text:
    WILLIAMS HOLDING COMPANY, d/b/a Raleigh Hills Apartments v. Sharon T. WILLIS, et al.
    Supreme Court of Tennessee, at Jackson.
    April 6, 2005 Session.
    July 1, 2005.

      James W. Cook, Memphis, Tennessee, for the Appellant, Williams Holding Company d/b/a Raleigh Hills Apartments.
    Bruce D. Brooke, Memphis, Tennessee, for the Appellee, Joe Leavy.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, Jr., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ„ joined.

We granted this appeal to determine whether a defendant who was found 100% at fault in a negligence action submitted to arbitration was liable for the full amount of the plaintiffs damages where the plaintiff had already received half of the amount of damages in a settlement with another defendant. The Court of Appeals concluded that the arbitrator had exceeded his scope of authority by requiring the defendant to pay the full amount of damages and modified the judgment. After reviewing the record and applicable authority, we conclude that the trial court correctly determined that the arbitrator did not exceed his authority and that the defendant was not entitled to. a credit based on the amount of damages received by the plaintiff in a settlement. Accordingly, the Court of Appeals’ judgment is reversed, and the trial court’s judgment is reinstated.

Background

In March of 1995, the plaintiff, Williams Holding Company, filed a complaint in the Circuit Court for Shelby County, Tennessee, alleging negligence against the defendants, Sharon Willis, Antorio, Brown, and Joe Leavy, which resulted in damage to the plaintiffs improved real property. The evidence is summarized below.

The negligence complaint alleged that on August 11, 1992, Sharon Willis left her twelve-year-old son, Antorio Brown, and his twelve-year-old friend, Joe Leavy, in her apartment at 4205 Ann Arbor in Memphis, Tennessee, which was leased from the plaintiff, Williams Holding Company. According to the complaint, Leavy accidentally turned on the stove while using the microwave, which caused a pan of grease on the stove to catch fire. The fire spread throughout the apartment and into adjoining apartments owned by the plaintiff, Williams Holding Company.

Defendants Sharon Willis and Antorio Brown filed an answer denying that they were negligent. Likewise, defendant Leavy filed an answer denying that he was negligent.

The parties agreed to submit the litigation to arbitration, and the trial court ordered arbitration on May 28,1997. Before the arbitration hearing was held, the plaintiff, Williams Holding Company, reached a settlement with defendants Sharon Willis and Antorio Brown. Under the settlement, Willis and Brown agreed to pay 50% of the damages caused by the fire, i.e., $36,707.32, plus court costs. A consent order was entered by the trial judge dismissing defendants Willis and Brown from the arbitration.

During the arbitration hearing held on December 1, 1998, the plaintiff, Williams Holding Company, and the remaining defendant, Joe Leavy, stipulated that the plaintiff’s damages caused by the fire totaled $73,414.64, and that defendants Willis and Brown had paid one-half of the plaintiff’s damages in their settlement agreement. The arbitrator stated that because the full amount of the plaintiff’s damages had been stipulated, “the issue to determine is the degree of negligence, if any, of the defendant, Joe Leavy.”

The plaintiff introduced into evidence the fire marshal’s investigative field report during the arbitration hearing. The report stated that the “fire started when the eye beneath a skillet of grease was accidentally left on.” The report further stated that Brown told investigators that he and Leavy had been using the microwave when Leavy “bumped into the control knobs of the stove and accidentally turnfed] the eye on beneath a skillet with grease in it.” Finally, the report said that Leavy “accidentally, bumped .into the stove’s control knobs” and then “attempted to turn the eye off but evidently did not.”

The plaintiff also introduced the testimony of Leonard Richmond, the manager of the apartment complex. Richmond testified that defendant Sharon Willis had made numerous complaints about her apartment and had requested several repairs. Richmond further testified, however, that Willis had never complained of problems with the stove.

Defendant Leavy testified at the arbitration hearing that he had accidentally turned on the stove and then tried to turn it off. Leavy also testified that Brown told him there had been trouble with the control knob and that Brown said he would check on it. Leavy testified that he and Brown left the apartment to go skateboarding near the apartment complex. On cross-examination, however, Leavy admitted he had told fire marshal investigators that he and Brown had left the apartment to go swimming.

The arbitrator found that “the most credible version of what occurred on the date of this fire [was] the one contained in the report of [the fire marshal].” Further, the arbitrator found that

The facts as stated in the [fire marshal’s] report reflect that the defendant, Joe Leavy, bumped into the stove at which time the eye was turned on, and he attempted to turn it off, but evidently, he did not.... It is therefore, the opinion of the arbiter that the defendant, Joe Leavy, was negligent and was responsible for the fire in question and resulting damages.

The arbitrator also concluded that “the defendant, Joe Leavy, is responsible for 100 percent of the damages as stipulated, to-wit, $73,414.64.”

Following the arbitrator’s decision on March 4, 1999, defendant Leavy filed a motion to vacate, modify or correct the arbitration award with the trial court. The motion requested the trial court to grant a credit or set-off for the amount the plaintiff received under the plaintiffs settlement with defendants Willis and Brown. In denying the motion on March 29, 1999, the trial court reasoned:

[A] defendant ... is not entitled to receive credit for some settlement which the plaintiff has made with a third party, either before or during the pendency of the lawsuit. The defendant must pay his pro rata share of his legal responsibility for whatever the damages may be.... [Defendant Leavy was found by the arbitrator to be 100% responsible for the damage to the building. Therefore, there is no reason for him to receive any credit for any other sums which the plaintiff has been able to obtain.

Defendant Leavy’s notice of appeal was filed on April 27, 1999. On August 17, 2004, the Court of Appeals reversed the trial court, concluding that the arbitrator had exceeded his authority by requiring defendant Leavy to pay the plaintiffs damages in full where it was stipulated that defendants Willis and Brown had paid one-half of the plaintiffs damages, i.e., $36,707.32. The intermediate appellate court then modified the arbitration award to require Leavy to pay only $36,707.32, instead of the full amount of the property damage suffered by the plaintiff, i.e., $73,414.64.

We granted this appeal.

Analysis

The plaintiff, Williams Holding Company, argues that the Court of Appeals erred in concluding that the defendant, Joe Leavy, who was found 100% at fault, was entitled to a credit for the amount the plaintiff received in a settlement with defendants Willis and Brown. Defendant Leavy responds that the Court of Appeals properly concluded that the arbitrator exceeded his authority by requiring him to pay the full amount of the plaintiffs damages.

Standard of Review

We begin our review with the well-established principle that “courts should play only a limited role in reviewing the decisions of arbitrators.” Arnold v. Morgan Keegan & Co., 914 S.W.2d 445, 448 (Tenn.1996). The statutory provisions of the Uniform Arbitration Act “limit severely the trial court’s authority to retry the issues decided by arbitration.” Id. at 448 (emphasis added); see also Tenn.Code Ann. § 29-5-301 et seq. (2000). Likewise, when reviewing a trial court’s decision in an arbitration case, an appellate court “should review findings of fact under a ‘clearly erroneous’ standard” and should review questions of law “with the utmost caution, and in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” Arnold, 914 S.W.2d at 449-50.

Scope of Arbitrator’s Authority

The Uniform Arbitration Act states that a trial court “shall confirm an [arbitration] award, unless ... grounds are urged for vacating or modifying or correcting the award.” Tenn-Code Ann. § 29-5-312 (2000). One such ground for vacating an award, which is urged by the defendant in this case, states that an arbitration award shall be vacated by the trial court where “[t]he arbitrators exceeded their authority.” Tenn.Code Ann. § 29 — 5—313(a)(3).

As this Court has said, “the scope of the arbitrator’s authority is determined by the terms of the agreement between the parties which includes the agreement of the parties to arbitrate the dispute.” D & E Constr. Co. v. Robert J. Denley Co., 38 S.W.3d 513, 518 (Tenn.2001) (quoting Int’l Talent Group, Inc. v. Copyright Mgmt., Inc., 769 S.W.2d 217, 218 (Tenn.Ct.App.1989)); see also Arnold, 914 S.W.2d at 450 (stating that the scope of arbitrator’s authority is granted by the arbitration agreement). Arbitrators exceed their authority when they decide an issue that is not within the scope of the agreement to arbitrate. D & E Constr. Co., 38 S.W.3d at 518.

In the present case, the record does not contain a specific arbitration agreement between the plaintiff and any of the defendants. Instead, the trial court stated in a consent order that “the parties have agreed to arbitrate this matter.”

At the beginning of the arbitration hearing, plaintiff Williams Holding Company and defendant Leavy stipulated that the plaintiffs full damages totaled $73,414.64 and that the plaintiff already had settled its claim against defendants Willis and Brown for $36,707.32. During the arbitration hearing, the plaintiff sought the entire amount of damages on the basis that defendant Leavy was 100% at fault. Defendant Leavy, on the other hand, argued that he was not at fault. After the hearing, the arbitrator found that defendant Leavy “was negligent” and was “responsible for 100 percent of the damages.”

After reviewing the record, we conclude that the arbitrator did not exceed his scope of authority. The issue of awarding the full amount of the plaintiffs damages, i.e., $73,414.64, was before the arbitrator. The issue of determining the percentage of defendant Leavy’s fault in causing the damages was likewise before the arbitrator. Although the parties had stipulated that the plaintiff received one-half of the damages in a settlement with defendants Willis and Brown, nothing limited the arbitrator’s authority to find that defendant Leavy was not at fault or was only 50% at fault in causing the plaintiffs damages, or that he was not liable at all or liable for only $36,707.32. Accordingly, we hold that the arbitrator did not exceed his scope of authority by finding that defendant Leavy was 100% at fault and thus liable for the full amount of the plaintiff’s damages.

In reaching this conclusion, we disagree with defendant Leavy’s position, and the Court of Appeals’ conclusion, that the arbitrator exceeded his scope of authority or that the trial court “clearly erred” by refusing to grant defendant Leavy a credit based on the amount the plaintiff received in the settlement with defendants Willis and Brown.

