                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



ATLANTIC CREDIT & FINANCE

SPECIAL FINANCE UNIT, LLC, 

ASSIGNEE OF SYNCHRONY BANK,

Plaintiff and Counterclaim Defendant Below,

Petitioner,                                                                   FILED

                                                                          October 26, 2018
vs. No. 17-0615 (Wyoming County No. 16-C-21)                                  released at 3:00 p.m.
                                                                          EDYTHE NASH GAISER, CLERK

                                                                          SUPREME COURT OF APPEALS

COURTNEY R. STACY, INDIVIDUALLY 
                                              OF WEST VIRGINIA


AND ON BEHALF OF ALL OTHERS 

SIMILARLY SITUATED,

Defendant and Counterclaim Plaintiff Below,

Respondent.



                              MEMORANDUM DECISION

       The petitioner (plaintiff and counterclaim defendant below), Atlantic Credit & Finance
Special Finance Unit, LLC, appeals the order of the Circuit Court of Wyoming County
entered on March 6, 2017, denying the petitioner’s motion to compel arbitration and to
dismiss the putative class action counterclaim filed by the respondent (defendant and
counterclaim plaintiff below), Courtney R. Stacy. The parties are represented by counsel:
Ashley W. French, Matthew L. Ward, and Daniel J. Konrad for the petitioner and Troy N.
Giatras, Matthew Stonestreet, Ralph C. Young, and Steven R. Broadwater, Jr., for the
respondent.

       Upon review of the parties’ briefs, oral arguments, and appendix record, we find that
this case does not present a new or significant question of law and satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure, making it
appropriate for a memorandum decision rather than an opinion. Having considered the
applicable standard of review and the record presented, and for the reasons expressed below,
the decision of the circuit court is reversed and this case is remanded for further proceedings
consistent with this memorandum decision.




                                              1

                         I. Factual and Procedural Background

       In support of its motion to compel arbitration, the petitioner submitted the affidavit
of Jodi Anderson, a litigation analyst with Synchrony Bank,1 formerly GE Capital Retail
Bank. Ms. Anderson attests to her personal knowledge of the bank’s business records, which
showed that on or about February 4, 2014, a Care Credit account was applied for online in
the respondent’s name with Synchrony Bank,2 attaching a “true and accurate copy” of the
online application to her affidavit. Ms. Anderson further attests that on that same day,
Synchrony Bank approved the application and opened a Care Credit account in the
respondent’s name, adding that on or about February 10, 2014, the plastic credit card and the
applicable Credit Card Account Agreement (“Credit Agreement”) were mailed to the
respondent to the address provided in the online application. Ms. Anderson attached to her
affidavit what she described as a “true and accurate copy” of the “effective credit card
agreement that governed the Account.” This Credit Agreement provides that “[b]y opening
or using your account, you agree to the terms of the entire Agreement.” Also attached to Ms.
Anderson’s affidavit were copies of Synchrony Bank billing statements that were mailed to
the respondent at the same address. These billing statements reflect that the card was used
to purchase services, and that payments were made on the account.

       The respondent admitted in his discovery responses that he used the credit card
account.3 He did not submit any evidence challenging Ms. Anderson’s sworn affidavit, such
as an affidavit of his own denying that he applied online for the credit card or denying that
he received the plastic credit card and the Credit Agreement in the mail.

    The Credit Agreement contains a section titled: RESOLVING A DISPUTE WITH
ARBITRATION, which provides, in part, as follows:

       PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT
       IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST
       DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO
       INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A
       COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU
       WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR

       1
        The petitioner is self-designated as Synchrony Bank’s assignee.
       2
       Care Credit is a healthcare credit card that can be used to finance beauty, health, and
wellness needs.
       3
        The petitioner’s motion to compel arbitration recounted the respondent’s admission
to having used the credit card account in his written responses to discovery.

