                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                           FILED
NAVIENT SOLUTIONS, INC.,                                               November 4, 2015
                                                                          released at 3:00 p.m.
                                                                          RORY L. PERRY II, CLERK
FORMERLY KNOWN AS SALLIE MAE, INC.                                      SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA
Petitioner

vs.) No. 14-1215 (Raleigh County Civil Action No. 14-C-231 (B))

JENNIFER ROBINETTE,
Respondent


                               MEMORANDUM DECISION

              Petitioner, Navient Solutions, Inc. (“Navient”),1 a lending company, by counsel
Jared M. Tully, appeals from a ruling of the Circuit Court of Raleigh County that denied
Navient’s motion to compel arbitration in a suit filed by the respondent herein, Jennifer
Robinette (“Ms. Robinette”), who is one of Navient’s debtors. At issue are arbitration
clauses that were included in promissory notes associated with various loans obtained by Ms.
Robinette. On appeal, Navient argues that the circuit court erred by concluding that Ms.
Robinette’s loan application and the associated promissory note were two distinct
documents.2 Ms. Robinette, by counsel Jed R. Nolan, Ralph C. Young, Christopher B. Frost,
and Steven R. Broadwater, Jr., filed a timely response.

               This Court has considered the parties’ briefs, the record on appeal, the pertinent
authorities, and oral argument. Upon our scrutiny thereof under the appropriate standard of
review, the Court finds that the Circuit Court of Raleigh County erred, as a matter of law, by
concluding that the various pages of the contract were more than one document. This case

               1
               Navient Solutions, Inc., was formerly known as Sallie Mae, Inc. For ease of
reference, we refer only to Navient in this Memorandum Decision.
               2
                In the alternative, Navient argues that the circuit court erred by concluding that
the promissory note was not incorporated by reference into the loan application. To the
contrary, the circuit court actually ruled that “Navient’s Promissory Note was incorporated
by reference into the loan application.” (Emphasis added). Nevertheless, because we resolve
this appeal on the first issue, it is unnecessary for us to address Navient’s second argument.

                                                1

satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate
Procedure and is appropriate for a memorandum decision rather than an opinion.

              During a period of time beginning in 2006 and ending in 2008, Ms. Robinette
applied for and received seven “Tuition Answer” student loans from Navient. She completed
the application for each loan using Navient’s website. Each of the seven applications was
the same in several respects. The third page of each application contained a space for Ms.
Robinette’s signature. Above the area set aside for her signature, the following text appeared
on each of the seven applications:

              Promise to pay: . . . I promise to pay the lender or any other
              holder of this loan all sums disbursed under the terms of the
              Promissory Note, plus interest and all other charges that may
              become due. The terms and conditions set forth in the
              Promissory Note constitute the entire agreement between us.

              CAUTION–IT IS IMPORTANT THAT YOU
              THOROUGHLY READ THE CONTRACT BEFORE YOU
              SIGN IT.

(Italicized emphasis added).3 Each application also included the following language on the
signature page above Ms. Robinette’s signature:

              I understand that I am not required to fax my signature on this
              Application/Promissory Note to the Lender. If I choose to fax
              my signature on this Application/Promissory Note to the Lender,
              I intend: (i) my fax signature to be binding on me and to be an
              electronic signature under applicable federal and state law, (ii)
              the fax printout received by the Lender to be an original
              document, . . . and (iv) that this Application/Promissory Note
              will not be governed by Article 3 or Article 9 of the Uniform
              Commercial Code.

              Notice to ALL BORROWERS


              3
              Although it is not significant to our analysis, we note that the language used
in the seventh loan application varied slightly from the remaining six applications. The
seventh application referred to “other fees, charges and costs that may become due,” rather
than simply “other charges that may become due.” (Emphasis added).

                                              2

              (a)	   Do not sign this before you read the Promissory Note
                     even if otherwise advised.

              ....

              I declare that the information provided above is true and
              complete to the best of my knowledge and belief, I have read
              and agree to the terms of the Promissory Note accompanying
              this application.

(Emphasis added).4 Vertically along the right margin of each page of each promissory note
appeared the text “Tuition Answer Loan Application and Promissory Note” followed by the
school year to which the promissory note applied. For example, for the 2006-2007 school
year, the promissary note contained vertical text that read: “Tuition Answer Loan Application
and Promissory Note 2006-2007.” Ms. Robinette claims that, once she filled out the
application online, she printed only the signature page and submitted her signature.