Our conclusion is based on the fact that there is no authority in Tennessee that supports defendant Leavy’s argument that a non-settling defendant who is found 100% at fault is entitled to a credit or set-off for the amounts paid to the plaintiff by other settling defendants. To the contrary, under principles of comparative fault, a non-settling defendant is not entitled to a credit for amounts paid by a settling defendant because the non-settling defendant is required to pay damages based on his or her percentage of fault. Varner v. Perryman, 969 S.W.2d 410, 413 (Tenn.Ct.App.1997); see also McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn.1992) (emphasizing that the goal of comparative fault is to link one’s liability to one’s degree of fault).

Although defendant Leavy places great emphasis on the need to avoid granting a windfall to the plaintiff, the mere possibility that plaintiffs may, by settling with some defendants, receive more than their actual damages does not change the fact that non-settling defendants are obligated to pay damages based on the percentage of their fault. As the United States Supreme Court has explained:

we must recognize that settlements frequently result in the plaintiffs getting more than he would have been entitled to at trial. Because settlement amounts are based on rough estimates of liability, anticipated savings in litigation costs, and a host of other factors, they will rarely match exactly the amounts a trier of fact would have set. It seems to us that a ‘plaintiffs good fortune in striking a favorable bargain with one defendant gives other defendants no claim to pay less than their proportionate share of the total loss. In fact, one of the virtues of the proportionate share rule is that ... it does not make a litigating defendant’s liability dependent on the amount of a settlement negotiated by others without regard to its interests.

McDermott, Inc. v. AmClyde, 511 U.S. 202, 219-20, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994) (emphasis added).

In addition, there is no authority in Tennessee that supports defendant Leavy’s claim that a credit is appropriate under a theory of contribution. A statutory “right of contribution exists only in favor of a tort-feasor who has paid more than the proportionate share of the shared liability between two (2) or more tort-feasors for the same injury....” Tenn.Code Ann. § 29-ll-102(b) (2000) (emphasis added). In such cases, “the tort-feasor’s total recovery is limited to the amount paid by the tort-feasor in excess of this proportionate share.” Id.

Here, the arbitrator found defendant Leavy to be 100% at fault in causing the plaintiffs damages. As a result, requiring Leavy to pay 100% of the plaintiffs total damages does not result in him paying more than his proportionate share. Instead, his liability is linked to his percentage of fault under the principles of comparative fault. McIntyre, 833 S.W.2d at 58.

Conclusion

After reviewing the record and applicable authority, we conclude that the arbitrator did not exceed his authority in determining that defendant Leavy was 100% at fault and hable for the full amount of the plaintiffs damages. • We further conclude that defendant Leavy was not entitled to' a credit based on the amount received by the plaintiff in a settlement with other defendants. Accordingly, the Court of Appeals’ judgment is reversed and the trial court’s judgment is reinstated. Costs of appeal are taxed to the defendant, Joe Leavy, for which execution shall issue if necessary.

      . The record on appeal contains the plaintiff's complaint, the defendants’ answers, and the pleadings filed in the trial court. Although the record does not contain a verbatim transcript of the arbitration proceeding, the plaintiff and defendant Leavy submitted statements of the evidence as to the events that transpired during arbitration.

      . We are concerned about the delay in resolving this 1992 dispute. The negligence complaint for property damage was filed in March of 1995. The trial court ordered arbitration more than two years later on May 28, 1997. The arbitration hearing occurred eighteen months later on December 1, 1998, and the arbitration decision was filed three months later on March 4, 1999. After the trial court affirmed the award, notice of appeal was filed in April of 1999. For reasons that are not evident in the appellate record, over four years passed before the arbitrator approved the statement of the record, and the trial court authenticated the statement of the evidence for the record on appeal on September 9, 2003. Less than one year later, on August 17, 2004, the Court of Appeals’ opinion was issued. In all, thirteen years have passed since the incident occurred in 1992, and ten years have passed since the negligence complaint was filed. All courts have a responsibility to manage their dockets efficiently and when arbitration is ordered, to assure and supervise its timeliness.

      . See Tenn.Code Ann. § 29-5-313 (2000) (grounds for vacating arbitration award); Tenn.Code Ann. § 29-5-314 (2000) (grounds for modifying or correcting arbitration award).

      . At the time the order was entered, the plaintiff had not reached a settlement with defendants Willis and Brown.


source: Caselaw Access Project

author: E. RILEY ANDERSON, J., JANICE M. HOLDER, J.,

license: Public Domain

text:
    Shirley HALE v. Erwin OSTROW, et al.
    Supreme Court of Tennessee, at Jackson.
    April 6, 2005 Session.
    July 1, 2005.

      Stephen R. Leffler, Memphis, Tennessee, for the Appellant, Shirley Hale.
    Gary R. Wilkinson and Matthew S. Russell, Memphis, Tennessee, for the Appel-lees, Erwin Ostrow and Rose Ostrow.
    Minton P. Mayer, Memphis, Tennessee, for the Appellee, Max Ostrow.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined. JANICE M. HOLDER, J., filed a concurring and dissenting opinion.

We granted review to determine whether the property owners owed a duty to a person injured off the owners’ property as a result of a hazard existing on the owners’ property and if so, to determine whether the hazard was the cause of the injury. The trial court granted summary judgment to the defendant property owners, and the Court of Appeals affirmed. After carefully reviewing the record and applicable authority, we conclude that the defendants owed a duty of care to the plaintiff to ensure that the sidewalk was not obstructed by overgrown bushes and was passable. Viewing the evidence in the light most favorable to the plaintiff, there are genuine issues of material fact as to whether the defendants’ breach caused her injury. We therefore reverse and remand for further proceedings.

Background

The record on summary judgment contains the following facts, which we consider in the light most favorable to the plaintiff, the nonmoving party. On May 27, 1998, plaintiff Shirley Hale (“Ms. Hale”) was walking home from a bus stop in Memphis, Tennessee. She had taken a different bus than usual and so was walking a route along a sidewalk that she did not normally travel. As she proceeded south on Mississippi Boulevard, a busy street, she noticed that the sidewalk ahead was blocked. Bushes protruding from 1073 Mississippi Boulevard had overgrown the sidewalk and had grown around a telephone pole located on the sidewalk, blocking Ms. Hale’s way. Ms. Hale determined that she had to leave the sidewalk and enter the street in order to bypass the obstruction. She noticed that the sidewalk was “crumbled.” As she left the sidewalk, but before she reached the bushes, Ms. Hale looked into the street to check for traffic. As she looked up, she tripped over a chunk of concrete and fell into the street. Ms. Hale’s left hip was crushed in the fall, and she required extensive medical care.

The bushes that had overgrown the sidewalk were located in front of 1073 Mississippi Boulevard. That property, a vacant lot, was owned by the defendants Max Ostrow, Erwin Ostrow, and Rose Ostrow (collectively, “the Ostrows” or “defendants”). The crumbled sidewalk, and the spot where Ms. Hale actually fell, were located in front of 1063 Mississippi Boulevard. That property was not owned by the defendants.

Ms. Hale filed suit against the Ostrows in the Circuit Court for Shelby County, Tennessee, on theories of premises liability and public nuisance. The Ostrows moved for summary judgment on the negligence claim, arguing that a property owner owes no duty of care to a person injured on another’s property. Because Ms. Hale’s injury occurred when she tripped on the sidewalk located in front of 1063 Mississippi Boulevard, rather than in front of the Ostrows’ property at 1073 Mississippi Boulevard, the Ostrows argued that they owed no duty to Ms. Hale because she never entered their property. Moreover, they argued that her injury was caused by the defective sidewalk, not by the overgrown bushes.

The trial court granted summary judgment to the Ostrows without stating any grounds, and the Court of Appeals affirmed. The Court of Appeals held that Ms. Hale could not succeed on either a theory of premises liability or of public nuisance because she could not establish that the overgrowth was a proximate cause of her injury. The intermediate appellate court relied on the fact that Ms. Hale never actually reached the bushes before she fell. Judge Kirby dissented from the Court of Appeals’ opinion, arguing that there existed a genuine issue of material fact as to whether Ms. Hale had left the sidewalk and tripped because of her need to avoid the bushes.

We granted review.

Analysis

A party is entitled to summary judgment if he or she establishes that there is no genuine issue as to any material fact .and that a judgment may be rendered as a matter of law. Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.2000); see also Tenn. R. Civ. P. 56.04. In reviewing a motion for summary judgment, the Court must examine the evidence and all reasonable inferences from the evidence in a light most favorable to the non-moving party. Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn.2001). We review the trial court’s ruling de novo. Id.

A negligence claim requires proof of the following familiar elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998). We will review the contested elements in turn.

Duty

The existence of a duty is a question of law. Coin, 966 S.W.2d at 39. To determine whether a particular defendant owes a duty of care to a particular plaintiff, we balance the foreseeability and gravity of the potential harm against the feasibility and availability of alternatives that would have prevented the harm. Id.; see also Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.1998). “Although all the balancing considerations are important, the foreseeability prong is paramount because ‘[f]ore-seeability is the test of negligence.’ ” Biscan v. Brown, 160 S.W.3d 462, 480 (Tenn.2005) (quoting Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.1992)).

The Ostrow defendants argue that because Ms. Hale was not on their property at the time she fell, they did not owe her a duty of care. Ms. Hale notes that the Ostrows do not deny that they failed to trim the bushes or that the bushes were blocking the sidewalk; nor do they argue that a property owner does not owe a duty of care to passersby on the sidewalk. The Ostrows simply argue that the duty does not attach until a plaintiff enters the defendant owner’s property. They argue that there is no evidence that they were responsible for the broken concrete and that they did not have a duty to inspect the adjoining property for defects.