                                              2

SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE
AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

•What claims are subject to arbitration
        ....
2. We will not require you to arbitrate: (1) any individual case in small claims
court or your state’s equivalent court, so long as it remains an individual case
in that court; or (2) a case we file to collect money you owe us. However, if
you respond to the collection lawsuit by claiming any wrongdoing, we may
require you to arbitrate.
        ....
•No Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE
OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT
OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST
US ON BEHALF OF ANY Accountholder WHO IS NOT A[n] Acountholder
ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY Accountholders
ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION
WITH ANY CLAIM YOU HAVE.
If a court determines that this paragraph is not fully enforceable, only this
sentence will remain in force and the remainder will be null and void, and the
court’s determination shall be subject to appeal. . . .
        ....
• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal
Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant
under the FAA. The arbitrator’s decision will be final and binding, except for
any appeal right under the FAA. Any court with jurisdiction may enter
judgment upon the arbitrator’s award.

• How to reject this section
You may reject this Arbitration section of your Agreement. If you do that,
only a court may be used to resolve any dispute or claim. To reject this section,
you must send us a notice within 60 days after you open your account or we
first provided you with your right to reject this section. The notice must
include your name, address and account number, and must be mailed to GE
Capital Retail Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the
only way you can reject this section.




                                       3

Ms. Anderson attests that Synchrony Bank maintains any correspondence received from its
customers as part of its regular course of business and that she did not find any record of the
respondent exercising his right to reject the arbitration section of the Credit Agreement.

       According to Ms. Anderson’s affidavit, Synchrony Bank records show that the last
payment made on the respondent’s account was on September 17, 2014. She avers that the
bank “charged off” the account on April 29, 2015, due to nonpayment, after which it sold the
respondent’s “Account” to the petitioner on June 20, 2015. Also attached as an exhibit to her
affidavit was a copy of a “Bill of Sale” dated June 20, 2015, which provides, as follows:

       For value received and in further consideration of the mutual covenants and
       conditions set forth in the Forward Flow Receivables Purchase Agreement (the
       “Agreement”), dated as of this 8th day of July, 2014 by and between Synchrony
       Bank formerly known as GE Capital Retail Bank (“Seller”), and Atlantic
       Credit & Finance Special Finance Unit, LLC (“Buyer”), Seller hereby
       transfers, sells, conveys, grants, and delivers to Buyer, its successors and
       assigns, without recourse except as set forth in the Agreement, to the extent of
       its ownership, the Receivables as set forth in the Notification Files (as defined
       in the Agreement), delivered by Seller to Buyer on June 20, 2015, and as
       further described in the Agreement.

Ms. Anderson avers that this Bill of Sale, as well as another document attached to her
affidavit, which she represents is “Stacy Account information extracted from Synchrony data
file,” reflect that Synchrony Bank A copy of the Forward Flow Receivables Purchase
Agreement referenced in the Bill of Sale was not attached as an exhibit to Ms. Anderson’s
affidavit nor was it otherwise presented to the circuit court.4 The affidavit of Sarah Wilson,
Director of Compliance with Atlantic Credit & Finance, Inc., was also filed in support of the
motion to compel arbitration. Ms. Wilson similarly attests to the petitioner having purchased



       4
        A copy of a Forward Flow Receivables Purchase Agreement dated July 8, 2014, was
produced during discovery, and the parties included their written discovery as part of the
appendix record on appeal. However, as provided in Rule 7 of the Rules of Appellate
Procedure, “[a]n appendix must contain accurate reproductions of the papers and exhibits
submitted to the lower court . . . .” (Emphasis added). Although the petitioner’s counsel
certified that “the contents of the Appendix are true and accurate copies of the items
contained in the record of the Circuit Court of Wyoming County,” critically, there is no
indication in the appendix record that the Forward Flow Receivables Purchase Agreement
was ever filed in or presented to the circuit court for its consideration. In this appeal, we
undertake a de novo review of the evidence presented to the circuit court, as discussed infra.

