IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
_______________
FILED
No. 18-0871 April 24, 2020
_______________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
DEBRA K. BAYLES, OF WEST VIRGINIA
Plaintiff Below, Petitioner
v.
JEFFREY N. EVANS,
AMERIPRISE FINANCIAL SERVICES, INC.,
KRISTINA NICHOLLS, and STEPHEN BAYLES,
Defendants Below, Respondents
AND
_______________
No. 18-0876
_______________
JEFFREY N. EVANS,
AMERIPRISE FINANCIAL SERVICES, INC.,
KRISTINA NICHOLLS, and STEPHEN BAYLES,
Defendants Below, Petitioners
v.
DEBRA K. BAYLES,
Plaintiff Below, Respondent
________________________________________________________
Appeals from the Circuit Court of Marshall County
The Honorable David W. Hummel, Jr., Judge
Civil Action No. 14-C-139
AFFIRMED, IN PART, REVERSED, IN PART
________________________________________________________
Submitted: February 11, 2020
Filed: April 24, 2020
Herman D. Lantz, Esq. Edward P. Tiffey, Esq.
Lantz Law Offices Tiffey Law Practice, PLLC
Moundsville, West Virginia Charleston, West Virginia
Chad Groome, Esq. Counsel for Defendants Jeffrey N.
David Jividen, Esq. Evans and Ameriprise Financial
Jividen Law Office Services, Inc.
Wheeling, West Virginia
Counsel for the Plaintiff Christi R.B. Stover, Esq.
Steptoe & Johnson, PLLC
Morgantown, West Virginia
Ancil G. Ramey, Esq.
Steptoe & Johnson, PLLC
Huntington, West Virginia
Counsel for Defendants Kristina
Nicholls and Stephen Bayles
JUSTICE HUTCHISON delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD, deeming himself disqualified, did not participate.
JUDGE JENNIFER P. DENT, sitting temporarily by assignment.
SYLLABUS BY THE COURT
1. “Appellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
2. “When a trial court is required to rule upon a motion to compel
arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1–307 (2006), 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.” Syllabus Point 2,
State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W. Va. 250, 692 S.E.2d 293 (2010).
3. “A court may not direct a nonsignatory to an agreement containing an
arbitration clause to participate in an arbitration proceeding absent evidence that would
justify consideration of whether the nonsignatory exception to the rule requiring express
assent to arbitration should be invoked.” State ex rel. United Asphalt Suppliers, Inc. v.
Sanders, 204 W. Va. 23, 511 S.E.2d 134 (1998).
4. “A signatory to an arbitration agreement cannot require a non-
signatory to arbitrate unless the non-signatory is bound under some traditional theory of
contract and agency law. The five traditional theories under which a signatory to an
arbitration agreement may bind a non-signatory are: (1) incorporation by reference; (2)
i
assumption; (3) agency; (4) veil-piercing/alter ego; and (5) estoppel.” Syllabus Point 10,
Chesapeake Appalachia, L.L.C. v. Hickman, 236 W. Va. 421, 781 S.E.2d 198 (2015).
5. “Under the Federal Arbitration Act, 9 U.S.C. § 2, and the doctrine of
severability, only if a party to a contract explicitly challenges the enforceability of an
arbitration clause within the contract, as opposed to generally challenging the contract as a
whole, is a trial court permitted to consider the challenge to the arbitration clause.”
Syllabus Point 4, in part, State ex rel. Richmond Am. Homes of W. Virginia, Inc. v. Sanders,
228 W. Va. 125, 717 S.E.2d 909 (2011).
ii
HUTCHISON, Justice:
In this appeal from the Circuit Court of Marshall County, we are asked to
examine an order compelling a plaintiff to arbitrate her dispute with an investment firm.
The plaintiff’s deceased husband created two accounts with the investment firm (the
“brokerage account” and the “portfolio account”), and the contracts he signed required the
arbitration of any account disputes. The plaintiff asserts she is the proper beneficiary and
should have received the proceeds of both accounts upon her husband’s demise. However,
the investment company paid the proceeds of both accounts to two other individuals (the
husband’s children by another marriage).
The plaintiff brought suit to assert her right to the proceeds of both accounts.
The circuit court found that, even though the plaintiff was a nonsignatory she was required
to comply with the arbitration agreements signed by her deceased husband.
As we discuss below, despite her being a nonsignatory, the circuit court’s
order correctly determined that the plaintiff is required to arbitrate her claims to the
proceeds of both accounts. However, we find that the circuit court included surplus
language in its order that invaded the province of the arbitrator. As we discuss later in our
opinion, the order is reversed to the extent it included this language. We otherwise affirm
the circuit court’s order dismissing the plaintiff’s suit and compelling her to arbitrate.
1
I. Factual and Procedural Background
William Nelson Bayles was married to his second wife, plaintiff Debra
Bayles, for 22 years. During his career, Mr. Bayles had invested in his employer’s 401(k)
retirement plan, and he designated the plaintiff as the beneficiary of that plan. However,
1
the record suggests that, by early 2012, medical issues compelled Mr. Bayles to find ways
to access the money in the 401(k) plan.
Mr. Bayles had two children from his prior marriage: defendants Kristina
Nicholls and Stephen Bayles. In early 2012, Kristina introduced her father to a friend she
had in the financial industry, defendant Jeffrey Evans, who worked for an investment
company, defendant Ameriprise Financial Services, Inc. (“Ameriprise”). Defendant Evans
explained to Mr. Bayles that he could access his money by rolling the 401(k) plan over into
an Ameriprise individual retirement account (“IRA”). However, Evans also explained that,
under federal law, the plaintiff would have to agree to the rollover.
