Analysis: A recent Tennessee Court of Appeals decision discussed the viability of a contract that had a one-sided arbitration provision. The Tennessee Court of Appeals decision of Richard A. Berent v. CMH Homes, Inc., 2014 WL 813874 (Tenn. Ct. App. 2014) dealt with an arbitration agreement that required the purchaser of a manufactured mobile home to submit virtually all of the buyer’s potential claims to arbitration. On the other hand, the same contract provided certain exceptions to the “mandatory” arbitration that exclusively benefited the mobile home manufacturer. The effective result was that the purchaser of the mobile home had to submit virtually all of his claims to arbitration whereas the seller of the manufactured mobile home could pursue judicial relief for many claims.
As a result, the question before the Court was whether this arbitration requirement was unconscionable and therefore unenforceable under Tennessee law. Previously in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004) the Tennessee Supreme Court held that an arbitration agreement was unconscionable when it reserves the “right to a judicial forum for the defendants while requiring the plaintiff to submit all claims to arbitration.” Taylor at 280. In the Berent case the Tennessee Court of Appeals applied the Taylor reasoning and found that this arbitration agreement was unconscionable. As a result, this Tennessee Court of Appeals decision reaffirmed the applicability of the Taylor decision finding that it is improper in Tennessee for any arbitration agreement to selectively decide that one party has access to a judicial remedy while the other party only has access to an arbitration remedy.
Interestingly, the defendants in this case attacked the viability of the Supreme Court’s holding in Taylor from 2004. The defendants asserted in this case that Taylor is no longer in the legal majority across the country and that this decision should be overruled (in fact they assert this holding is only accepted in a “small minority” of jurisdictions). Obviously, the Tennessee Court of Appeals declined to overrule a Tennessee Supreme Court decision and specifically stated that such an issue must be directed to the Tennessee Supreme Court. I expect this case will be appealed to the Tennessee Supreme Court and we will get some indication from the Tennessee Supreme Court if it agrees with the changing tide across the country on this issue. I strongly suspect that the current Tennessee Supreme Court will not change the Taylor holding and will not grant certiorari on this issue. I would be very surprised if they did take another look at this issue at this time.
Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.