We have little difficulty in concluding that as property owners, the Ostrows owed a duty of care to Ms. Hale as a passerby to ensure that the sidewalk was not obstructed by overgrown bushes and was passable. In our view, the foreseeability and gravity of potential harm to a pedestrian clearly outweighed the burden to prevent the harm. It was entirely foreseeable that overgrown bushes emanating from the Os-trows’ property which obstructed the sidewalk would impede pedestrians using the sidewalk. It was also foreseeable that a pedestrian would be forced to go around the obstruction, as Ms. Hale alleges that she was required to do here, and that the detour could result in an injury to the plaintiff. The burden in preventing the harm, however, was minimal — simply trimming or removing the bushes.

Moreover, the record contains an affidavit from a Street Maintenance Administrator for the City of Memphis stating that it is the property owner’s responsibility to maintain sidewalks and shrubs. See also Code of Ordinances, City of Memphis § 34-127 (2003) (“It shall be a misdemean- or to permit shrubbery, hedges, or foliage of any kind to project over sidewalks or walkways so as to interfere with the free use. of such sidewalks or walkways by pedestrians.”); id. at § 34-118(b) (duty of every property owner “to keep clean and open for public passage all public sidewalks or walkways abutting on or adjacent to such property ... ”); id. at § 34-120 (owner must keep sidewalks “free from mud, weeds, grass, noxious growth ... ”).

The Ostrows argue that because the overgrown bushes were a “natural,” rather than a man-made or artificial, feature of the landscape, they did not have a duty to remove the bushes from the sidewalk. The Ostrows rely on and urge us to adopt the common-law rule that a possessor of land is not hable for “physical harm caused to others outside of the land by a natural condition of the land.” Restatement (Second) of Torts, § 363(1) (1965). We do not believe, however, that the distinction between natural and man-made features is relevant to our analysis. As the California Supreme Court has observed,

the distinction between artificial and natural conditions, and the immunity from liability predicated on that distinction, bears little relationship to the major factors which should determine whether immunity should be given the possessor of land for harm done by a natural condition of the land. The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered ... and the extent of the burden to the defendant and the consequence to the community of imposing a duty to exercise care have little, if any, relationship to the natural, as opposed to artificial, origin of the condition causing harm.

Sprecher v. Adamson Cos., 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, 1128 (1981) (citation omitted). In our view, moreover, the distinction between natural and artificial conditions is particularly ill-suited to the urban setting, where all property is altered from its “natural” state. We refuse to recognize a rule that would relieve from liability a landowner who neglects his property. Distinguishing between natural and artificial conditions in an urban setting “creates the anomalous situation of imposing liability on a landowner who improves and maintains his property while precluding liability of a neighboring landowner who allows the ‘natural condition’ of his property to run wild.” Harvey v. Hansen, 299 Pa.Super. 474, 445 A.2d 1228, 1231 (1982); see also Whitt v. Silverman, 788 So.2d 210, 222 (Fla.2001) (rejecting distinction between natural and artificial conditions in favor of foreseeability analysis for determining duty of landowner).

Causation

As we often recite, a negligence claim requires proof of two types of causation: causation in fact and proximate cause. “Causation [in fact] and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence.” Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993). Cause in fact and proximate cause are “ordinarily jury questions, unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome.” Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn.1994) (citing McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991)).

The defendant’s conduct is the cause in fact of the plaintiffs injury if, as a factual matter, it directly contributed to the plaintiffs injury. In a case such as this one, we must ask whether the plaintiffs injury would have happened “but for” the defendants’ act. See Wood v. Newman, Hayes & Dixon Ins. Agency, 905 S.W.2d 559, 562 (Tenn.1995). If not, then the defendants’ conduct is a cause in fact of the plaintiffs injury. It is not necessary that the defendants’ act be the sole cause of the plaintiffs injury, only that it be a cause.

Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the overgrown bushes on the Ostrows’ property were a cause in fact of her injury. Ms. Hale stated in her deposition that the bushes had completely overgrown the sidewalk, that she determined that she could not bypass the bushes on the sidewalk, and that. she therefore decided to leave the sidewalk and step into the street. As she did so, she looked up to check for traffic and tripped over the broken sidewalk. But for the bushes overgrowing the sidewalk, Ms. Hale would not have looked up to check for traffic, as she would not have needed to step into the street. Might she nevertheless have tripped over the concrete and suffered the same injury? Indeed she might have. Given that the evidence on summary judgment must be viewed in the light most favorable to the plaintiff, however, the, issue of causation, as well as the allocation of comparative fault, are determinations of fact to be made by the jury.

Once it is determined that the plaintiffs injury would not have happened but for the defendants’ breach of duty, the next question is whether the defendants’ breach was a proximate cause of the plaintiffs injury, which is very different from a cause in fact of the injury. Proximate cause puts a limit on the causal chain, such that, even though the plaintiffs injury would not have happened but for the defendants’ breach, defendants will not be held liable for injuries that were not substantially caused by their conduct or were not reasonably foreseeable results of their conduct. Haynes, 888 S.W.2d at 612. “Thus, proximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established.” Kilpatrick, 868 S.W.2d at 598.

Having determined that there exists a genuine issue of material fact as to whether the overgrown bushes on the Os-trows’ property were a cause-in-fact of Ms. Hale’s injury, we must ask whether there is a genuine issue as to whether they were also a proximate cause. The Court of Appeals held that, in light of Ms. Hale’s testimony that she never encountered the bushes or stepped into the street to avoid the bushes, the bushes were not a proximate cause of her injury. We note, however, that the question the Court of Appeals was actually answering was whether the bushes were a cause in fact of her injury, because the appellate court essentially decided that her injury would still have occurred even if not for the bushes. As we have explained, we disagree with the Court of Appeals’ conclusion that the bushes were, as a matter of law, not a cause in fact of Ms. Hale’s injuries.

Proximate cause is addressed with a three-pronged test:

(1) the tortfeasor’s conduct must have been a “substantial factor” in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.

Haynes, 883 S.W.2d at 612 (quoting McClenahan, 806 S.W.2d at 775).

Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the bushes were a substantial factor in her fall, and as to whether the harm to her was foreseeable. Even though it might not have been foreseeable that a pedestrian would trip on broken concrete in going around the bushes, the injury was nevertheless of the type to be expected from permitting bushes to overgrow the sidewalk. See, e.g., United Novelty Co. v. Daniels, 42 So.2d 395, 396 (Miss.1949). In this instance, there is no rule or policy that should relieve a landowner from liability for permitting vegetation to overgrow a public sidewalk. To the contrary, there are a number of rules against it, i.e., the Memphis ordinances requiring property owners to keep sidewalks clear and free of overgrowth. Accordingly, the determination of whether the overgrown bushes were a proximate cause of Ms. Hale’s injury is a question of fact for the jury.

Conclusion

Having carefully examined the record and the applicable authority, we reverse the decisions of the trial court and the Court of Appeals granting summary judgment to the defendants. We conclude that the defendants owed a duty of care to the plaintiff to ensure that the sidewalk was not obstructed by overgrown bushes and was passable. Viewing the evidence in the light most favorable to Ms. Hale, there are genuine issues of material fact as to whether the Ostrows’ breach of their duty of care caused her injury. We therefore remand the case to the trial court for further proceedings. We note that the Ostrows moved for, and the trial court granted, summary judgment as to Ms. Hale’s negligence claim only. As to the public nuisance claim, we note that apparently in deciding the proximate cause issue the Court of Appeals rejected the public nuisance claim as well. We reverse and remand to the trial court. Costs are taxed to the defendants-appellees, Max Ostrow, Erwin Ostrow, and Rose Ostrow, for which execution may issue if necessary.

JANICE M. HOLDER, J., filed a concurring and dissenting opinion.

JANICE M. HOLDER, J.,

concurring and dissenting.

I agree with the majority opinion that the defendants owed a duty to the plaintiff and, viewing the evidence in the light most favorable to the plaintiff, that there are genuine issues of material fact as to cause in fact and proximate or legal cause. I continue, however, to adhere to my previous position that the majority’s analysis blurs the line between duty and legal causation by improperly encouraging “the trial court to usurp the role of the jury in weighing the reasonableness of the defendant’s conduct.” Burroughs v. Magee, 118 S.W.3d 323, 339 (Tenn.2003) (Holder, J., concurring and dissenting).

As a question of law, the existence of a duty is to' be determined by the trial court. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). In this case, I would hold that the defendant' had a duty to use reasonable care not to cause harm to pedestrians using the walkway. Burroughs, 118 S.W.3d at 338 (“There is a broad duty to exercise reasonable care to avoid causing foreseeable injury to others.”). Once a duty of care is established, it is for the trier of fact to determine the existence of cause in fact and proximate cause as well as breach of duty and injury or loss. Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 55-56 (Tenn.2004) (Holder, J., concurring).

The analysis used by the majority to find a duty of care, however, requires the trial court to weigh the foreseeability and gravity of the potential harm against the burden of preventing the harm. In analyzing duty, the majority opinion states;

It was entirely foreseeable that overgrown bushes emanating from the Os-trows’ property which obstructed the sidewalk would impede pedestrians using the sidewalk. It was also foreseeable that a pedestrian would be forced to go around the obstruction, as Ms. Hale alleges that she was required to do here, and that the detour could result in an injury to the plaintiff. The burden in preventing the harm, however, was minimal — simply trimming or removing the bushes.

A jury must consider the same facts in determining proximate or legal causation. The majority’s discussion of the issue of proximate or legal causation proves this point by essentially repeating its discussion of “duty”:

It was entirely foreseeable that a pedestrian might trip and be injured, either by attempting to traverse the bushes or by going around them. Even though it might not have been foreseeable that a pedestrian would trip on broken concrete in going around the bushes, the injury was nevertheless of the type to be expected from permitting the bushes to overgrow the sidewalk.

The majority’s duty analysis improperly “encompasses the weighing process that is normally reserved to the jury in negligence cases.” Rice v. Sabir, 979 S.W.2d 305, 310 (Tenn.1998) (Holder, J., dissenting). Further, this balancing test complicates the job of the trial judge by confusing the trial court’s determination of the existence of a duty with the trier of fact’s determination of whether a duty was breached. See Burroughs, 118 S.W.3d at 339.

