          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2018 Term                           FILED
                                 _______________                          June 5, 2018
                                                                           released at 3:00 p.m.
                                    No. 17-0486                        EDYTHE NASH GAISER, CLERK
                                                                       SUPREME COURT OF APPEALS
                                  _______________                           OF WEST VIRGINIA



  THE WEST VIRGINIA INVESTMENT MANAGEMENT BOARD, a public body 

 corporate, and THE WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT 

                          BOARD, a public agency, 

                         Plaintiffs Below, Petitioners


                                          v.

           THE VARIABLE ANNUITY LIFE INSURANCE COMPANY,
                      Defendant Below, Respondent

      ____________________________________________________________

                      Appeal from the Business Court Division 

The Honorable Christopher C. Wilkes, Judge; The Honorable Joanna I. Tabit, Judge; and 

                       The Honorable Paul T. Farrell, Judge 

                            Civil Action No. 09-C-2104 


                                    AFFIRMED 


      ____________________________________________________________

                               Submitted: May 16, 2018
                                 Filed: June 5, 2018

Benjamin J. Bailey, Esq.                       Thomas J. Hurney, Jr., Esq.
Jonathan R. Marshall, Esq.                     Michael M. Fisher Esq.
Thomas B. Bennett, Esq.                        JACKSON KELLY PLLC
Raymond S. Franks, II, Esq.                    Charleston, West Virginia
BAILEY & GLASSER LLP
Charleston, West Virginia                      Erin R. Stankewicz, Esq.
Counsel for Petitioner                         JACKSON KELLY PLLC
The West Virginia Investment                   Wheeling, West Virginia
Management Board
                                               Richard J. Doren, Esq. (pro hac vice)
J. Jeaneen Legato, Esq.                        GIBSON, DUNN & CRUTCHER LLP
 Consolidated Public Retirement Board 
        Los Angeles, California
                                               Counsel for Respondent
 Gerard R. Stowers, Esq. 

 Special Assistant Attorney General 
          John M. Canfield, Esq.
 J. Mark Adkins, Esq.                          Charleston, WV
 S. Andrew Stonestreet, Esq.                   Counsel for Amicus Curiae
 BOWLES RICE LLP                               West Virginia Chamber of Commerce
 Charleston, West Virginia
 Counsel for Petitioners                       Mychal S. Schulz, Esq.
                                               Babst Calland
 Andrew J. Katz, Esq.                          Charleston, West Virginia
 Charleston, West Virginia                     and
 Counsel for Amicus Curiae                     Todd A. Mount, Esq.
 West Virginia Education Association           Shaffer & Shaffer, PLLC
                                               Madison, West Virginia
 Jeffrey G. Blaydes, Esq.                      Counsel for Amicus Curiae
 Carbone & Blaydes, P.L.L.C                    Defense Trial Counsel of West Virginia
 Charleston, West Virginia
 Counsel for Amicus Curiae
 American Federation of Teachers,
   WV AFL-CIO

 Robert M. Bastress, Jr., Esq.
 Morgantown, West Virginia
 Counsel for Amicus Curiae
 West Virginia Association of Retired
  School Employees
 West Virginia Employment Lawyers
  Association


JUSTICE WALKER delivered the Opinion of the Court. 


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

                             SYLLABUS BY THE COURT


              “Where the issue on an appeal from the circuit court is clearly a question of

law or involving an interpretation of a statute, we apply a de novo standard of review.”

Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
WALKER, Justice:

              This appeal is the latest chapter in a long-existing contractual dispute

between the West Virginia Investment Management Board (IMB), the West Virginia

Consolidated Public Retirement Board (CPRB) (together, Petitioners) and the respondent,

The Variable Annuity Life Insurance Company (VALIC). The first time the parties were

before this Court, we reversed summary judgment in favor of VALIC and remanded for

further proceedings.1 This Court also directed that the matter be referred to the Business

Court Division. Eventually, the parties agreed to submit the dispute to binding, non-

appealable arbitration before a panel of three business court judges due to the complexity

of the case. The panel unanimously found in favor of VALIC. Petitioners now contend

that the creation and makeup of the arbitration panel was illegal. Petitioners additionally

argue that the panel, even if validly created, misapplied the law in reliance on erroneous

findings of fact, altogether failed to apply the law of the case created in IMB I, and

neglected to decide all issues before it.



              We disagree and find that the Business Court Division Rules provide

sufficient flexibility to allow for arbitration by panel if agreed to by the parties. Because

the parties were sophisticated and represented by able counsel, we find no cause to void

the parties’ agreement to submit the matter to binding arbitration, including their agreement



       1
        West Virginia Investment Management Bd. v. Variable Annuity Life Ins. Co., 234
W. Va. 469, 766 S.E.2d 416 (2014) (IMB I).

                                             1

to waive appellate review. While we disagree with the characterization of Petitioners’

merits-based arguments as challenges to the panel’s subject-matter jurisdiction, we

nonetheless find Petitioners’ arguments that the panel failed to apply the law of the case

and neglected to decide all issues before it unavailing. Accordingly, we affirm the order

below dismissing the matter from the Business Division docket in reliance on the

conclusions reached in the panel’s Final Decision.2




              I.     FACTUAL AND PROCEDURAL BACKGROUND

              As we did when this case was previously before this Court in IMB I, we again

find it necessary to provide the appropriate background for the proceedings at issue, despite

that the substantive facts are of little use to our analysis in the current appeal because it

delves into matters of constitutionality and the legality of the procedures employed below.

In IMB I, we explained history of the teachers’ retirement plans and the 1990 legislation

affecting those plans:

                     The State Teachers Retirement System (“TRS”) was
              created in 1941 to provide retirement benefits for public school
              teachers and other school service personnel. From 1941 to
              1970, teachers and other professional and school service
              personnel were required to participate in TRS. While
              originally a defined contribution plan, TRS became a defined

       2
        This Court would like to acknowledge the participation of amici curiae in this
case. Briefs in support of Petitioners were filed by the West Virginia Education
Association, the American Federation of Teachers, as well as the West Virginia
Association of Retired School Employees and West Virginia Employment Lawyers
Association. Briefs in support of Respondent were filed by the West Virginia Chamber of
Commerce and the Defense Trial Counsel of West Virginia.