                                              4

the respondent’s “credit card account” from Synchrony Bank “as part of a larger sale of
account agreements.”

       On December 28, 2015, the petitioner filed an action against the respondent in the
Magistrate Court of Wyoming County seeking to collect the past due balance on the credit
card in the amount of approximately $720.22. The respondent removed the action to the
Circuit Court of Wyoming County where he filed an answer to the complaint, as well as a
putative class action counterclaim in which he alleged unjust enrichment, negligence, and
claims under the West Virginia Consumer Credit and Protection Act, West Virginia Code §§
46A-1-101 to -8-102.

        The petitioner filed an answer to the counterclaim and, thereafter, the parties engaged
in some written discovery. On June 7, 2016, the respondent filed a motion to compel class
discovery, which the circuit court granted in an order entered on August 31, 2016. Soon
thereafter, the petitioner filed a motion to compel arbitration and to dismiss the class
allegations under West Virginia Rule of Civil Procedure 12(b)(6), relying upon the
arbitration agreement set forth in the Credit Agreement. The petitioner asserted that the
arbitration agreement should be addressed under Utah law given the choice of law provision
in the arbitration agreement and that, under Utah law, there was a valid and binding
arbitration agreement and the right to seek arbitration was not waived by the petitioner. The
respondent opposed the motion, arguing, inter alia, that petitioner failed to prove who applied
online for the credit card or that an arbitration agreement existed; that even if such an
agreement existed, it was both procedurally and substantively unconscionable; and that the
petitioner waived any right it might have had to compel arbitration under West Virginia law.

        The circuit court held a hearing on the motion after which it entered an order on
March 6, 2017, denying the motion to compel arbitration. The lower court did not address
the choice of law issue, stating “the Court does not reach the issue of a choice of law
provision in a contract that does not exist.” The circuit court found that the petitioner failed
in its burden of proving that the respondent entered into a valid and enforceable agreement;
that a “boilerplate credit card agreement” was even sent to the respondent; or that he had
agreed to the terms in the boilerplate agreement that was “unsigned.” Finding that the
affidavits filed in support of the petitioner’s motion were of “questionable credibility,” the
circuit court concluded that the document alleged to be evidence of the respondent’s online
application was not what it was purported to be and bore the date of March 30, 2014, which
was after the alleged charges on the account. The circuit court also found the Bill of Sale to
be problematic, noting that it only referenced “receivables,” saying nothing about additional
contract rights or terms under the Credit Agreement. Making alternative rulings, the circuit
court found that even if there were an arbitration agreement, it was unconscionable under
West Virginia law and had been waived once the petitioner chose the forum and participated
in the litigation for more than eight months. Without reference to any particular state’s laws

                                               5

and without any apparent allegations of prejudice by the respondent, the circuit court found
that the respondent would be substantially prejudiced if it were to refer the parties to
arbitration.

        Challenging the circuit court’s order, the petitioner filed a motion under West Virginia
Rule of Civil Procedure 59(e) seeking an amendment of the circuit court’s order and a
reconsideration of the court’s findings of fact and conclusions of law. Alternatively, the
petitioner asked the lower court to enter an amended order that made findings of fact and
conclusions of law specific to all issues raised in the petitioner’s motion to compel
arbitration, including the choice of law provision in the arbitration agreement, whether the
parties’ dispute is within the scope of the arbitration agreement, which state’s laws the court
applied when it found the petitioner had waived its right to arbitration, and whether the
respondent’s class allegations violated the terms of the arbitration agreement.

        On June 12, 2017, the circuit court denied the petitioner’s Rule 59(e) motion. The
circuit court again found the petitioner had failed to establish the existence of a contract or
to prove that the respondent had been provided a copy of the contract containing the
arbitration agreement; therefore, it had no reason to address the choice of law issue.
Additionally, the court affirmed its earlier ruling that even if there were a contract, the
petitioner had waived its right to compel arbitration. This appeal followed.

