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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2016 Term 

_______________ FILED 

November 16, 2016 

No. 15-0948 released at 3:00 p.m. 

RORY L. PERRY II, CLERK _______________ SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

SALEM INTERNATIONAL UNIVERSITY, LLC,
 

A FOREIGN LIMITED LIABILITY CORPORATION,
 

AND JOHN LUOTTO, PRESIDENT,
 

Defendants Below, Petitioners
 

v. 

TAYLOR BATES, MICHELLE SYLVA, AMY NORTHROP,
 

CLARISSA HANNAH, AND GENA DELLI-GATTI ON BEHALF
 

OF THEMESELVES AND ALL OTHERS SIMILARLY SITUATED,
 

Plaintiffs Below, Respondents
 

Appeal from the Circuit Court of Harrison County
 

The Honorable James A. Matish, Judge
 

Civil Action No. 13-C-348-3
 

REVERSED AND REMANDED
 

Submitted: October 11, 2016 

Filed: November 16, 2016 

Michael S. Garrison, Esq. Charles R. “Rusty” Webb, Esq. 

Kelly J. Kimble, Esq. The Webb Law Centre, PLLC 

Spilman, Thomas & Battle, PLLC Charleston, West Virginia 

Morgantown, West Virginia Attorney for Respondents 

Eric W. Iskra, Esq. 

Spilman, Thomas & Battle, PLLC 

Charleston, West Virginia 

Attorneys for Petitioners 
 

 

JUSTICE BENJAMIN delivered the Opinion of the Court.
 

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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. “When a party, as part of an appeal from a final judgment, assigns as 

error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition of the 

motion to dismiss will be reviewed de novo.” Syl. pt. 4, Ewing v. Bd. of Educ., 202 W. 

Va. 228, 503 S.E.2d 541 (1998). 

3. “[T]he trial court may rely on general principles of state contract law 

in determining the enforceability of the arbitration clause.” Syl. pt. 4, in part, State ex. 

Richmond Am. Homes of W. Va. v. Sanders, 228 W. Va. 125, 717 S.E.2d 909 (2011). 

4. “The mere fact that parties do not agree to the construction of a 

contract does not render it ambiguous. The question as to whether a contract is 

ambiguous is a question of law to be determined by the court.” Syl. pt. 1, Berkeley Co. 

Pub. Serv. Dist. v. Vitro Corp. 152 W. Va. 252, 162 S.E.2d 189 (1968). 

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5. “Contract language is considered ambiguous where an agreement’s 

terms are inconsistent on their face or where the phraseology can support reasonable 

differences of opinion as to the meaning of words employed and obligations undertaken.” 

Syl. pt. 6, State ex rel. Frazier & Oxley v. Cummings, 212 W. Va. 275, 569 S.E.2d 796 

(2002). 

6. “The term ‘ambiguity’ is defined as language reasonably susceptible 

of two different meanings or language of such doubtful meaning that reasonable minds 

might be uncertain or disagree as to its meaning.” Syl. pt. 4, Estate of Tawney v. 

Columbia Nat. Res., 219 W. Va. 266, 633 S.E.2d 22 (2006). 

7. “In determining whether or not the parties to a collective bargaining 

agreement have agreed to submit a particular dispute to arbitration, it must be recognized 

that there is a presumption favoring arbitration, and this presumption may be rebutted 

only where it can be said with positive assurance that the arbitration clause is not 

susceptible of an interpretation that covers the asserted dispute.” Syl. pt. 1, Local Div. No. 

812 v. Transit Auth., 179 W. Va. 31, 365 S.E.2d 76 (1987). 