2
1
See 26 U.S.C. § 401(k).
In order to rectify certain inequities arising under pension plans managed
2
under the Employee Retirement Income Security Act (“ERISA”), Congress adopted the
Retirement Equity Act of 1984 (“REACT”). REACT amended ERISA by, among other
things, “providing for automatic survivor benefits to the spouses of vested [ERISA plan]
participants.” Heisler v. Jeep Corp.–UAW Retirement Income Plan, 807 F.2d 505, 509
(6th Cir.1986) (cleaned up). In the context of this case, REACT guaranteed that Mrs.
Bayles would receive a survivor’s share of Mr. Bayles’s 401(k) plan.
REACT prevents a vested plan participant from withdrawing benefits from
the ERISA-regulated plan, to the detriment of the participant’s spouse, without first
Continued . . .
2
On June 20, 2012, Mr. Bayles returned to Evans’s Ameriprise office, this
time in the company of the plaintiff (Mrs. Bayles). At this meeting, Mr. Bayles signed an
application to create the “brokerage account,” an Ameriprise IRA account to receive money
rolled over from his 401(k) plan. The application incorporates a requirement that Mr.
3
Bayles arbitrate any dispute he might have with Ameriprise regarding the brokerage
account.
When Mr. Bayles completed and signed the application to create the
brokerage account, he designated the plaintiff as the sole beneficiary. Central to the
plaintiff’s dispute is her claim that, during the June 2012 meeting, Evans told her that she
obtaining the spouse’s consent. REACT establishes the following requirements for a
spouse to waive his or her right to survivor benefits:
Each plan shall provide that an election [by a plan participant
to waive plan benefits] shall not take effect unless—
(A)(i) the spouse of the participant consents in writing to such
election, (ii) such election designates a beneficiary (or a form
of benefits) which may not be changed without spousal consent
(or the consent of the spouse expressly permits designations by
the participant without any requirement of further consent by
the spouse), and (iii) the spouse’s consent acknowledges the
effect of such election and is witnessed by a plan representative
or a notary public. . . .
29 U.S.C. § 1055(c)(2)(A)(i). In other words, REACT prevented Mr. Bayles from electing
to withdraw the funds from his 401(k) without first obtaining the written consent of Mrs.
Bayles.
Specifically, Mr. Bayles signed an “Ameriprise Brokerage Individual
3
Retirement Account Application” on June 20, 2012.
3
could not be removed as the beneficiary; conversely, Evans says he told the plaintiff that
the beneficiary designation could be changed.
What is undisputed is that after the June of 2012 meeting, Mr. Bayles
initiated the process of moving the proceeds of his 401(k) plan into his newly created
Ameriprise brokerage account. The record shows that, on June 26, 2012, Mr. Bayles signed
forms from his employer to transfer money out of the 401(k) plan. More importantly, the
plaintiff also signed a “spousal consent” form that permitted Mr. Bayles to complete the
transfer. Thereafter, his employer transferred a lump sum of $132,660.86 into the
Ameriprise brokerage account.
On September 5, 2012, Mr. Bayles returned to defendant Evans’s Ameriprise
office, but did not take the plaintiff or inform her of the visit. During this visit, Mr. Bayles
completed and signed two documents. With the first document, Mr. Bayles created a
second Ameriprise account: the “portfolio account.” The portfolio account was funded
4
with a transfer of $100,000.00 from the brokerage account. As with the brokerage account,
this document incorporated Mr. Bayles’s agreement that any disputes regarding the
portfolio account would be subject to arbitration.
The first document completed and signed by Mr. Bayles was titled “Active
4
Portfolios Account Application.”
4
On the application to create the portfolio account, Mr. Bayles designated the
plaintiff as the beneficiary of the portfolio account.
This dispute seems to arise from the second document completed and signed
by Mr. Bayles on September 5, 2012. This document was a change of beneficiary form. 5
On the form, Mr. Bayles appeared to authorize Ameriprise to change the beneficiaries to
the Ameriprise brokerage account (and only the brokerage account). Mr. Bayles checked
6
a box designating as the beneficiaries of the brokerage account his “Living Lawful
Children, Equality [sic] With Rights of Survivorship.” Below the box checked by Mr.
Bayles, the form defines the beneficiaries as “[t]he living lawful children of the owner and
they will receive equal shares of the proceeds[.]”
In sum, after completing the portfolio account application and the change of
beneficiary form on September 5, 2012, it appears that Mr. Bayles intended, upon his death:
(1) for the money in the brokerage account to go to his children, defendants Kristina
Nicholls and Stephen Bayles; and (2) for the money in the portfolio account to go to his
wife, plaintiff Debra Bayles.
The second document completed and signed by Mr. Bayles was titled “IRA
5
Designation of Beneficiary for IRAs held by Ameriprise Trust Company as Custodian.”
The designation of beneficiary form identifies only the brokerage account,
6
“IRA ACCT # 7465 9264 1133,” as the account affected by the change of beneficiaries.
Nowhere on the form is the portfolio account (with the account number 8362 0961 9133)
listed.
5
Unfortunately, in a letter dated September 24, 2012, Ameriprise informed
Mr. Bayles that it had removed the plaintiff as beneficiary from both the brokerage and the
portfolio accounts. The letter indicates that Ameriprise had substituted Mr. Bayles’s
children as the sole beneficiaries. The letter asked Mr. Bayles to “review the information
7
. . . to see if any action is required.” Mr. Bayles did not respond to the letter, and he gave
a copy of the letter to his daughter Kristina.
