Dale Supply, 2003 WL 22309461, at *3 (describing the conclusion as "incontestable") (citing Tenn. River Pulp & Paper Co. v. Eichleay Corp., 637 S.W.2d 853, 855 (Tenn. 1982) ("When a transaction clearly involves interstate commerce, the Act should apply equally in state and federal courts[.]"); Berkley v. H & R Block E. Tax Servs., Inc., 30 S.W.3d 341, 343 (Tenn. Ct. App. 2000) (applying the FAA to the arbitration agreement at issue); see also Guffy v. Toll Bros. Real Estate, No. M2003-01810-COA-R3CV, 2004 WL 2412627, at *5 (Tenn. Ct. App. Oct. 27, 2004) ("If, based on all of the relevant contract documents, the trial court determines that the parties did not expressly agree that the FAA would govern their arbitration agreement, the court must then go further and determine whether the FAA applies because the "contract evidenc[es] a transaction involving commerce," thereby bringing it within the ambit of the FAA[.]"). Because the contract in Dale Supply involved "the flow of goods, services, reports and payments between" two different states, the Court of Appeals concluded that the contract involved interstate commerce and was governed by the FAA. Dale Supply, 2003 WL 22309461, at *3 ("Since the Agreement between [the parties] involves interstate commerce, case law arising under the FAA applies to interpret the scope of the arbitration clause to determine whether [plaintiff's] tort claims . . . are arbitrable.").
The issues raised by STAT in this appeal center on Elite's claim in the trial court below that it was fraudulently induced to enter into the Contract with STAT, based on the alleged fraudulent misrepresentations by STAT representatives about STAT's experience in emergency room billing. Elite asserts that the Contract, and therefore the arbitration provision contained in the Contract, is voidable and unenforceable because of STAT's fraudulent misrepresentation. RESTATEMENT (SECOND) OF CONTRACTS § 164 (1981) (stating that a contract induced by a fraudulent misrepresentation is voidable by the recipient of the misrepresentation); see Guffy v. Toll Bros. Real Estate,Inc., No. M2003-01810-COA-R3-CV, 2004 WL 2412627, at *2 (Tenn. Ct. App. Oct. 27, 2004), no perm. app. (citing Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn. 1999)).
Although it appears that neither this Court nor our Supreme Court has had occasion to make this principle explicit, prior decisions have nonetheless illustrated the necessity of an evidentiary hearing when facts related to an arbitration agreement are disputed. See, e.g., Howell v. NHC Healthcare-Fort Sanders, Inc., 109 S.W.3d 731, 732-35 (Tenn.Ct.App. 2003) (discussing trial court's evidentiary hearing and findings); see also Raiteri v. NHC Heathcare/Knoxville, Inc., 2003 WL 23094413, at *4 (Tenn.Ct.App. Dec. 30, 2003); cf. Guffy v. Toll Bros. Real Estate, Inc., 2004 WL 2412627, at *6-7 (Tenn.Ct.App. Oct. 27, 2004) (remanding case to trial court for determination of additional facts). . . . .
Thus, any preemption argument has been waived. Cf. Guffy v. Toll Bros. Real Estate, Inc., No. M2003-01810-COA-R3-CV, 2004 WL 2412627, *5-7 (Tenn.Ct.App. Oct. 27, 2004) (case remanded for determination as to whether parties had agreed to be governed by the Federal Arbitration Act or the contract involved interstate commerce). The third case cited by THSI, Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn.
Although it appears that neither this Court nor our Supreme Court has had occasion to make this principle explicit, prior decisions have nonetheless illustrated the necessity of an evidentiary hearing when facts related to an arbitration agreement are disputed. See, e.g., Howell v. NHC Healthcare-Fort Sanders, Inc., 109 S.W.3d 731, 732-35 (Tenn.Ct.App. 2003) (discussing trial court's evidentiary hearing and findings); see also Raiteri v. NHC Heathcare/Knoxville, Inc., 2003 WL 23094413, at *4 (Tenn.Ct.App. Dec. 30, 2003); cf. Guffy v. Toll Bros. Real Estate, Inc., 2004 WL 2412627, at *6-7 (Tenn.Ct.App. Oct. 27, 2004) (remanding case to trial court for determination of additional facts). A case from California contains an instructive description of the principles involved in such proceedings as well as the shifting burden of proof.
In the absence of a contractual choice of law provision, however, the FAA is presumed applicable when interstate commerce is present. Guffy v. Toll Bros. Real Estate, Inc., No. M2003-01810-COA-R3-CV, 2004 WL 2412627, at *5 (Tenn.Ct.App. Oct. 27, 2004) ( no perm. app. filed) (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 278 (1995)). The contract in this case contains no choice of law provision.
This is because we have previously held that the FAA will govern either "(1) where the parties consented in the agreement that the FAA would apply, or (2) where the court determines that the contract `involv[es] [interestate] commerce.'" Guffy v. Toll Bros. Real Estate,Inc., No. M2003-01810-COA-R3-CV, 2004 WL 2412627, at *3 (Tenn.Ct.App. E.S., filed October 27, 2004) (no Tenn. R. App. P. 11 application filed) (emphasis added). Because the Agreement entered into between Flanary and the dealership provided, in no uncertain terms, that the FAA would govern "all claims, demands, disputes or controversies of every kind or nature" arising out of every aspect of the purchase of the vehicle, the parties consented to the application of the FAA.