CITIZENS TELECOMMUNICATIONS COMPANY OF WEST VIRGINIA d/b/a FRONTIER COMMUNICATIONS OF WEST VIRGINIA, FRONTIER WEST VIRGINIA, INC., Defendant Below, Petitioner
MICHAEL SHERIDAN, APRIL MORGAN, TRISHA COOKE, and RICHARD BENNIS, individually, and on behalf of other similarly-situated individuals, Plaintiffs Below, Respondents
Submitted: January 24, 2017
from the Circuit Court of Lincoln County The Honorable Jay M.
Hoke, Judge Civil Action No. 14-C-115
R. Goodwin, Esq. J. David Fenwick, Esq. Goodwin & Goodwin
Charleston, West Virginia Archis A. Parasharami, Esq.
(admitted pro hac vice) Mayer Brown LLP Washington, DC Joseph
J. Starsick, Jr., Esq. Frontier Communications Charleston,
West Virginia Counsel for the Petitioner
Benjamin Sheridan, Esq. Mitchel Lee Klein, Esq. Klein
Sheridan & Glazer LC Hurricane, West Virginia Jonathan J.
Marshall, Esq. Bailey Glasser, LLP Charleston, West Virginia
Counsel for the Respondents
BY THE COURT
"An order denying a motion to compel arbitration is an
interlocutory ruling which is subject to immediate appeal
under the collateral order doctrine." Syllabus Point 1,
Credit Acceptance Corp. v. Front, 231 W.Va. 518, 745
S.E.2d 556 (2013).
"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." Syllabus Point
1, West Virginia CVS Pharmacy, LLC v. McDowell Pharmacy,
Inc., __ W.Va.__, 796 S.E.2d 574 (2017).
"In the absence of a mutual agreement, based on a valid
consideration, establishing modification of a written
contract, there can be no subsequent modification of such a
contract without consideration, and the mere promise of one
of the parties to perform what he is already bound to do
under the terms of the contract is not a sufficient
consideration." Syllabus Point 5, Bischoff v.
Francesa, 133 W.Va. 474, 56 S.E.2d 865 (1949).
"It is not the right or province of a court to alter,
pervert or destroy the clear meaning and intent of the
parties as expressed in unambiguous language in their written
contract or to make a new or different contract for
them." Syllabus Point 3, Cotiga Dev. Co. v. United
Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
Telecommunications Company of West Virginia d/b/a Frontier
Communications of West Virginia, Frontier West Virginia, Inc.
("Frontier") appeals the November 30, 2015 order of
the Circuit Court of Lincoln County denying Frontier's
motion to compel arbitration in a putative class action filed
by Michael Sheridan, April Morgan, Trisha Cooke, and Richard
Bennis on behalf of themselves and similarly-situated persons
contends that the circuit court erred in refusing to enforce
an arbitration provision in the parties' agreement. Upon
consideration of the parties' briefs and arguments, the
submitted record and pertinent authorities, we agree with
Frontier, reverse the circuit court's order and remand
with instructions to enter an order compelling arbitration on
an individual basis.
FACTUAL AND PROCEDURAL BACKGROUND
are West Virginia residents who initially subscribed to
Frontier's residential "high-speed Internet
service" between August 2007 and June 2010. Respondents
sued Frontier in October 2014 alleging that the service was
much slower than advertised and that Frontier had
intentionally reduced the speed at which Respondents could
connect to the Internet.
subscribers, Respondents' relationship with Frontier was
governed by Frontier's Residential Internet Service Terms
and Conditions ("Terms and Conditions"). The Terms
and Conditions, available on Frontier's Internet website,
provided that "BY USING FRONTIER HIGH SPEED INTERNET
SERVICES OR EQUIPMENT YOU ARE AGREEING TO THESE TERMS AND
CONDITIONS." (Emphasis in original). At the time
Respondents subscribed to the service, the Terms and
Conditions did not contain a dispute resolution provision.
However, the Terms and Conditions contained a provision that
permitted Frontier to propose changes to the terms, upon
notice to customers. Continued use of the service by a
customer after any change was considered to be the
customer's acceptance of the new term. For example, the
Terms and Conditions in effect from July 2011 until March
OUR RIGHT TO MAKE CHANGES
UNLESS OTHERWISE PROHIBITED BY LAW, FRONTIER MAY CHANGE
PRICES, TERMS AND CONDITIONS AT ANY TIME BY GIVING YOU 30
DAYS NOTICE BY BILL MESSAGE, E-MAIL, OR OTHER NOTICE,
INCLUDING POSTING NOTICE OF SUCH CHANGES ON THIS WEBSITE,
UNLESS THE PRICES, TERMS AND CONDITIONS ARE GUARANTEED BY
CONTRACT. YOU ACCEPT THE CHANGES IF YOU USE THE SERVICE AFTER
NOTICE IS PROVIDED.
(Emphasis in original). 
September 2011, Frontier altered the Terms and Conditions and
added an arbitration provision requiring any dispute between
a customer and Frontier to be resolved by binding arbitration
on an individual basis. More specifically, the arbitration
provision included waivers of the right to a trial by jury
and the right to participate in a class action, a
representative proceeding or a private attorney general
action. Frontier included a notice of this change in the
September 2011 billing statement, which provided as follows:
As part of our Terms and Conditions of service, Frontier has
recently instituted a binding arbitration provision to
resolve customer disputes. This provision will become
effective 45 days from the date of this bill. Please refer to
www.frontier.com or call Frontier 1-800-426-7320,
option 3 for more information.
assert that they never read this portion of the billing
statement because Frontier placed it toward the end of a
multipage billing statement after many other notices.
Respondents further contend the terms of the arbitration
provision were not contained in the billing statement.
January 2012, Frontier revised the arbitration provision to
include terms that Frontier describes as more "consumer
friendly." Frontier sent a notice of these revisions