Mr. Bayles died on March 26, 2013, at the age of 64.
The record indicates that, the day before Mr. Bayles died, Evans informed
Mr. Bayles’s children that they were the beneficiaries of both Ameriprise accounts.
Conversely, when the plaintiff called after her husband’s death and asked about the status
The September 24, 2012, letter from Ameriprise to Mr. Bayles lists the
7
following beneficiary designation:
PRIMARY BENEFICIARY
LIVING, LAWFUL CHILDREN IN EQUAL SHARES
100.00%
This designation is in effect for the following account(s):
AMERIPRISE BROKERAGE 0000 0000 7465 9264 1 133
ACTIVE PORTFOLIOS 0000 0000 8362 0961 9 133
6
of the Ameriprise accounts, 8 Evans told her “if she had been the beneficiary she would
have been notified by now” and said he could give her no more information.
Apparently unknown to both the plaintiff and Mr. Bayles’s children, upon
Mr. Bayles’s death, Ameriprise began investigating the discrepancy between the
September 5, 2012, portfolio account application (listing the plaintiff as the sole
beneficiary) and the September 24, 2012, letter (listing Mr. Bayles’s children as the
beneficiaries of the portfolio account). Ameriprise employees recognized that the plaintiff
and the children were “so combative we don’t know what they would be willing to do,”
and decided that “the bottom line is – if they don’t know about this situation, who knows
how they would react[.]” Ameriprise later decided to pay the benefits from both accounts
solely to Mr. Bayles’s children.
9
The plaintiff (Mrs. Bayles) testified in her deposition that she first learned
8
that her husband had multiple accounts with Ameriprise shortly before his death, while
family members gathered around Mr. Bayles in his hospital room.
In e-mails exchanged by Ameriprise employees, Ameriprise suggested a
9
bureaucratic error had occurred because the brokerage and portfolio accounts “are both in
the same PLAN and plan beneficiaries are recorded the same.” The employees surmised
there was a different beneficiary form that should have been used to “separate accounts
into different plans that will allow different beneficiaries,” but because that form was not
used, the company assumed Mr. Bayles was “ok” with making his children the sole
beneficiaries of both accounts. Ameriprise employees seemed determined to conceal the
discrepancy because, if they paid the portfolio account to Mrs. Bayles rather than the
children, “they could come back and sue us and we risk having to pay it out twice.” One
Ameriprise employee explored getting Mrs. Bayles and the children to agree to split the
accounts, but another Ameriprise employee was certain that would not happen because,
“They were actually fighting at the funeral, unfortunately.”
7
On September 5, 2014, plaintiff Debra Bayles filed this lawsuit asserting she
was entitled to the benefits from both the brokerage and portfolio accounts. Her complaint
specifically referred to the contracts Mr. Bayles had signed with Ameriprise, and she
sought damages including the “benefits due under said contract[s.]” She sued defendants
Jeffrey Evans and Ameriprise for negligence, breach of contract and detrimental reliance.
The plaintiff also sued her husband’s children (defendants Kristina Nicholls and Stephen
Bayles) and alleged they were unjustly enriched by Ameriprise’s wrongful disbursement
of both accounts.
The defendants promptly moved to dismiss the lawsuit. Citing to the
arbitration clauses in both the brokerage and portfolio applications, the defendants sought
an order to compel the plaintiff to arbitrate her claims. On May 19, 2015, the circuit court
entered an order that denied the motion and finding “as a matter of law that the decedent
[Mr. Bayles] did not enter into a valid arbitration agreement with Ameriprise[.]” The
defendants appealed that order to this Court, and we reversed. In our opinion, we
concluded that there was an arbitration agreement; however, we also found unresolved
issues in the record regarding the enforceability of that agreement, including the plaintiff’s
assertion that the agreement was unconscionable. Evans v. Bayles, 237 W. Va. 269, 274,
787 S.E.2d 540, 545 (2016). We remanded the case to the circuit court for additional
review.
On June 14, 2016 (two weeks after this Court issued its opinion), plaintiff
Bayles filed a motion to amend her complaint, and the circuit court granted the motion.
8
The amended complaint alleged fraud by defendants Ameriprise and Evans. Specifically,
the plaintiff asserted that Evans “fraudulently induced Plaintiff . . . to sign a consent” to
roll over assets from her husband’s 401(k) plan to the Ameriprise brokerage account. The
plaintiff contended that Evans’s statements were fraudulent and material, particularly
because he assured the plaintiff that “her beneficiary status could not be changed in the
future without her consent, which is a false statement.” She also alleged that Evans’s
fraudulent statements caused the funds from both the brokerage and portfolio accounts to
be “wrongfully distributed” to the decedent’s children, defendants Kristina Nicholls and
Stephen Bayles.
The defendants replied to the amended complaint with another motion to
dismiss, as well as another request that the circuit court compel the plaintiff to arbitrate all
her claims. The plaintiff responded that the Ameriprise arbitration clauses did not apply to
her, because she never signed the brokerage or portfolio account contracts. Further, she
argued she never assented to any of the terms of the contracts, and never received any
consideration. She also reiterated her contention that the arbitration clauses were
unconscionable and unenforceable. The circuit court thereafter permitted the parties to
conduct discovery on the enforceability of the arbitration clauses in the brokerage and
portfolio accounts.