I would not require a trial court to make a determination concerning foreseeability that is more properly left to a jury. I would hold, as a matter of law, that a property owner owes a duty to use reasonable care not to cause harm to pedestrians using the sidewalk in question. I would permit a jury to determine whether the landowner breached that duty and whether the actions of the pedestrian and her subsequent injuries were a reasonably foreseeable consequence of any breach of duty found by the jury.

      . Ms. Hale also filed suit against the owner of 1063 Mississippi Boulevard, Edwin Britte- ’ num, and the City of Memphis. After obtaining a default judgment against Brittenum, she voluntarily nonsuited that action. The trial court granted summary judgment to the City of Memphis. Ms. Hale does not appeal that ruling. Consequently, the Ostrows are the only remaining defendants.

      . See Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 55-56 (Tenn.2004) (Holder, J., concurring); Burroughs v. Magee, 118 S.W.3d 323, 338-39 (Tenn.2003) (Holder, J., concurring and dissenting); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 92-93 (Tenn.2000) (Holder, J., concurring); Rice v. Sabir, 979 S.W.2d 305, 310-11 (Tenn.1998) (Holder, X, dissenting); Coin v. Savannah, 966 S.W.2d 34, 46-47 (Tenn.1998) (Holder, J., concurring).


author: E. RILEY ANDERSON, J.,

text:
    STATE of Tennessee v. Patrick D. COLLINS.
    Supreme Court of Tennessee, at Nashville.
    April 15, 2005 Session at Pulaski.

    June 29, 2005.

      V. Michael Pox, Nashville, Tennessee, and Darren J. Scoggins, Burns, Tennessee, for the Appellant, Patrick David Collins.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Scott R. McMurtry, Assistant District Attorney General, for the Appellee, State of Tennessee.

      . Oral argument was heard in this case on April 15, 2005, in Pulaski, Giles County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court, in which

FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted review of this interlocutory appeal to determine whether the defendant was sufficiently advised of the consequences of refusing to take a breath-alcohol test. The arresting officer informed the defendant that his license would be suspended for one year if he refused the test, but under the provisions of Tennessee Code Annotated section 55-10-406(a) (2000) in effect at the time, the penalty was two years. The trial court held that the defendant was not sufficiently advised of the consequences and barred the State from seeking any suspension of the defendant’s driver's license. The trial court also barred the State from arguing to the jury on the DUI charge that the defendant had refused the breath test. The Court of Criminal Appeals reversed, holding that the defendant was adequately advised of the consequences for refusing the test. After reviewing the record and applicable authority, we affirm in part and reverse in part the decision of the Court of Criminal Appeals on the separate grounds set forth herein. We hold that although the State may request suspension of Collins’ license, the State may not seek a suspension of longer than one year because Collins was incorrectly advised of the consequences of refusing to take the test.

Background

This case comes to us on a pre-trial interlocutory appeal. The facts contained in the limited record are as follows.

On September 28, 2000, defendant Patrick Collins (“Collins”) was stopped for speeding in Davidson County, Tennessee. After subjecting Collins to a number of field sobriety tests, the arresting officer determined that Collins was intoxicated. The officer then read Collins a standard script, issued by the Metropolitan Nashville Police Department (“Metro”), advising Collins:

There are reasonable grounds to believe you were driving or in physical control of a motor vehicle while under the influence of alcohol. I hereby request you to submit to a breath alcohol test. You will be informed of the results and then have the right to a blood test at your own expense. You have the right to refuse this test. However, according to Tennessee state law, if you do, you will be charged with violating the implied consent law and, if the court finds you in violation of this law, then the court will suspend your license for one year. Do you understand? Will you take the breath test?

Collins did not take the breath test. He was subsequently indicted for driving under the influence of an intoxicant (“DUI”) in violation of Tennessee Code Annotated section 55-10-401 (2000). The State also sought to suspend Collins’ license as a penalty for his failure to take the breath test pursuant to Tennessee Code Annotated section 55-1CM06 (2000).

Tennessee Code Annotated section 55-10-406(a)(l) provides that anyone driving a motor vehicle in this state “is deemed to have given consent to a test for the purpose of determining the alcoholic or drug content of that person’s blood.” This “implied consent” statute provides that refusal to submit to such a test subjects the driver to revocation of his license. See State v. Turner, 913 S.W.2d 158, 159-60 (Tenn. 1995). The statute further provides that “if the driver was not advised of the consequences of such refusal,” a court may not suspend his license. Tenn-Code. Ann. § 55-10-406(a)(2).

Prior to 2000, the statutory revocation period was one year. As amended effective July 1, 2000, section 55-10-406(a)(3) provides for revocation periods of between one and five years. The revocation period is two years if the driver was previously convicted of, inter alia, driving under the influence. Tenn.Code Ann. § 55-10-406(a)(3)(B) (2000). Collins had a prior conviction for driving under the influence and so, under section 55-10-406(a)(3)(B), he was subject to a two-year suspension for refusing to take the alcohol test. However; although Collins was arrested nearly three months after the July 2000 amendments took effect, Metro’s standard script had not been- revised to conform to the amendments. The arresting officer therefore stated to Collins that he was only subject to a one-year suspension for refusing to take the breath test.

Because the arresting officer had read him an incorrect advisory statement, Collins moved prior to trial to strike the implied consent charge and bar the State from attempting to revoke his license. Collins also sought to bar the State from arguing to the jury on the DUI charge that he refused to submit to a breath test knowing that he would lose his driver’s license by refusal.

The trial court ruled that the State did not sufficiently inform Collins of the consequences of his refusal to take the breath test because Collins was informed that the consequence was a one-year, rather than a two-year, suspension. The trial court therefore ruled that the State could not seek penalties under the implied consent law. Reasoning that the statement, of rights read by the officer was “wholly deficient,” the trial court also held that the State could not argue to the jury that Collins knew he would lose his license if he refused the test, because Collins was not in fact going to lose his license.

The trial court granted the State’s request to continue the trial in order to permit the State to pursue an interlocutory appeal as to whether it could seek suspension of Collins’ license and as to whether it could argue to the jury that Collins refused the breath test knowing that he would lose his license. The Court of Criminal Appeals granted the interlocutory appeal and reversed the trial court, holding that Collins was adequately informed of the consequences of refusing the breath test. The court reasoned that it would be cumbersome and confusing to attempt to inform a suspect of all possible consequences of refusal under the revised statute. Because Collins was informed that his license would be suspended, the Court of Criminal Appeals reasoned that “[a]ny additional explanation of the consequences of refusal would be gratuitous on the officer’s part.” The court also held that the State would-not be precluded from arguing to the jury that Collins knew his license would be suspended if he refused the breath test.

We granted review.

Analysis

This case requires us to interpret Tennessee Code Annotated section -55-10-406. We undertake statutory interpretation de novo, with no presumption of correctness given to the courts below. State v. Wilson, 132 S.W.3d 340, 341 (Tenn.2004).

The requirement that officers advise drivers of the consequences of refusing an alcohol or drug test is set forth in section 55-10-406(a)(2). As of September 28, 2000, the date of Collins’ arrest, that section provided in pertinent part:

Any law enforcement officer who requests that the driver of a motor vehicle submit to a test pursuant to this section for the purpose of determining the alcoholic or drug content of the driver’s blood shall, prior to conducting such test, advise the driver that refusal, to submit to such test will result in the suspension of the driver’s operator’s license by the court and, if such driver is driving on a revoked, suspended or can-celled license, when the person’s privilege to do so is cancelled, suspended or revoked because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, that the refusal to submit to such test will,'in addition, result in a fíne and mandatory jail or workhouse sentence. The court having jurisdiction of the offense for which such driver was placed under arrest shall not have the authority to suspend the license of a driver who refused to submit to the test if the driver was not advised 'of the consequences of such refusal.

Tenn.Code Ann. '§ 55 — 10—406(a)(2) (emphases added). We note that Collins was advised only that refusal to take the breath test would subject him to a suspension of his license, not that there was a possibility of a fine or jail sentence. Since there is no evidence that Collins was driving on a revoked, suspended or cancelled license at the time of his arrest, however, the “consequences” of his refusal to take the test were limited to suspension of his driver’s license. We express no opinion as to whether the officer’s statement would have been deficient had Collins been subject to a fine or jail sentence.

The consequences of refusing to take an alcohol or drug test are set forth in section 55-10-406(a)(3) which, as of September 2000, stated in pertinent part:

If such person having been placed under arrest and thereafter having been requested by a law enforcement officer to submit to such test and advised of the consequences for refusing to do so, refuses to submit, the test shall not be given, and such person shall be charged with violating this subsection (a).... If the court finds that the driver violated the provisions of this subsection (a), except as otherwise provided in this subdivision (a)(3), the driver shall not be considered as having committed a criminal offense; however, the court shall revoke the license of such driver for a period of: (A) One (1) year, if the person does not have a prior conviction for a violation of § 55-10-401[DUI] ... in this state or a similar offense in any other jurisdiction. (B) Two (2) years, if the person does have a prior conviction for an offense set out in subdivision (A).

Tenn.Code Ann. § 55-10-406(a)(3).

“The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn.1993)). Where the statute’s language is clear and unambiguous, we derive the legislative intent from its plain and ordinary meaning. Wilson, 132 S.W.3d at 341. If, however, “the parties derive different interpretations from the statutory language, an ambiguity exists, and we must look to the entire statutory scheme in seeking to ascertain legislative intent.” Owens, 908 S.W.2d at 926 (citing Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994)). “In ascertaining the intent of the legislature, this Court may look to ‘the language of the statute, its subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.’ ” State v. Gilliland, 22 S.W.3d 266, 275 (Tenn.2000) (quoting State v. Lewis, 958 S.W.2d 736, 739 (Tenn.1997)). “Statutes ‘in pari mate-ria’ — those relating to the same subject or having a common purpose — are to be construed together.” Owens, 908 S.W.2d at 926 (citing Lyons, 872 S.W.2d at 897). With these principles in mind, we turn to the parties’ arguments.