                                             2

               benefit plan in 1970. Due to funding problems affecting the
               solvency of TRS, the Legislature enacted the “Teacher’s
               Retirement Reform Act” (“Reform Act”) in 1990, pursuant to
               which a defined contribution plan (“DCP”) was created. See
               W. Va. Code §§ 18–7B–1 to –21 (2012 & Supp. 2014). Subject
               to the provisions of the Reform Act, participants were
               permitted to allocate their retirement funds among various
               investment options in the DCP.[3]



               So, on October 8, 1991, the CPRB entered into an annuity contract with

VALIC to offer DCP enrollees a high-yield, fixed annuity investment. The 1991 Contract

provided that VALIC would guarantee a minimum annual interest rate of at least 4.5% in

perpetuity, and contained an endorsement providing that “in the case of withdraw for

transfer to another funding entity only 20% of the Surrender Value may be withdrawn once

a year” (the 20% Rule). Application of the 20% Rule was subject to only two exceptions:

(1) the surrender value remaining would be less than $500; or (2) the withdrawal is for

transfer to the funding entity for the West Virginia ORP Common Stock Fund or the West

Virginia ORP Bond Fund. In March 2008, the Legislature passed House Bill 101, which,

effective July 1, 2008, permitted DCP members to elect to transfer their retirement funds

from DCP to TRS if at least sixty-five percent of the total DCP membership opted to do

so.4 Seventy-eight percent of the members opted to transfer their funds to TRS. Because

the threshold requirement had been met, the State requested liquidation of the investments



      3
          IMB I, 234 W. Va. at 472-73, 766 S.E.2d at 419-20.

      4
          See generally W. Va. Code §§ 18–7D–1 to –12 (2008). 


                                            3

of the transferring members from all DCP fund providers, including VALIC. VALIC

invoked the 20% Rule and agreed, in accordance with that rule, that it would transfer 20%

of the funds each year over a five-year period, or, in the alternative, would agree to a fee

of $11.2 million for an immediate withdrawal of the full amount.



              This issue prompted discussions between CPRB, IMB, and VALIC, during

which a transfer of the funds to a bond fund option (as an exception to the 20% Rule) was

contemplated, but ultimately failed because IMB could not agree to the bond fund’s

requirements. The parties then negotiated a new contract in November 2008 (the 2008

Contract). VALIC received assurances that the 2008 contract was “not an attempt by the

CPRB or IMB to liquidate the assets in the new fixed annuity contract.” The parties agreed

that the 2008 Contract would be “materially similar (i.e., form, endorsements, rates, and

terms) to the [1991] contract issued to the CPRB for the [DCP].” The 2008 Contract did,

however, designate IMB as signatory.5 Critically, the 20% Rule was not altered in any way

from the 1991 Contract to the 2008 Contract. On December 10, 2008, Petitioners requested

that VALIC transfer $248 million from the fund governed by the 1991 Contract to one

governed by the 2008 Contract. Eight days later, IMB requested withdrawal of all funds

held under the 2008 Contract on or before December 21, 2008. Pursuant to the 20% Rule,

VALIC again refused to allow withdrawal of the full $248 million in one lump sum, but


       5
         CPRB and IMB are co-trustees and fiduciaries of the TRS. IMB dictates how
those funds are invested while CPRB acts in more of an administrative capacity. For those
who did not elect to transfer to the TRS, CPRB is the sole administrator and fiduciary.

                                             4

agreed to transfer 20% per year over a five year period.6 Petitioners filed this action

initially seeking only a declaratory judgment that VALIC was required to pay the amount

in a lump sum rather than in five equal installments over the period of 2009 to 2013. After

removal and remand from federal court, however, Petitioners amended their complaint to

seek damages in the form of “lost investment opportunities,” claiming that had they been

permitted to withdraw all of the funds in a lump sum, they could have made a greater rate

of return than VALIC’s guaranteed 4.5% interest.



             The parties filed cross-motions for summary judgment. VALIC argued,

among other things, that the suit with regard to the 1991 Contract did not present a

justiciable controversy, and the CPRB did not have standing to assert relief in connection

with the 2008 Contract. Petitioners argued, among other things, that the 20% Rule

endorsement should be construed in their favor. The circuit court granted VALIC’s motion

for summary judgment, finding that Petitioners presented no justiciable controversy, and

determined that the 20% Rule endorsement was unambiguous and should be construed in

favor of VALIC. Accordingly, the circuit court entered summary judgment in favor of

VALIC. Petitioners then appealed that order to this Court in IMB I.




       6
         VALIC eventually agreed that the contract terms did not provide that it could
assess a surrender fee.

                                            5

                 In IMB I, we held that both IMB and CPRB had standing to pursue the

action.7 And, we held that the suit presented a justiciable controversy.8 More important

for our review of this appeal, however, we explained that the 20% Rule endorsement

language was “decidedly ambiguous.”9 We reasoned that because the 1991 contract

formed the basis of the 2008 contract, which the parties agreed were “materially similar,”

the circuit court should not have precluded from its review evidence relating to the 1991

contract.10 Thus, we reversed the grant of summary judgment and remanded the matter for

further proceedings consistent with the opinion.11 We also referred the matter to the

Business Court Division.12



                 Following the remand in IMB I, the parties engaged in extensive discovery

that focused on developing parol evidence consistent with this Court’s directive. The

additional discovery included written discovery, affidavits, and seven additional

depositions. The deponents included the CPRB executive director who participated in

negotiations for the 1991 Contract, VALIC’s former chief actuary, CPRB’s Executive



      7
          IMB I, 234 W. Va. at 481, 766 S.E.2d at 428.
      8
          Id. at 477, 766 S.E.2d at 424.
      9
          Id. at 485, 766 S.E.2d at 432.
      10
           Id. at 483-84; 766 S.E.2d at 430-31.
      11
           Id. at 485; 766 S.E.2d at 432.
      12
           Id.

                                              6

Director from 2003 to 2005, and CPRB’s Rule 30(b)(7) witness.13 Most relevant for

purposes of this appeal, CPRB’s representatives conceded that VALIC could not have

guaranteed the 4.5% interest rate if the funds could be withdrawn at any time, in total and

without restriction; that no one at CPRB had ever stated the view—prior to this litigation—

that the 20% Rule did not apply to the transfers attempted in 2008; and that it had been

reported to the CPRB Board upon review of the 20% Rule that the “annuity could only be

liquidated through five annual withdrawals over a multi-year period.”



              Prior to the pretrial conference, Judge Christopher C. Wilkes—the Business

Court Division Chair and Presiding Judge—expressed concern, echoed by the parties, that

the complexity of the issues involved might prove difficult for resolution by a lay jury.14

These concerns prompted Judge Wilkes to offer to hold a bench trial or other alternative

dispute resolution. The parties reportedly “liked the idea of arbitration, but worried that



       13
           Rule 30(b)(7) of the West Virginia Rules of Civil Procedure provides that, upon
subpoena, an organization is required to produce for deposition a representative designated
to testify as to matters known or reasonably available to the organization.
       14
          As discussed below, Petitioners petitioned this Court for a writ of prohibition in
conjunction with this appeal, which was denied. In Judge Wilkes’s response to Petitioners’
petition for a writ of prohibition, he provided a detailed account of the events and
discussions that transpired surrounding the agreement to arbitrate. Neither party has
offered anything to dispute Judge Wilkes’s account of the events, and have likewise
condoned the writ of prohibition as a complement to, and duplication of, the issues raised
in this appeal. Accordingly, we find it appropriate to include and consider his account
since the parties’ accounts were more general to the effect that they had agreed to the joint
stipulation. Consequently, Judge Wilkes’s response is more instructive as to how the
present procedural anomaly came to fruition.