              On March 12, 2014, Ms. Robinette filed a complaint against Navient alleging
various causes of action arising from Navinet’s collection practices. Navient responded by
filing a motion to compel arbitration. Ms. Robinette opposed the motion arguing that,
because Navient did not include the arbitration clause in the body of the application she
signed, and because nothing in the loan application alerted her to the arbitration clause, she
was not bound to arbitrate. After a hearing on Navient’s motion, the circuit court denied the
same finding that the loan application completed by Ms. Robinette was a separate document
from the promissory note; therefore, Ms. Robinette had not agreed to the arbitration clause
contained in the separate promissory note that she had not signed. In concluding that the
promissory note was a separate document, the circuit court observed that the loan application
contained pages numbered one through three. The numbering then began anew for
subsequent pages that included the promissory note. The circuit court finally determined that
“Navient’s Promissory Note was incorporated by reference into the loan application.”
Nevertheless, the circuit court found that the arbitration clause contained in the promissory
note was unenforceable because

              [t]he Promissory Note’s inclusion of an arbitration clause went
              beyond the scope of a Promissory Note. Plaintiff was never


              4
             The fifth, sixth, and seventh loan applications completed by Ms. Robinette
contained the heading “NOTICE TO CUSTOMER” instead of “Notice to ALL
BORROWERS.”

                                              3

              warned or advised of the addition of an arbitration agreement to
              the Promissory Note. There was no indication in Navient’s loan
              application that the Promissory Note included any provisions
              beyond those typically contained in a Promissory Note. Because
              Defendant Navient did not include the arbitration agreement in
              the body of the loan application signed by Plaintiff, and because
              the incorporation of the Promissory Note did not clearly notify
              Plaintiff that an arbitration agreement was included in the
              Promissory Note, Navient cannot now force the Plaintiff to
              arbitrate.

This appeal followed.

              Navient herein appeals an order that denied its motion to compel arbitration.
Although the order appealed is interlocutory, this Court has made clear that “[a]n order
denying a motion to compel arbitration is an interlocutory ruling which is subject to
immediate appeal under the collateral order doctrine.” Syl. pt. 1, Credit Acceptance Corp.
v. Front, 231 W. Va. 518, 745 S.E.2d 556 (2013). The particular standard applied to our
review of the circuit court’s denial of a motion to compel arbitration is de novo. See
McGraw v. Am. Tobacco Co., 224 W. Va. 211, 222 n.11, 681 S.E.2d 96, 107 n.11 (2009)
(“‘We review the trial court’s grant or denial of a motion to compel arbitration de novo.’”
(quoting Title Max of Birmingham, Inc. v. Edwards, 973 So. 2d 1050, 1052 (Ala.2007))).
See also Janura v. Janura, No. 14-0911, 2015 WL 3448181, at *3 (W. Va. May 29, 2015)
(mem. dec.) (applying de novo standard of review to circuit court’s denial of motion to
compel arbitration).

               Moreover, to the extent that our resolution of this matter requires us to consider
the circuit court’s interpretation of a contract, our review likewise is de novo.

              We previously have held that “‘[i]t is the province of the
              Court . . . to interpret a written contract.’ Syl. Pt. 1[, in part],
              Stephens v. Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937).”
              Syl. pt. 1, in part, Orteza v. Monongalia Cnty. Gen. Hosp., 173
              W. Va. 461, 318 S.E.2d 40 (1984). Therefore, “we apply a de
              novo standard of review to [a] circuit court’s interpretation of
              [a] contract.” Zimmerer v. Romano, 223 W. Va. 769, 777, 679
              S.E.2d 601, 609 (2009) (per curiam) (citation omitted).

Finch v. Inspectech, LLC, 229 W. Va. 147, 153, 727 S.E.2d 823, 829 (2012). Applying these
standards to our review, we now address the determinative issue raised by Navient.

                                               4

              Navient contends that the circuit court erred by finding that the loan application
and promissory note were not a single document. Navient asserts that the entire loan
document, including the promissory note, was presented to Ms. Robinette at the time of the
loan’s execution. According to Navient, the loan application and promissory note comprise
one document with three sections. First is the three-page application (with pages numbered
one through three); next there are three pages of information about the loan (here the
document’s page numbering begins anew at page one); and finally is the promissory note
containing the arbitration clause.5 To explain how its web-based application process
functioned, Navient filed a declaration by its employee, James M. Austin, stating that

                     [t]he process by which [Ms. Robinette] obtained the
              Tuition Answer Loans was self-initiated. For each Loan, [Ms.
              Robinette] accessed and filled out a loan application package on
              [Navient’s] website which included the Application pages, the
              instructional pages, and the Promissory Note pages. [Ms.
              Robinette] was then prompted to print that loan application
              package, sign, and send the Application pages by mail to
              [Navient]. [Ms. Robinette] did in fact print, sign, and mail the
              Application pages to [Navient] for each of her seven loans. The
              Application, instructions, and Promissory Note were presented
              to [Ms. Robinette] as one integrated document in each instance.

