Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

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This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the

trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided

by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not be

cited or relied on for any reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 20, 2008 Session

MERRY LESHANE, as Next of Kin of WINNIE BRUMLEY, Deceased v.

QUINCE NURSING AND REHABILITATION CENTER, LLC

Direct Appeal from the Circuit Court for Shelby County

No. CT-003414-06 John R. McCarroll, Jr., Judge

No. W2007-01484-COA-R3-CV - Filed October 14, 2008

This appeal arises from the trial court’s denial of Defendant/Appellant’s motion to compel arbitration

under an arbitration agreement contained in a nursing home admissions agreement. This is a direct

appeal pursuant to Tennessee Code Annotated § 29-5-319(a)(1). We vacate and remand for further

proceedings with respect to the issue of authority.

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

Remanded

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

HOLLY M. KIRBY, J., joined.

Hardin Chase Pitman and Rebecca Adelman, Memphis, Tennessee, for the appellant, Quince

Nursing and Rehabilitation Center, LLC.

Frank B. Thacher, III, and Les Jones, Memphis, Tennessee, and Mark Norman Geller, Memphis,

Tennessee, for the appellee, Merry LeShane, as Next of Kin of Winnie Brumley, Deceased.

MEMORANDUM OPINION1

Decedent Winnie Brumley (Ms. Brumely) was admitted to a nursing care facility in 2001

after suffering a stroke. The paperwork admitting her to the nursing center was signed by one of her
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daughters, Merry LeShane (Ms. LeShane). Ownership of the facility changed hands in 2003, and

the facility began operating as Quince Nursing and Rehabilitation Center, LLC (“Quince Nursing”).

In November 2003, at the request of Quince Nursing, Ms. LeShane signed a new admissions

agreement that included the arbitration clause at issue in this case. The agreement also was signed

by Sheila Craft (Ms. Craft), admissions coordinator, on behalf of Quince Nursing. According to Ms.

LeShane, she signed the agreement after returning home from vacation just before Thanksgiving and

finding several telephone voice messages from Quince Nursing stating that Ms. Brumley would be

discharged from the facility if Ms. LeShane did not immediately sign the new admissions agreement.

The admissions agreement signed by Ms. LeShane in November 2003 is 34 pages long. It

includes five appendixes, executed in varying degrees of completeness. Appendix 3, an

acknowledgment of receipt of privacy practices; Appendix 4, a financial agent’s agreement; and

Appendix 5, release of Medicaid information agreement, are separately signed. The agreement also

includes four “exhibits.” Exhibit A is an assignment of benefits agreement and is separately signed

by Ms. LeShane. Exhibit C is a resident trust fund authorization and is signed by Ms. LeShane and

Ms. Craft. Exhibit D is an unsigned “resident bill of rights.” 

The arbitration clause at dispute in this lawsuit is contained in Exhibit B. It is located on

pages 29-30 of the 34-page admissions agreement. In the admissions agreement table of contents,

it is subtitled “Exhibit B Arbitration Agreement.” Within the agreement, it is sub-titled “Resident

and Facility Arbitration Agreement.” Exhibit B is separately signed and dated by Ms. LeShane and

Ms. Craft. In addition to providing that all disputes are to be arbitrated under the Federal Arbitration

Act, the arbitration agreement states:

The parties understand and agree that this contract contains a binding arbitration

provision which may be enforced by the parties, and that by entering into this

arbitration agreement, the parties are giving up and waiving their constitutional rights

to have any claim decided in a court of law before a judge and a jury, as well as any

appeal from a decision or award of damages.

The Resident understands that: (a) he/she has the right to seek legal counsel

concerning this Arbitration Agreement; (b) execution of this Agreement is not a

precondition to admission or to the furnishing of services to the Resident by the

Facility; and (c) this Agreement may be rescinded by written notice to the Facility

from the Resident within thirty days of signature. If not rescinded within thirty days,

this Agreement shall remain in effect for all subsequent stays at the Facility, even if

the Resident is discharged from and readmitted to the Facility.

The undersigned certifies that he/she read this Agreement, that it has been fully

explained to him/her, that he/she understands its contents, that he/she has received

a copy of the provision and that he/she is the Resident, or a person duly authorized

by the Resident or otherwise to execute this Agreement and accept its terms.
The complaint also named Mohan M. Gehi, MD, as a Defendant.

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In August 2005, Ms. Brumley underwent surgery to amputate her leg as a result of gangrene

in her foot. Ms. Brumley died on December 21, 2005. In June 2006, a complaint for damages

naming Ms. Brumley as Plaintiff was filed against Quince Nursing & Rehabilitation Center, LLC

(“Quince Nursing”) in the Circuit Court for Shelby County. The complaint alleged negligence, 2

violation of the Tennessee Adult Protection Act, violation of the Tennessee Nursing Home

Residents’ Rights Act, medical malpractice, violation of the Omnibus Budget Reconciliation Act of

1987, gross negligence, outrage, breach of contract, and breach of fiduciary duty. It sought

compensatory and punitive damages. In September 2006, Plaintiff/Appellee Merry LeShane filed

an amended complaint pursuant to Rules 15 and 17 of the Tennessee Rules of Civil Procedure,

naming herself, as next of kin of Winnie Brumley, deceased, as Plaintiff. 

