      IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                           January 2017 Term                              FILED
                            _______________
                                                                       April 24, 2017
                                                                          released at 3:00 p.m.
                              No. 15-1122                               RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                            _______________                                OF WEST VIRGINIA


       BLACKROCK CAPITAL INVESTMENT CORPORATION and
                 52nd STREET ADVISORS LLC,
                  Defendants Below, Petitioners,

                                   v.

                     JERRY FISH; WILLIAM FISH; and
                   FLORA FISH, as Administratrix of the
             Estates of James Eugene Fish and Jeffrey Scott Fish;
               RICHARD T. SWAIN, CATHY MAJORIS, and
         MEGAN SCHLOTTER SWAIN, as Co-Administrators of the
                        Estate of Steven M. Swain; and
            DAVID SCOTT WILLIAMS and RUTH WILLIAMS,
                                Plaintiffs Below;
                         AL SOLUTIONS, INC.; and
                       TREMONT ASSOCIATES, LLC,
                            Defendants Below; and
     TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA,
                               Intervenor Below,
                                 Respondents.
     ____________________________________________________________

             Appeal from the Circuit Court of Hancock County
                 The Honorable Ronald E. Wilson, Judge
                  Civil Action Nos. 11-C-88 and 11-C-90

                              AFFIRMED
     ____________________________________________________________

                       Submitted: January 25, 2017
                          Filed: April 24, 2017

Jeffrey A. Holmstrand, Esq.             Tiffany R. Durst, Esq.
Grove, Holmstrand & Delk, PLLC          Nathaniel D. Griffith, Esq.
Wheeling, West Virginia                 Pullin, Fowler, Flanigan,
Counsel for the Petitioners              Brown & Poe, PLLC
                                         Morgantown, West Virginia
                                         Counsel for Respondent
                                         AL Solutions, Inc.

                                         Robert P. Fitzsimmons, Esq.
                                         Clayton J. Fitzsimmons, Esq.
                                         Fitzsimmons Law Firm PLLC
                                         Wheeling, West Virginia
                                         Mark Colantonio, Esq.
                                         M. Eric Frankovitch, Esq.
                                         Carl A. Frankovitch, Esq.
                                         Frankovitch, Anetakis, Colantonio
                                         and Simon
                                         Weirton, West Virginia
                                         Counsel for the Plaintiffs Below



JUSTICE KETCHUM delivered the Opinion of the Court.

CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a separate
opinion.

JUSTICE WALKER dissents and reserves the right to file a separate opinion.
                              SYLLABUS BY THE COURT

              1.      “A motion for summary judgment should be granted only when it is

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety

Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

              2.      “A circuit court’s entry of summary judgment is reviewed de novo.”

Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

              3.      “A circuit court’s entry of a declaratory judgment is reviewed de

novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).

              4.      This Court reviews a circuit court’s interpretation of a contract de

novo.




                                               i
Justice Ketchum:


              In this appeal from the Circuit Court of Hancock County, we examine the

equitable doctrine of unconscionability. Before the circuit court, a subsidiary company

sought a declaratory judgment against its parent companies. The subsidiary challenged

three management agreements by which the parent companies managed, controlled and

participated in the affairs of the subsidiary.

              The subsidiary company claimed that two clauses in the agreements were

unconscionable. One clause said the parent companies could never be liable to the

subsidiary; the other clause required the subsidiary to indemnify the parent companies for

all legal and liability costs. The subsidiary company asserted the parent companies

unilaterally imposed the clauses without giving the subsidiary any meaningful choice, and

asserted that the clauses were oppressive and unjust. The circuit agreed and, in an order

dated October 16, 2015, declared that the two challenged clauses were unconscionable and

unenforceable.

              One of the parent companies now appeals. As we discuss below, we find no

error in the circuit court’s declaratory judgment order ruling the clauses unconscionable.



                                        I.
                               FACTUAL BACKGROUND

              In December 2010, an explosion and fire killed three workers at a processing

plant in New Cumberland, West Virginia. The plant processed powdered titanium and

zirconium, metals that are pyrophoric and “liable to ignite spontaneously on exposure to

                                                 1
air.”1 Moreover, industry safety guides say that water should never be sprayed on these

metals if they catch fire; the titanium and zirconium will dissociate water into oxygen and

hydrogen gas, and the hydrogen will then explode.2 Prior to the fire, a water-based fire

suppression system was installed in the processing plant.

               This appeal centers on three agreements to manage the processing plant that

were executed four years before the fire, in December 2006.                 These management

agreements involved three corporate parties: Tremont, Blackrock, and the subsidiary they

created, AL Solutions.

               The first corporate party, respondent Tremont Associates, LLC (“Tremont”),

was a broker that connected buyers and sellers of businesses. Tremont often took an

ownership stake in the businesses for its efforts. Tremont had no employees and just two

owners: Troy Kenyon and Henry Goddard.

               In mid-2006, Tremont learned that a company (called Jamegy, Inc.) was

seeking to sell its titanium and zirconium processing business, including the West Virginia

processing plant. Tremont then searched for investors to buy the processing business.


               1
                   Oxford Dictionary of English (2012).
               2
                 Material Safety Data Sheets (“MSDS”) in the record state that titanium and
zirconium are “pyrophoric and may ignite in powder form.” An MSDS for titanium
provides that, in case of a fire, “Do not extinguish with water. . . . The application of water
to burning titanium can cause an explosion due to the evolution of hydrogen gas.” Another
MSDS says zirconium “should be considered a dangerous fire hazard, or a dangerous
explosion hazard if the mix is moist or hydrated. . . . Do not spray water on burning
zirconium. . . . If fire starts . . . the initial fire may be followed by an explosion . . . caused
by the steam and hydrogen generated within the burning mass.”


                                                2
              The investors Tremont settled upon are the second party.           Petitioner

Blackrock Kelso Capital Corporation is an investment fund; petitioner Blackrock Kelso

Capital Advisors, LLC, managed that investment fund.3 These two companies operated

jointly and seamlessly in the purchase of the West Virginia processing plant, and we – like

the parties – refer to them singularly as “Blackrock.” It is important to know the names of

two employees of Blackrock: Marshall Merriman and Stephen Sachman.

              On December 6, 2006, Tremont and Blackrock (the parent companies) came

together and incorporated the third party, AL Solutions, Inc. (the subsidiary).4 The stated

function of AL Solutions was to buy and operate the West Virginia processing plant. The

documents of incorporation fixed the number of directors at three. Three directors were

then appointed: Mr. Kenyon (from Tremont), and Mr. Merriman and Mr. Sachman (from

Blackrock). Those three directors then anointed Mr. Goddard (from Tremont) as president

of AL Solutions. Mr. Goddard later testified that the decision to appoint him as president

was “dictated . . . by the guys at Blackrock.”




              3
               On March 6, 2015, Blackrock Kelso Capital Corporation became Blackrock
Capital Investment Corporation. Blackrock Kelso Capital Advisors, LLC, became 52nd
Street Capital Advisors LLC, and allegedly no longer serves as the investment advisor to
Blackrock Capital Investment Corporation.
              4
                At the same time, Tremont and Blackrock also created Tygem Holdings,
Inc., to be nothing more than a shell company to hold all of the shares of AL Solutions.
However, Tygem is not a direct party to these proceedings, and our discussion omits
Tygem.


