SER Airsquid Ventures, Inc. v. Hon. David W. Hummel, Jr.
SER Airsquid Ventures, Inc. v. Hon. David W. Hummel, Jr.
Concurring Opinion
concurring:
The issue in this case is simply -one of interpretation. The contract clause at issue provides:
*149 Venue and Jurisdiction: I understand that if legal action is brought, the appropriate state or federal trial court for the state in which the [Tough Mudder] event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the [Tough Mudder] event is held •shall apply.
(Emphasis added). The parties’ dispute concerns the meaning of the words “the appropriate” and whether the Marshall County Circuit Court — the court in which the plaintiff filed her complaint — is “the appropriate” venue within the meaning of the forum selection clause.
In determining the applicability óf the forum selection clause, the first step is to examine whether the clause is ambiguous. Kohler Co. v. Wixen, 204 Wis.2d 327, 555 N.W.2d 640, 644 (1996). “ ‘A contract is ambiguous when it is reasonably susceptible to more than one meaning in light of the surrounding circumstances and after applying the established rules of construction.’ ” Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W.Va. 97, 101, 468 S.E.2d 712, 716 (1996) (quoting Williams v. Precision Coil, Inc., 194 W.Va. 52, 65, 459 S.E.2d 329, 342 (1995)). “If language in ‘a contract is found to be plain and unambiguous, such language should -be applied according to such meaning.” Id.
Here, the words in dispute are “the” and “appropriate.” With regard to the operation of the definite article “the,” the Court has said:
The definite article “the” partieularizes'the subject which it precedes: “law-enforcement officer.” In other words, the statute uses the word “the” to refer t'o a specific law-enforcement officer. See, e.g., [St.] Clair v. Commonwealth, No. 2011-SC-000774-MR, [451] S.W.3d [597], [625], 2014 WL 4113014, at *17 (Ky. 2014) (“The use of the definite article, the word ‘the,’ signals a specific thing.”); Yellowbird v. N.D. Dep’t of Transp., 833 N.W.2d 536, 539 (N.D. 2013) (“ ‘[T]he’ is [a]n article which particularizes the subject spoken of. In construing [a] statute, definite article ‘the’ particularizes the subject which it precedes and is [a] ward of limitation as opposed to indefinite or generalizing force [of/ ‘a’ or ‘an.’” (Internal quotation and citation omitted.)); New Iberia Firefighters Ass’n, Local 776 v. City of New Iberia, 140 So.3d 788, 792-93 (La.Ct.App. 2014) (“ ‘The’ is a definite article, which refers to a specific person, place, or thing; ■ whereas ‘a’ or ‘an’ are indefinite articles, which refer to people, places, or things in a general or nonspecific manner.”); In re AJR, 300 Mich. App. 597, 834 N.W.2d 904, 907 (2013) (“[I]f the Legislature wants to refer ,to something particular, not general, it uses the word ‘the,’ rather than ‘a’ or ‘an,’ ”); cf. Maupin v. Sidiropolis, 215 W.Va. 492, 497, 600 S.E.2d 204, 209 (2004) (“Typically, though, ‘an’ is construed as making general, rather than specific, references to , its words of modification.”). .
Dale v. Painter, 234 W.Va. 343, 351, 765 S.E.2d 232, 240 (2014) (emphasis added). Plainly, the use of the word “the” in the clause limits the location, in which the suit may be heard to one state court.
The word “appropriate” is defined’ as “especially suitable or compatible: FITTING,” Merriam-Webster’s Collegiate Dictionary 61 (11th ed. 2005), and “[specifically fitted or suitable, proper,” 1 The Oxford English Dictionary 586 (2d ed. 1991). Cf. Black’s Law Dictionary 1790 (10th ed. 2014) (defining “venue” as “[t]he proper or possible place for a lawsuit to proceed, usu. because the place has some connection éither with the events that gave rise to the lawsuit or with the plaintiff or defendant.”).'
The plain meaning of the, language in dispute, “the appropriate,”, when read in conjunction with the other language in- the forum selection clause, permits the parties to file suit in the one state court that is especially suitable, compatible, and fitting to hear the case.
Both the majority of the Court and Justice Davis in her dissent conclude that the forum selection clause is ambiguous, and so they turns to different sections -of our venue statute, W. Va.Code § 56-1-1 (2007), to interpret the clause. - I do not believe that the section is ambiguous, and therefore,. I do not believe the Court needs to look for direction from our venue statute.
