No. 15-0098 –	       State of West Virginia ex rel. Airsquid Ventures, Inc. (d/b/a Amphibious
                     Medics), and Travis Pittman v. 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.

                     and

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. 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



Davis, Justice, dissenting:

              In deciding the case sub judice, the majority of the Court ostensibly applies this

State’s venue statute, W. Va. Code § 56-1-1 (2007) (Repl. Vol. 2012), to conclude that Ms.

Sengupta’s choice of venue in the corporate defendants’ place of business is improper. To

reach this decision, the majority myopically focuses upon the first subsection of the venue

statute, i.e. W. Va. Code § 56-1-1(a)(1), which applies to individuals named as defendants.

In doing so, the majority accords short shrift to the immediately succeeding subsection of the

venue statute, i.e. W. Va. Code § 56-1-1(a)(2), which governs venue determinations for

corporations named as defendants. Because W. Va. Code § 56-1-1(a)(2) expressly allows

suit to be filed against a corporate defendant “wherein it does business” and because the

corporate organizers and sponsors of the event at issue in this case unquestionably do

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business in Marshall County, venue in Marshall County was proper. Accordingly, the writ

of prohibition should have been denied, and I dissent from the majority’s contrary ruling.



                               A. Contractual Interpretation

              At issue herein is the construction to be afforded to the forum selection clause

contained in the waiver of liability contract drafted by Tough Mudder and signed by Ms.

Sengupta’s son. Ordinarily, this Court looks to a contract’s plain language and applies it as

it is written to effectuate the parties’ intent. See Syl. pt. 2, Bethlehem Mines Corp. v. Haden,

153 W. Va. 721, 172 S.E.2d 126 (1969) (“Where the terms of a contract are clear and

unambiguous, they must be applied and not construed.”). However, when the meaning of

contractual terms are not clearly delineated, “any term that has significance in a given

contract . . . must be defined based on the subject matter of the contract and the intent of the

document’s drafters.” Benson v. AJR, Inc., 215 W. Va. 324, 327, 599 S.E.2d 747, 750 (2004)

(per curiam). Accord Oresta v. Romano Bros., Inc., 137 W. Va. 633, 644, 73 S.E.2d 622,

628 (1952) (recognizing “general rule” that “words in a contract will be given their usual and

primary meaning at the time of the execution of the contract” (citation omitted)). And, “[i]n

case of doubt, the construction of a written instrument is to be taken most strongly against

the party preparing it.” Henson v. Lamb, 120 W. Va. 552, 558, 199 S.E. 459, 461-62 (1938).

See also State ex rel. Richmond Am. Homes of West Virginia, Inc. v. Sanders, 228 W. Va.

125, 140 n.61, 717 S.E.2d 909, 924 n.61 (2011) (commenting “that ambiguous contract


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provisions, especially those having the qualities of a contract of adhesion, are to be construed

against the drafter” (internal citations and quotation omitted)).



                 The contractual language at the center of the instant controversy provides, in

relevant part:

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

This language very simply states that the parties have agreed, and thus are contractually

bound, to bring any suit arising from their relationship under the waiver agreement in “the

appropriate state . . . court for the state in which the TM [Tough Mudder] Event is held . . . .”

Insofar as this contractual provision references, but does not define, “the appropriate state

. . . court,” it first is necessary to consider the commonly accepted meaning of the term

“appropriate,” which is defined as “suitable or proper.” New Oxford American Dictionary

77 (3d ed. 2010). Accord Webster’s Ninth New Collegiate Dictionary 98 (1983) (defining

“appropriate” as “especially suitable or compatible: fitting”). Thus, it is clear from the

parties’ plain contractual language that “the [suitable or proper] state . . . court” governs

where the parties’ dispute must be brought. Therefore, a proper analysis of the issue

presented herein next requires an examination of this State’s venue statute to supply that

which was left unsaid in the contract’s forum selection clause: which of this State’s courts


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is “appropriate,” or “proper,” to entertain the parties’ dispute.



                                  B. Statutory Application

              The statute that defines the propriety of venue in this State is W. Va. Code

§ 56-1-1. In its opinion, the majority examined where venue would lie for the corporate

defendants herein, relying primarily upon the language of W. Va. Code § 56-1-1(a)(1). In

actuality, subsection (a)(2) speaks specifically to the appropriate venue for corporate

defendants:

                      (a) Any civil action or other proceeding, except where it
              is otherwise specially provided, may hereafter be brought in the
              circuit court of any county:

                      ....