                                  II. Standard of Review

        The petitioner appeals the circuit court’s order denying arbitration and the court’s
subsequent order denying the petitioner’s Rule 59(e) motion. “An 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). Further, our standard of review of both orders is de novo. See Syl.
Pt. 1, W.Va. CVS Pharm., LLC v. McDowell Pharm., Inc., 238 W.Va. 465, 796 S.E.2d 574
(2017) (“When an appeal from an order denying a motion to dismiss and to compel
arbitration is properly before this Court, our review is de novo.”); Syl. Pt. 1, Wickland v. Am.
Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998) (“The standard of review
applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va.
R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon
which the motion is based and from which the appeal to this Court is filed.”).

       In the case at bar, the circuit court considered documents and affidavits the petitioner
submitted in support of its motion to compel arbitration, which was filed pursuant to West
Virginia Rule of Civil Procedure 12(b)(6). We have long held that “[o]nly matters contained
in the pleading can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if
matters outside the pleading are presented to the court and are not excluded by it, the motion

                                               6

should be treated as one for summary judgment[.]” Syl. Pt. 4, in part, U.S. Fid. and Guar.
Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965); see also W.Va. R. Civ. P. 12(b) (“If,
on a motion asserting the defense numbered (6) to dismiss . . . , matters outside the pleadings
are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment. . . .”); Shaffer v. ACS Gov’t Servs., Inc., 321 F. Supp. 2d 682, 683-84,
(D. Md. 2004) (“The Court recognizes that motions to compel arbitration exist in the
netherworld between a motion to dismiss and a motion for summary judgment. In order to
effectively assess the merits of this motion, however, the court must consider documents
outside the pleadings. As such, the Court will treat Defendant’s motion as a motion for
summary judgment.”). Our standard of review remains plenary. See Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary
judgment is reviewed de novo.”). This matter being properly before this Court, we proceed
with our de novo review of the parties’ arguments and the evidence presented below.

                                       III. Discussion

        We begin by acknowledging the strong and liberal public policy favoring arbitration
under the Federal Arbitration Act, 9 U.S.C. §§ 1 - 307 (“FAA”). The FAA also recognizes
that arbitration is fundamentally a matter of contract, providing that arbitration agreements
“shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C. § 2.5 The determination of whether there
is a valid arbitration agreement between the parties is to be determined by applicable state
contract law. See State ex rel. Clites v. Clawges, 224 W.Va. 299, 305, 685 S.E.2d 693, 699
(2009) (“[T]he issue of whether an arbitration agreement is a valid contract is a matter of
state contract law. . . .”). The petitioner argued below and in this appeal that the state
contract law to be applied is Utah law, citing the provision in the arbitration agreement that
“Utah law shall apply to the extent state law is relevant under the FAA.” The circuit court


       5
        9 U.S.C. § 2 provides, in full, as follows:

               A written provision in any maritime transaction or a contract evidencing
       a transaction involving commerce to settle by arbitration a controversy
       thereafter arising out of such contract or transaction, or the refusal to perform
       the whole or any part thereof, or an agreement in writing to submit to
       arbitration an existing controversy arising out of such a contract, transaction,
       or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds
       as exist at law or in equity for the revocation of any contract.

The parties do not dispute that the Credit Agreement is a matter of commerce that falls under
the FAA.

                                              7

neither analyzed nor ruled upon this choice of law issue because it found that the petitioner
failed to produce sufficient evidence that a Credit Agreement containing an arbitration
agreement even existed or to prove that “the boilerplate credit card agreement was sent to
[the respondent][.]” Having reviewed the evidence presented to the circuit court, we
disagree.