                                             3
             On December 29, 2006, three management agreements were executed

between AL Solutions on the one side (identified in the agreements as “the company”), and

Tremont and Blackrock on the other (identified as “the management parties”).5 Each

management agreement required Tremont and Blackrock to provide “certain services” to

AL Solutions. The three agreements were:

           The “Management Services Agreement,” under which Tremont and

             Blackrock agreed to provide “certain agreed upon management and financial

             services” to AL Solutions;

           The “Advisory Services Agreement,” which required the provision of

             “certain advisory services” to AL Solutions; and

           The “Transaction Fee Agreement,” requiring the provision of “certain

             consulting and advisory services” to AL Solutions.

In exchange for providing “certain services” to AL Solutions, Tremont and Blackrock were

entitled to collect fees. In an e-mail, Mr. Goddard said these fees were important to

Tremont because “management fees keep the lights on over here.”

             The “certain services” Tremont and Blackrock were required to provide are

nowhere defined, in the agreements or elsewhere. In discovery, individuals from Tremont

and Blackrock all claimed in some fashion that the agreements made them responsible for

providing AL Solutions with “management services” or “guidance and assistance.”

However, they were also of the opinion that safety issues at the processing plant were not


             5
                 These agreements also involved Tygem as a part of “the company.”

                                            4
within the scope of the agreements. For instance, Mr. Sachman testified that safety was

“completely outside the purview” of the Management Services Agreement, but conceded,

“I can’t point you to a specific clause within the agreement that explicitly says that.”

              Within each of these management agreements are two clauses that are the

focus of this appeal. The first is an indemnification clause that requires AL Solutions to

indemnify Tremont and Blackrock “from any and all losses, claims, damages and

liabilities” arising out of the agreements or “the rendering of any other advice or

performance of any other services[.]”6 The second clause is titled “no liability,” and says


              6
             As an example of an indemnification clause, paragraph 6 of the
Management Services Agreement provides:

              6. Indemnification. The Company [AL Solutions] shall:

              (a)    indemnify the Management Parties [Tremont and
              Blackrock], each Related Person of each Management Party,
              and each of the partners, members, stockholders, directors,
              officers, employees, agents and controlling persons of each
              Management Party or any of its Related Persons (collectively,
              the “Management Related Parties”), to the fullest extent
              lawful, from and against any and all losses, claims, damages
              and liabilities directly or indirectly caused by, related to, based
              upon, or arising out of the engagement of the Management
              Parties pursuant to this Agreement, or the rendering of any
              other advice or performance of any other services by any
              Management Related Party for the Company or any of its
              subsidiaries; and

              (b) promptly reimburse each Management Related Party for all
              costs and expenses (including reasonable counsel fees and
              expenses), as incurred, in connection with the investigation of,
              preparation for, or defense of any pending or threatened claim
              or any action or proceeding arising therefrom, whether or not
              any Management Related Party is a party and whether or not

                                              5
that Tremont and Blackrock cannot be liable to AL Solutions “in contract or tort or

otherwise” for anything arising out of the agreements.7

              At a meeting on December 29, 2006, lawyers employed by Tremont and

Blackrock presented the three management agreements to Mr. Goddard. No lawyer was

hired to represent the interests of AL Solutions, either in the negotiation or the execution

of the agreements. Mr. Goddard signed the three agreements as “president” of AL

Solutions; he then signed the same documents as the “managing director” of Tremont. The

chief operating officer of Blackrock (Michael Lazar) signed, and then the board of directors

for AL Solutions approved the agreements.




              such claim, action or proceeding is initiated or brought by or
              on behalf of the Company and whether or not such claim,
              action or proceeding results in any liability.
              7
              As an example of a “no liability” clause, paragraph 7 of the Advisory
Services Agreement provides:

              7. No Liability. The Company [AL Solutions] agrees that no
              Management Related Party [Tremont and Blackrock] shall
              have any liability (whether direct or indirect, in contract or tort
              or otherwise) to the Company or any of its affiliates, or any of
              the security holders or creditors of the Company or any of their
              respective affiliates or any other Person directly or indirectly
              caused by, related to, based upon, or arising out of (i) the
              engagement of the Management Parties pursuant to this
              Agreement, the performance of the services to be performed
              hereunder, or the rendering of any other advice or performance
              of any other services by any Management Related Party or (ii)
              any Outside Activities.


                                              6
              After signing the three management agreements, and on the same day, Mr.

Goddard stepped down as president of AL Solutions. Mr. Goddard admitted in a deposition

that his sole purpose in being appointed as president of AL Solutions for less than one

month was to “just sign[] some papers to set the shell up.”

              During the period that Tremont and Blackrock were negotiating and

consummating the December 2006 purchase of the titanium and zirconium business,

several fires or explosions occurred at the processing plant. In July 2006, a worker died in

a fire. Fires also occurred on December 21, 2006, and February 7, 2007. Testimony

suggested no one from Tremont or Blackrock investigated the cause of these fires. Instead,

even though safety documents said water should never be used on titanium and zirconium

fires, a water deluge system was installed. Despite the fire suppression system, at least

three more fires occurred at the processing plant.8




              8
                An official 2014 report by the U.S. Chemical Safety and Hazard
Investigation Board (“CSB”) noted the recurring fires at the processing plant:

              Before the 2010 incident, the New Cumberland facility had
              experienced two fatal explosions involving the ignition of
              metal dust. From 1993 until the December 2010 incident, the
              New Cumberland VFD [Volunteer Fire Department]
              responded to at least seven fires at AL Solutions. . . . The CSB
              learned that several other fires occurred at the New
              Cumberland facility that did not result in a fire department
              response. In fact, almost all employees . . . reported to CSB
              investigators that they had witnessed one or more fires in the
              production building.

U.S. Chemical Safety and Hazard Investigation Board, AL Solutions, Inc., New
Cumberland, WV, Metal Dust Explosion and Fire (July 16, 2014).

                                             7
              On December 9, 2010, another explosion and fire occurred at the processing

plant. Three AL Solutions employees were killed in the fire: brothers James Eugene Fish

and Jeffrey Scott Fish died inside the plant; Steven M. Swain’s skin was burnt off inside

the plant but he escaped and collapsed outside, only to die of his burn injuries four days

later. A contractor, David Scott Williams, escaped but received burns. Employees Jerry

Fish and William Fish – brothers of decedents James and Jeffrey Fish – suffered emotional

distress when they witnessed the fire that killed their brothers.

              The circuit court noted that, over a 15-year period culminating in December

2010, fires and explosions had killed nearly 20% of the workforce at this plant.



                                     II.
                           PROCEDURAL BACKGROUND

              The plaintiffs (the injured workers and the family members of the deceased

workers) sued defendants AL Solutions, Tremont, and Blackrock. The plaintiffs asserted

that, through powers conferred by the three management agreements, Tremont and

Blackrock actively managed, controlled, and participated in the daily affairs of AL

Solutions.9 The plaintiffs alleged that, acting together, the three defendants recklessly




              9
              For instance, in discovery, the plaintiffs learned that Blackrock hired a
computer forensic expert to investigate whether a sales employee of AL Solutions had
misused e-mails; Blackrock had the $20,000 bill paid by AL Solutions.