                      (2) If a corporation be a defendant, wherein its principal
              office is or wherein its mayor, president or other chief officer
              resides; or if its principal office be not in this State, and its
              mayor, president or other chief officer do not reside therein,
              wherein it does business; or if it be a corporation organized
              under the laws of this State which has its principal office located
              outside of this State and which has no office or place of business
              within the State, the circuit court of the county in which the
              plaintiff resides or the circuit court of the county in which the
              seat of state government is located shall have jurisdiction of all
              actions at law or suits in equity against the corporation, where
              the cause of action arose in this State or grew out of the rights
              of stockholders with respect to corporate management[.]

W. Va. Code § 56-1-1(a)(2) (emphasis added). Over one hundred years ago, this Court

interpreted this statutory language to mean that


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                     [a] foreign corporation doing business in this state,
              having no principal office or president or other chief officer
              resident therein, may be sued in any county wherein it does
              business . . . if process can be legally served in such county.

Syl. pt. 1, in part, Humphreys v. Newport News & M.V. Co., 33 W. Va. 135, 10 S.E. 39

(1889) (emphasis added). See also Syl. pt. 2, Banner Printing Co. v. Bykota Corp., 182

W. Va. 488, 388 S.E.2d 844 (1989) (“Under W. Va. Code, 56-1-1(a) [1986], venue of an

action against a corporate defendant lies in the county where the cause of action arises, in

addition to those locations specified in W. Va. Code, 56-1-1(a)(2).” (emphasis added)).

Insofar as it is undisputed that the corporate defendants herein neither have their principal

office in West Virginia nor have resident corporate officers in this State, the plain language

of W. Va. Code § 56-1-1(a)(2), as confirmed by this Court’s longstanding interpretation

thereof, makes clear that venue is proper “wherein [the defendant corporation] does

business.” Without question, the corporate defendants conducted business in Marshall

County by advertising the subject event and selling products marketing the same thus

subjecting them to venue in that county. To the extent that Marshall County is an appropriate

venue for the corporate defendants, so too is it proper for the solitary individual defendant.

See State ex rel. Kenamond v. Warmuth, 179 W. Va. 230, 231, 366 S.E.2d 738, 739 (1988)

(“This Court follows the venue-giving defendant principle, whereby, once venue is proper

for one defendant, it is proper for all other defendants subject to process.” (citations

omitted)).



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               Applying the express contractual language agreed upon by the parties to the

instant controversy, it is apparent that “the appropriate state . . . court for the state in which

the TM [Tough Mudder] Event is held” would be any county in which the corporate

defendants do business, and, because they conduct business in Marshall County, the circuit

court of that county would meet the definition of “the appropriate state . . . court.” To the

extent that the defendants desired suits against them to be brought in the county in which

their event was held as they vehemently advocated in this proceeding, it is apparent from the

record in this case that they are entities of sufficient sophistication and experience in drafting

waiver and indemnity agreements with the requisite degree of specificity to accomplish that

aim. Absent such definiteness, however, the plaintiff was permitted to select in which

“appropriate . . . court” of this State to file her lawsuit. See Henson v. Lamb, 120 W. Va. at

558, 199 S.E. at 461-62 (“[I]n case of doubt, the construction of a written instrument is to be

taken strongly against the party preparing it.”). Insofar as venue is appropriate in Marshall

County, the plaintiff’s case should have been allowed to proceed in that forum.



               Just as contracting parties must ensure that their agreement’s written terms

express their true intent, so, too, is it the responsibility of this Court to afford the contracting

parties’ intent full force and effect. In other words, this Court is required to apply a

contract’s plain language insofar as those are the terms to which the parties assented and for

which they gave consideration. While the majority inexplicably inserts an invisible “most”


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to qualify the term “appropriate” in its determination that Berkeley County is the one and

only suitable forum to entertain the instant suit, the language agreed to, and adopted by, the

parties simply requires that the selected forum be “appropriate.” The parties’ contractual

language is silent as to how venue should be determined if more than one court qualifies as

“appropriate.” Absent such clarification, the majority should have enforced the parties’

forum selection clause as it was written. It is not the prerogative of this Court to read into

a contract that which it does not say: “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.” Syl. pt. 3, Cotiga

Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962).



               In ruling upon the defendants’ motions to dismiss for improper venue, the

circuit court correctly considered the relevant factors requisite to such an analysis and refused

to substitute its venue preference for that of the plaintiff. See generally Caperton v. A.T.

Massey Coal Co., Inc., 225 W. Va. 128, 690 S.E.2d 322 (2009). The majority of the Court,

however, has failed to exercise the same restraint.



               For the foregoing reasons, I respectfully dissent.




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