        It is well-established that “[t]he fundamentals of a legal contract are competent parties,
legal subject-matter, valuable consideration and mutual assent.” Syl. Pt. 5, in part, Virginian
Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926); see also
Brasher v. Christensen, 374 P.3d 40, 43 (Utah Ct. App. 2016) (“The essential elements of
an enforceable contract are (1) offer and acceptance, (2) consideration, and (3) competent
parties.”). Here, the petitioner’s evidence offered to prove the existence of the contract
includes the affidavit of Synchrony Bank employee, Jodi Anderson, who attests to her
personal knowledge of the business records of the bank showing that a credit account was
applied for online in the respondent’s name; that the bank approved the application and
opened a credit account in the respondent’s name that same day; that the plastic credit card
for the account, as well as a copy of the “effective account agreement that governed the
Account[,]” were mailed to the respondent at the address supplied in the online application;
that there were no subsequent changes to that agreement; that the credit card was used to
purchase services; and that payments were made on the account. As indicated above,
attached to Ms. Anderson’s affidavit were copies of Synchrony Bank records, which she
attests are “true and accurate” copies of the online application, the effective Credit
Agreement for the account, and the bank’s billing statements that had been mailed to the
respondent at the same address that had been provided in the online application.

         The respondent argues that this evidence fails to prove the existence of the Credit
Agreement and the arbitration agreement contained therein. In particular, he contends that
this evidence fails to meet the petitioner’s evidentiary burden under Rule 56(e) of the West
Virginia Rules of Civil Procedure, which provides, in part, that “[s]upporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify
to the matters stated therein.” Arguing further, the respondent contends that Ms. Anderson
is not a “qualified witness” competent to testify to the matters covered in her affidavit under
West Virginia Rule of Evidence 803(6)(D). Rule 803 provides, in relevant part, that, “[t]he
following are not excluded by the rule against hearsay . . . (6) Records of a Regularly
Conducted Activity. — A record of an act, event, condition, opinion, or diagnosis if: . . . (D)
all these conditions are shown by the testimony of the custodian or another qualified witness
. . . .” Expressing a contrary view, the petitioner maintains that its evidence meets both of
these rules.



                                                8

        Regardless of whether Ms. Anderson is a records custodian for Synchrony Bank, a
foundation for evidence may be established through the testimony of “another qualified
witness.” W.Va. R. Evid. 803(6)(D). Ms. Anderson attests that she is employed as a
litigation analyst with Synchrony Bank; that her job responsibilities include “regularly
accessing Synchrony’s cardholder records and helping to maintain and compile histories of
credit card agreements”; that she is “familiar with the manner in which Synchrony’s credit
card account records and accounts agreements are maintained and the manner in which
mailings are sent to Synchrony cardholders”; that she has “personal knowledge of the
business records of Synchrony”; and that she is a “qualified person authorized to declare and
certify on behalf of Synchrony.”

          As we explained in Lacy v. CSX Transportation, Inc., 205 W.Va. 630, 520 S.E.2d 418
(1999) (superseded on other grounds by W.Va. R. Evid. 103(b)), “‘[a] qualified witness is
not required . . . to have personally participated in or observed the creation of the document
. . . , or know who actually recorded the information . . . [.]’” Id. at 648, 520 S.E.2d at 436
(citations omitted). Rather, “[u]nder W.Va. R. Evid. 803(6), a foundational witness need
only be someone with knowledge of the procedure governing the creation and maintenance
of the records sought to be admitted.” Lacy, 205 W.Va. at 634-35, 520 S.E.2d at 422-23, syl.
pt. 10; see also id. at 634, 520 S.E.2d at 422, syl. pt. 7 (setting forth foundational
requirements for admission of evidence under Rule 803(6)). Moreover, “the foundation
required by Rule 803(6) may be established by circumstantial evidence, or by a combination
of direct and circumstantial evidence.” Lacy, 205 W.Va. at 648, 520 S.E.2d at 436. Having
considered Ms. Anderson’s affidavit under the foregoing authority, we find that she is
qualified to attest to Synchrony Bank records, including the copies of the bank’s records
attached to her affidavit.

