IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2016 Term 

FILED 

June 1, 2016 

released at 3:00 p.m. No. 15-0600 RORY L. PERRY, II CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

JEFFREY N. EVANS, individually and in his capacity as
 

an employee or agent of AMERIPRISE FINANCIAL SERVICES, INC.,
 

AMERIPRISE FINANCIAL SERVICES, INC., KRISTINA NICHOLLS,
 

individually, and STEPHEN BAYLES, individually,
 

Defendants Below, Petitioners
 

v. 

DEBRA K. BAYLES, 

Plaintiff Below, Respondent 

Appeal from the Circuit Court of Marshall County
 

Honorable David W. Hummel, Jr., Judge
 

Civil Action No. 14-C-139
 

REVERSED AND REMANDED
 

Submitted: April 19, 2016 

Filed: June 1, 2016 

Edward P. Tiffey, Esq. Herman D. Lantz, Esq. 

Tiffey Law Practice, PLLC Lantz Law Offices 

Charleston, West Virginia Moundsville, West Virginia 

Counsel for Petitioners Counsel for Respondent 

Jeffrey N. Evans and Ameriprise 

Financial Services, Inc. 
 

 

 

 

 

 

 

 

 

 

Deva A. Solomon, Esq. 

Steptoe & Johnson, PLLC 

Morgantown, West Virginia 

and 

Ancil G. Ramey, Esq. 

Steptoe & Johnson, PLLC 

Huntington, West Virginia 

Counsel for Petitioners Kristina 

Nicholls and Stephen Bayles 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “An order denying a motion to compel arbitration is an interlocutory ruling 

which is subject to immediate appeal under the collateral order doctrine.” Syl. Pt. 1, Credit 

Acceptance Corp. v. Front, 231 W.Va. 518, 745 S.E.2d 556 (2013). 

2. “In the law of contracts, parties may incorporate by reference separate 

writings together into one agreement. However, a general reference in one writing to another 

document is not sufficient to incorporate that other document into a final agreement. To 

uphold the validity of terms in a document incorporated by reference, (1) the writing must 

make a clear reference to the other document so that the parties’ assent to the reference is 

unmistakable; (2) the writing must describe the other document in such terms that its identity 

may be ascertained beyond doubt; and (3) it must be certain that the parties to the agreement 

had knowledge of and assented to the incorporated document so that the incorporation will 

not result in surprise or hardship.” Syl. Pt. 2, State ex rel. U-Haul Co. of W. Va. v. Zakaib, 

232 W.Va. 432, 752 S.E.2d 586 (2013). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOUGHRY, Justice: 

The petitioners, Ameriprise Financial Services, Inc. (“Ameriprise”), JeffreyN. 

Evans (“Mr. Evans”), Kristina Nicholls, and Stephen Bayles (collectively referred to as “the 

petitioners”), appeal the Circuit Court of Marshall County’s May 19, 2015, order denying 

their motion to dismiss and to compel arbitration. Relying upon the doctrine of contra 

proferentem,

1 the circuit court found the absence of a signature on a brokerage agreement 

created an ambiguity that invalidated the arbitration clause set forth therein. Upon our 

careful review of the briefs, the arguments of counsel, the record submitted, and the 

applicable law, we reverse the circuit court’s order and remand this action to the circuit court 

for further proceedings consistent with this opinion. 

I. Facts and Procedural Background 

In 2012, William Bayles (“Mr. Bayles” or “the decedent”), the late husband of 

the respondent, Debra Bayles (“Mrs. Bayles”), rolled over his 401(k) retirement account into 

individual retirement accounts with Ameriprise. Through Mr. Evans’ assistance, Mr. Bayles 

signed a Brokerage Individual Retirement Account (IRA) Application (“IRA Application”), 

1

See Amerix Corp. v. Jones, 457 F.App’x. 287, 292 n.3 (4th Cir. 2011) (“The doctrine 

of contra proferentem provides that ambiguous contractual provisions must be construed 

against the interests of the drafter.”). 

