No. 15-0098 – State of West Virginia, ex rel. Airsquid Ventures Inc. (d/b/a Amphibious
Medics), and Travis Pittman v. the Honorable David W. Hummel, Jr., Judge of the
Circuit Court of Marshall County; Mita Sengupta, as Personal Representative of the
Estate of Avishek Sengupta; Tough Mudder, LLC, Peacemaker National Training Center,
LLC, General Mills, Inc., and General Mills Sales, Inc.

No. 15-0102 – State of West Virginia ex rel. Tough Mudder, LLC; Peacemaker National
Training Center, LLC; General Mills, Inc.; and General Mills Sales, Inc. v. the
Honorable David W. Hummel, Jr., Judge of the Circuit Court of Marshall County, and
Mita Sengupta, as Personal Representative of the Estate of Avishek Sengupta

                                                                                 FILED
                                                                          September 24, 2015
                                                                           RORY L. PERRY II, CLERK

                                                                         SUPREME COURT OF APPEALS

                                                                             OF WEST VIRGINIA

Benjamin, Justice, concurring:

              The issue in this case is simply one of interpretation. The contract clause at

issue provides:

              Venue and Jurisdiction: I understand that if legal action is
              brought, the appropriate state or federal trial court for the
              state in which the [Tough Mudder] event is held has the sole
              and exclusive jurisdiction and that only the substantive laws
              of the State in which the [Tough Mudder] event is held shall
              apply.

(Emphasis added). The parties’ dispute concerns the meaning of the words “the

appropriate” and whether the Marshall County Circuit Court—the court in which the

plaintiff filed her complaint—is “the appropriate” venue within the meaning of the forum

selection clause.



              In determining the applicability of the forum selection clause, the first step

is to examine whether the clause is ambiguous. Kohler Co. v. Wixen, 555 N.W.2d 640,

644 (1996). “‘A contract is ambiguous when it is reasonably susceptible to more than one

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meaning in light of the surrounding circumstances and after applying the established rules

of construction.’” Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W.

Va. 97, 101, 468 S.E.2d 712, 716 (1996) (quoting Williams v. Precision Coil, Inc., 194

W. Va. 52, 65, 459 S.E.2d 329, 342 (1995)). “If language in a contract is found to be

plain and unambiguous, such language should be applied according to such meaning.” Id.



              Here, the words in dispute are “the” and “appropriate.” With regard to the

operation of the definite article “the,” the Court has said:

              The definite article “the” particularizes the subject which it
              precedes: “law-enforcement officer.” In other words, the
              statute uses the word “the” to refer to a specific law-
              enforcement officer. See, e.g., Clair v. Commonwealth, No.
              2011–SC–000774–MR, –––S.W.3d ––––, ––––, 2014 WL
              4113014, at *17 (Ky.2014) (“The use of the definite article,
              the word ‘the,’ signals a specific thing.”); Yellowbird v. N.D.
              Dep't of Transp., 833 N.W.2d 536, 539 (N.D.2013) (“ ‘[T]he’
              is [a]n article which particularizes the subject spoken of. In
              construing [a] statute, definite article ‘the’ particularizes the
              subject which it precedes and is [a] word of limitation as
              opposed to indefinite or generalizing force [of] ‘a’ or ‘an.’ ”
              (Internal quotation and citation omitted.)); New Iberia
              Firefighters Ass’n, Local 775 v. City of New Iberia, 140
              So.3d 788, 792–93 (La.Ct.App.2014) (“ ‘The’ is a definite
              article, which refers to a specific person, place, or thing;
              whereas ‘a’ or ‘an’ are indefinite articles, which refer to
              people, places, or things in a general or nonspecific
              manner.”); In re AJR, 300 Mich.App. 597, 834 N.W.2d 904,
              907 (2013) (“[I]f the Legislature wants to refer to something
              particular, not general, it uses the word ‘the,’ rather than ‘a’
              or ‘an.’ ”); cf. Maupin v. Sidiropolis, 215 W.Va. 492, 497,
              600 S.E.2d 204, 209 (2004) (“Typically, though, ‘an’ is
              construed as making general, rather than specific, references
              to its words of modification.”).



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Dale v. Painter, 234 W. Va. 343, 351, 765 S.E.2d 232, 240 (2014) (emphasis added).

Plainly, the use of the word “the” in the clause limits the location in which the suit may

be heard to one state court.



                The word “appropriate” is defined as “especially suitable or compatible:

FITTING,” Merriam-Webster’s Collegiate Dictionary 61 (11th ed. 2005), and

“[s]pecifically fitted or suitable, proper,” 1 The Oxford English Dictionary 586 (2d ed.

1991). Cf. Black’s Law Dictionary 1790 (10th ed. 2014) (defining “venue” as “[t]he

proper or possible place for a lawsuit to proceed, usu. because the place has some

connection either with the events that gave rise to the lawsuit or with the plaintiff or

defendant.”).



                The plain meaning of the language in dispute, “the appropriate,” when read

in conjunction with the other language in the forum selection clause, permits the parties

to file suit in the one state court that is especially suitable, compatible, and fitting to hear

the case.



                Both the majority of the Court and Justice Davis in her dissent conclude

that the forum selection clause is ambiguous, and so they turn to different sections of our

venue statute, W. Va. Code § 56-1-1 (2007), to interpret the clause. I do not believe that

the section is ambiguous, and therefore, I do not believe the Court needs to look for

direction from our venue statute.

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              The plain language of the forum selection clause, when applied to the facts

presented in this case, establishes that the one proper state court that is especially

suitable, compatible, and fitting is the Berkeley County Circuit Court. As the majority

correctly recognizes, the agreement was executed in Berkeley County, the event in which

the decedent participated took place in Berkeley County, the decedent’s death occurred in

Berkeley County, many of the witnesses reside in Berkeley County, and one of the

defendants—Peacemaker National Training Center, LLC—has its principal place of

business in Berkeley County. No other circuit court in this state, including the Marshall

County Circuit Court, has such significant connections to the events giving rise to the suit

or to the parties. Therefore, although I disagree with its reasoning in concluding that the

Berkeley County Circuit Court is the proper venue in which to bring this case, I agree

with the majority’s conclusion that the requested writ of prohibition should be granted.




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