        In further rejection of Ms. Anderson’s evidence, the circuit court found, and the
respondent contends, that her affidavit is of questionable credibility6 because (1) the copy of
the online credit application attached to her affidavit is dated March 30, 2014, whereas she
attests the account was both applied for and approved on February 4, 2014; (2) the online
application is “computer generated” and “of origins that have not been explained by” the
petitioner; and (3) the copy of the Credit Agreement attached to her affidavit is dated June
24, 2013, whereas she attests that Synchrony Bank mailed the Credit Agreement to the
respondent on or about February 10, 2014. However, the document that Ms. Anderson
attests is the online application contains a credit report dated February 4, 2014, which is


       6
        See W.Va. R. Evid. 806 (“When a hearsay statement . . . has been admitted in
evidence, the declarant’s credibility may be attacked . . . .”). Although the respondent argues
that the circuit court should not have considered Ms. Anderson’s affidavit because it was
untrustworthy, he has not cross-assigned error in that regard.

                                              9

consistent with Ms. Anderson’s averment that the bank’s records show the credit account was
applied for, and approved on, February 4, 2010. Regarding the origin of this document, Ms.
Anderson avers that she obtained the document from Synchrony Bank records.7 As for date
on the Credit Agreement, the petitioner explains that “Rev. 6/24/13” on the Credit Agreement
simply refers to the date of the most recent revision to this particular version of the
agreement that was being used by Synchrony Bank at the time the respondent opened his care
credit account.

       Based on the foregoing, we find that Ms. Anderson’s affidavit comports with both
West Virginia Rule of Civil Procedure 56(e) and West Virginia Rule of Evidence 803(6).
Moreover, courts have found similar arguments regarding trustworthiness and credibility to
be unpersuasive and insufficient under a summary judgment standard. For example, in
Anthony v. GE Capital Retail Bank, 321 F. Supp. 3d 469 (S.D.N.Y. 2017), the court entered
summary judgment in favor of a creditor, observing that the plaintiff debtor failed to submit
any evidence in support of his opposition to summary judgment. Noting that “[i]nstead of
submitting evidence of his own, Plaintiff simply attacked Synchrony’s Koehler Affidavit
calling it hearsay, unauthenticated, and untruthful[,]” the court proceeded to find that “the
records have sufficient indicia of trustworthiness to be considered reliable.” Anthony, 321
F. Supp. 3d at 475-76 (internal citations omitted). Similarly, in Bozeman v. CACV of
Colorado L.L.C., 638 S.E.2d 387 (Ga. Ct. App. 2006), the court granted summary judgment
in favor of the creditor, explaining that when

       faced with a motion for summary judgment supported by an affidavit,
       Bozeman did not respond with an affidavit or other evidence placing the facts
       supported by CACV’s affidavit in dispute. . . . Rather, she argued that
       CACV’s affidavit was based on hearsay and not personal knowledge, and
       should therefore not be considered by the trial court. However, Bozeman
       presented no evidence contradicting CACV’s affidavit which itself averred
       that the affiant is a record custodian with personal knowledge of the records
       associated with Bozeman’s account. The affidavit further averred that the
       records “are kept in the normal course of business, made contemporaneously
       with the events reflected and under the supervision and control of the Affiant,
       and that the Affiant has examined said records and all statements made herein



       7
        To the extent the circuit court and the respondent are contending that a bank must
present evidence of who was using a device to complete an online application, it is unclear
how a bank would ever have such evidence. Further, the subject Credit Agreement provides
that a cardholder agrees to its terms “[b]y opening or using your account[.]” (Emphasis
added.). The respondent has acknowledged using the credit card.

                                             10

       are a direct reflection of the contents.” Under these circumstances, the trial
       court did not err in considering the affidavit.