On September 15, 2018, the circuit court entered an order granting the
defendants’ motion to dismiss the plaintiff’s lawsuit and compelling the plaintiff to
arbitrate her claims. The circuit court found the arbitration clauses in both the brokerage
9
and portfolio account agreements to be valid and enforceable. The circuit court also found
the plaintiff’s claims for the assets of both accounts to be within the substantive scope of
the arbitration clauses. Accordingly, the circuit court ordered that the plaintiff arbitrate her
claims according to the terms of the arbitration clauses in the account agreements.
Plaintiff Bayles now appeals those parts of the circuit court’s September 15,
2018, order that dismissed her complaint and compel her to arbitrate. The defendants also
appeal several surplus statements made by the circuit court in its order, statements we
discuss later in this opinion.
II. Standard of Review
“Appellate review of a circuit court’s order granting a motion to dismiss a
complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-
Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
III. Discussion
When a party to an arbitration agreement makes a motion to dismiss a
complaint and to compel arbitration, the power of the trial court to proceed in the case is
constrained. “In the context of cases affected by the Federal Arbitration Act, we have
found that courts are limited to weighing only two questions: does a valid arbitration
agreement exist? And do the claims at issue in the case fall within the scope of the
arbitration agreement?” Golden Eagle Res., II, L.L.C. v. Willow Run Energy, L.L.C., 836
10
S.E.2d 23, 29 (W. Va. 2019). As we stated in Syllabus Point 2 of State ex rel. TD
Ameritrade, Inc. v. Kaufman, 225 W. Va. 250, 251, 692 S.E.2d 293, 294 (2010):
When a trial court is required to rule upon a motion to compel
arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§
1–307 (2006), 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.
We similarly confine our de novo review of the parties’ arguments to considering whether
there is a valid, enforceable arbitration agreement, and whether the claims asserted by
plaintiff Bayles fall within the substantive scope of the agreement. We first consider the
appeal by plaintiff Bayles, and then examine the appeal by the defendants.
A. The Appeal by Plaintiff Bayles
Plaintiff Bayles contends that she is the rightful beneficiary of both
Ameriprise accounts. She raises three arguments why the circuit court erred in dismissing
her complaint and forcing her to arbitrate her claim to those accounts. Two of her
arguments concern the enforceability of the arbitration agreements within the applications
for the accounts, while the third regards whether the parties’ dispute falls within the scope
of the arbitration agreements. First, she argues that she was not a signatory to any
arbitration agreement: because only her deceased husband agreed to arbitrate disputes
regarding the accounts, the plaintiff asserts she is not bound by the terms of the arbitration
agreements. Second, the plaintiff contends that Evans and Ameritrade made fraudulent
claims that induced her to consent to the placement of money from her husband’s 401(k)
11
plan into the brokerage and portfolio accounts. Third, and finally, the plaintiff argues that
if the arbitration agreements are valid and enforceable, then her claims fall outside the
scope of those agreements. We examine these arguments in turn.
1. Compelling a nonsignatory to arbitrate
The plaintiff’s first and most substantial argument is that the circuit court
erred in finding a valid, enforceable arbitration agreement existed between the parties,
because the plaintiff did not sign any documents containing an arbitration agreement. The
record shows that the decedent, Mr. Bayles, signed one application to create the brokerage
account and another application to create the portfolio account. Both of those applications
created contracts that incorporated arbitration agreements. The record is also clear that the
plaintiff did not sign either of those applications and their incorporated arbitration
agreements. The plaintiff reasons that, since she did not assent to those arbitration
agreements, she cannot be bound by them.
It is well settled that arbitration is a matter of contract. Therefore, as a
general rule, only signatories to an arbitration agreement will be required to submit to
arbitration. As the plaintiff argues, it is a central rule of contract law is that “[a] party
generally cannot be forced to participate in an arbitration proceeding unless the party has,
in some way, agreed to participate.” Chesapeake Appalachia, L.L.C. v. Hickman, 236 W.
Va. 421, 439, 781 S.E.2d 198, 216 (2015). Stated another way, “Third persons who are
not parties to an arbitration agreement generally are not bound by the agreement or any
resulting award.” Richard A. Lord, 21 Williston on Contracts § 57:19 (4th ed. 2019).
12
That rule is not inflexible and is subject to traditional principles of contract
and agency law. Hence, we have stated that “[a] court may not direct a nonsignatory to an
agreement containing an arbitration clause to participate in an arbitration proceeding absent
evidence that would justify consideration of whether the nonsignatory exception[s] to the
rule requiring express assent to arbitration should be invoked.” Syllabus Point 3, State ex
rel. United Asphalt Suppliers, Inc. v. Sanders, 204 W.Va. 23, 511 S.E.2d 134 (1998)
(emphasis added).
“Well-established common law principles dictate that in an appropriate case
a nonsignatory can enforce, or be bound by, an arbitration provision within a contract
executed by other parties.” Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen
GMBH, 206 F.3d 411, 416-17 (4th Cir. 2000). In Chesapeake Appalachia, we recognized
several common law principles in which a signatory to an arbitration agreement can, in
very limited circumstances, require a nonsignatory to comply with the agreement. As we
stated in Syllabus Point 10 of Chesapeake Appalachia:
A signatory to an arbitration agreement cannot require
a non-signatory to arbitrate unless the non-signatory is bound
under some traditional theory of contract and agency law. The
five traditional theories under which a signatory to an
arbitration agreement may bind a non-signatory are: (1)
incorporation by reference; (2) assumption; (3) agency; (4)
veil-piercing/alter ego; and (5) estoppel.