                                             7

the case presented too much information for one arbitrator to absorb.” In response, Judge

Wilkes offered to secure a panel of arbitrators to hear their dispute according to whatever

terms were agreed upon by the parties. Counsel for the parties sought the possibility of

securing three business court judges to serve as the arbitration panel to be conducted the

next day, but it could not be arranged on such short notice. Judge Wilkes advised the

parties that he would not serve on the panel, but the parties requested that Judge Wilkes do

so because he was already intimately acquainted with the admittedly complex issues,

having presided over the case for the past year. The parties then took leave to consult with

their respective clients and reconvened, at which time all counsel agreed to the alternative

dispute resolution and at the parties’ request, Judge Wilkes cancelled the jury trial

scheduled to begin the following day. The parties then agreed that they would attempt to

mediate the case once more, and asked that Judge Wilkes serve as the mediator since he

not only was aware of all issues, but also was available to conduct the mediation the

following day due to cancellation of the jury trial. In the event that the mediation was

unsuccessful, the parties agreed that the matter would be submitted to binding, non-

appealable arbitration before Judge Wilkes, and Business Court Judges Joanna I. Tabit and

Paul T. Ferrell, who were specifically chosen by the parties. The parties likewise stipulated

to detailed parameters for the arbitration. The parties reduced the pertinent points of their

agreement to writing and submitted it to the Business Court on September 20, 2016 as a

Joint Stipulation:




                                             8

        WHEREAS, the parties came to an agreement to stay
this action and submit to binding arbitration if they are not able
[to] resolve it through mediation;


    NOW THEREFORE, IT IS HEREBY STIPULATED
AND AGREED, by and between the parties, as follows:


       1.      This action will be stayed.

       2.     The parties have waived their right to trial by
jury or bench.

      3.    The parties shall mediate this dispute before
Judge Wilkes on September 20, 2016.

       4.     In the event the action is not resolved through
mediation, the parties shall submit to binding arbitration before
a three-judge panel comprise of Judge Wilkes, Judge Joanna I.
Tabit, and Judge Paul T. Farrell (“the arbitration”). Any
dispute arising prior to the arbitration shall be resolved by
Judge Wilkes.

       5.     The arbitration shall take place over a three-day
period that is mutually convenient to the panel members and
parties.

            a.	 On the first day of arbitration, Plaintiffs
                shall have up to five hours to present a
                proffer of evidence.

            b. On 	the second day of arbitration,
               Defendant shall have up to five hours to
               present a proffer of evidence.

            c.	 On the third day of arbitration, both
                parties shall have up to three hours to
                present argument.

      6.    Seven (7) calendar days before the arbitration is
scheduled to begin, the parties may submit pre-arbitration
memoranda not to exceed twenty-five (25) pages.
                             9

       7.     At the arbitration, the proffers must be drawn
from materials and testimony in the discovery record in the
case or publicly available sources.

          a.	 In the event a party intends to proffer
              testimony of a witness that is not in the
              discovery record, that testimony must be
              provided by affidavit in advance of the
              arbitration.

          b. Any 	affidavit prepared pursuant to
             paragraph 6(a), above, shall be served on
             opposing party by e-mail at least fourteen
             (14) calendar days before the arbitration
             is scheduled to begin.

          c.	 The opposing party may, at their election,
              depose any witness whose testimony is
              presented by affidavit. The deposition
              shall occur prior to the first date the
              arbitration is scheduled to begin. The
              deposition shall be limited to the subject
              matter of the testimony set forth in the
              affidavit.

        8.   Within fourteen (14) calendar days following the
conclusion of the arbitration, the parties may submit written
arguments in memoranda not to exceed (thirty) 30 pages in
length.

       9.    The arbitration panel shall issue a reasoned
decision applying West Virginia law within thirty (30)
calendar days after the conclusion of the arbitration.

       10.     The arbitration shall be confidential, except to
the extent disclosure is required by law.

      11.     The decision of the arbitrators is final and non-
appealable.



                              10 

                     12.    Upon issuance of the panel’s reasoned decision,
              the above-captioned action shall be dismissed with prejudice.

                     13.    The parties shall bear their own costs, including
              attorneys’ fees.



              After entering the parties’ Joint Stipulation, Judge Wilkes conducted a

mediation, but not before informing the parties that any information they did not wish him

to know as a member of the arbitration panel should be kept confidential from him during

the mediation. The mediation was unsuccessful and the matter was scheduled on the

court’s public docket for a three-day arbitration on January 18-20, 2017, but was continued

by agreement of the parties to March 7-9, 2017.



              Beginning March 7, 2017, the arbitration took place in Kanawha County’s

Ceremonial Courtroom. Because the arbitration was to take place in a county courthouse,

and relating to the parties’ agreement that arbitration be confidential, except to the extent

disclosure is required by law, Judge Wilkes explained to the parties that “you cannot

preclude the public or anyone from . . . observing [the arbitration]. So I think we’re not

going to be able to blanket much, if anything, in confidentiality.” The parties thereafter

made their five-hour proffers of evidence to the panel, presented three-hour oral arguments,

and submitted post-arbitration written arguments. On April 28, 2017, the panel issued a

unanimous Final Decision in favor of VALIC, finding that “the legal conclusion of [the]

case rests upon the formation of the December 2008 replacement contract[,]” and after

reviewing the parol evidence, negotiating history, and course of performance, it was
                                         11 

apparent that all parties (specifically CPRB representatives), at the time of contracting in

2008, shared VALIC’s interpretation that the 20% Rule applied to Petitioners’ attempted

withdrawal unless the transfer was made to the WV ORP Common Stock Fund or the WV

ORP Bond Fund. The panel reasoned:

              [a] party (like IMB) that enters into a contract with knowledge
              of the other party’s interpretation is bound by that
              interpretation and cannot later claim it thought the contract
              meant something else. U.S. v. Stuart, 489 U.S. 353, 368 n.7
              (1989) (“It is hornbook contract law that the proper
              construction of an agreement is that given by one of the parties
              when ‘that party had no reason to know of any different
              meaning attached by the other, and the other had reason to
              know the meaning attached by the first party.’” (quoting
              Restatement (2d) of Contracts § 201(2)(b) (1981)).

The panel determined that Petitioners were not entitled to withdraw the funds in one lump

sum without restriction, and therefore were not entitled to damages resulting from alleged

lost investment opportunities.



              Despite agreeing that the panel’s order would be binding and non-appealable,

Petitioners then applied to this Court for a writ of prohibition and filed a corresponding and

complementary appeal. We denied the writ of prohibition, but address the arguments made

therein as they were duplicated in this appeal.



                            II.    STANDARD OF REVIEW

              Determining the legality of the parties’ agreement to arbitrate before the

Business Court Division requires analysis of the Trial Court Rules and the Rules of Judicial

                                             12 

Conduct. Likewise, one aspect of this appeal relates to whether review is proper given

Petitioners’ agreement to waive appellate review, or whether Petitioners retain that right as

a matter of law. Accordingly, our review is plenary. As we have previously held, “[w]here

the issue on an appeal from the circuit court is clearly a question of law or involving an

interpretation of a statute, we apply a de novo standard of review.”15



                                      III.   ANALYSIS

                On appeal, Petitioners argue that the Business Division did not have the

authority to conduct an arbitration and that their consent to the arbitration and its terms was

ineffective because the proceedings were illegal. As a facet of that argument, Petitioners

argue that to deem the proceedings “confidential” was a violation of the public’s

constitutional right to access to the courts. Petitioners further argue that even if the

Business Division did have the authority to conduct an arbitration, and conducted it

properly, the panel did not apply West Virginia law because it did not apply the so-called

“law of the case” from IMB I, nor did it rule on Petitioners’ declaratory judgment. Thus,

Petitioners argue that the award must be vacated either because the Business Court lacked

the authority to conduct an arbitration, because the arbitration, as conducted, violated the

West Virginia Constitution, or because the arbitration panel exceeded its jurisdictional




       15
            Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

                                              13 

authority by violating the agreement to arbitrate insofar as it failed to apply West Virginia

law as agreed and failed to decide all issues before it.