Quince Nursing filed a motion to compel arbitration or, alternatively, a motion to dismiss

under Rule 12.02(6). In its motion, Quince Nursing asserted, inter alia, that Ms. LeShane’s claim

was subject to arbitration under the 2003 admissions agreement. Ms. LeShane opposed the motion

on the grounds that the arbitration clause was not enforceable because it was “unconscionable and

beyond the reasonable expectations of ordinary persons.” Ms. LeShane additionally asserted that

the arbitration agreement was severable from the remainder of the contract; that it was “buried”

within the admissions agreement; and that it did not explain the arbitration process or indicate that

“the resident is waiving her constitutional right to a jury trial.” Ms. LeShane also asserted that

Quince Nursing failed to “rectify the facial deficiencies in the arbitration agreement.” 

The matter was heard by the trial court in May 2007. At the hearing, Ms. Craft testified that

it generally took 30 minutes or more to explain the admissions process to a resident or family

member. She further testified that her customary explanation to the resident or family member about

the arbitration clause included an erroneous statement that they were not waiving their right to sue

in a court of law. Ms. Craft testified that “that’s the way [she] understood it.” Ms. Craft was asked

“you were asking people to sign an agreement waiving their right to sue in court, but at the same

time, you were telling them that they still had the right to sue in court, correct?” She replied, “Yes.”

Ms. Craft additionally testified at the May hearing that she had no interaction with Ms.

Brumley herself, and that she did not specifically recall meeting with Ms. LeShane regarding the

admissions agreement. Ms. LeShane, however, testified that the admissions agreement was signed

in a hurried process over two or three minutes. She testified that Ms. Craft essentially pointed to

where she should sign, offering no explanation of the agreement. Ms. LeShane testified that she did

not ask for a copy of the agreement, and was not offered one. When asked why she did not ask for

a copy, Ms. LeShane replied:

Because of the way it was presented, I figured it was exactly what I had signed

before, and we had been certainly happy enough with the place.

Ms. LeShane also testified that she did not read the admissions agreement, but thought she was

“signing the same thing” as the 2001 agreement. She stated, “[i]t was just a readmission so my
The original oral arguments of this appeal were heard in January 2008, before a panel including Judge Frank 3

Crawford. Judge Crawford passed away on April 17, 2008, prior to resolution of the matter. Oral argument was

rescheduled for August 2008 in order that the matter could be reheard by a full panel of the Court. 

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mother wouldn’t be discharged.” Ms. LeShane also testified that she thought the only options she

had at the time she signed the agreement, the week before Thanksgiving, were to sign it or have Ms.

Brumley discharged from the facility.

The trial court denied Quince Nursing’s motion to compel arbitration by order entered June

8, 2007. In its order, the trial court found that Ms. LeShane had executed the admissions agreement

on behalf of her mother, Ms. Brumley; that the arbitration agreement was not a “take-it-or-leave it”

contract of adhesion; and that the arbitration agreement was not unconscionable. The trial court also

found, however, that Ms. Craft’s “customary explanation” of the arbitration agreement was

inaccurate, and that she had given an inaccurate explanation to Ms. LeShane. The court found that

Ms. Craft’s inaccurate explanation was not an act of fraud, but that she simply had been mistaken

in her understanding of the agreement. The trial court denied Quince Nursing’s motion to compel

arbitration on the basis of the inaccurate explanation. Quince Nursing filed a timely notice of appeal

to this Court, raising, as its sole issue:

Did the trial court err in denying Appellant’s motion to compel arbitration, which

was predicated upon an arbitration agreement that Merry LeShane, a daughter of

Winnie Brumley, signed for her mother in connection with her mother’s admission

to Appellant’s skilled nursing facility?

The matter was docketed for oral argument to be held August 28, 2008. On August 19, 3

2008, Ms. LeShane filed a motion to continue oral argument in order to permit the parties to brief

and argue the issue of authority in light of this Court’s holdings in Thornton v. Allenbrooke Nursing

and Rehabilitation Center, LLC, No W2007-00950-COA-R3-CV, 2008 WL 2687697 (Tenn. Ct.

App. July 3, 2008) and Ricketts v. Christian Care Center of Chetham County, Inc., No. M2007-

02036-COA-R9-CV, slip op. (Tenn. Ct. App. Aug. 15, 2008). Quince Nursing filed a motion in

opposition. We denied Ms. LeShane’s motion to continue but granted the parties additional time to

supplement their briefs with respect to the issue of authority. 

Upon review of the record, we note that the issue of authoritywas before the trial court where

counsel for Quince Nursing specifically questioned Ms. LeShane regarding her authority to sign the

admissions agreement. Accordingly, in light of the arguments made by the parties in response to our

order granting them additional time to supplement the issues on appeal with respect to the issue of

authority, we vacate the trial court’s order denying arbitration and remand for further proceedings

and findings with respect to whether Ms. LeShane had authority to execute the admissions agreement

on behalf of Ms. Brumley. Costs of this appeal are taxed one-half to the Appellee, Merry LeShane,
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as Next of Kin of Winnie Brumley, deceased, and one-half to the Appellant, Quince Nursing and

Rehabilitation Center, LLC and its surety, for which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE