Wade Harvey, Ex Rel. Alexis Breanna Gladden v. Cumberland Trust And Investment Company, Et Al.

37 Pages·2017·0.3 MB·English

by  Amy Park

10/20/2017
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
January 10, 2017 Session
WADE HARVEY, EX REL. ALEXIS BREANNA GLADDEN v.
CUMBERLAND TRUST AND INVESTMENT COMPANY, ET AL.
Appeal by Permission from the Court of Appeals
Circuit Court for Hamblen County
No. 12CV119 Thomas J. Wright, Judge
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No. E2015-00941-SC-R11-CV
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In this interlocutory appeal, the trustee of a trust executed an investment/brokerage
account agreement that included a provision requiring the arbitration of disputes. The
trust beneficiary filed a lawsuit asserting claims against the investment broker, and the
defendant broker sought to compel arbitration under the arbitration provision in the
account agreement. The trial court granted the motion to compel arbitration and granted
permission for this interlocutory appeal. The Court of Appeals reversed. On appeal, we
are asked to determine whether the signature of the trustee on the account agreement
binds the beneficiary of the trust to the predispute arbitration provision. We hold that the
Tennessee Uniform Trust Code is intended to give trustees broad authority to fulfill their
duties as trustee. We also hold that the Tennessee Uniform Trust Code gives trustees the
power to enter into predispute arbitration agreements, so long as doing so is not
prohibited under the operative trust instrument. We hold that the trust instrument in this
case gives the named trustee broad authority and does not prohibit the trustee from
entering into a predispute arbitration agreement. As a result, we interpret the trust
instrument as authorizing the trustee to execute the account agreement with the defendant
broker, including the predispute arbitration provision therein. Thus, under both the
Tennessee Uniform Trust Code and the operative trust instrument, the trustee had
authority to enter into the arbitration agreement contained within the account agreement.
The question of whether the trust beneficiary in this case is bound by the arbitration
provision is governed by the principle that a third party who seeks the benefit of a
contract must also bear its burdens. Applying this principle, the trust beneficiary in this
case may be bound to arbitrate claims against the investment broker that seek to enforce
the account agreement. We reverse the decision of the Court of Appeals and vacate the
trial court order compelling arbitration of all claims. We remand the case to the trial
court for further proceedings, including a determination as to which if any of the claims
asserted by the trust beneficiary seek to enforce the account agreement.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Case Remanded to the Trial Court
HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A.CLARK,SHARON G.LEE,andROGER A.PAGE, JJ., joined.
Mark D. Griffin and Will E. Routt, Memphis, Tennessee, for the appellants, Albert
Alexander, Jr., and Wunderlich Securities, Inc.
William Lewis Jenkins, Jr., Dyersburg, Tennessee, and F. Braxton Terry, Morristown,
Tennessee, for the appellee, Wade Harvey, Jr., ex rel. Alexis Breanna Gladden.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Trust Formation
The minor trust beneficiary in this case, Alexis Breanne Gladden, was born in
1997 to Shauna Gladden (a/k/a Shauna Lynn Harvey) (“Mother”) and Billy P. Gladden
(“Father”). When Alexis was eight months old, she was hospitalized with fever and
possible sepsis. In the hospital, there was apparently a delay in administering antibiotics
to Alexis. Complications ensued. Alexis endured a lengthy hospitalization and multiple
surgeries, including several amputations, and ended up significantly disabled.1
As a result, Mother filed a lawsuit in the Circuit Court for Hamblen County,
Tennessee, against the pediatric practice, the physicians, the hospital, and the nurses. The
lawsuit asserted that they were responsible for the catastrophic illness and injuries to
infant Alexis. All of the defendants initially denied liability.
In May 2001, Mother settled with the physicians and the pediatric practice for a
total of $1,000,000. In connection with its approval of the settlement, the circuit court
required the establishment of a trust for the benefit of Alexis to receive the settlement

1Eighteen months after this incident, Mother and Father divorced. Mother was awarded custody
of Alexis.
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proceeds. Pursuant to this directive, a trust instrument (“Trust Instrument”) was executed
and approved by the circuit court, establishing the Alexis Breanne Gladden Irrevocable
Trust (“Trust”). The Trust Instrument states that the Trust was created “as a means by
which trust assets may be held for the benefit” of Alexis, and recites an intent “to provide
a system for fiscal management, administration and disbursement, advocacy, care and
emotional guidance” for Alexis.2 As outlined below, the Trust Instrument gave the
Trustee broad authority to invest the trust assets and settle and arbitrate disputes.3
A.G. Edwards Trust Company, FSB (“A.G. Edwards”), was designated as the
Trustee. Slightly less than half of the proceeds from the settlement with the physicians
and the pediatric practice were paid to A.G. Edwards as the Trustee and ultimately
became the initial Trust assets. Of the remainder, $150,000 went to Mother individually,
and the balance was paid toward attorney fees and expenses.
Two months later, Mother settled with the hospital and the nurses for a total of
$3,350,000. Of this total, almost $2,100,000 was paid to the Trustee to pay into the
Trust, $130,000 was paid to Mother individually, and the rest went toward attorney fees
and expenses. Thus, the Trust received a total of almost $2,600,000 in settlement monies
for the benefit of Alexis.4
In October 2002, Mother successfully petitioned the circuit court to remove A.G.
Edwards as Trustee and appoint the Wilmington Trust Company (“Wilmington”) as the
successor Trustee, with Defendant/Appellant Albert M. Alexander, Jr., to serve as
financial advisor to the Trust. During Wilmington’s tenure as Trustee, the Trust

2 The stated objective in the Trust Instrument was to permit Alexis to “live as independently as
possible in a safe environment,” with a preference for Alexis to “live in a private residence with personal,
professional and financial assistance as needed” and avoid residing in an institutional setting.
3 The pertinent provisions of the Trust Instrument are discussed in the Analysis section of this
Opinion.
4The Trust Instrument named Alexis as the sole beneficiary of the Trust and recognized that she
would “require continuing support, assistance and supervision for the rest of her life.” Under the Trust
Instrument, Alexis was not the owner of the Trust property (except for income tax purposes) and would
have no access to either the principal or the income of the Trust. Instead, the Trustee was tasked with the
responsibility for determining the discretionary distributions of principal and income from the Trust.
Along the same lines, the trial court’s order provided for the settlement proceeds to be paid into the Trust
without transferring ownership of the settlement proceeds to Alexis.
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retained Defendant/Appellant Wunderlich Securities, Inc. (“Wunderlich”), to supervise
and direct some of the Trust assets.5
In 2004, again at Mother’s request, the circuit court removed Wilmington as
Trustee and appointed Cumberland Trust and Investment Company (“Cumberland”) in its
stead.6 Pursuant to Mother’s petition, the circuit court specified that Mr. Alexander
would remain as the financial advisor to the Trust. After Cumberland became the
Trustee, the Trust continued to invest Trust assets with Wunderlich.
Investment Account Agreement
In 2009, Cumberland entered into the agreement that contains the arbitration
clause that is the subject of this appeal. In July 2009, Cumberland and Wunderlich
executed a contract entitled “Pathways Client Agreement” (“Client Agreement”), under
which Cumberland engaged Wunderlich’s investment services for the Trust.7 The Client
Agreement identifies the Trust as the subject of the parties’ agreement and Alexis as the
beneficiary of the Trust. In addition, page one of the Client Agreement contains a notice
in bold letters that it includes a predispute arbitration agreement, and provides for the
parties to sign an acknowledgement that they received a copy of the arbitration
agreement.8 Following this notice are the signatures of the representatives of both

5 Wunderlich’s involvement with the Trust roughly coincided with the engagement of Mr.
Alexander as financial advisor to the Trust, and it is undisputed that Mr. Alexander was an employee of
Wunderlich. However, it is unclear in the record exactly when Mr. Alexander’s employment with
Wunderlich began; specifically, it is unclear whether Mr. Alexander was already employed by
Wunderlich at the time Wunderlich was retained to supervise and direct Trust assets. Regardless, the
parties do not dispute that Mr. Alexander was a registered representative of Wunderlich at all times
material to this lawsuit.
6 The change in trustees had no effect on the obligations of the Trustee under the Trust
Instrument. As noted below, the trial court’s October 12, 2004 order appointing Cumberland as successor
Trustee stated that Cumberland would have “all rights, powers, and privilege[s] and be subject to all of
the obligations and duties, both discretionary and ministerial” under the Trust Instrument. With approval
from the trial court, Cumberland, as Trustee, “completely” restated the Trust “to carry out the original
intention of the Court and the parties hereto.”
7 Wunderlich’s relationship with the Trust included contracts other than the Client Agreement
that also contained predispute arbitration clauses. Nevertheless, in this appeal, the Defendants appear to
rely only on the predispute arbitration clause contained in the Client Agreement, so our analysis is
confined to that contract.
8 The notice on page one of the Client Agreement states: “THIS AGREEMENT CONTAINS A
PREDISPUTE ARBITRATION CLAUSE LOCATED ON PAGE 5, SECTION 21. THE
UNDERSIGNED HEREBY ACKNOWLEDGESRECEIPT OF A COPY OF THIS AGREEMENT.” As
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Cumberland and Wunderlich, as well as the signature of Mr. Alexander as financial
advisor to the Trust.
Lawsuit Underlying This Appeal
For reasons that are not stated expressly in the record, in June 2011, the circuit
court appointed Alexis’s maternal grandfather, Plaintiff/Appellee Wade Harvey, Sr., as
the guardian of Alexis.9
Almost a year later, on May 10, 2012, Mr. Harvey, as next friend of Alexis
(“Plaintiff”), filed the lawsuit underlying this appeal in the Circuit Court of Hamblen
County, Tennessee. Among others, the amended complaint named as defendants
Cumberland, Mr. Alexander, and Wunderlich.10

discussed further below, in relevant part, the arbitration agreement on pages five and six of the Client
Agreement provides:
This Agreement contains a predispute arbitration clause. By signing an arbitration
agreement, the parties agree as follows: All of the parties to this Agreement are giving
up the right to sue each other in court, including the right to a trial by jury, except as
provided by the rules of the arbitration forum in which the claim is filed.
. . . .
It is agreed that all controversies or disputes which may arise between you and
Introducing Firm, Clearing Agent and any Sub-Advisor (and/or any other agent),
(collectively, “us”) concerning any transaction or the construction, performance or breach
of this Agreement or any other agreement between us, whether entered into prior to, on,
or subsequent to the date of this Agreement, including any controversy concerning
whether an issue is arbitrable, shall be determined by arbitration conducted before, and
only before, an arbitration panel set up by the Financial Industry Regulatory Authority
(“FINRA”) in accordance with its arbitration procedures. Any of us may initiate
arbitration by filing a written claim with FINRA. Any arbitration under this Agreement
will be conducted pursuant to the Federal Arbitration Act and the Laws of the State of
New York.
In another section, the Client Agreement states: “This Agreement is made and will be interpreted
under applicable federal law, including the Federal Arbitration Act and the laws of the State of New
York, regardless of choice of laws thereof.”
9Later events outlined below indicate the possible impetus for the appointment of Mr. Harvey as
guardian.
10 In addition, the Amended Complaint named the following defendants: Joi S. Chatman (a trust
officer at Cumberland), Wells Fargo & Company, Wells Fargo Advisors, LLC as successor in interest to
A.G. Edwards, Inc. d/b/a A.G. Edwards & Sons, Inc., A.G. Edwards, Inc., and A.G. Edwards & Sons, Inc.
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The complaint alleged that, after Mr. Harvey was appointed as Alexis’s guardian
in June 2011, he discovered that the Trust funds had been drastically depleted. The
complaint noted that, until approximately 2008, the Trust had retained a corpus totaling at
least $2,300,000. Soon, however, the Trust assets began to be “recklessly depleted.”
According to Plaintiff, during 2009, there were $578,000 in disbursements from the
Trust. The rate of depletion accelerated during 2010. That year, there were $886,000 in
disbursements, some of which went to build a large five-bedroom house on seven acres
of land, an expenditure that the complaint characterized as being of “no use” to Alexis.
The end result, the complaint alleged, was reduction of the Trust corpus to less than
$200,000.
The complaint asserted that Wunderlich and Mr. Alexander (together
“Defendants”) had breached a number of duties to Alexis. These included their fiduciary
duty in investing Trust monies; their duty to either disclose conflicts of interest or
withdraw in the event of such conflicts; and their duty to act in Alexis’s best interest and
safeguard the Trust monies. Among other things, the complaint asserted that the
Defendants failed to disclose facts material to their decision-making; failed to properly
oversee the Trust assets and disbursements; negligently mismanaged Trust funds; gave
negligent investment advice to the Trust; misappropriated Trust funds; engaged in
deceptive and unfair trade practices under the Tennessee Consumer Protection Act; and
fraudulently allowed Trust monies to be used on purchases that had no value to Alexis,
resulting in the near complete depletion of the Trust monies.
As to Mr. Alexander, the complaint alleged that he entered into an inappropriate
relationship with Mother, “which led to the unscrupulous spending” of Trust monies
intended to benefit Alexis. In turn, the complaint asserted, the other defendants
negligently failed to monitor Mr. Alexander, who held himself out as an investment
advisor. The complaint alleged that Mr. Alexander advised Mother to change from
trustee to trustee, which facilitated their manipulation of the Trust to accomplish their
personal desires. As relief, the complaint sought a complete accounting of the Trust
funds and an award of compensatory damages “in an amount no less than $3,925,000.”
Cumberland filed an answer to Plaintiff’s amended complaint.11 Wunderlich and
Mr. Alexander jointly filed a notice of appearance followed by a motion to compel
arbitration and stay all court proceedings.

In November 2012, Plaintiff took a voluntary nonsuit without prejudice as to Wells Fargo & Company,
Wells Fargo Advisors, LLC, as successor in interest to A.G. Edwards, Inc., d/b/a A.G. Edwards & Sons,
Inc., A.G. Edwards, Inc., A.G. Edwards & Sons, Inc.
11Co-defendant and Cumberland trust officer Joi Chatman filed a joint answer with Cumberland.
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In February 2013, the trial court granted the motion to compel arbitration and stay
all proceedings.12 The Plaintiff filed a motion for permission to seek an interlocutory
appeal from the order compelling arbitration, pursuant to Rule 9 of the Tennessee Rules
of Appellate Procedure. See Tenn. R. App. P. 9. In the motion, the Plaintiff argued that
the Trustee had no authority to execute a predispute arbitration agreement or waive the
right to a jury trial, and that the arbitration agreement was not enforceable against the
beneficiary of the Trust. The Defendants opposed the Plaintiff’s request for permission
for interlocutory appeal.
On July 11, 2013, Alexis died. In September 2013, all parties consented to
substitute Mr. Harvey as Plaintiff in the lawsuit. Mr. Alexander and Wunderlich added a
proviso that their consent to substitute parties should not be construed as a waiver of their
right to have the disputes arbitrated.
In December 2014, the trial court held a hearing on the Plaintiff’s request for
permission to seek an interlocutory appeal and on May 8, 2015, the trial court granted
permission for the appeal. In its order, the trial court stated the reason it granted
permission for the appeal as well as the question certified:
[A]lthough this Court granted Defendants’ motion to compel arbitration
based on the facts and arguments presented by the parties and controlling
precedent under Tennessee law, the Court is not aware of a Tennessee case
directly on point addressing the precise issue of whether the signature of a
trustee on an investment/brokerage account agreement may bind a
beneficiary of a trust to conduct arbitration. The parties presented
conflicting authority from out of state on this precise issue in connection
with the motion to compel arbitration. If resolution of that particular issue
would be dispositive of whether or not an arbitrator had authority to hear

12 Also in February 2013, Plaintiff filed a motion to compel the payment of benefits to Mr.
Harvey for the care of Alexis. The motion alleged that the home built with Trust monies had been sold at
auction but that the Plaintiff had been provided no information about the sale or its proceeds. The motion
further asserted that the handicap-accessible van purchased by the Trust for Alexis, used to transport her
to numerous medical appointments, had been repossessed because the Trust did not properly title and
register the vehicle. Without the van, the motion said, Mr. Harvey was forced to physically pick up
Alexis and move her in and out of his car in order to transport her. Despite the substantial expenses
associated with providing Alexis twenty-four-hour-a-day care in all aspects of her life, and despite an
explicit request for payment from the Defendants, the motion alleged, during the preceding twenty-one
months Mr. Harvey had been caring for Alexis, he received no funds or assistance from the Trust other
than a single $1,500 payment to cover some expenses.
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this case, then an interlocutory appeal at this point will assist in potentially
reducing needless litigation.

As required under Rule 9, the Court of Appeals granted permission for the appeal
as well. See Tenn. R. App. P. 9. The Court of Appeals stated that it granted permission
for appeal on “the sole issue of whether the signature of the trustee on an
investment/brokerage account agreement agreeing to arbitration binds the Minor
beneficiary of the Trust to conduct arbitration of unknown future disputes and claims.”
Gladden v. Cumberland Trust & Inv. Co., No. E2015-00941-COA-R9-CV, 2016 WL
1166341, at *4 (Tenn. Ct. App. Mar. 24, 2016).
The Court of Appeals decided the issue based on its construction of the language
in the Trust Instrument. It acknowledged that the Trust Instrument gives the Trustee the
right to “settle, by compromise, arbitration or otherwise any and all claims and demands.”
Id. at *5. The intermediate appellate court observed: “[W]ithout question the trustee has
the right under the Trust [Instrument] to agree to arbitration binding the Minor
beneficiary as to claims or demands once they have arisen.” Id. However, it construed
the word “claim” as used in these provisions as referring only to existing claims, not
“disputes that have not yet arisen.” Id. On this basis, the Court of Appeals reasoned that
the phrase “any and all” in the Trust Instrument did not modify “claims and demands” to
refer to disputes “not yet in existence.” Id. It concluded that the Trust Instrument “does
not provide that the trustee has the right to agree to arbitration prior to a claim or demand
arising,” so the Trustee’s signature on the Client Agreement did not bind Plaintiff to
arbitrate the disputes with Wunderlich. Id. at *6. Accordingly, the Court of Appeals
reversed the trial court’s order compelling arbitration. Id.
The Defendants applied to this Court for permission to appeal, which was granted.
ISSUES ON APPEAL AND STANDARD OF REVIEW
In this case, the trial court granted permission to appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure. See Tenn. R. App. P. 9. As required under
Rule 9, the Court of Appeals granted permission for the appeal as well. Id. The scope of
the issues that may be considered in a Rule 9 appeal differs from the scope of the issues
that may be raised in an appeal as of right under Rule 3 of the Tennessee Rules of
Appellate Procedure:
Unlike an appeal as of right under Tennessee Rule of Appellate Procedure
3, in which both the appellant and the appellee have broad latitude with
regard to the issues that may be raised, “[w]hen dealing with an
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interlocutory appeal, the Court can and will deal only with those matters
clearly embraced within the question certified to it.”
Young v. City of LaFollette, 479 S.W.3d 785, 789 (Tenn. 2015) (quoting Tenn. Dep’t of
Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975)).
In their request to this Court for permission to appeal, the Defendants ask the
Court to consider several issues.13 As required under our Rules, we focus on the question
certified by the trial court in its order granting permission to seek an interlocutory appeal,
in the Court of Appeals order granting the appeal, and “‘matters clearly embraced within
the question certified’” to us. Young, 479 S.W.3d at 789 (quoting Hughes, 531 S.W.2d at
300). The trial court certified the question of “[W]hether the signature of a trustee on an
investment/brokerage account agreement may bind a beneficiary of a trust to conduct
arbitration.” The Court of Appeals stated the question similarly: “whether the signature
of the trustee on an investment/brokerage account agreement agreeing to arbitration binds
the Minor beneficiary of the Trust to conduct arbitration of unknown future disputes and
claims.” Gladden, 2016 WL 1166341, at *4. We consider the issues the Defendants seek
to raise only to the extent that they are embraced within the question certified below.
This appeal arises from the trial court’s order granting the motion to compel
arbitration. We review the enforcement of an arbitration agreement de novo, with no
presumption of the correctness of the lower courts’ rulings. Rosenberg v. BlueCross
BlueShield of Tenn., Inc., 219 S.W.3d 892, 903 (Tenn. Ct. App. 2006) (citing Cooper v.
MRM Inv. Co., 367 F.3d 493, 497 (6th Cir. 2004)). “A trial court’s 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.” Id.; see also Great
Earth Cos. v. Simons, 288 F.3d 878, 888 (6th Cir. 2002) (review of a lower court’s ruling
compelling arbitration is de novo).
In order to resolve the arbitration issue in this case, we must construe the Trust
Instrument and applicable statutory provisions. These issues also present questions of

13 In the Defendants’ application for permission to appeal to this Court, they seek to raise three
questions for our review: (1) whether the finding by the Court of Appeals “that a trustee cannot agree to
arbitrate future or unknown disputes is in conflict with the Tennessee Uniform Trust Code and Tennessee
case law and accordingly in error;” (2) whether the Court of Appeals “applied the wrong standard to the
question of the powers granted to trustees under the Tennessee Uniform Trust Code by not considering
whether the trust agreement at issue in this instance ‘expressly provided’ that the trustee could not agree
to arbitrate future or unknown disputes;” and (3) whether the Court of Appeals “erred when it found that
the language of the trust agreement at issue in this instance did not provide the trustee with the power to
agree to arbitration of unknown future claims or disputes.” Pet’rs’ Appl. Perm. to Appeal 2, May 23,
2016.
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law, reviewed de novo with no presumption that the lower courts’ rulings are correct.
See BSG v. Check Velocity, Inc., 395 S.W.3d 90, 92 (Tenn. 2012) (“The interpretation of
a written contract is a question of law, which we review de novo.”); Marks v. S. Trust
Co., 310 S.W.2d 435, 437-38 (Tenn. 1958) (trust instruments should be construed and
interpreted similarly to contracts and wills); Presley v. Hanks, 782 S.W.2d 482, 487
(Tenn. Ct. App. 1989) (“[C]onstruction of a will is a question of law for the court . . . .”).
We must also construe applicable statutory provisions. Am. Heritage Apartments, Inc.
v. Hamilton Cnty. Water & Wastewater Treatment Auth., 494 S.W.3d 31, 40 (Tenn.
2016) (“We review the interpretation of the statutes by the lower courts de novo, with no
presumption of correctness.”).
ANALYSIS
The parties to this appeal approach the issues from very different vantage points.
Appellant/Defendants Wunderlich and Mr. Alexander contend that the governing Act, the
Tennessee Uniform Trust Code, Tennessee Code Annotated sections 35-15-101 through
35-15-1206 (2015), grants trustees broad authority and allows a trustee to enter into
predispute arbitration agreements unless the governing trust instrument expressly
provides that the trustee does not have such power. Wunderlich and Mr. Alexander
maintain that the Trust Instrument does not prohibit the Trustee from entering into
predispute arbitration agreements, so the Trustee had authority to do so. They contend
that Appellee-Plaintiff Mr. Harvey, on behalf of Alexis, is bound by the arbitration
agreement executed by Wunderlich and the Trustee, so all of the claims asserted in this
lawsuit must be arbitrated.
In response, Plaintiff contends that Tennessee trust law gives trustees only the
powers expressly granted in the governing trust instrument. Plaintiff agrees with the
Court of Appeals’ approach and maintains that the Trust Instrument in this case only
grants the Trustee authority to enter into arbitration after the subject claim has arisen.
Plaintiff also argues that neither the Tennessee Uniform Trust Code nor the Trust
Instrument permits the Trustee to waive the right to a jury trial and enter into predispute
arbitration agreements. Entering into a predispute arbitration agreement and thereby
waiving future rights, Plaintiff insists, amounts to a breach of the Trustee’s fiduciary duty
to act in utmost good faith. Finally, Plaintiff argues that the arbitration agreement
between the Trust and Wunderlich is not binding on the Trust beneficiary because: (1) the
Trustee was not the agent of the Trust beneficiary; (2) the Plaintiff did not sue to enforce
the contract containing the arbitration agreement; and (3) Alexis was a minor.
Resolution of the issues presented in this appeal requires us to interpret the
Tennessee Uniform Trust Code and the Trust Instrument. To provide necessary
background and context for discerning the legislature’s intent and purpose in adopting the
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