              VALIC counters that Petitioners have waived any procedural objection to the

arbitration by agreeing to it below, but argue that, even so, the Business Court Rules

provide the framework for conducting an arbitration and the parties’ agreement was not

“illegal.” As to Petitioners’ argument that the panel did not apply West Virginia law and

did not rule on Petitioners’ declaratory judgment claim, VALIC argues that Petitioners

have waived appellate review on the merits by agreement and are simply attempting to

recast their arguments on the merits in terms of subject-matter jurisdiction to circumvent

that agreement.



   A.     Putative illegality of the parties’ voluntary arbitration

              Turning first to the Business Division’s authority to conduct arbitrations,

Petitioners do not dispute that they agreed to arbitrate, nor do they claim fraud or any other

untoward inducement to enter into the agreement. Instead, Petitioners claim that their

consent to the arbitration, while willingly given, was nevertheless ineffective because it

was made toward an illegal purpose. Petitioners argue that because the agreement to

arbitrate was made at the eleventh hour prior to trial, they were deprived of the time to

research the validity of the alternative dispute resolution to which they were agreeing. And,

upon availability of time to further inquire, Petitioners reached the resolute conclusion that

the proceedings were illegal.
                                              14 

              Petitioners’ contention is self-serving and flagrantly untrue in light of the fact

that Petitioners are not only sophisticated parties represented by highly-qualified counsel,

but also because the arbitration did not take place for six months after the agreement to

arbitrate was executed. At no point during those six months, during the pendency of the

arbitration proceedings, or in submission of their post-arbitration briefs did Petitioners ever

take issue with the legal validity of the proceedings. Extraordinarily, Petitioners arrived at

their current position that the alternative dispute resolution to which they agreed was

unquestionably illegal only after the arbitration panel rendered its decision in favor of

VALIC. Not surprisingly, we are disinclined to relieve Petitioners from the self-imposed

conditions in the Joint Stipulation on that premise.



              Nonetheless, we agree with Petitioners that if the agreement to arbitrate was

illegal, the fact that Petitioners agreed to the proceedings is of no consequence.16

Petitioners’ arguments are three-fold. First, Petitioners argue that the Rules of Judicial


       16
          See syl. pt. 2, Ben Lomond Co. v. McNabb, 109 W.Va. 142, 153 S.E. 905 (1930)
(“A court of equity will not, at the instance of the original parties or others claiming under
them, enforce a contract entered into to accomplish a fraudulent or illegal purpose.”); Dorr
v. Chesapeake & O. Ry. Co., 78 W.Va. 150, 157, 88 S.E. 666, 668 (1916) (“An illegal
contract is as a rule void—not merely voidable—and can be the basis of no judicial
proceeding. No action can be maintained upon it, either at law or in equity. This
impossibility of enforcement exists whether the grant is illegal in its inception, or whether,
being valid when made, the illegality has been created by subsequent statute . . . . ‘If a
contract is tainted with the vice of illegality, it is held to create no obligation, not from any
consideration of the individual rights of the parties, who may be equally in fault, but from
regard for the public.’ Generally, the illegality of a contract is a perfect defense to its
enforcement, because the law will not require one to do, or punish him for not doing, that
which it forbids him to do.” (internal citations omitted)).

                                               15 

Conduct preclude Business Division judges from conducting arbitrations. Second, but

relatedly, Petitioners argue that the Business Division Rules do not authorize arbitration,

generally, and specifically, they do not authorize the makeup of the one impaneled here.

Third, Petitioners argue that the confidential nature of the proceedings renders them

unconstitutional, and, therefore, void.



              Rule 3.9 of the Code of Judicial Conduct states that “[a] judge shall not act

as an arbitrator or mediator or perform other judicial functions apart from the judge’s

official duties.” The commentary to that rule provides “[t]his Rule does not prohibit a

judge from participating in arbitration, mediation, or settlement conferences performed as

part of assigned judicial duties. . . .” Trial Court Rule 29.09(h), a specific Business Court

Rule, provides that “[t]he Resolution Judge is authorized to schedule and conduct

mediation of the case or any Alternative Dispute Resolution as agreed to by the parties and

the Resolution Judge in an attempt to resolve the case in an expedient and efficient

manner.” Likewise, Trial Court Rule 29.04(e) defines the Resolution Judge as “[a] member

of the Division assigned by order of the Division Chair, with the advice and consent of the

Division, to mediate, arbitrate, or provide any other form of dispute resolution agreed to

by the parties. . . .” When read together, it requires no stretch of reasoning to conclude that

arbitration, if that is the agreed-upon Alternative Dispute Resolution, falls within the scope

of a Business Division judge’s official duties, and therefore does not run afoul of Rule 3.9

of the Code of Judicial Conduct.


                                              16 

                Trial Court Rule 29.09(h) is likewise general enough to imbue the Business

Court Division with the authority to conduct an arbitration by panel, if agreed to by the

parties and the Resolution Judge. The term “any” within that Rule necessarily includes

arbitration by panel as a form of alternative dispute resolution, particularly where the

Resolution Judge is given the authority to arbitrate generally under Rule 29.04(e).17 The

Business Division’s rules to this end are aimed at flexibility and allow some degree of

creativity for resolution of particular types of disputes so long as the creature of that

creativity is agreed to by the parties involved.18 Thus, because we do not find that the

Business Division wholly lacked authority to conduct an arbitration by panel or otherwise,

there is no cause to conclude that the parties’ agreement to do so was “illegal.”




       17
            See infra n. 35.
       18
          We find no fault in the agreement to submit this matter to arbitration in general,
but merely find that the agreement, by its very nature as an agreement, and one to arbitrate
at that, limits our appellate review. Consistent with the parties’ and Judge Wilkes’
concerns, our review of the record suggests that this matter was particularly well-suited for
arbitration considering the complexity of the issues involved as well as the sheer volume
of evidence to be proffered. Business disputes, as contemplated by the creation of the
Business Division, often require a departure from the typical civil case structure. As the
parties themselves contemplated, arbitration by panel not only provided the parties with
three highly-skilled judges to hear their dispute, but likewise allowed the parties to more
capably present their cases through an agreed-upon structure unavailable to litigants in civil
cases. The parties here were enabled to present their evidence as they saw fit in five hour
blocks in order to serve cohesive factual development, were provided three hours of legal
argument, and were permitted to submit written legal arguments prior to and at the close
of the arbitration for consideration. Where the legal arguments are complex, the often-
crippling time limitation of closing arguments to a jury cannot be understated, and these
parties had the foresight to contract around that limitation.