                                              8
operated and managed the West Virginia processing plant and that they knowingly failed

to comply with federal, state, and industry safety standards.10

              When AL Solutions answered the plaintiffs’ complaints, it also asserted a

cross-claim for contribution and/or indemnification against its parent corporations,

Tremont and Blackrock. Tremont and Blackrock countered by asserting claims against AL

Solutions pursuant to the indemnification and no-liability clauses in the three management

agreements. Tremont and Blackrock alleged that AL Solutions was contractually obligated

to pay for their attorney fees and costs defending against the plaintiffs’ case and to

indemnify them from liability.

              AL Solutions subsequently amended its cross-claim against Tremont and

Blackrock and added a request for a declaratory judgment. AL Solutions asked the circuit

court to declare that the indemnification and no-liability clauses in the management

agreements were unconscionable and unenforceable.             On November 18, 2014, AL

Solutions filed a motion for partial summary judgment regarding the unconscionability of

those two clauses.

              In an order dated October 16, 2015, the circuit court granted partial summary

judgment in favor of AL Solutions. Applying West Virginia law to the contracts, the circuit



              10
                 The plaintiffs’ complaints sought compensatory and punitive damages, and
asserted various causes of action including: (1) “deliberate intention” under W.Va. Code
§§ 23-4-2(d)(2)(i) and (2)(ii); (2) negligence and recklessness; (3) intentional or reckless
infliction of emotional distress; (4) negligent infliction of emotional distress; and (5) strict
liability for working with inherently dangerous materials.


                                               9
court found the indemnification and no-liability clauses procedurally and substantively

unconscionable.

              Blackrock now appeals the circuit court’s partial summary judgment order.11


                                       III.
                                STANDARD OF REVIEW

              “A motion for summary judgment should be granted only when it is clear

that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.”12

              We review a circuit court’s entry of an order granting summary judgment, as

well as an order granting a declaratory judgment, de novo.13 Additionally, this Court




              11
               Tremont did not file an appeal, and on January 7, 2016, the circuit court
authorized Tremont’s trial counsel to withdraw from the case.

               Additionally, it has come to the Court’s attention that Blackrock reached a
settlement with the plaintiffs. See Blackrock Capital Investment Corp., Current Report
(Form 8-K) (October 6, 2016) (“Blackrock Capital Investment Corporation . . . together
with 52nd Street Capital Advisors LLC . . . have reached an agreement in principle with the
Plaintiffs to settle the actions for $17,500,000[.]”). Despite this settlement, a dispute
appears to remain between AL Solutions and Blackrock concerning their respective rights
to contribution or indemnification from the other.
              12
               Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
              13
                Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
(“A circuit court’s entry of summary judgment is reviewed de novo.”); Syllabus Point 3,
Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995) (“A circuit court’s entry of a
declaratory judgment is reviewed de novo.”).


                                              10
reviews a circuit court’s interpretation of a contract de novo.14 The term “de novo” means

“Anew; afresh; a second time.”15 “We have often used the term ‘de novo’ in connection

with the term ‘plenary.’ . . . Perhaps more instructive for our present purposes is the

definition of the term ‘plenary,’ which means ‘[f]ull, entire, complete, absolute, perfect,

unqualified.’”16

              We therefore give a new, complete and unqualified review to the parties’

arguments and the record before the circuit court. Our goal is to determine if there is any

genuine issue of fact about the unconscionability of the two clauses, or if any inquiry

concerning the facts is desirable to clarify the application of the law.


                                           IV.
                                        ANALYSIS

              Blackrock’s appeal of the circuit court’s order boils down to two assertions

of error. Blackrock’s central argument is that the circuit court ignored a choice of law

provision within each management agreement that required the application of New York,

not West Virginia, law. When construed under New York principles of contract law,




              14
                 W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc., 796 S.E.2d 574,
578 (W.Va. 2017) (“Moreover, to the extent that our resolution of this appeal necessitates
our review of contractual issues, ‘we apply a de novo standard of review to [a] circuit
court’s interpretation of [a] contract.’”) (citations omitted).
              15
                Frymier-Halloran v. Paige, 193 W.Va. 687, 693, 458 S.E.2d 780, 786
(1995) (quoting Black’s Law Dictionary 435 (6th ed. 1990)).
              16
               State ex rel. Clark v. Blue Cross Blue Shield of W.Va., Inc., 203 W.Va. 690,
701, 510 S.E.2d 764, 775 (1998) (quoting Black’s Law Dictionary 1154 (6th ed.1990)).

                                             11
Blackrock argues that the indemnification and no-liability clauses are conscionable and

fair. Blackrock’s second argument challenges the manner in which the circuit court entered

its ruling, asserting the circuit court ruled on an incomplete record and thereby deprived it

of due process.

              We address and, as explained below, reject Blackrock’s two contentions.



                             A. Unconscionability in General

              The first argument we address is Blackrock’s assertion that the

indemnification and no-liability clauses are conscionable and fair. Blackrock contends the

circuit court erred in finding the clauses to be unconscionable, in part because it failed to

interpret the clauses under New York law.

              The circuit court found the indemnification clause and the no-liability clause

unconscionable after applying West Virginia law. However, the management agreements

contain a choice of law provision providing that they would “be governed and construed

in accordance with the internal laws of the State of New York[.]” This Court has

recognized “the presumptive validity of a choice of law provision”17 and found that such a

provision is “not automatically void[.]”18



              17
                Manville Pers. Injury Settlement Tr. v. Blankenship, 231 W.Va. 637, 644,
749 S.E.2d 329, 336 (2013). Accord, W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy,
Inc., 796 S.E.2d 574 (W.Va. 2017).
              18
                   Gen. Elec. Co. v. Keyser, 166 W.Va. 456, 461 n.2, 275 S.E.2d 289, 292
n.2 (1981).

                                             12
              Blackrock argues the circuit court erred in applying West Virginia law. We

agree with Blackrock on this point, and hold that the circuit court should have assessed the

unconscionability of the two clauses under New York law, not West Virginia law.

Nevertheless, New York’s unconscionability jurisprudence is structured almost identically

to West Virginia’s. Under a plenary review, when we apply New York’s contract law to

the record, the outcome of this case remains unchanged: the indemnification clause and no-

liability clause in the management agreements are unconscionable.