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bearing account number 264133,2 on June 21, 2012. Soon thereafter, Mr. Evans again 

assisted Mr. Bayles when he signed an Active Portfolios Application-IRA Account 

Application (“Portfolios Application”), bearing account number 961133, on September 5, 

2012.3 The first page of each application states that a copy of the related client agreement 

(“Brokerage Agreement”) must be provided to the client. In addition, the IRA Application 

contains a paragraph stating: 

You acknowledge that you have received and read the 

Ameriprise Brokerage Client Agreement (“Agreement”) and 

agree to abide by its terms and conditions as currently in effect 

or as they may be amended from time to time. You hereby 

consent to all these terms and conditions with full knowledge 

and understanding of the information contained in the 

Agreement. This brokerage account is governed by a predispute 

arbitration clause which is found on Section 26, page 3 of the 

Agreement. You acknowledge receipt of the predispute 

arbitration clause.4 

(Footnote added.). Similar language is provided in the Portfolios Application: 

You acknowledge that you have received and read the 

Ameriprise Active Portfolios Client Agreement (version K, 

dated 03/12), the Ameriprise Managed Accounts Client 

Disclosure Brochure and the Ameriprise Brokerage Client 

2

For purposes of our discussion, we will use the last six digits of the subject 

Ameriprise accounts, as reflected in the parties’ respective briefs. 

3

The Portfolios account was opened with a sum certain from IRA account number 

264133. 

4

The IRA Application also contains language stating: “[p]lease read . . . all related 

documents carefully, then sign and date below.” Directlyabove Mr. Bayles’ signature on this 

application are the words: “By entering your name below, you signify that you have read, 

met, and agreed to all terms and conditions above.” 

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Agreement, which is hereby incorporated by reference, and 

agree to abide by the terms and conditions as currently in effect 

or as they may be amended from time to time. You hereby 

consent to all these terms and conditions with full knowledge 

and understanding of the information contained in them. This 

account is governed by a predispute arbitration provision which 

is found in Section 25, Page 9 of the Active Portfolios Client 

Agreement and Section 26, Page 3 of the Brokerage Client 

Agreement. You acknowledge receipt of the predispute 

arbitration provision.5 

(Footnote added.). The arbitration clause in each Brokerage Agreement begins with the 

words: “This agreement contains a predispute arbitration clause. By signing this 

Agreement the parties agree as follows . . . .” (Bold in original.).6 

Mr. Bayles died on March 26, 2013.7 Although Mrs. Bayles believed she was 

the intended beneficiary on the Portfolios account, Ameriprise’s documentation, including 

a change of beneficiary form, indicated that Kristina Nicholls and Stephen Bayles, the 

5

The Portfolios Application also provides “[b]y signing this Application . . . you agree 

to all terms and conditions stated in this Application and in the related documents provided 

to you[.]” Similar to the IRA Application, directly above Mr. Bayles’ signature on the 

Portfolios Application are the words: “By signing this Application, you acknowledge that 

you have received, read and agree to the terms and conditions of the Active Portfolios Client 

Agreement[.]” 

6

For ease of reference, the “predispute arbitration clause” will be referred to as the 

“arbitration clause.” 

7

Mrs. Bayles was named the administratrix of her late husband’s estate. 

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decedent’s children, were the designated primary beneficiaries in equal shares on both the 

IRA and the Portfolios accounts. 

On September 5, 2014, Mrs. Bayles filed a complaint in her individual capacity 

challenging Ameriprise’s payout of the proceeds in the Portfolio account (number 961133) 

to the decedent’s children. She asserted claims against Ameriprise and its agent, Mr. Evans, 

related to both accounts, including negligence, detrimental reliance, respondeat superior, and 

breach of a contract.8 She also asserted an unjust enrichment claim against the decedent’s 

children in relation to their receipt of the proceeds from the Portfolios account. 

On November 17, 2014, the petitioners filed a motion to dismiss and compel 

arbitration. The circuit court held a hearing on the motion on February 27, 2015. On May 

19, 2015, the circuit court entered its order denying the motion. 

The circuit court’s order only addressed the IRA account (number 264133). 

The circuit court found the IRA Application for this account referenced the Brokerage 

Agreement, which included an arbitration clause that stated, in part: “By signing this 

8

Mrs. Bayles argued below, as well as before this Court, that these accounts are not 

a predicate for her claims of negligence and detrimental reliance against Mr. Evans, whom 

she alleges made misrepresentations for the purpose of inducing her to sign a spousal consent 

for the rollover of her husband’s 401(k) account. 