Thus, Navient contends that it is clear to any borrower that the application and promissory
note amount to a single agreement.

               Ms. Robinette responds that the circuit court correctly found that Navient’s
loan application and promissory note are two separate documents. Adopting reasoning
similar to that of the circuit court, she first relies upon the page numbering, which began
again at one on the page following the signature page of the loan application. She
additionally asserts that document headings and the lack of a signature on the promissory
note are indicative of separate documents. To illustrate how she applied for the various
loans, Ms. Robinette states that she received emails from Navient asking if she needed
additional funds for school. She would click a link in the emails to access the loan
applications. She claims that she does not recall if the promissory note was included in the
link, was accessible by a separate link, or was included at all. By affidavit, Ms. Robinette
avers that she never saw the arbitration agreement.


              5
              The promissory note appears on page four, and the arbitration clause of the
promissory note is found on page nine.

                                               5

               Resolution of the issue of whether the pages in question amounted to one
document or multiple documents requires an examination of pertinent language contained
therein. At the outset, we note that Ms. Robinette’s use of electronic means to complete her
loan applications does not alter our analysis of the pertinent contractual terms insofar as “[a]n
agreement where the terms are presented in an electronic form . . . is . . . interpreted and
applied using the same common law rules that have been applied for hundreds of years to
oral and written agreements.” State ex rel. U-Haul Co. of W. Virginia v. Zakaib, 232 W. Va.
432, 441, 752 S.E.2d 586, 595 (2013), cert. denied sub nom. W. Virginia ex rel. U-Haul Co.
of W. Virginia v. Zakaib, 135 S. Ct. 59, 190 L. Ed. 2d 33 (2014). Thus, our interpretation of
the relevant language is guided by the axiom:

                     “It is not the right or province of a court to alter, pervert
              or destroy the clear meaning and intent of the parties as
              expressed in unambiguous language in their written contract or
              to make a new or different contract for them.” Syllabus Point 3,
              Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va.
              484, 128 S.E.2d 626 (1962).

Syl. pt. 1, Hatfield v. Health Mgmt. Assocs. of W. Virginia, 223 W. Va. 259, 672 S.E.2d 395
(2008). Moreover, “[w]here the terms of a contract are clear and unambiguous, they must
be applied and not construed.” Syl. pt. 2, Bethlehem Mines Corp. v. Haden, 153 W. Va. 721,
172 S.E.2d 126 (1969).

               Under the particular facts presented in the instant matter, we find ample indicia,
stated in plain and unambiguous language, that each of the thirteen-page loan packets was
a single unified contract. The unity of the various contracts is demonstrated by their repeated
references to the promissory note on the signature page. More significant, however, is that
by signing each contract, Ms. Robinette expressly agreed to be bound by the terms contained
in the promissory note portion of the documents. Her signature further acknowledged that
the “terms and conditions set forth in the Promissory Note constitute[d] the entire
agreement” between herself and Navient. Finally, Ms. Robinette unambiguously declared
in each contract: “I have read and agree to the terms of the Promissory Note accompanying
this application.” The repeated references to the promissory note, and the clearly expressed
importance ascribed thereto, leave no doubt that the promissory note was a critical part of
each loan agreement executed by Ms. Robinette.

              Moreover, the fact that Ms. Robinette failed to locate and read the promissory
note portions of the contracts she entered does not excuse her from their terms:

              The law of this State is clear in holding that “[a] party to a

                                               6

             contract has a duty to read the instrument.” Syl. pt. 5, Soliva v.
             Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33
             (1986), overruled on other grounds by National Mut. Ins. Co. v.
             McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987).

Am. States Ins. Co. v. Surbaugh, 231 W. Va. 288, 299, 745 S.E.2d 179, 190 (2013).

              Based upon the forgoing analysis, we conclude that the Circuit Court of
Raleigh County erred by finding that each loan application and promissory note was not a
unified contract. Accordingly, we reverse that court’s order denying Navient’s motion to
compel arbitration and remand this case for entry of an order granting Navient’s motion.

                                                                  Reversed and Remanded.


ISSUED: November 4, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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