                                             17 

                More troubling are the manifold roles of Judge Wilkes as the Presiding Judge

and Resolution Judge, as well as his ultimate position on the arbitration panel in light of

Trial Court Rule 29.07, which provides that “the Division Chair may serve as a Presiding

or Resolution Judge.”19 Here, Division Chair Judge Wilkes began the case as the Presiding

Judge and thereafter mediated the case and served on the arbitration panel as the Resolution

Judge. The rules inform us that the policy behind having two separate judges assigned to

these tasks is in effort to protect the confidentiality of mediation, and, for that reason,

communication between the two is limited: “[t]o protect the confidentiality of the

mediation process, communication between the presiding judge and the resolution judge

regarding the mediation during or after the process shall be limited to procedural status or

other matters agreed to by all parties.”20 It is clear from the language of Rule 29.04(e)

that the parties may agree to full disclosure of information as between the presiding and

resolution judges, and that the parties in this case agreed to just that. For that reason, we

see no illegality in the makeup of the arbitration panel so as to void the proceedings.



                Moreover, the matter before us is not the archetypal waiver issue arising from

the parties’ failure to lodge an objection: the parties here explicitly agreed that Judge

Wilkes would mediate the case and then serve on the arbitration panel. Indeed, the parties

asked Judge Wilkes to mediate the case, and later asked him to serve on the arbitration


       19
            Emphasis added.

       20
            W. Va. Tr. Ct. R. 29.04(e) (emphasis added). 


                                              18 

panel after he offered to impanel three new judges. Judge Wilkes further informed the

parties that any information they did not wish him to know as a member of the arbitration

panel should not be presented to him during the mediation. Given these circumstances, we

find that the policy implications of dual roles as presiding judge and resolution judge have

been rendered moot by agreement of the parties and the proceedings are not rendered void

or illegal for that reason. Further, we find that Petitioners, again by virtue of their

agreement, cannot now be heard to complain of the makeup of the panel.



                Turning to Petitioners’ argument that the arbitration was unconstitutional

because it violated the public’s constitutional right to access the courts,21 we find that

argument ill-suited to the actual circumstances of the arbitration conducted below. As

discussed by Petitioners, the Court of Appeals for the Third Circuit examined this issue in

Delaware Coalition for Open Government, Inc. v. Strine.22 In Strine, the Third Circuit

struck down a Delaware statutory scheme relating to private, court-sponsored arbitration.23


       21
            See W. VA. CONST. art 3, § 17 (“The courts of this state shall be open[.]”).
       22
            733 F.3d 510 (3d Cir. 2013).
       23
          Strine, 733 F.3d at 521. But see, Strine, 733 F.3d 510 (Fuentes, J., concurring)
(“The crux of today’s holding is that the proceedings set up by § 349 violate the First
Amendment because they are conducted outside the public view, not because of any
problem otherwise inherent in a Judge-run arbitration scheme. . . . Nothing in today’s
decision should be construed to prevent sitting Judges of the Court of Chancery from
engaging in arbitrations without those confidentiality provisions.”). See also, Strine, 733
F.3d 510 (Roth, J., dissenting) (“[The majority opinion] looks “‘not to the practice of the
specific public institution involved, but rather to whether the particular type of government
proceeding [has] historically been open in our free society.’” . . . [h]istorically, arbitration
has been private and confidential. Logically, the resolution of complex business disputes,
                                              19 

The Strine court reasoned that because the arbitrations were conducted in state courthouses

by officials elected by the public, to preclude the public from the proceedings was a

violation of the well-instilled constitutional right to access the courts.24 Petitioners argue

that pursuant to Strine, the parties’ agreement that the proceedings would be confidential

was unconstitutional and the award should be vacated. We find Strine’s theoretical

arguments with regards to the rights of the public persuasive, and, indeed, this Court has

also reiterated that “[o]ne fundamental aspect of our Anglo-American system of justice is

its openness,” and “[w]ith respect to any judicial or quasi-judicial proceeding, the public

must always be afforded the opportunity to realize that there is a careful, reasoned and

judicious decision-making process at work[.]”25 In application to the underlying

proceeding, however, the facts in this case are utterly distinct from those in Strine, and the

outcome necessarily different.



                In Strine, the Delaware statutory scheme barred public access by providing

that the proceedings could only be attended by the parties and their representatives, and


involving sensitive financial information, trade secrets, and technological developments,
needs to be confidential so that the parties do not suffer the ill effects of this information
being set out for the public—and especially competitors—to misappropriate. For these
reasons, there is here no First Amendment right of public access.”) (internal citations
omitted).
       24
            See id. at 513-14.
       25
          Daily Gazette Co., Inc. v. Comm. on Legal Ethics of the W. Va. State Bar, 174 W.
Va. 359, 364; 368, 326 S.E.2d 705, 710; 714 (1984) (internal quotations and citations
omitted).

                                             20 

that the petition for arbitration and supporting documents would not be included on the

public docketing system.26 In stark contrast, the date, time and location of the parties’

arbitration proceedings below were publicly docketed by the court as they would be in any

other civil case, and transcripts of the arbitration were available to the public. While the

Final Decision was issued under seal, it was unsealed by this Court, and Petitioners do not

allege that members of the public ever sought to review the Final Decision and were denied.

Likewise, as Judge Wilkes aptly noted prior to the arbitration, “you cannot preclude the

public or anyone from . . . observing [the arbitration]. So I think we’re not going to be

able to blanket much, if anything, in confidentiality.” Petitioners do not allege, nor is there

any evidence in the record to suggest that anyone was precluded from observing the

arbitration. Rather, Petitioners contend that “[t]he hearing was held in the Kanawha

County Courthouse, but it was not publicized and it was not attended by the public or press,

though the transcript of the three-day proceeding has been placed on the public docket.”

Seemingly, Petitioners conflate the concepts of publicity and public access.              The

constitutional right of the public to access the courts requires that the courts be open as a

check on the judiciary; it does not require that the court actively provide publicity for

already publicly-docketed proceedings, nor does it require actual attendance of the press

or the public. Accordingly, we view the parties’ agreement to keep matters confidential to

the extent allowable by law as little more than an agreed protective order, ultimately




       26
            Strine, 733 F.3d at 513.

                                              21 

rendered moot when this Court unsealed the record. For those reasons, we do not find that

the proceedings violated the constitutional right to access the courts.



B.     Availability of appellate review

               Having determined that the arbitration, as conducted, was not “illegal” so as

to void the agreement of the parties, we turn next to the availability of appellate review.