Chesapeake Appalachia, 236 W. Va. at 426, 781 S.E.2d at 203. See also 21 Williston on
Contracts § 57:19 (“traditional principles of state law allow a contract to be enforced . . .
against nonparties to the contract through assumption, piercing the corporate veil, alter ego,
13
incorporation by reference, third party beneficiary theories, waiver, and estoppel.”). We
cautioned that courts asked to apply these theories “should be wary of imposing a
contractual obligation to arbitrate on a non-contracting party.” Id. at 440, 781 S.E.2d at 217
(quoting Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int’l, Inc., 198
F.3d 88, 97 (2d Cir. 1999)). Put simply, “a non-signatory cannot be bound to arbitrate
unless it is bound ‘under traditional principles of contract and agency law’ to be akin to a
signatory of the underlying agreement.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc
Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 194 (3d Cir. 2001).
Defendants rely upon the fifth theory listed in Chesapeake Appalachia:
estoppel. They contend that the plaintiff is equitably estopped from avoiding arbitration
because she claims, as a beneficiary, that she is entitled to a direct benefit from the contracts
that her deceased husband signed with Ameriprise. Because Mr. Bayles agreed to arbitrate
any disputes regarding those contract benefits, the defendants assert the plaintiff should
likewise be required to arbitrate her claim to those benefits. We agree.
Syllabus Point 10 of Chesapeake Appalachia recognizes that a signatory to
an arbitration agreement has standing to compel a nonsignatory to participate in arbitration
based upon the principle of equitable estoppel. The inquiry into whether estoppel applies
10
In Shelton v. Johnston, 82 W. Va. 319, ____, 95 S.E. 958, 959 (1918), the
10
Court offered the following definition of “equitable estoppel”:
Continued . . .
14
is fact specific, but essentially involves a review of “the relationships of persons, wrongs
and issues, in particular whether the claims . . . [asserted are] intimately founded in and
intertwined with the underlying contract obligations.” Choctaw Generation Ltd. P’ship v.
Am. Home Assur. Co., 271 F.3d 403, 406 (2d Cir. 2001) (cleaned up). See also, EPIX
Holdings Corp. v. Marsh & McLennan Companies, Inc., 410 N.J. Super. 453, 463, 982
A.2d 1194, 1200 (App. Div. 2009) (“The estoppel inquiry . . . usually involves an analysis
of the connection between the claim, the arbitration agreement and the parties.”). As with
11
The doctrine of equitable estoppel, as stated by Lord Denman,
in Pickard v. Sears, 6 Adolph. & El. 469, has been generally
adopted in both English and American courts, as follows:
“Where one by his words or conduct willfully
causes another to believe the existence of a
certain state of things, and induces him to act on
that belief, so as to alter his own previous
position, the former is concluded from averring
against the latter a different state of things as
existing at the same time.” Preston v. Mann, 25
Conn. 118, 128.
The word “wilfully” as the authorities hold is not to be taken
in the limited sense of the term “maliciously” or
“fraudulently,” nor does it imply a desire to produce a wrong
impression or to produce a particular line of conduct.
Regardless of the motive if the natural consequences of one’s
words, acts, or conduct will be to influence another to change
his condition, and to act upon that belief to his prejudice, the
result will be to estop the one responsible for setting up a
contrary state of facts.
This analysis is particularly important when a nonsignatory asks a court to
11
compel a signatory to arbitrate. As this Court stated in Syllabus Point 4 of Bluestem
Brands, Inc. v. Shade, 239 W. Va. 694, 805 S.E.2d 805 (2017):
Continued . . .
15
any of the contract and agency theories expressed in Chesapeake Appalachia, “[t]he
doctrine of estoppel should be applied cautiously and only when equity clearly requires it
to be done.” Syllabus Point 3, Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578, 165 S.E.2d
379 (1969). Accord, Syllabus Point 7, Samsell v. State Line Dev. Co., 154 W. Va. 48, 174
S.E.2d 318 (1970) (“The doctrine of estoppel should be applied cautiously, only when
equity clearly requires that it be done[.]”). “The doctrine of equitable estoppel is applied
only in very compelling circumstances, where the interests of justice, morality and
common fairness clearly dictate that course.” IBS Fin. Corp. v. Seidman & Assocs., L.L.C.,
136 F.3d 940, 948 (3d Cir. 1998) (cleaned up).
As a general rule, the doctrine of equitable estoppel allows a court to prevent
a nonsignatory from embracing a contract, but then turning his, her, or its back on the
portions of the contract (such as an arbitration clause) that the nonsignatory finds
“distasteful.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin
Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir. 2001). One court explained the doctrine
this way:
In the arbitration context, the doctrine recognizes that a party
may be estopped from asserting that the lack of his signature
on a written contract precludes enforcement of the contract’s
arbitration clause when he has consistently maintained that
A non-signatory to a written agreement requiring
arbitration may utilize the estoppel theory to compel arbitration
against an unwilling signatory when the signatory’s claims
make reference to, presume the existence of, or otherwise rely
on the written agreement. Such claims sufficiently arise out of
and relate to the written agreement as to require arbitration.
16
other provisions of the same contract should be enforced to
benefit him. To allow [a nonsignatory] to claim the benefit of
the contract and simultaneously avoid its burdens would both
disregard equity and contravene the purposes underlying
enactment of the [Federal] Arbitration Act.