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Benjamin, Justice: 

The petitioners and defendants below, Salem International University, 

LLC, and its president, John Luotto (collectively “Salem”), appeal the August 27, 2015, 

order of the Circuit Court of Harrison County that denied Salem’s motion to stay 

proceedings pending mandatory alternative dispute resolution of claims brought by 

several former nursing students at Salem. Based on the parties’ briefs, oral arguments, 

and relevant portions of the appendix, we reverse the circuit court’s order and remand for 

further proceedings. 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondents and plaintiffs below, Taylor Bates, Michelle Sylva, Amy 

Northrop, Clarissa Hannah, and Gena Delli-Gatti on behalf of themselves and all others 

similarly situated, are former students in Salem’s nursing program who each signed 

enrollment agreements with Salem, attended classes, and paid tuition to Salem. When the 

respondents enrolled at Salem, they signed enrollment agreements that contained an 

arbitration clause. This arbitration agreement provides as follows: 

You and [Salem International University] agree that any 

dispute or claim between you and SIU (or any company 

affiliated with SIU, or any of its officers, directors, trustees, 

employees or agents) arising out of or relating to this 

Enrollment Agreement, or, your enrollment or attendance at 

SIU, whether such dispute arises before, during, or after your 

attendance and whether the dispute is based on contract, tort, 

statute, or otherwise, shall be, at your or SIU’s election, 

submitted to and resolved by individual binding arbitration 

pursuant to the terms described herein. Arbitration shall be 

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conducted by the American Arbitration Association (“AAA”) 

pursuant to its rules and procedures. The party electing 

arbitration shall comply with the AAA notice requirements. 

Information about AAA is available at 1633 Broadway, 10th 

Floor, New York, New York 10019; Toll Free: 1-800-778­

7879, or the arbitration Website at ACMEADR.COM. SIU 

agrees that it will not elect to arbitrate any individual claim 

that you bring in a West Virginia magistrate or small claims 

court (or in a similar court of limited jurisdiction subject to 

expedited procedures). If that claim is transferred or appealed 

to a different court, however, or if your claim exceeds the 

limits of the applicable small claims court, SIU reserves the 

right to elect arbitration and, if it does so, you agree that the 

matter will be resolved by binding arbitration pursuant to the 

terms of this Section. The arbitrator shall have no authority to 

arbitrate claims on a class action basis, and claims brought by 

or against you may not be joined or consolidated with claims 

brought by or against any other person. Any arbitration 

hearing shall take place in the federal judicial district in 

which you reside or pursuant to AAA rules and procedures. 

Each party will bear the expense of its own attorneys, experts, 

and witnesses regardless of which party prevails, unless 

applicable law or this Agreement gives a right to recover any 

of those fees from the other party. If the arbitrator determines 

that any claim or defense is frivolous or wrongfully intended 

to oppress the other party, the arbitrator may award sanctions 

in the form of fees and expenses reasonably incurred by the 

other party (including arbitration administration fees, 

arbitrator’s fees, and attorney, expert and witness fees), to the 

extent such fees and expenses could be imposed under Rule 

11 of the Federal Rules of Civil Procedure. The Federal 

Arbitration Act (“FAA”) 9 U.S.C. §§ 1, et seq., shall govern 

this arbitration provision. This arbitration provision shall 

survive the termination of your relationship with SIU. The 

above supersedes any inconsistent arbitration provision 

published in any other document, including, but not limited 

to, SIU catalogs. 

Beneath the arbitration clause there is a box titled “NOTICE OF ARBITRATION 

AGREEMENT:” that contains the following: 

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This agreement provides that all disputes between you and 

SIU will be resolved by BINDING ARBITRATION. You 

thus GIVE UP YOUR RIGHT TO GO TO COURT to assert 

or defend your rights under this contract (EXCEPT for 

matters that may be taken to SMALL CLAIMS COURT). 

*Your rights will be determined by a NEUTRAL 

ARBITRATOR and NOT a judge or jury. *You are entitled 

to a FAIR HEARING, BUT the arbitration procedures are 

SIMPLER AND MORE LIMITED THAN RULES 

APPLICABLE IN COURT. * Arbitration decisions are as 

enforceable as any court order and are subject to VERY 

LIMITED REVIEW BY A COURT. FOR MORE DETAILS 

*Review the provisions above, OR *Check our Arbitration 

Website @ ACMEADR.COM, OR *Call 1-800-000-0000. 