As discussed above, the parties agreed that the arbitration would be “binding” and “non-

appealable.”    Consequently, VALIC argues that appeal to this Court is altogether

foreclosed. Petitioners, by contrast, argue that the issues raised in the appeal are ones

relating to subject-matter jurisdiction, which the parties cannot agree to waive.27

Petitioners further contend that there is no such thing as “binding judicial arbitration”

because “judicial arbitration, in jurisdictions offering it all, appears to be uniformly of the

non-binding variety.”28




       27
         See, e.g., State ex rel. Smith v. Thornsbury, 214 W. Va. 228, 233, 588 S.E.2d 217,
222 (2003) (“[s]ubject-matter jurisdiction may not be waived or conferred by consent and
must exist as a matter of law for the court to act.”).
       28
         Petitioners argue in their reply brief that there are aspects of public policy that
suggest that sitting judges should not act as arbitrators. Initially, we observe that the cases
on which Petitioners rely analyze other states’ statutory schemes or rules relating whether
a judge may, within the confines of those statutes or rules, conduct arbitration. As we have
already established, this state’s framework for the Business Court Division does not
preclude arbitration by business court judges. As to general public policy, first, Petitioners
argue that sitting judges may not act as arbitrators because private arbitration cannot be
conducted in public courthouses without running afoul of constitutional access to the
courts. As we have previously discussed, this was not a private arbitration and the public
was not precluded access. Second, Petitioners argue that sitting judges may not act as
                                              22 

              Addressing Petitioners’ initial argument as to whether judicial arbitration

may be binding by agreement of the parties, we readily dismiss it. Petitioners cite to the

following states’ court-annexed arbitration schemes as authority for the proposition that

judicial arbitration is uniformly non-binding because the state statutes or rules that create

that form of dispute resolution afford the parties the right to appeal by trial de novo: Ariz.

Rev. Stat. § 12-133 (2012) (neutral arbitrators and right of appeal with trial de novo); Fla.

Stat. § 44.103 (2007) (same); Haw. Rev. Stat. § 601-20 (2000) (non-binding arbitration

with neutral arbitrators); Ill. S. Ct. R. 86-87, 93 (neutral arbitrators with right of appeal);

Nev. Rev. Stat. 38.250 (2005), Nev. Arb. R. 7, 18 (same); N.C. Gen. Stat. § 7A-37.1 (2013)

(same); R.I. Super. Ct. Arb. R. 2, 5 (neutral arbitrators and right of appeal with trial de

novo); Wash. Rev. Code § 7.06040-.050 (2011) (same).



              A closer review of those statutes and court rules reveals that there is one

glaring and consequential difference between the arbitrations conducted under those

schemes and the one conducted here: the arbitration conducted in this case was not



arbitrators because arbitrators need not adhere to the Rules of Evidence or other facets of
West Virginia law, which conflicts with the duties of an elected judge. But, pursuant to
their agreement, and as discussed below, the panel did apply West Virginia law. Third,
Petitioners argue that judicial arbitrators should not be permitted to “wear both hats,” that
is, to hear in their judicial capacity grounds for vacating the awards they rendered in their
capacity as an arbitrator. This argument is moot on the facts of this case, however, because
Petitioners never made such motion to vacate the award below. Thus, Petitioners raise
these public policies in the abstract, but has not alleged that any of those public policies
were at stake or violated here. Consequently, we find those arguments unavailing under
the current factual circumstances.

                                              23 

mandatory.29 Arizona, Florida, Hawaii, Illinois, Nevada, North Carolina, Rhode Island,

and Washington have, by statute or court rule, court-annexed arbitration. Those states

require that when certain conditions are met,30 the parties arbitrate their disputes.

Accordingly, appeal by trial de novo is a constitutional prerequisite to such mandatory

arbitration so as to preserve the right to a jury trial. When examining its statutory scheme,

Arizona’s courts have discussed that “[t]he right to trial de novo is essential to the

constitutionality of compulsory arbitration, since both the United States and Arizona

Constitutions guarantee the right to trial by jury.”31          Likewise, in defending the

constitutionality of its court-annexed arbitration, Hawaii’s courts have discussed

                the United States Supreme Court has stated that the seventh
                amendment “does not prescribe at what stage of an action a
                trial by jury must, if demanded, be had; or what conditions may
                be imposed upon the demand of such a trial, consistently with

       29
           We note that Petitioners also cite to New Jersey’s court-annexed arbitration
scheme, N.J. Stat. § 2A;23A-1, et seq. (1987) (APDRA), as providing parties to an
arbitration with the right of appeal, but not by trial de novo. Consonant with the facts of
this case, New Jersey’s arbitration scheme may be voluntarily invoked by agreement of
parties to an already-existing dispute. It provides for limited appellate review, see N.J. Stat.
§ 2A:23A-13, but as New Jersey courts have discussed, “[a]lthough limited judicial review
is a central component of the APDRA, the APDRA’s procedures are entirely voluntary,
and thus, parties are free to invoke its procedure in toto or subject to agreed upon
modifications.” Weinstock v. Weinstock, 871 A.2d 776 (N.J. Super. Ct. 2005) (internal
quotations and citations omitted). Petitioners likewise cite Tennessee’s voluntary, non-
binding ADR scheme (Tenn. S. Ct. R. 31) in support of their argument. However,
Appendix B of those rules permits parties to “stipulate[] in writing that the award shall be
final and binding.” See Tuetken v. Tuetken, 320 S.W.3d 262 (2010).
       30
         In most of these states, these requirements typically center on a given dollar
amount in controversy, or particular types of litigants.
       31
            Valler v. Lee, 949 P.2d 51, 53 (Ariz. Ct. App. 1997) (footnote omitted) (emphasis
added).

                                              24 

                perserving the right to it.” [Kimbrough v. Holiday Inn], 478
                F.Supp. at 569 (quoting Capital Traction Co. v. Hof, 174 U.S.
                1, 23, 19 S.Ct. 580, 589, 43 L.Ed. 873 (1899)). Thus, with
                regard to mandatory arbitration programs that afford a right to
                trial de novo, it has been held that:

                       [t]he only purpose of the [seventh amendment] is
                       to secure the right of trial by jury before rights of
                       person or property are finally determined. All
                       that is required is that the right of appeal for the
                       purpose of presenting the issue to a jury must not
                       be burdened by the imposition of onerous
                       conditions, restrictions or regulations which
                       would make the right practically unavailable.[32]

North Carolina, too, in its enacting legislation, provided that the constitutional right to a

jury trial be preserved through appeal by trial de novo:

                (a)    The General Assembly finds that court-ordered,
                nonbinding arbitration may be a more economical, efficient
                and satisfactory procedure to resolve certain civil actions than
                by traditional civil litigation and therefore authorizes court-
                ordered nonbinding arbitration as an alternative civil
                procedure, subject to these provisions.


                (b) The Supreme Court of North Carolina may adopt rules
                governing this procedure and may supervise its
                implementation and operation through the Administrative
                Office of the Courts. These rules shall ensure that no party is
                deprived of the right to jury trial and that any party dissatisfied
                with an arbitration award may have trial de novo.[33]




       32
           Richardson v. Sport Shinko (Waikiki Corp.), 76 Haw. 494, 513, 880 P.2d 169, 188
(1994) (finding that mandatory arbitration program was constitutional because it provides
for a trial de novo).
       33
            N.C. Gen. Stat. Ann. § 7A-37.1 (emphasis added).

                                                25 

               While preserving the availability of right to appeal by trial de novo, all of

these states require affirmative conduct or reservation of the right to appeal by trial de novo

in the course of the parties’ mandatory arbitration. Here, just the opposite occurred: the

parties were not subject to mandatory arbitration, but rather willingly entered into a

contractual agreement to resolve their dispute through arbitration and explicitly waived

their right to a trial by jury or bench and to subsequent appellate review.