Opinion of the Court
-, Through this consolidated action, Airsquid Ventures,. Inc. d/b/a Amphibious Medics (“Airsquid’’),. Tough Mudder, LLC,
I. Factual and Procedural Background
The decedent, Avishek Sengupta, was a participant in the Tough Mudder Mid-Atlantic event (the “Event”) that took place on April- 20, 2013, in Gerrardstown, Berkeley County, West Virginia. Mr. Sengupta drowned while attempting to complete an obstacle known as “Walk the Plank” that was part of the Event. ■ Following Mr. Sengupta’s death,
Included in the complaint is a request for declaratory judgment
After observing that the issue of venue is a procedural, question determined by West Virginia law,
II. Standard of Review
As Justice Cleckley sagely exposited in State ex rel. Riffle v. Ranson, 195 W.Va. 121, 464 S.E.2d 763 (1995), the inadequacy of appellate relief in matters involving' “a substantial legal issue regarding venue” may require the resolution of such issues through the exercise of original jurisdiction.
III. Discussion-
In ruling on this matter below, the trial court decided the issue of venue based on the following .language included in, the Agreement:
Venue and Jurisdiction: I understand that if legal action is brought, the appropriate state- or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM10 event is held shall apply, (emphasis supplied and footnote added)
Patently eliding the critical article of speech (“the”) that precedes the term “appropriate,” the trial court interpreted the Agreement as providing that venue is proper in any West Virginia court that has subject matter jurisdiction. The Tough Mudder Defendants maintain that the circuit court erred by altering “the” to “any” and thereby improperly rewrote the provision át issue.
As additional support for the extraordinary relief they seek, the Defendants assert that Mrs. Sengupta has failed to identify any venue-determinative event associated with Marshall County. They maintain that all of the acts of omissions relevant to the complaint took place in Berkeley County. Not only do none of the Defendants reside in Marshall County,
In addition to asserting that her forum choice should be strongly favored in deciding venue,
Forum selection clauses, as we observed in Caperton, are not contrary to public policy. 225 W.Va. at 142, 690 S.E.2d at 336. Provided they are fair and reasonable, such clauses are deserving of enforcement. Id. at 141, 690 S.E.2d at 335. In the case before us, the issue presented with the forum selection clause is not one of enforceability per se but one of interpretation. The parties simply disagree on what the clause specifies in terms of forum selection. .Rather than squarely address the issue of differing interpretations, the circuit court simply omitted reference to a key term of the phrase at issue — “the appropriate state or, federal trial court.” Wholly ignoring the limiting effect of the term “the,” the lower court declared the agreed-upon forum to be “any” state or federal court that a plaintiff selects. Not only did the circuit court alter the terms of the Agreement with its revisionary analysis, but it clearly overlooked the significance of the related term “appropriate.” The inclusion of that term — appropriate—implicitly incorporates this state’s general venue statute. See W.Va.Code § 56-1-1. Only by examining the venue statute, can it be determined which state court is the appropriate court in which to bring suit under the terms of the Agreement.
Before proceeding to analyze the provisions of West Virginia Code § 56-1-1 to identify the county in which venue lies, we first address Mrs. Sengupta’s contention that the Agreement “expressly repudiated procedural statutes in the consideration of venue and jurisdiction.” This assertion readily fails upon examination. Rather than excluding the procedural laws of this state, the express reference to only the substantive laws of this state was the rpeans by which to avoid a conflict of laws issue. The use of the term “only” was clearly meant to bar from consideration the substantive laws of any other state. It was not intended to, and neither could it, prevent application of the procedural laws of this state. Accordingly, we hold that a choice of laws provision in an agreement that provides for the substantive laws of West Virginia to apply to disputes arising thereunder does not exclude the procedural laws of this state from applying to a matter that will be" resolved in this state’s courts. The procedural laws of this state necessarily apply to matters that are brought in the courts of West Virginia.
Turning to this state’s general venue statute, as. is required, we examine the bases .set forth in West Virginia Code-§ 56-1-1. for determining venue. Under that statute, the primary factors for determining venue are the county, in which “any of-the defendants may reside or the cause of action arose.” W.Va.Code.§ 56-l-l(a)(l). When the defendant is a corporation, its residency is determined based on either the location of its principal office or the location of its “mayor, president or other chief officer.” Id. at § 56-l-l(a)(2). In this case, neither the principal offices nor the residences of the respective corporate presidents or chief officers of the defendants are in Marshall Coun
Applying the applicable factors set forth in West Virginia Code § 56-l-l(a)(l), we look to whether venue exists in Marshall County. Not a single defendant, corporate or individual,
Each and every critical event • that .took place relevant to the alleged wrongful death occurred in Berkeley County. The fact that General Mills sells products in Marshall County is wholly insignificant to the venue-determinative facts of this case. Because it also sells products in Berkeley County, there is nothing statistically significant about the sales by General Mills of products in Marshall County that could tip the proverbial scales of justice in favor of venue existing in Marshall County. In the same fashion, we do not find the reach of the internet to advertise or promote either General Mills
The trial court unquestionably committed error in its rewriting of the venue and jurisdiction clause to broadly restate the Agreement as one that contemplated the filing of a lawsuit in any county 'in this state.