In August 2013, the respondents filed a putative class action complaint 

against Salem. In the complaint, the respondents alleged that they were nursing students 

who were enrolled at Salem in October 2012 and thereafter and were denied the 

opportunity to complete their coursework in nursing at Salem as a result of the nursing 

program’s loss of accreditation. The respondents stated claims for violation of the State 

Consumer Credit and Protection Act, W. Va. Code §§ 46A-6-101–110, negligence, 

breach of contract, breach of the duty of good faith and fair dealing, and conversion of 

personal property. 

In February 2014, Salem filed a motion to stay proceedings pending 

mandatory alternative dispute resolution in which it asserted that the respondents agreed 

to arbitrate their claims against Salem through the American Arbitration Association 

(“AAA”) pursuant to the enrollment agreement they signed. In the respondents’ reply to 

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Salem’s motion, they asserted that the arbitration agreement at issue is unenforceable 

because Salem had not complied with any of the requirements of the American 

Arbitration Association Provision, the arbitration agreement at issue exempts class 

actions from arbitration, and the arbitration agreement is procedurally and substantively 

unconscionable. The circuit court thereafter entered an order for additional briefing in 

which it ordered the parties to brief the following issues: 

a. May a Court order arbitration in a putative class action if 

the arbitration agreement states that class actions cannot be 

arbitrated; 

b. If the arbitration clause does not indicate that arbitration is 

mandatory, but is only invoked if one of the parties demands 

arbitration, may a court order arbitration; and 

c. Are plaintiffs’ claims covered by the arbitration agreement? 

Subsequently, the parties filed additional memoranda of law, and the circuit court held a 

hearing on the issues at which evidence was taken. 

By order entered August 27, 2015, the circuit court denied Salem’s motion 

to stay proceedings pending mandatory alternative dispute resolution. Significantly, the 

circuit court in its order addressed a single issue: “whether this otherwise valid 

arbitration agreement acts as a class action waiver, barring the plaintiffs from seeking 

judicial relief as a class. In other words, does the plaintiffs’ purported class action fall 

within the scope of the arbitration provision at issue?” (Emphasis added.). In finding that 

the arbitration agreement does not include a class action litigation waiver, the circuit 

court relied primarily on two principles of law. First, the circuit court relied on this 

Court’s holding in syllabus point 10 of Brown ex rel. Brown v. Genesis Healthcare, 228 

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W. Va. 646, 724 S.E.2d 250 (2011) (Brown I), judgment vacated on other grounds by 

Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (2012), which provides that 

“[u]nder the Federal Arbitration Act, 9 U.S.C. § 2, parties are only bound to arbitrate 

those issues that by clear and unmistakable writing they have agreed to arbitrate. An 

agreement to arbitrate will not be extended by construction or implication.” In applying 

this syllabus point to the arbitration agreement, the circuit court found that while the 

agreement’s language implies a class action litigation waiver, the language is ambiguous. 

Therefore, the circuit court concluded that because there is not a clear and unmistakable 

waiver pursuant to syllabus point 10 of Brown I, the circuit court would not extend the 

agreement, by construction or implication, to act as a class action litigation waiver. 

The second legal principle relied upon by the circuit court in making its 

decision is the principle that when an ambiguity exists in a contract and the intent of the 

parties cannot be determined, the ambiguous terms will be construed against the party 

that drafted the agreement. The circuit court reasoned that because the language in the 

arbitration agreement regarding a class action litigation waiver is ambiguous, it will be 

construed against Salem which drafted the agreement. 

Salem now appeals the circuit court’s order denying its motion to stay 

proceedings pending mandatory alternative dispute resolution. 

