EFTA Document EFTA01368179

Page 6 of 32 trial. Mitchell v. Kindred Healthcare Operating, Inc., 349 S.W.3d 492, 496 (Tenn. Ct App. 2008). As vie observed in Rosenberg v. BlueCross BlueShield of Tenn.. Inc., 219 S.W.3d 892, 903-04 (Tenn. Ct. App. 2006). La's a general rule, a courts enforcement of an arbitration provision is reviewed de novo. See Cooper v. MRM Inv. Co.. 367 F.3d 493, 497 (6th Cir. 2004). A trial courts order on a motion to compel arbitration addresses itself primarily to the application of contract law. We review such an order with no presumption of correctness on appeal. See Pybum v. Bill Heard Chevrolet. 63 S.W.3d 351, 356 (Tenn. Ct. App. 2001): see also Nelson v. Wal-Mart Stores. Inc., 8 S.W.3d 625, 629 (Tenn. 1999). However, to the extent that findings of fact are necessary concerning the "cost-prohibitive" nature of the arbitration sought, these findings come to us with a presumption of correctness absent a preponderance of evidence to the contrary. Tenn. R. App. P. 13(d); T.R. Mills Contractors v. WRH Enterprises, LLC et at. 93 S.W.3d 861, 864 (Tenn. Ct. App. 2002). Trigg v. Little Six Corp. 457 S.W.3d 906. 911 (Tenn. Ct. App. 2014). We granted this Tenn. R. App. P. 9 interlocutory appeal on the sole issue of whether the signature of the trustee on an investmentibrokerage account agreement agreeing to arbitration binds the Minor beneficiary of the Trust to conduct arbitration of unknown future disputes and claims. As this Court has explained: Trust instruments are interpreted similarly to contracts, deeds, or 6 wills. Marks v. Southern Trust Co.. 203 Tenn. 200, 205.310 S.W.2d 435, 437-38 (1958). Determining the senior's intent is important and may be easily done by looking to the four corners of the trust instrument. Marks v. Southern Trust Co., 203 Tenn. at 205, 310 S.W.2d at 438. Unless the trust instrument is ambiguous or allegations of fraud, accident or mistake have been made, parol evidence or evidence of surrounding facts and circumstances that contradicts or varies the terms of a written instrument may not be considered. HMF Trust v. Bankers Trust Co.. 827 S.W.2d 296.299 (Tenn. Ct. App. 1991): Brown v. Brown. 45 Tenn. App. 78. 95. 320 S.W.2d 721. 728 (1959). In re: Estate of Marks, 187 S.W.3d 21,28 (Term. Ct. App. 2005). With regard to interpretation of contracts. this Court has explained: In resolving a dispute concerning contract interpretation, our task is to ascertain the intention of the parties based upon the usual. natural, and ordinary meaning of the contract language. Planters Gin Co. v. Fed, Compress & Warehouse Co.. Inc.. 78 S. W.34 885. 889-90 (Tenn 2002)(citing Guiliano v. Cleo. Inc., 995 S.W2d 88. 95 (Tenn. 1999)). A determination of the intention of the parties "is generally treated as a question of law because the words of the contract are definite and undisputed, and in deciding the legal effect of the words, there is no genuine factual issue left for a jury to decide." Planters Gin Co., 78 S. W.341 at 890 (citing 5 Joseph M. Perillo, Corbin on Contracts, 124.30 (rev. ed. 1998): Doe v. HCA Health Servs. of Tenn.. Inc.. 46 S.W.3d 191. 196 (Tenn. 2001)). The central tenet of contract construction is that the intent of the contracting parties at the time of executing the agreement should govern. Planters Gin Co., 78 S.W.3d at 890. The parties' intent is presumed to be that specifically expressed in the body of the contract. "In other words. the object to be attained in construing a contract is to ascertain the meaning and intent of the parties as expressed in the language used and to give effect to such intent if it does not conflict with any rule of law, good morals, or public policy." Id. (quoting 17 Am.Jur.2d, Contracts, 1245). This Court's initial task in construing the Contract at issue is to determine whether the language of the contract is ambiguous. Planters Gin Co., 78 S.W.3d at 890. If the language is clear and unambiguous, the literal meaning of the language controls the outcome of the dispute. Id. A contract is ambiguous only when its meaning is uncertain and may fairly be understood in more than one way. Id. (emphasis added). If the contract is found to be ambiguous, we then apply established rules of construction to 7 determine the intent of the parties. Id. Only if ambiguity remains after applying the pertinent rules of construction does the legal meaning of the contract become a question of fact_ Id. Kafozi v. Windward Cove, LLC, 184 S.W.3d 693. 698-99 (Tenn. Ct. App. 2005). When interpreting the Trust Agreement, we must take care not to render any of the language superfluous by our interpretation. As this Court explained in Associated Press v. WGNS It is the universal rule that a contract must be viewed from beginning to end and all its terms must pass in review, for one clause may modify, limit or illuminate another. As is said in 6 RC L. page 838 under the title "Contracts". 'Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized if that course is reasonably possible. Each of its provisions must be considered in connection with the others. and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. The courts will look to the entire instrument, and, if possible, give such construction that each clause shall have some effect, and perform some office' Associated Press v. WGNS Inc., 348 S.W.2d 507, 512 (Tenn. Ct. App. 1961) (citation omitted). https://www.lexisnexis.com/dd/delivery/PmtDoc.do?jobHandle=1825:640721064&dnldFil... 4/30/2018 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0059845 CONFIDENTIAL SDNY GM_00206029 EFTA01368179