              Under New York law, like under West Virginia law, an unconscionable

agreement is one that “is so grossly unreasonable or unconscionable in the light of the

mores and business practices of the time and place as to be unenforcible [sic] according to

its literal terms.”19 “[A]n unconscionable contract is one such as no man in his senses and

not under a delusion would make on the one hand, and as no honest or fair man would

accept, on the other.”20 The doctrine of unconscionability is rooted in equitable principles,



              19
                 Mandel v. Liebman, 100 N.E.2d 149, 152 (N.Y. 1951). Cf. Syllabus Point
12, in part, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250, 261
(2011), cert. granted, judgment vacated sub nom. Marmet Health Care Ctr., Inc. v. Brown,
565 U.S. 530 (2012) (“Brown I”) (“The doctrine of unconscionability means that, because
of an overall and gross imbalance, one-sidedness or lop-sidedness in a contract, a court
may be justified in refusing to enforce the contract as written.”).
              20
                 Mandel, 100 N.E.2d at 152 (quotations omitted). Cf. McGinnis v. Cayton,
173 W.Va. 102, 113, 312 S.E.2d 765, 776 (1984) (quoting Hume v. United States, 132 U.S.
406, 411 (1889) (“It may be apparent from the intrinsic nature and subject of the bargain
itself; such as no man in his senses and not under delusion would make on the one hand,
and as no honest and fair man would accept on the other; which are unequitable and
unconscientious bargains.”).


                                             13
is flexible, and is “intended to be sensitive to the realities and nuances of the bargaining

process[.]”21

                Like West Virginia, New York law holds that a party alleging

unconscionability must generally show that “the contract was both procedurally and

substantively unconscionable when made – i.e., some showing of an absence of meaningful

choice on the part of one of the parties together with contract terms which are unreasonably

favorable to the other party.”22 “The procedural element of unconscionability concerns the

contract formation process and the alleged lack of meaningful choice; the substantive

element looks to the content of the contract, per se.”23 A court assesses the existence of

overall unconscionability under a sliding scale between procedural and substantive




                21
                 State v. Avco Fin. Serv. of N.Y. Inc., 406 N.E.2d 1075, 1078 (N.Y. 1980).
Cf. Syllabus Point 12, in part, Brown I (“The concept of unconscionability must be applied
in a flexible manner, taking into consideration all of the facts and circumstances of a
particular case.”).
                22
                Gillman v. Chase Manhattan Bank, N.A., 534 N.E.2d 824, 828 (N.Y. 1988)
(quotations and citations omitted). Cf. Syllabus Point 20, Brown I (“A contract term is
unenforceable if it is both procedurally and substantively unconscionable. However, both
need not be present to the same degree. Courts should apply a ‘sliding scale’ in making
this determination: the more substantively oppressive the contract term, the less evidence
of procedural unconscionability is required to come to the conclusion that the clause is
unenforceable, and vice versa”).

             Unlike West Virginia, several New York cases have found exceptional
circumstances “where a provision of the contract is so outrageous as to warrant holding it
unenforceable on the ground of substantive unconscionability alone.” Gillman, 534 N.E.2d
at 829.
                23
                     Simar Holding Corp. v. GSC, 928 N.Y.S.2d 592, 595 (2011).


                                              14
unconscionability: “the more questionable the meaningfulness of choice, the less

imbalance in a contract’s terms should be tolerated and vice versa.”24

              One court summarized New York’s doctrine of unconscionability this way:

              In determining the conscionability of a contract, no set weight
              is to be given any one factor; each case must be decided on its
              own facts. However, in general, it can be said that procedural
              and substantive unconscionability operate on a “sliding scale”;
              the more questionable the meaningfulness of choice, the less
              imbalance in a contract’s terms should be tolerated and vice
              versa. While there may be extreme cases where a contractual
              term is so outrageous and oppressive as to warrant a finding of
              unconscionability irrespective of the contract formation
              process such cases are the exception. Generally, there must be
              a showing of both a lack of a meaningful choice and the
              presence of contractual terms which unreasonably favor one
              party. . . . Absent some violation of law or transgression of a
              strong public policy, the parties to a contract are basically free
              to make whatever agreement they wish, no matter how unwise
              it might appear to a third party.              The doctrine of
              unconscionability, with its emphasis on the contract-making
              process, is really an expression of, rather than an exception to,
              this principle. By focusing on the manner in which a contract
              is entered into and the status of the parties, the doctrine is
              designed to insure freedom of contract and not to negate it.25

As another court said, the doctrine of unconscionability ensures that contracts are “the

subject of calm and deliberate adjustment[.]”26




              24
                   State v. Wolowitz, 468 N.Y.S.2d 131, 145 (1983).
              25
                   Wolowitz, 468 N.Y.S.2d 131, 145 (1983) (citations omitted).
              26
               Hydraulic Power Co. of Niagara Falls v. Pettebone-Cataract Paper Co.,
191 N.Y.S. 12, 18 (App. Div. 1921).

                                             15
              Applying New York law, we now examine the circuit court’s finding that the

two clauses in the management agreements were procedurally and substantively

unconscionable.



                             B. Procedural unconscionability

              New York courts say that weighing procedural unconscionability requires an

examination of the contract formation process and the parties’ alleged lack of meaningful

choice. “The focus is on such matters as the size and commercial setting of the transaction,

whether deceptive or high-pressured tactics were employed, the use of fine print in the

contract, the experience and education of the party claiming unconscionability, and

whether there was disparity in bargaining power.”27

              The circuit court examined the contract formation process and found that the

two clauses in the management agreements were adopted in a procedurally unconscionable

manner. The circuit court found it undisputed that attorneys working for Blackrock and

Tremont drafted the three management agreements; no lawyer was hired to represent the

interests of AL Solutions in the negotiation or the execution of the agreements. Even

though AL Solutions had no lawyer, the circuit court found that AL Solutions was

compelled to pay the attorney’s fees incurred by Tremont during the transaction.


              27
                 Gillman, 534 N.E.2d at 828. Cf. Syllabus Point 17, in part, Brown I
(“Procedural unconscionability is concerned with inequities, improprieties, or unfairness
in the bargaining process and formation of the contract. Procedural unconscionability
involves a variety of inadequacies that results in the lack of a real and voluntary meeting
of the minds of the parties, considering all the circumstances surrounding the transaction.”).

                                             16
              The circuit court also found it undisputed that, at the time the parties executed

the management agreements, the board of directors for AL Solutions was comprised solely

of principals from Blackrock and Tremont. That board then appointed one of the two

owners of Tremont, Mr. Goddard, as president of AL Solutions. Hence, when Mr. Goddard

signed the three management agreements on behalf of both Tremont and AL Solutions, and

the board approved those agreements, there was no real and voluntary meeting of the

minds. The circuit court even found that Mr. Goddard was not “consciously aware” that

the agreements contained the no-liability clauses. Put simply, AL Solutions did not bargain

for the indemnification and no-liability clauses. The circuit court found the clauses were a

result of Blackrock and Tremont “effectively contracting with themselves through their

exclusive control, authority, and dominion” over AL Solutions, primarily to “insulate

themselves from any and all liability.”

              Blackrock does not dispute the circuit court’s findings. Instead, Blackrock

presents a scattershot argument that the circuit court misinterpreted the legal effect of these

facts.   For instance, Blackrock asserts that contracts between “businessmen in a

commercial setting” are presumed to be conscionable,28 or that the failure of an individual

to consult a lawyer before a contract is executed is not enough to warrant a finding of




              28
                See Process Am., Inc. v. Cynergy Holdings, LLC, 35 F.Supp.3d 259, 263
(E.D.N.Y. 2014) (“Although Process America’s executives apparently were not
represented by counsel, nevertheless, ‘[t]here is a presumption of conscionability when the
contract is between businessmen in a commercial setting.’”).