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II. STANDARD OF REVIEW
 

The order appealed from in this case is an order denying Salem’s motion to 

compel the respondents to arbitrate their claims against Salem. Under our law, “[a]n 

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). Therefore, the circuit court’s order is 

properly before this Court.1 In addition, “[w]hen a party, as part of an appeal from a final 

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

court’s disposition of the motion to dismiss will be reviewed de novo.” Syl. pt. 4, Ewing 

v. Board of Educ., 202 W. Va. 228, 503 S.E.2d 541 (1998). Accordingly, we will now 

proceed to review the issue before us de novo. 

III. ANALYSIS 

As a preliminary matter, this Court wishes to clarify that the sole issue 

before us is whether the circuit court erred in ruling that the arbitration agreement at issue 

does not contain an enforceable class action litigation waiver. In their brief and oral 

argument before this Court, the respondents presented several arguments in support of 

1 In their brief, the respondents argue that the circuit court’s order is not ripe for 

appeal because it does not constitute a final order. Specifically, the respondents assert 

that the order is not final because the circuit court has not yet rendered its decision to 

certify the putative class. The respondents explain that should class certification be 

denied, the respondents will have individual claims, and a different analysis will be 

required. Should class certification be granted, Salem will then have the opportunity to 

appeal the denial of its motion to compel arbitration. This Court rejects this argument and 

will proceed to consider the issue before us. 

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their position that the arbitration agreement as a whole is not valid. The respondents 

assert that if the class action waiver is deemed valid, it creates a fundamental inequity in 

the parties’ rights that renders the arbitration clause unconscionable. The respondents 

further aver that the arbitration agreement absent a class action waiver is procedurally 

and substantively unconscionable. Finally, the respondents assert that arbitration is not 

appropriate in this case because the respondents’ claims fall outside of the scope of the 

arbitration agreement. 

Salem posits that the circuit court ruled that the arbitration agreement is 

valid by referring to it as “this otherwise valid arbitration agreement.” Salem admits that 

the circuit court did not undertake an in depth analysis or a meaningful discussion of the 

validity of the agreement, but that the court included in its order the relevant legal 

principles applicable to determining the validity of an arbitration agreement. Further, 

Salem avers that the respondents cannot now challenge the validity of the arbitration 

agreement because the respondents failed to cross-assign as error before this Court the 

circuit court’s determination that the arbitration agreement was valid except for its 

ambiguity regarding the respondents’ right to bring class action litigation. 

This Court finds that any challenges to the arbitration agreement’s validity 

is not properly before this Court. According to Rule 10(f) of the West Virginia Rules of 

Appellate Procedure: 

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The respondent, if he is of the opinion that there is 

error in the record to his prejudice, may assign such error in a 

separate portion of his brief and set out authority and 

argument in support thereof in the manner provided in 

subsection (c) of this Rule. Such cross-assignment may be 

made notwithstanding the fact that the respondent did not 

perfect a separate appeal within the statutory period for taking 

an appeal. If the respondent’s brief contains crossassignments of error, the cover page of the brief must clearly 

so reflect. The petitioner may respond to the cross-assignment 

of errors in the reply brief. 

In the recent case of Trans-Allegheny Interstate Line Co. v. Daugherty, No. 13-0253, 

2013 WL 6152606 (W. Va. November 22, 2013) (memorandum decision), this Court 

declined to address a cross-assignment of error that was not presented with the required 

specificity. In the instant case, no cross-assignment of error was presented challenging 

the circuit court’s determination that the arbitration agreement at issue was otherwise 

valid. Therefore, this Court will not address the respondents’ arguments regarding the 

validity of the arbitration agreement. Rather, we will only address whether the arbitration 

agreement contains an enforceable class action litigation waiver. 

Regarding the waiver issue, Salem argues that that the circuit court erred in 

finding that the class action waiver language in the arbitration agreement is ambiguous. 