IV. Conclusion
Having determined that venue does not lie in Marshall County under the Agreement or the provisions of our general venue statute, we conclude that the Tough Mudder Defendants have established their entitlement to a writ of prohibition. Rather than dismiss the case outright, however, we grant the alternative relief sought by the Defendants and direct the Circuit Court of Marshall County to transfer the underlying case to the Circuit Court of Berkeley County.-
Writ granted.
. Since the filing of this action,- Tough Mudder LLC has redesignated its corporate identity as Tough Mudder Incorporated.
. He was taken off life support on April 21, 2013.
. The complaint, filed on April; 18, 2014, includes three counts: wrongful death; unenforceability of arbitration clause; and unenforceability of waiver agreement.
. Asserting claims against six different parties, Mrs. Sengupta alleges that Tough Mudder had primary responsibility -for -participant safety; Airsquid was responsible for providing safety personnel and services; Tfavis Pittman was the designated rescue diver; Peacemaker participated in advertising, construction, and permitting of the Event; and the two General Mills entities promoted and sponsored the Event.
. A second request for declaratory relief involves the arbitration clause included in, the Agreement, The trial court’s ruling, refusing to submit this matter to arbitration, is the subject of a separate appeal that has not yet been accepted to-the docket of this Court. ,
. In addition to seeking dismissal or transfer due to improper venue, the Defendants asserted that the matter should be transferred on grounds of forum non conveniens. Because we resolve the matter before us on venue, we find it unnecessary to address the alternate ground of forum non conveniens.
. See State ex rel. Chemical Tank Lines, Inc. v. Davis, 141 W.Va. 488, 494-95, 93 S.E.2d 28, 32 (1956) ("Venue is procedural and statutes relating thereto are so treated.”); accord State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 232, 366 S.E.2d 738, 740 (1988) (recognizing W.Va.Code § 56-1-1 as procedural statute relating to venue).
. Having declared venue to be a procedural matter, the circuit court concluded -that the procedural laws of this state were inapplicable given the provision in the Agreement that declared this state’s laws controlling for substantive matters. The circuit court took the position that by referencing only the substantive laws of this state as being applicable, the Agreement necessarily excluded the application of this state's procedural laws.
. See W.Va. Const, art. VIII, § 3.
. Tough Mudder.
. Peacemaker is the only one of the Defendants who resides in West Virginia; Peacemaker resides in Berkeley County.
. We commented in Thornhill that “[u]nder the provisions of our general venue statute' [W.Va. Code § 56-1-1], the place of the plaintiff’s residency has no independent bearing on where an action may be maintained." 233 W.Va. at 570-71, 759 S.E.2d at 801-02. In this case, the plaintiff is a Maiyland resident so her personal residency does not impact the venue determination.
. See infra note 18.
. Wheaties cereal is the tie-in product.
. This averment pertains to the General Mills defendants.
. See supra note 8.
.If the choice of forum clause is specific and the parties agreed to a particular county for venue purposes, the provisions of the general 'venue statute would not be necessary' to identify the county having venue over a dispute arising . under that agreement.
.Mrs. Sengupta wrongly relies upon West Virginia Code § 56-l-la(a) as support for the proposition that "the plaintiff’s choice of a forum is entitled to great deference." That statement is included in the forum non conveniens statute — a statute distinct from the venue statute — which provides authority for seeking the transfer of a case filed in West Virginia to. "a, forum outside this State." Id. (emphasis supplied). That statute has no bearing on the issue of venue before us.
. Mr. Travis, like Mrs. Sengupta, is a Maryland resident.
. Similarly tmpersuasive is the fact‘that 111 of the 1.6 million cumulative total of Tough Mudder participants at events throughout the country were from Marshall County. On the date of the Event relevant to this case, two Marshall County residents were included among the 14,925 participants.