                                              17
procedural unconscionability.29 Blackrock does not explain how these principles apply in

this case, particularly where the facts present a corporation that lacks counsel or any other

independent representation, and where there was no “businessman” acting in an arms-

length manner on AL Solution’s behalf.

              Blackrock’s theory is that the contract-execution process which the circuit

court deemed oppressive is actually fair, because it is consistent with traditional principals

of corporate governance. Much of Blackrock’s argument centers on Mr. Goddard and the

fact that he acted on both sides of the transaction, signing as president of AL Solutions and

as managing director of Tremont. Blackrock asserts Mr. Goddard’s dual role was not

unfair because it is a common feature of corporate practice. Blackrock contends that parent

corporations routinely enter into agreements with subsidiary shell companies, and when

they do so their officers necessarily sign contracts on behalf of both entities.30

              Blackrock argues that officers who sign agreements on behalf of both the

parent company and the subsidiary do not violate any fiduciary duty when they do so.


              29
                 See Reach Music Pub., Inc. v. Warner/Chappell Music, Inc., 2014 WL
5861984, at *7 (S.D.N.Y. Nov. 10, 2014) (“[T]here is ‘no requirement in the law that
consultation with a lawyer must occur in order to render a contractual obligation
enforceable.’ Many agreements are entered into without counsel on one side, the other, or
both.”)(citation omitted).
              30
                  See, e.g., Vendetti v. Fiat Auto S.p.A., 802 F. Supp. 886, 893 (W.D.N.Y.
1992) (“It is not uncommon for a parent company and its subsidiaries to have common
directors and/or owners.”); J.L.B. Equities, Inc. v. Ocwen Fin. Corp., 131 F. Supp. 2d 544,
550 (S.D.N.Y. 2001) (“It has been established that overlapping officers and directors are
‘intrinsic to the parent-subsidiary relationship,’ and that they are not determinative as to
whether the subsidiary is a ‘mere department’ of the parent.”).


                                              18
Citing to general principals of corporate law, Blackrock argues that, “The weight of

authority holds that a parent corporation owes no fiduciary duties to its wholly-owned

subsidiary.”31 Much of Blackrock’s argument is founded upon Anadarko Petroleum

Corporation v. Panhandle Eastern Corporation, where the Delaware court stated:

                     It is a basic principle of Delaware General Corporation
              Law that directors are subject to the fundamental fiduciary
              duties of loyalty and disinterestedness. Specifically, directors
              cannot stand on both sides of the transaction nor derive any
              personal benefit through self-dealing. However, in a parent
              and wholly-owned subsidiary context, the directors of the
              subsidiary are obligated only to manage the affairs of the
              subsidiary in the best interests of the parent and its
              shareholders.32

              We note, however, that the court in Anadarko Petroleum focused solely upon

the fiduciary duties of corporate directors; it did not consider the doctrine of

unconscionability. Moreover, the trial court in Anadarko Petroleum explicitly avoided

considering the fairness of the contracts at issue. The trial court said, “For purposes of this

decision it is not necessary to evaluate the fairness of the Disputed Agreements. Suffice it

to say that at least one of the individual defendants conceded that he did not think


              31
                   Westlake Vinyls, Inc. v. Goodrich Corp., 518 F. Supp. 2d 902, 917 (W.D.
Ky. 2007).
              32
                 Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 545 A.2d 1171,
1174 (Del. 1988) (citations omitted). See also Aviall, Inc. v. Ryder Sys., Inc., 913 F. Supp.
826, 832 (S.D.N.Y. 1996) (“[T]hose who operate the parent company owe no fiduciary
duties to the wholly owned subsidiary, and even when the parent company announces a
proposed spin-off of the subsidiary, the directors of the parent and the directors of the
subsidiary owe no fiduciary duties to the soon-to-be-independent subsidiary’s prospective
stockholders.”).


                                              19
Panhandle could have obtained Anadarko’s approval of the agreements if Anadarko had

been an independent company.”33

                 Furthermore, it is a traditional principle of corporate governance that the law

jealously regards a contract between a parent corporation and its subsidiary and it is

voidable for unfairness. It is well-settled law that “[a] contract between parent-subsidiary

corporations, even with identical officers, is not void, but only voidable for fraud, or

unfairness.”34

                 [A] contract or business transaction between two corporations
                 having all or a part of their directors or officers in common is
                 not inherently invalid and is not void because of the
                 relationship alone, but is voidable only. However, it is
                 generally held that a contract between two corporations having
                 one or more common directors or officers is jealously regarded
                 by the law, and once such a transaction is questioned it is
                 thereafter subjected to the closest scrutiny by the courts
                 because of this relationship, and is voidable if found to be
                 unfair even though there be no taint of fraud. The rule is
                 deemed necessary to the end that in the absence of arm’s length
                 bargaining the scales may not be unfairly tipped to one side or
                 the other even through mistake or inadvertence.35




                 33
                      Anadarko Petroleum Corp. v. Panhandle E. Corp., 521 A.2d 624, 627
(Del. Ch. 1987).
                 34
                      Am. Motors Corp. v. Wisconsin Dep’t of Revenue, 219 N.W.2d 300, 305
(Wis. 1974).
                 35
                 Colorado Mgmt. Corp. v. Am. Founders Life Ins. Co. of Denver, 359 P.2d
665, 668 (Colo. 1961). Accord Tower Hill-Connellsville Coke Co. of W.Va. v. Piedmont
Coal Co., 64 F.2d 817, 823 (4th Cir. 1933) (“Transactions between corporations having
interlocking directorates, the fairness and good faith of which transactions are challenged,
are jealously regarded by the law, and those who would sustain them must show their entire
fairness.”).

                                                20
              In the instant case, AL Solutions never argued that the principals of Tremont

or Blackrock were violating any fiduciary duties, whether to shareholders or anyone else.

Instead, it has asserted continuously and strenuously that the disputed clauses were unfairly

imposed upon AL Solutions, to its exclusive detriment and solely to the benefit of

Blackrock (and Tremont). Put succinctly, we do not think AL Solutions would have

approved the two clauses in the agreements if AL Solutions had been an independent

company.

              Examining the extensive record presented by the parties, we find no error in

the circuit court’s conclusion that the indemnification and no-liability clauses were adopted

in a procedurally unconscionable manner.          Tremont and Blackrock disrespected the

corporate form, the corporate structure, of AL Solutions. The actions of Tremont and

Blackrock may be routine in the business world, but that does not make those actions fair

and conscionable. By exercising complete dominion over AL Solutions in the execution

of the indemnification and no-liability clauses, Tremont and Blackrock disregarded the

independent corporate identity of AL Solutions.

              To determine whether an agreement is procedurally unconscionable, “we

must examine the contract formation process for a lack of meaningful choice.”36 AL

Solutions clearly had no meaningful choice in the contract formation process. This was

not an arms-length negotiation between competent, independent business-persons. No

individual or attorney represented AL Solutions in the negotiation or drafting of the


              36
                   In re Lawrence, 23 N.E.3d 965, 976-77 (N.Y. 2014).

                                             21
indemnification or no-liability clauses; no attorney was present to protect the interests of

AL Solutions, while AL Solutions was forced to pay the attorney fees for Tremont; and the

person who signed on behalf of AL Solutions, Mr. Goddard, admitted he did not know all

the terms of the agreements.