International Paper Co., 206 F.3d at 418 (cleaned up). In summarizing the doctrine, the
seminal treatise Williston on Contracts declares that “[a] nonsignatory may not cherry-pick
beneficial contract terms while ignoring other provisions that do not benefit it or that it
would prefer not to be governed by such as an arbitration clause.” 12 21 Williston on
Contracts § 57:19. See also Invista S.A.R.L. v. Rhodia, S.A., 625 F.3d 75, 85 (3d Cir. 2010)
(Estoppel “prevents a non-signatory from ‘cherry-picking’ the provisions of a contract that
it will benefit from and ignoring other provisions that don’t benefit it or that it would prefer
not to be governed by (such as an arbitration clause).”). Stated simply, a nonsignatory who
seeks to reap the benefits of a contract must bear its burdens as well.
Another way to examine the application of estoppel is to consider whether
the nonsignatory has received a “direct benefit” from the contract, parts of which the
nonsignatory later tries to disavow. Courts often say that a nonsignatory is estopped from
refusing to comply with an arbitration clause “when it receives a ‘direct benefit’ from a
contract containing an arbitration clause.” International Paper Co., 206 F.3d at 418
To be clear, a nonsignatory may bind a signatory to the terms of a contract
12
provision as well. “A signatory also cannot have it both ways. It cannot seek to hold the
nonsignatory liable pursuant to duties imposed an agreement, which contains an arbitration
provision, but deny the arbitration provision’s applicability because the defendant is a
nonsignatory.” 21 Williston on Contracts § 57:19; see also, Syllabus Point 4, Bluestem
Brands, Inc. v. Shade, 239 W. Va. at 694, 805 S.E.2d at 805.
17
(quoting American Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d
Cir. 1999)). “Direct-benefit estoppel involve[s] 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 contract.” Hellenic Inv. Fund,
Inc. v. Det Norske Veritas, 464 F.3d 514, 517-18 (5th Cir. 2006). “A non-signatory can
‘embrace’ a contract containing an arbitration clause in two ways: (1) by knowingly
seeking and obtaining ‘direct benefits’ from that contract; or (2) by seeking to enforce the
terms of that contract or asserting claims that must be determined by reference to that
contract.” Noble Drilling Servs., Inc. v. Certex USA, Inc., 620 F.3d 469, 473 (5th Cir. 2010).
When the nonsignatory knowingly exploits the contract containing the arbitration clause
and obtains a direct benefit from that contract, “[c]ourts have applied direct benefits
estoppel to bind a non-signatory to an arbitration agreement[.]” Id.
In the instant case, the plaintiff is seeking the direct benefits of the contracts
signed by her husband, despite not being a signatory to either contract. The plaintiff is
seeking to recover the assets that her deceased husband deposited with Ameriprise under
the brokerage contract and is seeking to enforce her understanding of the contract: that her
husband’s initial choice of beneficiary could never be changed. The plaintiff also wants to
enforce the terms of the portfolio contract, because her deceased husband appears to have
named her as the beneficiary of the portfolio account. Despite her attempts to recover the
benefits of the contracts, the plaintiff is “cherry-picking” the terms beneficial to her while
disavowing the terms she would prefer not to be governed by, namely the arbitration
18
clauses in both contracts. Under these facts, the circuit court was within its discretion to
find the plaintiff bound by all the terms of the contracts, including the arbitration clauses.
Accordingly, despite the plaintiff not being a signatory to either the
brokerage or portfolio applications, the equitable doctrine of estoppel compels the plaintiff
to arbitrate her claim to benefits from both contracts formed when her husband signed those
applications. We, therefore, find no error in the circuit court order dismissing the plaintiff’s
complaint and compelling her to arbitration.
13
2. Plaintiff’s claims of fraud
The plaintiff’s second argument is that any agreement that purports to exist
between her and the defendants is a byproduct of fraud or constructive fraud. The plaintiff
correctly notes that “[n]othing in the Federal Arbitration Act, 9 U.S.C. § 2, overrides
normal rules of contract interpretation. Generally applicable contract defenses—such as
laches, estoppel, waiver, fraud, duress, or unconscionability—may be applied to invalidate
an arbitration agreement.” Syllabus Point 9, Brown ex rel. Brown v. Genesis Healthcare
Corp., 228 W. Va. 646, 724 S.E.2d 250 (2011), cert. granted, judgment vacated sub
The plaintiff also complains that it is unfair that her husband’s children
13
(defendants Kristina Nicholls and Stephen Bayles) are being compelled to arbitrate,
because they too never signed any arbitration agreement. We reject this general argument
because these defendants are in the same position as the plaintiff: their claim to any benefits
from defendants Ameriprise and Evans is founded exclusively on the brokerage and
portfolio contracts signed by their father. Moreover, the children have, throughout this
litigation, consented to have their defense arbitrated with Ameriprise and Evans.
19
nom. Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012) (“Brown I”) (emphasis
added). 14
The plaintiff asserts that her husband could not have moved the money out
of his 401(k) plan (where federal law guaranteed her a survivor’s benefit) and into the
Ameriprise brokerage account without receiving her consent. She further asserts that
defendant Evans made misleading or fraudulent statements that induced her to consent to
the transfer of money to the Ameriprise brokerage account. The plaintiff contends that,
but for Evans’s misstatements, her husband never could have entered into the brokerage
contract, and hence, any arbitration clause in that contract must be invalidated as a direct
byproduct of fraud, constructive fraud and/or material misrepresentation. In sum, the
plaintiff asserts the circuit court erred in finding the arbitration clauses were not void or
unenforceable because of the defendants’ fraud.