Collins argues that failure to apprise him of the two-year suspension provision constitutes a failure to inform him of the consequences of his failure to take the breath test. Therefore, he argues, his failure to take the test should not subject him to suspension of his license, and the State should not be permitted to argue to the jury on the DUI charge that Collins knew he would lose his license if he refused the breath test. The State argues that the Court of Criminal Appeals correctly held that the length of the suspension is immaterial; what matters is that Collins was informed • that refusal to take the test would subject him to having his license suspended. Collins further argues that all evidence of his “alleged refusal” to take the breath test should be suppressed at his DUI trial. We decline to address this broad argument. The interlocutory appeal granted by the Court Of Criminal Appeals was limited to review of the trial court’s determination that the State could not seek suspension of Collins’ license and that the State could not argue to the jury on the DUI charge that Collins “knew” he would lose his license if he refused the breath test. Additionally, Collins did not raise to the Court of Criminal Appeals the argument that all evidence relating to the breath test should be suppressed. We therefore confíne our review to the questions of whether the State may seek suspension of his license and whether the State may argue to the jury on the DUI charge that Collins knew he would lose his license.

In our view, the purpose and structure of section 55-10-406 indicate that the legislature intended only that a driver be advised that his license will be suspended if he refuses an alcohol or drug test, not that a driver be advised of the specific length of the suspension. As we have previously observed, we must construe section 55-10-406 together with all of the driving under the influence statutes. Turner, 913 S.W.2d at 160. The purpose of these statutes is “to remove from the highway, prosecute, and punish those who engage in the dangerous menace of driving under the influence.” Id.; see also State v. Lawrence, 849 S.W.2d 761, 765 (Tenn.1993) (driving under the influence statutes are “ ‘intended to enable the drunken driver to be apprehended before he strikes’ ”) (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975)).

Thus, the purpose of the implied consent statute is not to allow motorists suspected of driving under the influence to make an “informed choice” about whether to take an alcohol or drug test; rather, it is to advance the State’s objective of keeping intoxicated drivers off the roadways. In furtherance of this objective, “[t]he legislature intended to enable the State to establish the offense by scientific evidence. For the privilege of operating a vehicle on our highways, the driver consents to a test to determine whether that privilege is, as a law enforcement officer suspects, being abused.” Turner, 918 S.W.2d at 160. We note also that section 55-10-406(a)(3) specifically provides that revocation of a driver’s license under the circumstances applicable to Collins does not constitute a criminal offense, as it confers only an administrative penalty. Turner, 913 S.W.2d at 163. Therefore, the rule that we strictly construe the statute against the State does not apply. Id.

Viewing the statute in this light, we conclude that section 55-10-406(a)(2) required only that Collins be informed that his license would be suspended if he refused to take the breath test. Section 55-10 — 406(a)(2) does not mandate that the specific length of the suspension, which varies according to the driver’s prior history, be spelled out for the driver. Rather, section 55-10-406(a)(2) sets general parameters, requiring that a driver be informed that refusal to be tested will result in a license suspension and could result in a mandatory fine and mandatory jail or workhouse sentence. As the Court of Criminal Appeals noted, the 2000 amendments did not alter the language requiring that the driver be advised that refusal to take the test will result in suspension. The amendments also did not change the provision barring suspension of the license when the consequences of refusal are not stated.

The particular consequences of refusal are spelled out separately in section 55-10 — 406(a)(3). That section specifies the length of the suspension as well as the maximum fine and the minimum jail or workhouse sentence. Had the legislature intended these consequences to be spelled out to each driver who is requested to take an alcohol or drug test, the legislature would have included the specific consequences in section (a)(2) of the statute. The legislature did state with specificity in section (a)(2) the prior convictions which subject a driver to a mandatory fine and jail or workhouse sentence; this bolsters our conclusion that the legislature did not intend to require arresting officers to enumerate the entire range of consequences of refusal to take an alcohol or drug test in the advisory stated to drivers. Because the specific consequences are spelled out in a separate section, we conclude that a general statement of consequences is sufficient.

Although we conclude that the advisory statement made to a driver need not be specific, we disagree with the State and with the Court of Criminal Appeals that it need not be accurate. Law enforcement officers may not “misinform motorists, some of whom may understand the inaccurate warning and rely upon it.” People v. Johnson, 197 Ill.2d 478, 259 Ill.Dec. 397, 758 N.E.2d 805, 811 (2001) (emphasis added) (holding that rescission of summary suspension of driver’s license was warranted if an inaccurate warning was given and “that misinformation directly affects the motorist’s potential length of suspension”).

Had the arresting officer simply advised Collins that his license would be “suspended,” we would have little difficulty in concluding that the statute’s requirement that Collins be advised of the consequences of refusing the breath test was met. Here, however, the arresting officer incorrectly advised Collins, pursuant to Metro’s standard form, that refusal to take the breath test would subject him only to a one-year suspension.

There is no evidence in the record that the arresting officer intended to deceive Collins or acted with bad faith. If the record showed that the officer had intended to mislead Collins, we would agree with Collins that the State should be precluded from seeking any suspension of his license whatsoever. See State v. Stade, 683 A.2d 164, 166 (Me.1996) (“[Although the State’s interest in preventing drunk drivers from operating on our highways is great, the State has no legitimate interest in allowing its law enforcement officers ... to affirmatively mislead citizens about the consequences of taking or failing to take a blood-alcohol test.”). In this case, however, the basic requirement of section 55-10-406(a)(2) was met: Collins was informed that his license would be suspended if he refused to take the breath test. That' the arresting officer then went beyond the minimum requirements of the statute and incorrectly advised Collins that his license would be suspended for one year rather than two does not void the advisory statement because the officer’s error was made without an intent to deceive Collins. We therefore hold that the State may seek to suspend Collins’ driver’s license, but that the State may not seek a suspension of greater than one year. Indeed, the State recognized the unfairness of subjecting Collins to a two-year suspension and represented to the trial court that it would seek only a one-year suspension.

Our holding that the error in the advisory limits the State to seeking a one-year suspension does not mean, as Collins argues, that the State should be barred from arguing to the jury that Collins knew he would lose his license if he refused the breath test. The provisions for advising a driver of the consequences of refusing a drug or .alcohol test only apply to the State’s ability to seek the civil penalty of license suspension. See Tenn. Code Ann. § 55-10-406(a)(4). The issue of whether Collins’ refusal to take the test is admissible in his criminal DUI trial is entirely separate. We see no reason to bar the State from presenting evidence and arguing to the jury that the arresting officer informed Collins that his license would be suspended if he refused the breath test.

Conclusion

Having considered the record and applicable authority, we hold that the implied consent law does not require an arresting officer to enumerate the entire range of consequences of refusal to take ,an alcohol or drug test. However, because Collins was erroneously advised that he would be subject only to a one-year suspension, the State may not seek to suspend Collins’ driver’s license for longer than one year. We therefore reverse the Court of Criminal Appeals in part. We affirm the Court of Criminal Appeals in part as to the admissibility of Collins’ refusal to take the test on the DUI charge, and we hold that the State may argue to the jury that Collins was told that he would lose his license if he refused the breath test. Costs are taxed equally to the State and to Patrick David Collins and his surety, for which execution may issue if necessary.

      . Our holding is limited to application of the implied consent law as codified in Tennessee Code Annotated section 55-10-406.


author: DAVID R. FARMER, J.,

text:
    Sam WILSON v. Jerry ESCH, et al.
    Court of Appeals of Tennessee, at Jackson.
    Submitted on Brief May 17, 2004 Session.
    June 24, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 24, 2005.
    James H. Bradberry, Dresden, Tennessee, for the appellants, Jerry Esch and Andy Carroll.
    Steven L. West, McKenzie, Tennessee, for the appellee, Sam Wilson.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J., and HOLLY M. KIRBY, J., joined.

The trial court awarded Appellee rescission of a contract for purchase of an automobile. We affirm.

This dispute concerns the 2002 purchase of a 1968 Corvette automobile. In 1991, Jerry Esch (Mr. Esch) purchased the Corvette, and for the next 12 years performed considerable restoration work on it. Andy Carroll (Mr. Carroll) periodically cleaned the car. In 2002, Mr. Esch decided to sell the Corvette and solicited the help of Mr. Carroll. Mr. Carroll placed an advertisement on the Internet in which he listed the ear for $17,500. The advertisement identified Mr. Carroll as the contact person. The advertisement described the Corvette as “a hard to find car with a 95% restoration.” After test driving the car with Mr. Carroll and alone, Sam Wilson (Mr. Wilson) purchased the Corvette for $12,500. Mr. Wilson began experiencing mechanical difficulties with the car, and an inspection revealed considerable rusting.

In February 2003, Mr. Wilson 'filed a complaint in the Chancery Court of Weak-ley County. In his complaint, Mr. Wilson alleged that Mr. Esch and Mr. Carroll had engaged in unfair or deceptive acts in violation of Tennessee Code Annotated § 47-18 — 104(6)(7) and (27). Mr. Wilson prayed for the court to void the contract and refund the purchase price. He also prayed for treble damages of $87,500 under Tennessee Code Annotated § 47-18-109 (the Consumer Protection Act) and attorney’s fees.

The matter was heard on September 5, 2003. At trial, an expert in the field of antique automobile restoration testified that someone had placed foam rubber on the interior of the frame which had concealed the rusting. He further testified that the fuel line had been replaced and pieced together,’that the frame needed to be replaced, and that the car was unsafe. The trial court held that, pursuant to Tennessee Code Annotated § 47-18-109(a)(4), Mr. Wilson was “entitled to a rescission of the contract based upon the Defendants^] violation of the consumer protection laws both as to misleading advertising and as to erroneous representation with regard to the condition of the vehicle.” The trial court awarded Mr. Wilson his attorney’s fees and costs, but held that treble damages were not appropriate in this case. The trial court entered its final order on October 23, 2003, and Mr. Esch and Mr. Carroll (hereinafter, collectively, “Appellants”) filed a timely notice of appeal to this Court on November 21, 2003.