As support for its argument that the class action litigation waiver is clear, Salem points to 

the language of the agreement requiring “individual binding arbitration,” and that claims 

“may not be joined or consolidated with claims brought by or against any other person.” 

According to Salem, the ordinary, dictionary definition of “join” is “to put or bring 

together so as to form a unit.” Similarly, the term “consolidate” means “to join together 

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into one whole; unite; merge.” Salem avers that when one attributes to the terms “join” 

and “consolidate” their ordinary meaning, and reading them together, with the 

requirement that claims be submitted to “individual arbitration,” one is compelled to 

conclude that claims may only be brought on an individual basis, and not as part of a 

class action. 

In addition, Salem contends that the language “the arbitrator shall have no 

authority to arbitrate claims on a class action basis” is clearly consistent with the 

provision’s prohibition against consolidated claims. Further, Salem emphasizes the fact 

that the language “[t]he arbitrator shall have no authority to arbitrate claims on a class 

action basis” appears in the same sentence and is connected with the word “and” to the 

language that “claims brought by or against you may not be joined or consolidated with 

claims brought by any other person.” Salem avers that the connecting of these two 

provisions can only be interpreted to support Salem’s position that class action litigation 

claims are effectively waived under the agreement. Otherwise, says Salem, the second 

portion of the sentence would be rendered meaningless in violation of a fundamental rule 

of construction. Finally, Salem opines that it would be nonsensical for the respondents to 

avoid the mandatory nature of the arbitration agreement simply by making their claims a 

class action. 

The respondents counter that the language in the arbitration agreement is 

ambiguous regarding a class action litigation waiver. The respondents explain that the 

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agreement allows for multiple reasonable interpretations regarding the availability of a 

class action because the language implies a waiver of class action rights but does not 

explicitly waive those rights. At worst, say the respondents, the agreement contradicts 

itself by requiring all claims to be subject to arbitration and then removing class actions 

from the jurisdiction of the arbitrator. The respondents emphasize that the agreement 

does not state that the respondents agree not to act as class representatives or participate 

in a class action. The respondents conclude that because the class action waiver language 

is not clear and unmistakable and as a result must be construed against Salem as the 

drafter of the agreement, the circuit court correctly ruled that there is no valid class action 

litigation waiver. 

The parties agree that the issue in this case is governed by the Federal 

Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq.

2 In construing the agreement at issue, we 

are mindful “the trial court may rely on general principles of state contract law in 

determining the enforceability of the arbitration clause.” Syl. pt. 4, in part, State ex rel. 

Richmond Am. Homes of W. Va., Inc. v. Sanders, 228 W. Va. 125, 717 S.E.2d 909 

(2011). In this case, this Court must determine whether the contract language is 

ambiguous. “The mere fact that parties do not agree to the construction of a contract does 

2 The arbitration agreement provides that “[t]he Federal Arbitration Act (‘FAA’), 9 

U.S.C. §§ 1, et seq., shall govern this arbitration provision.” See State ex rel. City 

Holding Co. v. Kaufman, 216 W. Va. 594, 598, 609 S.E.2d 855, 859 (2004) (explaining 

that “[t]he Federal Arbitration Act applies to an agreement to arbitrate, and the 

determination as to whether all of the claims are referable to arbitration is a matter 

governed by application of federal law” (citation omitted)). 

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not render it ambiguous. The question as to whether a contract is ambiguous is a question 

of law to be determined by the court.” Syl. pt. 1, in part, Berkeley Co. Pub. Serv. Dist. v. 

Vitro Corp., 152 W. Va. 252, 162 S.E.2d 189 (1968). Rather, “[c]ontract language is 

considered ambiguous where an agreement’s terms are inconsistent on their face or where 

the phraseology can support reasonable differences of opinion as to the meaning of words 

employed and obligations undertaken.” Syl. pt. 6, State ex rel. Frazier & Oxley, L.C. v. 

