. The admissions coordinator

went on to testify that she believed Mrs. Cox was competent whenMr. Cox signed the admission agree

ment. Des pite Mrs. C ox’s unquestioned mental ca pa ci ty, the admissions coordinator didnot discus s the admis sion agr eement with her; fur

thermore , she did not give Mr s. Cox a copy of that docum ent. She stated that she did not know whether Mrs. Cox was ever made aware of the terms and co ndit ions of the admis sion agreeme nt. S ign ificant ly, the admissions coordinator acknowledged

that Mrs. Cox “was capable of understanding it,” i.e. , the admission agreement. One of her children described her as “ fine mentally” a nd “very c ompetent.”

The admissions coordinator confirmed that Mrs. Cox would not have been admitted if Mr. Cox had refused

to sign th e admissio n agreement or had ref used toassent to

the termsof the dis pute resolution procedures in the agree ment, which provisions included one waiving Mrs. Cox’s r

ight to
a jury trial. The admissi ons coordina tor also te stified th at she inf ormed Mr . Cox of his ri ght to revoke the entire admission agreement within 30 da

ys; however, the witness admitted that Mr. Cox could only revoke the

entire agreement, not just the provisions dealing with the dispute re solution procedu res. She claimed that she explained the admission agreement to Mr. Cox and encourag ed him to ask questions; in response to a question, she stated that she did not tell Mr. Cox that he had the right to consult with a n attorne y before signing the admission agreement. The admissions
co ordinator

also admitted that she told Mr. Cox that any claim would be settled quickl y if it wa s handled via the dispute resolution procedures in the admission agreement.
At the evidentiary he aring, Mrs. Cox’s three children 3 testified for the plaintiff. All three children st at ed th at th ey b el ie ve d t he ir mo th er wa s f ul ly c ompetent when Mr. Cox signed the admission agree

ment. 4 None of Mrs. Cox’s three children were aware of any document signed by Mrs. Cox or any ot

her cond uct o n her p art aut horiz ing her husba nd to act on her beh alf or to si gn docum ents for her . The three childr en agr eed that their moth

er was “ sharp” m

entally . It is clea r from the testimony that the children c onsidered her more mentally competent than her husband. Contrary to the admissions coordinator’s testimony that Mr. Coxwas aware of what he was doin g, the plaintiff

testified that her stepfather “was very upset, very a

gitated, [and] very confused” after he signed theagreement. The plaintiff also testi fied tha

t her step father

told her th at his “on

ly choice” was to have his wife admit ted to the nursing home bec ause

he was physica

lly unable to take
care of her. Sandra Nelson, the plaintiff’s sister, also testified that she saw Mr. Cox after he signed the admission agreemen t and that h e “was v ery

upset,” “ distraug

ht,” and “ was just a

bsolutely5 This pa ragraph c aption is not in all capital letters.
-4- bawling.” David Cox also spoke to his father that day and confirmed that his father was crying and upset about his inability to care for his wife and the ne

cessity for admit ting her to a nursing home.

Ms. Nelson pointed out that she had to admit her stepfather to the nursing home soon after he had signed

the admission agreement for his wife. At the time of his admission, he was diag nosed with“pneumonia, malnutrition, dehydra tion, and [high blood sugar].” Ms. Nelson also met with the admissions coordina

tor, who to ld Ms. Nels on that she could leg ally

sign for her st epfather, ev en thou gh Ms. Nelson did not have explicit authority to do so. Only after Ms. Nelson signed the admission agreement did the admissions coordinator arra nge to have powers of attorney executed by the Coxes so Ms. Nelson could act on behalf of her mother and stepfather.

Ms. Nelson testified that, whenshe comme nted that reading the admiss ion agr

eement w ould take a long time, the admissions coordinator said “That’s quite all right. I will explain [the admission agree ment] to you.” Despite the a dmissions coordinator’s assurances, Ms. Nelson claimed that the admissions coordinator never men tioned med iation or arbitration or pointed out to her that, by signing the document, she was waiving Mr. Cox’s right to a jury trial. I

nstead, Ms. Nelson claimed that the admissions coordinator gave one sentence explanations while quickly flipping throug h the document

. C.