Issues Presented

Appellants raise the issue of whether the Consumer Protection Act applies where the individuals involved are private persons not engaged in a commercial enterprise. Mr. Wilson raises the issue of whether the trial court erred in declining to award him treble damages.

Standard of Review

Our standard of review of a trial court sitting without a jury is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). We review the trial court’s findings of fact with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). Thus, we may not reverse the trial court’s factual findings unless they are contrary to the preponderance of the evidence. We review the trial court’s conclusions on matters of law de novo, with no presumption of correctness. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Analysis

Appellants assert the judgment of the trial court is error because the Consumer Protection Act, codified at Tennessee Code Annotated § 47-18-101, et seq., does not apply to transactions which involve only a casual, non-commercial transaction between individuals. Mr. Wilson contends that Appellants did not raise this issue in the proceedings below and, therefore, may not raise it here. Issues not raised in the trial court may not be raised for the first time on appeal. Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003). Upon review of the record, we find that Appellants failed to raise the issue of whether the Consumer Protection Act is applicable in this case in the proceedings below. Therefore, this issue is without merit.

Mr. Wilson argues that the trial court erred by finding that an award of treble damages was not appropriate in this case. The Consumer Protection Act provides:

(3) If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this part, the court may award three (3) times the actual damages sustained and may provide such other relief as it considers necessary and proper.

Tenn.Code Ann. § 47-18-109(a)(3)(2001)(emphasis added). An award of treble damages for violation of the Consumer Protection Act is permissive and depends upon the facts of each case. Keith v. Howerton, No. E2002-00704-COA-R3-CV, 2002 WL 31840683, at *3 (Tenn.Ct.App. Dec.9, 2002) {no perm. app. filed). The determination of whether such an award is appropriate under the facts of the case lies within the sound discretion of the trial court. Id. Upon review of the record, we find no abuse of discretion in the trial court’s determination that treble damages are not appropriate here.

Holding

In light of the foregoing, we affirm the judgment of the trial court. Costs of this appeal are taxed one-half to the Appellee, Sam Wilson, and one-half to the Appellants, Jerry Esch and Andy Carroll, and their surety, for which execution may issue if necessary.


author: Chief Justice JEFFERSON

text:
    In re KELLOGG BROWN & ROOT, INC., Relator.
    No. 03-1129.
    Supreme Court of Texas.
    Argued Dec. 1, 2004.
    Decided May 20, 2005.

      Jack G. Carnegie, John L. Hagan, Jones Day, Kevin B. Finkel, Johnson Finkel De-Luca & Kennedy, P.C., Houston, for relator.
    Jeffrey Raizner, Doyle Raizner LLP, Jack F. Burleigh, Houston, Ira E. Hoffman, Grayson Kubli & Hoffman, P.C., McLean, Jeff H. Galloway, John Fellas, Hughes Hubbard & Reed LLP, New York, NY, for real party in interest.
    Jeffery T. Nobles, Beirne Maynard & Parsons, L.L.P., Robert Bryan Tobor, Houston, Clint Alexander Corrie, Joseph Lawrence Mira, Bierne,. Maynard & Parsons, LLP, Dallas, John D. White, Jones Walker Waechter Poitevent Carrere & De-negre, The Woodlands, for Gulf Coast Holdings Inc.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

In this original proceeding, the question is whether Kellogg Brown & Root, Inc. (“KBR”), as a non-signatory to a contract containing an arbitration clause, must arbitrate its claims against Unidynamics, Inc. (“Unidynamics”) and MacGREGOR (FIN) Oy (“MacGregor”) — the signatories to the contract. The trial court denied MacGre-gor’s motion, which sought to compel KBR to pursue its claims in an ongoing arbitration between MacGregor and Unidynam-ics. The court of appeals held that the trial court abused its discretion and conditionally granted mandamus relief, ordering the trial court to vacate its order denying MacGregor’s motion and “issue an order compelling KBR to arbitrate all claims.” 126 S.W.3d 176, 184. KBR sought mandamus relief in this Court.

Approximately two months after KBR filed its petition here, the arbitration between MacGregor and Unidynamics concluded. As a result, the relief MacGregor requested in the lower courts — that KBR be compelled “to pursue its claims in the arbitration between MacGregor (FIN) and Unidynamics” — is no longer available. The case is not moot, however, because the parties continue to dispute whether KBR should be compelled to “arbitrate all claims” pursuant to the court of appeals’ order. Id. at 184. Because we conclude that KBR cannot be so compelled, we conditionally grant mandamus relief and order the court of appeals to vacate its order.

I

Factual Background

In October 1999, MacGREGOR (USA), Inc. contracted with Ingalls Shipbuilding, Inc. (“Ingalls”) to build elevator trunks for two cruise ships. MacGREGOR (USA) assigned the contract to its sister company, MacGREGOR (FIN) Oy (“MacGre-gor”). In August 2000, MacGregor subcontracted part of the job to Unidynamics, which agreed to fabricate a set of the elevator trunks for one of the ships. In June 2001, Unidynamics and KBR entered into a second-tier subcontract, under which KBR agreed to furnish labor, equipment, and facilities to fabricate the elevator trunks. In the fabrication subcontract between MacGregor and Unidynamics, the parties agreed that: “Any disputes arising from the interpretation or application of this contract including any document pertaining thereto, shall be settled by arbitration in accordance with General Conditions (ECE 188), (Appendix 10).” The second-tier subcontract between Unidynamics and KBR did not contain an arbitration provision.

After the ship buyer declared bankruptcy in November 2001, Ingalls directed MacGregor to cease work and notify its subcontractors to do the same. MacGre-gor directed Unidynamics to comply with “the same instructions that Ingalls gave MacGregor.” Unidynamics conveyed those instructions to KBR. On or around November 5, 2001, KBR ceased work, stored the elevator trunks and other equipment, and sent Unidynamics invoices for unpaid fabrication services and storage costs. Because KBR had not been paid in full, it asserted liens on the elevator trunk fabrications, parts, and other materials (the “collateral”).

A dispute then arose between MacGre-gor and Unidynamics regarding who owned the collateral and who owed KBR for the fabrication services and storage costs. The dispute stemmed from MacGregor and Unidynamics’ Agreement Concerning Passing of Title (the “Title Agreement”), executed on December 5, 2001, and fully incorporated into their fabrication subcontract. Among other things, the Title Agreement provided that full title to the collateral would pass irrevocably to MacGregor immediately after MacGregor made two payments to Unidy-namics, which were to occur no later than December 19, 2001. The Title Agreement further required Unidynamics to release the collateral to MacGregor upon MacGre-gor’s request. It is undisputed that MacGregor timely paid Unidynamics; however, Unidynamics asserted that the payments were ineffective to pass title to MacGregor. When MacGregor demanded that Unidynamics release the elevator trunks, Unidynamics refused. The collateral remained in KBR’s possession.

II

Procedural Background

In May 2002, pursuant to the arbitration provision in the fabrication subcontract, MacGregor asked the International Chamber of Commerce (“ICC”) to arbitrate its dispute with Unidynamics. Among other things, MacGregor sought: (1) damages for breach of contract by Unidynamics for failure to release the collateral, (2) a deter-ruination as to which defendant owned the collateral, and (3) a determination regarding MacGregor’s proportionate responsibility for the storage costs KBR billed Uni-dynamics. Unidynamics filed an answer and asserted counterclaims. MacGregor and Unidynamics then commenced arbitration in Paris, France.

While the arbitration was proceeding, both MacGregor and Unidynamics demanded that KBR release the collateral. KBR refused the demands and, on September 17, 2002, filed suit against both companies in Harris County. KBR claimed that Unidynamics breached its contract and, in the alternative, that it was entitled to recover quantum, meruit damages against Unidynamics and MacGregor. KBR also sued for declaratory relief to determine which defendant owned the collateral. Subject to the court’s ruling on ownership, KBR sought a judicial declaration that it possessed valid constitutional and statutory liens against the collateral in its possession. MacGregor answered and sought a temporary restraining order, temporary injunction, and permanent injunction directing KBR to release the collateral. Unidynamics opposed MacGre-gor’s application, arguing that the court action should be abated because the collateral’s ownership was “the very issue ... being arbitrated before the ICC.” MacGre-gor, Unidynamics, and KBR then negotiated an agreement, which the trial court entered as an Agreed Order. Pursuant to that order, MacGregor agreed to post a $1,000,000 bond and, upon presentation of the bond, KBR agreed to release the collateral to MacGregor. MacGregor posted the bond on October 28, 2002.

Meanwhile, on October 18, 2002, MacGregor filed a motion to abate the state court proceedings pending its arbitration with Unidynamics or, in the alternative, to compel KBR to pursue its claims in the ongoing arbitration between MacGregor and Unidynamics. The trial court denied MacGregor’s motion. On December 19, 2002, MacGregor filed an interlocutory appeal and a petition for writ of mandamus in the court of appeals, contending that the trial court abused its discretion. The court of appeals dismissed the interlocutory appeal as moot and conditionally granted mandamus relief, ordering the trial court “to vacate its order denying MacGregor’s plea in abatement and motion to compel arbitration, to issue an order compelling KBR to arbitrate all claims, and to stay all proceedings pending arbitration.” 126 S.W.3d at 184-85.

On December 9, 2003, KBR petitioned this Court for a writ of mandamus. On February 4, 2004, while the petition was pending before us, the arbitration between MacGregor and Unidynamics concluded, and the ICC issued a final arbitration award. KBR does not contest that award.