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Agreement, the parties agree as follows . . . .”9 Observing the IRA Application was signed, 

but the Brokerage Agreement was not, the circuit court found “the absence of a signature 

within the Brokerage Agreement create[d] an ambiguity to be construed against the drafter, 

Defendant Ameriprise Financial Services, Inc. . . . under the doctrine of contra 

proferentem.”10 Based on this finding, the circuit court ruled “as a matter of law that the 

decedent [Mr. Bayles] did not enter into a valid arbitration agreement with Ameriprise[.]” 

This appeal followed. 

II. Standard of Review 

The circuit court’s denial of the petitioners’ motion to dismiss and to compel 

arbitration is subject to an immediate appeal. In Credit Acceptance Corp. v. Front, 231 

W.Va. 518, 745 S.E.2d 556 (2013), we held: “An order denying a motion to compel 

arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral 

order doctrine.” 231 W.Va. at 519, 745 S.E.2d at 557, syl. pt. 1. Further, 

[w]hen an appeal from an order denying a motion dismiss 

is properly before this Court, our review is de novo. See, e.g., 

Syl. pt. 4, Ewing [v. Bd. of Educ.], 202 W.Va. 228, 503 S.E.2d 

541 [(1998)] (“When a party, as part of an appeal from a final 

judgment, assigns as error a circuit court’s denial of a motion to 

9

The arbitration clause is several paragraphs in length. We have not set forth the 

content of the arbitration provisions because they are irrelevant to our analysis of the circuit 

court’s narrow ruling in this matter. 

10See supra note 1. 

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dismiss, the circuit court’s disposition of the motion to dismiss 

will be reviewed de novo.”). 

Credit Acceptance, 231 W.Va. at 525, 745 S.E.2d at 563. To the extent our analysis requires 

us to consider the circuit court’s interpretation of a contract, our review is also plenary. 

Zimmerer v. Romano, 223 W.Va. 769, 777, 679 S.E.2d 601, 609 (2009) (“[W]e apply a de 

novo standard of review to the circuit court’s interpretation of the contract.”) (citation 

omitted). Accordingly, we proceed with our de novo review of the circuit court’s ruling in 

this matter. 

III. Discussion 

The sole issue before this Court is whether the circuit court erred by 

invalidating the arbitration clause in the Brokerage Agreement associated with the IRA 

account (number 264133). The circuit court found the absence of a signature on the 

Brokerage Agreement created an ambiguity to be construed against the drafter, Ameriprise, 

under the doctrine of contra proferentem. The petitioners assert that because the decedent 

signed the IRA Application, which incorporated the Brokerage Agreement by reference, the 

absence of a signature on the Brokerage Agreement did not create an ambiguity under the 

doctrine of contra proferentem. Reyling upon language in the arbitration clause expressly 

contemplating a signature on the Brokerage Agreement, Mrs. Bayles argues the absence of 

her late husband’s signature on that agreement demonstrates the parties did not intend to be 

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bound by the arbitration clause and creates an ambiguity that must be construed against 

Ameriprise. 

We begin our analysis byobserving that the validityof an arbitration agreement 

is a matter of state contract law. See State ex rel. Clites v. Clawges, 224 W.Va. 299, 305, 685 

S.E.2d 693, 699 (2009) (“[I]ssue of whether an arbitration agreement is a valid contract is 

a matter of state contract law[.]”). Recently, in State ex rel. U-Haul Co. v. Zakaib, 232 

W.Va. 432, 752 S.E.2d 586 (2013), we applied contract principles in addressing the denial 

of a motion to compel arbitration. In analyzing U-Haul’s argument that a “single contract 

may be comprised of separate documents,”11 we recognized that “‘[a] majority of courts hold 

that for the terms of one document to be incorporated by reference into a writing executed 

by the parties, ‘the reference must be clear and unequivocal, the reference must be called to 

the attention of the other party and he must consent thereto[.]’” Id. at 438, 442, 752 S.E.2d 

at 593, 596 (citation omitted). Relevant to the matter currently before us, we held in U-Haul 

that 

[i]n the law of contracts, parties may incorporate by reference separate 

writings together into one agreement. However, a general reference in one 

writing to another document is not sufficient to incorporate that other 

document into a final agreement. To uphold the validity of terms in a 

document incorporated by reference, (1) the writing must make a clear 

11U-Haul maintained the circuit court had erred by refusing to acknowledge that an 

Addendum containing an arbitration clause and a Rental Contract formed the parties’ entire 

agreement. 