               Petitioners’ reliance on these foreign authorities is further undercut because

Petitioners do not argue that in these jurisdictions the parties may not agree to waive

appellate review altogether as the parties did here. To the contrary, many of these

jurisdictions offering court-annexed arbitration appear to honor the agreement of the parties

to limit or otherwise preclude appellate review, whether waiver is contemplated in the

court-annexed arbitration framework itself or is provided for under the applicable

arbitration statutes. 34




       34
          See, e.g., 16 A.R.S. Rules of Civil Procedure 77(e) (providing that parties may
stipulate that arbitration award entered be binding upon parties thereby precluding
appellate attack on award except as provided in arbitration act); N.C. R. ARB 9 (parties
may consent to limit issues considered on appellate review; parties may consent in writing
to rescind demand for trial de novo); Darcy v. Lolohea, 886 P.2d 759, 763 (Haw. Ct. App.
1994) (court review of arbitration award limited by provisions of arbitration statute); R.I.
Super. Ct. R. Arb. 1(b) (“Arbitration by Agreement. The court may submit any other civil
action to arbitration under these Arbitration Rules or any modification thereof, pursuant to
agreement by the parties approved by the court provided that the parties agree in writing
that the award shall be binding.”); Valler, 949 P.2d at 53 (“[A]bsent a stipulation by the
parties, the resulting arbitration award is nonbinding if a timely appeal is filed.” (emphasis
added)); Cozzolino v. Cozzolino, No. A-4770-10T1, 2012 WL 6097090 (N.J. Super. Ct.
                                              26 

                It follows, then, that while we find the foreign authority advocated by

Petitioners inapposite, we must still consider the validity of the parties’ agreement to

“binding, non-appealable” arbitration under West Virginia law. In the absence of Business

Court Division Rules outlining any specific procedure concerning appellate review, or

otherwise, for arbitrations conducted in the Business Court Division,35 consistent with the

parties’ arguments invoking the provisions therein, we apply the West Virginia Revised

Uniform Arbitration Act (the Act).36



                West Virginia Code § 55-10-6(a) provides that “[e]xcept as otherwise

provided in subsections (b) and (c) of this section, a party to an agreement to arbitrate or

to an arbitration proceeding may waive or the parties may vary the effect of the

requirements of this article to the extent permitted by law.”           Applicable to these

circumstances is subsection (c), which dictates what provisions of the Act may be waived

when the agreement to arbitrate is entered after a controversy has arisen.37 Subsection (c),



App. Div. Dec. 10, 2012) (precluding appellate review where parties agreed to waive right
to appeal arbitration award).
       35
           Trial Court Rule 29.09 provides that “[i]f these Rules conflict with other rules or
statutes, these rules shall apply[.]” While we do not wish to hamstring the creativity of the
Business Division within the currently liberal framework of the Business Court Rules, it is
apparent from the issues raised in this appeal that, at least in the context of arbitrations,
litigants and courts would benefit from additional rulemaking pursuant to Rule 29.05(c).
       36
        See W. Va. Code § 55-10-5(a) (2016 Repl. Vol.) (“This article governs an
agreement to arbitrate made on or after July 1, 2015.”).
       37
            Compare W. Va. Code § 55-10-5(c), with W. Va. Code § 55-10-5(b).

                                             27
in relation to appellate review, indicates that the parties may not vary the effects of West

Virginia Code § 55-10-22 (party may move arbitrator to modify or correct an award); West

Virginia Code § 55-10-24 (party may move court for confirmation of award if no grounds

to modify, correct or vacate award); West Virginia Code § 55-10-25 (party may move court

for vacation of award if limited circumstances are met); or West Virginia Code § 55-10-26

(party may move court to modify or correct an award).38 Subsection (c) does not, however,

preclude the parties from waiving appellate review to this Court under West Virginia Code

§ 55-10-30.



                This is consistent with the general view relating to the language of an

agreement in which parties agree to final, non-appealable arbitration:

                And generally, a contract provision stating that arbitration is
                “non-appealable” signifies that the parties to the contract may
                not appeal the merits of the arbitration; not that the parties
                agree to waive a right to appeal the district court’s judgment
                confirming or vacating the arbitration decision. See Tabas v.
                Tabas, 47 F.3d 1280, 1288 (3d Cir.1995) (en banc) (observing
                that, where a contract provided for “final, binding, and non-
                appealable” arbitration, the Court must adhere to the arbitration
                decision on the merits); see also Rollins, Inc. v. Black, 167
                Fed.Appx. 798, 799 n. 1 (11th Cir. 2006) (“[A ‘binding, final,
                and non-appealable’ arbitral award] simply means the parties
                have agreed to relinquish their right to appeal the merits of their
                dispute; it does not mean the parties relinquish their right to
                appeal an award resulting from an arbitrator’s abuse of
                authority. . . .”).[39]


       38
            W. Va. Code § 55-10-5(c).
       39
            Southco, Inc. v. Reell Precision Mfg. Corp., 331 F. App’x 925, 927 (3d Cir. 2009).

                                                28 

Stated differently,

              “an arbitration agreement . . . between two sophisticated
              business parties, each represented by counsel, that clearly
              precludes judicial review of an arbitration award beyond the
              trial court level, is enforceable.” Supra, 394 N.J.Super. at 257
              (emphasis added). We explained that just as parties may
              expand review of an arbitration award by contract, they may
              also “privately contract to further constrict the scope of limited
              judicial scrutiny by, for instance, eliminating the added layer
              of appellate review altogether.” Id. at 265. “The only caveat is
              that their intention to do so must be clear and unequivocal.”
              Ibid. (internal quotation marks and citation omitted). We also
              recognized that in “rare circumstances” private restrictions on
              judicial review would not be upheld, citing as an example a no-
              appeal clause prohibiting review by the trial court. Id. at
              266.[40]

Accordingly, we find that by virtue of the agreement that the arbitration would be “final,

and non-appealable” these sophisticated parties, both represented by counsel, have waived

the right to appellate review of the merits under West Virginia Code § 55-10-30. Given

that Petitioners never moved under West Virginia Code §§ 55-10-22, -24, -25 or -26 to

modify, correct or vacate the award below, our review would be particularly inappropriate.

However, insofar as Petitioners argue that the matter is reviewable by couching their

merits-based arguments in terms of subject-matter jurisdiction for the panel’s alleged

failure to apply the law of the case in IMB I and failure to rule on issues before it, we find

it necessary to review those arguments.




       40
         Cozzolino, 2012 WL 6097090, at *6 (citing Van Duren v. Rzasa-Ornes, 394 N.J.
Super. 254 (App. Div. 2007), aff’d o.b., 195 N.J. 230 (2008).

                                             29 

             Petitioners initially argue that the arbitration panel did not fulfill its charge

to make a final and definite award because it did not address Petitioners’ request for

declaratory judgment and, by not deciding all of the issues submitted to it has ceded

jurisdiction over the entire dispute. As a consequence, Petitioners argue that the award

must be vacated. We easily dispose of Petitioners’ assertion that the panel neglected to

decide all issues before it because it did not rule on Petitioners’ declaratory judgment.

Petitioners’ sought a declaration as to whether there could be transfers outside the DCP

without restriction. By virtue of the fact that the panel determined that “[b]efore 2008,

every CPRB representative that evaluated the 1991 Contract agreed that the 20% [Rule]

would apply to any mass withdrawal by the State” and concluded that the 20% Rule

applied, that issue was answered in the negative, rendering the point moot.