              We have given a plenary review to the record, and weighed the contract

formation process under New York law.            We find no error in the circuit court’s

determination that the two clauses were adopted in a procedurally unconscionable manner.



                            C. Substantive unconscionability

              Under New York contract law, weighing substantive unconscionability

“entails an analysis of the substance of the bargain to determine whether the terms were

unreasonably favorable to the party against whom unconscionability is urged.”37 The

courts of New York have held that “[s]ubstantive elements of unconscionability appear in

the content of the contract per se[.]”38 “[C]ontract provisions that are oppressive, unjust,

and unreasonably deprive a party of the benefits of his or her bargain are substantively




              37
                 Gillman, 534 N.E.2d at 829. Cf. Syllabus Point 19, in part, Brown I
(“Substantive unconscionability involves unfairness in the contract itself and whether a
contract term is one-sided and will have an overly harsh effect on the disadvantaged party.
The factors to be weighed in assessing substantive unconscionability vary with the content
of the agreement.”).
              38
               Emigrant Mortg. Co., Inc. v. Fitzpatrick, 945 N.Y.S.2d 697, 699 (App.
Div. 2012) (quoting Matter of Friedman, 407 N.Y.S.2d 999, 1008 (1978)).


                                            22
unconscionable.”39       “Examples of unreasonably favorable contractual provisions are

virtually limitless[.]”40

               The circuit court carefully examined the contents of the indemnification

clause and the no-liability clause in the context of the three management agreements. The

circuit court found that both clauses were unreasonably favorable to Tremont and

Blackrock, and therefore substantively unconscionable.

               The three management agreements required Tremont and Blackrock to

provide unspecified “certain services.”        For example, the circuit court noted the

Management Services Agreement required Tremont and Blackrock to provide “certain

management and financial services,” and in return they would receive a substantial annual

fee “for performing a service that is wholly undefined under the contract.” However,

because of the no-liability and indemnification clauses, the circuit court found Tremont

and Blackrock “would be immune from liability for their conduct,” and would have a claim

for indemnity, even for their own wrongful conduct to third parties. The circuit court found

the “harsh effect of these provisions is that [Blackrock and Tremont] had no responsibility

to adequately perform under the agreement.”

               The circuit court found that, if the indemnification and no-liability clauses

were found to be enforceable, Tremont and Blackrock “could be insulated from all liability



               39
                Day Op of N. Nassau, Inc. v. Viola, 16 Misc. 3d 1122(A), *7, 847 N.Y.S.2d
901 (Sup. Ct. 2007).
               40
                    Wolowitz, 468 N.Y.S.2d at 145.

                                              23
even if they would have refused to perform under the contract. In other words, [Blackrock]

and Tremont could have refused to perform any management services, financial services,

or advisory services, and [AL Solutions] would have been without recourse.” Because of

this, the circuit court concluded that the indemnification and no-liability clauses are “a

perfect example of substantive unconscionability.”

             The circuit court also found the two clauses lacked any mutuality of

obligation. The indemnification clause requires AL Solutions to indemnify Tremont and

Blackrock; the no-liability clause provides that Tremont and Blackrock would never be

liable AL Solutions. There is no reciprocal provision regarding liability or indemnity for

AL Solutions. AL Solutions must indemnify and defend Tremont and Blackrock even if

AL Solutions initiates the proceeding or suit. The clauses have the practical effect of

preventing AL Solutions from suing Tremont or Blackrock for any purpose, including

breach of the agreements. Hence, the circuit court found the clauses were completely one-

sided and unreasonably favorable to one side.

             Taken together, the circuit court concluded that the two clauses were

substantively unconscionable.

             Blackrock concedes that the indemnification and no-liability clauses are, by

their very own terms, broad enough to hold Blackrock harmless for negligence in the

performance of its contractual services or even an intentional breach of the agreements.

However, Blackrock claims that “[u]nder New York law, parties to a contract may agree




                                           24
to limit the liability that the other may recover from a breach of contract.”41 “A party ‘may

later regret their assumption of the risks of non-performance in this manner; but the courts

let them lie on the bed they made.’”42

              AL Solutions responds by pointing out that, under New York law,

indemnification clauses and no-liability clauses have never been declared per se

conscionable and fair. Just the opposite is true. “‘No damage’ clauses are not always

absolute and they must be strictly construed against the party seeking to avoid liability.”43

New York courts have said that contracts must have “at least a fair quantum of remedy for

breach of the obligations or duties outlined in the contract,” and any contract clause

modifying or limiting remedies “in an unconscionable manner is subject to deletion and in

that event the remedies made available . . . as if the stricken clause had never existed.”44

Accordingly, “It follows that contractual limitations upon remedies are generally to be




              41
               Process Am., Inc. v. Cynergy Holdings, LLC, 35 F.Supp.3d 259, 260
(E.D.N.Y. 2014).
              42
               Id. (quoting Metropolitan Life Ins. Co. v. Noble Lowndes Int’l, Inc., 643
N.E.2d 504 (1994).
              43
                 Vanderlinde Elec. Corp. v. City of Rochester, 388 N.Y.S.2d 388, 391
(1976). See also Ippolito-Lutz, Inc. v. Cohoes Hous. Auth., 254 N.Y.S.2d 783, 784 (1964)
(“An exculpatory clause of this nature is not always absolute. It must be construed strictly
against the party seeking exemption from liability because of his own fault.”).
              44
               Wilson Trading Corp. v. David Ferguson, Ltd., 244 N.E.2d 685, 687 (N.Y.
1968) (quoting Uniform Commercial Code, § 2-719, Official Comment 1).


                                             25
enforced unless unconscionable.”45       Stated differently, “Contractual limitations on

remedies are generally enforced unless entered into under circumstances evidencing fraud

or unconscionability.”46

              This Court is cognizant that under New York law, and the law of most other

jurisdictions, it is the rare case where a contract between two commercial parties is found

to be unconscionable. This Court has found similarly, holding that contract law “permits

courts to protect parties from grossly unfair, unconscionable bargains; it does not permit

courts to protect commercial litigants from stupid or inefficient bargains willingly and

deliberately entered into.”47

              Nevertheless, unconscionability must be assessed based on the particular

facts and circumstances of each case. We have examined the indemnification and no-

liability clauses and we find them both unreasonably favorable to Blackrock. Applying

equitable principles of New York law, these two clauses are outrageous and oppressive.

The clauses prevent AL Solutions from suing Blackrock, even if Blackrock refused to

perform any of its “certain services.”      The presence of these clauses in the three

management agreements does not reflect the freedom of contract, but rather shows that AL

Solutions was a hapless pawn destined for sacrifice on the altar of corporate law.