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reference to the other document so that the parties’ assent to the reference is 

unmistakable; (2) the writing must describe the other document in such terms 

that its identity may be ascertained beyond doubt; and (3) it must be certain 

that the parties to the agreement had knowledge of and assented to the 

incorporated document so that the incorporation will not result in surprise or 

hardship. 

Id. at 435, 752 S.E.2 at 589, syl. pt. 2. Based on our consideration of the record before us, 

we find each of these factors is readily satisfied. 

The IRA Application indisputably made multiple, clear references to the 

Brokerage Agreement, as described in the facts set forth above. Those express references 

described the Brokerage Agreement in such terms as to leave no doubt as to its identity. 

Further, the appendix record contains an affidavit executed by Mr. Evans in which he states 

that he called to the decedent’s attention the IRA Application’s specific reference to the 

predispute arbitration clause contained in the Brokerage Agreement; that he explained the 

arbitration process to the decedent; and that he provided a complete copy of the Brokerage 

Agreement to the decedent.12 Moreover, there has been no claim of surprise or hardship. In 

short, under the U-Haul factors, we find the IRA Application and the Brokerage Agreement 

constitute a single, unified document. 

12See Syl. Pt. 4, American States Ins. Co. v. Surbaugh, 231 W.Va. 288, 745 S.E.2d 179 

(2013) (“‘A party to a contract has a duty to read the instrument.’ Syllabus point 5, Soliva 

v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986).”). 

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We now turn to the issue of whether the absence of a separate signature on the 

Brokerage Agreement creates an ambiguity that invalidates the arbitration clause set forth 

therein. As we recognized in U-Haul, “courts generally ‘allow an unsigned document to be 

incorporated into a signed document as long as the signed paper specifically refers to the 

unsigned document and the unsigned document is available to the parties.’” 232 W.Va. at 

442-43, 752 S.E.2d at 596-97 (citation omitted). Courts in other jurisdictions are in 

agreement. See, e.g., Innovation Ventures, L.L.C. v. Custom Nutrition Labs., L.L.C., No. 12­

13850, 2015 WL 5679879, at *17 (E.D. Mich. Sept. 28, 2015) (“Incorporation by reference 

requires that the signed document ‘plainly refer’ to the unsigned document. . . . [T]he signed 

document’s language ‘must show the parties intended for the other document to become part 

of the agreement.’”) (citations omitted); Mohmed v. Certified Oil Corp., 37 N.E.3d 814 (Ohio 

Ct. App. 2015) (finding plaintiff bound by terms of unsigned addendum expressly 

incorporated byreference into signed supplyagreement); Monkey Island Dev. Auth. v. Staten, 

76 P.3d 84 (Okla. Civ. App. 2003) (finding lack of separate signature on separate document 

incorporated by reference into signed document did not nullify nor make ineffectual other 

document); Venture Cotton Coop. v. Freeman, __ S.W.3d __, 2015 WL 1967251, at *9 (Tex. 

App. Apr. 30, 2015) (“It is well settled that an unsigned document may be incorporated by 

reference in the signed document.”). 

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Following U-Haul, we had the opportunity to address the lack of a signature 

on an incorporated document in Navient Solutions, Inc. v. Robinette, No. 14-1215, 2015 WL 

6756859 (W.Va. Nov. 4, 2015) (memorandum decision).13 Ms. Robinette had signed 

multiple student loan applications with Navient, each of which incorporated by reference an 

unsigned promissory note containing an arbitration clause. In denying Navient’s motion 

seeking to compel arbitration, the circuit court found that Ms. Robinette had not agreed to 

the arbitration clause contained in the separate, unsigned promissory note. Specifically, the 

Court found that the loan application had not alerted Ms. Robinette to the fact that the 

promissory note contained an arbitration agreement.14 In reversing the circuit court’s ruling, 

we found there was a single, unified contract based on references to the promissory note in 

the signed loan applications. Id. at *4. We observed that by signing the loan application, Ms. 