             Relating to the alleged failure of the panel to apply the law of the case,

Petitioners refer to IMB I as “dispositive” and conclude that the panel’s Final Decision

(which was not in their favor) was rendered without subject-matter jurisdiction because it

did not comply with this Court’s legal conclusions in IMB I.41 In particular, Petitioners

take issue with the panel’s finding that “the legal conclusion of [the] case rests upon the



       41
          Although the Business Division unquestionably had subject-matter jurisdiction
over the dispute by order of this Court, Petitioners’ arguments to this end are grounded in
the authority that an arbitrator’s subject-matter jurisdiction is derived from the parties’
agreement, which, in this case, provided that the panel would make a reasoned decision
applying West Virginia law. Thus, Petitioners’ contend that the panel ignored IMB I, and,
therefore, acted without subject-matter jurisdiction.

                                            30 

formation of the December 2008 replacement contract[,]” while IMB I emphasized the

1991 Contract.



                In IMB I, we reversed the circuit court’s grant of summary judgment, having

found that the circuit court erred in accepting VALIC’s argument that there was no

justiciable controversy, which was premised on the finding that the CPRB never requested

a cash payout under the 1991 Contract.42 Likewise, we determined that the circuit court

erred in finding that the endorsement language was unambiguous.43 Its finding that the

endorsement was unambiguous prompted the circuit court to preclude review of the

documents incorporated as part of the 1991 Contract, which we felt “arguably address[ed]

the parties’ intentions with regard to the subject endorsement language[,]” since the 2008

Contract was intended by the parties to be “materially similar” to the 1991 Contract.44



                So, having found that the 2008 Contract was “decidedly ambiguous,” we

discussed that “we would be hard pressed to wholly disregard evidence that may relate to

the meaning of the endorsement language in dispute.”45 While we cited with favor the

notion that ambiguities should be construed against the drafter (VALIC, in this case), we



       42
            IMB I, 234 W. Va. at 477, 766 S.E.2d at 424. See also, infra n. 50.
       43
            IMB I, 234 W. Va. at 485, 766 S.E.2d at 432.
       44
            Id. at 482-83, 766 S.E.2d at 429-30 (emphasis added).
       45
            Id. at 484, 766 S.E.2d at 431.

                                              31 

likewise recognized that “in those cases where uncertainty or ambiguity exists regarding

the construction of the terms used in a written instrument, evidence of custom or usage

may be considered.”46 Consistent with those findings, we determined that summary

judgment was not appropriate and remanded the matter for further proceedings with

instructions that the case be transferred to the Business Court Division.47



                Notwithstanding the obvious caveat that IMB I was postured as an appeal

from summary judgment,48 having closely compared the panel’s Final Decision and IMB

I, we reject Petitioners’ argument that the Final Decision somehow departs from our

decision in IMB I. In IMB I, we were of the opinion that the 2008 Contract provision was

ambiguous and could benefit from examination of the 1991 Contract formation, extrinsic



       46
          Id. at 484-85, 766 S.E.2d at 431-32. See also, Marson Coal Co. v. Ins. Co. of
State of Pa., 158 W. Va. 146, 150, 210 S.E.2d 747, 750 (1947) (Contra proferentem
construction principle should not be applied to “contravene the intention of the parties.”);
Cline v. Rose, 96 Ohio App. 3d 611, 615 (1994) (“When interpreting ambiguous contracts,
courts must make a legitimate attempt, after hearing the relevant parol evidence, to
determine the intent of the contracting parties.”); Urban Assoc., Inc. v. Standex Electronics,
Inc., No. 04-CV-40059, 2012 WL 1079720 (E.D. Mich. March 30, 2012) (“[t]he general
rule of construing an ambiguous contract against the drafter does not mean automatically
holding in favor of the other party. . . . Otherwise, extrinsic evidence would be irrelevant.”
(citations omitted)).
       47
            IMB I, 234 W.Va. at 485, 766 S.E.2d at 432.
       48
          “A trial court’s denial of a motion for summary judgment, or an appellate court’s
decision to overturn the granting of such a motion, does not reflect an opinion on the
ultimate merits of the case. . . . The final verdict in a case should be the result of the proof
offered by the parties. . . .” McGinnis v. Cayton, 173 W. Va. 102, 312 S.E.2d 765 (1984)
(citations omitted).

                                              32 

evidence, and custom and usage. For the circuit court to have precluded that evidence from

its review at the summary judgment stage was error. We are still of that opinion.



              Upon remand and extensive additional discovery relating to the 1991

Contract and further evidence as to custom and usage, the panel, being in possession of all

such evidence not before this Court in IMB I,49 concluded that whatever the parties’ intent

was at the formation of the 1991 Contract, Petitioners entered into the 2008 Contract with

the absolute knowledge and understanding that VALIC also interpreted the 20% Rule as

applicable to the withdrawals Petitioners were attempting to make. Further, Petitioners

effectively conceded, and evidenced by conduct that they also held the view that the 20%

Rule applied to the attempted withdrawals prior to entering the 2008 Contract,50 and were




       49
          See, e.g., Feesers, Inc. v. Michael Foods, Inc., 591 F.3d 191, 207-08 (3d Cir.
2010) (law of the case inapplicable where the “full record established at trial . . . was not
available to this Court when we decided [the] appeal from summary judgment”); Cal. First
Amendment Coal. v. Woodford, 299 F.3d 868, 879-80 (9th Cir. 2002); Stagl v. Delta Air
Lines, Inc., 117 F.3d. 76, 79-80 (2d Cir. 1997).
       50
          Petitioners cherry-pick portions of IMB I taken out of context in support of its
argument that this Court effectually decided the case in its favor in IMB I: “[o]nly by
turning a blind eye to the events that transpired in this case can it even be suggested that
the Board failed to assert its claimed right to an aggregate payout of the subject funds.”
Quoted from our discussion relating to whether a justiciable controversy existed,
Petitioners misapply it to interpretation of the contract, i.e., contending that this Court had
determined that VALIC was aware that IMB held a different interpretation of the
applicability of the 20% Rule to the withdrawals. To the contrary, this Court discussed
that VALIC was aware of IMB’s objective to withdraw the funds, which, in part, created
the justiciable controversy, and, in fact, lends itself to the conclusion reached in the Final
Decision.

                                              33 

therefore bound to that interpretation consistent with contract law.51 We see no cause to

upset the panel’s decision on the basis that it does not comport with whatever “law of the

case” Petitioners contend that IMB I created. Had this Court believed that the additional

evidence proffered to the panel regarding the 1991 Contract and custom and usage was

superfluous, we would have entered judgment rather than remand the matter for further

proceedings when this case was previously before us.



                                   IV.    CONCLUSION

              For the foregoing reasons, we affirm the order of the Business Court Division

dismissing the underlying matter from its docket in reliance on the conclusions reached in

the arbitration panel’s final decision.



                                                                                    Affirmed.




       51
         Petitioners contend in their first assignment of error that this legal application was
error. By Petitioners’ own concession, the first assignment of error is a merits-challenge
to the Final Decision, not jurisdictional, and, therefore, is precluded from this Court’s
review.

                                              34 