              45
                   Wilson Trading Corp., 244 N.E.2d at 687 (emphasis added).
              46
                   Edwards v. N. Am. Van Lines, 513 N.Y.S.2d 895, 897 (1987).
              47
               State ex rel. Johnson Controls, Inc. v. Tucker, 229 W.Va. 486, 497, 729
S.E.2d 808, 819 (2012).

                                             26
              In summary, we find no error in the circuit court’s conclusion that the two

clauses were substantively unconscionable.



                               D. Overall unconscionability

              New York law requires a modicum of both procedural and substantive

unconscionability in order for a contract provision to be unenforceable. “[P]rocedural and

substantive unconscionability operate on a ‘sliding scale’; the more questionable the

meaningfulness of choice, the less imbalance in a contract’s terms should be tolerated and

vice versa.”48      Elements of procedural and substantive unfairness abound in the

indemnification and no-liability clauses, and we have no difficulty finding a lack of any

bargained-for exchange between the parties. The circuit court was therefore correct in its

determination that the two clauses were oppressive, unfair, and unconscionable, and

therefore unenforceable.49




              48
                   Wolowitz, 468 N.Y.S.2d at 145.
              49
                  Blackrock offers a one-paragraph alternative to voiding the two clauses. It
asserts that the circuit court should have declared all three management agreements void
in their entirety. Blackrock’s argument consists of four sentences and no citation to legal
authority. A “skeletal ‘argument,’ really nothing more than an assertion, does not preserve
a claim. Judges are not like pigs, hunting for truffles buried in briefs. Furthermore, this
Court has adhered to the rule that although we liberally construe briefs in determining
issues presented for review, issues mentioned only in passing but not supported with
pertinent authority, are not considered on appeal.” State v. Kaufman, 227 W.Va. 537, 555
n.39, 711 S.E.2d 607, 625 n.39 (2011) (citations, quotations, and ellipses omitted). We
refuse to consider this argument.

                                             27
                                     E. Due Process

              Blackrock’s second argument is that it had insufficient opportunity to

respond to AL Solutions’s motion for partial summary judgment. Blackrock contends the

circuit court violated its due process rights and wholly precluded Blackrock from offering

evidence or arguments countering the assertions of AL Solutions that the two clauses were

unconscionable.

              AL Solutions filed its motion for partial summary judgment on November

18, 2014. The circuit court entered its order 333 days later, on October 16, 2015. Between

those dates, the parties vigorously litigated two other motions that were intertwined with

the summary judgment motion.

              The first motion entangled with the summary judgment motion came from

the plaintiffs. The insurer for AL Solutions deposited the liability insurance policy limits

with the circuit court.50 The plaintiffs moved to distribute those funds. Counsel for

Tremont and Blackrock objected because depletion of the insurance policy funds would

impair their ability (under the management agreements) to recover indemnification from

AL Solutions.

              The second entangled motion was Blackrock’s motion to dismiss the

plaintiffs’ cases for a lack of personal jurisdiction. Blackrock asserted it was a foreign


              50
                The insurer for AL Solutions stated there was a total of $16,500,000.00 in
available coverage. However, $703,698.20 of that coverage was set aside for defense costs
and expenses on behalf of Tremont and Blackrock. The insurer reserved the right to seek
reimbursement of those costs and expenses in the event the indemnification and no-liability
clauses are unenforceable, and agreed make that money available to the plaintiffs.

                                            28
corporation that never transacted business in West Virginia. Alternatively, it asserted that

the plaintiffs’ claims did not arise out of Blackrock’s contacts with West Virginia.

               On May 6, 2015, the circuit court sent the parties a letter stating it had

received the motion for partial summary judgment on unconscionability filed by AL

Solutions. The circuit court ordered “any party wishing to file a response shall do so by

June 12, 2015.”

               Fifteen days later, on May 21st, the circuit court entered an order granting the

plaintiffs’ motion to distribute the insurance policy funds. However, in that order, the

circuit court mentioned two other dates. Firstly, the circuit court noted Blackrock’s motion

to dismiss for lack of personal jurisdiction, and anticipated Blackrock “will receive a

decision on that issue by July 1, 2015.” Secondly, and more importantly, the circuit court

discussed Tremont and Blackrock’s claim that AL Solutions was “contractually obligated

to defend and indemnify them herein pursuant to certain agreements the parties entered

into in December, 2006[.]” The circuit court stated that, “[i]f the issue of indemnification

and the validity of the agreements . . . still remains after the [circuit court] issues its decision

on Jurisdiction, the parties must fully brief the issue by October 30, 2015.”

               On June 12, 2015, Tremont filed its response to AL Solutions’s motion for

partial summary judgment, in compliance with the circuit court’s letter. Tremont’s

response was 18 pages long and contained 40 pages of exhibits.

               Blackrock, however, did not file a full response. Instead, Blackrock filed a

two-paragraph “initial response” to the motion for partial summary judgment. Blackrock

stated generally that it opposed the motion, but said Blackrock would respond to “that

                                                29
motion by October 30, 2015 in the event the issue remains pertinent as to them following

the Court’s anticipated ruling on their [Blackrock’s] jurisdictional motion.”

              On June 18, 2015, the circuit court entered an order denying Blackrock’s

jurisdictional motion. Lastly, on August 19, 2015, the circuit court entered a detailed

“distribution order” distributing the insurance policy funds to the plaintiffs.

              On September 18, 2015, the parties filed two pleadings in this Court

implicating the indemnification clauses.51 AL Solutions petitioned for a writ of prohibition

against the distribution order, arguing that the order deprived AL Solutions of insurance

money to pay indemnification claims by Tremont and Blackrock.52 Blackrock filed a

notice of appeal of the same distribution order, and asserted that the order removed

Blackrock’s right to indemnification under the management agreements.53

              The circuit court somehow learned that the parties’ arguments before this

Court all hinged upon the indemnification clauses. In response, on October 8, 2015, the

circuit court sent the parties a letter stating it wanted AL Solutions to draft a proposed order

granting the motion for partial summary judgment and finding the indemnification and no-


              51
                 Blackrock contemporaneously filed a third proceeding, a petition for a writ
of prohibition, to halt enforcement of the circuit court’s jurisdiction order. The Court
refused the petition on November 4, 2015. See State ex rel. Blackrock Capital Investment
Corporation, et al. v. The Honorable Ronald E. Wilson, et al., No. 15-0797.
              52
                See State ex rel. AL Solutions, Inc., v. The Honorable Ronald E. Wilson, et
al., No. 15-0897. The Court refused the petition on November 3, 2015.
              53
                See Blackrock Capital Investment Corp., et al. v. Jeffrey Fish, et al., No.
15-0942. On November 17, 2015, this Court granted the plaintiffs’ motion to dismiss the
appeal on the ground that the distribution order was interlocutory and not appealable.

                                              30
liability clauses unconscionable. The circuit court required AL Solutions to submit the

proposed order by October 13th, and any party wanting to file objections was required to

do so by October 15th. The goal of the circuit court was to enter the order and submit it to

this Court no later than October 16th.

              On October 13th, AL Solutions submitted its proposed order. After AL

Solutions delivered its proposed order, Blackrock hand delivered to the circuit court a five-

page request to enlarge the time to file objections until October 30th. Blackrock’s request

said that if Blackrock had additional time then it would be “permitted . . . to file exhibits

and other evidence” to support its opposition to the motion for partial summary judgment.