We reject the plaintiff’s argument because, unfortunately, her approach
violates a basic rule of federal arbitration law: the doctrine of severability. The doctrine
requires a party resisting arbitration to exclusively challenge the enforceability of the
arbitration clause, and not the overall contract:
When a lawsuit is filed implicating an arbitration
agreement, and a party to the agreement seeks to resist
“To be clear, this list is not exclusive. Misrepresentation, duress, mutuality
14
of assent, undue influence, or lack of capacity, if the contract defense exists under general
common law principles, then it may be asserted to counter the claim that a . . . provision
binds the parties. Even lack of consideration is a defense.” Geological Assessment &
Leasing v. O’Hara, 236 W. Va. 381, 387, 780 S.E.2d 647, 653 (2015) (citation omitted).
20
arbitration, the Supreme Court has interpreted the FAA to
require application of the doctrine of “severability” or
“separability.” The gist of the doctrine is that an arbitration
clause in a larger contract must be carved out, severed from the
larger contract, and examined separately. The doctrine treats
the arbitration clause as if it is a separate contract from the
contract containing the arbitration clause, that is, the “container
contract.” Under the doctrine, arbitration clauses must be
severed from the remainder of a contract, and must be tested
separately under state contract law for validity and
enforceability.
Schumacher Homes of Circleville, Inc. v. Spencer, 237 W. Va. 379, 387-88, 787 S.E.2d
650, 658-59 (2016) (quotes and footnotes omitted). In Syllabus Point 4 of State ex rel.
Richmond Am. Homes of W. Virginia, Inc. v. Sanders, 228 W. Va. 125, 129, 717 S.E.2d
909, 913 (2011), we said in part:
Under the Federal Arbitration Act, 9 U.S.C. § 2, and the
doctrine of severability, only if a party to a contract explicitly
challenges the enforceability of an arbitration clause within the
contract, as opposed to generally challenging the contract as a
whole, is a trial court permitted to consider the challenge to the
arbitration clause.
When the United States Supreme Court first adopted the severability
doctrine, it did so in a case with an argument like that posed by the plaintiff. In Prima
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403 (1967), Prima Paint signed a
contract with Flood & Conklin. Shortly after performance of the contract began, Prima
Paint discovered Flood & Conklin was insolvent and unable to perform. Prima Paint then
sued seeking to rescind the entire contract on the ground it had been misled and
fraudulently induced to sign.
21
The Prima Paint contract contained an arbitration clause. The Supreme
Court concluded that under Section 2 of the Federal Arbitration Act, courts should presume
an arbitration clause is “valid, irrevocable, and enforceable” until proven otherwise. See 9
U.S.C. § 2.
Accordingly, if the claim is fraud in the inducement of the
arbitration clause itself—an issue which goes to the ‘making’
of the agreement to arbitrate—the federal court may proceed
to adjudicate it. But the statutory language does not permit the
federal court to consider claims of fraud in the inducement of
the contract generally. . . . [A] federal court may consider only
issues relating to the making and performance of the agreement
to arbitrate.
Prima Paint, 388 U.S. at 403-04. Stated simply, the severability doctrine adopted in Prima
Paint stands for the principle that when a party raises claims of fraud, those claims must
be directed solely to the making and performance of the agreement to arbitrate. Claims of
fraud in the inducement of the contract in general must be resolved by an arbitrator.
Because Prima Paint sued to rescind the entire contract, the Supreme Court presumed the
arbitration agreement was valid and enforceable. Prima Paint was, therefore, compelled to
arbitrate its fraudulent inducement claim.
In the instant case, the plaintiff did not argue to the circuit court that the
arbitration agreement was procured by fraud. Instead, she asserted that the entire
contractual relationship between her deceased husband, on the one hand, and Ameriprise
and Evans on the other, was induced by fraud. The plaintiff argued that if she had not been
misled or defrauded by Evans, no contractual relationship would have been formed with
Ameriprise – and therefore, there would be no arbitration agreement.
22
Because the plaintiff’s claims of fraud go to the overall existence of a
contract, we are required – because of the doctrine of severability – to presume that a valid
arbitration agreement was formed by the parties. Accordingly, the question of fraud posed
by the plaintiff must be weighed by the arbitrator. Therefore, we find no error by the circuit
court on this point.
3. The scope of the arbitration clauses
As we noted earlier, Syllabus Point 2 of State ex rel. TD Ameritrade, Inc. v.
Kaufman requires a court to consider “whether the claims averred by the plaintiff fall
within the substantive scope of that arbitration agreement.” 225 W. Va. at 251, 692 S.E.2d
at 294.
The plaintiff contends that her claims of “fraud, misrepresentation,
detrimental reliance, etc.” are her own separate, distinct claims and do not arise out of the
Ameriprise brokerage and portfolio accounts. Basically, she asserts she had a vested right
in her husband’s 401(k) account but defendant Evans induced her, through false
representations and to her detriment, to consent to allow money to be removed from the
401(k) and be transferred to the Ameriprise accounts. Hence, the plaintiff argues that her
fraud-type claims do not fall within the substantive scope of the arbitration clauses.
We reject the plaintiff’s argument because we perceive that the fraud-type
claims, as they are asserted by the plaintiff in her amended complaint, are inexorably
intertwined with the Ameriprise accounts. The plaintiff’s amended complaint specifically
23
alleges she was induced by fraudulent statements from defendant Evans that the plaintiff’s
beneficiary status on the brokerage account “could not be changed in the future without
her consent[.]” The plaintiff’s amended complaint also alleges that the fraudulent
statements caused the funds from both the brokerage and portfolio accounts to be
“wrongfully distributed” to the decedent’s children, defendants Kristina Nicholls and
Stephen Bayles. Moreover, the plaintiff’s amended complaint sought damages including
the “benefits due under said contract[s.]”