The admission agreement was admitted into evidenc e. The dispute resolution procedures read asfollows:

DISPUTE R

ESOLUTION P

ROCEDURE :
1. Initial Grievance Procedure: 5 The parties agree to follow the Gr ievance proceduredescribed in the Patient Rig hts Bookl et for a

ny c laims or disputes arising out of or in connection with the care render ed to Patient b y Center and/or its employees. Patient

should kno w that Cen

ter is pre pared to mediate any conc erns at any

time upon patient request (paragraph 2 be low)

2. MEDIATION: In the event there is a dispute a nd/or disputes arising out of or relating to (i) this contract or the breach thereof

or any tort claim; or (ii) whether or not there had been a violation of any right or rights granted under state law, and

the part ies are unable to

reso lve such disp ute th rough negotiation, then the parties agree in good faith to attempt to settle t he dispute by mediation administered by the Alter native Dispute Resolution Service of th e American Health La

wyers Assoc iation before resorting to arbitration. The Administrative Fee and mediator’s compensation shall be pai d by the center.-5- 3. ARBITRATION: Any disputes not settled by me di at io n w it hi n 6 0 d ays after a mediato

r is appointed shall be reso lved by bin ding arbi tration administeredby the Alternative D ispute Resolution Service of the American Health Lawyers Association , and judgment may be entered in any

court having jurisdiction thereof. The arb itrator( s) shall be selected from a panel ha vi ng experience and knowledge of the he alth care industry

. The same person shall not serve as both the mediator and the arbitrator. The place of arbitration shall be w

here the Center islocated, or, if that is not practical, then
as close to the Center as practical. This agr eement shall be governed by and interpreted

in accordance with the

laws of the State. The award shall be made within nine months of the commencement of the arbitration proceedings and the arbitrators shall agree to comply with this schedul e b efore accepting appointme

nt. However, this time limit may be extended by agreement

of all the parties o

r by the arbitrator( s) if it is ab solutely necessa ry , but not to exceedsix months. The arbitr ator(s) may awa

rd compensatory

and punitive damage s, and with respect to punitive dam ages arising under State statutes shallcomply with the provisions of State statute. By a greeing to arbitration of all dis putes, bot

h partie s are wa

iving a j ury

trial for all contr act, tor t, statutory and other clai ms. The award of attorney s’ fees and costs of the arbitration shall be determin ed by the arbitrator( s) in acc ordance to state law. The Administrative Fee and Arbitrator’s compensation shall be paid for by the center

. (Bold printand capitalization in original). Immediately following these provisions is the signature of Mr. Cox dated December 20, 2000.

The admission ag reement is eleven pages long . The mediation and arbitration provisions begin at the bottom of

page nine and continue on pag e ten. The dispute resolution procedures are printed in the same color ink, font size, and font type a s the rest of the admission agreement. The mediation and arbitration provisions do not include a statemen t to the patient encouraging him or her to ask questions. However, as in several other areas in the admission agreeme nt, the patient or the p atient’s legal r

eprese ntative isrequire d to sign immediate ly f ollowing the text, in a

ddition to his or her signatu re at the end of the

document

. The arbitration provisions do not expr es sl y state who is responsible for choosing the arbitrator; instead, the text only states that the “arbitrator(s) shal l be sele cte d from a panel having experience and know ledg e of t he he alth c are indust

ry .” The arb itra

tion p rovis ions s tate

that “ [b]y agreeing to arbitration of all disputes, both parties are waiving a jurytrial . . . .” (Emphasis added). According to the adm

issi on agreemen t, the term “parties” refers to the patient and/or the patient’s legal representative and the defendant. As pr eviously noted in this opinion, the term “legal representative” is definedin the admission agreement as “any one authorized by the [patient] to act
on the [patie

nt’s] beha

lf.” The dispute r esolution procedu res do not

explain in an y detail how6 Judge Wimberly was obv ious ly ref erri ng t o Ho well v. NH C/H ealthcare -Fort Sanders, I nc. , 109 S. W.3d 731 (Tenn. Ct. App . 2003 ), which case was pendin g on appeal when he decided t he iss ue now on appeal in t he ins tant

case. In Ho well , Judg e W imbe rly refused to ord er me diation and a rbitratio n on th e ground th at the agr eement was
unen force able. Id. at 732- 33. We aff irme d. Id. at 735. On June 30, 2003, the Tennessee Supreme C ourt denied the defen dan t’s app lication fo r perm ission to app eal Id. at 731.
-6- mediation or arbitration works; however, the provisions do explain where the process will occur and who will administer it. In the event of mediation

or arbitr ation, the defenda nt is requ ired topay the fees as sociate d with the p rocess.
D. Following the evidentiary he aring, thetrial court granted the defenda nt’s motion to compel mediation and arbi

tration. I n its orde r, the tri al court

did not add

ress witness cre dibility ; nor did it make spe cific findings o f fact. In re levant pa rt, the or der prov ides as f ollows:

After having considered . . . the other case involving the same ty pe of agree ment, 6 the Co urt fee ls . . . that[,] unlike the Court’s previous decision which was based upon the fact that the man who signed the paper wa s i ll it er at e a nd ob vi ou sl y s o and was not told about the conseq uences of what he was signing[] eve n though the peopl e undertook

to tell him

and explain it to him, in this particular case . . . , based upon the rulings of the Supreme Court and the law, t

h e Court rules tha t arbitra

tion is req

uired . . . . No use to

go into philosophythat the Court feels the Supreme Court has adop ted , but that’s my conclusion.

So . . . , this obviously needs to be presented to the Court of Appeals al so and w e’d hope that could be done as quickly as possible so we can dete rmine wha

t to do on thi s and othe

r cases
. The tria l court su bsequen tly g ranted t he plaint iff’s mot ion for a n interloc utory appeal.

II.

Tennessee has adopted a version of the Uniform Arbitration Act. The Te n nessee v ersion provides , in relev ant part , that “ a provisi on in a written contract to submit to arbitration any controve rsy therea fter ar ising be tween the parties i s valid, en forceable and irrevocable save upon such grounds as exist at law or in equity f or the revocation of any

contract.” Tenn. Code

Ann. § 29- 5-302(a) (2000); see also Buraczynsk i v. Eyri ng , 919 S.W.2d 3 14, 318 (Tenn. 1996 ); Howell v. NHC Healthcare-Fort Sanders, Inc. , 109 S.W.3d 731, 733 (Tenn. Ct. App. 2003).

The Supreme Court in Buraczynski v. Eyring held that arbitration agreements betwee n physicians and th eir p atients a re “not v oid as ag ainst publ ic policy , and are

theref ore enf orceab le-7-

under the Tennessee Arbitration Act.” Id . at 316. The High Court pointed out that “under the terms of the [T enne ssee

Arbi trat ion Act], arbitra

tion agr eements generally are enforceable unless g

rounds for their revocationexist in equity or in contract law.” Id . at 318. The court noted a word of caution:

We caution, however, that such agreements may

constitute

contracts of adhe sion w

hich must b e clo sely

scru tinize d to determine if
unconsc ionable

or o ppres sive terms are imposed upon the patient which pr event en forcem ent of the agree ment.
Id . at 316.

After determining that no “facial feature s,” in the arbitration agreemen t und er discussion would pr ev en t e nf or ce me nt , t he co ur t s ta te d t ha t t hi s d id no t e nd th e i nq ui ry. I d . The court explained what it me ant by

this comme

nt:

We must examine

the agr eementsin questi on to determine whether they are contracts of adhesion, and if so, whe ther they conta in such
unconsc ionable

or oppressive terms as to render them unenforceable.
Id

. Alluding to cases from other jurisdictions, the court indicated that it had to decide whether “such [arbitration] agreements are unenforc eable contracts of adhesion.” Id. (emphasis added). Quoting directly from Bla ck’s Law Dictio

nary 40 (6th ed . 1990), th

e Supreme

Court defined a contract of adhesion as

a

standardized contract form offer e d to consumers of goods and services on essentially a “ta ke it or leave it” basis, without affording th e co nsumer a realistic opportunity to ba rgain and under such conditions th at the consumer cannot obtain the desired product or service except by

acquies cing to t

he form o f the con

tract.
Id

. The court noted that the “distinctive feature” of a contract of adhesion

“is that th

e weake r party [ i.e. , the con sumer] has no realistic choice as to its terms.” Id. (quot ing Broemmer v. Abortion Servs. of Phoenix, Ltd. , 173 Ariz. 148, 840 P.2d 1013, 1016 ( 1992)); see also Leong v. Kaiser Found. Hosp. , 71 Haw. 240, 788 P.2d 164, 168 (1990); Wheeler v. St. Joseph Hosp. , 63 Cal. App. 3d 345, 356, 133 Cal. Rptr. 775, 783 (1976). T he Supre me Court e

mphasized , howeve

r, that a contract of adhesion is not automatically unenforceable. Eyring , 919 S.W.2d at 320.