Cummings, 212 W. Va. 275, 569 S.E.2d 796 (2002). Also, “[t]he term ‘ambiguity’ is 

defined as language reasonably susceptible of two different meanings or language of such 

doubtful meaning that reasonable minds might be uncertain or disagree as to its 

meaning.” Syl. pt. 4, Estate of Tawney v. Columbia Nat. Res., 219 W. Va. 266, 633 

S.E.2d 22 (2006). 

In addition, we are also mindful that 

[i]n determining whether the language of an agreement to 

arbitrate covers a particular controversy, the federal policy 

favoring arbitration of disputes requires that a court construe 

liberally the arbitration clauses to find that they cover 

disputes reasonably contemplated by the language and to 

resolve doubts in favor of arbitration. 

State ex rel. City Holding Co. v. Kaufman, 216 W. Va. 594, 598, 609 S.E.2d 855, 859 

(2004) (citations omitted). In Local Division No. 812 v. Transit Authority, 179 W. Va. 31, 

34–35, 365 S.E.2d 76, 79–80 (1987), this Court expounded upon the rule that arbitration 

agreements should be read in favor of arbitration as follows: 

In United Steelworkers v. Warrior & Gulf Navigation 

Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the 

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Supreme Court of the United States created a strong 

presumption favoring arbitration in contract disputes. The 

court noted that “unless it may be said with positive assurance 

that the arbitration clause is not susceptible of an 

interpretation that covers the asserted dispute,” arbitration 

should not be denied. Id. at 582-83, 80 S.Ct. at 1353, 4 

L.Ed.2d at 1418. Doubts as to whether a particular grievance 

is arbitrable should be resolved in favor of arbitration. Id. at 

583, 80 S.Ct. at 1353, 4 L.Ed.2d at 1418. Specifically, the 

court held that “[i]n the absence of any express provision 

excluding a particular grievance from arbitration, we think 

only the most forceful evidence of a purpose to exclude the 

claim from arbitration can prevail, particularly where . . . the 

exclusion cause is vague and the arbitration clause is quite 

broad.” Id. at 584-85, 80 S.Ct. at 1354, 4 L.E.2d at 1419. 

(Footnote and additional citations omitted). This Court held in syllabus point 1 of Transit 

Authority: 

In determining whether or not the parties to a 

collective bargaining agreement have agreed to submit a 

particular dispute to arbitration, it must be recognized that 

there is a presumption favoring arbitration, and this 

presumption may be rebutted only where it can be said with 

positive assurance that the arbitration clause is not susceptible 

of an interpretation that covers the asserted dispute. 

Upon application of the above principles to the arbitration agreement in this 

case, we find that the agreement is not ambiguous. The arbitration agreement requires 

that claims be submitted for “individual” arbitration. In addition, it provides that “the 

arbitrator shall have no authority to arbitrate claims on a class action basis,” and that 

claims “may not be joined or consolidated with claims brought by any other person.” 

This language plainly indicates that the respondents are precluded from bringing a class 

action against Salem. Further, we find it significant that the clause regarding the 

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arbitrator having no authority to arbitrate claims on a class action basis appears in the 

same sentence as the clause prohibiting claims from being joined or consolidated. In 

addition, the requirement of individual arbitration when read together with the statement 

regarding the arbitrator having no authority to arbitrate claims on a class action basis and 

the prohibition on joining and consolidating claims clearly demonstrate a waiver of the 

right to bring class action litigation. Accordingly, we find that the arbitration agreement 

acts as a class action litigation waiver barring the respondents from seeking judicial relief 

as a class. 

IV. CONCLUSION 

For the reasons stated above, this Court reverses the August 27, 2015, order 

of the Circuit Court of Harrison County that denied Salem’s motion to stay proceedings 

pending mandatory alternative dispute resolution, and we remand this case to the circuit 

court for further proceedings. 

Reversed and remanded. 

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