HI

Mootness

As a preliminary matter, we must decide whether the ICC’s final arbitration award moots this mandamus proceeding. A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005); Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex.2002); Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001). This case stems from the lower courts’ action on MacGregor’s motion to “compel[ ] KBR to pursue its claims in the arbitration between [MacGregor] and Uni-dynamics.” Because that arbitration is over, KBR can no longer be compelled to “join the arbitration.” See 126 S.W.3d at 183 (concluding that the trial court abused its discretion by refusing to compel KBR to join the ongoing arbitration). The question, then, is whether this proceeding is moot.

A case is not rendered moot simply because some of the issues become moot during the appellate process. See Allstate, 159 S.W.3d at 642-43 (holding that a dispute concerning attorney’s fees preserved a live controversy in an otherwise moot appeal); Camarena v. Tex. Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988) (same). In this case, the court of appeals ordered the trial court “to issue an order compelling KBR to arbitrate all claims.” 126 S.W.3d at 184. Although it is no longer possible for KBR to join the Paris arbitration, the court of appeals’ ultimate directive has no temporal component. It requires KBR to “arbitrate all claims.”

The live controversy in this proceeding is whether KBR must arbitrate those claims that remain now that the arbitration between MacGregor and Unidynam-ics has concluded. KBR’s petition consisted of: (1) a breach-of-contract claim against Unidynamics; (2) in the alternative, a quantum meruit claim against Un-idynamics and MacGregor; and (3) a declaratory judgment action to determine the collateral’s owner and to establish that KBR possessed valid hens. The arbitrator determined that, pursuant to the Title Agreement between MacGregor and Unidynamics, title to the collateral passed from Unidynamics to MacGregor on December 10, 2001. KBR is satisfied with this resolution of the ownership dispute, and thus, we need not address whether the ownership dispute must be arbitrated. Additionally, we need not address whether KBR should be compelled to arbitrate its claims against Unidynamics, because the parties now agree that those claims are not subject to arbitration. Our inquiry is accordingly limited to determining whether KBR must arbitrate its quantum meruit and lien-validity claims against MacGregor.

IV

Discussion

The parties do not dispute the court of appeals’ holding that the arbitration provision at issue is governed by the Federal Arbitration Act (“FAA”). See 9 U.S.C. §§ 1-16; 126 S.W.3d at 181. In general, a party seeking to compel arbitration under the FAA must establish that: (1) there is a valid arbitration agreement, and (2) the claims raised fall within that agreement’s scope. In re FirstMerit Bank, 52 S.W.3d 749, 753 (Tex.2001); In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999). Doubts regarding an agreement’s scope are resolved in favor of arbitration because there is a presumption favoring agreements to arbitrate under the FAA. In re FirstMerit Bank, 52 S.W.3d at 753; Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996). However, “the presumption arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists,” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003), because “the purpose of the FAA was to make arbitration agreements as enforceáble as other contracts, not more so.” Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 354 n. 4 (5th Cir.2003) (citations omitted); see also E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (“The FAA directs courts to place arbitration agreements on equal footing with other contracts_”).

Under the FAA, ordinary principles of state contract law determine whether there is a valid agreement to arbitrate. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 264 (5th Cir.2004); J.M. Davidson, Inc., 128 S.W.3d at 227-28; In re Halliburton Co., 80 S.W.3d 566, 568 (Tex.2002). Because arbitration is contractual in nature, the FAA generally “does not require parties to arbitrate when they have not agreed to do so.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (“Arbitration under the [FAA] is a matter of consent, not coercion....”), quoted in E.E.O.C., 534 U.S. at 293-94, 122 S.Ct. 754; see also Bridas, 345 F.3d at 361 (citing J. Douglas Uloth & J. Hamilton Rial,- Ill, Equitable Estoppel as a Basis for Compelling Nonsignatories to Arbitrate — A Bridge Too Far?, 21 Rev. Litig. 593, 632 (2002)). Federal and Texas state courts have recognized, however, that “[i]t does not follow ... that under the [FAA] an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision”; instead, under certain circumstances, principles of contract law and agency may bind a non-signatory to an arbitration agreement. Fisser v. Int’l Bank, 282 F.2d 231, 233 (2d Cir.1960), quoted in Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen, 206 F.3d 411, 416 (4th Cir.2000), and Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995); see also Bailey, 364 F.3d at 267 (quoting Thomson-CSF, 64 F.3d at 776); In re FirstMerit Bank, 52 S.W.3d at 755 (citing Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 520 (Tex.App.-Austin 1998, no pet.)); S.W. Tex. Pathology Assocs. v. Roosth, 27 S.W.3d 204, 208 (Tex. App.-San Antonio 2000, pet. dism’d w.o.j.).

Although state law determines the validity of an arbitration agreement, courts have applied both federal and state law to determine the related, but distinct, issue of whether non-signatory plaintiffs should be compelled to arbitrate their claims. See, e.g., Bailey, 364 F.3d at 267-68 (applying federal law); Bridas, 345 F.3d at 355-63 (applying federal law); Fleetwood Enters. v. Gaskamp, 280 F.3d 1069, 1074-77 (5th Cir.2002) (applying state-law); Roosth, 27 S.W.3d at 208-09 (applying state law); Dyer, 969 S.W.2d at 520 (applying state law); Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 871 So.2d 380, 392-95 (La.Ct.App.2004) (applying federal and state law). The FAA does not specify whether state or federal law governs, and the United States Supreme Court has not directly addressed the issue.

Federal courts of appeals, however, have frequently applied federal substantive law when deciding whether a non-signatory must arbitrate. See, e.g., Bailey, 364 F.3d at 267 n. 6; Bridas, 345 F.3d at 355-63; InterGen N.V. v. Grina, 344 F.3d 134, 142-50 (1st Cir.2003); Dominium Austin Partners v. Emerson, 248 F.3d 720, 728 (8th Cir.2001); Int’l Paper Co., 206 F.3d at 417 n. 4; Thomson-CSF, 64 F.3d at 778-79. The Fourth and Fifth Circuits have reasoned that “ ‘federal substantive law of arbitrability’... resolve[s] this question,” because the determination of whether a non-signatory is bound “presents no state law question of contract formation or validity.” R.J. Griffin & Co. v. Beach Club II Homeowners Ass’n, 384 F.3d 157, 160 n. 1 (4th Cir.2004) (quoting Int’l Paper Co., 206 F.3d at 417 n. 4); Bailey, 364 F.3d at 267 n. 6 (same). We are not convinced that state law plays no role in making this determination. See Roosth, 27 S.W.3d at 208-09 (applying state law); Dyer, 969 S.W.2d at 520 (applying state law). Nevertheless, we are mindful of the extensive body of federal precedent that has explored the extent to which non-signatories can be compelled to arbitrate. Moreover, we recognize that it is important for federal and state law to be as consistent as possible in this area, because federal and state courts have concurrent jurisdiction to enforce the FAA. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Our decision today rests on state law, but it is informed by persuasive and well-reasoned federal precedent.

Federal courts have recognized six theories, arising out of common principles of contract and agency law, that may bind non-signatories to arbitration agreements: (1) incorporation by reference; (2) assumption; (3) agency; (4) alter ego; (5) equitable estoppel, and (6) third-party beneficiary. See, e.g., Bridas, 345 F.3d at 356. Here, MacGregor asserts that KBR is bound to arbitrate under the doctrine of “direct benefits estoppel” — a type of equitable estoppel that federal courts apply in the arbitration context. See, e.g., Bailey, 364 F.3d at 268; Bridas, 345 F.3d at 361-62; E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 199-201 (3d Cir.2001); Int’l Paper Co., 206 F.3d at 418.

Under “direct benefits estop-pel,” a non-signatory plaintiff seeking the benefits of a contract is estopped from simultaneously attempting to avoid the contract’s burdens, such as the obligation to arbitrate disputes. R.J. Griffin & Co. at 160-61; Bailey, 364 F.3d at 268; Int’l Paper Co., 206 F.3d at 418 (“[T]he doctrine recognizes that a party may be estopped from asserting that the lack of his signature precludes enforcement of the contract’s arbitration clause when he has consistently maintained that other provisions of the same contract should be enforced to benefit him.”); Thomson-CSF, 64 F.3d at 778. Thus, a non-signatory plaintiff may be compelled to arbitrate if it seeks to enforce terms of a contract containing an arbitration provision. See R.J. Griffin & Co., 384 F.3d at 161-64; Bailey, 364 F.3d at 268; Bridas, 345 F.3d at 361-62 (“Direct benefits estoppel applies when a non-signatory ‘knowingly exploits the agreement containing the arbitration clause.’ ”) (quoting E.I. DuPont de Nemours & Co., 269 F.3d at 199); Int’l Paper Co., 206 F.3d at 418. For example, if a non-signatory’s breach-of-warranty and breach-of-contract claims are based on certain terms of a written contract, then the non-signatory cannot avoid an arbitration provision within that contract. See Int’l Paper Co., 206 F.3d at 418. If, however, a non-signatory’s claims can stand independently of the underlying contract, then arbitration generally should not be compelled under this theory. See, e.g., R.J. Griffin & Co., 384 F.3d at 164; Bridas, 345 F.3d at 362.

Consistent with the federal doctrine of “direct benefits estoppel,” this Court has held that a non-signatory plaintiff may be compelled to arbitrate if its claims are “based on a contract” containing an agreement to arbitrate. In re FirstMerit Bank, 52 S.W.3d at 755 (“[A] litigant who sues based on a contract subjects him or herself to the contract’s terms”). In FirstMerit Bank, the non-signatory plaintiffs sued the signatory defendant for, among other things, breach of contract, revocation of acceptance, and breach of warranty. Id. at 752-53, 755. By bringing the breach-of-contract and breach-of-warranty claims, the plaintiffs sought benefits that stemmed directly from the contract’s terms. We concluded that, by seeking to enforce the contract, the non-signatory plaintiffs “subjected themselves to the contract’s terms, including the Arbitration Addendum.” Id. at 756; see also Roosth, 27 S.W.3d at 208 (“The nonsignatory cannot enforce specific terms of the agreement while seeking to avoid the arbitration provision.”).