The court in Eyringconcluded that the two ide

ntical ar bitration agree ments before it were contracts of adhesion. It g ave its rationale for this conclusion:

T he agreements are standar dized form contracts prepared by the contracting party

withsuperior knowledge of the subject matter – the rendition of medic al servic es. The a greem ents , by Ey

ring’s own7 W hile Eyri ng inv olved a medic al doc tor, it s l angua ge i s broa d e nou gh to encompass other health care

provid ers. -8-

admission, were offered to the patients on a “take it or leave it” basis. Hadthese pa

tients refuse d to sign t

he agr eements , Eyring

would not have continue d render

ing medi c al c are to them. Although the pati e nts could have refused to sign the arbitration ag reements and soug htout another physician in the a rea, that action would hav e terminatedthe physician-pa tient relationship (ordinarily one of trust) and interrupted the course of the patient’s treatment. To make a ny choic e would be d

ifficult ; but to cho ose not to s ign woul d result in the loss of

the desir ed servi ce – medi cal trea

tment fro m Eyring

. Id . (emphasis in original). The court next turned to the question of whether contracts of adhesion
are enforce able , stating that

[e]nforceabi lity generally depends upon whether the terms of the contract are beyond

the reasonable expectations of an ordinary person, or oppressive or unconscionable.
Id . (citati on omitted) . After r eviewing cases f rom other jurisdict ions, the c ourt stated that,

in general, courts are re luctant to en fo rce ar

bitration agree ments betweenpatients and health care providers 7 when the agreements are hidden within

other ty pes of co ntracts and do not afford the patie nts an op portunit

y to question t

he terms o

r purpose of the ag reemen t. This is so parti cularly

when the

agree ments req

uire th e pa tient to choose betweenf

orever waiving the right to a tria l by jury or foregoingne ce ss ar y medical treatme nt, and when the agreements give the health care provider an unequa l adva ntage in the arbitration process itself.
Id . at 321.

The Supreme Court in Eyringdetermined that the ag reements b efore it were enforcea ble. Id. The High Court reasoned that nothing in the ag reements was unconscionable, oppressive, or outside the reason able expec tations of the parties in that case. Id. The court mentioned the following facts as supportive of its concl usion: (1) the agre ement was a “s eparat e, one page document [ ] . . . e ntitled ‘Physician-Patient Arbitration Ag reement’”; (2) the agreement had an attached “short explanation” that encouraged the patient to ask que stions; (3) the physician did not have an unfair advantage in the arbitration procedure; (4) the patient was clearly informed in “tenpoint, capital letter

redtype” that “by

signing this contract you are giving up y our right to a jury

or court trial ”; (5) the te rms of

the agr eement a

re cle arly “laid out” a

nd are not buried, including the-9-

term th at binds the patient’s spouse and heirs to the agreeme nt; (6) a patient may r

e voke th e agreement

within 30 days and “r

egain” the right to a trial

by jury ; and (7) the arbitration agreeme nt “merely [shifts] the disputes to a different f orum,” rather than limiting liability. Id.

In Howell v. NHC/Healthcare – Fort Sanders, Inc. , 109 S.W. 3d 731 (Tenn. Ct. App. 2003),
we applied the holding in Eyringand determined that a mediation and arbitration pro visi on containedin a nursing home’s admission agreement wa s unenforceable. See Howell , 109 S.W.3d at 734-35. The husband in Howell executed an admiss ion agr

eement f or his wife b efore she was admitted to the defendant’s nursing home. Id. at 732. The wife had to be placed in the nur sing home qu ic kl y, and the admission agreement had to be executed befor e she could be admitted. Id. Becau se the patient’s husband could not read, the admissions coordinator undertook to explain the terms of the agree ment to him. Id. The esta te of the patient subsequently sue d the nursing home, claiming abuse and neglect, as well as “infliction of physica l suffering and

mental anguish.” Id. at 731. The nursing home filed a motion to compel mediation and arbitration. Id . Before ruling, the trial court conducted

an evidentiary

hearing where the admissions coordinator, the patient’s husband, and the patient’s children testified. Id . at 732.