Robinette declared she had read and expressly agreed to be bound by the terms of the 

promissory note accompanying her application, leaving no doubt that the promissory note 

was a critical part of the executed transaction. Id. Similarly, in the case at bar, the decedent 

13Although our opinion in Navient had not issued at the time the parties filed their 

initial briefs, the petitioners relied upon Navient in their reply brief. See Caperton v. A.T. 

Massey Coal Co., Inc., 225 W.Va. 128, 156, 690 S.E.2d 322, 350 (2009) (“The Supreme 

Court of Appeals of West Virginia, like all courts in the country, adheres to the common law 

principle that, ‘[a]s a general rule, judicial decisions are retroactive in the sense that they 

apply both to the parties in the case before the court and to all other parties in pending 

cases.’”) (citation omitted). 

14Unlike the facts in Navient, here, the IRA Application not only stated that the 

incorporated Brokerage Agreement contained an arbitration clause, but it also provided a 

specific reference to preciselywhere in the Brokerage Agreement the arbitration clause could 

be found. 

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signed the IRA Application, expressly acknowledging he had received and read the 

Brokerage Agreement with its arbitration clause; had consented to all of its terms and 

conditions “with full knowledge and understanding of the information” contained in the 

Agreement; and had received the predispute arbitration clause. 

Based on the foregoing analysis, we find the circuit court erred by invalidating 

the arbitration clause based on the absence of a signature on the Brokerage Agreement for 

the IRA account (number 264133). Although the petitioners have also asked this Court to 

enter an order enforcing the arbitration clause, there are unresolved issues that preclude us 

from doing so, including whether the arbitration clause is unconscionable15 and whether any 

or all of Mrs. Bayles’ claims “fall within the substantive scope of that arbitration 

agreement.”16 Moreover, other than to acknowledge its existence, the circuit court has not 

made any findings or rulings regarding the Portfolios account (number 961133). This is 

15See Kirby v. Lion Enterprises, Inc., 233 W.Va. 159, 166, 756 S.E.2d 493, 500 (2014) 

(finding contract containing arbitration provision was valid and remanding case to circuit 

court for development of record on issue of procedural and substantive unconscionabilitythat 

“necessarily involves a fact-intensive analysis into a range of factors.”). 

16 See Syl. Pt. 2, in part, State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 

692 S.E.2d 293 (2010) (“When a trial court is required to rule upon a motion to compel 

arbitration . . . the authority of the trial court is limited to determining the threshold issues 

of (1) whether a valid arbitration agreement exists between the parties; and (2) whether the 

claims averred by the plaintiff fall within the substantive scope of that arbitration 

agreement.”). 

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particularly problematic since the focus of Mrs. Bayles’ complaint is the Portfolios account, 

which appears to have held the bulk of the decedent’s money at Ameriprise.17 

As we explained in In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 

(1999), 

we will not consider, for the first time on appeal, a matter that 

has not been determined by the lower court from which the 

appeal has been taken. . . . Therefore, “‘“[i]n the exercise of its 

appellate jurisdiction, this Court will not decide 

nonjurisdictional questions which were not considered and 

decided by the court from which the appeal has been taken.” 

Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103 [, 181 S.E.2d 

334] (1971).’ Syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 

244 S.E.2d 327 (1978).” Syl. pt. 3, Voelker v. Frederick Bus. 

Properties Co., 195 W.Va. 246, 465 S.E.2d 246 (1995). See 

also Syl. pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 

S.E.2d 733 (1958) (same). 

Michael Ray T., 206 W.Va. at 444, 525 S.E.2d at 325. Accordingly, all outstanding issues 

in this matter are entrusted to the circuit court’s consideration and ruling on remand. 

17The parties have offered no explanation as to why the circuit court’s order is 

restricted to the IRA account (number 264133). Regardless,“[i]t is a paramount principle of 

jurisprudence that a court speaks only through its orders.” Legg v. Felinton, 219 W.Va. 478, 

483, 637 S.E.2d 576, 581 (2006). In this regard, we encourage precision, clarity, and 

thoroughness in future orders entered in this matter. 

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IV. Conclusion 

For the reasons set forth herein, the circuit court’s May 19, 2015, order is 

reversed, and this action is remanded to the circuit court for further proceedings consistent 

with this opinion. 

Reversed and Remanded. 

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