The issue here is whether KBR sought to enforce terms of the fabrication subcontract by (1) bringing a quantum meruit claim against MacGregor, or (2) seeking a declaration that it possessed valid liens. We begin with quantum meruit.

Quantum meruit is an equitable remedy that “ ‘is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted.’ ” Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990) (quoting Truly v. Austin, 744 S.W.2d 934, 936 (Tex.1988)). A party generally cannot recover under quantum meruit when there is a valid contract covering the services or materials furnished. Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex.1995); Woodard v. S.W. States, Inc., 384 S.W.2d 674, 675 (Tex.1964) (“Recovery on an express contract and on quantum meruit are inconsistent.”). A party to a contract may, however, seek alternative relief under both contract and quasi-contract theories. Pleading in the alternative does not defeat the effect of an arbitration clause that broadly covers all disputes between signatories that arise out of the underlying agreement. But in this case, KBR is not a signatory to 'the fabrication subcontract between MacGregor and Uni-dynamics; therefore, the scope of that subcontract’s arbitration clause does not answer whether KBR must arbitrate.

To advance its estoppel theory, MacGregor contends that KBR’s quantum meruit claim is “based on” the fabrication subcontract in the sense that KBR’s labor and services were linked inextricably to that subcontract. It is true, of course, that KBR was fabricating trunks that were at the contract’s core and that, in performing the work, KBR relied on the fabrication subcontract’s specifications. However, under “direct benefits estoppel,” a non-signatory plaintiff cannot be compelled to arbitrate on the sole ground that, but for the contract containing the arbitration provision, it would have no basis to sue. The work to be performed under a second-tier subcontract will inherently be related to and, to a certain extent, defined by contracts higher in the chain. See Black’s Law Dictionary 1464 (8th ed.2004) (defining subcontractor as “[o]ne who is awarded a portion of an existing contract by a contractor, esp. a general contractor”). If this were a sufficient basis for binding a non-signatory subcontractor, arbitration agreements would become easier to enforce than other contracts, counter to the FAA’s purpose. See InterGen, 344 F.3d at 145-46 (noting that federal courts have “been hesitant to estop a nonsignatory seeking to avoid arbitration”).

We conclude that, under “direct benefits estoppel,” although a non-signatory’s claim may relate to a contract containing an arbitration provision, that relationship does not, in itself, bind the non-signatory to the arbitration provision. Instead, a non-signatory should be compelled to arbitrate a claim only if it seeks, through the claim, to derive a direct benefit from the contract containing the arbitration provision. See Bailey, 364 F.3d at 268; MAG Portfolio Consult., GMBH v. Merlin Biomed Group LLC, 268 F.3d 58, 61 (2d Cir.2001) (“The benefits must be direct—which is to say, flowing directly from the agreement.”); Int’l Paper Co., 206 F.3d at 417-18; Thomson-CSF, 64 F.3d at 778-79; In re FirstMerit Bank, 52 S.W.3d at 755.

In its quantum meruit claim against MacGregor, KBR seeks payment for services rendered. KBR provided services pursuant to its contract with Unidy-namics. KBR’s asserted right to payment therefore stems directly from the KBR-Unidynamics contract, not the fabrication subcontract. The fabrication subcontract includes no provision for paying KBR. In fact, KBR is effectively precluded from asserting rights under that contract, which expressly provides that “Approved use of any subcontractor creates no contractual relationship between the subcontractor and [MacGregor].” Thus, we conclude that the court of appeals abused its discretion to the extent it compelled KBR to arbitrate its quantum meruit claim against MacGregor.

Having determined that KBR’s quantum meruit claim is not subject to arbitration, we turn to KBR’s lien-validity claims. KBR sought a judicial declaration that it possessed valid constitutional and warehouseman’s statutory liens. See Tex. Const, art. XVI, § 37; Tex. Bus. & Com. Code § 7.209(a)(1). The self-executing constitutional lien attaches to buildings and special-order articles that are made or repaired by mechanics, material men, and artisans who have a direct contractual relationship with the owner of the property. See Tex. Const. art. XVI, § 37; CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 240 (Tex.2002) (“[F]or constitutional liens that are self-executing, there are no technical requirements.... ”); First Nat’l Bank v. Whirlpool Corp., 517 S.W.2d 262, 268 (Tex.1974) (holding that “the constitutional lien on manufactured chattels is available ... only upon articles made especially for a purchaser-pursuant to a special order and in accordance with the purchaser’s plans or specifications”); Hayek v. W. Steel Co., 478 S.W.2d 786, 790 (Tex.1972); Strang v. Pray, 89 Tex. 525, 35 S.W. 1054, 1056 (1896). The warehouseman’s lien arises “against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation ..., insurance, labor, or charges present or future in relaT tion to the goods, and for expenses necessary for preservation of the goods.... ” Tex. Bus. & Com.Code § 7.209(a)(1); see also Flores v. Didear Van & Storage Co., 489 S.W.2d 406, 407-09 (Tex.Civ.App.-Corpus Christi 1972, no writ) (discussing validity and enforceability of warehouseman’s lien).

In this Court, MacGregor’s sole argument for compelling arbitration of KBR’s lien-validity claims is that the claims require a determination of ownership, and thus, they are “based on” the Title Agreement within the fabrication subcontract. Ownership was, of course, a central issue before and during the Paris arbitration. When the arbitration award resolved the ownership dispute, it also eliminated the only rationale that MacGregor has asserted thus far for arbitrating the liens’ validity-

We do not decide whether other arguments may exist to compel KBR to arbitrate the validity of its liens. To the extent a lien dispute still remains, the trial court is in the best position to determine, on principles we have declared today, whether it must be arbitrated.

y

Conclusion

We conditionally grant mandamus relief and order the court of appeals to vacate its order compelling KBR to “arbitrate all claims.” See 126 S.W.3d at 184. The writ will issue only if the court of appeals fails to comply.

Justice JOHNSON did not participate in the decision.

      . The term "Oy” for Finnish companies is an abbreviation of "osakeyhtió” ("osake” means "share,” "yhtio” means "society”). See http://encyclopedia. laborlawtalk.com/Oy (last visited May 18, 2005, and available in Clerk of Court’s file).

      . In October 2000, MacGregor and Unidy-namics entered into another subcontract, under which Unidynamics agreed to preassem-ble and install the elevator trunks. That subcontract is not at issue in this case.

      .The arbitration provision in ECE 188 provided: "Any dispute arising out of the Contract shall be finally settled, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce ["ICC”], by one or more arbitrators designated in conformity with those Rules."

      . See Tex. Const, art. XVI, § 37; Tex. Bus. & Com.Code § 7.209.

      . The parties agreed that the bond would be enforceable and payable in Texas, and that it would "constitute an unconditional promise to pay upon demand accompanied by proof of Final Judgment adjudicating the validity and amount, if any, of [KBR's] lien or liens against ... the collateral.”

      .As of the date of this opinion, the trial court has not acted on the court of appeals’ orders. Proceedings have not resumed in the trial court since the court of appeals ordered a stay on January 9, 2003. See 126 S.W.3d at 180-SI.

      . Most federal courts, however, list only five of these theories, omitting third-party beneficiary as a separate ground. See Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v. Custom Air Sys., Inc., 357 F.3d 266, 268 (2d Cir.2004); Javitch v. First Union Sec., Inc., 315 F.3d 619, 629 (6th Cir.2003); Fleetwood, 280 F.3d at 1076; Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir.2001); Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 446 (3d Cir.1999); Int’l Paper Co., 206 F.3d at 417; Thomson-C.S.F., 64 F.3d at 776.

      . While not all federal courts use the phrase "direct benefits estoppel,” we adopt that terminology from Bridas to describe this form of estoppel. See 345 F.3d at 361-62.

      . Federal courts have also applied “direct benefits estoppel” to bind "non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status but then, during litigation, attempt to repudiate the arbitration clause in the agreement.” E.I. DuPont de Nemours & Co., 269 F.3d at 200; see also InterGen, 344 F.3d at 146 (holding equitable estoppel theory inapplicable to non-signatory that did not seek to derive direct benefits from contracts "during their currency”); Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d Cir.1999) (holding non-signatory who received lower insurance rates and ability to sail under French flag due to contract was bound by arbitration clause within contract); In re VMS Ltd. P’ship Sec. Litig., 26 F.3d 50, 52 (7th Cir.1994) (holding wife bound by arbitration clause that only her husband signed as she accepted benefits of investment services). We do not reach this application of “direct benefits estoppel” here. MacGregor’s argument for arbitration rests not on KBR’s actions during the life of the fabrication subcontract, but on KBR's attempt to benefit from that contract through litigation.

      . See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999) ("The intention to contract or confer a direct benefit to a third party must be clearly and fully spelled out or enforcement by the third party must be denied.”); City of LaPorte v. Taylor, 836 S.W.2d 829, 831 (Tex.App.-Houston [1st Dist.] 1992, no writ) ("Generally, in construction contracts, in the absence of an express agreement to the contraiy, a subcontractor is not in privity with the owner....”).

      . KBR's petition included the following:
      29. Ownership. Given the Defendants' competing claims known to Plaintiff by the Defendants, Plaintiff seeks a declaration from the Court as to which Defendant(s) possesses the ownership rights, title and interest in the elevator shaft fabrications, component parts and other materials....
      30. Constitutional Lien. Subject to the determination of ownership, Plaintiff also seeks a judicial declaration that Plaintiff possesses a valid constitutional lien to the elevator shaft fabrications, component parts and other materials pursuant to Article 16, § 37 of the Texas Constitution.
      31. Statutory Lien. Subject to the determination of ownership, Plaintiff also seeks a judicial declaration that Plaintiff possesses a valid statutory lien to the elevator shaft fabrications, component parts and other materials pursuant to § 7.209 of the Texas Business and Commerce Code.
      (Emphasis added.)