The trial cou

rt inHowell, which, as previ ously noted, is t he same court as in the instant case, refused to order mediation or arbitration. Id . Its refusal was based upon its determination that the admission agree

ment was u

nenforc eable because

(1) the patient’s husband

could not read and (2) the admiss ions coordinator failed to explain that by sig ning the agreement he wa s waiving his wife’s right to ajur y trial. Id. at 735. We affirmed the trial court in Howell because the nursing home “ha[d] not demons trated th at the part ies b argained over the arbitra tion terms, or that it [sic] was within the reasonable expectations of an ordinary person.” Id.

We held i n Howell that the p arty seeking to enfor ce an al ternativ e dispute

resolu tio n agreement

mu st sh ow th at th e p ar ti es “‘ ac tu al ly’ bargained over the arbitra tion provision or that it
was a reasonable term considering the circumstances.” Id. at 734 (quot ing Brown v. Karemor Int ’l, Inc. , C/A No. 01A01-98 07-CH-00 368, 1999 WL 221799, a

t *3 (Tenn . Ct. App. M. S., filed A pril 19, 1999)).

In Howell, we relied upo n the following facts in deciding the ag reement there was not enforceable: (1) the agreement was eleven pages long a

nd the mediation and arbitration provisions
were on page ten; (2) the arbitration and me diation provisions were “‘buried’” in the larg er admissio n agree

ment, “[r]ather than being a stand-alone document”; (3) the arbitration and mediation provisions were pr

inted in the same font size as the other text in the agreement; (4) “the arbitration paragraph does not adequately

explain how the arbitration procedure would work, except as who would administer it”; (5) the patient had to bead mi tt ed in a n ur si ng ho me “e xp ed it io us ly” and the admission agree

ment had t

o be sign ed first; (6) the a

dmission ag

reemen t was pr esented to the patient’s husband on a “take-it-or-leave-it” ba sis; (7) the patient’s husband“had no realbargaining power”; and (8) the patient’s husband could not read and the nur sing ho me representative did not “adequately ” explain the provision that waived the patient’s right to a jury trial. Id . at 734-35.8 We note that “ NH C Healthcare” is a part of the name of the defendant i n Ho well and al so a part of t he n ame of one of the appellees in t he instant

case. The agreements in both cases are eleven pages l ong; the alterna tive disp ute resol uti on provisions are on page ten of each agreement; and neit her agreement cont ains an expl anat ion of how medi ati on and arbitra tion wo rk. W e susp ect that w e are d ealing w ith the sam e con tract in b oth cases. However, we cannot be sure because the opinion in Ho well does not s tate the prec ise medi ation and arbit rati on langua ge in t

hat cas e. -10- III.

The plaintiff in the instant case makes numerous arguments on appe al. She asserts that the mediation and arbi

tration la nguag e in the in stant ca se is iden tical tothe language that

was declared unenfor ceable in Howell

. 8 Next, she argues that the mediation and arbitration provision s in this case contain terms that the Supreme Court declared unenforceable in Eyring

. She further argues that the agreement

is not enf

orceab le because Mr. Cox did not have authority to waive any of his wife’s rights o r bind herto the dispute resolution procedures. She contends that Mr. Cox did not have authority or capacity

to consent to arbitration because he did not “knowingly a

nd intelligently” wa

ive his wife’s r

ight to a jury trial. She

also arg ues that th

e admissio n agreement i s void an d unenfor ceable because it violates federallaw prohibiting “a nursing home from taking any additional consideration apart from Medicare/Medicaid reimburse ment as part of the admissions process for residence.” See 42 U.S .C. § 1 396r(c)(5)(A)(iii); 42 C.F.R. §§ 483.12(d)(3), 489.30. L astly, she argues that the “presum ption in favor of arbitration” does not apply when there is a “question of whether a valid arbitration agreement exists.” We find persuasive the plaintiff’s arguments that Mr. Cox did nothave the express or apparent authority to sign the admission agreement for his wife a nd that the alternative dispute resolution provisions are otherwise unenforc eable. We will address the latter of these two

argume nts first.