Id. at 388.8

       Relying upon Bazemore v. Jefferson Capital Systems, LLC, 827 F.3d 1325 (11th Cir.
2016), the respondent argues that Ms. Anderson’s affidavit, like the declaration in Bazemore,
was inadequate. In Bazemore, the declarant could only state that customarily, an arbitration
agreement would have be sent to the applicant within ten days of her online application,
which the court found to be deficient to establish an enforceable arbitration agreement. Id.
at 1331. Also bearing on the court’s decision was the fact that the declarant did not “attach
a copy of the particular agreement that allegedly ‘would have been’ mailed to plaintiff[,]”
which the court found to be critical since form agreements change frequently. Id.
Conversely, in the case at bar, Ms. Anderson attested that the bank’s records showed that the
Credit Agreement was mailed to the respondent on or about February 10, 2014, and she
attached a “true and accurate copy” of that agreement to her affidavit, noting that no
subsequent changes were made to the agreement. As such, we find Bazemore to be
distinguishable.

        In reviewing the evidence before us, we bear in mind that the nonmoving party
“‘cannot create a genuine issue of material fact through mere speculation . . . .’” Williams
v. Precision Coil, Inc., 194 W.Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) (quoting
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985)). As we have previously held, “[i]f the
moving party makes a properly supported motion for summary judgment and can show by
affirmative evidence that there is no genuine issue of material fact, the burden of production
shifts to the nonmoving party who must either . . . produce additional evidence showing the
existence of a genuine issue for trial, or . . . submit an affidavit explaining why further
discovery is necessary . . . .” Precision Coil, 194 W.Va. at 56, 459 S.E.2d at 333, syl. pt. 3,
in part. Here, the respondent did neither of these things. His criticism of the petitioner’s
evidence amounts to nothing more than speculation, which we find insufficient to overcome
the petitioner’s evidence, as other courts have found.




       8
        While Ms. Anderson did not control Synchrony Bank’s business records, she attests
to being a bank employee with personal knowledge of the bank’s business records; to
regularly accessing the bank’s cardholder records; to helping “maintain and compile histories
of credit card agreements”; to her familiarity with “the manner in which Synchrony’s credit
card account records and account agreements are maintained”; and to being a “qualified
person authorized to declare and certify on behalf of Synchrony.”

                                              11

       Lastly, the circuit court also found, and the respondent argues, there was no agreement
because the petitioner produced no evidence that the respondent signed the Credit
Agreement. However, no signature was required. “Both the offer and acceptance may be
by word, act or conduct that evince the intention of the parties to contract. . . .” Bluestem
Brands, Inc. v. Shade, 239 W.Va. 694, 699, 805 S.E.2d 805, 810 (2017) (citations omitted);
see also Bentaous v. Asset Acceptance, LLC, No. JFM-13-3314, 2014 WL 5790946, at *2 (D.
Md., Nov. 4, 2014) (finding cardholder had accepted terms and conditions of account by
keeping merchandise purchased on account and by making subsequent purchases). Here, the
Credit Agreement expressly provided that “[b]y opening or using” the credit account, the
account holder agrees to the terms of the entire agreement. Accordingly the respondent’s
acceptance of the Credit Agreement’s terms was effectuated by his admitted use of the credit
account.

        Based upon our de novo review of the petitioner’s evidence presented below, and in
the stark absence of any evidence from the respondent, such as an affidavit denying that he
applied for the credit account, or denying that he received a copy of the Credit Agreement
in the mail, we are compelled to find, contrary to the circuit court, that the respondent entered
into the Credit Agreement with Synchrony Bank.