. Cf. Nutraceutical Corp. v. Vitacost.com, Inc., 2006 WL 1493224, *5 (D.Utah 2006) (finding that corporation’s operation of "website with a high level of interactivity, which encourages customers accessing its website to order its products” fell "within the sliding scale category of website that allows a defendant to 'do business' and ‘enter into contracts with residents of foreign jurisdictions over the Internet'").
. Airsquid had no connection to Marshall County. Similarly, Tough Mudder did not conduct any business in Marshall County, As discussed above, Mrs. Sengupta looks to the generalized sales of cereal products in Marshall County as the grounds upon which to argue that it is appropriate to bring her suit in Marshall County. There has been no allegation that the decedent's death resulted from his purchase of Wheaties cereal or consumption.
. She has additional counsel with offices in Andover, Massachusetts.
.In reaching its decision on venue, the trial court erroneously looked beyond the four corners of the Agreement before it. There was no ambiguity in the terms of the Agreement to warrant a consideration of parol evidence for purposes of interpretation. Any reference to agreements utilized in prior Tough Mudder events, specifying a distinct geographical forum selection, was improper as those provisions have no .bearing on the issue of venue in this case. This Court, like the circuit court, is required to limit its examination and rulings to the present controversy. To do otherwise, is to engage in an ill-advised and wholly improper advisory-based analysis. See State ex rel. Morrisey v. Office of Disciplinary Counsel, 234 W.Va. 238, 246, 764 S.E.2d 769, 777 (2014) (recognizing well-ensconced judicial precedent, both state and federal, of refraining from answering or even addressing issues not properly before us).
Dissenting Opinion
dissenting:
In deciding the case sub judice, the majority of the Court ostensibly applies this State’s venue statute, W. Va.Code ,§ 56-1-1 (2007) (Repl. Vol. 2012), to conclude that Ms. Seng-upta’s choice of venue in the corporate defendants’ place of business is improper. To reach this decision, the majority myopically focuses upon the first subsection of the venue statute, ie. W. Va.Code § 56-l-l(a)(l), which applies to individuals named as defendants. In doing So, the majority accords short shrift to the immediately succeeding subsection of the venue statute, ie. W. Va.Code § 56-1-1(a)(2), which governs venue determinations for corporations named as defendants. Because W. Va.Code § 56-l-l(a)(2) expressly allows suit to be filed against a corporate defendant “wherein it does business” and because the corporate organizers and sponsors of the event at issue in this case unquestionably do business in Marshall County, venue in Marshall County was proper. Accordingly, the writ of prohibition should have been denied, and I dissent from the majority’s contrary ruling.
A. Contractual Interpretation
At issue herein is :the construction to be afforded to the forum selection clause contained in the waiver of liability contract drafted by Tough Mudder and signed by Ms. Sengupta’s son. Ordinarily, this Court looks to a contract’s plain language and applies it as it is written to effectuate the parties’ intent. See Syl. pt. 2, Bethlehem Mines Corp. v. Haden, 153 W.Va. 721, 172 S.E.2d 126 (1969) (“Where the terms of a contract are clear and unambiguous, they must be applied and not construed.”). However, when the meaning of contractual terms are not clearly delineated, “any term that has significance in a given contract ... must be defined based on the subject matter of the contract and the intent of the document’s drafters.” Benson v. AJR, Inc., 215 W.Va. 324, 327, 599 S.E.2d 747, 750 (2004) (per curiam). Accord Oresta v. Romano Bros., Inc., 137 W.Va. 633, 644, 73 S.E.2d 622, 628 (1952) (recognizing “general .rule” that “words in a contract will be given their usual and primary meaning at the time of the execution of the contract” (citation omitted)). And, “[i]n case of doubt, the construction of-a written instrument is to be taken most strongly against the party preparing it.” Henson v. Lamb, 120 W.Va. 552, 558, 199 S.E. 459, 461-62 (1938). See also State ex rel. Richmond Am. Homes of West Virginia, Inc. v. Sanders, 228 W.Va. 125, 140 n. 61, 717 S.E.2d 909, 924 n. 61 (2011) (commenting “that ambiguous contract provisions, especially those having the qualities of a contract of adhesion, are to be,.construed against the drafter” (internal citations and quotation omitted)).
The contractual language at the center of the instant controversy provides, in relevant part:
Venue and Jurisdiction: I understand that if legal action is brought, the appropriate state or federal court for the state in which the TM [Tough Mudder] Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM Event is held shall apply.