As the plaintiff pleaded her amended complaint, the record supports the
circuit court’s finding that the plaintiff’s claims were entirely within the scope of the
Ameriprise arbitration clauses. The plaintiff’s claims pursue relief related, directly and
indirectly, to the brokerage and portfolio account contracts. The claims seek to enforce
terms of the account contracts – mainly, to compel Ameriprise to comply with her
interpretation of Mr. Bayles’s contractual choice of beneficiary, and to compel the
disbursement of the proceeds in the accounts to her.
On this record, we find no error by the circuit court.
15
The plaintiff also asserts that the circuit court erred in finding that the
15
arbitration agreements were not unconscionable. We have reviewed the record and find no
error by the circuit court.
24
B. The Appeal by the Defendants
The defendants also appeal the circuit court’s September 15, 2018, order, and
assert the existence of two errors in surplus language contained in the order.
First, the defendants contend that the circuit court interpreted the record and
made two different findings on the merits of plaintiff’s claims, and thereby invaded the
province of the arbitrator. The circuit court found that “on the date of Mr. Bayles’ passing
the sole beneficiary of the Portfolios Account was his wife, Plaintiff Debra K. Bayles.”
The circuit court also found that “the ‘beneficiary confirmation letter’ dated September 24,
2012, DID NOTHING to modify or otherwise affect the designation of Plaintiff Debra K.
Bayles as the sole beneficiary of the Portfolio Account or the assets therein.” The
defendants ask this Court to reverse these findings by the circuit court and to order that the
plaintiff’s claims be arbitrated pursuant to the terms of the arbitration agreements.
Federal court cases make clear that the Federal Arbitration Act prohibits trial
courts from delving into the merits of a dispute when examining the question of whether
arbitration is required. As we said in TD Ameritrade:
The law is well-settled “that, in deciding whether the parties
have agreed to submit a particular grievance to arbitration, a
court is not to rule on the potential merits of the underlying
claims.” AT & T Technologies, Inc. v. Communications
Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648
(1986). Discussing the general rule that courts are to decide
the threshold issue of arbitrability (i.e. whether there is an
enforceable agreement to arbitrate), the United States Supreme
Court recognized the limited nature of that initial
determination: “‘The courts, therefore, have no business
weighing the merits of the grievance, considering whether
25
there is equity in a particular claim, or determining whether
there is particular language in the written instrument which will
support the claim.’” 475 U.S. at 650, 106 S.Ct. 1415
(quoting United Steelworkers v. American Mfg. Co., 363 U.S.
564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)).
225 W. Va. at 253-54, 692 S.E.2d at 296-97.
In the instant case, once the defendants demanded arbitration pursuant to the
agreements, the circuit court’s authority was limited to determining whether a valid,
enforceable arbitration agreement existed between the parties, and whether the parties’
dispute was within the substantive scope of the agreement. The circuit court was
proscribed from ruling on the potential merits of the plaintiff’s underlying claims.
Accordingly, when the circuit court ruled that the plaintiff was the sole beneficiary of the
portfolios account and made rulings regarding the impact of the September 2012
beneficiary letter sent to Mr. Bayles, the circuit court exceeded its authority. To the extent
the circuit court’s order ruled on the factual merits of the plaintiff’s claims, the order must
be reversed.
The defendants also challenge a surplus statement by the circuit court in its
order. The circuit court declared in its dismissal order: “What, if any, causes of action
Plaintiff Debra K. Bayles[] has or may assert against Defendants relative to fraud or
concealment following the passing of William N. Bayles are not the subject of this
dismissal.” The defendants assert the plaintiff never alleged that the defendants committed
fraud after the death of the decedent. We agree.
26
We have examined the plaintiff’s amended complaint and can find no
allegation of fraud or concealment by the defendants that occurred after the March 26,
2013, death of Mr. Bayles. In doing so, we have construed the amended complaint in the
light most favorable to the plaintiff and taken its allegations as true. See John W. Lodge
Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978) (“For
purposes of the motion to dismiss, the complaint is construed in the light most favorable to
plaintiff, and its allegations are to be taken as true.”). Moreover, the allegations of fraud,
concealment or misrepresentation in the complaint are intrinsically connected to the
contracts signed by Mr. Bayles and are, therefore, subject to arbitration. Accordingly, to
the extent the circuit court’s order professes to permit the plaintiff to pursue a cause of
action that the plaintiff never alleged, the order was in error and the language has no effect.
IV. Conclusion
The circuit court’s September 15, 2018, order properly found that the
arbitration agreements incorporated into the Ameriprise contracts were enforceable.
Moreover, the circuit court’s order properly determined that the parties’ dispute was within
the scope of the arbitration agreements. Accordingly, the circuit court’s decision to dismiss
the plaintiff’s amended complaint and to compel her to arbitrate her claims is affirmed.
However, the circuit court erred in including improper language in its order
(language that ruled on the factual merits of the plaintiff’s claims, and which permitted the
plaintiff to pursue fraud claims never alleged in her amended complaint). To the extent the
circuit court included this surplus language, the order is reversed. The circuit court’s
27
dismissal order otherwise stands and, as no other issues remain for disposition, no remand
is necessary. The parties must arbitrate their dispute.
Affirmed, in part, Reversed, in part.
28
Debra Bayles v. Jeffery N. Evans
Combined Opinion