Blackrock, however, did not describe for the circuit court what these exhibits or other

evidence might show. The circuit court promptly denied the request for an extension.

              In accordance with the circuit court’s deadline, on October 15th, Tremont

filed its objections to the proposed order, consisting of 15 pages of arguments. Tremont

also attached eight pages of exhibits to its objections.

              Blackrock filed seven pages of objections. Blackrock filed no exhibits of its

own nor did it make any mention of exhibits or evidence critical to its position.54 Blackrock

argued, as it does in this appeal, that the circuit court should have applied New York law

and found the agreements procedurally and substantively fair.


              54
                 An affidavit from Blackrock’s attorney was attached to the response
reasserting that Blackrock needed until October 30th to properly respond. The attorney
averred that Blackrock was prepared to meet the October 30th deadline, and at that time
would submit “opposition evidence[.]”


                                             31
              The next day, October 16, 2015, the circuit court entered its order granting

partial summary judgment to AL Solutions, and found the indemnification and no-liability

clauses were unconscionable. A copy of the order was e-mailed to this Court.55

              Blackrock argues it was harmed by the circuit court’s “precipitous procedural

decision” in this case. Blackrock does not dispute that “a trial court has plenary power to

reconsider, revise, alter or amend an interlocutory order[.]”56 Further, Blackrock rightly

states that “[a] motion for summary judgment should be granted only when it is clear that

there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable

to clarify the application of the law.”57 In weighing the motion, “all exhibits and affidavits

and other matters submitted by both parties should be considered by the court[.]”58




              55
                 On October 19th, the circuit court notified Blackrock by letter that it did
not review Blackrock’s objections until after the partial summary judgment order was
signed. Blackrock appears to have e-mailed its objections to the circuit judge’s law clerk,
and ignored the automatic reply message saying the law clerk was on vacation. However,
despite Blackrock’s objections, the circuit court concluded it would not withdraw its order.
While the circuit court’s action was abrupt, we have given careful and thorough review to
the issues raised by Blackrock in the record.
              56
               Syllabus Point 2, in part, Taylor v. Elkins Home Show, Inc., 210 W.Va.
612, 558 S.E.2d 611 (2001).
              57
                   Syllabus Point 3, Aetna Cas. & Sur. Co, 148 W.Va. at 160, 133 S.E.2d at
771.
              58
                Syllabus Point 3, in part, Haga v. King Coal Chevrolet Co., 151 W.Va.
125, 150 S.E.2d 599 (1966). Accord, Syllabus Point 2, Aetna Cas. & Sur. Co., 148 W.Va.
at 160, 133 S.E.2d at 771 (“On a motion for summary judgment all papers of record and
all matters submitted by both parties should be considered by the court.”).


                                              32
Blackrock also argues, “[I]t is a fundamental requirement of due process to be given ‘the

opportunity to be heard “at a meaningful time and in a meaningful manner.”‘”59

              Blackrock contends the circuit court violated these fundamental rules,

because it shifted the briefing deadlines and ruled without the benefit of briefing and

evidence by Blackrock.

              After a review of the lengthy record, we are not persuaded by Blackrock’s

arguments. Between the filing of AL Solutions’s motion for partial summary judgment

and entry of the circuit court’s order, Tremont (Blackrock’s identically situated co-

defendant) repeatedly succeeded in doing the things Blackrock says it could not. At the

same time Blackrock says the circuit court stripped it of a chance to respond, Tremont filed

a detailed reply to the motion that was replete with argument and exhibits. Tremont also

filed detailed objections to the order proposed by AL Solutions, again including argument

and exhibits. In light of Tremont’s actions, we cannot say that the circuit court wholly

deprived Blackrock of an opportunity to submit “exhibits and affidavits and other matters”

to the court, or deprived it of an ability to advise the circuit court of argument or evidence

favorable to its case.



              59
                 Hutchison v. City of Huntington, 198 W.Va. 139, 154, 479 S.E.2d 649, 664
(1996) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965))). See also Stull v. Firemen’s Pension & Relief Fund of
City of Charleston, 202 W.Va. 440, 447, 504 S.E.2d 903, 910 (1998) (“[T]he opportunity
to be heard at a meaningful time and in a meaningful manner is a fundamental requirement
of due process.”); Marcus v. Holley, 217 W.Va. 508, 527, 618 S.E.2d 517, 536 (2005)
(“Procedural due process rights entitle an individual to representation by counsel, notice,
an opportunity to be heard, and the right to present evidence.”).

                                             33
              Furthermore, Blackrock claims the record is incomplete and missing

evidence crucial to its case. The three-volume appendix record is some 1,990 pages long,

and contains depositions of the actors who participated in forming the management

agreements and in running AL Solutions, plus numerous documents.                     Nevertheless,

nowhere in the record can we find any instance where Blackrock made an effort to proffer

its supposedly crucial evidence to the circuit court. Nowhere can we find any effort by

Blackrock to advise the circuit court what evidence existed that created a material fact.

Even in its appellate briefs to this Court, Blackrock did not suggest what this evidence

might be.

              Only during oral argument did counsel finally indicate that Blackrock wanted

to introduce expert testimony explaining that the indemnification and no-liability clauses

were common in these types of transactions, and that under the law these clauses would

not be unconscionable. Blackrock seeks to have this case returned to circuit court to permit

the revelation of this expert testimony. However, even if we were to return this case to the

circuit court, we question whether the expert opinion would be admissible:

                       As a general rule, an expert witness may not testify as
              to questions of law such as the principles of law applicable to
              a case, the interpretation of a statute, the meaning of terms in a
              statute, the interpretation of case law, or the legality of conduct.
              It is the role of the trial judge to determine, interpret and apply
              the law applicable to a case.60




              60
                   Syllabus Point 10, France v. Southern Equip. Co., 225 W.Va. 1, 689 S.E.2d
1 (2010).

                                              34
              The record shows the issue of unconscionability was well developed by the

plaintiffs, AL Solutions, Tremont and Blackrock. Tremont and Blackrock’s briefs and

objections to the circuit court established the framework of unconscionability law, and

Blackrock’s brief to this Court further developed those same legal arguments. On this

record, we cannot say that the circuit court deprived Blackrock of an opportunity to respond

meaningfully to the motion for partial summary judgment. Blackrock has made no

showing that the circuit court prevented it from expressing some meaningful legal

argument, or prevented it from revealing evidence of a genuine issue of material fact. We

therefore find no error in the manner in which the circuit court entered the partial summary

judgment order.



                                         V.
                                     CONCLUSION

              This Court accepts that indemnification and no-liability clauses are common

in business contracts; in this instance, however, the clauses were oppressive and unfair.

We have reviewed the record de novo, using the same standards as the circuit court would

use, and found the indemnification and no-liability clauses unconscionable and

unenforceable. We further find no error in the manner in which the circuit court entered

its order.

              Accordingly, the circuit court’s October 16, 2015, order granting partial

summary judgment is affirmed.

                                                                                 Affirmed.


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