        Having determined there was a Credit Agreement between the respondent and
Synchrony Bank, we turn to the choice of law issue that was raised by the petitioner below,
but which the circuit court did not address. As quoted above, the arbitration agreement
contains a choice of law provision specifying that Utah law applies to the extent state law is
relevant under the FAA. In this regard, we have long held that “[a] choice of law provision
in a contract will not be given effect when the contract bears no substantial relationship with
the jurisdiction whose laws the parties have chosen to govern the agreement, or when the
application of that law would offend the public policy of this state.” Syl. Pt. 1, Gen. Elec.
Co. v. Keyser, 166 W.Va. 456, 275 S.E.2d 289 (1981). In other words, “[t]his Court has
recognized the presumptive validity of a choice of law provision, (1) unless the provision
bears no substantial relationship to the chosen jurisdiction or (2) the application of the laws
of the chosen jurisdiction would offend the public policy of this State.” Manville Pers.
Injury Settlement Tr. v. Blankenship, 231 W.Va. 637, 644, 749 S.E.2d 329, 336 (2013)
(citations omitted). Further,“‘[t]he law of the state in which a contract is made and to be
performed governs the construction of a contract when it is involved in litigation in the courts
of this state.’ Syl. pt. 1 (in part) Michigan National Bank v. Mattingly, 158 W.Va. 621, 212
S.E.2d 754 (1975).” Gen. Elec., 166 W.Va. at 456-57, 275 S.E.2d at 290, syl. pt. 2.

       Although the circuit court purported to make alternative rulings, as if an agreement
did exist, the circuit court’s ruling cannot be seen as a final decision on the merits when it
declined to address and rule upon the choice of law issue before making its alternative
rulings. This Court will not consider on appeal matters that have not been addressed in a trial

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court’s final order. See Citibank, N.A. v. Perry, 238 W.Va. 662 n.2, 797 S.E.2d 803 n.2
(2016) (“Because Citibank failed to obtain a ruling on this issue, we find it has not been
preserved for appeal. See Syl. Pt. 5, State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell,
228 W.Va. 252, 256, 719 S.E.2d 722, 726 (2011) (‘This Court will not pass on a
nonjurisdictional question which has not been decided by the trial court in the first instance.’
(quotations and citations omitted)).”). Because the choice of law issue was not developed
below, we decline to undertake such analysis or to rule on the question in the first instance.

        Having determined that a Credit Agreement existed between the respondent and
Synchrony Bank, this case must be remanded. On remand, the circuit court should require
the parties to provide a more thorough analysis of the choice of law issue prior to issuing its
choice of law ruling, bearing in mind the legal precepts set forth in General Electric and
Mattingly. Once the circuit court undertakes its choice of law analysis and rules upon the
same, it must then utilize the applicable state’s law to address the remaining issues, including
whether there is a valid arbitration agreement covering the parties’ dispute;9 whether the
petitioner acquired or was assigned those arbitration rights when it purchased the
“receivable” on the respondent’s account from Synchrony Bank;10 and, if the court finds that
the arbitration agreement is valid and that the petitioner was assigned those rights, whether
the petitioner has waived arbitration. Additionally, if the circuit court determines under the
applicable state’s law that the petitioner is Synchrony Bank’s assignee, we observe that the
arbitration agreement includes a class action waiver that might survive even if the balance
of the arbitration agreement were found to be “null and void.”11 Consequently, depending
upon how the circuit court rules on the assignment issue, it may be necessary for the circuit
court to address this survival provision when it rules upon the petitioner’s motion to dismiss
the respondent’s class counterclaim, a ruling the circuit court has not heretofore made.

                                       IV. Conclusion

       9
         See AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)
(“‘Under our decisions, whether or not the company was bound to arbitrate, as well as what
issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract
entered into by the parties.’”) (citations omitted).
       10
         While the petitioner self-designates as Synchrony Bank’s “assignee,” and although
the circuit court cursorily addressed the issue in its order denying arbitration, the question
of whether the petitioner acquired the arbitration rights under the Credit Agreement requires
a more thorough analysis by the parties and the circuit court.
       11
         The arbitration agreement includes a sentence dedicated to class action waiver, after
which it provides that “[i]f a court determines that this paragraph is not fully enforceable,
only this sentence will remain in force and the remainder will be null and void[.]”

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       For the reasons stated above, the circuit court’s March 6, 2017, order denying the
petitioner’s motion to compel arbitration is reversed, and this case is remanded for further
proceedings consistent with this memorandum decision.

                                                                  Reversed and Remanded.


ISSUED: October 26, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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