This language very simply states that the parties have agreed, and thus are contractu
B. Statutory Application
The statute that defines the propriety of venue in this State is W. Va.Code § 56-1-1. In its opinion, the majority examined where venue would lie, for the corporate defendants herein, relying primarily upon the language of W. Va.Code § 56-l-l(a)(l). In actuality, subsection (a)(2) speaks specifically to the appropriate venue for corporate defendants:
(a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:
(2) If a corporation be ■a defendant, wherein its principal office is or wherein its mayor, president or other chief officer resides; or if its principal office be not in this State, and its mayor, president or other chief officer do not reside therein, wherein it does business; or if it be a . coiporation organized under the laws of this State which has its principal office located outside of this State and which has no office or place of business within the State, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or -suits in equity against the corporation, where-the cause' of action arose in this State or grew out of the rights of stockholders with respect to corporate management^]
W. Va.Code § 56 — 1—1(a)(2) (emphasis added). Over one-hundred years ago, this Court interpreted this statutory language to mean that -
[a] foreign corporation doing business in this state, having no principal office or president or other chief officer resident therein, may be sued in any county wherein it does business ... if process can be legally served in such county.
Syl. pt. 1, in part, Humphreys v. Newport News & M.V. Co., 33 W.Va. 135, 10 S.E. 39 (1889) (emphasis added). See also Syl. pt. 2, Banner Printing Co. v. Bykota Corp., 182 W.Va. 488, 388 S.E.2d 844 (1989) (“Under W. Va.Code, 56-l-l(a) [1986], venue of an action against á corporate defendant lies in the county where the cause of action arises, in addition to those locations specified in W. Va.Code, 56-1-1 (a)(2).” (emphasis added)). Insofar as it is undisputed that the corporate defendants herein neither have them principal office in West Virginia nor have resident corporate officers in this State, the plain language of W. Va.Code § 66-l~l(a)(2), as confirmed by this Court’s longstanding interpretation thereof, makes clear that venue is proper “wherein [the defendant corporation] does business.” Without question, the corporate defendants conducted business in Marshall County by advertising the subject event and selling products marketing the same thus subjecting them to venue in that county. To the extent that Marshall County is an appropriate venue, for the corporate defendants, so too.is it proper.for the.solitary individual defendant. See State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 231, 366 S.E.2d 738, 739 (1988) (“This Court follows the venue-giving defendant principle, whereby, once venue is proper for one defendant, it is proper for all other defendants subject to process.” (citations omitted));
Just as contracting parties must ensure that their agreement’s written terms express their true intent, so, too,' is it the responsibility of this Court to afford the contracting parties’ intent full force and effect. In other words, this Court is required to apply a contract’s plain language insofar as those are the terms to which the parties assented and for which they gave consideration. While thq majority inexplicably inserts an invisible “most” to qualify the term “appropriate” in its determination that Bérkeley County is'the one and only suitable forum to 'entertain the instant suit, the language agreed to, and adopted by, the parties simply requires that the selected forum be “appropriate.” The parties’ contractual language is silent as to how venue should be determined if more than one court qualifies as “appropriate.” Absent such clarification, the majority should have enforced the parties’ forum selection clause as it was written. It is not the pre- . rogative of this Court to read into a contract that which, it does not say: “It is not the right or provinee: of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.” Syl. pt. 3, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
In ruling upon the defendants’ motions to dismiss for improper venue, the circuit court correctly considered the relevant factors requisite to such an analysis and refused to substitute its venue preference for that of the plaintiff. See generally Caperton v. A.T. Massey Coal Co., Inc., 225 W.Va. 128, 690 S.E.2d 322 (2009). The majority of the Court, however, has failed to exercise the same restraint.
For the foregoing reasons, I respectfully dissent.
Reference
- Full Case Name
- STATE of West Virginia, Ex Rel. AIRSQUID VENTURES, INC. (d/B/A Amphibious Medics), and Travis Pittman, Petitioners v. Honorable David W. HUMMEL, Jr., Judge of the Circuit Court of Marshall County, Mita Sengupta, as Personal Representative of the Estate of Avishek Sengupta, Tough Mudder, LLC, Peacemaker National Training Center, LLC, General Mills, Inc., and General Mills Sales, Inc., Respondents; And State of West Virginia Ex Rel. Tough Mudder, LLC, Peacemaker National Training Center, LLC, General Mills, Inc., and General Mills Sales, Inc., Petitioners. v. Honorable David W. Hummel, Jr., Judge of the Circuit Court of Marshall County, Mita Sengupta, as Personal Representative of the Estate of Avishek Sengupta, Respondents
- Cited By
- 7 cases
- Status
- Published