We hold that the admission a greem ent in the instant ca se is a

contract of adhe sion beca use the admissions coordinator offered it to Mr. Cox on a take-it-or-leave-it basis, i.e. , Mr. Cox had to sign the agreement as written or his wife would not be admitted. See Eyring , 919 S.W. 2d at 320. Mr. Cox, as the weaker party , was not afforded an opportunity to bargain over the terms of the agree ment. He certainly

had no opportu

nity to barg ain over

the media tion and a rbitrati on provisi ons. He was handed a form contract, under, what was for him, very trying c ircumstances, i.e. , his need to quickly find acc ommodations for his ailing wife. It is clear he had two options: sign the form contract as presented

to him by the defendant, ther eby clea ring the way

for his wi fe’s ad

mission to the defenda

nt’s fac ility

or refu se to sig n the cont

ract and therea

fter try to make ar

range ments for his wife’s shelter and related acc ommodations. This is a classic case of a contract of adhesion. Following the teachings of Eyringand Howell , we hold that the mediation and arbitration provision s are une

nforce able. I

n so holding , we rely

upon the following facts: unlike Eyring , the dispute resolution procedures in this case are a par t of an eleven page contrac t dealing with many issues, including financial arrange ments and consent t

o care, rather

than being set fo

rth in a separ ate stand-alone document; the dispute resolution procedures do not con tain any ty pe of “short explanation” encoura

ging p atients to

ask quest ions; esse ntial ter ms in the mediation and arbitration provisions are “buried” and not clearly “laid out”; there are no provisions addressing how mediation and arbitra

tion work; most sign

ificantl y, t he provis ion waiv ing a patient’ s right to a jury trial is-11-

bu ried– and in no way hig hlighted – in the third paragraph of the me diation and arb itratio n provision s; the dispute resolution procedures seem to imply that the defe ndant alo ne is res ponsible for choosing the arbitrator; and, unlike the arbitration a

greem ent in Eyring , the dispute resolution procedures before us, including the provision waiving a jury trial, are printed in the same font size, typ e, and c olor as the rest of the agr eement.
As a st and-alone basis for our decision, we conclude tha t the evidence before us preponde rat es against the trial court’s implicit decision that Mr. Cox had authority to sign the admission agreement on behalf of his wife. T here is absolutely no

evidence that he had

her expre ss authority to sign for her. We also hold that the defendant cannot re ly upon the conce

ptof apparent
au th or it y. The evidence reflects that Mrs. Cox had her mental fac ulties, was “ sharper” than her husband, and was otherwise in a position to indica te whethe r she ass ented to t

he terms o f these significant

contract provision s. The record is also devo id of any exigent c ircumsta

nces tha t would clothe Mr. Cox with a

pparent authority to bind his wife to the admission agreement, particularly the alterna tive dispu te resolu tion provi sions. We c ertainly find nothing in the record before us, either factua lly or legal ly, warran ting a holding that Mr. Cox had the r ight to wa ive his wif

e’s ver y va luable constitutional right to a jur y trial to adjudicate he r rights in this matter. As the admissions coordinator

acknowledged, Mrs. Cox “was capable of unde rstanding” the admission ag reement. The admissions coordinator did not adequately explain why she

did not insist upon Mrs. Cox signing the admission agree

ment, or, at a minimum, why she did not ask Mrs. Cox to ratify what her husband had purported to do on her behalf.

IV.

In summary , we hold

that Mr. Cox did not have the actu al or app arent a uthority to bind Mrs

. Cox to the alternative dispute resolution provisions in the admission a greem ent. Fur thermore , these provision s, especially the w aiver of the right to a jury trial, are outside the reasonable expectations of a reaso nable

consumer, and, hence, unenforce able. Follo wing Eyring and Howell , we hold that the trial court erred when it decreed tha t the mediation and arbitration terms were enfor ceable. Therefore, we conclude that the judg ment below must be reversed.

In view of our holding, we do not find i t nece ssary to rea ch the plaintiff’s argument based upon her interpretation of 42 U.S.C. § 1396r(c)(5)(A)( iii) and 42 C.F.R. §§ 483.12(d)(3), 489.30.

V.

The order of the trial court granting the defendant’s motion to compel mediation and arbitration pursuant

to the dispute reso lution pro cedure s in the nur sing home admission agreement is reversed. Costs on appealare taxed to the appellees, NHC Healthcare/Knoxville, Inc. and NHC Healthcare/Knoxville, LL C. This case is remanded for further proceedi ngs con si stent with this opinion.-12- _____________ __________

_______ _ CHA RLES D. SUSANO, J R., JUDG E